EXHIBIT 99.2
EXECUTION COPY
AGREEMENT OF PURCHASE AND SALE OF SOCIAL QUOTAS
AGREEMENT dated as of October 2, 2001 (the "Agreement"), by and among:
(i) NRGenerating Holdings GmbH, a Swiss holding company, having its
principal office at Xxxxxxxxxxxxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxxxxxx (together
with any successor or permitted assigns, the "Purchaser");
(ii) NRG Energy, Inc., a Delaware corporation, having its principal
office at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx ("NRG Guarantor");
(iii) York Holdings (Caymans) L.L.C., a Cayman Islands limited
liability company, having its principal office at c/o York Research Corporation,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Seller");
(iv) York Ex International SRL, a Barbados exempt society with
restricted liability having its principal office at c/o York Research
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Company"); and
(v) York Research Corporation, a Delaware corporation, having its
principal office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "York Guarantor").
PRELIMINARY STATEMENTS
1. The Quotas. Seller beneficially owns one-hundred percent (100%) of
the social quotas, without nominal or par value, constituting all of the issued
and outstanding equity interests in the Company (collectively, such social
quotas being referred to herein as the "Quotas").
2. Company Ownership of YHB. The Company beneficially owns one-hundred
percent of the social quotas, without nominal or par value, constituting all of
the issued and outstanding equity interests in York Holdings (Barbados) SRL, a
Barbados society with restricted liability ("YHB").
3. YHB Ownership of InnCOGEN. YHB beneficially owns one-hundred percent
of the share capital of InnCOGEN, Limited, a Trinidadian private company limited
by shares ("InnCOGEN"), constituting all of the issued and outstanding shares of
capital stock of InnCOGEN.
4. The Transaction. Seller desires to sell, and Purchaser desires to
purchase, the Quotas on the terms and subject to the conditions set forth in
this Agreement (the "Transaction"). Purchaser's intent in acquiring the Quotas
is to acquire ownership and control of InnCOGEN.
5. The Guarantors. York Guarantor and NRG Guarantor will derive
substantial benefits from the consummation of the transactions contemplated
herein.
IN CONSIDERATION of the mutual covenants and agreements hereinafter set
forth, the adequacy and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF QUOTAS.
Subject to and upon the terms and conditions set forth in this
Agreement, the Seller will sell, transfer, convey, assign and deliver to
Purchaser, and Purchaser will purchase from the Seller, at the Closing, the
Quotas.
SECTION 2. PURCHASE PRICE OF THE QUOTAS.
In consideration for the sale of the Quotas by the Seller to the
Purchaser and in full payment therefor, and in reliance upon the
representations, warranties, and covenants made herein by York Guarantor and
Seller, Purchaser will deliver to the Escrow Agent, in accordance with Section
3.3, at the Closing payment by wire transfer in New York Clearing House funds of
ONE-HUNDRED FORTY MILLION DOLLARS ($140,000,000.00) in the aggregate (the
"Purchase Price").
SECTION 3. CLOSING; ESCROW; PRORATION.
3.1. Location; Date. Subject to the provisions set forth in the Escrow
Agreement (as defined below), the "Closing" shall take place within five (5)
days after all of the conditions precedent set forth in Sections 8 and 9 have
been either met or waived by the applicable party, at the offices of Moses &
Singer LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
time and place as the parties may agree upon. The day on which the Closing
actually takes place (which shall be deemed to occur when all items are
distributed in accordance with the Escrow Agreement) is herein sometimes
referred to as the "Closing Date". If the Closing fails to occur by November 21,
2001 (the "Date Certain"), then either the Purchaser or the Seller shall have
the right to terminate this Agreement upon three (3) days written notice to the
other party.
3.2. Deliveries. At the Closing, the Seller will deliver or cause to be
delivered to the Escrow Agent (as defined below), in accordance with Section
3.3:
3.2.1. Certificates for the Quotas duly endorsed, with all necessary
transfer stamps and/or powers of attorney and other instruments of transfer;
3.2.2. a consent or letter agreement executed by the Trinidad and
Tobago Electricity Commission ("TTEC"), Ministry of Energy and the Ministry of
Finance of Trinidad and Tobago, (the "Consent"), consenting to the Transaction
and acknowledging that (a) the Government Agreement, dated February 12, 1998 (as
amended, the "Government Agreement"), between the Government of the Republic of
Trinidad and Tobago (the "XXXX") and InnCOGEN, (b) the License Agreement and
Agreement for Sale and Purchase of Power, dated February 12, 1998 (as amended,
the "License"), between TTEC and InnCOGEN, and (c) the Fiscal Incentives
(InnCOGEN Limited) Order, 1998 (the "FIO") , shall remain in full force and
effect following the consummation of the Transaction and that the consummation
of the Transaction shall not result in a breach of any provisions of the
Government Agreement, License, or FIO;
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3.2.3. an opinion letter from the Attorney General of Trinidad and
Tobago, (the "Attorney General Letter"), regarding the enforceability and
binding nature of the obligations of TTEC and XXXX contained in the Consent, the
Government Agreement, License, and FIO following the consummation of the
Transaction;
3.2.4. executed resignation letters effective as of the Closing Date
for each of the officers, directors, or managers of each of the York Sale
Entities;
3.2.5. (a) an "Officer's Certificate" certificate, duly executed and
delivered by an authorized officer of the Seller as required under Section 8.7;
and (b) such incumbency and signature certificates of the Seller, the York
Guarantor, and each of the York Sale Entities as the Purchaser may reasonably
request;
3.2.6. satisfactory evidence of the release of all liens, encumbrances,
or attachments and the cancellation or termination of all powers of attorney on
or affecting each of the York Sale Entities, and any of their respective shares,
quotas, assets or property;
3.2.7. an executed escrow agreement in a form mutually agreeable to the
Parties (the "Escrow Agreement").
3.2.8. all other documents, instruments, consents and approvals (a)
necessary to consummate the Transaction, (b) required to be delivered to
Purchaser under the provisions of this Agreement, or (c) reasonably requested by
Purchaser to be delivered in connection with the Transaction.
3.3. Escrow. At the Closing:
(a) Purchaser shall deliver to the escrow agent to be appointed under
the Escrow Agreement (the "Escrow Agent") the Purchase Price, which shall be
placed in an interest bearing escrow account and shall be held and distributed
in accordance with the terms of an Escrow Agreement by and among Seller,
Purchaser, and Escrow Agent.
(b) Seller shall deliver to the Escrow Agent the documents,
instruments, and certificates specified in Section 3.2 and in the Escrow
Agreement, which shall be placed into escrow and held and distributed in
accordance with the terms of the Escrow Agreement.
3.4. Proration. Seller and Purchaser agree that the items listed below,
shall be prorated as of the Closing Date, with Seller liable to the extent such
items relate to any period prior to the Closing Date, and Buyer liable to the
extent such items relate to periods on and after the Closing Date: (i) accounts
receivable and payable; (ii) operating and maintenance expenses; and (iii) VAT
payments with respect to which InnCOGEN is entitled to a refund. The Parties
agree that lease payments and taxes paid by the Seller are not subject to
proration, but are solely for the Seller's account.
3.5. Further Assurances. At any time and from time to time after the
Closing, at Purchaser's request and without further consideration, the York
Guarantor and/or Seller will execute and deliver such other instruments of sale,
transfer, conveyance, assignment and confirmation and will take such related
action as Purchaser may reasonably deem necessary or desirable in order to more
effectively transfer, convey and assign to Purchaser, and to confirm Purchaser's
title (free and clear of all liens, pledges, or other encumbrances) to, all of
the Quotas, to put Purchaser in actual possession and operating control of the
Quotas and the York Sale Entities and to assist Purchaser in exercising all
rights with respect thereto.
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SECTION 4. REPRESENTATIONS AND WARRANTIES BY YORK GUARANTOR AND SELLER.
York Guarantor and Seller hereby represent and warrant to Purchaser on
behalf of themselves, the Company, YHB and InnCOGEN, as follows (the York
Guarantor, the Seller, and the York Sale Entities are collectively referred to
herein as the "York Entities"):
4.1. Organization, Standing and Qualification. Each of the York Sale
Entities is duly organized, validly existing and in good standing under the laws
of their respective jurisdictions of formation; has all requisite power and
authority and is entitled to carry on its business as now being conducted and to
own, lease or operate its properties as and in the places where such business is
now conducted and such properties are now owned, leased or operated.
4.2. Subsidiaries. The Company has no subsidiaries except YHB; YHB has
no subsidiaries except InnCOGEN, and InnCOGEN has no subsidiaries. None of the
York Sale Entities has any interest, direct or indirect, nor has any agreement,
understanding, commitment or arrangement to purchase any interest, direct or
indirect, in any other corporation or in any limited liability company,
partnership, joint venture or other business enterprise or entity. Except as set
forth in Schedule 4.2, since August 4, 1998 through and including the Closing
Date, the business carried on by the Company has not been conducted through any
other direct or indirect subsidiary or affiliate of the Company other than YHB
and InnCOGEN, or any present or former shareholder of the Company.
4.3. Transactions with Certain Persons. Except as set forth in Schedule
4.3, no part of the property or assets of the York Guarantor, Seller, or any
direct or indirect subsidiary (other than the York Sale Entities) or affiliate
of the Seller is used by the York Sale Entities.
