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Exhibit MSD 58 - Intergovernmental Cooperation Agreement between MSD & City of ArnoldSEWERAGE SYSTEM AGREEMENT THIS AGREEMENT, dated as of the 11th day of December, 2008 (regardless of when signed by the parties hereto), by and between The Metropolitan St. Louis Sewer District (herein referred to as the "District"), a body corporate and politic duly organized, and existing under the laws of the State of Missouri (herein referred to as the "State"), and the City of Arnold, Missouri, a Third Class City of the State of Missouri (herein referred to as the "Municipality"): Upon the permanent and continuous diversion of the Municipality's flow to the Project Facility this Agreenient shall supercede the existing Agreement dated March 3, 1982. WITNESSETH: WHEREAS, pursuant to and in accordance with the provisions of Article VI, Set tib 30, of the Constitution of the State of Missouri, The Metropolitan St. Low Sewer District was created and the Charter (herein referred to as the `flan" as amended on November 7, 2000) of the District was adopted on February 9, 1954; and WHEREAS, Section 3.020(7) of said Plan of the District empowers the District: "To contact with municipalities, districts, other public agencies, individuals, or private corporations, or any of them whether within or without the District, for the construction, use, or Maintenanc,e of common or joint sewers, drains, outlets, or disposal plants, or for the performance of any service required by the District"; and WHEREAS, Section 3.020(8) of said Plan, of the District empowers the District: "To contract with, and there under to permit municipalities, districts, other public agencies, indi- viduals, or private corporations, or any of them whether within or without the District, to connect with and use the facilities of the District. The rates for such service and connections shall be such Page l of 29 November 7, 2008 as may be agreed upon between the contracting parties"; and WHEREAS, the District, pursuant to its authorities and powers aforesaid, is the lead applicant for Federal and State water pollution control grant and loan assistance in the Lower Meramec River Basin comprising nine (9) major watersheds in St. Louis County, Missouri and four (4) major watersheds in Jefferson County, Missouri and, concomitantly therewith, has developed a regional sewerage system facility plan for the entire Lower Meramec River Basin, watershed known as the "201 Plan" and the "208 Plan"; and WHEREAS, Section 3.020(9) of said Plan of the District empowers the District: "To enter into and perform contracts, whether long-term or short-term, with any establishment, whether within or without the District, for the provision and operation by the District of sewerage facilities to abate or reduce the pollution of waters caused by discharges of wastes by such establishment, and the payment periodically by such establishment to the District of amounts at least sufficient to compensate the District for the cost of providing (including payment of principal and interest charges, if any) and operating and maintaining the sewerage facilities serving such establishment"; and WHEREAS, Section 3.020(10) of said Plan of the District empowers the District: "To enter into negotiations with the Federal Government and the State of Missouri and other states and political subdivisions thereof, or the agencies of anyof them, and apply for and obtain from any of them, any and all assistance and grants-in-aid that may be available"; and WHEREAS, the District is duly authorized pursuant to said Plan to undertake by contract the planning, financing, construction, maintenance, and operation of a regional system of trunk sewers and wastewater treatment plant or plants; and WHEREAS, pursuant to Sections 70.210, 70.220, and 250.010-250.250 of the Revised Statutes of the State of Missouri, the Municipality has the power to take any and all actions Page 2 of 29 November 7, 2008 required to construct, maintain or acquire by agreement wastewater treatment or wastewater treatment systems and to pay for the same, in whole or in part, out of the revenues of the Municipality or by the collection of charges for such services; and WHEREAS, the Municipality is authorized to pay a reasonable charge for wastewater treatment and disposal service to the District, based upon the volume discharged by the Municipality into the District's Project Facility, such charge to provide sufficient revenues for Operation and Maintenance Costs and for Capital Costs necessary to make alterations, additions, or improvements and for Local Project Costs related to that portion of the Project Facility reasonably attributable and allocable to the Municipality in accordance with generally accepted engineering principles; and WHEREAS, the District herein agrees to obtain all governmental approvals required by law for the engineering, construction, acquisition, ownership, operation and maintenance of the Project Facility by the District; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, fI' IS MUTUALLY AGREED AS FOLLOWS: I, DEFINITION OF TERMS All terms which are defined herein shall have the same meanings for all purposes of this Agreement, as amended and supplemented, and of any instrument or. document appertaining hereto (except where the context by clear implication otherwise requires). A. Billing Period shall, mean the period for which the prior three -months of service was received, B. BOD (Biochemical Oxygen Demand) shall, mean the quantity of oxygen utilized in five (5) days in the biochemical oxidation of carbonaceous and nitrogenous compounds and Page 3 of 29 November 7, 2008 certain inorganic materials in water or wastewater as determined by Standard Methods and expressed in milligrams per liter. C. Coital Costs shall mean the cost of capital replacements, alterations, additions and improvements related to the Project Facility, but not including Project Costs or costs related to increasing the capacity of the Project Facility and/or making improvements to provide service to Other Users. D. Chemical Oxygen Demand (COD) shall mean the quantity of oxygen utilized in the chemical oxidation of organic and oxidizable inorganic matter in water or wastewater as deterniined by Standard Methods and expressed in milligrams per liter. B. Connection Point(s) shall mean the physical point at which the Municipality's Collection System will be connected to the Project Facility, defined as the center of the structure, The Connection. Point shall denote the division of the District and the Project Facility, from the Municipality and its Collection System, said Connection Point also being the point, which divides all responsibility for construction and maintenance between the parties. Actual responsibility will be determined where the collection system pipe connects to the structure as built. The Connection Point shall be located at the following sites: 1. Connection Point A: A connection point located in a tract of land conveyed to "St. Louis County" as recorded in deed book 8042, page 323, of St. Louis County records, the location of which is more particularly described as follows: Commencing at the intersection of the East right-of-way line of a 20 foot wide private road as shown on "Appel's Subdivision Oa The Meramec" a subdivision recorded in plat book 12, page 113 of St. Louis County records, and the North right-of-way line of Telegraph Road; thence in a Northerly direction along said East right-of-way line a distance of 933 feet more or less to the Northwest corner of a tract of land conveyed to "St. Louis County" as recorded in deed book 8042, page 323, of St. Louis County records; thence leaving said East right-of-way, Northeasterly along the Northwesterly line of said "St. Louis County" tract a distance of 386 feet more or less to a point on said Northwesterly line; thence leaving said Northwesterly line, in a Southeasterly direction perpendicular to said Northwesterly line a distance of 214 feet more or less to the Connection Point. Page 4 of 29 November 7, 2008 2. Connection Point B: A connection point located in Lot 4 of "Anna 'i'. Harris Subdivision" a subdivision recorded in plat book 3, page 30 of Jefferson County records, the location of which is more particularly described as follows: Commencing at the Northwest corner of a tract of land conveyed to Glenn W. Ford as recorded in deed book 50I, page 839, of Jefferson County records, said corner lying on the Easterly right- of-way line of Fannie Road (15' wide) and the Southerly line of Lot 4 of "Anna T. Hanis Subdivision" a subdivision recorded in plat book 3, page 30 of Jefferson County records; thence Northwesterly along the Southerly line of said Lot 4, a distance of 15 feet more or less to the Southwest corner of said Lot 4 lying on the common right-of-way of `Burlington & Northern" Railroad (varied width) and Fannie Road (15' wide); thence Northeasterly along the West line of said Lot 4 also being the Easterly right-of-way of said `Burlington & Northern" Railroad, a distance of 239 feet more or less to a point on said West line and Easterly right-of-way; thence leaving said West line and Easterly right-of-way, in a Southeasterly direction perpendicular to said West line, a distance of 190 feet more or less to the Connection Point. F. Dew Allotted Share of Peak Flow shall mean the maximum instantaneous allowable rate of flow that may be discharged by the Municipality to the Project Facility; the maximum rate of flow from the Municipality that will be handled by the District without special or penalty charge. The peak flow of the Municipality shall not be based on the design peak flow of the Project Facility, peak flows from various areas not being additive. G. Design Allotted Share of Average Flow shall mean the maximum annual average daily allowable flow that may be discharged by the Municipality to the Project Facility; the Municipality's annual average daily flow for which the Project Facility is designed; the maximum annual average daily flow from the Municipality that will be handled by the District, except as otherwise provided herein. H. Design Allotted Share of BODE and Total Suspended Solids gas) Loads shall mean the Municipality's allowable BOD5 and Total Suspended Solids Loads that may be discharged over a period of twenty-four (24) hours based upon the average for thirty (30) consecutive days; the Municipality's share of the total design BOD5 and Total Suspended Solids for which facilities are designed in order to meet effluent criteria; the maximum BOD5 and Total Suspended Solids for twenty-four (24) hours average for thirty (30) consecutive days from the Page 5 of 29 November 7, 2008 Municipality that will be handled by the District without special or penalty charge except as otherwise provided herein. I. Executive Director shall mean the Executive Director for The Metropolitan St. Louis Sewer District as provided in Section 6.010 of the Plan of the District, or his designee or other duly authorized representative. L IDduotrial Crnm.ection Sewer shall mean that portion of sewer line required to carry the sewage of any industrial or commercial establishment from the last point of sewage entry on the premises to the Municipality's Collection System or to carry the discharge from any industrial pretreatment facility to the Municipality's Collection System. K. Industrial Waste shall mean the water -borne wastes, including contaminated cooling water, from industrial processes, as distinct from sanitary wastewater. L. Industrial User shall mean any person who discharges into the District's wastewater system from any source regulated under Section 307(b), (c), or (d) of the Clean Water Act or from any source listed in Division A, B, C, D, E, or I of the Standard Industrial Classification Manual or from any solid waste disposal operation such as, but not limited to landfills, recycling facilities, solid or hazardous waste handling or disposal facilities, and centralized wastewater treatment facilities (CWT's). M. Load shall mean the quantity of wastewater characteristics such as BOD5, TSS, or other constituents. N. Local Project Cost shall mean that part of the Project Cost that is not paid for by either State or Federal funding. O. Management Fee shall mean a fee equal to ten percent (10%) of the Operation and Maintenance Costs plus Capital Costs paid to the District to recover administrative and general overhead costs. Page 6 of 29 November 7, 2008 P. Municipality's Collection System shall mean those facilities for the collection and transmission of wastewater owned and operated by the Municipality prior to interconnection with the Project Facility, including future additions and improvements thereto, and those facilities constructed by the Municipality in order to effect the interconnection with the Project Facility. Q. National Pollutant Discharge Elimination System NPDES).Permit shall mean a permit issued under the National Pollutant Discharge Elimination System pursuant to Section 402 of the Clean Water Act for a discharge into the waters of the State. R. Normal Wastewater shall mean wastewater that, prior to any treatment, contains not more than 300 milligrams per liter of suspended solids and has a BOD5not greater than 300 milligrams per liter, and a COD not greater than 600 milligrams. S. Operation and Maintenance Costs shall mean the cost of operation, maintenance and administration directly related to the Project Facility. Such costs shall include, but not limited to: personnel costs, laboratory analysis, equipment costs, materials and supplies, operating costs for buildings and plants (utilities, maintenance of grounds, etc.) and administrative and general expenditures (telephone, copier costs, office supplies, etc.) and all other costs necessary for operation and maintenance of the Project Facility. T. Other User shall mean any person, firm, corporation, or other entity, whether municipal or otherwise, discharging sewage to the Project Facility by use of facilities other than the Municipality's Collection System. U. Peak Flow shall mean the maximum instantaneous rate of flow that is discharged by a User to the Project Facility. V. Person shall mean not only a natural person, corporation, or other legal entity, but also two or more natural persons, corporations, or other legal entities acting jointly as a fmn, Page 7 of 29 November 7, 2008 partnership, unincorporated association, joint venture, or otherwise. W. Pretreatment shall mean the reduction or elimination of pollutants or the alteration of the nature of pollutant properties in wastewater to a more acceptable state prior to discharge to the District's wastewater system. X. Pretreatment Regulations or Pretreatment Standards shall mean all applicable Federal rules and regulations implementing Section 307 of the Federal Water Pollution Control Act, as well as any non - conflicting State or local standards. In cases of conflicting standards or regulations, the more stringent thereof shall be applied. Y, Project Facility shall mean the facilities for the transmission, storage, treatment, recycling, and reclamation of industrial and domestic wastewater, to be constructed in ac- cordance with Section la of this Agreement, and includes any device, facility, structure, equipment or works owned or used by the District, for the purpose of the transmission, storage, treatment, recycling, or reclamation of industrial and domestic wastes, or necessary to recycle or reuse water at the most economical cost over the estimated life ofthe system, including outfall sewers, pumping, power, and other equipment, and their appurtenances, extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable, recycled supply such, as standby treatment units and clear well facilities; and any works, including easement access rights and property acquisition, that will be an integral part of the treatment process or are used for ultimate disposal of residues resulting from such treatment as described in Attachment A.. Z. Project Cost shall mean all reasonable and necessary costs and expenses incurred by the District in designing, financing, and constructing the Project Facility, including but not limited to: costs and expenses for obtiining necessary permits, licenses, approvals and grants for design and construction; architects', contractors', and engineers' fees; the cast of labor, material, Page 8 of 29 November 7, 2008 supplies, and services actually used in design and construction; fees for legal and consulting services; land and easement acquisition costs (except as provided in Section III with respect to the acquisition of certain easements necessary for the Municipality to construct portions of its Collection System in St. Louis County); debt service; interest on bonds or other obligations issued by the District to finance the Project Cost. AA. Sanitary Wastewater shall mean wastewater emanating from the sanitary conveniences, including toilet, bath, laundry, lavatory, and/or kitchen sink of residential and non- residential sources, as distinct from industrial waste. BR Service (dares shall mean the Operation and Maintenance Costs plus the Capital Costs and Management Fee. CC. Sewage is used interchangeably with, and shall have the same meaning as, the term "Wastewater." DD. Standard Industrial Classification Manual (SIC Manual) shall mean the latest edition of said publication by the Executive Office of the President, Office of Management and Budget. EB. Storm Water Inflow shall mean any flow occurring during or immediately following any form of natural precipitation and resulting there from and entering the sanitary sewers of the Municipality's Collection System. FF. Total Suspended Solids (TSS) shall mean all matter in water, wastewater, or other liquids; that is retained on a filter as determined by Standard Methods and expressed in milligrams per liter. Total Suspended Solids is also known as Nonfilterable Residue (NFR). GG. 201 FLAN shall mean the document entitled "Final 201. Facility Plan, Lower Meramec River Basin" by The Metropolitan St. Louis Sewer District dated September, 1979, and approved by the Division of Bnvirormiental Quality of the Missouri Department of Natural Resources on February 27, 1980, together with the associated Environmental Impact Statement Page 9 of 29 November 7, 2008 (EPA 907/9-79-004) (EPA-7-MO-St. Louis, St. Louis Con ty-WWTP-79), approved by the Environmental Protection Agency on July 11,1979. HTd. 208 PLAN shall mean the document entitled "St. Louis, Missouri Water Quality Management Plan - Areawide Waste Treatment Management Study (208)" by the East-West Gateway Coordinating Council dated May, 1978, as approved by the Missouri Clean Water Commission on February 23, 1979, certified by the State of Missouri on May 10, 1979, and by the United States Environmental Protection Agency on December 27, 1979. II. User shall mean any person who discharges, or causes the discharge of wastewater into the District's wastewater system or who discharges or causes the discharge of storm water or any NDPES permit regulated effluent or any other waste into the District's storm water system or any person served by the District's system. IL Waste shall mean any material other than unpolluted water that is accidentally or purposely discarded into the District's system. KK. Wastewater shall mean the water -borne wastes, industrial waste and/or sanitary wastewater as defined herein, emanating from residential and non-residential sources together with such groundwater, surface water, or storm water as cannot be avoided. IL GENERAL PROVISIONS A. Securing of Grants The District and the Municipality agree that they shall cooperate in securing grants to make any necessary improvements to the Municipality's Collection System. The District shall assist the Municipality in securing any State and Federal grants for which the Municipality is eligible. B. Ordinances Both parties agree to enact ordinances authorizing all actions necessary and proper for the Page 10 of 29 November 7, 2008 execution of this Agreement. C. Authorized Entry Any duly authorized employee of the District bearing proper credentials and identification shall be permitted access to such premises within the Municipality as may be necessary for the purpose of inspection and observation, measurement, sampling and testing, in accordance with the provisions of this Agreement. D. gnfqrcam.ent of Regulations The Municipality agrees to conform with and enforce all minimum standards, ordinances, rules, regulations and requirements of the District and all applicable State and Federal laws, rules, and regulations concerning wastewater discharges, including pretreatment regulations, standards and prohibitions, monitoring, and reporting within the Municipality's Collection System. Wastewater emptied into the District's Project Facility from the Municipality's Collection System shall be in conformity with the current ordinances and current regulations pertaining to sewers or sewage within the District and/or in accordance with all State and Federal laws, rules, and regulations, whichever is the most restrictive. Wastewater not in conformity with such rules and regulations shall not be permitted to flow through the sewers of the Municipality into the Project Facility. E. Amendments - Federal and State Regulations The Municipality and the District agree to abide by any changes in this Agreement made necessary in order to comply with any revisions or amendments to State or Federal laws, rules, or regulations. F. Successors Subject to the terms and conditions of this Agreement, wherever the District or the Page 11 of 29 November 7, 2008 Municipality, as the case may be, is referred to herein, such provision shall be deemed to include the successors of the District or the Municipality, as the case may be, whether so expressed or not. Subject to the terms and conditions of the Agreement, all of the covenants, stipulations, obligations and agreements by or on behalf of and other provisions for the benefit of the District or the Municipality contained herein shall bind and shall inure to the benefit of such