ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is made and entered into as of
September 20, 2002, by and between Ridgewood Electric Power Trust II, a Delaware
business trust ("Seller") and EAC Operations, Inc., a New York corporation
("Buyer"), with reference to the following recitals:
RECITALS
A. B-3 Limited Partnership, a New York limited partnership ("B-3 Limited
Partnership"), has been formed as a limited partnership under the New York
Revised Limited Partnership Act (the "Act") pursuant to a Certificate of Limited
Partnership, as filed in the office of the Secretary of State of the State of
New York on April 2, 1992,as amended, and an Agreement of Limited Partnership
dated March 15, 1992, as amended by a First Amended Limited Partnership
Agreement of B-3 Limited Partnership dated October 1, 1993, a Second Amended
Limited Partnership Agreement of B-3 Limited Partnership dated August 19, 1994
and a First Amendment to Second Amended Limited Partnership Agreement of B-3
Limited Partnership dated December 1, 1997, (collectively, the "B-3 Partnership
Agreement").
B. Under the X-0 Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxx X-0, Inc., a Delaware
corporation ("Berkshire B-3"), is the sole general partner of B-3 Limited
Partnership and Buyer and Seller are the sole limited partners of B-3 Limited
Partnership.
C. Seller owns fifty one (51) shares of the common stock of Berkshire B-3
(the "Berkshire B-3 Stock") and Buyer owns forty nine (49) shares of the common
stock of Berkshire B-3.
D. B-3 Limited Partnership owns and operates a transfer station that
accepts solid waste located at the intersection of Flints Crossing Road and
Route 22 in the Town of Canaan, New York (the "B-3 Facility").
E. Pittsfield Investors Limited Partnership, a Delaware limited partnership
("PILP"), has been formed as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (the "Act") pursuant to a Certificate of Limited
Partnership, as filed in the office of the Secretary of State of the State of
Delaware on and a Limited Partnership Agreement of Pittsfield Investors Limited
Partnership dated August 24, 1993 (the "Pittsfield Partnership Agreement").
F. Under the Pittsfield Partnership Agreement, ECO/Pittsfield, Inc., a
Delaware corporation ("ECO/Pittsfield"), is the sole general partner of PILP and
Buyer and Seller are the sole limited partners of PILP.
G. ECO Pittsfield is a wholly owned subsidiary of Buyer.
H. PILP owns and operates a resource recovery facility that accepts solid
waste located at Xxxxxxx Avenue in the City of Pittsfield, Massachusetts (the
"Pittsfield Facility").
I. At the closing described below, Buyer will purchase from Seller the
Berkshire B-3 Stock, the B-3 LP Interest and the Pittsfield LP Interest, as each
such capitalized term is defined below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth below, the parties, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 Defined Terms. Capitalized terms used in this Agreement without other
definition shall have the meanings specified in this Section 1.1, unless the
context requires otherwise.
"Affiliate" of a specified Person means any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with the Person specified. For purposes of the foregoing,
"control," "controlled by" and "under common control with," with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Aggregate Purchase Price" means an amount of Six Million Two Hundred
Thousand Dollars ($6,200,000), consisting of the B-3 Purchase Price and the
Pittsfield Purchase Price.
"Agreement" means this Acquisition Agreement, including all Exhibits and
Schedules.
"Assignment of B-3 LP Interest" means the Assignment of B-3 Limited
Partnership Interest and Amendment of Limited Partnership Agreement of B-3
Limited Partnership by and among Berkshire B-3, Seller and Buyer in the form of
Exhibit A attached hereto.
"Assignment of Pittsfield LP Interest" means the Assignment of Pittsfield
Limited Partnership Interest and Amendment of Limited Partnership Agreement of
Pittsfield Investors Limited Partnership by and among ECO Pittsfield, Seller and
Buyer in the form of Exhibit B attached hereto.
"B-3 Facility" has the meaning set forth in the Recitals.
"B-3 Collateral Documents" shall mean those certain guaranties and
collateral documents securing the B-3 Promissory Note as more particularly
described in the Loan Agreement.
"B-3 LP Interest" has the meaning given in Section 4.7.
"B-3 Limited Partnership" has the meaning set forth in the Recitals.
"B-3 Partnership Agreement" has the meaning set forth in the Recitals.
"B-3 Promissory Note" has the meaning given in Section 3.2.6.
"B-3 Purchase Price" means an aggregate consideration of Three Million Four
Hundred Thousand Dollars ($3,400,000) as described in Section 3.2.5.
"B-3 Site" means the property on which the B-3 Facility is located.
"Berkshire B-3" has the meaning given in the Recitals.
"Berkshire B-3 Stock" has the meaning given in the Recitals.
"Buyer" has the meaning set forth in the Recitals.
"Closing" has the meaning given in Section 3.1.
"Closing Date" has the meaning given in Section 3.1.
"Closing Documents" means, collectively, this Agreement, the Assignment of
B-3 LP Interest, the Assignment of Pittsfield LP Interest and the Loan
Documents.
"Code" means the Internal Revenue Code of 1986, as amended, and all rules
and regulations adopted thereunder.
"Default" means, when used with reference to any agreement without other
reference, any event or circumstances that constitutes an Event of Default under
such agreement.
"ECO Pittsfield" has the meaning given in the Recitals.
"Event of Default" means, when used with reference to any agreement without
other reference, an Event of Default as defined in such agreement.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
"Governmental Approval" means any applicable authorization, approval,
consent, license, lease, ruling, permit, tariff, certification, exemption,
filing or registration by or with any Governmental Person.
"Governmental Person" means any federal, state, local or other government,
any political subdivision or any governmental, judicial, public or statutory
instrumentality, tribunal, agency (including those pertaining to health, safety
or the environment), authority, body or entity, or other regulatory bureau,
authority, body or entity having legal jurisdiction over the matter or Person in
question.
"Governmental Rule" means any applicable federal, state, local or other
law, statute, treaty, rule, regulation, ordinance, order, code, judgment,
decree, directive, injunction, writ or similar action or decision duly
implementing any of the foregoing by any Governmental Person, but does not
include Governmental Approvals.
"Knowledge," "known" and "knows," whether or not capitalized herein and
when used with respect to matters covered by representation, warranty, covenant
or other provision of this Agreement applicable to Seller or Buyer, means the
knowledge and beliefs of the (i) Chief Financial Officer and General Counsel of
Seller, or (ii) the President and General Counsel of Buyer.
