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Title: |
Asset Purchase Agreement |
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Date: |
2005 |
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Preview shows 18KB of 82KB total |
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$40 |
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#1075138 |
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2 d23138exv10w1.txt ASSET PURCHASE AGREEMENT
Ex 10.1
EXECUTION VERSION
ASSET PURCHASE AGREEMENT
BETWEEN
SILVERLEAF RESORTS, INC.
AS SELLER,
AND
ALGONQUIN WATER RESOURCES OF TEXAS, INC.
AND
ALGONQUIN WATER RESOURCES OF MISSOURI, INC.
AND
ALGONQUIN WATER RESOURCES OF ILLINOIS, INC.
AND
ALGONQUIN WATER RESOURCES OF AMERICA, INC.
AND
ALGONQUIN POWER INCOME FUND
COLLECTIVELY AS PURCHASERS
DATED AS OF AUGUST 29, 2004
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") dated effective as of the
29 day of August, 2004 (the "Effective Date"), is by and between SILVERLEAF
RESORTS, INC., a Texas corporation (the "Seller"), and ALGONQUIN WATER RESOURCES
OF TEXAS, INC., a Delaware corporation ("Texas Purchaser"); ALGONQUIN WATER
RESOURCES OF MISSOURI, INC., a Delaware corporation ("Missouri Purchaser"),
ALGONQUIN WATER RESOURCES OF ILLINOIS, INC., a Delaware corporation (Illinois
Purchaser") and ALGONQUIN WATER RESOURCES OF AMERICA, INC., a Delaware
corporation and ALGONQUIN POWER INCOME FUND, a Canadian income trust
(collectively, the "Parent Purchaser", the Texas Purchaser, Missouri Purchaser,
Illinois Purchaser and Parent Purchaser collectively referred to as the
"Purchasers").
BACKGROUND
WHEREAS Seller owns water treatment plants, water wells, lines, wastewater
collection systems, wastewater treatment plants and certain other related assets
located at certain resorts ("Resorts") in Texas, Illinois and Missouri as
follows:
STATE RESORT LOCATION
----- ------ --------
Texas Holly Lake Wood County, TX
Hill Country Resort Comal County, TX
Piney Shores Resort Montgomery County, TX
The Villages Smith County, TX
Illinois Fox River Resort LaSalle County, IL
Missouri Holiday Hills Resort Taney County, MO
Ozark Mountain Resort Stone County, MO
Timbercreek Resort Jefferson County, MO
WHEREAS such water supply and distribution and wastewater collection and
treatment and all other related assets are utilized and necessary for the
provision of water supply and wastewater treatment services to the resort
communities and other customers at the locations indicated above (hereinafter
collectively called the "Facilities").
WHEREAS Seller desires to sell and Purchasers desire to purchase all assets
owned by Seller and used in the operation of the Facilities on the terms and
conditions set forth in this Agreement.
WHEREAS Seller also desires to sell and Purchasers desire to purchase all
real property owned and utilized by Seller which is necessary and utilized in
the operation of the Facilities, said real property being more particularly
described in Exhibit "A" attached hereto and incorporated herein by reference
(the foregoing real property being hereinafter collectively called the "Real
Property").
WHEREAS Purchaser intends to continue to conduct water supply and
wastewater treatment utility operations at each of the Facilities and desires
also to acquire the goodwill and
other intangible assets associated with or necessary for the conduct of such
operations at such Facilities (said operations conducted at the Facilities being
collectively called the "Utilities").
IN CONSIDERATION of the mutual promises of the parties; in reliance on the
representations, warranties, covenants, and conditions contained in this
Agreement; and for other good and valuable consideration, the parties agree as
follows:
AGREEMENT
ARTICLE 1
DEFINITIONS
1.01. SPECIFIC DEFINITIONS. Unless otherwise stated in this Agreement, the
following terms shall have the following meanings:
"Affiliate": Any Person that, directly or indirectly, controls, or is
controlled by, or under common control with, another Person. For the purposes of
this definition, "control" (including the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities or by
contract or otherwise.
"Applicable Law": All applicable provisions (domestic or foreign) of all
(i) constitutions, treaties, statutes, laws (including the common law), rules,
regulations, ordinances, codes and Orders of or with any Governmental Body, and
(ii) Governmental Approvals.