successors and shall bind and shall inure to the benefit of any officer, board, district, commission, authority, agent, or other instrumentality to whom or to which there shall be transferred by or in accordance with law any powers, duties or functions of the District or the Municipality, respectively, or of its successor, the possession of which is necessary or appropriate in order to comply with any such covenants, stipulations, obligations, agreements, or other provisions hereof. C. Design Review The District shall have the right to review, for informational purposes and without charge to the Municipality the designs, specifications, and criteria for additions or modifications to any portion of the Municipality's Collection System connected directly or indirectly to the Project Facility; provided, however, that nothing in this paragraph or this Agreement shall be construed as giving the District a right of approval or disapproval of such additions or modifications_ H. Plans and Specifications Relating to Industrial Wastewater Treatment Plans, specifications, and any other pertinent information relating to treatment or pretreatment facilities, holding tanks, control and neutralization equipment or other facilities to be utilized in the treatment orcontrol of Industrial Wastewater discharged to the Municipality's Collection System shall be submitted for review to the District and no construction of such facilities shall be commenced until• said plans, specifications, and information are approved by the District, which approval shall not be unreasonably withheld if the plans, specifications, and information submitted shall comply with the published standards of the District. Page 12 of 29 November 7, 2008 I. Inspection and Testing The Municipality shall, with respect to property owned by it or under its control, allow the District Industrial Waste Testing personnel and such personnel from the State or Federal agencies, upon the presentation of proper credentials: (1) To enter premises where an effluent source is located or in which any records arc required to be kept under the terms of this Agreement; and (2) At reasonable times to have access to or copy any records required by this Agreement, State or Federal laws, or regulations to be kept by the Municipality, and (3) To inspect, repair or adjust any monitoring equipment or monitoring method required by the terms of this Agreement; and (4) To sample any User of the Collection System for pollutants and wastewater flow. The Municipality shall, when requested under reasonable circumstances, assist District personnel in making such investigations of property and inquiry of persons discharging sewage into the Municipality's Collection System within the boundaries or jurisdiction of the Municipality. I. Reports and Records Persons discharging sewage to the Collection System of the Municipality 'hall make all reports required by Municipal ordinances, rules or regulations directly to the Municipality. The Municipality shall require within its boundaries or jurisdiction that all such reports be made to it and shall cause copies of all such reports to be sent to the District, upon request by the District. The Municipality agrees to furnish and make available to the District any and all Municipal records, information, plans, and other data necessary for the District's establishment, operation, and maintenance of the Project Facility, and for the establishment of the sums to be paid by the Municipality to the District pursuant to Section IV of this Agreement. The District agrees to provide an accounting of Project Costs to the Municipality as various portions of the Project Facility are scheduled and programmed, and continuing until the Page 13 of 29 November 7, 2008 Project Facility is completed. The accounting shall itemize and explain all costs to be included in the Project Cost, the basis for annual amortization, and the cost of the Municipality's attributable and allocable share thereof. The District shall maintain separate accounting of Operation and Maintenance Costs and Capital Costs related to the Project Facility. The District agrees to furnish upon request to the Municipality, at intervals not to exceed twelve months starting with commencement of service and thereafter coinciding with the District's fiscal year, such accounting records and all other information, plans and data of the District which the District has utilized in determining Operation and Maintenance Costs and Capital Costs related to the Project Facility and in calculating the Municipality's attributable and allocable share thereof. Ill. CONSTRUCTION OF PROJECT FACILITY' AND CONNECTION TO COLLECTION SYSTEM A. Location of Facility The District agrees to design, construct, and operate the Project Facility as soon as is reasonably practical and to obtain all necessary governmental approvals for the design, engineering, construction, acquisition, ownership, operation, and maintenance of the Project Facility. The Project Facility shall be located at the following site: A tract of land as described as the MSD Mera nec Treatment Plant, Boundary Adjustment Plat recorded in Plat Book 352, Pages 594 — 595 in St. Louis County, Missouri. The District may expand the Project Facility from time to time beyond the Municipality's Design Allotted Share as the District deems necessary, without cost to the Municipality, The District may connect Other Users to the Project Facility, provided that the District meets the obligation to the Municipality to provide the Design Allotted Share set forth herein and provided the District does not reduce the quantity of treatment provided to the Municipality at any time. Page 14 of 29 November 7, 2008 Should the Municipality require additional capacity beyond its Design Allotted Share and should such additional capacity require construction beyond that contemplated herein, the parties shall attempt to reach a mutually satisfactory agreement on a method of financing construction for such additional capacity and, the District agrees that it shall provide the additional capacity if the Municipality agrees to bear the entire cost, if any. B. Connection to Project Facility The Municipality hereby agrees that it will connect the Municipality's Collection System to the Project Facility by constructing a gravity sewer to the Connection Point(s). The date of connection was November 8, 2007. The Municipality shall pay all costs relating to the construction of the gravity sewer pipes connecting the Collection System to the Project Facility at the Connection Point(s), and the cost of physical connection(s). 1V. TREATMENT DESIGN ALLOTTED SHARE The District hereby agrees to design and construct the Project Facilityto provide the following Design Allotted Share capacity of the Project Facility to the Municipality: (I) Design Share for User's Average Annual Flow in 1,000 gallon units per 4,500 operating day: (2) Design Share for User's Peak Flow in 1,000 gallon units per twenty-four (24) 18,000 hour day: V. FINANCING THE PROJECT FACILITY A. Financing the Project Facility The Local Project Cost for the Project Facility (which shall include the cost of land and Page 15 of 29 November 7, 2008 easement acquisition) shall be borne equitably by the Municipality and all Other Users. The Municipality's proportionate share of the Local Project Cost for the Project Facility shall be calculated in accordance with Attachment A. The Municipality shall be excluded from the cost of constructing facilities necessary to connect any Other User to the Project Facility. The Municipality shall pay to the District its proportionate share of each phase of the Local Project Cost for the Project Facility in equal quarterly installments with annual interest over a period of twenty-five (25) years, billing and payments shall commence Jsr wsiry 2008. The annual interest shall be that rate of interest which is the average rate of interest paid on municipal revenue sewerage bonds, rated "AA" or its equivalent, on a regularly established market for such bonds, as of the date the District first advances funds for the construction of the Project Facility. The Municipality and the District have agreed to a rate of 4.35 % per annum based on the October 2003 start of construction of the phase I work as defined in Attachment A. The rate of interest charged for future phases will be determined as described above. B. Financing Change Order Numbers 8,.11.13 and 16 The total amount of change order numbers 8,11, 13, and 16, associated with the Lower Meramec River System Improvements project (95066), Telegraph Road Drop Shaft, billed to the Municipality was S842,161.72. Of this total, the Municipality paid $662,161.72 to MSD on October 8, 2008. Both parties agree that the difference of $180,000.00 will be resolved pursuant to Section XIV of this agreement. This Sewerage System Agreement supersedes the Intergovernmental Cooperation Agreement executed on May 23, 2005. C. Charge for Late Payments Any monies owed that remain unpaid pursuant to a payment schedule or due date as indicated in this agreement shall bear interest, equal to one and one-half percent (1 54 %) per month or 18% annum, until such time as the balance is paid in full. Page 16 of 29 November 7, 2008 VI. RATES FOR SERVICE BY THE DISTRICT A. Service Charges for the Project Facility. The Municipality shall pay to the District.a service charge for treatment and disposal of wastewater delivered to the Project Facility. The District shall bill the Municipality such service charge at the end of each billing period and the Municipality shall make payment to the District within thirty (30) days of the billing. The service charge shall commence upon permanent and continuous diversion of the flows from the Municipality's Collection System to the Project Facility. The service charge to be billed to the Municipality and all Other Users shall be based on Operation and Maintenance Costs, the Capital Costs and a Management Fee equal to ten per cent (10%) of the Operation and Maintenance Costs and Capital Costs. The Municipality's Operation and Maintenance Costs for the billing period shall be calculated as the proportional share of the Municipality's total metered sewage volume delivered to •the Project Facility during the billing period to the total metered volume delivered to the Project Facility by the Municipality and all other Users. The Municipality's Capital Costs shall be based on their share of the actual cost incurred during the previous year by the District for expenditures over and above those included in the Operations and Maintenance Costs. Payments shall be made in equal installments based on the billing period over the course of the next year. To facilitate billing, the District agrees that it shall maintain accounting records relating to the Operation and Maintenance Costs and Capital Costs attributable to the Project Facility, separate and apart from accounting records relating to any other District facility. Such records shall be audited annually by a certified public accountant and shall be available for inspection by elected or administrative officials of the Municipality at reasonable times. Page 17 of 29 November 7, 2008 B. Special Service Charges Costs incurred by the District in assisting in the location and elimination of prohibited discharges within the Municipality's Collection System shall be borne by the Municipality. Any costs incurred by the District will be billed to the Municipality. C. State or Federal Feed The Municipality shall be responsible for its share of cost incurred by the District as assessed by the state and/or federal regulators. D. Charge for Lath Payments Any charges billed that remain unpaid by the due date indicated on the bill rendered shall bear interest, equal to one and one-half percent (1 Js %) per month or 18% annum, until such time as the balance is paid in full. VIL COLLECTION SYSTEM AND CONNECTIONS A. Risibility for Collection System The Municipality shall retain the responsibility for construction, operation, maintenance, and ownership of facilities comprising its Collection System and future additions thereto and shall retain all contractual and managerial obligations associated with such Collection system facilities, subject to the rights of the District as expressly set out in this Agreement. The Municipality agrees to maintain in good repair its sewers connected to the Project Facility and to reduce infiltration/inflow to levels that are consistent with existing and any future District requirements. B. Other User's Right to Connect The Municipality agrees to allow any Other User within its watershed to connect to the Municipality's Collection System, provided that the Municipality's Collection System has sufficient reserve capacity to carry the total flow and the total flow does not exceed their Design Page 18 of 29 November 7, 2008 Allotted Flows. C. Municipality's Collection System and Centrolof Connections Sewer connections to the Municipality's Collection System that are Municipal or Sanitary and Improvement Districts under the jurisdiction of the Municipality shall be controlled by the Municipality. Current records will be maintained by the Municipality and made available to the District upon request by the Executive Director or duly authorized representative. New connections shall be limited to wastewater only and the number of connections authorized within the Municipality's Collection System shall be the sole responsibility of the Municipality and its duly authorized representatives. D. Stp;m Water Connections Prohibited The municipality shall not make or permit to be made any storm water connections which will contribute directly or indirectly into the Municipality's Collection System, this includes but is not limited to storm water run-off from surface drains; ditches; streams; storm sewers; roof, area -way or foundation drains; or any other source. The Municipality shall work as expeditiously as possible to eliminate all existing storm water connections to the Municipality's Collection System. After the date of this Agreement, construction specifications for all sewers constructed in the Municipality's collection System shall provide that infiltration of ground water shall not exceed 200 gallons per inch diameter per mile in 24 hours. VEIL INDUSTRIAL WASTE CONTROL The Municipality shall enact and enforce ordinances embodying the following standards within the Collection System jurisdiction of the Municipality. A. P: phibited f scharg_e5 No person shall discharge or convey, or permit or allow to be discharged or conveyed to the Municipality's Collection System any wastewater containing pollutants of such character or Page 19 of 29 November 7, 2008 quantity that will: (1) not be susceptible to treatment or interfere with the process or efficiency of the Project Facility treatment system; or (2) constitute a hazard to human or animal life, or to the stream or water course receiving the Project Facility effluent; or (3) violate pretreatment regulations or standards; or (4) cause the Project Facility to violate its NPDES permit or applicable receiving water standards. B. Toxic Substanceq Any toxic substances in amount exceeding standards promulgated by the Administrator of the United States Environmental Protection Agencypursuant to Section 307(a) of the Federal Water Pollution Control Act, and chemical elements or compounds, phenols or other taste or odor production substances, or any other substances which are not susceptible to treatment or which may interfere with the biological processes or efficiency of the Project Facility's treatment system, or that will pass through the system, shall not be discharged. C. Excessive Discharge late. Wastewater at a flow rate or containing such concentrations or quantities of pollutants that exceed for any time period longer than fifteen (15) minutes more than five (5) times the average twenty-four (24) hour concentration, quantities or flow during normal operations and which would cause a treatment process upset and subsequent loss of treatment efficiency shall not be allowed. D. PreaTatrncat Facilities Operation If pretreatment or control of waste flows is required, such facilities shall be maintained in good working order and be operated as efficiently as possible by the person discharging such Page 20 of 29 November 7, 2008 waste at his own cost and expense, subject to the requirements of all applicable rules, regulations, codes, ordinances, and laws. E. Hazardous Wasted It is agreed and understood that the parties to this Agreement are, or may be subject to Section 311 of the Federal Water Pollution Control Act, as it applies to oil and hazardous wastes, and to any applicable State law or legislation, under the authority preserved by Section 510 of the Federal Water Pollution Control Act. F. Enforcement of Regulations The Municipality agrees to conform with and enforce all ordinances, rules, regulations and requirements of the District pertaining to the collection and disposal of Industrial Wastewater, and both parties agree to conform with all applicable State and Federal laws, rules and regulations_ IX. INDUSTRIAL MONITORING AND REPORTING To comply with regulatory requirements, all industries classified as existing or new sources by the United States Environmental Protection Agency, having either acceptable or unacceptable wastes, must file with the District all reports and analyses required by District ordinances, rules and pretreatment regulations of the flow and strength characteristics of their wastewater discharge in terms of BODs, suspended solids, grease, PH, categorical pretreatment standards and any other parameter required by the District or the United States Environmental Protection Agency or the Missouri Department of Natural Resources to comply with the Gal, Pretreatment Regulations, Pretreatment Standard, NPDES Permits or sludge disposal regulations. Industries regulated by the Pretreatment Regulations must file all required reports and submit self -monitoring reports semi-arninnily to the District during months selected by the District for reporting by regulated industrial subcategories. Reporting of information by Page 21 of 29 November 7, 2008 industries not regulated by Pretreatment Regulations will be done according to District ordinance. From time to time the District may require 24 hour flow proportion composite samples to be split and given to the District Industrial Waste Division Laboratory for verification. Such samples shall be representative of a normal average production day. Any additional costs for obtaining the additional samples or testing shall be paid for by the Industrial User involved. Measuring, sampling and analysis of wastewater will be conducted in a manner that will reflect the amounts and characteristics of the wastes being discharged into the Project Facility, and in accordance with uniform procedures as specified in Standard Methods For The Examination Of Water And Wastewater, published jointly by the American Public Health Association, the American Water Works Association and Water Pollution Control Federation, or any other methods developed by and/or acceptable to the United States Environmental Protection Agency. X. MEASUREMENT — SAMPLING AND TESTING A. Facilities and Responsibility The District will include in the Project Cost monies expended for the construction of measurement, sampling, and analysis facilities and equipment. The -District will include in Operation and Maintenance Cost monies expended for the sampling and analysis of industrial, municipal, and other wastewaters considered necessary by the District. B. Flow Recorder To facilitate a fair and equitable charge being billed by the District, the Municipality agrees to the installation, at the Municipality's expense, of automatic flow recorders to be approved by and operated by the District in the Municipality's jurisdictional limits and immediately upstream of the Connection Point(s) and at such other locations as the parties hereto Page 22 of 29 November 7, 2008 may mutually agree upon. in writing. C. Independent Calibration The parties hereto agree that within 60 days of execution of this agreement the automatic flow recorders will be calibrated by an independent calibration firm,. A firm mutually agreed to by both parties will be hired, at MSD's expense, to perform annual calibration and provide a certification form to both parties. Both parties will be notified when the calibration will be performed. D. ,Sampling Devices To facilitate a fair and equitable measurement of normal wastewater loads being discharged into the District's collection system, the Municipality agrees to the installation, at the Municipality's expense, of automatic sampling devices to be approved by and operated by the District in the Municipality's jurisdictional limits and immediately upstream of the Connection Point(s) and at such other locations as the parties hereto may mutually agree upon in writing. E. Reporting New Industries The person or department authorized to issue building permits within the jurisdictional limits of the Municipality shall notify the District of any new industries locating within such jurisdictional limits as soon as such location is known to such person or department. F. Admission to Property Whenever it shall be necessary for the purposes of monitoring compliance with any applicable laws, rules, or regulations, or with the provisions of this Agreement, District personnel, upon the presentation of proper credentials, may enter upon any property or premises at reasonable times for the purpose of: (1) copying any records required to be kept under the provisions of this Agreement; and (2) inspecting any monitoring equipment or methods; and Page 23 of 29 November 7, 2008 (3) sampling any discharge of wastewater to the Municipality's Collection System. District personnel may enter upon such property at any hour under emergency circumstances. G. Protection from Accidental Discharge Each Industrial User shall provide protection from accidental discharge of prohibited materials or other wastes regulated by District ordinances. Facilities to prevent accidental