"Lien" means any lien, mortgage, encumbrance, charge, pledge, lease,
security interest, claim, option or right of any kind (including any conditional
sale or other title retention agreement).
"Loan Agreement" means that certain Loan Agreement by and between Buyer,
Seller, B-3 Limited Partnership and PILP of even date herewith.
"Loan Documents" shall mean the Loan Agreement, the B-3 Collateral
Documents, the B-3 Promissory Note, the Pittsfield Collateral Documents and the
Pittsfield Promissory Note.
"Person" means any individual, corporation, partnership, trust, joint
venture, unincorporated association, limited liability company, Governmental
Person or other entity.
"PILP" has the meaning set forth in the Recitals.
"Pittsfield Collateral Documents" shall mean those certain guaranties and
collateral documents securing the Pittsfield Promissory Note as more
particularly described in the Loan Agreement.
"Pittsfield Facility" has the meaning set forth in the Recitals.
"Pittsfield LP Interest" has the meaning set forth in Section 4.8.
"Pittsfield Partnership Agreement" has the meaning set forth in the
Recitals.
"Pittsfield Promissory Note" has the meaning given in Section 3.2.6.
"Pittsfield Purchase Price" means an aggregate consideration of Two Million
Eight Hundred Thousand Dollars ($2,800,000) as described in Section 3.2.6.
"Pittsfield Site" means the property on which the Pittsfield Facility is
located.
"Ridgewood/B-3 Agreements" means the Shareholders Agreement and the
Contribution Agreement dated as of August 11, 1994 between B-3 Limited
Partnership, Energy Answers Corporation, Buyer, EAC Systems, Inc., EAC
Operations/Albany, Inc., Seller, and Berkshire B-3.
"Ridgewood/PILP Agreements" means the following agreements:
(A) Agreement of Shareholder Regarding Voting of Stock dated as of August
24, 1993 between Energy Answers Corporation, ECO Pittsfield, and Seller.
(B) Waste Supply Pricing Agreement dated as of August 24, 1993 between
PILP, Seller, Buyer, and Energy Answers Corporation.
(C) Letter Agreement dated August 27, 1993 between ECO Pittsfield,
Berkshire RR Limited Partnership, and Seller.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations adopted thereunder.
"Seller" has the meaning set forth in the Preamble.
"Shareholders Agreement" means that certain Shareholders Agreement dated
August 18, 1994, by and among Berkshire B-3, Seller and Buyer.
1.2 Interpretations. For purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise necessarily requires:
1.2.1 the terms "herein," "herewith" and "hereof" are references to this
Agreement, taken as a whole;
1.2.2 the terms "include," "includes" and "including" shall mean
"including, without limitation";
1.2.3 references to a "Section," "Article," "Exhibit" or "Schedule" shall
mean a Section, Article, Exhibit or Schedule of this Agreement, as the case may
be;
1.2.4 references to a given agreement, instrument or other document shall
be a reference to that agreement, instrument or other document as modified,
amended, supplemented and restated through the date as of which such reference
is made;
1.2.5 references to a Person includes its permitted successors and
permitted assigns;
1.2.6 the singular shall include the plural and the masculine shall include
the feminine and neuter, and vice versa;
1.2.7 reference to a given Governmental Rule is a reference to that
Governmental Rule as amended, modified, supplemented or restated as of the date
on which the reference is made; and
1.2.8 accounting terms have the meaning given to them by GAAP applied on a
consistent basis by the Person to which they relate.
ARTICLE II
SALE AND PURCHASE OF B-3 STOCK AND LP INTERESTS; PURCHASE PRICE
2.1 Sale of Berkshire B-3 Stock and the B-3 LP Interest. Upon the terms and
subject to the conditions of this Agreement, at the Closing, Seller shall sell,
and Buyer shall purchase, the Berkshire B-3 Stock and the B-3 LP Interest for a
price equal to the B-3 Purchase Price. The B-3 Purchase Price shall be allocated
as follows: 1% for the Berkshire B-3 Stock and 99% for the B-3 LP Interest.
2.2 Sale of Pittsfield LP Interest. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Seller shall sell and Buyer shall
purchase, the Pittsfield LP Interest for a purchase price equal to the
Pittsfield Purchase Price.
2.3 Manner of Payment. At the Closing, Buyer shall pay the purchase prices
specified in Section 2.1 and Section 2.2 in the manner specified in Article 3.
ARTICLE III CLOSING DATE AND ACTIONS AT CLOSING
3.1 Closing Date. Subject to the terms and provisions of this Agreement,
the closing of the transactions contemplated by this Agreement (the "Closing")
shall be held at the offices of EAC Operations, Inc., 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, XX at 10:00 a.m. Eastern Standard Time, on September 20, 2002 or on such
other date and at such other place as may be mutually agreed upon by the
parties. The date of the Closing is sometimes referred to herein as the "Closing
Date."
3.2 Actions at Closing. In addition to and without limiting any other
provisions of this Agreement, Seller and Buyer shall take the following actions
or cause the following actions to be taken at the Closing:
3.2.1 Berkshire B-3 Stock Certificates. Seller shall deliver to Buyer
certificates representing the Berkshire B-3 Stock, duly endorsed in blank or
accompanied by duly executed stock powers in blank in proper form for transfer
together with all corporate records of Berkshire B-3.
3.2.2 Assignment of B-3 LP Interest. Seller and Buyer shall execute and
deliver the Assignment of B-3 LP Interest.
3.2.3 Assignment of Pittsfield LP Interest. Seller and Buyer shall execute
and deliver the Assignment of Pittsfield LP Interest.
3.2.4 Other Closing Documents. Seller and Buyer shall execute and deliver
the other Closing Documents.
3.2.5 Payment of B-3 Purchase Price. The B-3 Purchase Price shall be paid
by Buyer as follows:
(a) Four Hundred Thousand Dollars ($400,000) shall be paid to Seller by
wire transfer or other credit of immediately available funds to an account
designated by Seller.
(b) Three Million Dollars ($3,000,000) shall be paid to Seller pursuant to
the terms and conditions of a negotiable promissory note in the form attached
hereto as Exhibit C (the "B-3 Promissory Note") secured by Buyer's ownership
interests in B-3 Limited Partnership and Berkshire B-3 and guaranteed by certain
of its Affiliates, all pursuant to the terms and conditions of the Loan
Agreement, the B-3 Collateral Documents and other documents described therein.