"Assets": As defined in Section 2.01 hereof.
"Assignment and Assumption": As defined in Section 9.01(c) hereof.
"Bill of Sale": As defined in Section 9.01(b) hereof.
"Claims": As defined in Section 2.01(f) hereof.
"CCN": means the certificate of convenience and necessity issued in respect
of the operation of the Utilities by the regulatory agency governing the
operation of such utilities in the state in which the utility is located.
"Closing": As defined in Section 2.07(c) hereof.
"Closing Date": As defined in Section 2.07(c) hereof.
"Code": The Internal Revenue Code of 1986, as amended.
"Consent": Any consent, approval, authorization, action, waiver, permit,
grant, franchise, concession, agreement, license, exemption or Order of,
registration, certificate, declaration or
filing with, or report or notice to, any Person (including foreign Persons),
including any Governmental Body.
"Cure Notice": As defined in Section 3.03 hereof.
"Damages": Any and all damages, claims, obligations, demands, assessments,
penalties, fines, liabilities (joint or several), costs (including compliance
costs), punitive damages, losses, diminution in value, defenses, judgments,
suits, proceedings, disbursements and expenses (including disbursements,
expenses and reasonable fees of attorneys, accountants, consultants and other
professional advisors and of expert witnesses, costs of investigation and
preparation, litigation and costs of settlement) of any kind whatsoever, whether
fixed or contingent, suffered or incurred by a Person.
"Deed": As defined in Section 9.01(a) hereof.
"Effective Date": As defined in the opening paragraph hereof.
"Environmental Law": Any and all federal, state, local, and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of Hazardous Materials or wastes
into surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials or wastes or the cleanup or other remediation thereof.
"Fixed Assets": As defined in Section 2.01(c) hereof.
"GAAP": Generally accepted accounting principles for financial reporting in
the United States, applied on a basis consistent with the basis on which the
balance sheet and any other financial statements were prepared.
"Governmental Approval": Any Consent of, from or with any Governmental
Body.
"Governmental Body": Any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency, authority or
instrumentality, domestic or foreign.
"Hazardous Material": Any waste, substance, material, smoke, gas or
particulate matter that: (i) is or contains asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum or petroleum-derived substances
or wastes, radon gas or related materials, (ii) requires investigation, removal,
regulation or remediation under any Environmental Law, or is defined, listed or
identified as a "hazardous material", "hazardous waste" "hazardous substance"
"toxic substance", "contaminant", or "pollutant" thereunder, or (iii) is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous or dangerous or is regulated by any
Governmental Body or Environmental Law.
"Illinois Assets": Means that portion of the Assets, Facilities and
Utilities which is located in the State of Illinois.
"Including" or "Includes": Means including without limitation or includes
without limitation.
"Inspection Period": As defined in Section 6.03 hereof.
"Knowledge": The terms "knowledge," "awareness," and "belief" and any
similar term or words of like import shall mean the current actual knowledge,
awareness or belief of a Seller following inquiry with respect to the subject
matter of the representation and/or warranty being given.
"Liability or Liabilities": Any commitments, debts, liabilities,
obligations (including contract and capitalization lease obligations),
indebtedness, accounts payable and accrued expenses of any nature whatsoever
(whether any of the foregoing are known or unknown, secured or unsecured,
asserted or unasserted, absolute or contingent, direct or indirect, accrued or
unaccrued, liquidated or unliquidated and/or due or to become due), including
any liability or obligation for Taxes.
"Lien": All mortgages, deeds of trust, claims, liens, security interests,
pledges, leases, conditional sale contracts, rights of first refusal, options,
charges, liabilities, obligations, agreements, easements, rights-of-way,
limitation, encroachment, powers of attorney, limitations, reservations,
restrictions, and other encumbrances of any kind.
"Missouri Assets": Means that portion of the Assets, Facilities and
Utilities which is located in the State of Missouri.
"Notices": As defined in Section 10.02 hereof.
"Objections": As defined in Section 3.03 hereof.
"Operating Agreements": As defined in Section 2.01(d) hereof.
"Order": Any order, writ, injunction, directive, decree, judgment, award,
restriction, decision or determination of, or agreement with, any Governmental
Body.
"Outside Date": Means the date which is one hundred fifty (150) days
following the Effective Date.
