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HomeMy Public PortalAboutORD14429 BILL NO. 2008-83 SPONSORED BY COUNCILMAN Penfold ORDINANCE NO. 1 q,4;L. 1 AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH MISSOURI AMERICAN WATER FOR PURCHASE OF THE NORTH JEFFERSON CITY WATER SYSTEM. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized and directed to execute an agreement with Missouri American Water for Purchase of the North Jefferson City ' Water System. Section 2. The agreement shall be substantially the same in form and content as that agreement attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: Uw� 7, a��0 Approved: residing Officer Mayor A EST: APPROVED A TO FORM: (�j� (��),City Cl4k City Counselor i OFFICER'S CERTIFICATE—REPRESENTATIONS AND WARRANTIES OF THE CITY OF JEFFERSON CITY, MISSOURI Pursuant to Section 2.6(a)(v) of the Asset Purchase Agreement dated November 20th 2008 (the"Agreement") by and between the City of Jefferson City, Missouri, a Missouri municipal corporation (the"City'), and Missouri-American Water Company, a Missouri public utility corporation,the undersigned, being the duly authorized Officer of the City, does hereby certify that (i) all of the City's representations and warranties set forth in Section 5.1(a)of the Agreement are true and correct in all respects, on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of the date hereof, and (ii)as to the City's covenants and obligations to be performed or complied with at or before Closing, the City has complied with all such covenants and performed such obligations as set forth in the Agreement. IN WITNESS WHEREOF,the undersigned has hereto set his hand and affixed the seal of the City effective as of 12:01 am CDT on the 29th day of December, 2008. CITY OF JEFFERSON, MISSOURI, a Missouri municipal corporation (SEAL) f • OFFICER'S CERTIFICATE—REPRESENTATIONS AND WARRANTIES OF MISSOURI-AMERICAN WATER COMPANY Pursuant to Section 2.6(b)(iii)of the Asset Purchase Agreement dated November 20`h, 2008 (the"Agreement") by and between the City of Jefferson City, Missouri, a Missouri municipal corporation, and Missouri-American Water Company, a Missouri public utility corporation ("Missouri-American"), the undersigned, being the duly authorized President of Missouri- American, does hereby certify that(i)all of Missouri-American's representations and warranties set forth in Section 5.2(a)of the Agreement are true and correct in all respects, on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of the date hereof, and (ii)as to Missouri-American's covenants and obligations to be performed or complied with at or before Closing, Missouri-American has complied with all such covenants and performed such obligations as set forth in the Agreement. IN WITNESS WHEREOF, the undersigned has hereto set his hand and affixed the seal of Missouri-American effective as of 12:01 am CDT on the 291h day of December, 2008. MISSOURI-AMERICAN WATER COMPANY, a Missouri public utility corporation Terry L. Gloriod President (:SEAL) • CERTIFICATE OF THE CLERK OF THE CITY OF JEFFERSON CITY, MISSOURI I, Adlh'5 YPWell, do hereby certify that I am the duly appointed and acting Clerk o the City of Jefferson City, Missouri (the"City"), and do hereby certify the following as of the date hereof: (i) attached hereto as Exhibit A and incorporated herein by this reference is a true, correct and complete copy of certain ordinances duly adopted by the Board of Trustees of the City as of December 29, 2008 regarding the Asset Purchase Agreement dated November 20, 2008 by and between the City and Missouri-American Water Company; and said ordinances have not been rescinded or modified in any manner and are in full force and effect as of the date hereof; and (ii) attached hereto as Exhibit B and incorporated herein by this reference is a true, correct and complete copy of the Certificate of Incumbency of the City; and said Certificate of Incumbency has not been amended, modified, annulled, rescinded, revoked or changed in any manner whatsoever. IN WITNESS WHEREOF, the undersigned has hereunto set her hand and affixed the seal of the City effective as of 12:01 am CDT on the 29th day of December, 2008. i VVx29_9, Clerk (SEAL) • Jeff City See Cert-City(2) • EXHIBIT A Ordinances Adopted by the Board of Trustees • • • EXHIBIT B Certificate of Incumbency • • INCUMBENCY AND SIGNATURE CERTIFICATE I, Phyllis Powell, Clerk of the City of Jefferson, Missouri (the "City"), do hereby certify that, as of the date hereof, the below-named person whose signature appears hereon has been duly appointed and qualified as an officer of the City holding the respective office hereinafter set forth opposite his name, and that the signature set forth opposite his name below is his genuine signature. Name Office i and eerier Presi lent- IN WITNESS WHEREOF, thg undersigned has a nto set her hand and affixed the seal of the City effective as of o2 PhylI Powell, Clerk (SEAL) BILL OF SALE KNOW ALL MEN BY THESE PRESENTS that,in conjunction with the Asset Purchase Agreement dated November 20,2008 by and between the CITY OF JEFFERSON CITY,a Missouri municipal corporation("Seller") and MISSOURI-AMERICAN WATER COMPANY, a Missouri public utility corporation("Buyer"),Seller provides the attached listing and description of all of the assets Seller used in conjunction with the Business and which the Seller is conveying to the Buyer. Description Quantity Year in Service Original Cost Fire Hydrants 40 1963 or later 8,635 2 1/4" Cl pipe 516 1963 or later 1,109 4" Cl pipe 8,842 1963 or later 21,751 6" Cl pipe 4,498 1963 or later 13,269 6" Class 200 PVC pipe 23,481 1980 or later 146,756 8" Class 200 PVC pipe 2,062 1980 or later 22,043 10" Class 200 PVC pipe 2,097 1980 or later 23,214 Valves 78 1980 or later 10,672 SELLER RESPRESENTS that it paid for these assets of its own proceeds and did not receive any grants or contributions related to the assets listed above. IN WITNESS WHEREOF,Seller has caused this Asset Listing to be executed as of the day • and year first above written. SELLER: Cl ; FFERSON ITY, MISSOURI B N e e: Q/I/�rN dr STATE OF MISSOURI ) ss. COUNTY OF COLE ) On this 29th day of December, 2008, before me appearedjAvt ►eat7r-- to me personally known,who,being by me duly sworn,did say that he/she is the o^ of City of Jefferson City, a Missouri municipal corporation, and that said instrument was signed on behalf of said corporation; and said Officer acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. • SARAH WILLIAMS Notary Public-Notary Seal On STATE OF MISSOURI Notary is County of Cole (SEAL) My Commission Expires 8/29/2010 Commission#06933018 Jefferson City Asset Listing r ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement') is made and entered into thisoth day of 2008 by and between the Missouri-American Water Company, a Missouri public utility to poration ("Missouri-American"), and the City of Jefferson City, Missouri, a Missouri municipal corporation (the "City"). Hereinafter, Missouri-American and the City may be referred to individually as a party or collectively as the parties. RECITALS: A. City owns and operates a water supply system commonly known as North Jefferson City which provides a potable water supply to approximately thirty-eight (38) customers (collectively, the "Business"). B. The City desires to sell substantially all of the assets of the Business to Missouri- American pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants contained herein and in exchange for other consideration the receipt and sufficiency of which are hereby acknowledged,the parties, 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 in Schedule 1 and for purposes of this Agreement and all other documents executed in connection herewith, the rules of construction set forth in Schedule 1 shall govern. ARTICLE 2 Purchase and Sale of Assets; Closing 2.1 Transfer and Descriotion of Assets. Subject to and upon all other terms and conditions of this Agreement, at the Closing Date, but effective as of the Effective Time, City shall, for One Dollar ($1) and other good and valuable consideration (including Missouri-American's assuming responsibility for operating the Business and providing potable water service to the customers), sell, convey, transfer, assign and deliver to Missouri-American free and clear of all Encumbrances, and Missouri-American shall acquire from City, all of City's right, title and interest in and to all of City's property and assets used in the operation of the Business, including the following: (a) all Real Property now used and required to operate the Business; (b) all fire hydrants, water pipes,tanks and valves used in the Business; (c) all data and Records related to City's operation of the Business; (d) all Permits and all pending applications therefor, renewals thereof or exemptions therefrom, in each case to the extent assignable or transferable to Missouri- American, including those listed on Schedule 3.8, (e) all of the intangible rights and property of City such as easements, use of rights of way or other special use permits utilized by City in the operation of the Business. All of the foregoing property and assets are herein referred to collectively as the "Assets". • Other than as expressly provided in this Agreement,the tangible assets being sold hereunder are being sold in their "as-is, where-is" condition, without representation or warranty by City, and subject to ordinary wear and tear between the date of this Agreement and the Closing Date. Jefferson City APA v1 - 1 - • 2.2 Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, the following assets of City(collectively, the"Excluded Assets") are not part of the sale and purchase contemplated hereunder, are excluded from the Assets, and shall remain the property of City after the Closing: (a) all cash, cash equivalents and short-term investments, and all accounts receivable arising prior to the Effective Time; (b) all insurance policies and rights thereunder; (c) all personnel Records and other Records that City is required by law to retain in its possession; (d) all rights in connection with and assets of the Employee Plans; (e) all rights of City under this Agreement, the Bill of Sale, and the Assignment and Assumption Agreement; (f) wells, well houses, pumping and treatment facilities used in the Business; (g) an elevated tank used in the operation of the Business; (h) roads; and (i) the sewer system serving the identified area known as North Jefferson City. 2.3 Consideration. (a) Missouri-American shall pay to the City one dollar and other good and valuable • consideration, including, but not limited to, the obligation to provide the supply of potable water and the continued operation of the Business. (b) At or prior to the Closing, the City shall make certain improvements to the system and shall cap and close certain wells as requested by Missouri-American (collectively the "Capital Improvements"). 2.4 Liabilities. Every Liability of City shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by City. 2.5 Closing. The purchase and sale provided for in this Agreement (the "Closing") will take place at a time and place mutually agreeable to both parties. The parties shall use commercially reasonable efforts to cause the Closing to occur as soon as,practical. In any event, the Closing shall be effective as of 12:01 p.m. (the "Effective Time") on the day the Closing actually occurs (the "Closing Date"). 2.6 Closing Obligations. (a) At or prior to the Closing (as the case may be), City shall deliver to Missouri- American the following documents, duly executed, if applicable: (i) a bill of sale for all of the Assets that are tangible personal property in a form reasonable acceptable to each party(the"Bill of Sale"); (ii) an assignment of all of the Assets which are intangible personal property in a form reasonably acceptable to each party, which shall contain Missouri-American's undertaking and assumption of the Assumed Liabilities(the"Assignment and.Assumption Agreement'); Jefferson City APA v1 - 2 - • (iii) for each interest in Real Property and each easement and/or right-of-way identified on Schedule 3.4, a recordable warranty deed or such other appropriate document or instrument of transfer or approval, as the case may require, each in form and substance reasonably satisfactory to Missouri-American and City and their respective legal counsel. Notwithstanding the fact that the same may not be listed on Schedule 3.4, City must provide easements or other transferable property rights to Missouri-American for all mains used in the Business, which are not located on public rights-of-way, and must provide assignments of public rights-of-way permits with only those conditions mutually acceptable to Missouri-American and City for all mains located in municipal, County or State owned public rights-of- way, (iv) such other deeds, bills of sale, assignments, certificates of title, documents and other instruments of transfer and conveyance as may reasonably by requested by Missouri-American, each in form and substance reasonably satisfactory to Missouri-American and City and their respective legal counsel; (v) a certificate as to the accuracy of City's representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 5.1(a) and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before at Closing in accordance with Section 5.1(b); (vi) a certificate of the secretary of City, dated as of the Closing Date, certifying: (A)that attached to the secretary's certificate are true copies of the duly adopted resolutions of the board of directors of City authorizing the execution of this Agreement and the performance of the Contemplated Transactions; and (B) that attached to the secretary's certificate is a true and complete original copy of the incumbency and signatures of the officers of City executing this Agreement or any agreement contemplated hereby on behalf of City; • (vii) a certificate of good standing issued by the Secretary of State of Missouri with respect to City, dated not earlier than thirty(30) days prior to Closing; and (vii) a legal opinion of City's legal counsel, affirmatively opining to such matters as Missouri-American or its legal counsel may reasonably request, including but not limited to (A) the due authorization and execution of this Agreement by City and the enforceability thereof, and (B) the enforceability of the Customer Fair Share Charge of current and future members of City. (b) At or prior to the Closing, Missouri-American shall deliver to City, or perform, the following, duly executed, if applicable: (i) the Capital Improvements; (ii) the Assignment and Assumption Agreement; (iii) a certificate as to the accuracy of Missouri-American's representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 5.2(a) and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before at Closing in accordance with Section 5.2(b); (iv) a certificate of the secretary of Missouri-American, dated as of the Closing Date, certifying: (A)that attached to the secretary s certificate are true copies of the duly adopted resolutions of the board of directors of Missouri-American authorizing the execution of this Agreement and the performance of the Contemplated Transactions; and (B) that attached to the secretary's certificate is a true and complete original copy of the incumbency and signatures of the officers of Missouri-American executing this Agreement or any agreement contemplated hereby on behalf of Missouri-American; and (v) a certificate of good standing issued by the Secretary of State of Missouri with respect to Missouri-American, dated not earlier than thirty(30) days prior to Closing. Jefferson City APA v1 - 3 - • ARTICLE 3 Representations and Warranties of Clty City hereby makes the following representations and warranties to Missouri-American: 3.1 Organization-and Good Standing. City is a municipal corporation duly organized, validly existing and in good standing under the Laws of the State of Missouri, with full corporate power and authority to conduct the Business as it is now being conducted and to own, lease and operate its properties and the Assets. 