3.2.6 Payment of Pittsfield Purchase Price. The Pittsfield Purchase Price
shall be paid by Buyer as follows:
(a) Eight Hundred Thousand Dollars ($800,000) shall be paid to Seller at
closing by wire transfer or other credit of immediately available funds to an
account designated by Seller.
(b) Two Million Dollars ($2,000,000) shall be paid to Seller by delivery of
a negotiable promissory note in the form attached hereto as Exhibit D (the
"Pittsfield Promissory Note") secured by Buyer's ownership interests in PILP and
ECO Pittsfield and guaranteed by certain of its Affiliates, all pursuant to the
terms and conditions of the Loan Agreement, the Pittsfield Collateral Documents
and other documents described therein.
3.2.7. Return of Deposits. Seller shall wire transfer to an account
designated by B-3 Limited Partnership all amounts on deposit in the Revenue Fund
Lockbox Account, and the Revenue Fund Money Market Account maintained by Seller
at JPMorganChase.
3.2.8 Termination of Agreements. Seller and Buyer shall enter into an
agreement terminating the Ridgewood/B-3 Agreements and the Ridgewood/PILP
Agreements.
3.3 Additional Actions. Seller and Buyer shall, on request, on and after
the Closing Date, take such further actions as may be requested pursuant to
Section 9.5.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer (regardless of any
examinations, inspections, audits or other investigations Buyer has heretofore
made or may hereafter make with respect to such representations and warranties)
as of the Closing Date as follows:
4.1 Due Organization. Seller is a business trust duly organized, validly
existing and in good standing under the laws of the State of Delaware.
4.2 Power and Authority. Seller has full power and authority to enter into
and perform its obligations hereunder and under the Closing Documents to which
it is or will be a party and to consummate the transactions herein and therein
contemplated in accordance with the terms, provisions and conditions hereof and
thereof. All proceedings required to be taken by Seller to authorize it to
execute, deliver and perform the terms of this Agreement and the other Closing
Documents to which it is or will be a party have been duly and validly taken.
4.3 Valid, Binding and Enforceable Obligations. Each of this Agreement and
the other Closing Documents to which Seller is or will be a party has been, or
will be on the Closing Date, as the case may be, duly and validly executed by
Seller and constitutes, or will constitute when executed, a valid, binding, and
enforceable obligation, enforceable against Seller in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and the enforcement of debtors' obligations generally and by general
principles of equity, regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
4.4 No Violations. The execution and delivery by Seller of this Agreement
and the other Closing Documents to which it is or will be a party, and Seller's
consummation of the transactions contemplated hereby and thereby will not (a)
violate the organizational documents of Seller, (b) violate or constitute a
Default or Event of Default under, or cause or permit the acceleration of the
maturity of, or give rise to any right of termination, cancellation, imposition
of fees or penalties under, any debt, obligation, contract, commitment of fees
or other agreement to which Seller is a party or by which any of the properties
or assets of Seller is or may be bound, (c) result in the creation or imposition
of any Lien upon any of the property or assets of Seller, or under any debt,
obligation, contract, commitment or other agreement to which Seller is a party
or by which any of its properties or assets is or may be bound or (d) violate
any Governmental Rule.
4.5 Governmental Consents and Notices. No Governmental Approval is
necessary or appropriate in connection with the execution and delivery by Seller
of this Agreement and the other Closing Documents, or the consummation by Seller
of the transactions contemplated hereby and thereby, including the transfer of
the Berkshire B-3 Stock, the B-3 LP Interest and the Pittsfield LP Interest.
Except as expressly described on Schedule 4.5, all of the Governmental Consents
and Notices have been duly obtained or made and none has been revoked or
rescinded or has expired.
4.6 Additional Consents and Notices. No filing, registration,
qualification, notice, consent, approval or authorization to, with or from any
Person is necessary or appropriate in connection with the execution and delivery
by Seller of this Agreement and the other Closing Documents, or the consummation
by Seller of the transactions contemplated hereby and thereby, including the
transfer by Seller of the Berkshire B-3 Stock, the B-3 LP Interest and the
Pittsfield LP Interest. Except as expressly described on Schedule 4.6, all of
the Additional Consents and Notices have been duly obtained or made and none has
been revoked or rescinded or has expired.
4.7 B-3 Partner Interest and Berkshire B-3 Stock. Seller owns a 49.5%
limited partnership interest in B-3 Limited Partnership as described in the B-3
Partnership Agreement (the "B-3 LP Interest"). Seller owns the B-3 LP Interest
free and clear of all Liens. Seller owns the Berkshire B-3 Stock free and clear
of all Liens. No other party has any rights to acquire or otherwise holds any
interest in or has any rights with respect to the Berkshire B-3 Stock or the B-3
LP Interest, except as may be otherwise provided in the B-3 Partnership
Agreement or the Shareholders Agreement. Seller will sell and transfer the
Berkshire B-3 Stock and B-3 LP Interest to Buyer at the Closing free and clear
of all Liens as herein provided.
4.8 Pittsfield Partner Interest. Seller owns a 50% limited partnership
interest in PILP as described in the PILP Partnership Agreement (the "Pittsfield
LP Interest"). Seller owns the Pittsfield LP Interest free and clear of all
Liens. No other party has any rights to acquire or otherwise holds any interest
in or has any rights with respect to Pittsfield LP Interest, except as may be
otherwise provided in the PILP Partnership Agreement. Seller will sell and
transfer the Pittsfield LP Interest to Buyer at the Closing free and clear of
all Liens as herein provided.
4.9 No Litigation. There are no actions, suits or proceedings of any type
pending or, to Seller's knowledge, threatened, against Seller, whether at law or
in equity, including actions, suits or proceedings, before or by any
Governmental Person, which relate to the B-3 Facility or the Pittsfield Facility
or Seller's interest in Berkshire X-0, X-0 Limited Partnership or PILP. Seller
has no knowledge of any state of facts or contemplated event which may
reasonably be expected to give rise to any such action, suit or proceeding.