discharge of prohibited materials shall be provided and maintained at the Industrial User's own, cost and expense. Detailed plans showing facilities and operating procedures to provide this protection shall be submitted to the District for review, and shall be approved by the District before construction of the facility. Review and approval of such plans and operating procedures shall not relieve the Industrial User from the responsibility to modify its facility as necessary to meet the requirements of District ordinances. H. Reporting of Accidental Discharge If, for any reason, an Industrial User does not comply with orwill be unable to comply with any prohibition, limitation, or standard in District ordinances, the Industrial User responsible for such noncompliance shall immediately notify the District and the Municipality so that corrective action may be taken to protect the Project Facility. In addition, a written report addressed to the Executive Director of the District detailing the date, time, and cause of the accidental discharge, the quantity and characteristics of the discharge and the corrective action, if any, taken to prevent future discharges, shall be filed by the responsible Industrial User within five (5) days of the occurrence of the noncompliance. L Mold Harmless The Municipality agrees that authorized personnel of the District may malce such entry onto the lands of the Municipality as may be necessary to permit necessary measuring and sampling of wastes of the Municipality discharges into the Project Facility and for all other Page 24 of 29 November 7, 2008 necessary purposes in connection with the acquisition, construction, operation, repair, and ice of the Project Facility. The District agrees to hold Municipality harmless from any and all claims, including reasonable attorneys' fees and costs, made for property damage or bodily injury resulting from the action of the Disstrict's employees or agents occurring on the property of the Municipality and while acting in the course of District employment XL DAMAGES TO THIRD PARTIES The Connection Point(s) shall initially determine the division of responsibility between the Municipality and the District with respect to their liability for damages caused to third parties, such that the parties hereto shall be liable to third parties for blockages, backups, and other maintenance breakdowns occurring within their respective areas of responsibility. SEVERABILITY If any term, covenant, or condition of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant, or condition to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. XIII. ESCAPE CLAUSE If found to be in the best interest of the public and the District, non-compliance with this agreement may be reason for termination of tit of flows but not termination of any future financial obligations associated with phase 2 and 3 as defined in Attachment A. %IV. DISPUTE RESOLUTION Any dispute arising out of this Agreement will be resolved, on a confidential basis, by arbitration. To begin the process either party may deliver to the other party a written notice describing the dispute and the demand. The parties agree to meet within 30 days of the receipt of the demand and Page 25 of 29 November 7, 2008 in good faith and using commercially reasonable efforts try to resolve the dispute by negotiation. If 45 days after this meeting the dispute remains unresolved either party may start binding arbitration. A • single arbitrator jointly selected by the parties shall conduct the arbitration. If the parties are unable to agree upon an arbitrator, they shall apply jointly to the Federal Mediation and Conciliation Service which shall furnish a list of at least five (5) arbitrators from which the parties shall select one by alternately stag off the others, the party seeking arbitration striking first. The decision of the arbitrator shall be final and binding upon the parties. The Arbitrator shall not have authority to alter, amend change or add to the provisions of this Agreement. Each party will pay the fees of its own attorneys, expenses of witnesses and all other expenses and costs in connection with the presentation of their case. The arbitration costs, including but not limited to, the arbitrator's fees, costs of records or transcripts and administrative fees will be borne equally by the parties. Neither arbitration under this section nor any legal action, regardless of its form, related to or arising out of this agreement may be brought more than. two (2) years after the cause of action first accrued. XV. SECTION HEADS All section and paragraph headings are inserted for convenience only and will not affect the construction or interpretation of this Agreement. XVI. EXECUTION OF COUNTERPARTS This Agreement may be simultaneously executed in several counterparts, each of which so executed shall be deemed to be an original, and such counterparts together will constitute but one and the same Agreement, which will be sufficiently evidenced by any such original counterpart. XVIL NOTICE Any notice hereunder to the District shall be deemed to be property served if delivered or mailed to the District at Executive Director Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 Any notice hereunder to the Municipality shall be deemed to be properly served if Page 26 of 29 November 7, 2008 delivered or mailed to the Municipality at: City Administrator 21017effco BIvd. Arnold, Missouri 63010 Page 27 of 29 November 7, 2008 IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above written. THE CITY OF ARN MiSSOURI By:By: Mark Powell, Mayor ]e ATTEST BY: THE METROPOLITAN ST. LOUIS SEWER. DISTRICT ATTEST BY: By: �Xi�iL,�7.1 By: Dian a aller, City Clerk Karl T STATE OF MISSOURI COUNTY OF JEFFERSON On thisof ) SS. ) in the year 2008 before me, a Notary Public in and for said state, personally appear Mark Powell, the Mayor of the City of Arnold, Missouri, known to me to be the person who executed the within Contract on behalf of the City of Amold, Missouri, and acknowledged to me that the executed the same for the purpose therein stated. In Testimony Whereof, I have hereunto set my hand and affixed my official seal. qtThPublic Y " NOTARY SEAL " Pamela M. Migneco, Notary Public Jefferson County, State of Missouri My Commission Expires 2I26/2O11 Commission Number 073908828 Page 28 of 29 November 7, 2008 STATE OF MISSOURI ) ) SS. CITY OF ST. LOUIS ) On this i day of the year 2008, before me, a Notary Public in and for said state, personally appeared Jeffrey Theerman, the Executive Director of The Metropolitan St. Louis Sewer District, known to me to be the person who executed the within Contract on behalf The Metropolitan St. Louis Sewer District, and acknowledged to me that he executed the same for the purposes therein stated. In Testimony whereof, I have hereunto set my hand and affixed my official seat Page 29 of 29 November 7, 2008 November 1, 2007 LOWER MERAMEC RIVER SYSTEM IMPROVEMENTS (95066) UPDATED PRELIMINARY FLOW SHARE ESTIMATES PARTICIPANT Metropolitan St. Louis Sewer District Flow Arnold Flow Total Average Daily Flows (mgd) Metropolitan St. Louis Sewer District Flow Ratio Arnold Flow Ratio EXISTING PHASE I PHASE II PHASE III 1.50 12.20* 23.50 43.50 3.00 4.50 4.50 4.50 4.50 16.70* 28.00 48.00 33% 73% 84% 91% 67% 27%* 16% 9% Values forwarded to Arnold dated July 24, 2002. MUD current values are 10.50, 15.00, and 30% respectively. WWTP COLLECTION WVVTP COLLECTION SHARE SHARE COST COST DESIGN SERVICES COSTS PERCENT PERCENT SHARE SHARE E-$97 WWTP Design $6,835,322 R 9.00% $615,119 E-898 Lift Station/Tunnel Design $3,665,940 F 6.00% $219,966 Design Costs Subtotals $10,501,262 R $615,179 $219,956 CONSTRUCTION PROJECTS 95066E Site Preparation $1,292,400 R 9.00% $116,316 95066D Slte Preloading Phase I $9,661,144 F 9.00% $889,503 95066M WWTP Cutfall Sewer $6,963,006 F 9.00% $628,871 95066S Wetlands Mitigation $222,692 F 9.00%$20,042 95066A Wastewater Treatment Plant $82,460,523 R 9.00% $7,421,447 95066K Electrical Supply (Sub, Primary & Secondary) $3,237,902 R 5.0096 4.00% $161,895 $129,516 95066P Site Preloading Phase II $2,386,516 E 9.00% $214,786 95066J Natural Treatment Area (Grant) $2,668,002 •E 9.00% $240,120 95066F Educational/Recreational Facility (Grant) $3,416,957 E 9.00% $307,526 950661-I Site Restoration/Landscaping $201,600 E 9.00%$18,144 95066E Baumgartner Tunnel $55,945,000 R 3.00% $1,678,350 Arnold Drop Shaft $772,830 F 9.00% $69,555 95066L Lift Station (includes 95086L1) $32,567,051 R 9.00% $2,931,035 95068N Baumgartner lagoon Closure $3,910,000 R 0.00% $0 95066R Maltase Creek Sewer $2,392,834 F 0.00% $0 Construction Costs Subtotals $208,098,257 R $9,996,451 $4,808,455 CONSTRUCTION MANAGEMENT E-977 WWTP Construction Management (A1) $7,870,000 R 9.0096 $708,300 E-897 WWTP CM Services/Design (A-SDC) $3,170,678 R 9.00% $285,361 E-985 Lift Station Construction Management (81) $5,450,000 R E-898 Lift Station CM Services/Design (B-SDC) $1,514,860 F Construction Management Costs Subtotals $18,005,538 R OTHER COSTS Meramec Lagoon Cell No. 1 Closure $1,207,549 F 9.00% Meramec Lagoon Cell No. 2 & 3 Aeration $243,880 F 9.00% Montgomery Watson (Facility Plan Update) $430,000 F 9.00% Earth Tech (Grant Application) $146,465 F 9.00% Archaeological Research Center Phase I $3,985 F 9.00% Archaeological Research Center Phase II & i11 $136,920 F 9.00% Ameren Easement (Outfail Sewer) $60,000 F 9.00% Menendez Property (Site Preparation Const. Access) $25,479 F 9.00% Ameren Power Line Relocation (138 kVA) $388,440 F 9.00% Tunnel Easements $203,225 R Meramec Lagoon Cell No. 2 & 3 Closure $3,500,000 E 9.00% Permit Coats (Added April 27, 2004) $705,500 E , 9.00% SRF Finance Costs (Added April 27, 2004) $1,000,000 E 9.00% Other Costs Subtotals $8,051,443 R 8.00% 6.00% 3.00% $327,000 $90,892 $993,661 $417,892 $108,679 $21,949 $38,700 $13,182 $359 $12,323 $5,400 $2,293 $34,960 $315,000 $63,496 $90,000 $706,340 $6,097 $6,097 SUBTOTAL COSTS $244,658,500 R $12,311.630 $6,452,400 Federal Grant (Added April 27, 2004) -$11,584,300 E 9.00% ($1,042,587) ARNOLD'S COST SHARE PHASE I R $11,209,043 S5,452,400 FUTURE CONSTRUCTION COSTS Estimated Future Const. Casts (Added April 27, 2004) $100,000,000 E 9.00% $9,000,000 ARNOLD'S TOTAL EST. COST SHARE R $20,289043 $5,452,400 ARNOLD'S DIRECT COSTS Intergovernmental Agreement May 23, 2005 Telegraph D. S.Revisions (Added March 9, 2006) Notes: F = Final Cost E = Estimated Cost (Original) R = Revised Estimated Cost Costs do not include Interest $846,447 R 100.00% $846,447 APPENDIX D AssEt tURCHASEAGIKE,EMENT This Asset Purchase Agreement (the "Agreement") is made and entered into on the 18th day of December 2014 by and between Missouri -American Water Company, a Missouri corporation ("Missouri - American"), and The City of Arnold, Missouri ("Seller"). Hereinafter, MMissouri American and Seller may be referred to individually as a "Party" or together as the "Parties" RECITALS: A. Seller currently owns and operates a sanitary sewer system consisting of approximately 600,000 linear feet of sewer lines, as shown on &WWI attached hereto, with six pumping systems and a SCADA system that provides sewer service to approximately 8,800 residential, commercial and industrial customers within the City of Arnold and approximately 496 customers located outside the City of Arnold, including pursuant to an intergovernmental agreement with the Rock Creek Public Sewer District (the "Rock Creek Agreement') which also covers wastewater sent EXOM commercial customers within the City limits to the Rock Creek Public Sewer District (collectively, the "System") in or neat the City of Arnold, Missouri. B. Seller desires to sell substantially all of the assets that constitute or Are used in furtherance of the System to Missouri -American pursuant to the terms and conditions of this Agreement NOW, THEREFORE, in consideration of the foregoing recitals, and the representations, warranties, and covenants contained herein, and in exchange for other consideration, the receipt and sufficiency of which are hereby acknowledged, the Patties, intending to be legally bound, agree as follows: ARTICLE 1 Definitions and Related Matters For purposes of this Agreement, the capitalized terms used herein shall have the meanings assigned to them herein or in the attached fahihtt2 and, for purposes of this Agreement and all other documents executed in connection herewith, the rules of construction set forth in Exhibit 2 shall govern. ARTICLE 2 Purchase and Sale of Assets; Closing 2.1 Transfer of Assets. On and subject to the terms and conditions of this Agreement, at the Closing on the Closing Date and effective as of the Effective Time, Missouri -American shall purchase, acquire and accept from Seller, and Seller shall sell, convey, transfer, assign and deliver to Missouri -American, free and clear of all Encumbrances, the Acquired Assets. Notwithstanding anything to the contrary contained in this Section 2.1 or elsewhere in this Agreement, the Excluded Assets ere not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets, and shall remain the exclusive property of Seller subsequent to the Closing. 2.2 Consideration. (a) The consideration for the System and the Acquired Assets shall consist of the Purchase Price. At Closing, Missouri -American shall pay to the Seller and such other payees, if any, set forth on scly yle 24, in accordance with wire transfer instructions to be provided by tine Seller to Missouri - American at least ten, (10) Business Days prior to the Closing Date, in immediately available funds, an aggregate amount equal to the Purchase Price Immediately following its receipt of the Purchase Price, Seiler shall (s) pay over to the DNR an amount equal to the aggregate amount then payable by Seiler to the DNR and (it) provide to Missouri -American a receipt and payoff letter, in form and sube;tance reasonably acceptable to Missouri -American and duly executed by the DNR, as to the DNR's receipt of such amount 1 44606411.6 (b) Missouri -American shall prepare the Allocation, which Allocation shall be binding upon Seller. The Fatties shall report, act; and file Tax Returns in all respects and for all Tax purposes consistent with the Allocation. No Party shall take any Tax position (whether in audits, Tax Returns, or otherwise) that is inconsistent with or contrary to the Allocation. In the event that the Allocation is disputed by any Governmental Authority, the Party receiving notice of such dispute will promptly notify the other Party, and the Parties will consult in good faith as to how to resolve such dispute in a manner consistent with the Allocation. 2.3 &gumption of Liabilities, Excluded Liabilities. Upon the terms and subject to the satisfaction or, if permissible, waiver, of the conditions of this Agreement, at the Closing on the Closing Date and as of the Effective Time, Missouri -American shall assume and discharge, when and as due, only the Assumed liabilities. Notwithstanding anything in this Agreement to the contrary, the Excluded Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. 2.4 Closing. Unless this Agreement is first terminated pursuant to Article 8 hereof, and subject to the satisfaction or, if permissible, waiver of each of the conditions set forth in Article 5 hereof; the Closing well take place at the offices of Bryan Cave LI.P, 211 N. Broadway, Suite 3600, St. Louie, Missouri 63102 or such other place or by such other means (e.g, e-mail/PDF or facsimile and overnight delivery of original execution documents) as is agreed to by the Parties at 10:00 A.M., Central time, on (a) such date as is three (3) Business Days after the date on which all of the conditions set forth in Article 5 hereof shall have been satisfied or (to the extent permissible) waived (other than those conditions which, by their nature are to be satisfied or waived at Closing but subject to their satisfaction or waiver at Closing) or, if Missouri -American shall so elect, the final day of Seller's billing period of which such date is a part or (b) such other date as the Patties hereto may agree upon in writing. In any event, the Closing shall be effective as of the Effective Time. Closing: 2.5 Imo' g Obligetions. In addition to any other documents to be delivered under other provisions of this Agreement, at (a) Seller shall deliver or cause to be delivered to Missouri -American, together with funds sufficient to pay all Taxes necessary for the transfer, if applicable, and filing or recording thereof the following documents: (i) the Bill of Sale, duly executed by Seller; (it) the Intangible Assignments, duly executed by Seller (sit) the Assignment and Assumption Agent, duly executed by Seder; (iv) the Franchise Agreement, duly executed by Seller; (v) all Consents and approvals front Governmental Authorities, and third parties under Contracts, necessary to ensure that Missouri -American will continue to have the same full rights with respect to the Acquired Assets as Seller had immediately prior to the consummation of the Contemplated Transactions, including the written Consents, in form and substance reasonably acceptable to Missouri - American, of the Governmental Authorities and third parties set forth in Schedule 25(e)(v); (vi) a payoff letter from each lender from which Seller has incurred indebtedness i'or borrowed money which is outstanding, if any, and from each petson or entity listed on Soule 2,2, and a release of all Encumbrances relating to the Acquired Assets executed, filed end/or recorded by the holder of 2 4460645.6 or parties to each such Encumbrance (including without limitation any violations cited by the Missouri Department of Natural Resources or any other Governmental Authority with authority over the System or the Acquired Assets), if any, in each case in substance and form reasonably satisfactory to Missouri -American and its counsel; (vie) if applicable, an affidavit, as provided in Section 1445(b)(2) of the Code, stating under penalties of perjury that Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Code; (via) for each interest in Real Property and each easement and/or right-of-way affecting any Real Property or Acquired Asset; whether or not identified on Schedule 3.4, a recordable warranty deed or such other appropriate document or instrument of transfer or approval, as the ®se may require, each in form and substance reasonably satisfactory to Missouri -American; (ix) such other deeds, bills of sale, assignments, certificates of title, documents and other instruments of transfer and conveyance as may reasonably be requested by Missouri -American, each in form and substance reasonably satisfactory to Missouri -American; (x) a copy of each permit, license, easement, land -tight and other necessary authority for the operation of the System and the Acquired Assets, in each case validly issued in the name of the Seller and in full force and effects (xi) if applicable, a copy of Tax clearance certificates (or equivalent,) indicating Seller has no Tax due and dated within 30 days of Closing from any jurisdictions for which Seller may be subject to Tax, including, without limitation, Missouri; (xii) • the certificate contemplated by Section 5.1(d); (xiii) a legal opinion of Seller's legal counsel, affirmatively opining to such matters as Missouri -American or its legal counsel may reasonably request, including but not limited to the clue authorization and execution of this Agreement by Seller and the enforceability thereof (xiv) a copy, certified by a representative of the governing body of Seller to be tote, complete and correct as of the Closing Dere,, of the governing documents sad authorizing resolutions of Seller authorizing and approving the Contemplated Transactions and as to the incumbency and signatures of the authorized representatives of Seller executing this Agreement or any of the Transaction Documents on behalf of Seller (xv) to the extent such transfer is requested by Miissouti-American, evidence satisfactory to Missouri -American of the transfer of all utilities with respect to the System from Seller to Missouri - American; (xvi) the Lease, duly executed by Seller and (evil) all other documents, instruments and writings required or reasonably requested by Missouri American to be delivered at or prior to the Closing pursuant to this Agreement or otherwise required in connection herewith. (b) At or prior to the Closing, Missouri -American shall deliver the following: (i) to the Seller and such other payees set forth on Schedule 22, if any, in accordance with wire transfer instructions to be provided by the Seller to Missouri -American at least ten (10) Business 4460643.6 3 Days prior to the nosing Date, in immediately available funds, an aggregate amount equal to the Purchase Price; (u) to the Seller; the Intangible Assignments, duly executed by ]Vfissouri American; (iii) to the Seller, the Assignment and Assumption Agreement, duly executed by Missouri -American; (iv) to the Seller, the Lease, if applicable, duly executed by Missouri -American, for any premises of Seller to be leased by Missouri -American poet -dosing; and (v) to the Seller, all other documents, instruments and writings required or reasonably requested by Seller to be delivered at or prior to the Closing pursuant to this Agreement or otherwise required in connection herewith. ARTICLE 3 Representations and Warranties of Seller Seller hereby makes the following representations and warranties to Missouti-American, each of which is true and correct on the date hereof, will be true and correct at Closing and shall survive the Closing and the Contemplated Transactions hereby to the extent set forth herein: 3.1 'Pose;mod Authority. Seller has full power and authority to conduct the Business and the System as they are now being conducted and to own, lease and operate the System and the Acquired Assets. 