3.2 Enforcement: Authority: No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of City, enforceable against City 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. City 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, and such action has been duly authorized by all necessary action by City's City Counsel. (b) Neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions will, directly or indirectly(with or without notice or lapse of time): (i) contravene, conflict with or result in a violation of: (A) any provision of the Organizational Documents of City; or(B) any resolution adopted by the City Counsel of City; (ii) to City's Knowledge, contravene, conflict with or result in a violation of or give any Governmental Authority or 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 City or any of the Assets may be subject; (iii) to City's Knowledge, 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 City or that otherwise relates to the Business or any of the Assets; (iv) to City's Knowledge, contravene, conflict with or result in a violation or breach of any provision of, require the Consent of.any Person, 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 of which City is a party or by which any of the Assets are bound; or (v) result in the imposition or creation of any Encumbrance upon or with respect to any of the Assets, except as contemplated by this Agreement. 3.3 Assets. City has good and marketable title to all of the Assets. The Assets are free and clear of any and all Encumbrances whatsoever. None of the Assets are leased or on loan by City to any third party. The Assets constitute all property necessary for the operation of the Business in the manner currently being operated by City. 3.4 Real Property; Easements. To City's Knowledge, City has good and marketable title to those parcels of real property and those easements or rights-of-way used in the operation of the Business, together with all fixtures, fittings, buildings, structures and other improvements erected therein or thereon (the"Real Property'). • 3.5 Tangible Personal Propert y. Set forth on Schedule 3.5 is a complete and accurate listing of all items of Tangible Personal Property owned or used by Seller in the operation of the Business. Jefferson City APA v1 -4 - 3.6 Contracts. Set forth on Schedule 3.6 is a complete and correct list of all Contracts related to.the Business to which City is a party. City has delivered or caused to be delivered to Missouri- American correct and complete copies of each Contract (including all amendments thereto), a description of the terms of each Contract which is not in writing, and all documents affecting the rights or obligations of any party thereto. The Contracts have not been modified or amended except as disclosed on Schedule 3.6. To City's Knowledge: (i) each Contract is valid and enforceable against City in accordance with its terms and is in full force and effect, and each 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 similar laws affecting the rights of creditors generally and by general principles of equity; (ii) no default and no event which, with the giving of notice, lapse of time, or both, would be a default has occurred under any Contract; (iii) there are no setoffs, counterclaims or disputes existing or asserted with respect to such Contracts, and City 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 Contract or tend to reduce or increase the amounts payable thereunder; (v) City has not, directly or indirectly, by operation of law or otherwise, transferred or assigned all or any part of its right, title or interest in and to any Contract to any other Person; and (vi) there are no Proceedings pending nor threatened against any party to any of the Contracts which relate to the subject matter of the Contracts. 3.7 Environmental Matters. To City's Knowledge, except as previously disclosed to Missouri-American: (a) Except as set forth on Schedule 33(a), City is and at all times has been in full compliance with and has not been and is not in violation of or liable under any applicable Environmental Law. City has no basis to expect nor has it received any actual or threatened Order, notice or other communication from any Governmental Authority or private citizen acting in the public interest of any • actual or potential 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 mixed) in which City has or has had an interest or with respect to any property, the Real Property or other real property at or to which Hazardous Materials were generated, manufactured, refined, transferred, imported, used or processed by City 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 City has or had an interest. (c) Neither City nor any other Person for whose conduct it is or may be held to be responsible has received any citation, directive, inquiry, notice, Order, summons, warning or other communication that relates to Hazardous Activity, Hazardous Materials or any alleged, actual or potential violation or failure to comply with any Environmental Law or of any alleged, actual or potential 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 mixed) in which City has or has had an interest or with respect to any property to which Hazardous Materials generated, manufactured, refined, transferred, imported, used or processed by City or any other Person for whose conduct it is or may be held responsible, have been transported,treated, stored, handled, transferred, disposed, recycled or received. (d) Neither City 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 City (or any • predecessor) has or has had an 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. Jefferson City APA v1 - 5 - • (e) There are no Hazardous Materials 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 City nor any other Person for whose conduct it is or may be held to be responsible has permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Real Property or any other properties or assets (whether real, personal or mixed) in which City has or has had an interest except in material compliance with all applicable Environmental Laws. (f) There has-been no Release or threat of Release, of any Hazardous Materials at or from the Real Property or from or by any other properties and assets (whether real, personal or mixed) in which City has or has had an interest, or any geologically or hydrologically adjoining property, whether by City or any other Person. (g) City has delivered to Missouri-American true and complete copies and results of any reports, studies, analyses, tests or monitoring possessed or initiated by City pertaining to Hazardous Materials or Hazardous Activities in, on or under the Real Property, or concerning compliance by City or any other Person for whose conduct it is or may be held to be responsible, with Environmental Laws, said reports, studies, etc. to include without limitation, any and all Phase I environmental reports now or hereafter in the possession or control of City. 3.8 Permits. Set forth on Schedule 3.8 is a complete and correct list of all Permits used by City in the operation of the Business. To City's Knowledge, such Permits constitute all Permits necessary for the operation of the Business and all such Permits are valid and subsisting and in full force and effect. There exists no fact or circumstance which is reasonably likely to cause any Permit to be revoked or materially altered after the Closing Date. 3.9 Insurance. To City's Knowledge, City maintains and has maintained appropriate insurance necessary for the full protection of all of its assets, properties, business, operations, products and services. All such policies are in full force and effect and City will use commercially reasonable efforts to cause such policies to be outstanding and in full force and effect at the Closing and immediately following consummation of the Contemplated Transactions and the premiums therefor have been paid in full as they become due and payable. There are no pending Proceedings arising out of, based upon or with respect to any of such policies of insurance and to City's Knowledge, no basis for any such Proceedings exists which will result in an Encumbrance against the Assets. To City's Knowledge, City is not in default with respect to any provisions contained in any such insurance policies and no insurance provider is in default with respect to such insurance policies. 