4.4. Execution, Delivery and Performance of Agreement; Authority.
Neither the execution, delivery, nor the performance of this Agreement by the
York Entities will, with or without the giving of notice or the passage of time,
or both, conflict with, result in a default, right to accelerate or loss of
rights under, or result in the creation of any lien, charge or encumbrance
pursuant to, any provision of the certificate of incorporation or by-laws of any
of the York Entities or, except as set forth in Schedule 4.4, any franchise,
mortgage, deed of trust, lease, license, agreement, understanding, law, rule or
regulation or any order, judgment or decree to which any of the York Entities is
a party or by which any of them or the property of any of them may be bound or
affected. Except as set forth in Schedule 4.4 hereto, no consent of any third
party (including without limitation any governmental or regulatory body) is
required to be obtained or made by any of the York Entities in connection with
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. Each of the York Entities which is a signatory
hereto has the full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby, all proceedings required to be
taken by each of them or their stockholders to authorize the execution, delivery
and performance of this Agreement and the agreements relating hereto have been
properly taken and this Agreement constitutes a valid and binding obligation of
each of the York Entities which is a signatory hereto, enforceable in accordance
with its terms.
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4.5. Capitalization. The presently authorized, issued and outstanding
social quotas, capital stock, or share capital of the York Sale Entities, which
represent one-hundred percent (100%) of the issued and outstanding social
quotas, capital stock, or share capital of the York Sale Entities and the names
and addresses of the lawful record and beneficial owners thereof are set forth
in Schedule 4.5 annexed hereto. Except as set forth in Schedule 4.5, there are
no outstanding subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities, phantom stock, voting rights agreements or
trusts, or other agreements or arrangements of any character or nature
whatsoever under which the Company or any subsidiary of the Company, the York
Guarantor, or the Seller is or may become obligated to issue, assign or transfer
any shares, quotas, or other beneficial ownership interests of the York Sale
Entities' social quotas, capital stock or share capital of any class.
4.6. Ownership. (a) The lawful record and beneficial owners of
one-hundred percent (100%) of the Quotas, and the number of Quotas owned by such
owner, are set forth in Schedule 4.6 annexed hereto. Except as set forth on
Schedule 4.13, all such Quotas are owned free and clear of any liens, claims,
encumbrances, restrictions or adverse claims of any kind. Except as set forth in
Schedule 4.6, there are no agreements, understandings or arrangements regarding
the transfer, sale, disposition, purchase, acquisition or voting of the Quotas.
Upon delivery thereof to Purchaser at the Closing, together with a duly executed
quota transfer power and/or power of attorney, Purchaser will acquire good,
marketable and valid title to the Quotas, free and clear of any liens, claims,
encumbrances, restrictions or adverse claims of any kind or nature whatsoever.
(b) The lawful record and beneficial owners of one-hundred percent
(100%) of the social quotas in YHB, and the number of social quotas owned by
such owner, are set forth in Schedule 4.6 annexed hereto. Except as set forth on
Schedule 4.13, all such quotas are owned free and clear of any liens, claims,
encumbrances, restrictions or adverse claims of any kind and each owner has good
and marketable title to such quotas. Except as set forth in Schedule 4.6 hereto,
there are no agreements, understandings or arrangements regarding the transfer,
sale, disposition, purchase, acquisition or voting of YHB's social quotas.
(c) The lawful record and beneficial owners of one-hundred percent
(100%) of the share capital of InnCogen, and the amount of share capital owned
by such owner, are set forth in Schedule 4.6 annexed hereto. Except as set forth
on Schedule 4.13, all such share capital is owned free and clear of any liens,
claims, encumbrances, restrictions or adverse claims of any kind and each owner
has good and marketable title to such share capital. Except as set forth in
Schedule 4.6 hereto, there are no agreements, understandings or arrangements
regarding the transfer, sale, disposition, purchase, acquisition or voting of
InnCogen's share capital.
4.7. Financial Statements. The Seller has delivered to Purchaser copies
of the consolidated financial statements described in Sections 4.7.1 and 4.7.2
below (hereinafter collectively called the "Financial Statements"), all of which
are true, complete and correct, have been prepared from the books and records of
each of the York Sale Entities in accordance with GAAP in the United States,
consistently applied and maintained throughout the periods indicated and fairly
present the financial condition and results of operations of each of the York
Sale Entities as at their respective dates and the results of their operations
and cash flow for the periods covered thereby:
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4.7.1. balance sheet of the Company as of February 28, 2000 and
2001, and audited statements of earnings and cash flow for each of the years
then ended; and
4.7.2. balance sheet of the each of the York Sale Entities (the
"Balance Sheet") as of May 31, 2001, (the "Balance Sheet Date") and the York
Sale Entities's unaudited statements of earnings and cash flows for the
three-month period then ended.
4.8. Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against on the Balance Sheets (including the notes
thereto), as of the Balance Sheet Date none of the York Sale Entities had any
material debts, liabilities or obligations (whether absolute, accrued,
contingent or otherwise) of any nature whatsoever, including, without
limitation, any material foreign or domestic tax liabilities or deferred tax
liabilities incurred in respect of or measured by InnCOGEN's and/or YHB's and/or
the Company's income, or property or authorized or outstanding capital stock,
social quotas, or share capital, for any period prior to the close of business
on the Balance Sheet Date or any other material debts, liabilities or
obligations in whole or in part relating to or arising out of any act,
transaction, circumstance or state of facts which occurred or existed on or
before the Balance Sheet Date, whether or not then known, due or payable.
4.9. Taxes.
(a) Each of the York Sale Entities has timely (taking into account
extensions of time to file) filed all Tax Returns required to be filed by it,
and all such Tax Returns were true, correct and complete in all material
respects. Each of the York Sale Entities has paid all Taxes shown thereon or
otherwise due. Each of the York Sale Entities has provided adequate accruals in
accordance with GAAP in the Balance Sheets for any Taxes that have not been
paid, whether or not shown as being due on any Tax Returns. Other than Taxes
incurred in the ordinary course of business, none of the York Sale Entities has
any liability for unpaid Taxes accruing after the Balance Sheet Date
(b) No property of any of the York Sale Entities is subject to any
liens for Taxes, other than liens for Taxes not yet due and payable.
(c) No audit of any Tax Return of any of the York Sale Entities is
being conducted or, to the knowledge of the Company, threatened, by a tax
authority.
(d) No extension of the statute of limitations on the assessment of any
Taxes has been granted by any of the York Sale Entities and is currently in
effect or has been requested.
(e) None of the York Sale Entities has or has ever been a party to any
Tax sharing or Tax allocation agreement or Tax indemnity agreement nor does any
such entity have any liability or potential liability to another party under any
such agreement.
(f) Except as set forth in Schedule 4.9, no taxing authority has raised
any issue with respect to Taxes which, by application of similar principles,
could result in the issuance of a Notice of Deficiency or similar notice of
intention to assess Taxes by any Tax Authority.
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(g) None of the York Sale Entities has been delinquent in the payment
of any Tax.
(h) Except as set forth in Schedule 4.9, none of the York Sale Entities
has any Tax deficiency or claim outstanding, proposed or assessed against it,
and there is no basis for any such deficiency or claim.
4.9.1. For purposes of this Agreement, "Tax" shall mean (i) any
and all taxes, fees, levies, duties, tariffs, imposts and other charges of any
kind (whether or not imposed on a York Sale Entity), imposed by any Governmental
or Regulatory Body or taxing authority, including, without limitation, taxes or
other charges on, measured by, or with respect to income, franchise, windfall or
other profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation or
net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value-added or gains taxes; license, registration and
documentation fees; and customers' duties, tariffs and similar charges; (ii) any
liability for the payment of any amounts of the type described in (i) as a
result of being a member of an affiliated, combined, consolidated or unitary
group for any taxable period; (iii) any liability for the payment of amounts of
the type described in (i) or (ii) as a result of being a transferee of, or a
successor in interest to, any person or as a result of an express or implied
obligation to indemnify any person and (iv) any and all interest, penalties,
additions to tax and additional amounts imposed in connection with or with
respect to any amounts described in (i), (ii) or (iii).
4.9.2. "Tax Return" shall mean any return, report, statement,
form or other documentation (including any additional or supporting material and
any amendments or supplements) filed or maintained, or required to be filed or
maintained, with respect to or in connection with the calculation,
determination, assessment or collection of any Taxes.
4.9.3. The CARICOM Treaty, the Fiscal Incentives (InnCOGEN)
Order, 1998, and all other relevant tax relief or tax holiday legislation or
authorizations regarding corporate tax relief, property tax relief, and total
relief from customs duties currently applicable to any of the York Sale Entities
are in full force and effect, and shall not be affected by the consummation of
the transactions contemplated by this Agreement. The Company is an "exempt
company" under Barbados law and its status as such shall not be affected by the
consummation of the transactions contemplated by this Agreement. YHB has taken
all necessary steps to ensure that it is treated by the relevant authorities as
resident in Barbados for purposes of the Caricom Treaty, and is so resident.
