language. Section 2.6(c) expressly provides: “The fees, costs and expenses
of the Independent Engineer . . . shall be borne by the party which, in the
conclusive judgment of the Independent Engineer, is not the prevailing
party.” Similarly, Section 2.5(d) provides: “The fees, costs and expenses of
the Auditor . . . shall be borne by the party which, in the conclusive
judgment of the Auditor, is not the prevailing party ....”

There is no specific language that must be used in order for an
indemnity provision to provide for recovery in first-party actions.'”
However, the parties’ use of specific fee-shifting language in Section 2.6(c)
and Section 2.5(d) of the Purchase Agreement, and their failure to include
such language in Section 9.2 of the Purchase Agreement, indicates a lack of
intent to create a clear and unequivocal agreement to shift fees in first-party
actions.

The Court finds that Section 9.2 of the Purchase Agreement does not
create a clear and unequivocal agreement to shift fees to Exelon in
connection with a dispute between parties to the contract, regarding
obligations under the Purchase Agreement. Therefore, Deere is not entitled

to indemnification of its attorneys’ fees.

© TranSched, 2012 WL 1415466, at *2.


CONCLUSION

The Court finds that Deere is not entitled to indemnification of its attorneys’
fees. The indemnity provision provided in Section 9.2 of the Purchase Agreement
does not create a clear and unequivocal agreement for indemnification of
attorneys’ fees in first-party actions. The Court also finds that pre-judgment
interest began to accrue as of the “Commercial Operation Date” on December 18,
2012.

However, as the prevailing party, Deere is entitled to litigation costs as
provided by the Superior Court Civil Rules.'! Upon submission of its recoverable
costs by Deere, the parties shall confer for the purpose of reaching an agreement on
reasonableness.

THEREFORE, Deere’s Application for Fees, Expenses, and Interest is
GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED.

" Super. Ct. Civ. R. 54(d).


must specifically state that requirement.

No such language exists in the Purchase Agreement indemnification
provision. Instead, Section 9.2 broadly establishes that Exelon will
“indemnify, defend and hold harmless [Deere] . . . from and against any and
all Losses . . . related to . . . any breach or nonperformance [of the
Agreement].”

In Chase Manhattan Mortgage Corporation v. Advanta Corporation,
the United States District Court for the District of Delaware analyzed an
indemnification provision similar to the clause at issue in this case.’ The
Chase indemnification provision provided that: “[T]he Company [Advanta]
shall indemnify and hold buyer [Chase] . . . harmless from and against any
Losses suffered . . . resulting or arising from any breach of any
representation or warranty on the part of the Company . . . under this
Agreement ....”® The District Court held that the indemnification clause in
question was intended to apply to third party claims, and not to claims
between parties.”

Unlike Section 9.2 of the Purchase Agreement, Section 2.6(c) and

Section 2.5(d) of the Purchase Agreement contain specific fee-shifting

6
Ia.
72005 WL 2234608 (D. Del. 2005).
8 Id. at *22.
° Id.


What is the Date Upon Which Pre-Judgment Interest Should Begin to Accrue?

Pre-judgment interest began to accrue upon the “Completion of
Development and Commencement of Construction” as provided in the Purchase
Agreement. The Purchase Agreement sets forth two ways in which the
“Completion of Development and Commencement of Construction” can occur.
Section 2.6(a) provides that the “Completion of Development and Commencement
of Construction” will be satisfied if five conditions are met. The conditions
include: (i) all occupancy agreements and permits obtained; (ii) all turbine supply
agreements and other material agreements needed to commence construction
executed; (iii) all interconnection agreements secured; (iv) the PPA relating to the
project agreed; and (v) on-site construction of roads and foundations, as well as the
construction of the initial wind turbine for the project commenced.

Section 2.6(b) of the Purchase Agreement provides that the “Completion of
Development and Commencement of Construction” will occur upon the attainment
of the Commercial Operation Date. It is undisputed that the “Commercial
Operation Date” is December 18, 2012 and that the “Completion of Development
and Commencement of Construction” is June 11, 2012.

Deere contends that pre-judgment interest began to accrue on June 11, 2012.
Exelon argues that pre-judgment interest began to accrue on December 18, 2012.