3.10 No Material Adverse Change. Since �- , 2008, to City's knowledge, there have been no material adverse changes in the Business or Assets nor has there been any material adverse change in the relationships City maintains with its customers, employees and Governmental Authorities nor are there any events, transactions or other facts which exist or have occurred and which are likely to have an adverse effect on the foregoing. 3.11 Conduct of Business In Ordinary Course. Since a 2008, City has operated the Business only in the ordinary course of business. Without limita ion of the foregoing, since such date, City has not entered into, amended, terminated or received notice of termination of any Contract or Permit. 3.12 Litigation and Proceedings. Other than as set forth on Schedule 3.12 hereto, there are no Proceedings pending or threatened against City or directly affecting any of the Assets or the Business by or on account of any Person or before any Governmental Authority and to City's Knowledge, there is no valid basis for any such Proceeding. City has not been charged with, nor to City's Knowledge, 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 Assets or the Business and there is no valid basis for any such charge or investigation. No judgment, Order, writ, injunction, decree, assessment or Jefferson City APA v1 - 6 - i . other command of any Governmental Authority affecting City or any of the Assets or the Business has been entered which is presently in effect. There is no Proceeding pending or to City's Knowledge, threatened which challenges the validity of this Agreement or the Contemplated Transactions or otherwise seeks to prevent, directly or indirectly, the consummation of the Contemplated Transactions, nor is there any valid basis for any such Proceeding. 3.13 Compliance with Laws. To City's Knowledge, City is in compliance with all Laws applicable to the Assets and the operation of the Business and has not committed any violation of any Law applicable to the Assets and/or operation of the Business. The Assets, in their current condition, are capable of complying with all Laws. 3.14 Material Omissions. Independent of and in addition to the foregoing representations and warranties contained in this Article 3, neither this Agreement nor any written statement, list, certificate or other information furnished by or on behalf of City in response to specific written requests made by Missouri-American or Missouri-American's representatives or attorneys contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading. ARTICLE 4 Representations and Warranties of Missouri-American Missouri-American hereby makes the following representations and warranties to City: 4.1 Organization. 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 and to conduct its business as now being conducted. 4.2 Enforcement: Authority: No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of Missouri- American, enforceable against Missouri-American in accordance with its terms. Missouri-American 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, and such action has been duly authorized by all necessary action by Missouri-American's board of directors. (b) Neither the execution and delivery of this Agreement, nor the consummation of the Contemplated Transactions nor compliance by Missouri-American with any of the provisions hereof will result in: (i)a violation of or a conflict with any provision of the Organizational Documents of Missouri- American; (ii) 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; (iii) 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; or (iv)any Person having the right to enjoin, rescind or otherwise prevent or impede the Contemplated Transactions or to obtain damages from City or to obtain any other judicial or administrative relief. 4.3 Litigation and Proceedings. There is no Proceeding pending nor, to the Knowledge of Missouri-American, threatened which challenges the validity of this Agreement or the Contemplated Transactions or otherwise seeks to prevent, directly or indirectly, the consummation of such transactions, nor, to the Knowledge of Missouri-American, is there a valid basis for any such Proceeding. ARTICLE 5 Conditions Precedent to Closing Jefferson City APA v1 - 7 - • 5.1 Conditions Precedent to the Obligations of Missouri-American. 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) Representations and Warranties. Each of the representations and warranties of City contained in Article 3 is true, correct and accurate from the date of this Agreement and as of the Closing Date shall be true, correct and accurate as though restated on and as of such date (except in the case of any representation and warranty that by its terms is made as of a date specified therein, which shall be accurate as of such date); (b) Covenants. City shall have performed and complied with all covenants required by this Agreement to be performed or complied with by them prior to or at the Closing; (c) Proceedings. No Order shall be in effect and no Proceeding by any Person shall be threatened or pending before any Governmental Authority, or before any arbitrator, wherein an unfavorable Order would: (i) prevent consummation of the Contemplated Transactions; (ii) have a likelihood of causing the Contemplated Transactions to be rescinded following consummation; (iii) adversely affect the right of Missouri-American to own any of the Assets; or (iv) adversely affect the business prospects, value or condition of any of the Assets or the Business; (d) Approvals. (i) By t 3t 200 ; Missouri-American shall have obtained all applicable Consents and approvals from third parties, including without limitation any Governmental Authority, and those Consents required for Missouri-American's assumption of any Assumed Contract and (ii) any waiting periods under existing Laws, and all extensions thereof, the passing of which is necessary to cons mate the Contemplated Transactions, shall have expired. Without limiting the foregoing, by ( 200 A, Missouri-American shall have received all necessary regulatory approvals of its tariffs and of rates, and the necessary ratebase to support such rates, to be effective as of the Closing Date; (e) Closina Deliveries. City shall have delivered to Missouri-American the Closing Deliveries set forth in Section 21(a); (f) Due Diligence. Missouri-American shall be satisfied, in its sole and absolute discretion, with the results of its due diligence review of the Business,the Assets and the City, including without limitation, satisfaction with the results of any environmental assessment performed with respect to the Real Property or the Assets. In the event Missouri-American is dissatisfied with any such results, Missouri-American may, by written notice to City on or before 5:00 p.m. Central Time on the date that is three weeks after the date hereof, terminate this Agreement, in which event the parties shall be released from all further obligations hereunder. (g) No Adverse Change. Missouri-American has determined that there has not been any material adverse change in the Business, the Assets,financial condition or business prospects of City and that there is no adverse change in the relationships maintained by City with its employees, suppliers, customers or Governmental Authorities; and (h) Water Supply Agreement with Calloway County WSD #1. Missouri-American shall have an enforceable agreement with the Callaway County WSD #1 to purchase all of the potable water supply needs of the Business. The agreement for the purchase of water shall by in Missouri- American's sole and absolute discretion and the City shall have no right or authority to force Missouri- American to accept any contract for the purchase of water. 