"Permits": All permits, authorizations, qualifications, certificates,
consents, approvals, registrations, variances, exemptions, rights-of-way,
franchises, privileges, immunities, grants, ordinances, licenses, waivers and
other rights of every kind and character (a) under any (i) Applicable Law, (ii)
Order or (iii) contract with any Governmental Body, or (b) granted by any
Governmental Body.
"Permitted Encumbrances": (i) Liens for Taxes and assessments not yet due
and payable or which are being challenged in good faith and with respect to
which adequate reserves have
been established in the Financial Statements and the amounts being challenged is
included in the adjustment to Working Capital pursuant to Section 2.05 hereof;
(ii) informational filings made by equipment lessors under the Uniform
Commercial Code; and (iii) landlord's liens created by statute and not by
affirmative action of any landlord.
"Permitted Exceptions": As defined in Section 3.03 hereof.
"Person": An individual, partnership, joint venture, corporation, company,
limited liability company, bank, trust, unincorporated organization,
Governmental Body or other entity or group.
"Proceeding": Any action, claim, suit, proceeding, litigation, arbitration,
mediation, investigation, inquiry, complaint, grievance, review or notice or
other process.
"Purchase Price": As defined in Section 2.04 hereof.
"Purchasers": As defined in the opening paragraph hereof and Purchaser
means any one of them.
"Real Property": As defined in the Recitals hereof.
"Release": Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous
Material into the indoor or outdoor environment, including, without limitation,
the abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material.
"Seller": As provided in the opening paragraph hereof.
"Services Agreement(s)" shall mean those agreements between the Seller and
the respective Purchaser, and guaranteed by the Parent Purchaser, setting out
terms, conditions and incorporating the principles set out in Schedule 7.06
hereof and governing the exclusive provision of water and/or wastewater services
by the Purchaser at the resorts operated by the Seller.
"Survey": As defined in Section 3.01 hereof.
"Taxes": Any federal, state, local or foreign income, franchise, sales,
excise, real or personal property, ad valorem or other Taxes, assessments, fees,
levies, imposts, duties, deductions or other charges of any nature whatsoever
(including interest and penalties) imposed by any Applicable Law.
"Texas Assets": Means that portion of the Assets, Facilities and Utilities
which is located in the State of Texas.
"Threatened": Any matter or thing will be deemed to have been Threatened
when used herein with respect to any party if that party has received notice
from the Person to whom the threat is attributable or such Person's agents,
which notice makes reference to and identifies the
matter or thing being threatened or that party observes an action by the Person
to whom the threat is attributable or such Person's agents that in the exercise
of reasonable and prudent business judgment would cause such party to believe
that the matter or thing is being threatened.
"Title and Survey": As defined in Section 3.03 hereof.
"Title and Survey Review Period": As defined in Section 3.03 hereof.
"Title Commitment": As defined in Section 3.02 hereof.
"Title Company": As defined in Section 3.02 hereof.
"Title Policy": As defined in Section 3.04 hereof.
"Transaction" or "Transactions": The acquisition of the Assets and the
performance of the other covenants and the consummation of the transactions
described in this Agreement.
"Transaction Expenses": The expenses incurred in connection with the
preparation, negotiation, execution and performance of this Agreement and the
consummation of the Transactions, including all fees and expenses of counsel and
representatives.
"Working Capital": Means the consolidated assets of the Facilities as of
12:01 a.m. on the Closing Date that are treated under GAAP as current assets
(including restricted cash) to which the Purchasers become entitled less
consolidated liabilities of the Facilities as of 12:01 a.m. on the Closing Date
that are treated under GAAP as liabilities for which the Purchasers become
liable. Notwithstanding anything contained in the preceding sentence, the
calculation of Working Capital shall include (i) as a current asset, any third
party account receivable for services rendered by the Utilities before the
Closing Date and (ii) as a current liability, any amount payable by the
Purchasers on or after the Closing Date in respect of goods or services supplied
to the Facilities before the Closing Date where no invoice for such amount has
been received in respect thereof before the Closing Date.
"Working Capital Threshold": Means an amount equal to ONE HUNDRED THOUSAND
DOLLARS ($100,000.00).
1.02. OTHER DEFINITIONS. Other terms shall have the meanings ascribed to
them elsewhere herein.
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