4.10 Bankruptcy. Seller has not filed any voluntary petition in bankruptcy
or been adjudicated a bankrupt or insolvent, filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any
federal bankruptcy, insolvency, or other debtor relief law, or sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator or liquidator of all or any part of its properties. No court of
competent jurisdiction has entered an order, judgment or decree approving a
petition filed against Seller seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
federal bankruptcy act, or other debtor relief law, and no other liquidator has
been appointed of Seller or of all or any part of its properties.
4.11 Securities Laws. Based upon and provided that the representations of
Buyer in Sections 5.7 and 5.8 are true and correct, the sale of the Berkshire
B-3 Stock, the B-3 LP Interest and the Pittsfield LP Interest is not required to
be registered pursuant to the Securities Act, or applicable state securities
laws or regulations.
4.12 Brokers. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any Person
acting on behalf of, or representing, either Seller, Berkshire X-0, X-0 Limited
Partnership, PILP or any of their Affiliates as a broker, finder, investment
banker, financial advisor or in any similar capacity.
4.13 Berkshire B-3. (A) Berkshire B-3 is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and is qualified to transact business in the State of New York.
(B) Berkshire B-3 has no (and has never had any) assets other than its
general partnership interest in B-3 Limited Partnership, and has never engaged
in or otherwise been involved with any business enterprise other than B-3
Limited Partnership. Berkshire B-3 has no (and has never had any) employees.
(C) Berkshire B-3 has no Liabilities, and there is no basis for any present
or future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against Berkshire B-3. For purposes of this section, Liability"
means any liability, whether known or unknown, asserted or unasserted, absolute
or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to
become due. Without limiting the generality of the foregoing, Berkshire B-3 is
not a guarantor or otherwise liable for any Liability or obligation, including
indebtedness, of any other Person.
(D) Berkshire B-3 is not a party to any contract or agreement other than
the B-3 Limited Partnership Agreement and the Ridgewood/B-3 Agreements.
(E) Berkshire B-3 has properly and accurately completed and filed all
federal, state and local tax returns and reports required to be filed on or
before the Closing Date (including all such tax returns for the year ended
December 31, 2001), and has paid all taxes due pursuant to such returns. No
penalties are due with respect to any such tax returns filed after the required
filing date.
(F) There are no actions, suits or proceedings of any type pending or, to
Seller's knowledge, threatened, against Berkshire B-3, whether at law or in
equity, including actions, suits or proceedings, before or by any Governmental
Person, and Seller has no knowledge of any state of facts or contemplated event
which may reasonably be expected to give rise to any such action, suit or
proceeding.
(G) Berkshire B-3 has not filed any voluntary petition in bankruptcy or
been adjudicated a bankrupt or insolvent, filed any petition or answer seeking
any reorganization, liquidation, dissolution or similar relief under any federal
bankruptcy, insolvency, or other debtor relief law, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator of all or any part of its properties. No court of competent
jurisdiction has entered an order, judgment or decree approving a petition filed
against Berkshire B-3 seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any federal
bankruptcy act, or other debtor relief law, and no other liquidator has been
appointed of Berkshire B-3 or of all or any part of its properties.
The representations and warranties set forth in Sections 4.13(A) through
(G) are qualified, and Seller shall have no liability, to the extent that an
action or actions by EAC Operations or any affiliate that has the effect of
making such representation untrue, incomplete or misleading.
ARTICLE V
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer hereby represents and warrants to Seller (regardless of any
examinations, inspections, audits or other investigations Seller has heretofore
made or may hereafter make with respect to such representations and warranties)
as of the Closing Date as follows:
5.1 Due Organization. Buyer is a New York corporation, duly organized, and
validly existing under the laws of the State of New York, and is qualified to
transact business in all jurisdictions where the ownership of its properties or
its operations require such qualification, except where the failure to so
qualify would not have a material adverse effect on its financial condition, its
ability to own its properties or transact its business, or to carry out the
transactions contemplated hereby.
5.2 Power and Authority. Buyer has corporate power and authority to enter
into and perform its obligations hereunder and under the other Closing Documents
to which it is or will be a party and to consummate the transactions herein and
therein contemplated in accordance with the terms, provisions and conditions
hereof and thereof. All corporate proceedings required to be taken by Buyer to
authorize it to execute, deliver and perform the terms of this Agreement and the
other Closing Documents to which it is or will be a party have been duly and
validly taken.
5.3 Valid, Binding and Enforceable Obligations. Each of this Agreement and
the other Closing Documents to which Buyer is or will be a party has been, or
will be on the Closing Date, as the case may be, duly and validly executed by
Buyer and constitutes, or will when executed constitute, a valid, binding, and
enforceable obligation, enforceable against Buyer in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and the enforcement of debtors' obligations generally and by general
principles of equity, regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
5.4 No Violations. The execution and delivery by Buyer of this Agreement
and the other Closing Documents to which it is or will be a party, and Buyer's
consummation of the transactions contemplated hereby and thereby will not (a)
violate or be in conflict with the organizational documents of Buyer, (b)
violate, be in conflict with, or constitute a Default or Event of Default under,
or cause or permit the acceleration of the maturity of, or give rise to any
right of termination, cancellation, imposition of fees or penalties under, any
debt, obligation, contract, commitment of fees or other agreement to which Buyer
is a party or by which any of the properties or assets of Buyer is or may be
bound, (c) result in the creation or imposition of any Lien upon any of the
property or assets of Buyer, or under any debt, obligation, contract, commitment
or other agreement to which Buyer is a party or by which any of its properties
or assets is or may be bound, or (d) violate any Governmental Rule.
5.5 Bankruptcy. Buyer has not filed any voluntary petition in bankruptcy or
been adjudicated a bankrupt or insolvent, filed any petition or answer seeking
any reorganization, liquidation, dissolution or similar relief under any federal
bankruptcy, insolvency, or other debtor relief law, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator of all or any substantial part of its properties. No court of
competent jurisdiction has entered an order, judgment or decree approving a
petition filed against Buyer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
federal bankruptcy act, or other debtor relief law, and no other liquidator has
been appointed of Buyer or of all or any substantial part of its properties.