5.2 Conditions Precedent to Obligations of City. The City's obligation to consummate the Contemplated Transactions is subject to the satisfaction in full, unless expressly waived in writing by City, of each of the following conditions: • (a) Representations and Warranties. Each of the representations and warranties of Missouri-American contained in Article 4 is true, correct and accurate as of the date of this Agreement Jefferson City APA v1 - 8 - and as of the Closing Date shall be true, correct and accurate as though restated on and as of such date • (except in the case of any representation and warranty that by its terms is made as of a date specified therein,which shall be accurate as of such date); (b) Covenants. Missouri-American shall have performed and complied with all covenants required by this Agreement to be performed or complied with by Missouri-American prior to or at the Closing; (c) Proceedings. No Order shall be in effect and no Proceeding by any Person shall be threatened or pending before any Governmental Authority or before any arbitrator wherein an unfavorable Order would: (i) prevent consummation of the Contemplated Transactions; or (ii) have a likelihood of causing the Contemplated Transactions to be rescinded following consummation;and (d) Closing Deliveries. The Missouri-American shall have delivered to City the Closing Deliveries set forth in Section 2.7(b). 5.3 All Reasonable Efforts. City will use commercially reasonable efforts to satisfy each of the conditions for Closing of the Missouri-American set forth in Section 5.1 above and the Missouri- American will use commercially reasonable efforts to satisfy each of the conditions for Closing of City set forth in Section 5.2 above. ARTICLE 6 Covenants and Special Agreements 6.1 Certain Covenants of All Parties Prior to Closing. (a) (a) Each party shall ensure that all Confidential Information which such party or any of its respective officers, directors, employees, counsel, agents, or accountants may now possess • or may hereafter create or obtain relating to the financial condition, results of operations, business, 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 shall not be published, disclosed or made accessible by any of them to any other person or entity 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 required by law, (ii)to the extent such Confidential Information shall have otherwise become publicly available, and (iii) as to Buyer, to disclosure by or on its behalf to regulatory authorities or other third parties whose consent or approval may be required to consummate the Contemplated Transactions and to its lenders and professionals for the purpose of obtaining financing of such transactions. 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 will 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. Notwithstanding anything in this Section 6.1(a) to the contrary, each party hereto agrees that each party may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the proposed transaction and all materials of any kind (including opinions or other analyses) that are provided to such party or such person relating to such tax treatment and tax structure. This authorization is not intended to permit disclosure of any other information including, without limitation, (i) any portion of any materials to the extent not related to the tax treatment or tax structure of the transaction, (ii) the identities of participants or potential participants in the transactions contemplated • hereby, (iii) the existence or status of any negotiations, (iv) any pricing or financial information, except to the extent such pricing or financial information is related to the tax treatment or tax structure of the Jefferson City APA v1 - 9 - • proposed transaction, or (v) any other term or item of information not relevant to the tax treatment or the tax structure of the proposed transaction. (b) Publicity: Announcements. From the date hereof through and including the Closing Date, no party hereto shall issue, cause or permit the publication by any of their respective Related Persons, agents or representatives, any press release or other public announcement with respect to this Agreement or the Contemplated Transactions except: (i) with the consent of the other parties hereto (which shall not be unreasonably withheld); or(ii) as required by applicable Law (including, without limitation, any applicable securities Law). Seller will not, without the prior consent of Buyer, make any announcements to employees of Seller with respect to the Contemplated Transactions and, at such time as an announcement to the employees is made, Buyer shall be allowed to participate in such announcement. It is hereby acknowledged that the parties will discuss the Contemplated Transactions with their respective financial and legal advisors and such discussions shall not be deemed to violate the provisions of this Section 6.1. (c) Cooperation. Any notices or certifications given under this Agreement or any related agreement shall be given in good faith without any intention to unfairly impede or delay the other party. Missouri-American and City shall cooperate fully with each other and their respective counsel and accountants in connection with any actions required to be taken as part of their respective obligations under this Agreement including, without limitation, actions required to be taken with respect to obtaining any applicable regulatory approval of the Contemplated Transactions and Missouri-American and City shall execute such other documents as may be necessary and desirable to the implementation and consummation of this Agreement. Each party agrees to use all reasonable efforts to consummate the Contemplated Transactions including, without limitation, doing all things reasonably necessary to obtain the requisite regulatory approval. (d) Certain Notifications. At all times prior to the Closing Date, each party agrees to • promptly notify the others in writing of the occurrence of any event which will result in the failure of any of the conditions contained in Article 5 to be satisfied. (e) No Inconsistent Action. No party shall take any action inconsistent with its respective obligations under this Agreement or any of the Contemplated Transactions. 6.2 Covenants of City Prior to Closing. City covenants and agrees that during the period from the date hereof until Closing: (a) Non-Solicitation. Unless and until such time as this Agreement is terminated pursuant to Article 8, City shall not, and will cause each officer, director and agent not to, directly or indirectly: (i) submit, solicit, initiate, encourage or discuss any proposal or offer from any Person relating to any sale of all or any portion of the Assets or a sublease or assignment of any lease or any similar transaction involving City and the Business or the Assets; (ii) enter into any agreement or commitment related to any such transaction; or (iii) furnish any information with respect to or assist or participate in or facilitate in any other manner any effort to attempt by any Person to do or seek any of the foregoing. City shall notify Missouri-American immediately if any Person makes any proposal, offer, inquiry or contact with respect to any of the foregoing. (b) Access. Between the date of this Agreement and the Closing Date, and upon reasonable prior notice by Missouri-American, City shall: (i) furnish Missouri-American and its financial and legal advisors with copies of all such Contracts, books and records and other existing documents and data as Missouri-American may reasonably request; (ii) furnish Missouri-American and its financial and legal advisors with such additional financial, operating and other data and information as Missouri- American may reasonably request; (iii) permit Missouri-American or its representatives to conduct such physical inspections and environmental audits of the Real Property, as requested by Missouri-American; and (iv) permit Missouri-American or its representatives to conduct interviews of