relating to the Wheatland
Facility, upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
representations, warranties and agreements hereinafter set forth, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Definitions.
(A)
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS HAVE THE MEANINGS
SPECIFIED IN THIS SECTION 1.1(A).
FOR CAPITALIZED TERMS USED IN THIS AGREEMENT
BUT NOT DEFINED IN THIS SUBSECTION (A), SEE SUBSECTION (B).
(1)
"AFFILIATE" HAS THE MEANING SET FORTH IN RULE 12B-2 OF THE GENERAL
RULES AND REGULATIONS PROMULGATED UNDER THE EXCHANGE ACT.
(2)
"ALLEGHENY MARKS" MEANS THE NAMES AND MARKS "ALLEGHENY ENERGY" AND
"ALLEGHENY" TOGETHER WITH ALL DERIVATIONS AND VARIATIONS THEREOF, AND THE
ALLEGHENY ENERGY, INC. CORPORATE LOGO, TOGETHER WITH ALL DERIVATIONS OR
VARIATIONS THEREOF.
(3)
"ANCILLARY AGREEMENTS" MEANS THE DEEDS, THE BILL OF SALE, THE
ASSIGNMENT AND ASSUMPTION AGREEMENT, THE SELLERS CONFIDENTIALITY AGREEMENT AND
ANY OTHER INSTRUMENTS OF SALE, TRANSFER, CONVEYANCE, ASSIGNMENT OR ASSUMPTION AS
MAY BE REQUIRED TO CONVEY THE ACQUIRED ASSETS IN ACCORDANCE WITH THIS AGREEMENT.
1
(4)
"ASSIGNMENT AND ASSUMPTION AGREEMENT" MEANS THE AGREEMENT BETWEEN
THE BUYERS AND THE SELLER PARTIES PURSUANT TO WHICH, AMONG OTHER THINGS, THE
SELLER PARTIES SHALL ASSIGN, AND THE BUYERS SHALL ASSUME, THE ASSUMED CONTRACTS,
IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT A.
(5)
"BILL OF SALE" MEANS THE BILL OF SALE BY WHICH THE TITLE TO THE
PERSONAL PROPERTY INCLUDED IN THE ACQUIRED ASSETS SHALL BE CONVEYED BY THE
SELLERS TO THE BUYERS, IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT B.
(6)
"BUSINESS DAY" MEANS ANY DAY OTHER THAN SATURDAY, SUNDAY AND ANY
DAY THAT IS A LEGAL HOLIDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN NEW YORK
CITY ARE AUTHORIZED BY LAW OR OTHER GOVERNMENTAL ACTION TO CLOSE.
(7)
"BUYERS' REPRESENTATIVES" MEANS THE ACCOUNTANTS, EMPLOYEES,
OFFICERS, DIRECTORS, COUNSEL, ENVIRONMENTAL CONSULTANTS, FINANCIAL ADVISORS AND
OTHER AUTHORIZED REPRESENTATIVES OF THE BUYERS AND THEIR AFFILIATES.
(8)
"COBRA" MEANS THE CONSOLIDATED OMNIBUS RECONCILIATION ACT OF 1985,
AS AMENDED, AND ANY SIMILAR APPLICABLE STATE LAW.
(9)
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(10)
"COMMERCIALLY REASONABLE EFFORTS" MEANS EFFORTS THAT ARE REASONABLE
FOR A PRUDENT BUSINESS ENTERPRISE IN CIRCUMSTANCES SIMILAR TO THOSE OF THE
PERFORMING PARTY, BUT THAT DO NOT REQUIRE THE PERFORMING PARTY TO EXPEND FUNDS
OTHER THAN EXPENDITURES THAT ARE CUSTOMARY AND REASONABLE IN TRANSACTIONS OF THE
KIND AND NATURE CONTEMPLATED BY THIS AGREEMENT IN ORDER FOR THE PERFORMING PARTY
TO SATISFY ITS OBLIGATIONS UNDER THIS AGREEMENT.
(11)
"CONFIDENTIALITY AGREEMENT" MEANS THAT CERTAIN CONFIDENTIALITY
AGREEMENT DATED AS OF OCTOBER 6, 2004, BETWEEN CINERGY CORP. AND AESC, INCLUDING
ANY AMENDMENTS OR WAIVERS THERETO.
(12)
"CREDIT AGREEMENT" MEANS THAT CERTAIN AMENDED AND RESTATED CREDIT
AGREEMENT DATED AS OF OCTOBER 28, 2004, AMONG AESC, THE LENDERS AND LOAN PARTIES
REFERRED TO THEREIN, CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT, AND
CITIBANK, N.A., AS COLLATERAL AGENT AND INTERCREDITOR AGENT.
(13)
"DEEDS" MEANS SPECIAL WARRANTY DEEDS, DULY EXECUTED BY WHEATLAND
LLC AND