5.6 No Litigation. There are no actions, suits or proceedings of any type
pending or, to Buyer's knowledge, threatened, against Buyer , whether at law or
in equity, before or by any Governmental Person which relate to the B-3
Facility, the Pittsfield Facility, or Buyer's interest in X-0 Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx X-0, PILP or ECO Pittsfield. Buyer has no knowledge of
any state of facts or contemplated event which may reasonably be expected to
give rise to any such action, suit or proceeding. Buyer is not operating under,
or subject to, or in default with respect to, any order, writ, injunction or
decree of any Governmental Person which relate to the B-3 Facility, the
Pittsfield Facility, or Buyer's interest in X-0 Xxxxxxx Xxxxxxxxxxx, Xxxxxxxxx
X-0, PILP or ECO Pittsfield.
5.7 Investment Intent. Buyer is acquiring the Berkshire B-3 Stock, the B-3
LP Interest and the Pittsfield LP Interest solely for the purpose of investment
and not with a view to, or for sale in connection with, any distribution
thereof. Buyer acknowledges that the Berkshire B-3 Stock, the B-3 LP Interest
and the PILP LP Interest are not registered under the Securities Act and that
the Berkshire B-3 Stock, the B-3 LP Interest and the Pittsfield LP Interest may
not be transferred or sold except in compliance with the registration provisions
of the Securities Act or pursuant to an applicable exemption therefrom and in
compliance with applicable state securities laws and regulations.
5.8 Accredited Investor. Buyer is an "accredited investor" as defined in
Rule 501 of the Securities Act and is a sophisticated investor with the
capability of evaluating the merits and risks of entering into this Agreement.
5.9 Brokers. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any Person
acting on behalf of, or representing, Buyer or any of its Affiliates as a
broker, finder, investment banker, financial advisor or in any similar capacity.
ARTICLE VI
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligation of Buyer to consummate the transactions contemplated hereby
shall be subject to the fulfillment to the satisfaction of, or waiver by, Buyer,
in its sole discretion, of each of the following conditions on or prior to the
Closing:
6.1 No Termination. This Agreement shall not have been terminated pursuant
to Section 9.6 hereof.
6.2 Representations True and Correct; Certificate. The representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date with the same force and
effect as if made on and as of the Closing Date, and Seller shall have executed
and delivered to Buyer an officer's certificate confirming the same.
6.3 Compliance with Covenants; Certificate. Seller shall have performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, and Seller shall have executed and delivered to Buyer an officers'
certificate confirming the same.
6.4 No Adverse Proceedings. On the Closing Date, no action or proceeding
shall be pending by any public authority or private individual or entity before
any court or administrative body to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
6.5 Proceedings Satisfactory. All proceedings to be taken in connection
with the consummation of the transactions contemplated by this Agreement and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to Buyer and its counsel, and, Buyer and its counsel shall have
received copies of such documents and customary certificates as Buyer and its
counsel may reasonably request in connection therewith.
6.6 Consents and Notices. All Governmental Consents and Notices, Additional
Consents and Notices and other consents or notices required to be obtained from
or made to any Person shall have been duly obtained, made or provided, as the
case may be, and shall be in full force and effect.
6.7 Legal Opinion. Buyer shall have received from Seller's general counsel,
opinions as to the authorization, delivery and enforceability of the Closing
Documents and the other acts to be performed by Seller at Closing in form
reasonably acceptable to Buyer and its counsel.
6.8 Execution and Delivery of Closing Documents. This Agreement and each of
the other Closing Documents shall have been duly authorized, executed and
delivered by the parties thereto and shall be in full force and effect on the
Closing Date without any material Default or Event of Default having occurred or
existing thereunder or material breach thereof or circumstance which would give
any party thereto the right to terminate any such Closing Document.
6.9 No Violations. The consummation of the transactions contemplated hereby
and by the other Closing Documents shall not violate any Governmental Rule.
6.10 Closing Actions. Each of the actions required to be taken by Seller
pursuant to Section 3.2 or otherwise to effect the transactions contemplated
hereby shall have been duly performed and complied with, and Buyer shall have
received satisfactory evidence of any and all such actions.
ARTICLE VII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligation of Seller to consummate the transactions contemplated hereby
shall be subject to the fulfillment to the satisfaction of, or waiver by,
Seller, in its sole discretion, of each of the following conditions on or prior
to the Closing:
7.1 No Termination. This Agreement shall not have been terminated pursuant
to Section 9.6 hereof.
7.2 Representations True and Correct; Certificate. The representations and
warranties of Buyer contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as if made on and as of the Closing Date, and Buyer shall have executed and
delivered to Seller an officer's certificate confirming the same.
7.3 Compliance with Covenants; Certificate. Buyer shall have performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, and Buyer shall have executed and delivered to Seller an officers'
certificate confirming the same.
7.4 No Adverse Proceedings. On the Closing Date, no action or proceeding
shall be pending by any public authority or private individual or entity before
any court or administrative body to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
7.5 Proceedings Satisfactory. All proceedings to be taken in connection
with the consummation of the transactions contemplated by this Agreement and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to Seller and its counsel, and, Seller and its counsel shall have
received copies of such documents and customary certificates as Seller and its
counsel may reasonably request in connection therewith.
7.6 Consents and Notices. All Governmental Consents and Notices, Additional
Consents and Notices and other consents or notices required to be obtained from
or made to any Person shall have been duly obtained, made or provided, as the
case may be, and shall be in full force and effect.
7.7 Legal Opinion. Seller shall have received from Buyer's general counsel
and from Xxxxxxx, Xxxxxxxxxx and Xxxxxxx, LLLP, legal counsel to Buyer, opinions
as to the authorization, delivery and enforceability of the Closing Documents
and the other acts to be performed by Buyer at Closing in form reasonably
acceptable to Seller and its counsel.
7.8 Execution and Delivery of Closing Documents. This Agreement and each of
the other Closing Documents shall have been duly authorized, executed and
delivered by the parties thereto and shall be in full force and effect on the
Closing Date without any material Default or Event of Default having occurred or
existing thereunder or material breach thereof or circumstance which would give
any party thereto the right to terminate any such Closing Document.
7.9 No Violations. The consummation of the transactions contemplated hereby
and by the other Closing Documents shall not violate any Governmental Rule.
7.10 Closing Actions. Each of the actions required to be taken by Buyer
pursuant to Section 3.2 or otherwise to effect the transactions contemplated
hereby, including the payment of the B-3 Purchase Price and the PILP Purchase
Price, shall have been duly performed and complied with, and Seller shall have
received satisfactory evidence of any and all such actions.