4.10. Absence of Changes or Events. Except as set forth in Schedule
4.10 annexed hereto, since the Balance Sheet Date, each of the York Sale
Entities has conducted its business only in the ordinary course and each has not
(either individually or collectively):
4.10.1. incurred any debt, obligation or liability, absolute,
accrued, contingent or otherwise, whether due or to become due, whether as
guarantor, surety or primary obligor, except current liabilities for trade or
business obligations incurred in the ordinary course of business and consistent
with prior practice, none of which current liabilities, in any single case or in
the aggregate is greater than $500,000.00;
4.10.2. discharged or satisfied any lien, charge or encumbrance
other than those then required to be discharged or satisfied, or paid any
obligation or liability, absolute, accrued, contingent or otherwise, whether due
or to become due, other than the discharge of (i) the Portfolio Bonds and any
lien in connection therewith, (ii) current liabilities shown on the Balance
Sheets and (iii) current liabilities incurred since the Balance Sheet Date in
the ordinary course of business and consistent with prior practice;
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4.10.3. mortgaged, pledged or subjected to lien, charge, security
interest or any other encumbrance or restriction on any of its property,
business or assets, tangible or intangible;
4.10.4. sold, transferred, leased to others or otherwise disposed
of any assets, except for inventory sold in the ordinary course of business on
normal trade terms, or cancelled or compromised any debt or claim, or waived or
released any right of value;
4.10.5. (i) received any notice of termination or default under
the License Agreement, the Government Agreement, any document, instrument, or
agreement set forth in Schedule 4.14 pursuant to the provisions of Sections
4.14.5 and 4.14.6, or any lease for real property, or (ii) suffered any damage,
destruction or loss (whether or not covered by insurance) which, in any single
case or in the aggregate, has had or might reasonably be expected to have a
Material Adverse Effect on any of the York Sale Entities;
4.10.6. made any capital expenditures or capital additions or
betterments in excess of an aggregate of $100,000;
4.10.7. entered into any transaction, contract or commitment
other than in the ordinary course of business and which does not have an annual
individual value of greater than $50,000 or aggregate value of greater than
$100,000 that would require a payment in respect thereof by any of the York Sale
Entities after the Closing Date;
4.10.8. paid or agreed to pay a brokerage or finder's fee, in
connection with, this Agreement or the transactions contemplated hereby, other
than to Credit Suisse First Boston; or
4.10.9. entered into any agreement or made any commitment to take
any of the types of action described in Sections 4.10.1 through 4.10.8 above.
4.11. Litigation. Except as set forth in Schedule 4.11, there is no
claim, legal action, suit, arbitration, governmental investigation or other
legal or administrative proceeding, or any order, decree or judgment in
progress, pending or in effect, or to the knowledge of the York Entities
threatened against, in connection with, or relating to Seller or the York Sale
Entities, or their officers, directors or employees, their properties, assets,
business or prospects or the transactions contemplated by this Agreement. No
such pending or threatened claim, legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding is reasonably expected
to have a Material Adverse Effect on any of the Seller or the York Sale
Entities.
4.12. Compliance with Laws and Other Instruments. Except as set forth
in Schedule 4.12, each of the York Entities is in compliance or has complied
since August 4, 1998, with and, to the extent applicable, maintained all
existing laws, rules, regulations, ordinances, orders, judgments, permits,
authorizations, clearances and decrees now or hereafter applicable to its
business, properties or operations as conducted at such time, except where the
failure to comply or maintain (as applicable) would not be reasonably expected
to have a Material Adverse Effect on the Seller or the York Sale Entities or
their ability to perform their obligations under any document, instrument, or
agreement set forth in Schedule 4.14 pursuant to Sections 4.14.5 and 4.14.6, or
their ability to own or operate the assets, properties, or business of InnCOGEN.
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4.13. Title to Properties. Each of the York Sale Entities has good
title to or has a valid leasehold interest in all of the properties and assets
it owns or uses in its business or purports to own. Except as set forth in
Schedule 4.13, none of such properties and assets is subject to any mortgage,
pledge, lien, charge, security interest, encumbrance, restriction, lease,
license, easement, liability or adverse claim of any nature whatsoever, direct
or indirect, whether accrued, absolute, contingent or otherwise which would
reasonably be expected to have a Material Adverse Effect. Except as set forth in
Schedule 4.13, all of the properties and assets owned, leased or used by any of
the York Sale Entities (including without limitation all equipment, racks,
shelving, store fixtures, machines, and tools) are in working order and are in
good operating condition and repair, are suitable for the purposes used, are
adequate and sufficient for either all current operations of any of the York
Sale Entities or their ability perform any of their obligations under any
document, instrument, or agreement set forth in Schedule 4.14 pursuant to
Sections 4.14.5 and 4.14.6.
4.14. Schedules. Attached hereto as Schedule 4.14 is a separate
schedule containing a true, accurate and complete list and description of (such
schedule, collectively with such other schedules set forth in this Section 4,
the "Schedules"):
4.14.1. All real property owned by the York Sale Entities or in
which the York Sale Entities has a leasehold or other interest.
4.14.2. All machinery, tools, equipment, motor vehicles, rolling
stock and other tangible personal property (other than inventory and supplies),
owned or, leased by any of the York Sale Entities except for items having a
value less than $5,000 and which do not, in the aggregate, have a total value of
more than $50,000.
4.14.3. All (i) patents ( including, without limitation, designed
patents, industrial patents, industrial designs and utility models) in patent
applications (including, without limitation, docketed patented disclosures
awaiting filing, reissues, divisions, continuations-in-part and extensions),
patent disclosures awaiting filing determination, inventions and improvements
thereto; (ii) trademarks, service marks, trade names, trade dress, logos,
business and product names, slogans and registrations and applications for
registration thereof; (iii) copyrights (including, without limitation, software)
and registrations thereof; (iv) inventions, processes, formulae, trade secrets,
know-how, industrial models, confidential and technical information,
manufacturing, engineering and technical drawings, product specifications and
confidential business information; (v) mask works and other semi-conductor chip
rights and registrations thereof; and (vi) any and all intellectual property
rights similar to any of the foregoing, and all copies and tangible embodiments
thereof (in whatever form or medium, whether now known or hereafter devised,
including but not limited, to electronic, magnetic and optical media)
(collectively "Intellectual Property") wholly or partially owned or held by the
York Sale Entities or used in the operation of the York Sale Entities' business.
4.14.4. (a) All fire, theft, casualty, liability and other
insurance policies that have been issued in the name of the York Sale Entities
insuring the York Sale Entities, and their assets, properties, business, and
equipment, all of which shall remain in full force and effect through and after
the Closing Date.
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(b) All fire, theft, casualty, liability and other insurance
policies that have been issued in the name of the York Guarantor insuring the
York Sale Entities, and their assets, properties, business, and equipment, all
of which shall remain in full force and effect through and including the Closing
Date.
4.14.5. All loan agreements, indentures, mortgages, pledges,
conditional sale or title retention agreements, security agreements, equipment
obligations, guarantees, leases or lease purchase agreements to which any of the
York Sale Entities is a party or by which it or its property is bound.
4.14.6. All commitments, contracts and other agreements, or other
understandings or arrangements to which any of the York Sale Entities is a party
or by which it or any of its property is bound or affected but excluding (A)
contracts in connection with the Portfolio Bonds, (B) purchase and sales orders
and commitments made in the ordinary course of business involving payments or
receipts by any of the York Sale Entities of less than $100,000, (C) contracts
entered into in the ordinary course of business and involving payments or
receipts by any of the York Sale Entities of less than $100,000, and (D)
contracts entered into in the ordinary course of business which are terminable
by such applicable York Sale Entity on less than thirty (30) days' notice
without any penalty or consideration and involving payments or receipts by any
of the York Sale Entities of less than $100,000 in the case of any single
contract but not more than $250,000 in the aggregate, but including any and all
contracts with any government agency, authority or instrumentality. To the best
knowledge of any of the York Entities, all such commitments, contracts and other
agreements, or other understandings or arrangements have been duly executed and
delivered by all parties thereto, remain in full force and effect (and will
remain in effect after the consummation of the transactions contemplated
hereunder), and no default or event of default or notice thereto (whether on the
part of any of the York Sale Entities, or any counterparty thereto) (i) is
existing and continuing, pending or threatened or (ii) will occur solely as a
result of the consummation of the transactions contemplated hereunder.
4.14.7. The names of all of the York Sale Entities directors,
managers and officers; the name of each bank in which any of the York Sale
Entities has an account or safe deposit box, each account number or box number
relating thereto (including, but not limited to, the maintenance reserve
account), the balances currently on deposit in each, and the names of all
persons authorized to draw thereon or have access thereto, and the names of all
persons, if any, holding tax or other powers of attorney from any of the York
Sale Entities and a summary of the terms thereof.
4.15. Intellectual Property. Each of the York Sale Entities owns or
possesses the royalty free licenses or other rights to use all Intellectual
Property used by it or necessary to conduct its business as it is presently
operated. None of the York Sale Entities is infringing upon or otherwise acting
adversely to any Intellectual Property owned by any other person or persons, and
there is no claim or action by any such person pending, or to the knowledge of
the York Sale Entities or Seller threatened, with respect thereto, which in any
case would reasonably be expected to have a Material Adverse Effect on either
the Seller or the York Sale Entities.
4.16. No Guarantees. Except as set forth in Schedule 4.16, none of the
obligations or liabilities of the York Sale Entities are guaranteed by any other
person, firm or corporation, nor have any of the York Sale Entities guaranteed
the obligations or liabilities of any other person, firm or corporation
(including without limitation any present or former shareholder or employee or
any affiliate thereof).