Exelon contends that Deere is estopped from pursuing June 11, 2012 as the


IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEERE & COMPANY, a Delaware
corporation,

Plaintiff,

Vv. C.A. No. N13C-07-330 MMJ CCLD

EXELON GENERATION
ACQUISITIONS, LLC, a Delaware
limited liability company,

Defendant.

eee se SE

Submitted: August 18, 2016
Decided: November 22, 2016

Upon Plaintiff's Application for Fees, Expenses, and Interest
GRANTED IN PART
DENIED IN PART
OPINION

Peter J. Walsh, Jr., Esq., Matthew F. Davis, Esq. (Argued), Jacob R. Kirkham,
Esq., Potter Anderson & Corroon LLP, Attorneys for Plaintiff Deere & Company

David J. Margules, Esq., Geoffrey A. Kahn, Esq. (Argued), Matthew A. White,

Esq. (Argued), Ballard Spahr LLP, Attorneys for Defendant Exelon Generation
Acquisitions, LLC

JOHNSTON, J.


accrual date for pre-judgment interest because Deere used the “Commercial
Operation Date” as the operative date throughout litigation. The parties also
dispute whether the five conditions precedent listed in Section 2.6(a) of the
Purchase Agreement have been satisfied.

In order to rule that June 11, 2012 is the date upon which pre-judgment
interest should begin to accrue, the Court would need to consider disputed
evidence. The Court declines to do so. Such evidence would be outside the record
developed prior to the cross-motions for summary judgment.

Further, it appears that the fifth benchmark set forth in Section 2.6(a) was
not satisfied by June 11, 2012. This benchmark requires that the foundation for the
initial wind turbine be constructed. It is undisputed that as of June 11, 2012, zero
percent of the construction on the initial wind turbine had been completed.

Therefore, the Court finds that the pre-judgment interest start date is

December 18, 2012.


PROCEDURAL CONTEXT AND FACTUAL BACKGROUND

This litigation arises from an alleged breach of the Purchase Agreement
(“Purchase Agreement”) in 2010 between Plaintiff Deere & Company (“Deere”)
and Defendant Exelon General Acquisitions, LLC (“Exelon”). The Purchase
Agreement involved the sale of Deere’s wind energy business to Exelon, including
already-operating wind farms as well as wind farms at different stages of
development. The Purchase Agreement included a Power Purchase Agreement
(“PPA”). A PPA is necessary for the viability of a wind farm development project.
It is a contract to buy the electricity generated by the wind farm and secures
revenue for the project.

On February 5, 2016, Deere and Exelon filed Cross Motions for Summary
Judgment. By Memorandum Opinion dated June 2, 2016, the Court granted
Deere’s motion for Summary Judgment and denied Exelon’s motion for Summary
Judgment. The Court held that Deere did not breach the Purchase Agreement and
that Exelon was not entitled to recoupment of damages. On June 16, 2016 Deere
filed this Application for Fees, Expenses, and Interest.

ANALYSIS

Is Deere Entitled to Attorneys’ Fees Pursuant to § 9.2 of the Purchase
Agreement?

Delaware typically follows the “American Rule.” The American Rule


provides that litigants generally are responsible for their own litigation costs.' An
exception exists in contract litigation where a fee-shifting provision is present. The
fee-shifting provision must be a clear and unequivocal agreement in connection
with a dispute between parties involving a failure to fulfill obligations under the
contract.”

Section 9.2 of the Purchase Agreement contains a unilateral fee-shifting
provision:

Obligations of [Exelon]. (a) From and after the Closing, [Exelon]

shall indemnify, defend and hold harmless [Deere] . . . from and

against any and all Losses incurred by [Deere] by reason of, arising

out of, resulting from or related to: . . . (ii) any breach or

nonperformance of any of the covenants or agreements of [Exelon]

contained in this Agreement . . . . [emphasis added]

This Court held in TranSched Systems Limited v. Versyss Transit
Solutions, LLC,’ that the term “indemnify” in standard indemnity clauses
applies to third party actions.’ Standard indemnity clauses are not presumed
to apply to first-party claims. Otherwise, a typical indemnification

995

provision would “swallow the American Rule. In order for an

indemnification provision to cover fee-shifting among parties, the contract

; Mahani v. Edix Media Grp., Inc., 935 A.2d 242, 245 (Del. 2007).

Id.

3.2012 WL 1415466 (Del. Super.).

‘Id. see Oliver B. Cannon & Son, Inc. v. Dorr-Oliver, Inc., 394 A.2d 1160, 1165 (Del. 1978)
(stating that indemnity clauses normally apply only to third party claims).

> Senior Hous. Capital, LLC v. SHP Senior Hous. Fund, LLC, 2013 WL 1955012, at *44 (Del.
Ch.).