ARTICLE VIII INDEMNIFICATION
8.1 Indemnification by Seller. As Buyer's sole monetary remedy for any
breach of this Agreement by Seller, Seller shall to the maximum extent not
prohibited by law, indemnify, defend and hold harmless Buyer and all of its
Affiliates, shareholders, partners, members, investors, directors, officers,
employees, agents and assignees, from and against any and all losses,
liabilities, damages, claims or expenses (including reasonable attorneys' fees
and expenses) suffered or incurred to third parties by any such party by reason
of or resulting from the inaccuracy of any representation or warranty or the
breach, nonfulfillment or nonperformance of any covenant or agreement of Seller
under this Agreement or any other Closing Document. All of Seller's
representations and warranties shall survive the Closing of this Agreement and
shall continue for a period of two years after the Closing Date; provided,
however, that Buyer agrees that Seller shall have no liability for any breach of
the representations, warranties and covenants set forth herein unless Buyer
asserts claims that exceed $50,000 in the aggregate; and provided further, that
representations and warranties as to tax matters in Section 4.13(E) shall
survive for six (6) years after the Closing date and shall not be subject to any
minimum claim threshold. In no event shall Seller's liability hereunder exceed
the Aggregate Purchase Price.
8.2 Indemnification by Buyer. As Seller's sole monetary remedy for any
breach of this Agreement by Buyer, Buyer shall to the maximum extent not
prohibited by law, indemnify, defend and hold harmless Seller and all of its
Affiliates, shareholders, partners, members, investors, directors, officers,
employees, agents and assignees, from and against any and all losses,
liabilities, damages, claims or expenses (including reasonable attorneys' fees
and expenses) suffered or incurred to third parties by any such party by reason
of or resulting from the inaccuracy of any representation or warranty or the
breach, nonfulfillment or nonperformance of any covenant or agreement of Buyer
under this Agreement . All of Buyer's representations and warranties shall
survive the Closing of this Agreement and shall continue for a period of two
years after the Closing Date; provided, however, that Seller agrees that Buyer
shall have no liability for any breach of the representations, warranties and
covenants set forth herein unless Seller asserts claims that exceed $50,000 in
the aggregate. In no event shall Buyer's liability hereunder exceed the
Aggregate Purchase Price.
8.3 Releases. Seller hereby releases each of X-0 Xxxxxxx Xxxxxxxxxxx,
Xxxxxxxxx X-0, PILP, ECO/Pittsfield and Buyer, and their respective
shareholders, partners, directors, officers and successors, from (i) any claims
arising under or in connection with the B-3 Partnership Agreement or the
Pittsfield Partnership Agreement, and (ii) any other liabilities or obligations
to Seller arising on or before the Closing Date (excluding all obligations under
the Closing Documents); provided that the foregoing release shall not apply to
(i) any claim of indemnification by any representative of Seller (or any of its
Affiliates) who served as an officer or director of ECO Pittsfield or Berkshire
B-3 who is entitled to indemnification under the Certificate of Incorporation,
Bylaws or other organizational documents of ECO Pittsfield or Berkshire B-3 or
(ii) claims asserted against any of the Ridgewood Indemnified Parties (as
defined in the Contribution Agreement described below) by a third party (other
than an affiliate of Seller) for which any of the Ridgewood Indemnified Parties
is entitled to indemnification under the contractual indemnification set forth
in Article IV of the Contribution Agreement dated as of August 11, 1994 by and
among the Seller, Berkshire X-0, X-0 Limited Partnership, the Buyer and certain
affiliates of the Buyer. X-0 Xxxxxxx Xxxxxxxxxxx, Xxxxxxxxx X-0, PILP,
ECO/Pittsfield and Buyer (collectively, the "EAC Entities") hereby release
Seller, and its shareholders, directors, officers and successors, from (i) any
claims arising under or in connection with the B-3 Partnership Agreement or the
Pittsfield Partnership Agreement, and (ii) any other liabilities or obligations
to the EAC Entities arising on or before the Closing Date (excluding all
obligations under the Closing Documents).
ARTICLE IX
ADDITIONAL COVENANTS AND TERMINATION
9.1 Seller's General Pre-Closing Covenants. Until the Closing Date, Seller
shall, unless Buyer shall otherwise agree in writing, do the following:
9.1.1 Representations and Warranties. Refrain from doing, or causing to be
done, anything which would cause the representations and warranties set forth in
Articles 4 or 5 hereof from being true, complete and accurate on the Closing
Date as if made on such date.
9.1.2 No Solicitations, Etc. Refrain from soliciting, encouraging (by way
of furnishing information, or otherwise), or responding to any inquiries or
proposals for the acquisition of Berkshire B-3 Stock, the B-3 LP Interest or the
Pittsfield LP Interest.
9.1.3 Notification. Promptly notify Buyer in writing of any event,
circumstance or condition that results or, with the passage of time or notice,
or both, would reasonably be likely to result, in (a) any representation or
warranty of Seller under this Agreement being false in any material respect at
any time, (b) any condition to Closing for the benefit of Buyer being unable to
be satisfied, or (c) the inability of Seller to perform any of its obligations
hereunder.
9.2 Filings and Consents. Seller, on its own behalf and on behalf of
Berkshire X-0, X-0 Limited Partnership and PILP, and Buyer on its own behalf and
on behalf of Berkshire X-0, X-0 Limited Partnership and PILP, shall each use
their reasonable, good faith and diligent efforts to make, or cause to be made,
all such filings and submissions and obtain or cause to be obtained all such
consents and approvals applicable to it, in order to consummate the transactions
contemplated by this Agreement in accordance with the terms hereof.
9.3 Provision of Information. A photocopy of all books and records,
accounts, contracts, and other documents held by Seller or its Affiliates and
relating to Berkshire X-0, X-0 Limited Partnership or PILP other than documents
wholly internal to Seller or its Affiliates shall be delivered by such parties
to Buyer at least five (5) days prior to the Closing Date, and originals of such
documents shall be delivered to Buyer at the Closing.
9.4 Results of Operations. Buyer and Seller agree that the results of
operations of the B-3 Limited Partnership and PILP, whether attributable to the
period before or after the Closing Date, shall be for the respective account of
B-3 Limited Partnership or PILP, as applicable.