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4.17. Employee Benefit Plans.
(a) Except as detailed on Schedule 4.17 hereto: (1) none of the
York Sale Entities or any trade or business (whether or not incorporated) which
is treated as a single employer with any of the York Sale Entities, maintains or
contributes to, or has ever maintained or contributed to, any "defined benefit
plan" as such term is defined in the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), any plan subject to section 302 of ERISA, any
multiemployer plan or any multiple employer pension or welfare arrangement as
such terms are defined in ERISA; and (2) none of the York Sale Entities
maintains or contributes to, or has ever maintained or contributed to, any plan
or arrangement of any kind or nature whatsoever which is or was subject to the
provisions of ERISA or the U.S. Internal Revenue Code.
(b) Schedule 4.17 includes a complete, true and accurate list of
all mandatory government or national insurance pension or welfare arrangements
with respect to which any of the York Sale Entities has any obligation or
liability (whether actual, contingent or prospective) in respect of any current
or former employee or director ("Governmental Plans").
(c) Schedule 4.17 includes a complete, true and accurate list of
all employee benefit schemes, arrangements or agreements to which any of the
York Sale Entities or their affiliates is a party, or which provide funding for
the provision of employee benefits in respect of any current or former employee
or director of any of the York Sale Entities (or spouse or dependent of any of
them), in respect of which any of the York Sale Entities has any obligation or
liability (whether actual, contingent or prospective) other than Governmental
Plans ("Employee Benefit Arrangements").
(d) No announcement has been made or any assurance given to any
current or former employee or director of any of the York Sale Entities (or
spouse or dependent of any of them) by any of the York Sale Entities or their
affiliates regarding the introduction, continuance, reduction, increase or
improvement of any employee benefits in respect of any such person in connection
with the Employee Benefit Arrangements.
(e) Each of the Employee Benefit Arrangements which are prefunded
or which are required by law to be prefunded have been funded to the extent
recommended by the relevant actuary or authority relating to that Employee
Benefit Arrangement. All amounts due and payable prior to or accrued in the
period up to the Closing in respect of each of the Employee Benefit Arrangements
or Governmental Plans have been paid.
(f) Each of the York Sale Entities and any persons or bodies
separately representing the legal ownership of the Employee Benefit Arrangements
have complied with their respective obligations under the relevant documentation
governing that Employee Benefit Arrangement and with the provisions of the
relevant legislation or tax requirements governing or applicable to that
Employee Benefit Arrangement except where the failure to comply with such
requirements would not result in, or be reasonably expected to result in a
Material Adverse Effect. Each of the York Sale Entities has at all times
complied with the provisions of relevant legislation or tax requirements
relating to the Governmental Plans, except where the failure to comply with such
requirements would not result in, or be reasonably expected to result in a
Material Adverse Effect.
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(g) None of the York Sale Entities nor any of the Employee
Benefit Arrangements is engaged in any ombudsman, litigation or arbitration
proceedings in respect of the Employee Benefit Arrangements and to the knowledge
of the York Sale Entities, (i) no such ombudsman, litigation or arbitration
proceedings are pending or threatened by or against the York Sale Entities or
the Employee Benefit Arrangements and (ii) there are no circumstances likely to
give rise to any such proceedings in respect of any current or former employees
or directors of the York Sale Entities.
(h) None of the Employee Benefit Arrangements is or may be
subject to, or may subject any of the York Sale Entities to, any tax or penalty,
or may result in a lien being imposed on or a claim being made against any of
the Quotas or the share capital or assets of any of the York Sale Entities.
4.18. Status Under Certain Statutes. None of the York Sale Entities is:
(i) a "public utility company" or a "holding company", or an "affiliate" or a
"subsidiary company" of a "holding company", or an "affiliate" of such a
"subsidiary company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended, (ii) a "public utility" as defined in the
Federal Power Act, as amended, or (iii) an "investment company" or an
"affiliated person" thereof or an "affiliated person" of any such "affiliated
person", as such terms are defined in the Investment Company Act of 1940, as
amended, or otherwise subject to regulation under any such acts.
4.19. Environmental Matters.
4.19.1. As used herein, the following terms shall have the
meanings provided below:
(a) "Environmental Laws" shall mean all (a) laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by any governmental
authority, relating in any way to pollution or protection of the environment,
natural resources or human health and safety, including such laws and
regulations relating to Releases or threatened Releases of Hazardous Substances
or otherwise relating to the manufacture, formulation, generation, processing,
distribution, use, treatment, storage, Release, transport, Remediation,
abatement, cleanup or handling of Hazardous Substances, (b) laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by any governmental
authority with regard to recordkeeping, notification, disclosure and reporting
requirements respecting Hazardous Substances and (c) laws relating to the
management or use of natural resources.
(b) "Environmental Permits" means all permits, certificates,
licenses and authorizations of all governmental authorities under Environmental
Laws.
(c) "Hazardous Substances" means (a) any petrochemical or
petroleum products, oil or coal ash, radioactive materials, radon gas, asbestos
in any form that is or could become friable, urea formaldehyde insulation and
transformers or other equipment that contains dielectric fluid which may contain
polychlorinated biphenyls, (b) any chemical materials or substances defined as
or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "hazardous constituents", "restricted hazardous
materials", "extremely hazardous substances", "toxic substances",
"contaminants", "pollutants", "toxic pollutants", or words of similar meaning
and regulatory effect under applicable Environmental Law and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any applicable Environmental Law.
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(d) "Release" shall mean any release, spill, leak, discharge,
disposal of, pumping, pouring, emitting, emptying, injecting, leaching, dumping
or allowing to escape into or through the environment, as "environment" is
defined by applicable Environmental Law.
(e) "Remediation" means all actions taken to (a) clean up,
remove, remediate, contain, treat, monitor, assess, evaluate or in any other way
address Hazardous Substances in the indoor or outdoor environment; (b) prevent
or minimize a Release or threatened Release of Hazardous Substances so that they
do not migrate or endanger or threaten to endanger public health or welfare or
the indoor or outdoor environment; (c) perform pre-remedial studies and
investigations and post-remedial operation and maintenance activities; or (d)
any other actions authorized by any applicable Environmental Law or any actions
taken to correct existing or alleged conditions affecting the licensing or
certification of any laboratory owned, operated or leased by any of the York
Sale Entities or predecessors in interest.
4.19.2. Except as set forth in Schedule 4.19.2 hereto:
(a) Each of the York Sale Entities holds and is in compliance
with, all Environmental Permits that each of the York Sale Entities is required
to own in order to own, lease and operate all property presently owned, operated
or leased by such entity, and each of the York Sale Entities is otherwise in
compliance with applicable Environmental Laws with respect to the ownership,
lease, maintenance or operation of all property presently owned, operated or
leased by any of the York Sale Entities, except for such failures to hold or
comply with required Environmental Permits, and such failures to be in
compliance with applicable Environmental Laws, as would not, individually or in
the aggregate, impair the ability of the Purchaser to operate any of the
property presently owned, operated or leased by any of the York Sale Entities,
respectively, after the Closing in the manner operated on the date hereof or to
meet any contractual requirement under the License, the Government Agreement, or
any other document, instrument, or agreement set forth on Schedule 4.14 pursuant
to Sections 4.14.5 and 4.14.6;
(b) None of the York Sale Entities has received any written
request for information, or been notified in writing that it is a potentially
responsible party under CERCLA or any similar law of any jurisdiction having
authority over such York Sale Entity with respect to any of the property
presently owned, operated or leased by any of the York Sale Entities, or any
written notice relating to any governmental authority's allegation or
investigation of any criminal violations by any of the York Sale Entities, of
any Environmental Laws, except for requests or notices with respect to any
liability or obligation (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated and whether due or to become due), as would
not, individually or in the aggregate, impair the ability of the Purchaser to
operate any of the property presently owned, operated or leased by any of the
York Sale Entities after the Closing in the manner operated on the date hereof
or to meet any contractual requirement under the License or the Government
Agreement, or any other document, instrument, or agreement set forth on Schedule
4.14 pursuant to Sections 4.14.5 and 4.14.6; and
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(c) None of the York Sale Entities has entered into or agreed
to any consent decree or order under any Environmental Law relating to the
property presently owned, operated or leased by any of the York Sale Entities,
and none of the York Sale Entities is subject to any outstanding judgment,
decree or order relating to compliance with any Environmental Law or to the
investigation or cleanup of Hazardous Substances under any Environmental Law
relating to the property presently owned, operated or leased by any of the York
Sale Entities, except for such decrees, orders and judgments as would not,
individually or in the aggregate, impair the ability of the Purchaser to operate
any of the property presently owned, operated or leased by any of the York Sale
Entities, after the Closing in the manner operated by any of the York Sale
Entities on the date hereof or to meet any contractual requirement under the
License or the Government Agreement, or any other document, instrument, or
agreement set forth on Schedule 4.14 pursuant to Sections 4.14.5 and 4.14.6.