employees of City. • (c) Ordinary Course. City shall carry on the operation of the Business in the ordinary course of business, consistent with prior practice, not introduce any materially new method of Jefferson City APA v1 10 - • management or operation, use their reasonable efforts to preserve the Business and conserve the goodwill and relationships of City's customers, suppliers, Governmental Authorities and others having business relations with it and continue to operate the Business during the normal business hours consistent with past practice. City shall not engage in any activity or transaction during the term of this Agreement which is inconsistent with the terms of this Agreement. (d) Liens: Encumbrances. City shall not enter into or assume any mortgage, pledge, . security agreement or other title retention agreement or permit any Encumbrance to attach to any of the Assets, whether now owned or hereafter acquired. (e) Further Covenants. (i) Reports. City shall duly and timely file all reports required to be filed with any Governmental Authority and will promptly pay when due all Taxes, assessments and governmental charges including interest and penalties levied or assessed, unless diligently contested in good faith by appropriate Proceedings; (ii) Condition of Property. Consistent with past practice, City shall maintain and keep the Assets in substantially the same condition as of the date hereof, normal wear and tear excepted; (iii) Insurance. City shall maintain in full force and effect all policies of insurance now in effect; (iv) No Breach or Default of Contracts. City shall not do any act or omit any act or permit any omission to act which will cause a breach or default by City of any Contract; (v) Supplies. City shall keep supplies at a level which is sufficient to operate • the Business in accordance with past practice; (vi) Contracts. City shall not enter into any Contract other than in the ordinary course of business; and (vii) Related Person Transactions. City shall not enter into any transaction with any Related Person. 6.3 Certain Post-Closing Covenants of City. (a) City hereby agrees not to oppose the filing by Missouri-American of the approval of this transaction with the Missouri Public Service Commission. (b) City shall pay in a timely manner all Taxes resulting from or payable in connection with the sale of the Assets pursuant to this Agreement, regardless of the Person on whom such Taxes are imposed. (c) City shall pay, or make adequate provisions for the payment, in full of all of the Retained Liabilities and other Liabilities of City under this Agreement. (d) City hereby agrees to cooperate with Missouri-American to ensure a proper transition of all customers with respect to billing and customer service activities. (e) City hereby acknowledges that Missouri-American must comply with all provision of its tariffs as filed with and approved by the Missouri Public Service Commission. (f) Contemporaneously with the Closing and the connection of the servcie area to • the Missouri-American's water system, City shall take all actions necessary to cause the wells currently providing water to the Business to be disconnected from the Assets. Such actions shall be undertaken so as to be in compliance with all applicable Laws. As soon as possible thereafter, and in any event within Jefferson City APA v1 1, 1 • one year after Closing, City shall cause the wells to properly capped, in accordance with all Laws. All such actions shall be at City's sole cost and expense. City shall have the sole responsibility for removing the treatment facilities currently used from service and closure of such treatment facilities. ARTICLE 7 Indemnification 7.1 Survival: Right to Indemnification Not Affected by Knowledge. All representations, warranties, covenants and obligations of Seller given in this Agreement and/or any Transaction Document delivered pursuant to this Agreement shall survive the Closing; provided, however that the warranty contained in Section 3.9(b) shall only survive for a period of one (1) year after Closing. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty or on the performance of or compliance with any covenant or obligation will not affect the right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants and obligations. 7.2 Indemnification and Payment of Damages by Seller. (a) Seller hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless Buyer and Buyer's past, present and future officers, directors, shareholders, employees, agents, attorneys, representatives, successors and assigns (collectively the "Indemnified Persons), from any and all manner of actions, suits, debts, sums of money, interest owed, accounts, controversies, agreements, charges, damages, judgments, executions, and • reasonably incurred costs, expenses, fees (including reasonable attorneys' fees and court costs), counterclaims, claims, demands, causes of action, liabilities and losses and award all other Liabilities incurred, paid or sustained by any of the foregoing (hereinafter referred to as "Damages"), in each case, arising out of, or caused by: (i)the misrepresentation, breach of warranty or nonfulfillment of any provision of this Agreement by Seller or; (ii) all Liabilities and/or duties of Seller,whether accruing prior to or after the Closing Date, and any Encumbrance affecting the Assets; (iii) assessments, charges and other similar claims due or owing, directly or indirectly, by Seller or otherwise as a result of on account of the Assets or the Business at any time prior to the Closing Date; (iv) the ownership and/or operation of any of the Assets or the Business prior to Closing; (v) any Proceeding now existing or hereafter arising and relating to the Assets or the Business of Seller and arising from events or matters occurring prior to the Closing Date; and (vi) any claim by an employee of Seller for any severance payment or arising out of such employee's employment with Seller or under the Worker Adjustment and Retraining Notification Act, COBRA (Sections 601 through 608 of the Employee Retirement Income Security Act of 1974), or under any employee benefit plan or employment Contract to which Seller is a party. (b) The indemnification set forth in Section 7.2(a) shall be subject to any maximum Damages allowed under appropriate theories of sovereign immunity. 7.3 Indemnification and Payment of Damages by Seller - Environmental Matters. In addition to the provisions of Section 7.2, Seller hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless the Indemnified Persons, and will pay to the Indemnified Persons the amount of any Damages (including costs of Cleanup, containment or other remediation) arising, directly or indirectly, from or in connection with: (a) Any Environmental, Health and Safety Liabilities arising out of or relating to: (i) (A) the ownership, operation or condition at any time on or prior to the Closing Date of the Assets and/or the Real Property or any other properties and assets (whether real, personal or mixed and whether • tangible or intangible) in which Seller has or had an interest; or (B) any Hazardous Materials or other contaminants that were present on the Real Property or such other properties and assets at any time on or prior to the Closing Date; or (ii) (A) any Hazardous Materials or other contaminants, wherever located, Jefferson City APA v1 - 12 - • that were, or were allegedly, generated, transported, stored, treated, Released or otherwise handled by Seller or by any other Person for whose conduct it is or may be held responsible at any time on or prior to the Closing Date; or (B) any Hazardous Activities that were, or were allegedly, conducted by Seller or by any other Person for whose conduct it is or may be held responsible on or prior to the Closing Date; or (b) Any bodily injury(including illness, disability and death), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person, including any employee or former employee of Seller or any other Person for whose conduct is or may be held responsible, in any way arising from or allegedly arising from any Hazardous Activity conducted or allegedly conducted with respect to the Assets or the Real Property by Seller prior to the Closing Date, or from Hazardous Material that was: (i) present or suspected to be present on or before the Closing Date on or at the Real Property (or present or suspected to be present on any other property, if such Hazardous Material emanated or allegedly emanated from any of the Real Property and was present or suspected to be present on any of the Real Property on or prior to the Closing Date); or(ii) Released or allegedly Released by Seller or any other Person for whose conduct it is 'or may be held responsible, at any time on or prior to the Closing Date. Buyer and Seller shall jointly be entitled to control any Cleanup, any related Proceeding and, except as provided in the following sentence, any other Proceeding with respect to which indemnity may be sought under this Section 7.3. The procedure described in Section 7.3 will apply to any claim solely for monetary damages relating to a matter covered by this Section 7.3. 