9.5 Further Assurances. Seller and Buyer shall, on request, on and after
the Closing Date, cooperate with each other by furnishing any additional
information, executing and delivering any additional documents and/or
instruments and doing any and all such other things as may be reasonably
requested by any of the parties or its counsel to consummate or otherwise
further implement or effectuate the transactions contemplated by this Agreement
and the other Closing Documents.
9.6 Termination. This Agreement may be terminated at any time prior to the
Closing as follows, and in no other manner:
9.6.1 By Mutual Agreement. By the mutual agreement of Buyer and Seller in
writing.
9.6.2 By Buyer. By written notice from Buyer to Seller if (a) any material
condition set forth herein for the benefit of Buyer shall not have been timely
satisfied, (b) Seller fails to perform any material obligation hereunder in a
timely manner and fails to cure the same promptly after written notice thereof
from Buyer to Seller or (c) any representation or warranty of Seller hereunder
proves to be false in any material respect and is not promptly cured after
written notice thereof from Buyer to Seller.
9.6.3 By Seller. By written notice from Seller to Buyer if (a) any material
condition set forth herein for the benefit of Seller shall not have been timely
satisfied, (b) Buyer fails to perform any material obligation hereunder in a
timely manner and fails to cure the same promptly after written notice thereof
from Seller to Buyer or (c) any representation or warranty of Buyer hereunder
proves to be false in any material respect and is not promptly cured after
written notice thereof from Seller to Buyer.
9.6.4 By Any Party. By written notice from any party to the other parties
if the Closing contemplated hereunder has not taken place on or before October
31, 2002.
ARTICLE X INCOME TAX MATTERS
10.1 Certain Income Tax Effects of the Transactions. The parties
acknowledge and agree that the transactions contemplated by this Agreement and
the other Closing Documents relating to B-3 Limited Partnership and PILP will
have the following consequences, among other consequences, for purposes of
federal, state and local income taxes:
10.1.1 Seller and Buyer will take into account their respective allocable
shares (determined in accordance with Section 10.2 and the provisions of the B-3
Partnership Agreement and the Pittsfield Partnership Agreement, as applicable)
of the income, gains, deductions, losses, credits and other tax-related items
attributable to their respective limited partnership interests: (i) in the B-3
Limited Partnership for the portion of the taxable year of B-3 Limited
Partnership ending on the Closing Date, and (ii) in PILP for the taxable year of
PILP ending on the Closing Date; and
10.1.2 Buyer will take into account its allocable share (determined in
accordance with Section 10.2) of the income, gains, deductions, losses, credits
and other tax-related items attributable to its interest: (i) in B-3 Limited
Partnership for the portion of the taxable year of B-3 Limited Partnership
starting the day after the Closing Date; and (ii) in PILP for its new taxable
year starting the day after the Closing Date.
10.2 Closing of Books.
10.2.1 The parties acknowledge that the transfer of the Pittsfield LP
Interest pursuant to this Agreement will result in a termination for federal
income tax purposes of PILP pursuant to Code Section 708(b)(2), such that the
taxable year of PILP will end as of the Closing Date. The parties will determine
their respective allocable shares of income, gains, deductions, losses, credits
and other tax-related items of PILP consistent with the Pittsfield Partnership
Agreement through the Closing Date as the end of PILP's taxable year in the
manner described in Section 10.2.3.
10.2.2 The parties acknowledge that the transfer of the B-3 LP Interest
will result in the closing of the taxable year of B-3 Limited Partnership with
respect to Seller only, pursuant to Code Section 706(c). Seller's allocable
share of income, gains, deductions, losses, credits and other tax-related items
with respect to the B-3 LP Interest through the Closing Date will be made based
on such tax items actually incurred as of the Closing Date and consistent with
the B-3 Partnership Agreement.
10.2.3 With respect to both PILP and B-3 Limited Partnership, income,
gains, deduction, losses, credits and other tax related items through the
Closing Date will be based upon such tax items actually incurred through
September 28, 2002, and then adjusted on a daily pro rata basis for the number
of days in the period beginning with the day following the Closing Date and
ending with September 28, 2002 (and to exclude any extraordinary events that may
occur after the Closing Date).
10.3 Covenant of Consistent Reporting. Seller and Buyer each covenant that
it will cause to be timely filed all tax returns, reports and forms consistent
with the provisions of this Agreement; provided, Seller will not be deemed to be
in breach of these covenants to the extent any failure to timely file a return,
report or form is attributable to a failure of the general partner of PILP or
B-3 Limited Partnership, as applicable, to provide any information to Seller
necessary for such returns, reports or forms.
10.4 Cooperation and Exchange of Information. Buyer and Seller shall
furnish or cause to be furnished to each other and their Affiliates (at
reasonable times) upon request and as promptly as practicable, such information
(including, without limitation, access to personnel and books and records)
pertinent to tax matters to which this Agreement relates and assistance relating
to such tax matters as is reasonably necessary for the preparation, review, and
filing of any tax return, the preparation for any tax audit, or the defense or
prosecution of any assessment or other similar claim or any administrative or
court proceeding. The party requesting information shall reimburse the other for
the third party costs of providing such information, including reasonable
attorneys fees. Any information obtained by a party hereto or its Affiliates
from another party hereto or its Affiliates in connection with any tax matters
to which this Agreement relates shall be kept confidential, except as may be
otherwise necessary in connection with the filing of tax returns or claims for
refund or in conducting an audit or other proceeding.
10.5 Tax Proceedings. Buyer shall give reasonably prompt written notice to
Seller upon receipt by Buyer or any of its Affiliates of written notice of any
audit of, assessment against, or administrative, court or other proceeding
against Berkshire B-3, B-3 Limited Partnership or PILP for taxable years ending
on or before the Closing Date.
10.6 Survival. Notwithstanding anything contained in this Agreement to the
contrary, each of the parties' representations and warranties, agreements,
rights, and obligations with respect to any tax covered by this Agreement shall
survive the Closing and shall not terminate until the expiration of all statutes
of limitation (including any and all extensions thereof) applicable to such tax
or the assessment thereof.
ARTICLE XI MISCELLANEOUS
11.1 Transaction Costs. Except as otherwise expressly provided herein,
Buyer, on the one hand, and Seller, on the other, shall pay all of their own
costs and expenses (including attorneys' fees and other legal costs and expenses
and accountants' fees and other accounting costs and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
11.2 Entire Agreement. This Agreement represents the entire understanding
and agreement among the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and among such parties.