3.2 (a) This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. Seller has the absolute and unrestricted right, power and authority to execute and deliver this Agreement and the Transaction Documents and to consummate the Contemplated Transactions. The appropriate governing bodies of Seller have duly authorized the execution, delivery, and performance of this Agreement by Seller and no other proceeding on the part of Seller is necessary to authorize the execution, delivery and performance of this Agreement (b) This Agreement has been, and the Transaction Documents will be, duly executed and delivered by Seller. (c) Neither the execution, delivery or performance by Seller of this Agreement or the Transaction Documents nor the consummation by it of the Contemplated Transactions will. ® routravete, conflict with or result in a violation of any provisions of the ordinances or other governing documents of Seller, (it) contravene, conflict with or result in a violation of or give any Goneahal Authority of other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under any Laws or any Order to which Seller or any of the Acquired Assets may be subject, (rut) contravene, conflict with or result in a violation of any of the terms or requirements of or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify any Permit or other authorization by a Governmental Authority that is held by Seller or that otherwise relates to the System or any of the Acquired Assets, (iv) contravene, conflict with or result in a violation or breach of any provision of, require the Consent of any Person under, or give any Person the right to declare a default or exercise any remedy under or to accelerate the maturity or performance of or to cancel, terminate or modify any Contract, indenture, mortgage, note, lease or other instrument or document to which Seller is a party or by which any of the Acquired Assets are bound or (v) result in the imposition or creation of any Encumbrance upon or with respect to any of the Acquired Assets. 4 4460648.6 (d) No filings or registrations with, notifications to, or authorizations, Consents or approvals of, a Governmental Authority or third party are required to be obtained or made by Seller in connection with the execution, delivery of performance by Seller of this Agreement or the Transaction Documents or the consummation by Seller of the Contemplated Transactions except related to the MoPSC approval. Neither the Contemplated Transactions nor the Transaction Documents will, result in the creation of any Encumbrance against any of the Acquired Assets. 3.3 Assets. Seller has clean;, good, and marketable title to, or a valid leasehold interest in, all of the Acquired Assets, free and clear of all Encumbrances. None of the Acquired Assets are leased or on loan by Seller to any third party. The Acquired Assets constitute all of the assets and property that, together with the rights granted or conveyed under the Transaction Documents, are necessary for the operation of the System, the Business and the Acquired Assets as conducted as of the date hereof Upon the Closing Missouri -American shall continue to be vested with good title or a valid leasehold interest in the System and all of the Acquired Assets. The Business constitutes all of the business conducted by any Person in connection with the System. 3.4 (a) With limited exceptions that are identified in §^chedule 3.4(b)0 or Schedule 3.4(10), end which do not impact the operation of the sewer system, Seller owns and has good and marketable tide to the Real Property, free and clear of all options, leases, covenants, conditions, easements, agreements, claims, and other Encumbrances of every kind and there exists no restriction on the use or transfer of such property. Set forth on Schedule 3.4(a) is a complete and a ccuMte listing of all Real Property. Seller is not the lessor or lessee of any real property, and there are no outstanding options, rights of first refusal or rights of first offer to purchase any of the Real Property or any portion thereof or interest therein. Seller has made available to Missouri -American copies of all title reports, surveys, title policies and appraisals relating to the Real Property. At and after the Closing, Missouri -American shall have the right to maintain or use the Real Property, including the space, facilities or appurtenances outside the building lines, whether on, over or under the ground, and to conduct such activities thereon as maintained, used or conducted by Seller on the date hereof and such right is not subject to revocation. At and after the Closing Missouri -American shall have all rights, easements and agreements necessary for the use and maintenance of sewer pipelines, or other like facilities, and appurtenances thereto, over, across and under the Real Property. (b) The Real Property is properly classified under applicable zoning Laws, ordinances, and regulations for the current and continued operation of the System on the Real Property. No Proceeding is pending or threatened which could adversely affect the ,zoning motion of the Real Property. Seller's current use and occupancy of the Real Property and its operation of the System thereon does not violate any casement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting such Real Property. The present use and operation of the Real Property does not constitute a non -conforming use and is not subject to a verisnce. Seller has not received any notice of violation of any easements, covenants, restrictions or similar instruments and there is no basis for the issuance of any such notice or the taking of any action for such violation. Set forth on Schedule 3.4(140 hereto is a true, correct and complete list of all easements relating to the Real Property or the Acquired Assets. All of such easements arc valid and will be transferred to Missouti-Arnerican and remain in Cull force as of the Closing. Set forth on l hereto is a true, correct and complete list of all rights of way relating to the Real Property or the Acquired Assets. All of such sights of way arc valid and will be transferred to Missouri -American and remain in full force as of the Clow. All Improvements located on, and the use presently being made of, the Real Property comply with all applicable zoning and building codes, ordinances and regulations and all applicable fire, environmental, occupational safety and health standards and similar standards established by Law and the same use thereof ley l sovai-Auericaa follow ae Closing will not result in any violation of any such code, ordinance, regulation or standard There is no proposed, 5 4460648.6 pending or threatened change in any such code, ordinance, regulation or standard which would adversely affect the Business, the System or the Acquired Assets. (c) With limited exceptions that are identified in 5chedulc_3.4(4and which do not impact the operation of the sewer system, no Improvements encroach on any land that is not included in the Real Property or on any easements affecting such Real Property, or violate any building lines or set -back lines, and there are no encroachments onto the Real Property, or any portion thereof, which would interfere with the use or occupancy of such Real Property or the continued operation of the System ascurrently conducted. (d) There is no applicable unpaid property Tax, levy or assessment against the Real Property (except for Encumbrances relating in Taxes not yet due and payable), nor is there pending or threatened any condemnation Proceeding against the Real Property or any portion thereof (e) Except as set forth in Schedule 3.4(;), there is no condition affecting the Real Property or the Improvements located thereon which requires repair or correction to restore the same to reasonable operating condition. 3.5 Personal Property. Set forth on Schedule 3.5(a) is a complete and accurate listing of all Acquired Assets which are personal property. Except as set Earth in Schedule 3.$(b): (i) no Acquired Asset which is personal property is in the possession of others (other than immaterial items temporarily in the possession of others for maintenance or repair), (ii) neither Seller nor any of its Affiliates holds any such property on consignment, and (iii) each item of such Acquired Assets has been maintained in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear) and is suitable for the purposes for which it is presently used. 3.6 No Undisclosed Liabilities, Except (a) to the extent and for the amount reflected as a Liability on the balance sheet included in the Unaudited Financial Statements, (b) liabilities incurred in the Ordinary Course of Business since the date of the most recent balance sheet included in the Unaudited Financial Statements (none of which will or may reasonably be expected to have an adverse effect upon the Business), or (c) as set forth on Schedule_3.6, Seller does not have any Liabilities (with respect to the System, the Business or the Acquired Assets) whatsoever, known or unknown, asserted or unasserted, liquidated or unliquidated, accrued, absolute, contingent, or otherwise, there is no basis for any claim against Seller, the System or any of the Acquired Assets for any such liability and there is no basis for any such liability to bccotrie the Liability of NTissouti Arru ion from and after the Closing. 3.7 Tax Matters. (a) Seller has timely and properly filed all Tax Returns, if any, that it was requited to file. There ate no Encumbrances on any of the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Tax. • (b) Seller has withheld and paid all Taxes requited to have been withheld and paid in connection with any,amounts paid or owing to any employee, independent contractor, credits member, stockholder, or other third party. Poems W-2 and 1099 required with respect thereto have been properly completed and timely filed. (c) 'There are no audits or examinations of any Tax Returns pending or threatened that relate to Seller's operation of the System or the Acquired Assets. (d) None of the Acquired Assets represent property or obligations of Seller, including but not limited to uncashed checks to vendors, customers or employees, non -refunded overpayments or urnlitimed subscription balances, that is escheatable to any Governmental Authority under any applicable escheatment 6 4460648.6 Laws as of the date hereof or that may at any time after the date hereof become escheatable to any Governmental Authority under any applicable escheatment Law. 3.8 Contractl. Set forth on Schedtj3.8(p) is a complete and correct list of all Contracts related to the System to which Seller is a party or is otherwise bound. Seller has delivered or caused to be delivered to Missouri -American correct and complete copies of each such Contract (including any and all amendments), a description of the terms of each such Contract which is not in writing, if any, and all documents affecting the rights or obligations of any party thereto. None of such Contracts have been modified or amended except as disclosed on Schedule 3.8(b). Neither Seller nor any of its Affiliates has received any written notice of any intention to terminate, repudiate or disclaim any such Contract Except as set forth on Schedule 3.8(b): ® each such Contract is valid and enforceable in accordance with its terms and is in full force and effect, and each such Contract constitutes a legal, valid and binding obligation of the other parties thereto, enforceable against them in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency or other simian Laws affecting the sights of creditors generally and by general principles of equity; (a) no default and no event which, with the giving of notice, lapse of time, or both, would result in a default has occurred under any such Contract (iii) there are no setoffs, counterclaims or disputes existing or asserted with respect to any such Contract, and Seller has not made any agreement with any other party thereto for any deduction from or increase to any amount payable thereunder; (iv) there are no facts, events or occurrences which in any way impair the validity or enforcement of any such Contract or tend to reduce or increase the amounts payable thereunder; (v) Seller has not, directly or indirectly, by operation of Law or otherwise, transferred or assigned all or any pert of its right, title or interest in and to any such Contract to any other Person; and (vi) unless identified in Schedule 3.8(b), there are no Proceedings pending nor, to the Knowledge of Seller, threatened against any party to any of such Contracts which relate to the subject matter of the said Contract. No such Contract automatically terminates or allows termination by the other party thereto upon consummation of the Contemplated Transactions. At and after the Closing, Missouri -American shall have and be entitled to exercise ap of its rights under each Assumed Contract, without the . payment of any additional amounts or consideration other than ongoing fees,-royallties or payments that Seller would otherwise be required to pay had the Contemplated Transactions not occurred. Further, there is no Contract of service in force between Seller and any of its directors, shareholders, officers or employees which is not terminable by Seller without compensation on less than three (3) months' notice given at any time or which provides for compensation specifically in connection with the Contemplated Transactions. There are no consultancy or management services agreements in existence between Seller and any other Person with respect to the Business. 3.9 Estvirsonmental Matters. (a) Except as otherwise more fully set out in Schedule 3.9(a), Seller is and at ail times has been in full compliance with and has not been and is not in violation of or liable under any applicable Environmental Law. Seller has no basis to expect nor has it received any actual or threatened Order, notice or other communication from any Governmental Authority or other Person of any actual or patunhtisl violation or failure to comply with any Environmental Law or of any actual or threatened obligation to undertake or bear the cost of any Environmental,Health and Safety Liabilities with respect to the Real Property or any other properties or assets (whether real, personal or mired) in which Seller has or has had an interest or with respect to the Real Property or any other real property at or to which Hazardous Materials were generated, manufactured, refined, transferred, imported, used or processed by Seller or any other Person for whose conduct it is or may be held responsible, or from which Hazardous Materials have been transported, treated, stored, handled, transferred, disposed, recycled or received. (b) There are no pending or threatened claims, Encumbrances or other restrictions of any nature, resulting from any Environmental, Health and Safety Liabilities or arising under or pursuant to any Environmental Law with respect to or affecting the Real Property or any other properties and assets (whether real, personal or mixed) in which Seller has or had an interest. 7 4460648.6 (e) Neither Seller nor any other Person for whose conduct it is or may be held to be responsible has any Environmental, Health and Safety liabilities with respect to the Real Property or with respect to any other properties and assets (whether real, personal or mixed) in which Seller (or any predecessor) has or has had en interest or at any property geologically or hydrologically adjoining the Real Property or any such other property or assets that could reasonably be expected to have a material adverse effect thereon. (d) There are no Hazardous Materials, except those used in connection with the operation of the System and set forth in the list on Schedule 3.9ftil present on or in the Environment at the Real Property or at any geologically or hydrologically adjoining property, including any Hazardous Materials contained in barrels, above or underground storage tanks, landfills, land deposits, dumps, equipment (whether moveable or fixed) or other containers, either temporary or permanent and deposited or located in land, water, sumps or any other part of the Real Property or such adjoining property or incorporated into any structure therein or thereon. Neither Seller nor any other Person for whose conduct it is or may he held to be responsible has permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Real Property orany other properties or assets (whether real, personal or mixed) in which Seller has or has had an interest except in material compliance with all applicable Environmental Laws. There has been no Release or threat of Release, of any Hazardous Materials at or from the Real Pity or from or by any other properties and assets (whether real, personal or mixed) in which Seller has or has had an interest, or any geologically or hydrologically adjoining property, whether by Seller or any other Person. (e) Except as set forth in Schedule 3.9(e), none of the following exists at the System or on the Real Property: (1) underground storage tanks; (2) asbestos -containing material in any form; (3) materials or equipment containing polychlorinated biphenyl; (4) groundwater monitoring wells; or (5) landfills, surface impoundments, or disposal areas. (f) Except as set forth in Schedule 3.9(f) neither Seller nor any of its Affiliates is obligated to provide financial assurance in consideration of the System under Environmental law. (g) Seller has delivered to Missouri -American true and complete copies and results of any reports, studies, analyses, tests or xur nitoring possessed or initiated by Seller or its predecessors pertaining to Hazardous Materials or Hazardous Activities in, on or under the Real Property, or concerning compliance by Seller, its predecessors, or any other Person for whose conduct Seller is or may be held to be responsible, with Environmental laws, said reports, studies, etc to include without limitation, any anti all Phase I environmental reports now or hereafter in the possession or control of Seller. 3.10 permits. Set forth on Schedule 3.111(a) is a complete and correct list of all Permits used by Seller in the continuing operation of the System. Except as set forth on Schedule MO( , such Permits constitute all those necessary for the continuing operation of the System and are all valid and subsisting and in full force and effect. No fact or circumstance exists which is reasonably likely to cause any such Permit to be revoked or materially altered subsequent to the execution of this Agreement and the Closing Date. Neither the execution of this Agreement nor the Closing do or will constitute or result in a default under or violation of any such Permit. 3.11. Inamantr„. Seller maintains and has maintained appropriate insurance necessary foe the full protection of all of its assets, properties, the System, operations, products and services. AR such policies are in full force and effect and Seller will use commercially reasonable efforts to cause such policies to be outstanding and in full force and effect as of Closing. Seller further agrees to maintain such insurance coverage immediately following the execution of this Agreement and the consummation of the Contemplated Transactions to the extent allowed by its unique coverage as a political subdivision of the State of Missouri. There are no pending Proceedings arising out of, based upon or with respect to any of such policies of insurance and, to Seller's Knowledge, no basis for any such Proceedings exists. Seller is not in default with respect to any provisions contained in any such insurance policies and no insurance provider is in default with 8 4460648.6 respect to such insurance policies. Set forth in Schedule 3.11 is a true and accurate list of all such insurance policies Seller maintains, and the premiums therefor have been paid in full as they have become due and pub 3.12 Absence of Certain_ Chimes. There has not been any occurrence or event which, individually or in the aggregate, has had or is reasonably expected to have any Material Adverse Effect. Seller has continually operated the System and the Business only in the Ordinary Course of Business. Without limitation of the foregoing, Seller has not entered into, amended, terminated or received notice of termination of any Permit necessary for the continued operation of the System. In addition, Seller has not taken any action in connection with the System or the Business which, if taken on or after the date hereof; would have required the prior written Consent of Missouri-Ansencan pursuant to Section. 6.6 hereof. 3.13 ' ' . There are no Proceedings, other than those listed on Schedule 3.11 either pending or threatened, anticipated or contemplated, against Seller or involving the operation of the System, any of the Acquired Assets, or any of Seller's members, shareholders, directors, officers, agents or other governing persons, equity holders or personnel in their capacity as such, which could directly affect arty of the Acquired Assets or the System. Seller has not been charged with, nor is it under investigation with respect to, any charge which has not been resolved to its favor concerning any violation of any applicable Law with respect to any of the Acquired Assets of the System and there is no valid basis fox my such charge or investigation. Neither Seller nor any of its Affiliates has been subject to or threatened to be subject to any Proceeding or Order relating to personal injury, death or property or economic damage arising from products sold, licensed or leased and services performed by Seller or any of its Affiliates with respect to the System or the Business. No judgment, Order, writ, injunction, decree, assessment or other command of any Governmental Authority affecting Seller or any of the Acquired Assets or the System has been entered which is presently in effect. There is no Proceeding pending or, to Seller's Knowledge, threatened which challenges the validity of this Agreement or the Contemplated Transactions ox otherwise seeks to prevent, directly or indirectly, the consummation of the Contemplated Transactions, nor is there any valid basis for any such Proceeding. 3.14 Compliance with Laws. Seller is in compliance with all Laws, Permits, Orders, ordinances, rules and regulations, whether civil or criminal, of any federal, state, local or foreign governmental authority applicable to the System or the Business and has not committed any violation of any Law or any provision of its governing documents applicable to the Acquired Assets and/or the operation of the System. Except as set forth in Schedule 3.14 neither Seller nor any of its Affiliates has received any notice alleging such default; breach or violation. 