7.4 Indemnification By Buyer. Buyer hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless Seller and its respective. successors, heirs and assigns, from any and all Damages arising out of, or caused by: (i) Buyer's misrepresentation, breach of warranty or nonfulfillment of any provision of this Agreement; (ii) any Proceeding arising after the Closing Date and relating to events or matters occurring subsequent to the Closing Date; and (iii) any Claim by an employee of Buyer arising out of such employee's employment with Buyer. 7.5 Procedure for Indemnification. The procedure for indemnification shall be as follows: (a) The party claiming indemnification (the "Claimant") shall promptly give notice to the party from whom indemnification is claimed (the "Indemnifying Party") of any claim, whether between the parties or brought by a third party, specifying: (i) the factual basis for such claim; and (ii) the amount of the claim. If the claim relates to a Proceeding filed by a third party against Claimant, Claimant shall give such notice within ten (10) Business Days after written notice of such Proceeding was given to Claimant. Claimant's failure to give the Indemnifying Party such notice shall not preclude Claimant from obtaining indemnification from the Indemnifying Party unless Claimant's failure has materially prejudiced the Indemnifying Party's ability to defend the claim or litigation, and then the Indemnifying Party's obligation shall be reduced to the extent of such prejudice. (b) Following receipt of notice from the Claimant of a claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representatives the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying Party do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy. (c) (i) With respect to any claim by a third party as to which the Claimant asserts it is entitled to indemnification hereunder, the Indemnifying Party shall have the right, at its own expense, to participate in or at its election to assume control of the defense of such claim, with counsel reasonably satisfactory to Claimant, subject to reimbursement of Claimant for actual out-of-pocket expenses incurred by Claimant as the result of request by the Indemnifying Party, subject to the following; Jefferson City APA v1 - 13 - • (A) The Claimant may retain separate co-counsel at its sole cost and expense and participate in the defense of any such claim by a third party; and (B) The Indemnifying Party shall conduct the defense of the third party claim actively and diligently thereafter. (ii) If the Indemnifying Party elects to assume control of the defense of any third party claim pursuant to Section 7.5(c)(i), the Indemnifying Party may nevertheless reserve the right to dispute the amount of indemnification claimed or dispute Claimant's right to be indemnified with respect to all or any portion of the claim. Except with the written consent of the Claimant, the Indemnifying Party shall not, in defending any claim or any litigation resulting therefrom, consent to entry of any judgment or enter into any settlement which does not release the Claimant from all liability in respect of such claim or litigation. In the event the Claimant fails to consent to any settlement or compromise which such failure ' results in damages in excess of the amount for which consent was requested, the limitation of the Indemnifying Party's obligations to indemnify the Claimant with respect to the subject matter of the claim shall be the amount of the proposed settlement or compromise rejected by Claimant and the Claimant shall be responsible for, and shall hold harmless the Indemnifying Party from, all damages (including, without limitation, reasonable attorney's fees incurred with respect to matters subsequent to the rejection of the settlement by Claimant) in excess of the amount of the proposed settlement or compromise rejected by Claimant. (d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make every effort to reach a decision with respect thereto as expeditiously as possible. (e) All amounts paid pursuant to this Article 7 by one party to the other party shall be treated by such parties as adjustments to the Purchase Price. i7.6 Means of Indemnification and Right to Setoff. In addition to any other right or means Buyer may have to enforce the indemnities provided for in Sections 7.2 and 7.3 hereof, Buyer shall be entitled to set off any amount to which it may be entitled under this Agreement or Damages which Buyer may incur as a result of any breach of this Agreement or any covenant, guaranty or other provision contained within this Agreement against any payments of the Purchase Price and/or any indebtedness or obligation owed to Seller whether under this Agreement or any agreement or document related hereto. Buyer's right to setoff or its exercise thereof shall not prejudice the right of Buyer to pursue, in addition or as an alternative to such right, any other right or means Buyer may have to enforce the indemnification provided for in Sections 7.2 and 7.3 hereof and in no event shall the amount actually setoff limit, Buyer's right to indemnification under Sections 7.2 and 7.3 hereof. ARTICLE 8 Termination 8.1 Termination and Abandonment. This Agreement may be terminated and abandoned at any time prior to the Closing Date by mutual written consent of Missouri-American and City. 8.2 Effect of Termination. The right of each party to terminate this Agreement under Section 8.1 is in addition to any other rights 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 9_9 ("Legal Fees; Costs"); and all other covenants and agreements which by their terms continue after the termination of this Agreement 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 (1) or more of the conditions to the terminating party'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. Jefferson City APA v1 - 14 - • ARTICLE 9 General Provisions 9.1 Amendment and Modification. No amendment, modification, supplement, termination, . consent or waiver of any provision of this Agreement, nor consent to any departure therefrom, will in any event be effective unless the same is in writing and is signed by the parties. Any waiver of any provision of this Agreement and any consent to any departure from the terms of any provision of this Agreement is to be effective only in the specific instance and for the specific purpose for which given. 9.2 Assignments. City 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 assign its rights and obligations under this Agreement to any Related Person or successor in interest without the consent of City. _ 9.3 Captions. 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. 