4.20. Construction Period. Except as set forth in Schedule 4.20, as of
the date hereof: (a) all construction period payments shall have been made by or
on behalf of each of the York Sale Entities under any and all project agreements
entered into by the York Entities; (b) the scope of work and any and all
obligations of the counter-parties to the construction and engineering contracts
have been completed and accepted by each of the York Sale Entities (as
applicable); (c) all open punchlist items under the construction and engineering
agreements have been completed to the satisfaction of each of the York Sale
Entities (as applicable) or a buy-out agreement has been reached which was
accepted by each of the York Sale Entities (as applicable); and (d) all warranty
items under the construction and engineering agreements have been completed and
all warranties have been transferred under such agreements to the applicable
York Sale Entity.
4.21. Operation and Maintenance. Except as set forth in Schedule 4.21,
as of the date hereof, with regard to the property and assets of the York Sale
Entities: (a) all inspections and overhauls have been completed in accordance
with the original equipment manufacturer's ("OEM") recommended inspection and
overhaul schedules; (b) all spare parts necessary to meet the OEM's recommended
inspection and overhaul schedules have been ordered and such spare parts
inventories have been maintained; (c) all TIL's of the OEM have been completed
on a timely basis; and (d) no warranty claims have been made in connection with
the assets and property of any of the York Sale Entities.
4.22. Foreign Corrupt Practices Act. Neither the York Entities, nor any
of their affiliates have made any direct or indirect payment of money or
anything of value to any governmental official, political party, or candidate
for political office for the purpose of obtaining or retaining business in
connection with the business, assets, or operations of the York Entities, or any
of their affiliates. Without limiting the above, neither the York Entities, nor
any of their affiliates has breached any provisions of the U.S. Foreign Corrupt
Practices Act or has any knowledge of such a breach by any other person who is,
or has been associated with any of the York Entities in connection with, or
relate to, the Seller or the York Sale Entities.
4.23. Employee Compensation. Schedule 4.23 contains a true and complete
list of all Persons employed by the York Sale Entities and all agents and
consultants (other than the operator) engaged by the York Sale Entities as of
the date hereof, together with a statement as to the full amount of compensation
or commissions paid or payable to, or on behalf of, each such Person for
services rendered during the fiscal year ended December 31, 2000 and the current
aggregate base salary rate, commission rate or fee schedule for each such
Person. On the Closing Date, other than liabilities incurred in the ordinary
course of business consistent with historical payments by the York Sale
Entities, the York Sale Entities will not have any outstanding liability for
payment of wages, commissions, vacation pay (whether accrued or otherwise),
salaries, fees, bonuses, reimbursable employee business expenses, pensions,
contributions under any employee benefit plans or any other compensation or
perquisites, current or deferred, under any labor, employment or consulting
contracts, whether oral or written, based upon or accruing with respect to those
services of the employees of the York Sale Entities performed prior to the
Closing Date, except as otherwise set forth in Schedule 4.23. The York Sale
Entities have not, because of past practices or previous commitments with
respect to its employees, consultants or agents, established any rights on the
part of such employees, consultants or agents to receive additional compensation
with respect to any period after the Closing Date, except as and to the extent
set forth in Schedule 4.23.
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4.24. Labor Matters. (a) Purchaser has been provided with true,
complete and correct copies of, and Schedule 4.24 sets forth a complete list of,
all employment, severance, termination, consulting, bonus, profit sharing,
percentage compensation, deferred compensation, stock purchase or stock option
plans or other compensation plans, agreements, commitments or arrangements that
the York Sale Entities have with all present or former directors, officers,
employees, consultants or agents thereof, excluding agreements and commitments
terminable by Seller on not more than thirty (30) days notice without liability
or penalty (the "Benefit Arrangements"). Except as set forth in Schedule 4.24,
none of the York Sale Entities have taken any action that could be deemed to
trigger, and the consummation of the transactions contemplated hereby will not
be deemed to trigger, any severance benefits under any of such Benefit
Arrangements.
(b) None of the York Sale Entities is a party to any collective
bargaining agreements. There is no unfair labor practice or employment
discrimination or other employment related complaint, grievance or proceeding
against any of the York Sale Entities or against any Person with respect to any
employee of the York Sale Entities pending or, to the knowledge of any of the
York Sale Entities, threatened before any applicable federal, state, local or
foreign governmental entity or regulatory body. To the knowledge of the York
Sale Entities, there are no circumstances likely to give rise to any such
complaint, grievance or proceeding.
(c) Each of the York Sale Entities is in compliance in all
material respects with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours. Each of the
York Sale Entities enjoys good relations with its employees and agents.
4.25. Brokers. Except for Credit Suisse First Boston, whose fees,
commissions and expenses are the sole responsibility of the Seller and the York
Guarantor, all negotiations related to this Agreement and the transactions
contemplated hereby have been carried out by the Seller and the York Guarantor
directly with Purchaser without the intervention of any person on behalf of
Seller in such manner as to give rise to any valid claim by any person against
Purchaser or the York Sale Entities for a finder's fee, brokerage commission or
similar payment.
4.26. Disclosure. All material facts relating to the assets,
properties, operations, or business or condition of the York Entities have been
disclosed to the Purchaser in or in connection with this Agreement. None of the
York Entities have either consciously, knowingly, or recklessly made or given
any representation, warranty, or statement whether in this Agreement, in any
schedule attached hereto, or in any documents or other papers furnished to the
Purchaser pursuant to any provision of this Agreement (including without
limitation the Balance Sheets and other Financial Statements), that contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements herein or therein, in light of the circumstances
under which they were made, not misleading.
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SECTION 5. REPRESENTATIONS AND WARRANTIES BY PURCHASER
Purchaser represents and warrants to the Seller as follows:
5.1. Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its state of organization and
has full corporate power and authority to enter into this Agreement and the
related agreements referred to herein and to carry out the transactions
contemplated by this Agreement and to carry on its business as now being
conducted and to own, lease or operate its properties.
5.2. Authorization and Approval of Agreement. All proceedings or
corporate action required to be taken by Purchaser relating to the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been taken at or prior to the Closing.
5.3. Execution, Delivery and Performance of Agreement. Purchaser has
full power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby and this Agreement constitutes a valid and
binding obligation of Purchaser.
5.4. Financing. Purchaser has sufficient cash, available lines of
credit or other sources of immediately available funds to enable it to make
payment of the Purchase Price and any other amounts to be paid by it hereunder.
5.5. Investment Representation. Purchaser acknowledges that the Quotas
to be acquired by it have not been registered under the Securities Act of 1933,
as amended, or any other federal or state securities laws may not be sold absent
such registration or an exemption from the registration requirements thereof.
Purchaser is acquiring the Quotas for investment purposes and with no present
intent of selling such Quotas in violation of any federal or state securities
laws.
SECTION 6. CONDUCT OF BUSINESS PRIOR TO CLOSING.
(a) Prior to the Closing, the York Sale Entities will, and the York
Guarantor and Seller shall cause the Company (and the Company shall cause YHB
which shall cause InnCOGEN) to, (a) conduct its business and affairs only in the
ordinary course and consistent with its prior practice and shall maintain, keep
and preserve its assets and properties in good condition and repair in
accordance with OEM recommended inspection and overhaul schedules, requirements
of law, and prudent industry practices as generally employed in the independent
power generation industry (b) maintain insurance thereon in accordance with
present practices and prudent industry practices, and the York Sale Entities,
Seller, and the York Guarantor will use their best efforts to preserve the
business and organization of the York Sale Entities, to keep available to
Purchaser the services of InnCOGEN's, YHB's and the Company's present officers
and employees, and to preserve for the benefit of Purchaser the relationships
with InnCOGEN's, YHB's and the Company's landlords, suppliers and customers and
others having business relations with it. The Seller shall give Purchaser prompt
written notice of any change in any of the information contained in the
representations and warranties made in Section 4 hereof or the Schedules
referred to therein which occurs prior to the Closing.
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(b) Seller shall use its best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as practicable that which
is required in order to redeem the Portfolio Bonds.
SECTION 7. ACCESS TO INFORMATION AND DOCUMENTS.
The York Entities will give (or cause to be given to) Purchaser and its
affiliates and Purchaser's and its affiliate's attorneys, accountants and other
representatives full access to the York Sale Entities' personnel and all
properties, documents or other papers, contracts and other agreements, books and
records of the York Sale Entities and will furnish Purchaser with copies of such
documents or other papers (certified by any applicable officers of such entity
if so requested) and with such information with respect to the affairs of the
Company as Purchaser may from time to time request. Any furnishing of such
information to Purchaser or any investigation by Purchaser shall not affect
Purchaser's right to rely on any representations and warranties made in this
Agreement.
SECTION 8. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
All obligations of Purchaser hereunder are subject, at the option of
Purchaser, to the fulfillment of each of the following conditions at or prior to
the Closing, and Seller shall exert its best efforts to cause each such
condition to be so fulfilled:
8.1. All representations and warranties of the Seller contained herein
or in any document delivered pursuant hereto shall be true and correct in all
material respects when made and shall be deemed to have been made again at and
as of the date of the Closing, and shall then be true and correct in all
material respects except for changes (i) in the ordinary course of business
after the date hereof in conformity with the covenants and agreements contained
herein and (ii) which would not be required to be disclosed in any schedule
hereto upon the making of such representations and warranties at and as of the
date of the Closing hereunder.
8.2. Since the date of this Agreement, no event shall have occurred (or
be occurring) or condition shall exist (or be existing) that has had (or
continues to have) a Material Adverse Effect on any of the York Sale Entities.