3.13 Financial Statementt. Attached as Schedule 3.15 are the Financial Statements. The Financial Statements have been prepared in accordance with the requirements of the Governmental Accounting Standards Board ("GASB'), subject in the case of the Unaudited Financial Statements to normal year-end adjustments and the absence of footnotes. The Financial Statements were derived from the books and records of Seller, are true correct and complete in all material respects and present fairly in all material respects the financial condition, operating results and cash flaws of Seller as of the dates and during the periods indicated therein (subject, in the case of the Unaudited Financial Statements, to normal year-end adjustments and the absence of footnotes). 3.16 Transactions with Rasta Pasties. Except as set forth on Schedule 316, no governing person or Affiliate of Seller has any financial interest, direct or indirect, in any supplier or customer of, or other business which has any transactions or other business relationship with, Seller. Without limiting the generality of the foregoing, neither Seller nor any of its Affiliates nor any governing person of Seller, any of its Affiliates or the Business ess owns, directly or indirectly, any interest in or is an owner, sole proprietor, member, stockholder, partner, director, officer, employee, consultant or agent of any Person which is a lessor, lessee, customer, lin'n PP, or supplier of the Business and none of the employees of or servicing the Business 9 4460648.6 owns, directly or indirectly, in whole or in part, any tangible property, patent, trademark, service mark, trade name, copyright, franchise, invention, Permit or license which was developed by or is used and necessary for the operation of the Business. 3.17 Customer Advances. Set forth on Schedule 3.17 is a complete and accurate list of (i) all unexpired Extension Deposit Agreements (or similar agreements) to which Seller is a party (each an 'Extension Deposit Agreement") and which contain unexpired obligations of Seller to provide for the payment of periodic refunds to parties making advances for the construction of facilities for sewer service, (it) all advances or prepayments made by any customer or other Person to Seller with respect to the System or the service provided thereby and (iii) all other amounts payable (whether as a reimbursement or in the form of a credit) by Seller to any customer or other Person with respect to the System or the service provided thereby. Seller will provide to Missouri -American within IS days of the execution of this Agreement (to be updated at Closing), true and complete copies of each such Extension Deposit Agreement. All records of Seller relating to each Extension Deposit Agreement is complete and accurate in all material respects and, together with the relevant Extension Deposit Agreement, is all the information reasonably required to determine Seller's, and, consequently, Iulasouri-American's obligations to each party to the Extension Deposit Agreements; and there are no disputes or disagreements with any party to an Extension Deposit Agreement relating to the amount due under that agreement or the method of calculating that amount or in connection with any advance, prepayment or amount payable of the type described in (a) or (dii) above. Schedule: 3.17 may be updated at Closing amply with the mutual consent of the parties. 3.18 Ancounta Receivable. Set forth on Schedule 3.18 is a list of all the accounts receivable of Seller with respect to the System and an aging schedule related thereto, as of the date hereof Such accounts receivable, together with any such accounts receivable arising between such date and the Closing Date (collectively, the "Accounts Receivable"), are (to the extent not yet paid in full) valid, genuine and existing and arose or will have arisen from bona fide sales of products or services actually made in the Ordinary Course of Business. The Accounts Receivable are not subject to, and Seller has received no notice of; any counterclaim, set -oil, defense or Encumbrance with respect to the Accounts Receivable. Except to the extent paid prior to Closing, the Accounts Receivable are and will be current and fully collectible. No agreement for deduction, free goods, discount or deferred puce or quantity adjustment has been made with respect to any Accounts Receivable. 3.19 Brokers, Finders. Except as set forth in ,Schedule 3.19, no finder, broker, agent or other intermediary, acting on behalf of Seller or any of Seller's Affiliates, is entitled to a commission, fee or other compensation in connection with the negotiation or consummation of this transactions contemplated hereby. Agreementoat of the 3.20 Employees. Schedule 3.20(a) contains a complete and accurate list of the following information for each employee of the Seller, including each such employee on leave of absence or layoff status: name, job title, current compensation paid or payable, any change in compensation since the date of the most recent Audited Financial Statement, and hire date. Except as set forth in Schedule 3,2Q(, none of such employees is a party to, or is otherwise bound by, any agreement or ar►atngement, including any confidentiality, non -competition or proprietary rights agreement. between such employ sad any other Person that in any way adversely afflicted, affects or may affect ® the performance of his or bez duties as an employee of the Business, or (ii) the ability of Missouri -American to conduct the Business. ARTICLE 4 Representations and Weeanties ofMissour ..Anmericcaat Missouri -American hereby makes the following representations and warranties to Seitz 10 4460648.6 4.1 Qom. Missouri -American is a duly organized and validly existing corporation in good standing under the Laws of Missouri and has the power and authority to own, lease and operate its assets and properties. 4.2Enforcement; Authority: No Conflict (a) This Agreement constitutes the legal, valid and binding obligation of Missouri American and is enforceable against Missouri -American in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar Laws affecting the rights of creditors generally and by general principles of equity. MissouriAmerican has the absolute and unrestricted right, power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder. (b) Neither the execution or delivery of this Agreement nor the consummation of the Contemplated Transactions shall result in: (i) a violation of or a conflict with any provision of the articles of incorporation or the bylaws of Missouri -American, (it) a material breach of or default under any term, condition or provision of any Contract to which Missouri -American is a party, or an event which, with the giving of notice, lapse of time, or both, would result in any such breach or default; or (ut) a material violation of any applicable Law, Order, judgment writ, injunction, decree or award or any event which, with the giving of notice, lapse of time, or both, would result in any such violation. ARTICLE 5 Conditions Precedent to Closing 5.1 Conditions Precedent to the Obligations of Missouri-Atnaer%gg. Missouri -American's obligations to consummate the Contemplated Transactions are subject to the satisfaction in full, unless expressly waived in writing by Missouri -American, of each of the following conditions: (a) Authorization of Contemplated Transactions. Missouri American shall have obtained all necessary corporate approvals to consummate the Contemplated Transactions, including, but not limited to the approval of its Board of Directors; (b) $entations and Warranties. Each of the representations and warranties of Seller contained in this Agreement or in any Transaction Document shall have been true; correct and accurate in all respects on and as of the date hereof and shall also be true, correct and accurate in all material respects (other than Section 3.5 and representations and warranties qualified as to materiality, which shall have been true, correct and accurate in all respects) on and as of the Closing Date with the same force and effect as though made by Seller on and as of the Closing Date (except to the extent that any such representation or warranty is made solely as of the date hereof or as of another date earlier than the Closing Date, which shall be accurate as of such date); (c) Covenants. Seller shall have performed, observed and complied in all material respects with all of its obligations, covenants, undertakings and agreements contained in this Agreement or any Transaction Document and required to be performed, observed or complied with by Seller prior to or at the Coaingy (d) Cglificates, Seller shall have delivered to Missouii-Amesiran a mate, dated as of the Closing Date and executed by an officer or other duly authorised representative of Seer, to the effect that the conditions set forth in Sections 5.1.(b). (c) and (i) have been sti.Q6ed (e) Enzuglings, No provision of any Law or Order shall be in effect, and no Proceeding by any Person shall be threatened ned or pending before any Gov aeots! Authority, or bed rimy arbitrator, which 11 4460648.6 would. (i) prevent consummation of the Contemplated Transactions; (it) have a likelihood of causing the Contemplated Transactions to be rescinded following oonsummati ; (iii) adversely affect the right of Missouri -American to own any of the Acquired Assets; or (iv) adversely affect the System prospects or the value or condition of any of the Acquired Assets or the System; (f) . Seller shall have delivered or caused to be delivered to Missouri - American each of the items set forth in Section 2.5(a); (g) Governmental and Third Party Approvals (i) Missouri -American shall have obtained a certificate of convenience and necessity and all necessary regulatory approvals by the MoPSC, or any other applicable regulatory body, and all other applicable Consents and approvals from Governmental Authorities and other third parties which are required in connection with the Contemplated Transactions, each in form and substance (mcluding without limitation with respect to the terms and conditions contained in any such approval) acceptable to Missouri -American it its sole and absolute discretion, and (it) any waiting periods under existing Laws, and all extensions thereof, the passing of which is necessary to consummate the Contemplated Transactions, shall have expired; (h) Due,Diligence, Missouri -American shall have completed and be satisfied, in its sole and absolute discretion, With the results of its due diligence review of the Acquired Assets and Seller, including without limitation, with the results of any Phase I Environmental Site Assessment or other environmental assessment performed with respect to the Real Property or the Acquired Assets or chain of title search, all material contracts and operating permits and licenses of the System, and the Seller's operations, contracts, employment practices, compliance, accounting and other items as Missouri -American deems necessary, as each of the foregoing items relate to the System or the Acquired Assets; (i) liallaggiaLikintiazyjras,. Missouri -American shall have determined that there shall not have occurred any event or circumstance which, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and (I) Certain Agreements. Missouri American shall be party to an agreement, whether by assignment and assumption of an existing agreement to which Seller and each such Person is a party or by direct agreement between Missouri -American and each such Person, with each Person listed on Schedule 5,14) attached hereto, each in form and substance satisfactory to Missouri -American in its sole disemsinn. 5.2 Conditions Precedent to Obligations of Seller, Seller's obligation to consummate the Contemplated Transactions is subject to the satisfaction in full, unless expressly waived in writing by Seller, of each of the following conditions: (a) Reptesentations and Warranties. Each of the representations and warranties of ll omi- American contained in this Agreement or in any Transaction Document shall have been true, correct and accurate in all respects on and as of the date hereof and shall also be true, correct and accurate in all material respects (other than representations and warranties qualified as to materiality, which shall have been true, correct and accurate in all respects) on and as of the Closing Date with the same force and effect as though made by Missouri -American on and as of the Closing Date (except to the extent that any such representation or warranty is made solely as of the date hereof or as of another date earlier than the Closing Date, which shall be accurate as of such date); (b) Covenatt Missouri -American shall have performed, observed and complied in di material respects with all of its obligations, covenants, undertakings and agreements contained in this Agreement or any Transaction Document and required to be petfortned, observed or complied with by I► ao i-Ame scan prior to or at the Closing, 12 4460648.6 (c) Proceedins. No provision of any Law or Order shall be in effect which would prevent consummation of the Contemplated Transactions, and (d) Closing Deliveries. Missouri -American shall have delivered or caused to be delivered to Seller each of the items set forth in Section 2.5(b). ARTICLE 6 Covenants and Special Agreements 6.1 Access to Information; C4entiallty (a) Access. Between the date of this Agreement and the Closing Date, Missouri-Aotnenean may, directly and through its representatives, make such confirmatory investigation of the System and the Acquired Assets as each deems necessary or advisable. In furtherance of the foregoing, Missouri -American and its representatives shall have reasonable access, upon reasonable notice du ing normal business hours, to all employees, properties, books, Contracts, commitments and records of the Business, and Seller shall furnish and cause to be furnished to Missouri -American and its representatives such financial and operating data and other information as may from time to time be reasonably requested relating to the System, shall permit Missouri -American or its representatives to conduct such physical inspections and environmental audits of the Real Property as requested by Missouri -American and shall permit Missouri -American or its representatives to conduct interviews of employees of or servicing the Business. Seller and the management, employees, accountants and attorneys of or servicing the Business shall cooperate fully with Missouri - American and its representatives in connection with such investigation. (b) ranfific (i) Prior to Closing (and, in the case of Seller, following Closing), each Party shall ensure that all Confidential Information which such Party or any of its respective officers, directors, employees, counsel, agents, or accountants may have obtained, or may hereafter' obtain, from the other Party (or, in the case of Seller following Closing, with respect to the Business or the System) (or create using any such information) relating to the financial condition, results of operations, System, properties, assets, Liabilities or future prospects of the other Party, any Related Person of the other Party or any customer or supplier of such other Party or any such Related Person (or, in the case of Seller following Closing, with respect to the Business or the System) shall not be published, disclosed or made accessible by any of them to any other Person at any time or used by any of them, in each case without the prior written Consent of the other Party; provided, however, that the restrictions of this sentence shall not apply (i) as may otherwise be requited by Law, (ii) to the extent such Confidential Information shall have otherwise become publicly available, and (iii) as to Missouri -American, to disclosure by or on its behalf to regulatory authorities or other third parties whose Consent or approval may be required to consunsmate the Contemplated Transactions and to its lenders and professionals for the purpose of obtaining financing of such transactions. (ii) In the event of termination of negotiations or failure of the Contemplated Transactions to close for any reason whatsoever, each Party promptly will destroy or deliver to the other Party and will not retain any documents, work papers and other material (and any reproductions thereof) obtained by each Party or on its behalf from such other Party or its subsidiaries as a result of this proposal or in connection therewith, whether so obtained before or after the execution hereof, and Wit not use any information so obtained and will cause any information so obtained to be kept confidential and not used in any way detrimental to such other Party. 6.2 Fublcity; Announcements. Until after the Closing, no press release or other public statement concerning this Agreement or the transactions contemplated hereby shall be issued or made without the prior approval of the parties hereto, except as required by applicable law. After the Closing, no 13 446064$.6 press release or other public statement concerning this Agreement or the transactions contemplated hereby shall be issued or made by Seller without the prior approval of Missouri -American, except as required by applicable law. 6.3 Cooperation. Subject to the terms and conditions of this Agreement, the Parties shall cooperate fully with each other and their respective counsel and accountants in connection with, and take or cause to be taken and do or cause to be done, any actions requited to be taken under applicable Law to make effective the Contemplated Transactions as promptly as practicable. Prior to the Closing, the parties shall proceed expeditiously and in good faith to make such filings and take such other actions as may be reasonably necessary to satisfy the conditions to Closing set forth in Section 5.l(g). From and after the Closing, the parties shall do such acts and execute such documents and instruments as may be reasonably required to make effective the transactions contemplated hereby. On or after the Closing Date, the parties shall, on request, cooperate with one another by furnishing any additional information, executing and delivering any additional documents and instruments, including contract assignments, and doing any and all such other things as may be reasonably required by the parties or their counsel to consummate or otherwise implement the transactions contemplated by this Agreement. Should Seller, in its reasonable discretion, determine after the Closing that books, records or other materials constituting Acquired Assets are still in the possession of Seller, Seller shall promptly deliver them to Missouri -American at no cost to Missouri -American. Seller hereby agrees to cooperate with Missouri -American to ensure a proper transition of all customers with respect to billing and customer service activities. Missou American shall take the lead in obtaining MOPSC approval with respect to the Contemplated Transactions. • 6.4 Encluitivirg. Seller will not and will not permit its affiliates, officers, directors, employees or other agents or representatives to, at any time prior to the termination of this Agreement, directly or indirectly, (i) take any action to solicit, initiate or encourage the making of any Acquisition Proposal, or (it) discuss or engage in negotiations concerning any Acquisition Proposal with, or further disclose any non- public information relating to Seller to, any person or entity in connection with an Acquisition Proposal, in each case, other than Missouri American and its representatives. 6.5 No Inconsistent Action. Prior to the Closing Date, no Party shall take any action, and each Party will use its commercially reasonable efforts to prevent the occurrence of any event (but excluding events which occur in the Ordinary Course of Business and events over which such Party has no controg, which would result in any of its representations, warranties or covenants contained in this Agreement or in any Transaction Document nor to be true and correct, or not to be performed as contemplated, at and as of the time immediately after the occurrence of such action or event. If at any time prior to the Closing Date, a Party obtains knowledge of any facts, circumstances or situation which constitutes a breach, or will with the passage of time or the giving of notice constitute a breach, of any representation. warranty or covenant of such Party under this Agreement or any Transaction Document or will result in the failure of any of the conditions contained in Article 5 to be satisfied, such Party shall give the other Party prompt written notice thereof, provided, however, that no such notice shall cure any breach of any representation, warranty or covenant contained herein or therein or will relieve any such Party of any obligations hereunder or thereunder unless specifically agreed to in writing by the other Party. 