11.3 Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by each of
the parties hereto.
11.4 Assignments. No party shall assign its rights and/or obligations
hereunder without the prior written consent of each other party to this
Agreement.
11.5 Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
11.6 Headings. The headings contained in this Agreement are for convenience
of reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement.
11.7 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing, shall be deemed
to have been given when received, and shall (as elected by the party giving such
notice) be delivered personally, sent by certified mail, return receipt
requested, sent via a reputable overnight carrier that provides evidence of
receipt, or sent by fax (with a copy sent by such an overnight carrier),
addressed to the party to whom notice is being given at its address set forth
below, or at such other address as such party shall have previously given notice
of to the other party in the manner provided in this Section.
To Seller: With a copy to:
Ridgewood Electric Power Trust II Downs Xxxxxxx Xxxxxx PLLC
c/o Ridgewood Power Corporation 000 Xxxx Xxxxxx, X.X. Xxx 000
947 Xxxxxxx Drive Burlington, Vermont 05402-0190
Xxxxxxxxx, Xxx Xxxxxx 00000 Attn: Xxxxxx X. Xxxxx, Esq.
Attn: President Fax: (000) 000-0000
Fax: (000) 000-0000
To Buyer: With a copy to:
EAC Operations, Inc. EAC Operations, Inc.
00 Xxxxx Xxxxx Xxxxxx 00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000 Xxxxxx, Xxx Xxxx 00000
Attn: President Attn: General Counsel
Fax: (000) 000-0000 Fax: (000) 000-0000
11.8 Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, and the
parties shall negotiate an equitable adjustment to the provisions of this
Agreement, or take such other actions, in order, to the maximum extent practical
in light of such holding of invalidity or unenforceability, to implement and
give effect to the intentions of the parties as reflected herein, and the
remaining provisions, portions, or applications of this Agreement shall not be
affected thereby. If any provision of this Agreement may be construed in two or
more ways, one of which would render the provision invalid or otherwise voidable
or unenforceable and another of which would render the provision valid and
enforceable, such provision shall have the meaning which renders it valid and
enforceable.
11.9 Waivers. The failure or delay or any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement should not be construed
as a wavier of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a wavier of any right, power or remedy under this
Agreement. No notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
11.10 Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement or any other Closing Document, or because
of an alleged dispute, breach, default or misrepresentation in connection with
any provision of this Agreement or any other Closing Document, the successful or
prevailing party or parties shall be entitled to recover, subject to the
limitations set forth in the Closing Documents, reasonable attorneys' fees,
sales and use taxes, court costs and all out-of-pocket expenses even if not
taxable as court costs (including, without limitation, all such fees, taxes,
costs and expenses incident to arbitration, appellate, bankruptcy and
post-judgment proceedings), incurred in that action or proceeding, in addition
to any other relief to which such party or parties may be entitled. Attorneys'
fees shall include, without limitation, paralegal fees, investigative fees,
administrative costs, sales and use taxes and all other reasonable and customary
charges billed by the attorney to the prevailing party.
11.11 Remedies Cumulative. Except as otherwise expressly provided herein,
no remedy herein conferred upon any party is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or partial exercise by
any party of any right, power or remedy hereunder shall preclude any other or
further exercise thereof.
11.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of execution
by telefax of a signature page shall be binding upon any party so confirming.
11.13 Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of New York, without regard to principles
of conflicts of laws.
11.14 Preparation of Agreement. This Agreement shall not be construed more
strongly against any party regardless of who is responsible for its preparation.
The parties acknowledge each contributed and is equally responsible for its
preparation.
11.15 Survival. All representations, warranties, covenants and agreements
made herein or otherwise referenced herein shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby for the time periods herein provided.
11.16 Inducement to Transaction. All representations and warranties made by
any party to this Agreement shall be deemed made for the purpose of inducing the
other party to enter into this Agreement.
11.17 Receipt of Monies, Etc. Any monies, checks, drafts, money orders,
postal notes and other instruments received after the Closing Date by Seller or
its Affiliates in payment of any amounts due B-3 Limited Partnership or PILP
with respect to any period, whether before or after the Closing Date shall be
promptly delivered to Buyer.
11.18 No Public Disclosure. After the Closing Date, Seller shall not make
any public statement or issue any press release concerning this Agreement or the
transactions contemplated hereby without the prior written consent of Buyer
except (a) to the extent that Seller is required by law to make an announcement
concerning said matters, or (b) to the extent Seller or any affiliate of Seller
is required to make disclosures of this transaction in connection with any
securities law filing, in which case Seller shall provide Buyer with a copy of
the announcement, filing or other disclosure before making any such
announcement, filing or disclosure in order to provide Buyer the opportunity to
comment on the form and substance of the announcement.
11.19 Waiver of Jury Trial Rights. EACH OF THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT THAT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THE
INCLUSION OF THIS SECTION 11.19 HAS BEEN A MATERIAL INDUCEMENT FOR EACH OF THE
PARTIES TO ENTER INTO THIS AGREEMENT.
11.20 Waiver of Consequential Damages. In no event shall any party to this
Agreement be liable hereunder for any indirect, incidental, special or
consequential damages of any nature whatsoever (including liability for loss
profits or revenue or loss of business opportunity), no matter how the same may
be caused.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above. SELLER:
RIDGEWOOD ELECTRIC POWER TRUST II
By: Ridgewood Power LLC, its Manager
By:
Xxxxxx X. Xxxxxx
Senior Vice President and General Counsel
BUYER:
EAC OPERATIONS, INC.
By:
Xxxxx X. Xxxxxxxxxx
President
The undersigned join in this Acquisition Agreement dated September 20, 2002
solely for the purpose of Section 8.3.
B-3 LIMITED PARTNERSHIP
By: Berkshire B-3, Inc., its General Partner
By:
Xxxxx X. Xxxxxxxxxx
President
PITTSFIELD INVESTORS LIMITED PARTNERSHIP
By: eco/Pittsfield, Inc., its General Partner
By:
Xxxxx X. Xxxxxxxxxx
President
BERKSHIRE B-3, INC.
By:
Xxxxx X. Xxxxxxxxxx
President
ECO/PITTSFIELD, INC.
By:
Xxxxx X. Xxxxxxxxxx
President