8.3. No event of default shall have occurred and be continuing in
connection with any document, instrument, or agreement set forth in Schedule
4.14 pursuant to the provisions of Sections 4.14.5 and 4.14.6.
8.4. All covenants, agreements and obligations required by the terms of
this Agreement to be performed by the York Sale Entities at or before the
Closing shall have been duly and properly performed in all material respects.
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8.5. The Consent and the Attorney General Letter, together with any and
all other consents or approvals required to be delivered hereunder to consummate
the transactions contemplated hereby, shall have been duly executed and
delivered.
8.6. The Purchaser shall have received evidence satisfactory to it, in
its sole discretion, that all liens and encumbrances on the shares, quotas,
business, assets, property, and equipment of the York Sale Entities have been
released.
8.7. There shall be delivered to Purchaser the Officer's Certificate
executed by the Seller, dated the date of the Closing, certifying that the
conditions set forth in Sections 8.1, 8.2, 8.3, 8.4, 8.6, 8.8, and 8.16 have
been fulfilled.
8.8. No provision of any applicable law and no judgment, injunction,
order or decree shall prohibit, limit or otherwise restrict the consummation of
the transactions contemplated hereby.
8.9. All transactions between (i) any of the York Sale Entities and
(ii) the Seller or any affiliates of the York Sale Entities or the Seller other
than the Company, YHB, or InnCOGEN shall, at Purchaser's sole option, have been
terminated without any further liability to Purchaser or the York Sale Entities,
effective as of the Closing Date.
8.10. The Schedules required to be updated as of the Closing Date
pursuant to the terms herein shall have been determined to be acceptable by
Purchaser, in its sole discretion.
8.11. All documents or other papers required to be delivered to
Purchaser at or prior to Closing shall have been so delivered.
8.12. Purchaser shall have received legal opinions dated as of the
Closing Date, in form and substance reasonably acceptable to Purchaser from the
following persons: (a) the Seller's counsel; (b) Purchaser's Barbadian counsel;
and (c) Purchaser's Trinidadian counsel.
8.13. Purchaser shall have received evidence or assurances reasonably
satisfactory to it that InnCOGEN shall be permitted to carry its net operating
loss over until the post-Trinidadian tax holiday period.
8.14. Purchaser shall have (a) received a final, non-appealable
determination of exempt wholesale generator status regarding InnCOGEN from the
Federal Energy Regulatory Commission or (b) filed a notification of Foreign
Utility Company status with the Securities and Exchange Commission.
8.15. Purchaser shall have received satisfactory evidence that the York
Sale Entities have no obligations to (a) Design Build Professionals and no
liability arising out of any relationship between either York or Seller and
Design Build Professionals, and (b) Duke/Fluor Xxxxxx International Services and
no liability arising out of any relationship between either York or Seller and
Duke/Fluor Xxxxxx International Services, (c) York Guarantor or any other York
Entity for any managerial and/or administrative services provided to any of the
York Sale Entities, (d) the XXXX or any agency or instrumentality thereof for
any payments to be assessed on InnCOGEN under the new RIC law for calendar year
2001, (e) the XXXX or any agency or instrumentality thereof for any payments
under the new Trinidad Greenfund law for calendar year 2001, (f) any contractor
or any other Person in connection with the ongoing expansion of InnCOGEN's
administrative offices and the construction of maintenance sheds at the InnCOGEN
facility, (g) to any contractor or any other Person in connection with any
payment for repairs to transition pieces from Unit 1 or charges for consumable
parts from General Electric ("GE") and any other similar payments or charges in
connection with or arising from the turbine combustion inspection of Unit 2, (h)
any contractor or any other Person in connection with any payment of any invoice
associated with any activity in connection with Unit 3 through the Closing Date,
and (i) any payments to be made or costs associated with the employee claim
against InnCOGEN identified in Schedule 4.11.
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8.16. Seller shall have executed and delivered an original counterpart
to the Escrow Agreement.
8.17. Seller shall have performed the overhaul and maintenance
activities on InnCOGEN's Units 1, 2, and 3 as specified on Schedule 4.10 or
sufficient funds shall remain in InnCOGEN's accounts to perform such overhaul
and maintenance activities.
8.18. Purchaser shall have received all necessary corporate approvals
to consummate the transactions contemplated hereby.
SECTION 9. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
All obligations of the Seller at the Closing are subject, at the option
of the Seller, to the fulfillment of each of the following conditions at or
prior to the Closing, and Purchaser shall exert its best efforts to cause each
such condition to be so fulfilled:
9.1. All representations and warranties of Purchaser contained herein
or in any document delivered pursuant hereto shall be true and correct in all
material respects when made and as of the Closing.
9.2. All obligations required by the terms of this Agreement to be
performed by Purchaser at or before the Closing shall have been duly and
properly performed in all material respects.
9.3. There shall be delivered to the Seller a certificate executed by
an officer of Purchaser, dated the date of the Closing, certifying that the
conditions set forth in Sections 9.1 and 9.2 have been fulfilled.
9.4. No provision of any applicable law and no judgment, injunction,
order or decree shall prohibit, limit or otherwise restrict the consummation of
the transactions contemplated hereby.
9.5. The Seller shall have received an opinion from Purchaser's counsel
dated as of the Closing Date, in form and substance reasonably acceptable to
Seller.
9.6. The York Guarantor shall have received, after giving effect to the
payment of the purchase price hereunder, aggregate gross proceeds from the sale
contemplated sufficient to allow it to redeem the Portfolio Bonds.
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9.7. Purchaser shall have executed and delivered an original
counterpart to the Escrow Agreement.
SECTION 10. INDEMNIFICATION.
10.1. The York Guarantor and Seller hereby indemnify and agree to hold
Purchaser harmless from, against and in respect of (and shall on demand
reimburse Purchaser for) any and all losses, debts, claims, liabilities or
damages ("Losses") suffered or incurred by Purchaser by reason of or in
connection with:
10.1.1. any untrue representation, breach of warranty or
non-fulfillment of any covenant or agreement by any of the York Entities
contained herein or in any certificate, document or instrument delivered to
Purchaser pursuant hereto or in connection herewith;
10.1.2. any claim for a finder's fee or brokerage or other
commission arising by reason of any services alleged to have been rendered to or
at the instance of any of the York Entities with respect to this Agreement or
any of the transactions contemplated hereby or by any prospective purchaser of
any of the York Sale Entities or all or any part of their respective business or
assets with respect to any such potential purchase;
10.1.3. any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and reasonable expenses, including, without
limitation, reasonable legal fees and expenses, incident to any of the foregoing
or incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity;
10.1.4. any Taxes attributable to periods on or before the
Closing Date;
10.1.5. any amounts owed to Purchaser pursuant to the proration
under Section 3.4; and
10.1.6. any amounts payable by Seller or any of the York Sale
Entities in connection with the obligations set forth Section 8.15.
Notwithstanding anything to the contrary contained in this Agreement,
the York Guarantor and the Seller shall have no liability, nor be subject to any
claim under Section 10.1.1 in respect of any inaccuracy in or breach of any
representation, warranty or covenant of the York Entities unless and until, the
aggregate amount of all Losses suffered or incurred by Purchaser as result
thereof exceeds one million U.S. dollars ($1,000,000.00); provided, that the
total liability of Seller or York Guarantor shall not exceed ten million U.S.
dollars ($10,000,000). Notwithstanding the foregoing, such one million dollar
threshhold and ten million dollar limitation on Seller or York Guarantor's
liability shall not apply for any Losses suffered or incurred by Purchaser as a
result of (i) any inaccuracy or breach of Sections 4.4, 4.5, 4.6, 4.13 or 4.22
of this Agreement, (ii) Seller's or York Guarantor's fraud, bad faith or willful
misconduct, or (iii) any indemnification obligations under Sections 10.1.4,
10.1.5, and 10.1.6.
10.2. Purchaser hereby agrees to indemnify and hold the Seller harmless
from, against and in respect of (and shall on demand reimburse the Seller for),
any and all Losses suffered or incurred by Seller by reason of or in connection
with:
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10.2.1. any untrue representation, breach of warranty or
non-fulfillment of any covenant or agreement by Purchaser contained herein or in
any certificate, document or instrument delivered to the Seller by Purchaser
pursuant hereto or in connection herewith;
10.2.2. any claim for a finder's fee or brokerage or other
commission arising by reason of any services alleged to have been rendered to or
at the instance of the Purchaser with respect to this Agreement or any of the
transactions contemplated hereby;
10.2.3. any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation,
reasonable legal fees and expenses, incident to any of the foregoing or incurred
in investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity; and
10.2.4. any amounts owed to Seller pursuant to the proration
under Section 3.4.
Notwithstanding anything to the contrary contained in this Agreement,
Purchaser shall have no liability, nor be subject to any claim under Section
10.2.1, in respect of any inaccuracy in or breach of any representation,
warranty or covenant of the Purchaser unless and until, the aggregate amount of
all Losses suffered or incurred by Seller as result thereof exceeds one million
U.S. dollars ($1,000,000.00); provided, except as set forth in Section 10.3, the
total liability of Purchaser shall not exceed ten million U.S. dollars
($10,000,000). Notwithstanding the foregoing, such one million dollar threshhold
and ten million dollar limitation shall not apply to any losses suffered or
incurred by Seller as a result of Purchaser's fraud, bad faith, or willful
misconduct or any indemnification obligations under Section 10.2.4.