6.6 Conduct of Buaintfls. Between the date of this Agreement and the Closing Date, Seller shall carry on the operation of the System, the Business and the Assets in the Acquired Ordinary Course of Business and in compliance with Law, not introduce any materially new method of management or operation, use reasonable best efforts to preserve the System, the Business and the Acquired Assets, conserve the goodwill and relationships of its customers, suppliers, Governmental Authorities and others having business relations with it, maintain in full force and effect all policies of insurance now in effect for the benc&t of Seller, maintain supplies at a level which is sufficient to operate the System in accordance with past practice and maintain the Acquired Assets in substantially the condition currently existing, normal wear and teat excepted. By way of illustration and not limitation, Seller will not, between the date hereof rind the Closing 14 4460648.6 Date, directly or indirectly do, or prepare to do, any of the following without the prior written Consent of Missouri-Ametecan (a) sell, lease, transfer or otherwise dispose of, or license, mortgage or otherwise encumber, or give a security interest in or subject to any Encumbrances, any of the Acquired Assets, (b) merge or consolidate with or acquire, or agree to merge or consolidate with or acquire (by merging or consolidating with, or by purchasing a substantial portion of the stack or assets of, or by any other manner), any business or corporation, partnership, joint venture, association or other business organization or division thereof or otherwise change the overall character of the Business in any material way, (e) enter into any Contract other than in the Ordinary Course of Business or amend, waive any right under or terminate any Assumed Contract, (d) abandon, sell, license, transfer, convey, assign, fail to maintain or otherwise dispose of any item of the transferred intellectual property, (e) make any change in any of its present accounting methods and practices, (f) to the extent applicable, tnake any new Tax election, or change or revoke any existing Tax election, or settle or compromise any Tax liability or file any income Tax Return prior to the last day (including extensions) prescribed by Law, in the case of any of the foregoing, material to the business, financial condition or results of operations of Seller, (g) engage in any transactions with any Related Person which would survive Closing, (h) pay, discharge, settle or eatsfy any material claims or liabilities (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against in the Financial Statements (or the notes thereto), or not required by GASB to be so reflected or reserved, or incurred since the date of the most recent Audited Financial Statement in the Ordinary Course of Business, or waive any material benefits of, or agree to modify any material confidentiality, standstill, non -solicitation or similar agreement with respect to the Business to which Seller or any of its Af&liates is a party, (i) engage in any activity with the purpose or intent of (A) accelerating the collection of accounts receivable or (B) delaying the payment of the accounts payable, (j) enter into commitments for new capital expenditures in excess of $25,000 in the aggregate, (k) create or issue or grant an option or other right to subscribe, purchase or redeem any of its securities or other equity interests (other than with Missouri -American), (I) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization or (tn) enter into any agreetnetit (conditional or otherwise) to do any of the foregoing. 6.7 No Transfer at Odds with tow. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be deemed to require the conveyance, assignment at transfer of any Acquired Asset or Assumed liability that by operation of applicable Law cannot be conveyed, assigned, transferred or assumed. Each Party shall continue to use reasonable best efforts to obtain at the earliest practicable date all unobtained Consents or approvals required to he obtained by it in connection with the transfer of the Acquired Assets and Assumed Liabilities or performance of any Transaction Document. If and when any such Consents or approvals shall be obtained, then Seller shall promptly, and hereby does, assign its rights and obligations thereunder to Missouti-American without payment of consideration and Missout American shall, and hereby does, without the payment of any consideration therefor, (x) assume such rights and obligations or (ii) perform (or agree to perform) under such Transaction Document, as applicable. Each Party shall execute such good and sufficient instruments as may be rimmiAry to evidence such assignment and assumption. The entire beneficial interest in and to, and the risk of loss with respect to, the Acquired Assets and the Assumed Liabilities shall, regardless- of when legal tide thereto shall be transferred to Missouri -American, pass to Missouri -American at Closing as of the Effective Tone, and Seller shall, without consideration therefor pay, assign and remit to Missouri -American all monies, rights and other consideestion received in respect of such performance. To the extent permitted by Law, Seller shall exercise ar exploit its rights in respect of such Acquired Assets only as directed by Missouri -American. 6.8 ikkafitsmtounktagege. Seller promptly shall take such actions as shall be requested by Missouri -American to secure the release of all Encumbrances relating to the Acquired Assets, in each case in substance and form reasonably satisfactory to Missouri -American and its counsel. Is 4460648.6 6.9 Retention of Records. Subject to applicable Law and, subject to any applicable restrictions as to confidentiality (as to which Missouri -American does not provide indemnification, or the waiver of which Seller shall not have obtained after using reasonable best efforts), Seller shall preserve any books and records relating to the System or the Business that are not delivered to Missouri -American hereunder for a period no less than seven (7) years after the Closing Date (or such longer period as shall be required by applicable Law), and Seller shall make available such books and records for review and copying to Mtssouri- Ame ican and its authorized representatives following the Closing at Missouri -American's expense upon reasonable notice during normal business hours. During such period, Seller shall permit, to the extent permitted by applicable Law and upon request of Missouri -American, Missouri :American and any of its agents, representatives, advisors or consultants reasonable access to employees of or servicing the Business for information related to periods up to and including the Closing. 6.10 Tax Covenants. (a) To the extent applicable, Seller shall pay all Taxes of Seller, the System and the Acquired Assets for any Tax year or period (or portion thereof) ending at or before the Closing. For the purposes of this Section 6.10(a), the portion of such peewee] property or similar ad valorem Tax that relates to the Tax period ending as of the Closing shall be deemed to be the amount of such Tax for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending as of the Closing and the denominator of which is the number of days in the entire Tax period. For purpose of this Section 6.10(a), the portion of all other Taxes that relates to the Tax period ending as of the Closing shall be determined on the basis of an interim closing of the books. (b) Each Party agrees to furnish or cause to be famished to the other Party, upon meet, as promptly as practical, such information ('including reasonable access to books and records, Tax Returns and Tax filings) and assistance as is reasonably necessary for die filing of any Tax Return, the conduct of any Tax audit, and for the prosecution or defense of any claim, suit or Proceeding relating to any Tax matter. The Parties shall cooperate with each other in the conduct of any Tax audit or other Tax Proceedings and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 6.10(b). ARTICLE 7 Indemnification 7.1 Survival of Representations and Wands and Covenants. (a) All of the representations and warranties made by Seller in this Agreement, its Schedules, or any certificates or documents delivered hereunder shall survive the Closing Date and consummation. of the Contemplated Transactions for a period of three (3) years; provided, however, that the representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 3.9 and 3.19 shall survive indefinitely. 7.2 ...1_:A . i _ s lu _+ ai L <. .� , �i c . ._ }' t ,# ? • Subject to the terns of this Article 7, Seller hereby agrees to fully pay, protect, defend, fruiPranify and hold harmless the Indemnified Persons from any and all Damages arising out of; resulting from, relating to or caused by: (i) any inaccuracy in or breach of (or any claim by any third party alleging or constitilthng an, inaccuracy or brcicla of) sway representation or warranty of, or any failure to perform or nonfulfilment of any provision or coven contained in this Agreement or any other Transaction Document by, Seller°, (it) rill. Liabilliesnd/ r duties of Seller, whether accruing prior to or after the Closing Date, other than. the .Assumed 1. balati (iii) any Encumbrance affecting the Acquired Assets; (iv) assessments, charges anti either molar claim .tine or owing, directly or indirectly, by Seller or otherwise as a result of or on account of the Acquired Assam or the System at any time prior to the Closing Date; (v) the ownership suidier operation of stay of the Aired Assets or the System prior to Closing, other than to the extent of the Assumed Liabilities; (yi) any Proceeding Dour 16 4460648.6 existing or hereafter arising and relating to the Acquired Assets or the System and arising from events or matters occurring prior to the Closing Date, other than to the extent of the Assumed liabilities; (vii) any Excluded Assets or Preluded Liabilities; (vii) any and all Taxes imposed on or arising from the transfer of the Acquired Assets; (ix) intercompany accounts payable and accounts receivable by and among Seller and/or its Affiliates; (x) transaction costs and expenses incurred by or on behalf of Seller in connection with this Agreement or the Contemplated Transactions; or (xi) any matters described on Schedule 7.2, 73 jpdemnificatfon By Missouri -America Missouri -American hereby agrees to fully pay, protect, defend, indemnify and hold harmless Seller and its respective successors and assigns, from any and all - Damages incurred by any of them arising out of: resulting from, relating to or caused by O any inaccuracy in or breach of any representation or warranty of, or any failure to perform or nonfulfillment of any provision or covenant contained in this Agreement or any other Transaction Document by, Missouri -American, (it) the Assumed Liabilities or (ii t) transaction costs and expenses incurred by or on behalf of Missouri -American in connection with this Agreement or the Contemplated Transactions. 7.4 Notice of Clain. In the event that either petty seeks indemnification on behalf of an Indemnified Person, such party seeking indemnification (the "Indemnified Party") shall give reasonably prompt written notice to the indenunifying party (the "Indemnifying Party") specifying the facts constituting the basis for such claitn and the amount, to the extent known, of the claim asserted; provided, however, that the right of a person or entity to be indemnified hereunder shall not be adyme* affected by a failure to give such notice unless, and then only to the extent that; an Indemnifying Party is actually irrevocably and materially prejudiced thereby. Subject to the terms hereof, the Indemnifying Party shall pay the amount of any valid claim not more than 10 days after the Indemnified Party provides notice to the Indemnifying Party of such amount. 75 jtight to Contest Claims of Third Pet$Qrts. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any Third Person, the Indemnified Pasty shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby. Missouri -American shall have the right, upon written notice to Seller, to investigate, contest or settle the Third Person Claim. Seller may thereafter participate in (but not control) die defense of any such Third Person Claim with its own counsel at its own expense. If Seller thereafter seeks to question the manner in which Missouri -American defended such Third Person Claim or die amount or nature of any such settlement, Seller shall have the burden to prove by dear and convincing evidence that conduct of Missouri -American in the defense and/or settlement of such Third Person Claim constituted gross negligence or willful misconduct The Parties shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof, provided that Iriissouri-American shall control the defense thereof Promptly (and in any event within 10 days) following the resolution of any Third Person Claim, Seller shall pay to Misaouri-Ametican any amount to which Missouti-Ame is entitled pursuant to this Article 7 with respect to such Third Person Claim. 7.6 rtgrsidithaderatIon i atte t. (a) Notwithstanding anything contained herein or elsewhere to the contrary, all "material" and "Material Adverse Effect" or similar materiality type qualifications contained in the representations and warranties set forth in this Agreement shall be ignored and not given any effect for purposes of the indemnification provisions hereof; including, without liteitatioe, for purposes of determining whether or not a breach of a representation or watvanty has occurred and/or determining the amount of any Damages. 17 4460648.6 (b) No information or knowledge acquired, or investigations conducted, by Missouri -American or its representatives, of Seller or the System or otherwise shall in any way limit, or constitute a waiver of, or a defense to, any claim for indemnification by any Indemnified Persons under this Agreement. ARTICLE 8 Termination 8.1 Imagination. This Agreement may be terminated at any time prior to the Closing only (a) by mutual written Consent of Seller and Mlssoun-American, (b) by Seller or Missouri -American upon written notice to the other, if the Closing shall not have occurred on or prior to July 1, 2015; preacided. however, that the right to terminate this Agreement under this Section 8.1(b) shall not be availabk to any Party whose breach under this Agreement has caused or resulted in the failure of the Closing to occur on or before such date; (c) by i ssouri-American, if Missouri -American is not in material breach of any of its representations, warranties, covenants and agreements under this Agreement and there has been a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of Seller and Seller has not cured such breach within five (5) Business Days after receipt of notice of such breach (provided, however, that; no cure period shall be required for a breach which by its nature cannot be cured), (d) by Missouri -American, if at any time before Closing, Missouri -Amerman is not satisfied with the results of its due diligence review of the System and the Acquired Assets, (e) by Seller if Seller is not in material breach of any of its representations, warranties, covenants and agreements under this Agreement and there has been a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of Missouri -American and Missouri -American has not cured such breach within five (5) Business Days after receipt of notice of such breach (provided, however, that, no cure period shall be required fora breach which by its nature cannot be cured), (f) by Seller or Missouri -American upon written notice to the other, if any court of competent jurisdiction or other competent Governmental Entity shall have issued a statute, rule, regulation, Orderdecree or injunction or taken any other action permanently restraining, enjoining or ot3hetavise prohibiting the Contemplated Transactions, and such statute, rule, regulation, Order, decree or injunction or other action shall have become final and non appealable, (g) by Missouri -American, if all necessary regulatory approvals (including rate treatment, refunds and setting of rate base and all approvals described in Section 5.1(g)) contemplated hereby or otherwise necessary to dose the Contemplated Transactions have not been obtained within 270 days of the date hereof, of (h) by Missouri -American if any Material Adverse Effect shall have occurred or, in the reasonable judgment of Missouri -American, shall be reasonably likely to occur. 8.2 Effect of_teponination. The right of each Party to terminate this Agreement under Section 8.1 is in addition to any other tights such Party may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 8.1, all further obligations of the Parties under this Agreement will terminate, except that the obligations set forth in Section 6.1(b) {"Confidentiality"), Section 6.2 ("Publicity; Announcements.", this Section 8.2 ("Effect of Termination") or Article 9 ("General Provisions") will survive.; provided, however, that if this Agreement is terminated by a Party because of the breach of the Agreement by another Party or because one or more of the conditions to the terminating Patty's obligations under this Agreement is not satisfied as a result of the other Party's failure to comply with its obligations under this Agreement, the terminating Party's right to pursue all legal remedies will survive such termination unimpaired. ARTICLE 9 General Provisions 9.1 Amendment and Modification. No amendment, rarefication or supplement of any provision of this Agreement will be effective unless the same is in writing and is signed by the Patties. 4460648.6 9.2 Aeggisipta. Seikt may not assign or transfer any of its rights or obligations under this Agreement to any other Person without the prior written Consent of Missouri -American. Missouri -American may not assign its rights and obligations under this Agreement to any third party, without the prior written Consent of Seller, but may assign its rights and obligations under this Agreement to any Related Person or successor in interest without the Consent of Seller. Subject to this Section 9.2, all provisions of this Agreement ate binding upon, inure to the benefit of and are enforceable by or against the Parties hereto and their respective heirs, executors, administrators or other Legal representatives and permitted successors and assigns. 9.3 Captions: Construction. Captions contained in this Agreement and any table of contents preceding this Agreement have been inserted herein only as a matter of convenience and in no way define, limit extend or describe the scope of this Agreement or the intent of any provision hereof. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement 9.4 Counterparts; Facsimile. This Agreement may be executed by the Parties hereto on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the Parties hereto notwithstanding that all the Patties hereto are not signatories to the same counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by e-mail, facsimile machine or telecopier is to be treated as an original document 9.5 Entire A,greement. This Agreement and the other Transaction Documents constitute the entire agreement among the Parties hereto pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the Parties hereto, whether oral or written, executed by the Parties pertaining to the subject matter hereof All of the Exhibits and Schedules attached to this Agreement are deemed incorporated herein by reference. 9.6 Governing Law. The Agreement and the rights and obligations of the Parties hereunder are to be governed by and construed and interpreted in accordance with the Laws of the State of Missouri applicable to Contracts made and to be performed wholly within Missouri, without regard to choice or conflict of laws rules. .9.7 legal Fees. Costs. Except as provided herein, all legal, consulting and advisory fees and other costs and expenses incurred in connection with this Agreement and the Contemplated Transactions are to be paid by the Party incurring such costs and expenses. 9.8 hinneen. All notices, Consents, requests, demands and other communicsdons hereunder are to be in writing and are deemed to have been duly given, made or delivered: (i) when delivered in person or by e-mail, 04 three (3) Business Days after deposited in the United States mail, first does postage prepaid, or (iii) in. the case of telegraph or overnight courier services, one (1) Burliness Day after delivery to the telegraph company or overnight courier service with payment provided, in each case addressed as follows. (a) if to Seller, (i) to City of Arnold, 2101 ]edf'co Blvd., Arnold, MO 63010, Attu; Mr. Bryan Richison, City Administrator (briehison@arnoldorg) and (it) with a copy to Mr. Robert Sweeney, P.Q. Box 20, 503 Main Street, Hillsboro, Missouri 63050 (rks(robettswee neylaw.oam) or (b) if to Missouri -American, (i) to Mlssouni-American Water Company, 727 Craig Road, St Louis, Missouri 63141, Ann: Frank Kaufmann, President (frank kartmann@amwater_com), (rr) with a copy to lissowri-American Water Company, 727 Craig Road, St Louis, Missouri 63141, Attn: Legal Department (timothy.luft(giamwater.com) and (tit) with a copy to Bryan Cave LLP, 211 N. Broadway, Suite 3600, St. 19 4464648.6 Louis, Missouri 63102, Attu: Ryan S. Davis (rsdavis@bryancave.com), or to such other address as any Party hereto may designate by notice to the other Parties in accordance with the terms of this Section. 9.9 SeverabIity_ This Agreement shall be deemed severable; the invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of this Agreement or of any other term hereof; which shall remain in full force and effect, for so long as the economic or legal substance of the Contemplated Transactions is not affected in any manner materially adverse to any Patty: 9.10 Specific Performance and Injunctive Repel; Remedies. The Parties hereto recognize that if any or all of them fail to perform, observe or discharge any of their respective obligations under this Agreement, a remedy at law may not provide adequate relief to the other Parties hereto. Therefore, in addition to any other remedy provided for in this Agreement or under applicable Law, any Party hereto may demand specific performance of this Agreement, and such Party shall be entitled to temporary and permanent injunctive relief, in a court of competent jurisdiction at any time when any of the other Parties hereto fail to comply with any of the provisions of this Agreement applicable to such Party. To the extent permitted by applicable Law, all Parties hereto hereby irrevocably waive any defense based on the adequacy of a remedy at law which might be asserted as a bar to such Party's remedy of specific perfotmance or injunctive relief Except as otherwise provided herein, all rights and remedies of the parties under this Agreement are cumulative and without prejudice to any other rights or remedies under Law Nothing contained herein shall be construed as limiting the Parties' rights to redress for fraud. 