10.3. NRG Guarantor hereby irrevocably and unconditionally guarantees
to Seller
payment of (a) the Purchase Price by Purchaser pursuant to the terms set forth
in Section 2 and upon the satisfaction of the conditions set forth elsewhere in
this Agreement and (b) Purchaser's obligations under Section 10.2.
10.4. After the receipt by any party (hereinafter called the
"Indemnitee") hereto of written notice of any claim or of the commencement of
any action or proceeding, such party shall, if a claim with respect thereto is
to be made against any party (or parties) obligated to provide indemnification
(hereinafter called the "Indemnifying Party") pursuant hereto, give such
Indemnifying Party written notice of such claim or the commencement of such
action or proceeding (collectively, "Actions") (including a copy of such claim,
process and all legal pleadings) as promptly as the Indemnitee shall consider
reasonable given the magnitude and nature of the claim. The Indemnifying Party
shall be entitled to control the defense of Actions with reputable counsel
reasonably acceptable to the Indemnitee. The Indemnifying Party shall be
entitled to impose a settlement only if it shall either have paid such
settlement in full or shall have offered to Indemnitee a bond or letter of
credit issued by a reasonably satisfactory financial institution payable to
Indemnitee (or other security satisfactory to Indemnitee in its sole discretion)
in an amount sufficient to satisfy Indemnifying Party's obligations with respect
thereto. If any such bond or letter of credit is not furnished for any Action,
the Indemnitee shall control, and shall have the right to settle or not to
settle, such Action. In all events, the Indemnifying Party shall be entitled to
participate in all Actions with reputable counsel reasonably acceptable to the
Indemnitee. The Indemnitee shall, upon reasonable request, assist the
Indemnifying Party with respect to the defense of any Action.
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10.5. Subject to Section 11, this Section 10 (and the indemnification
provided hereunder) shall survive the termination or expiration of this
Agreement.
SECTION 11. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Notwithstanding any right of Purchaser (whether or not exercised) to
investigate the affairs of the York Sale Entities or any right of any party
(whether or not exercised) to investigate the accuracy of the representations
and warranties of the other party contained in this Agreement, Seller and
Purchaser have the right to rely fully upon the representations, warranties,
covenants and agreements of the other contained in this Agreement. The
representations, warranties, covenants and agreements of the York Guarantor,
Seller and Purchaser contained in this Agreement will survive the Closing (a)
indefinitely with respect to the representations and warranties contained in
Sections 4.4, 4.5, 4.6, 4.22, and 5.2, (b) until sixty (60) calendar days after
the expiration of all applicable statutes of limitation (including all periods
of extension, whether automatic or permissive) with respect to matters covered
by Section 4.9, 4.17, and 4.19, and (c) with respect to all other
representations and warranties, for two (2) years from the Closing Date, except
that any representation, warranty, covenant or agreement that would otherwise
terminate in accordance with clause (b) or (c) above will continue to survive if
a notice or claim shall have been timely given or made under Section 10 on or
prior to such termination date, until the related notice or claim for
indemnification has been satisfied or otherwise resolved as provided in Section
10. Notwithstanding the foregoing, the time limitations set forth in this
Section 11 shall not apply to claims based upon allegations of fraud and willful
misconduct.
SECTION 12. NOTICES.
Any and all notices or other communications required or permitted to be
given under any of the provisions of this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or mailed by
first class registered or certified mail, return receipt requested, or by
facsimile upon receipt of a confirmation, addressed to the parties at the
addresses set forth on the signature page (or at such other address as any party
may specify by notice to all other parties given as aforesaid).
SECTION 13. ARBITRATION.
13.1. Dispute Resolution. Every dispute of any kind or nature between
(a) Seller and the York Guarantor and (b) the Purchaser arising out of or in
connection with this Agreement (each a "Dispute") shall be resolved in
accordance with this Section 13, to the extent permitted by law.
13.2. Good Faith Effort. In the event of a Dispute, (a) the Purchaser
and (b) the Seller, and York Guarantor shall in good faith attempt to resolve
such Dispute by negotiations. If a Dispute cannot be resolved by negotiation,
then such Dispute shall be resolved by binding arbitration by three arbitrators.
13.3. Binding Arbitration. Arbitration shall be commenced upon party
giving notice to the other party of its election (the date of such notification,
the "Arbitration Notification Date") to so initiate arbitration proceedings. The
arbitration shall be conducted in New York, New York in the English language in
accordance with the Rules of Conciliation and Arbitration of the International
Chamber of Commerce (the "ICC") then in force and effect. Seller and Purchaser
shall each appoint one arbitrator within ten (10) days of the Arbitration
Notification Date, with the third arbitrator to be selected by the first two
within five (5) days after the last of the first two arbitrators have been
appointed by the parties to the arbitration. In the absence of agreement between
two arbitrators in their selection of a third arbitrator, the ICC shall appoint
the third arbitrator. This third arbitrator (whether selected by the ICC or the
other arbitrators) shall act as chairperson of the panel. The arbitrators shall
apply the procedural rules adopted by them in accordance with the rules of the
ICC.
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13.4. Awards. Each party to the arbitration proceedings agrees that the
activities under this Agreement are of a commercial nature and that any award
rendered by an arbitral tribunal under Section 13.3 shall be final and
non-appealable and shall be enforceable against itself and its assets. Each of
the parties hereto hereby irrevocably consents and agrees that any legal action,
suit or proceeding with respect to the enforcement, modification, vacation or
correction of an award rendered in such arbitration shall be subject to the
provisions of Section 15.11.
13.5. Exclusive Procedure. The procedures specified in this Section 13
shall be the sole and exclusive procedures for the resolution of Disputes (as
specifically defined in this Section 13). Despite any such action, the parties
shall continue to participate in good faith in the procedures specified in this
Section 13. All applicable statutes of limitation shall be tolled while the
procedures specified in this Section 13 are pending. The parties shall take such
action, if any, required to effectuate such tolling.
SECTION 14. CONFIDENTIALITY; NON-CIRCUMVENTION AND NON-COMPETE.
14.1. Non-Disclosure to Third Parties. Any Proprietary Information of a
party (the "Transferor") which is disclosed to or otherwise received or obtained
by the other party (the "Transferee") incident to this Agreement is disclosed,
and shall be held, in confidence, and the Transferee shall not publish or
otherwise disclose any Proprietary Information to any person for any reason or
purpose whatsoever, or use any Proprietary Information for its own purposes or
for the benefit of any person, without the prior written approval of the
Transferor, which approval may be granted or withheld by the Transferor in its
sole discretion; provided, however, that Purchaser may disclose Proprietary
Information to any prospective financing party for purposes of such prospective
financing party's evaluation in connection with the provision of equity or debt
financing, or refinancing for any such financing, for its acquisition of the
Quotas and/or the York Sale Entities; and provided further that nothing herein
shall limit the right of the Transferee to provide any Proprietary Information
to any governmental authority having jurisdiction over or asserting a right to
obtain such information (including as part of the application for any consent or
authorization or pursuant to any disclosure required by the securities laws of
any applicable jurisdiction), provided that (i) such governmental authority
orders that such Proprietary Information be provided (including, without
limitation, in connection with obtaining the necessary approvals of this
Agreement and the transactions contemplated hereby of any applicable
Governmental or Regulatory Bodies), and (ii) the Transferee promptly advises the
Transferor of any request for such information by such governmental authority
and cooperates in giving the Transferor an opportunity to present objections,
requests for limitation, and/or requests for confidentiality or other
restrictions on disclosure or access, to such governmental authority. Each
party's obligation to maintain Proprietary Information in confidence shall be
deemed performed if such party observes, with respect thereto, the same
safeguards and precautions which such party observes with respect to its own
proprietary information of the same or similar kind.
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14.2. Definition of Proprietary Information. The term "Proprietary
Information" means all information, written or oral, which has been or is
disclosed by the Transferor, or by any affiliate or associate of the Transferor,
or which otherwise becomes known to the Transferee, or to any affiliate,
associate or other party in a confidential relationship with, the Transferee,
and which (x) relates the specific assets being transferred pursuant to the
terms of this Agreement or, subject to Section 15.7, to the transactions
contemplated herein, or (y) the Transferor expressly designates in writing to be
confidential. However, Proprietary Information shall exclude information falling
into any of the following categories:
(a) Information that, at the time of disclosure hereunder, is in
the public domain, other than information that entered the public domain by
breach of this or any other agreement, or in violation of any other applicable
law;
(b) Information that, after disclosure hereunder, enters the
public domain, other than information that entered the public domain by breach
of this or any other agreement, or in violation of any other applicable law;
(c) Information, other than that obtained from third parties,
that prior to disclosure hereunder, was already in the recipient's possession,
either without limitation on disclosure to others or subsequently becoming free
of such limitation;
(d) Information obtained by the recipient from a third party
having an independent right to disclose the information; or
(e) Information that is available through independent research
without use of or access to the Proprietary Information.
14.3. Limitations on Required Disclosure. Each party agrees that it
will make available Proprietary Information received from the other party to its
own affiliates and associates only on a need-to-know basis, and that all persons
to whom such Proprietary Information is made available will be made aware of the
confidential nature of such Proprietary Information, and will be required to
agree to hold such Proprietary Information in confidence under terms
substantially identical to the terms hereof.