9.11 No Thad -Party Benefcj r. This Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns (and those Persons entitled to recover tinder the indemnity provisions hereof), and no other Person (other than those Persons entitled to recover under the indemnity provisions hereof) has any right, title, priority or interest under this Agreement or the existence of this Agreement. 9.12 Waiver of Compliance; Consents. Any failure of a Party to comply with any obligation, covenant, agreement or condition herein may be waived by the other Party only by a written instrument signed by the Party granting such waiver, bat such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement of condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits Consent by or on behalf of any Party hereto, such Consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance as set fortis, in this Section 9.12, 9.13 Jurisdiction: Menu= Consent to Sala. of Process. Each of the Patties irrevocably and unconditionally submits to the non-exclusive jeuisdiction of the Jefferson County Court in St Louis, Missouri or, if such court will not accept jurisdiction, the Supreme Court of the State of Missouri or any court of competent civil jurisdiction sitting in Jefferson County, Missouri in any action., suit or other Proceeding, each of the Parties irrevocably and unconditionally waives and agrees not to assert by way of motion, as a defense or otherwise any claims that it is not subject to the jurisdiction of the above comas, that such action or suit is brought in an inconvenient forum or that the venue of such action, suit or other Proceeding is improper. Each of the Parties also hereby agrees that any final and unappealable judgment against a Party in connection with any action, suit or other Proceeding shall be conclusive and binding on such Patty and that such award or judgment maybe enforced in any court of competent jurisrliction, either within or outside of the United States Each Party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to Section 9.8. Nothing in this Section 9.13 shall affect the tight of any Party to serve process in any other manner permitted under applicable Law. 20 446060.6 IN WITNESS WHEREOF, the Parries have execs this Asset Pause Agreement as of the dstteEra aetfi above Ifissoiarldinerican Water Gisolisay,aliihsouii The City of Areo$d, Missouri oo rarion Br Attest; IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the date first set forth above: Missouri -American Water Company, a Missouri The City ofArnold, Missouri corporation By: Frank Katmnann, President Attest Attest EXHIBIT I System See attached. CIT` OF ARNOLD MISSOURI SEWER SYSTEM EVALUATION SURVEY (SSES STUDY Phase 3 Technical Memorandum --frivaig9q Prepared For: City of Arnold Prepared By: Fribis Engineering HDR Engineering TREKK Design Group October 2013 HDR Project No. 185520 FiR 2 JXIST!NG WASTEWATER SYSTk--L The City of Arnold is bordered by the Meramec River on the north and east. The Meramec River continues south until it converges with the Mississippi River, which is located at the southeast corner of the City. The north portion of the City drains to the east along the Muddy Creek tributary to the Meramec River. The south portion of the City drains to the east along the Pomme Creek tributary to the Meramec River. The City of Arnold covers approximately 7,800 acres. The City owns and operates their collection system that collects wastewater film approximately 9,000 customers, with the majority being residential customers. There are approximately 350 non-residential (commercial and industrial) sewer customers. Most of the City is served by approximately 110 miles of gravity sewer system. However, there are a total of 7 active pump stations within the system and their respective force mains. The majority of these pump stations are located within subdivisions. The City wastewater is conveyed to one of three main interceptors that lead to one of two tunnel pullets to facilities (LMTF) owned and operated by MSD. The City owns no wastewater treatment facilities. Figure 2-1 shows the City's sewer system according to the current CGS mapping and the two tunnel outlets to the MSD facilities. The City consists of three watershed districts: Muddy Creek, Little Muddy Creek, and Pomme Creek. The sewers of the three watersheds drain to their respective interceptor that conveys the wastewater to a tunnel outlet that takes the flow to MSD's LMTF. The three interceptors are called the Muddy Creek, Little Muddy Creek, and Pomme Creek interceptors. Figure 2-2 depicts the delineation of the three watersheds and their corresponding interceptors. The three watersheds within the City were divided into 26 basins. These basins define areas within the collection system where wastewater may be collected and conveyed downhill by gravity. Seventeen of these basins (3-13, 15-16, 22-25), in the Muddy Creek and Little Muddy Creek Watersheds, are located in the northern portion of the City and convey the flow east within the Muddy Creek and Little Muddy Creek interceptors toward the deep Muddy Creek Tunnel that goes under the Meramec River to the MSD system. The other nine basins (0.2, 14,17-21), in the Pomme Creek Watershed, are located in the southern portion of the City and convey the flow east within the Poenme Creek interceptor toward the deep Pomme Creek Tunnel that goes under the Meramec River to the MSD system. Figure 2-3 illustrates the 26 basins divided within the City. See Figure 4-1 for subbasin delineations. October 2013 Arnold, MO SSES Phase 3 Technical Memorandum 105520 2-1 nor IL Lark a' . •-I • lamacearep'`-_. inaleey P4• EXHIBIT 2 Definitions "Acquired Assets" means all right, title, and interest in and to all of the assets which are owned or held by Seller as of the Effective Time that constitute the System or that are used in the operation thereof, including, with respect to the System, all of its (a) Real Property now used and required in the ongoing operation of the System, (b) Tangible Personal Property, (c) intellectual property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against past, present, and future interests therein under the Laws of all jurisdictions, (d) leases, subleases, easements, rights of way, and tights thereunder, (e) all tights of Seller in and to the Assumed Contracts, (i) all rights of Seller in and to any indentures, mortgages, instruments, Encumbrances, or guaranties secured for the operation of the System, (g) accounts, notes, and other receivables arising after the Effective Time, (h) claims, deposits, prepayments, refunds, causes of action, rights of recovery, rights of set-off, and rights of recoupment (including any such item relating to the payment of Taxes), 0 franchises, approvals, Permits, pending application for Permits and Permit renewals, exemptions from any Permits, licenses, Orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies in each case to the extent assignable or transferable to eouu American, 0 books, data, records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings, specifications, creative materials, studies, reports, and other printed or written materials related to Seller's construction, maintenance, and operation of the System, and (k) all of the intangible tights and property, if any, of Seller utilized in the operation of the System, provided that Acquired Assets shall not indude any Excluded Assets. "Acquisition Proposer" means any offer or proposal for the acquisition of Seller, the Acquired Assets or any portion thereof whether by way of merger, consolidation or statutory share exchange or the acquisition of shares of capital stock, the acquisition of assets or similar transaction. "Affiliate" means, with respect to any Person, any Person which, directly or indirectly controls, is controlled by, or is under common control with, such Person. "Allosatien" means a reasonable and supportable allocation of the Purchase Price and the Assumed Liabilities among the Acquired Assets in accordance with Code section 1060 and the Treasury regulations thereunder (and any similar provisions of state or local Law, as appropriate). "Assignment and Assumption Agreement" means an Assignment and Assumption Agreement for the Assumed Liabilities in form and substance reasonably acceptable to Missouri -American. "Assume. Contracts" means the Contracts listed on $alathitl. "Assumed Liabilities" means only the Liabilities arising out of, resulting from or relating to the Assumed Contracts, but only to the extent such Liabilities (A) are to be performed after the Effective Time, (13) do not arise as a consequence of any breach or default prior to the Effective Time, and (C) are accompanied by a correlated duty of performance or payment on the part of the other party(s) thereto. "Audited Financial Statements" means the audited balance sheets of Seller as of August 31, 2012, 2013 and 2414 and the related audited statements of income and cash flows for the twelve (12) mouth period ended August 31, 2012, 2013 and 2014, respectively. . gill of Salc" means a bill of sale for all of the Acquired Assets that are Tangible Personal Property in form and substance reasonably acceptable to Missouri -American, "Business" means the business of Seller as the same is conducted by Seller as of the date hereof and as the same shall be conducted by Seller as of immediately per to the Closing. " $usiriess Day(s)" means any day other than (i) Saturday or Sunday, or (it) any other day on which governmental offices in the State of Missouri are permitted or required to be dosed. "Cleanup" means investigation, cleanup, removal, containment or other remediation or response actions. "S," means die closing of the Contemplated Transactions. "Closingl)ate" means the date on which the Closing actually occuirs. "Code" means the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder. "CanfigradaLinfautgam" means (1) information not available to tine general public concerning the System and financial affairs with respect to a Party hereto or its Affiliates, and (is') analyses, compilations, forecasts, studies and other documents prepared on the basis of such information by the Parties or their agents, representatives, any Related Person, employees or consultants. "Orient" means any approval, consent, ratification, waiver or other authorization. "Contemplated Transactions" means the transactions contemplated by this Transaction Documents.Agreement and the "Cnntti" means any agreement, contract, obligation, legally binding commitment or undertaking (whether written or oral and whether express or implied). "Damages" means any and all claims, losses and other liabilities, plus reasonable attorneys' fees and expenses, including court costs and expert witness fees and costs, incurred in connection with such claims, losses and other liabilities and/or enforcement of this Agreement "DNR" means the Missouri Department of Natural Resources. "Ef feet Time" means 12:01 a.m. on the Closing Date. "Encumbrance" means any charge, claim, community property inteixst, condition, mot, equitable interest, encumbrance, lien, mortgage, option, pledge, security interest; right of first refusal, right of way, servitude or restriction of any kind, including any restriction on use, transfer, receipt of income or exercise of any other attribute of ownership, or any repayment obligation under any grant. "Envirnmeeer means soil, land surface or subsurface strata, surface waters (inelnding navigable waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply; stream sediments, ambient air (=cluding indoor air), plant and animal life and any other environmental medium or natural resource. "Environmental. Heath and Safety Liabilities" means any cost, damages, expense, liability, obligation or other responsibility arising from or under Environmental Law or Occupational Safety and Health Law and consisting of or relating to (a) any environmental, health or safety matters or conditions (including on -site or off -site contamination, occupational safety and health and regulation of chemical substances or products), (fs) fines, penalties, judgments, awards, settlements, legal or administrative Proceedings, damages, losses, claims, demands and response, investigative, remedial or inspection costs and expenses arising under Environmental Law or Occupational Safety and Health Law, (c) financial responsibility under Environmental Law or Occupational Safety and Health Law for cleanup costs or corrective action, including any Cleanup required by applicable Environmental Law or Occupational Safety and Health Law (whether or not such Cleanup has been required or requested by any Governmental Authority or any other Person) and for any natural resource damages, or (d) any other compliance, corrective, investigative or remedial measures required under Environmental Law or Occupational Safety and Health Law. The terms "removal," "remedial," and "response action," include the types of activities covered by the United States Comprehensive Environmental Response, Compensation and liability Act, 42 U.S.C. § 9601 et seq., as amended, and the United States Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., es amended. "Environmental Law" means any Law relating to pollution or protection of human health, safety, the environment, natural resources or Law relating to releases or threatened releases of Hazardous Materials into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution; use, treatment, storage, release, transport or handling of Hazardous Materials. "Excluded Assets" means (a) all cash, cash equivalents and short-term investments of Seller, including all bank accounts, demand accounts, certificates of deposit, time deposits, marketable securities, negotiable instruments and the proceeds of accounts receivable paid prior to the Closing Date, other than deposits and funds included in the Acquired Assets, (b) all accounts receivable of Seller accrued and payable prior to the Effective Time, (c) all intercompany accounts receivable of Seller and notes for those accounts receivable, (d) all Contracts to which the Seller is a party (other than the Assumed Contracts), including the Contracts listed on ,schedule 3.8 (other than the Assumed Contracts listed thereon), (e) all equity interests owned or held by Seller, (f) all insurance policies of Seller and rights thereunder, (g) all causes of action, judgments, claims, reimbursements and demands of whatever nature (including rights under and pursuant to all warranties, representations and guarantees made by suppliers of products, materials or equipment, or components thereof) in favor of Seller to the extent related to any Excluded Asset or Excluded Liability, (h) all corporate minute books and stock Records of Seller and personnel Records and other Records that Seller is required by Law to retain in its possession, n all rights of Seiler under this Agreement and the Transaction Documents and ( all rights, properties and assets set forth on "Excluded Liabilities" means any and all Liabilities of Seller, whether or not incurred in connection with the operation of the System, other than the Assumed Liabilities. "Fill Statements" means the Audited Financial Statements and the Unaudited Financial Statements. "Franchise Agreement" means that certain Franchise Agreement in form and substance reasonably acceptable to Missouri -American. "Governmental Autiaorityt"}es)" means any (a) nation, state, county, city, village, district or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign or other government, (c) governmental or quasi -governmental authority of any nature (mcluding any governmental agency, branch, department, official or entity and any court or other tribunal), (d) multi -national organization or body or (e) body exercising, or entitled to exercise, any administrative, executive, jurt ris1, legislative, police, regulatory or taxing authority or power of any nature. For purposes of this Agreement, Seller shall not be deemed included in the definition of a "Governmental Authority." "Hazardous Activity" means the distribution, generation, handling importing, management, manufacturing, processing, production, refinement; Release, storage, transfer, transportation, treatment or use (including any withdrawal or other use of groundwater) of Hazardous Materials in, on, under, about or from the System or any part- thereof into the Environment, and any other act, system, operation or thing that increases the danger or risk of danger, or poses an unreasonable risk of harm to persons or property on or off the System, or that may affect the value of time System or the Business. "Razaedous Materials" means any waste or other substance that is listed, defined, designated or classified as, or otherwise determined to be, hazardous, radioactive or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any adm1xture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos - containing materials. `" means all buildings, structures, fixtures, building systems and equipment, and all components thereof; including the roof, foundation, load -bearing walls, and other structural elements thereof, heating, ventilation, air conditioning, mechanical, electrical, plumbing, and other building systems, environmental control, remediation, and abatement systems, sewer, storm, and waste water systems, irrigation and other water distribution systems, parking facilities, fire protections, security, and surveillance systems, and telecommunication; computer, wiring, and cable installations, included in the Real Property. "Indemnified Persons" means Missouri -American and Missouti-Amesican's Affiliates and the past; present and future officers, directors, shareholders, partners, employees, agents, attorneys, representatives, successors and assigns of each of them in their capacities as such. latiagibleibiligammite means the assignments of ill of the Acquired Assets which are intangible personal property in form and substance reasonably acceptable to Missouri -American. "Linninkdge" means (s) the actual knowledge of a particular fast by any of the Persons listed on Schedule B (each, a "Knowledge Party"), and (ii) knowledge that would have been acquired by any Knowledge Party acting reasonably and diligently in the performance of such person's role with and duties to Seller. The words "know," "knowing" and "known" shall be construed accordingly. " Iaw(s)" means any law, rule, regulation or ordinance of any federal, foreign, state or local Governmental Authority or other provisions having the force or effect of law, including all judicial or administrative Orders and determinations, and all common law. "ems&" means that certain real property lease in form and substance reasonably acceptable to Missouri -American. "Liability" or "Liabilities" means any liability, indebtedness or obligation of any kind, character or description, whether known or unknown, absolute or contingent; accrued or rmacc rued, disputed or undisputed, liquidated or unliquidated, secured or unscented, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of a Person. Material Adverse Eta means a material adverse effect on (a) the business, assets, Liabilities (contingent or otherwise), operations or condition (financial or otherwise) of the System, the limos and the Acquired Assets, taken as a whole; provided, however, that "Material Adverse Effect" shall not include any changes resulting from general business or economic conditions, including such conditions related to the industry in which the System is operated, which do not specifically relate to the System and which are not disproportionately adverse to the System than to other businesses being operated in the industries in which the System operates, or (b) the ability of Seller to consummate the Contemplated T,tansactioas. "MoPSC" means the Missouri Public Service Commission. "Occupational Safety end Health Law" means any Law designed to prwide safe and healthful working conditions and to reduce occupational safety and health hazards, ;sad any prate, whether governmental or private (mcluding those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions. "axle means any award, decision, injunction, judgment, order, ruling, subpoena or verdict entered, issued, made or rendered by any court, administrative agency or other Governmental Authority or by any arbitrator. "Ordinary Course of Business" means, with respect to the System and the Business, only the ordinary course of commercial operations customarily engaged in by the System and the Business consistent with past practices, and specifically does not include (a) activity ® involving the purchase or sale of the System or the Business or any product line or business unit thereof, or (a) that requires approval by governing persons of equity holders of Seller or any of its Affiliates, as applicable, or (b) the incurrence of any Liability for any tort or any breach or violation of or default under any Contract or Law. "per" means any approval, Consent, license, permit, waiver or other authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Law. "" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, cooperative, estate, trust, association, organization, labor union or other entity or Governmental Authority. "Proceeding" means any action, arbitration, audit, hearing,investigation, litigation or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator. "Purchase Price" means 'Thirteen Million Two Hundred Thousand Dollars ($13,200,000). `Meal Property" means those parcels of real property and those easements or any right-of-way used in the operation of the System, together with all fixtures, fittings, buildings, structures and other Improvements erected therein or thereon. "R" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable fora;. `Wilted Person" means: (a) with respect to a particular individual, (i) each other member of such individual's Family, (t) any Person that is directly or indirectly controlled by such individual or one or more members of such individual's rFamily, [tit) any Person in which suchindividual or members of suds individual's Family hold (individually or in the aggregate) a Material Interest, and (iv) any Person with respect to which such individual or one or more members of such individual's Family serves as a director, officer, partner, executor or trustee (or in a similar capacity) and (b) with respect to a specified Person other than an individual, (0 any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with such specified Person, 40 any Person that holds a Material Interest in such specified Person, (iii) each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity), (tv) any Person in which such specified Person holds a Material Interest, (v) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity) and (vi) any Related Person of any individual described in clause (ii) or R. For purposes of this definition, (x) the "Family" of an individual includes (A) the individual, (B) the individual's spouse, (C) any other natural person who is related to the individual or the individual's spouse within the second degree, and (I)) any other natural person who resides with such individual: and (y) "Material Interest" means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or other voting interests representing at least five percent (5%) of the outstencliug equity securities or equity interests in a Person. �,}�,,� ��{,,,� j�,,��,..,,� dumping " ease" means any spilling, � emitting �.""ng escaping, �.ing► dumping or other releasing1�i� into the Environment, whether intentional or unintentional. "pTengible Personal ronetty" means all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies (including chemicals and spare parts), materials, vehicles and other items of tangible personal property of every kind owned or leased by Seller (wherever located and whether or not carried on Seller 'a books), together with any express or implied warranty by the manufacturers or lessors of any item or component part thereof, and all maintenance records and other documents relating thereto. "" or `Taxes" means all taxes, charges, withholdings, fees, duties, levies, or other like assessments including, without limitation, income, gross receipts, ad valorem, value added, excise, property, sales, employment, withholding, social security, Pension Benefit Guaranty Corporation premium, environmental (under Section 59A of the Code) occupation, use, service, service use, license, payroll, franchise, transfer and recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar teen, charges, fees, levies or other assessments, imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or any other basis, and shall include any interest, fines, penalties, assessments, or additions to tax resulting from, attributable to, or incurred in connection with any such Tax or any contest or dispute thereof, and including any Liability for the Taxes of another Person under Treasury Regulation section 1.1502-6 (or any similar provisions of state, local, or foreign Lew), as transferee or successor, by Contract or otherwise. "Tax Realm" or "Inn_$ " means any return, declaration, report, claim for refund, or information return or statement relating to, or required to be filed in connection with any Taxes, including any schedule or attachment thereto and including any amendment thereof. "711r11Person" means a claimant other than an indemnified person hereunder. "Third Person Claim" means a clay alleged by a Third Person. "Transaction Documgta" means this Agreement, the Bill of Sale, the Intangible Assignments, the Assignment and Assumption Agreement, the Franchise Agreement the Lease and all other documents, certificates, assignments and agreements executed and/or delivered in connection with this Agreement in order to consummate the Contemplated Transactions, as the same may be amended, restated, modified or otherwise replaced from time to time. "Unaudited Financial Statement$" means the unaudited balance sheet of Seller as of November 30, 2014 and the related compiled consolidated statements of income and cash flews for the three month period then ended. Rules of Construction For purposes of tins Agreement and the other documents executed in connection herewith, the following rules of construction shall apply, unless specifically indicated to the contrary: (t) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the sing end the plural, and pronouns stated in the masculine, feminine or nester gender shall include the masculine, the feminine and the neuter; (d) the term "or" is not exclusive; (m� the term ch * ' (or any form thereof) shall not be limiting or exclusive; (iv) the terms "hereof;" "herein" and "herewith" and wards of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including the Schedules and Exhibits hereto) and not to any particular provision of this Agent; (v) all references to statutes and related regulations shell include any amendments of same and any successor statutes and regulations as well as all rules and regulations promulgated thereunder, unless the context otherwise requires; (vi) all references in this Agreement or in the Schedules to this Agreement to sections, schedules, exhibits and attachments shall refer to the corresponding sections, schedules, exhibits and attachments of or to this Agreement:, and (vim) all references to any instruments or agreements, including references to any of the documents executed in connection herewith, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof. EXHIBIT 3 Assumed Contracts Sewerage System Agreement dated as of December 11, 2008 by and between The Metropolitan St. Louis Sewet District and the City of Arnold, Missouri Rock Creek Agreement 4467110 Schedules tp the Asset Purchase Agreement dated as of December 113, 2014 by and betweeq MiMond-American Water Company and The Ciptof Arnoldli Missou ak 2.2 (Payees other than Seller) None. Schedule 2.5(a)(tr) (Requ re4 onsents) MoPSC The Metropolitan St. Louis Sewer District Rock Creek Public Sewer District Schedule 3.4 (Real Property; Easements) ($) [As promrptb a''practicnbk following the date herxoof (and in any event prior to Closing), Seller to update this Sthedrde 3.4(a) to provide a cmooTete and as wrote 1ir1in g of all real popery used in the operation of the System as of December 18, 2014.] (b)(i) [As pro , arpracticable following the date hereof (and in any strut prior to Clothe, Seller to *date this Schedule 3.4(b)(ij to provide a Awe, coast and cookie list of all easements relating to the Real Property or the Acquired Arsetr as of December 18, 2014.] (b)(i) [Aspmmpty aspractieabk following the date bergf (and in any event prior to Closine, Seller to update this Schedsrk 3.4(b)(1) to provide a train, wet and cvmplete list of ally, bts of way relating to the RealProperlly or the Acquired Assnets as of December 18, 2014.7 (c) (Asproaenptl3+ as practicable following the date hereof (and ire any event prior to Closing), Seller to update this Schheda/e 3.4(c) to provide a list of any Improvements which encroach an any land that it not included in the Real Property or any ammeter affecting such Real Property, or which violate any building lines or set -back lines or any encroaclmaeantJr onto the Real Proper*, or any portion thereof, which would interfao with the we or'acrupany earth Real Proper* or the continued operation f the System as aurranty amduiate4 in each cam as of December 18, 20141 (e) None. (Personal Property) (a) (Asprompty aspractiabk following the date hereof (and in any event prior to Closigh Sellerto update this Schedvk 3.5(a) to provide a complete and aaxrate Liter of allAc.gerrnrdAssets which are persanal property as of December 18, 2014.] (b) None_ Sciaeduie 3 r No Undisclosed Lr^Jlditic None. .firthadu 'n', tivw-04 4i;1t .. qS"i 't-nb"'M 3014 t %1jsOuriL can Watt' Cioti R;.h.s 01;ity.om _ r[iw40,, k0.1 -x,u i Schedule .3.8 (Contracts) (a) Contracts listed on Exhibit 3 Other "course of business" documents that are not specifically or exclusively used by the System (eg., a grass cutting agreement) and which are not Assumed Contracts (b) None. Schedule 3.9 (Envitomneutal Matters) (a) [Asprwnrptly as practicabk following the date hereof (and in any event prior to Closing), Selkr to rock* this Schedxk 3.9(a) to provide a fist of all mcmptions to the fallowing npresentatien, as of December 18, 2014: Seller it and at all &vs has been in fvdl compliance with and has not been and is not in violation ear labk renderamy applicable Environmental Lout' (d [Asprnmptly aspracticable following the date hereof (and in any event prior to Closing), Seller to update this Schedule 3.9(d) to pre vi k a fist of Haaardoxs Materiafr present on or in the Envirownent at the Real Properly or at any geologica' er hyd ologica<fy ar ioining propery or amy o1Serpart of the Real Property or inch ad a nger or incosperakd into any stntdxrnr therein or tbenon, as encember 18, 2014 (e) [Aspnmptly as practicabkfolkwing the data benof (and in any event prior to Clovingj, Seller to update this Schedule 3.9(e) to preside a list of the following whash exzrtat the ).teris or on the Real Propery: (1) rmdergmund storage tasks; (2) asbestos -containing material in ag form (3) materials or equipment containingpotxhkrivakd bipbenyk (4)groundwater menitering wells; or (5) landfills, surface impouni wente, or disposal areas, in each case as of December 18, ,2014.] (±) (.Aspromp% as practicable framing the date hereof (andin any event prier ta Ciodn), Seller to update this Schedule 3.9) to provide a Jilt of obligations of Seller oritsAffiliates toprank/ e financial asrkmn c in consideration of the System eenderEntaranmentalLaw, as oDeeasrber 18, 2014.] Schedule 310 ietmits) (a) [As ptly as pnrdi able Plowing the date hereof (and in any event priorto Closing), Sailer to update this Schedule 3.10(a) to list its state permit as in effect III of December 18, 2014.] (b) 4spmmptFy as prmaticabkfollowieg the date hereof (andin any event prior to Ching), Seiler to update this Schedule 3.10(b) to lest any exception to the filming representation as of Denmber 18, 2014: The permit listed in (a) conatitrtes all permits necassaryfor the continuing operation 0e S,yrtan and is mad and subsisting audit' ferll fora andOct] Schedules to the Asset PuraA@e Agreement dated as of December 18, 2014 by and between MiasouriLAmerican Water Company and The City of Arnold, Missouri Schedule 3.11 (Insurance) [A.rpsampt v aspmsticabk following the date hereof (and in any event pier to Closing), Seller to update this Schedule 3.11 to provide a list of all insurrurre policies Seller maintains as of December 18, 2014.] Schedule 3.13 (Litigation and Proceedings) Ins promptly er practreabk following the date hereof (and in my event prior to Closing), Seller to iodate this Schedule 3.13 to pranidr a list of all Proceedings, pending or threekned, anticipated or cgrrtemplatea, against Seller or involving the operation of the System, any► of the Acgxbad Assets, or my of Se/kr's members, shareholders, directors, emu, writs or othergoverxingpersore, equity holders or personnel in their capaciy as arch, whuh could direy affect any of the Accord Asset: or the System, as of December 18, 2014,] Schedule 3.14 (Compliance with Laws) None. module 3.15 ()Financial Statements) [As prottotfr ar practicable following the date hereof (and ix my event prior to Closing), Seller to update this Schedule 3.15 to attach (i) the audited balance sheets of Seller as ofAugust 31, 2012, 2013 and 2014 and the related waked statements ofimme and cerh flows far the :salve (12) month period ended August 31, 2012, 2013 and 2014, re.pectivey, and (is) the unathted balance sheet of Seller as eNovember 30, 20014 and the 'elated curnpikd consolidated statements of income and cash flaws jbrthe three month period then ended] Schedule 116 (Transactions with Related Parties) None. Schedule 3.17 (Customer .advances) Pis pram* as practicable fallowing the date beer of (and in any event prior to Closing), Seller to Iodate this Schedvk 3.17 to provide a complete and aresnate fart as of December 18, 2014, of () all unexpired Extension Deposit Agreements (or similar agreements) to which Seller is a pasty and which anntaie unexpired obligations of Seller to proe defor the parent ofperiodic refunds to parties making advances -for the cvssauctivn offacitities firmer service, (iI) all advances arprtpaymerts made by any customer or other Person to Seller with respect to the System or the sire provided thereby and (ii) all other amopayeable (whether as a r.izvbnrsemsat or in the form ofa cat) by Seller to any cfaamer or other Person with respect to the Sytem or the soma padded tbereby+.J Schedule 3.18 (ccounts Receivable) [As prornptb, as practicabk follomieg the date hereof (and in any event prior to Closing), Seller to update ibis Schee& 3.18 to include a lirt of all the accounts receivable (Seller with respect to the Sjskne and an Ong schedule related thereto, as of December 18, 2014.] Schedule 3.19 (Brokers. Finders) None. gto _p rivt; to the Asset PnrchaseAgmeniena Missonti-American Wits. Cn*! pan .bzd lrgt . Cif ar ArglActi, 7t71co-r. r:k. Schedule 320 (5inployvs), (a) [el s promptly as prachiabk following the date hereof (and in any event prior to Closing), Seller to update this Schedwle 3.20(a) to provide a list of to fnldowing information for each employee f the Seller, ischiding each such employee on kave of absence or!veestatas: name, job title, aemnt compensation paid orpayabte, any change in compensation sins the date of the most wentAudited Financial Statement, and hire date, in each case us of December 18, 2014.] (b) None. Schedule 5.10) (Certain Ateements) The Mettopolitan St. Louis Sewer District Rock Creek Public Sewer District Schedule 7.2 (indemnification *ad Payment of Manages by Seller) Pis promptly at prae&ablefollowing the date hereof (and in any event prior to Closing), Missouri Americen to *dare this Schedule 7.2 to provide a dirt easy matters unan rod ding its due diligenceft r rich Seller 'boned provide indera fraation coverage.] $thedule A (5xcluded Assets) None. B owl Mayor Ron Counts; City Council members: Jason Fulbright, Nancy C>isIex, Mary Elizabeth Coleman, Brian McArthur, Paul Freese, Phil Amato, Butch Cooley and Gary Plunk City Treasurer Dan Kroupa; City Administrator Bryan Richison; Finance Director Deborah Lewis; Public Works Director Ed Blattner, Sewer Superintendent Mark Migneco; City Attorney Robert Sweeney. S.0 1DOCS`a462436.4 4 ADDENDUM TO SEWERAGE SYSTEM AGREEMENT THIS ADDENDUM TO SEWERAGE SYSTEM AGREEMENT ("Addendum"). dated as of the lkday of , 2015 (regardless of when signed by the parties hereto), is executed by and between The Metropolitan St. Louis Sewer District (herein referred to as "MSD" or the "District"), a body corporate and politic duly organized and existing under the laws of the State of Missouri (herein referred to as the "State"), Missouri -American Water Company, a Missouri corporation (herein referred to as "Missouri- American"), and the City of Arnold, Missouri, a Third Class City of the State (herein referred to as the "City of Arnold" or simply, the "City"). WHEREAS, in 1982, City of Arnold and MSD entered into an agreement for MSD to treat the City's sewerage; WHEREAS, in 2008, the City of Arnold and MSD entered into the Sewerage System Agreement (the "Agreement"), replacing the original 1982 agreement, and the Sewerage System Agreement remains in full force and effect; WHEREAS, Missouri -American is purchasing the sewer system owned and operated by the City of Arnold, and is willing to assume City's obligations to MSD under the Agreement; WHEREAS, Missouri -American and City have requested that MSD consent to the transfer of the Agreement, and MSD is willing to consent to the transfer of the Agreement and assumption by Missouri -American of City's obligations under the Aggreement., based upon certain agreements and conditions, all as more fully specified below; and WHEREAS, Missouri -American, City of Arnold and MSD have agreed to execute this Addendum to Sewerage System Agreement to govern their relationship after the transfer of the sewerage system from the City to Missouri - American. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration. the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows: Y, DEFINITION OF TERMS All terms used herein shall have the same meaning as defined in the Agreement, except that upon execution of this Addendum, all references in the Agreement to the "City of Arnold", .'Arnold" and the "Municipality" shall refer to Missouri -American. References in this Addendum to the "City." the "City of Arnold" or "Arnold" shall refer to the City of Arnold. IL GENERAL PROVISIONS A. Assignment of Rights and Assumption of Obligations. Upon execution of this Addendum and the effective date of Missouri - American's purchase of the City's sewer system, the City. of Arnold assigns and transfers over to Missouri -American all of the City's right, title, and interest under the Agreement, and Missouri -American assumes all of the rights, duties and obligations of the City of Arnold under the Agrceat ent.. except as otl, wise specified. herein. Missouri -American specifically agrees that it: is responsible for all payments to MSD under the terms of the Agreement. The Agreement shall remain in full force and effect as between Missouri -American and MSD. 2 No provision of the Agreement or this Addendum shall be interpreted by reference to any provision of the Asset Purchase Agreement or any other agreement between Missouri -American and the City to which the District is not a party. B. Retention of Obligation to Enact and Enforce Ordinances. The City of Arnold agrees that it will enact and enforce all applicable ordinances relating to the use of the sewer system by residents and businesses within the City under the Agreement. The City agrees specifically that after the sale of the sewer system it will continue to comply with its ordinance obligations as specified under Sections II(B), II(D) (first paragraph) and VIII of the Agreement. C. Consent to Transfer. The District consents to the assignment of the City's interest and assumption of the City's obligations under the Agreement to and by Missouri - American. as specifically provided herein. MSD agrees that it will accept flow to the Project Facility from Missouri -American pursuant to the Agreement. Missouri -American shall not assign, convey or otherwise transfer any of its interests or obligations under the Agreement without the prior written consent of the District, wilicit consent shall not be unreasonably withheld. D. Access to Property, To the extent the City of Arnold retains an interest i» the real property, the City agrees that authorized personnel of the District may make such entry onto the lands of the City as may be necessary to permit necessary measuring and 3 sampling of wastes and for all other necessary purposes in cona,c.tion with the Agreement and the operation, repair and maintenance of the Project Facility, The District agrees to hold the City harmless from any and all claims, including reasonable attorneys' fees and costs, for property damage or bodily injury resulting from the action of the District's employees or agents occurring on the property of the City and while acting in the course of District employment. E. Further Assurances. The parties to this Addendum agree that they shall perform all such acts (including, without limitation, executing and delivering instruments and documents) as reasonably may be necessary to fully effectuate the intent and each and all of the purposes of the transactions contemplated in the Agreement and this Addendum. III. SECTION HEADINGS Any section and paragraph headings are inserted for convenience only and will not affect the construction or interpretation of this Addendum. IV. EXECUTION OF COUNTERPARTS This Addendum may be simultaneously executed in several counterparts, each of which so executed shall be deemed to be an original, and such counterparts together will constitute but one and the. same Addendum. V. NOTICE Any notice hereunder to Missouri -American shall be deemed to be properly served if delivered or mailed to Missouri -An urican as follows: 4 Missouri -American Water Company 727 Craig Road Creve Coeur. MO 63141 Attention: Legal Department IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above written. THE CITY OF ARNOLD, STATE OF MISSOURI ATTEST Y: STATE OF MISSOURI ) SS COUNTY OF JEFFERSON On this //X of J 4 , in. the year 2 15 before me, a Notary Public in and for said state, personally appeared, the Mayor of the City of Arnold, Missouri, known to me to be the person who executed the within Contract on behalf of the City of Arnold, Missouri, and acknowledged to me that he/she executed the se for the purpose therein stated. In Testimo . �' f, I have hereunto set my hand and affixed my official seal •y�tY ROCIERTiCs i r Per may t. 201? St Louis / Candeake113540038 5 MISSOURI AMERICAN WATER CO., INC. By: .4-gdv a 2�3�Jr'7cJ3� ATTEST BY: By: " r; Seete44a STATE OF MISSOURI ) Sa. `'p,At,_ OF !.. Lef,,,;6 ) On this j of 1 in the year '1015 before , a Notary Public in and for said state. personally appeared rruZei,INAAA the Fir_ec: a - of Missouri American Water Co.. Inc., known to me to be the person who executed the within Contract on behalf of Missouri American Water Co., Inc., and acknowledged to me that he/she executed the same for the purpose therein stated. In Testimony Whereof. I have hereunto set my hand and affixed my official seal.. Notary Public MCI A. OLSEN Notary Public- Notary Sad STATE OF MISSOURI EL Charles County My Commission Expires: March 20, 2017 Commission #13519210 6 METROPOLITAN ST. LOUIS SEWER DISTRICT By: 4 re— ids- ATTEST BY: STATE OF MISSOURI ) ) SS. CITY OF ST. LOUIS ) On this jieday of I ; _ I - , in the year 2015, before me, a Notary Public in and for said state, personally appeared Brian Hoelscher, the Executive Director of The Metropolitan St. Louis Sewer District, known to me to be the person who executed the within Contract on behalf The Metropolitan St. Louis Sewer District, and acknowledged to me that he executed the same for the purposes therein stated. In Testimony whereof, I have hereunto set my hand and affixed my official seal. L.AU RA A. DI i Seal of Mssotet CommissionedforStLadstfts* My COMMISSiaa Wes: May 27, 2019 Commission Number:15 1200 7