14.4. Compelled Disclosure. In the event that a Transferee or anyone to
whom the Transferee transmits the Proprietary Information pursuant to this
Agreement becomes legally compelled (by oral questions, interrogatories, or
other requests for information or documents, pursuant to a subpoena, civil
investigative demand, or other similar legal process)(including as part of the
application for any consent or authorization or pursuant to any disclosure
required by the securities laws of any applicable jurisdiction) to disclose any
of the Proprietary Information, the Transferee shall promptly seek a protective
order or other appropriate remedy unless the Transferor waives compliance with
this Section 14. In the event that such protective order or other remedy is not
obtained, or that the Transferor waives compliance with Section 14, the
Transferee or its representatives shall furnish only that portion of the
Proprietary Information which is legally required and the party shall exercise
all reasonable efforts to obtain reliable assurance that confidential treatment
shall be accorded the Proprietary Information. Notwithstanding anything to the
contrary contained herein, Seller and Purchaser consent in advance to the filing
of this Agreement as an exhibit to any securities law filings that may be
required of either the York Guarantor or the NRG Guarantor with the U.S.
Securities and Exchange Commission. Such filings may be made without either
party seeking any confidential treatment or applicable protective order.
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14.5. Remedies. In the event of a breach or threatened breach of the
provisions of Section 14.1 above by any Transferee, the Transferor shall be
entitled to an injunction restraining such party from such breach. Nothing
contained herein shall be construed as prohibiting the Transferor from pursuing
any other remedies available at law or equity for such breach or threatened
breach of this Agreement.
14.6. Non-circumvention. Seller will utilize the Proprietary
Information solely and exclusively in connection with the transactions
contemplated hereunder and will not use any Proprietary Information to the
detriment or disadvantage of Purchaser or its affiliates, nor to gain any
competitive advantage over Purchaser (or its affiliates) in any competitive
situation in Trinidad and Tobago, whether individually, through the York
Guarantor, an affiliate thereof, or in connection with other firms. Seller shall
not, either directly or indirectly, compete with Buyer for the rights relating
to the sale of energy to TTEC pursuant to the terms of the License Agreement (as
in effect on the Closing Date).
14.7. Integration. All prior confidentiality agreements and commitments
shall be considered merged into and superseded by the provisions of this
Agreement generally, and this Section 14 specifically.
14.8. Survival. The provisions of this Section 14 shall survive the
termination or expiration of this agreement for a period of five (5) years.
SECTION 15. MISCELLANEOUS.
15.1. Certain Definitions. As used in this Agreement, the following
terms have the following meanings unless the context otherwise requires:
"contracts and other agreements" means all executory contracts,
agreements, understandings, indentures, notes, bonds, loans, instruments,
leases, mortgages, franchises, licenses or commitments which are legally
binding.
"documents or other papers" means any document, agreement, instrument,
certificate, notice, consent, affidavit, letter, telegram, telex, facsimile,
statement, schedule (including any Schedule to this Agreement), or exhibit
(including any Exhibit to this Agreement).
"GAAP" means generally accepted accounting principles, consistently
applied throughout the specified period and in the immediately prior comparable
period.
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"Governmental or Regulatory Body" means any court, tribunal, arbitrator
or any government or political subdivision thereof, whether federal, state,
county, local or foreign, or any agency, authority, official or instrumentality
of any such government or political subdivision.
"Material Adverse Effect" means, in the case of any Person, any change
or changes or effects that individually or in the aggregate are or may
reasonably be expected to be materially adverse to (i) the assets, properties,
business, operations, income, prospects, or condition (financial or otherwise)
of such Person or the transactions contemplated by this Agreement or (ii) the
ability of such Person to perform its obligations under this Agreement, the
Government Agreement, the License, or any other document, instrument or
agreement set forth in Schedule 4.14 pursuant to the provisions of Sections
4.14.5 and 4.14.6. For the avoidance of doubt, the costs of any event of loss
affecting the assets of any of the York Sale Entities that are in excess of
insurance proceeds shall be sufficient to be considered to result in a Material
Adverse Effect.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental or Regulatory Body or other entity.
"Portfolio Bonds" means the York Power Funding (Cayman) Limited Senior
Secured Bonds due October, 30, 2007.
"York Sale Entities" means the Company, YHB and InnCOGEN, collectively.
15.2. No Solicitations. Each of Seller and York Guarantor covenants
that it will not take, nor will it permit the York Sale Entities or any
affiliate of the foregoing (or authorize or permit any investment banker,
financial advisor, attorney, accountant or other person retained by or acting
for or on behalf of Seller, York Guarantor, or the York Sale Entities or any of
their affiliates) to take, directly or indirectly, any action to initiate,
assist, solicit, receive, negotiate, encourage or accept any offer or inquiry
from any person (a) to engage in any business combination with any of the York
Sale Entities, (b) to reach any agreement or understanding (whether or not such
agreement or understanding is absolute, revocable, contingent or conditional)
for, or otherwise attempt to consummate, any business combination with any of
the York Sale Entities or (c) to furnish or cause to be furnished any
information with respect to the York Sale Entities to any person (other than as
contemplated by Section 7) who the York Entities or any affiliate thereof (or
any such person acting for or on their behalf) knows or has reason to believe is
in the process of considering any business combination with any of the York Sale
Entities. If any of the York Entities or any such affiliate (or any such person
acting for or on their behalf) receives from any person (other than Purchaser or
any other Person referred to in Section 7) any offer, inquiry or informational
request referred to above, Seller will promptly advise such person, by written
notice, of the terms of this Section 15.2 and will promptly, orally and in
writing, advise Purchaser of such offer, inquiry or request and deliver a copy
of such notice to Purchaser.
15.3. Integration; Modification. This writing constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified, amended or terminated except by a written agreement specifically
referring to this Agreement signed by all of the parties hereto.
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15.4. Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
15.5. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each corporate party hereto, its successors and
permitted assigns, and each individual party hereto and his heirs, personal
representatives, and successors. This Agreement may not be assigned by any party
hereto, and any purported assignment shall be null, void and of no effect;
provided, however, that, without the consent of Seller, the Purchaser shall have
the right, in its sole discretion, to assign this Agreement, and its rights and
obligations hereunder, to an affiliate of the NRG Guarantor. The remedies
provided for herein are cumulative and non-exclusive.
15.6. Headings. The paragraph, section, schedule, and exhibit headings
contained herein are for the purposes of convenience only and are not intended
to define or limit the contents of said paragraphs.
15.7. Further Assurances; Press Releases. Each party hereto shall
cooperate, shall take such further action and shall execute and deliver such
further documents as may be reasonably requested by any other party in order to
carry out the provisions and purposes of this Agreement. No Party shall make any
public statements or disclosures about the existence or terms and conditions of
this Agreement and the transactions contemplated hereunder, without the prior
consent of the other party, except if required by applicable law (including as
part of the application for any consent or authorization or pursuant to any
disclosure required by the securities laws of any applicable jurisdiction).
15.8. Taxes. The Purchaser will pay all sales, transfer and documentary
taxes, if any, payable in connection with the sale, conveyances, assignments,
transfers and deliveries to be made to Purchaser hereunder.
15.9. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
15.10. Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of New York.
15.11. Submission to Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally (to the maximum extent not prohibited by law)
and subject to the provisions of Section 13:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL OR ARBITRAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS
FROM ANY THEREOF;
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(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(c) AGREES THAT THE SERVICE OF PROCESS OR OF ANY OTHER PAPERS
UPON IT BY REGISTERED MAIL AT ITS RESPECTIVE ADDRESSES SET FORTH HEREIN SHALL BE
DEEMED GOOD, PROPER AND EFFECTIVE SERVICE UPON IT;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION; AND
(e) WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
ARBITRAL OR LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SUBSECTION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
15.12. No Third Party Beneficiaries. This agreement in not intended to,
and shall not, confer any rights upon any parties other than the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT FOR
THE PURCHASE AND SALE OF SOCIAL QUOTAS to be duly executed as of the day and
year first above written.
ADDRESS: Purchaser:
NRGENERATING HOLDINGS GMBH NRGENERATING HOLDINGS GMBH
Xxxxxxxxxxxxxxxxx 0
0000 Xxxxxxxx
Xxxxxxxxxxx By: _____________________________________
Name:
Title:
With a copy to:
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President and General Counsel
ADDRESS: NRG GUARANTOR:
NRG Energy, Inc. NRG ENERGY, INC.
000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000
With a copy to: By: _____________________________________
Name:
NRG Energy, Inc. Title:
000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President and General Counsel
ADDRESS: SELLER:
c/o York Research Company YORK HOLDINGS (CAYMANS) L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: By: _____________________________________
Name: Xxxxxx Xxxxxxxx
Xxxxx & Singer LLP Title:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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ADDRESS: COMPANY:
c/o York Research Company YORK EX INTERNATIONAL SRL
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: By: _____________________________________
Name: Xxxxxx Xxxxxxxx
Moses & Singer LLP Title:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ADDRESS: YORK GUARANTOR:
c/o York Research Company YORK RESEARCH CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: By: _____________________________________
Name: Xxxxxx Xxxxxxxx
Xxxxx & Singer LLP Title: Executive Vice President
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