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 parties hereto are not signatories to the same counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or telecopier is to be treated as an original document. The signature of any party thereon is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party hereto, any facsimile or telecopy document is to be re-executed in original form by the parties who executed the facsimile or telecopy document. No party hereto may raise the use of a facsimile machine or telecopier or the fact that any signature was transmitted through the use of a ' facsimile or telecopier machine as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Section. 9.5 Entire Agreement. 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, including without limitation that certain Term Sheet, dated September 23, 2005, executed by the parties. 9.6 Exhibits and Schedules. All of the Exhibits and Schedules attached to this Agreement are deemed incorporated herein by reference. 9.7 Failure or Delay. Except as otherwise provided by this Agreement, no failure on the part of any party hereto to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party hereto in any case entities such party to any other or further notice or demand in similar or other circumstances. 9.8 Governing Law. This 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. In the event of any litigation or claim regarding this Agreement, the venue for such action shall be in Cole County, Missouri. 9.9 Legal Fees, Costs. 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; provided, however, in the event litigation is instituted by either party to enforce or remedy a breach of any provision of this Agreement, in addition to any other Jefferson City APA v1 - 15 - • relief therein awarded, the prevailing party shall be entitled to judgment for reasonable attorney's fees and litigation expenses. 9.10 Notices. All notices, consents, requests, demands and other communications hereunder are to be in writing and are deemed to have been duly given, made or delivered: (i) when delivered in person, (ii)three (3) business days after deposited in the United States mail, first class postage prepaid, (iii) in the case of telegraph or overnight courier services, one (1) business day after delivery to the telegraph company or overnight courier service with payment provided, or (iv) in the case of telex or telecopy or facsimile, when sent,verification received, in each case addressed as follows: if to City: Attn: Mayor City of Jefferson City [to be received] Jefferson City, Missouri If to Missouri-American: Missouri-American Water Company Attn: President 727 Craig Road St. Louis, Missouri 63141 With a copy to: American Water Works • Divisional General Counsel 727 Craig Road St. Louis, Missouri 63141 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. 9.11 Severability. Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction is, as to such jurisdiction, ineffective to the extent of any such prohibition, unenforceability or nonauthorization without invalidating the remaining provisions hereof, or affecting the validity, enforceability or legality of such provision in any other jurisdiction, unless the ineffectiveness of such provision would result in such a material change as to cause completion of the Contemplated Transactions to be unreasonable. 9.12 Specific Performance and Iniunctive Relief. 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 performance or injunctive relief. 9.13 Successors and Assigns. Subject to Section 9.2, all provisions of this Agreement are 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. Jefferson City APA A - 16 - • 9.14 No Third-Party Beneficiary. This Agreement is solely for the benefit of the parties hereto and their respective successors and permitted assigns, and no other Person has any right, benefit, priority or interest under, or because of the existence of,this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Missouri-American Water Company,a Missouri City o son , Missouri public utility corporation By: oh Landwehr, Mayor erry L.ibloriocf, President Attest: ity CI rk • Ap ved as t o City(5d0idgolr • Jefferson City APA v1 - 17 - � e SCHEDULEI Definitions "Assets"as defined in Section 2.1. "Adjustment Amount'as defined in Section 2.8. "Agreement' as defined in the introductory paragraph. "Assignment and Assumption Agreement'as defined in Section 2.7(a)(ii). "Assumed Contracts"as defined in Section 2.1(c). "Assumed Liabilities"as defined in Section 2.4. "Bill of Sale" as defined in Section 2.7(a)(i). "Business"as defined in the Recitals. "Business Days' means any day other than (i) Saturday or Sunday, or(ii) any other day on which governmental offices in the State of Missouri are permitted or required to be closed. "Missouri-American"as defined in the introductory paragraph. "Capital Improvements" as defined in Section 6.4. "Claimant"as defined in Section 7.5(a). "Closing"as defined in Section 2.6. • "Closing Date"as defined in Section 2.6. "Confidential Information" means (i) information not available to the general public concerning the business and financial affairs with respect to a party hereto, and (ii) 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. "Consent' means any approval, consent, ratification, waiver or other authorization. "Contemplated Transactions" means all of the transactions contemplated by this Agreement and the Transaction Documents. "Contract' means any agreement, contract, obligation, promise or undertaking (whether written or oral and whether express or implied), whether or not legally binding. "Damages'as defined in Section 7.2. "Effective Time"as defined in Section 2.6. "Emplovee Plans" means any plan, program, arrangement, practice or Contract that provides benefits or compensation to or on behalf of employees or former employees, including such plans governed by the Employee Retirement Income Security Act. "Encumbrance" means any charge, claim, community property interest, condition, easement, equitable interest, 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. Cedar City Salell Schedule 1 • "Environment' means soil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life and any other environmental medium or natural resource. "Environmental. Health 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); (b) 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 investigation, cleanup, removal, containment or other remediation or response actions ("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("CERCLA"). "Environmental Lave" means any Law that requires or relates to: (a) Advising appropriate authorities, employees and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the Environment; (b) Preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the Environment; (c) Reducing the quantities, preventing the release or minimizing the hazardous characteristics of wastes that are generated; (d) Assuring that products are designed, formulated, packaged and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of; (e) Protecting resources, species or ecological amenities; (f) Reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil or other potentially harmful substances; (g) Cleaning up pollutants that have been released, preventing the threat of release or paying the costs of such clean up or prevention; or (h) Making responsible parties pay private parties, or groups of them, for damages done to their health or the Environment, or permitting self-appointed representatives of the public interest • to recover for injuries done to public assets. "Excluded Assets"as defined in Section 2.2. Cedar City Salell Schedule 1 • "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Governmental Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, applied on a basis consistent with prior periods. "Governmental Authority(ies)" means any: (a) Nation, state, county, city, town,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 (including 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, judicial, legislative, police, regulatory or taxing authority or power of any nature. "Hazardous ActivitW' 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 Facilities or any part thereof into the Environment, and any other act, business, 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 Facilities, or that may affect the value of the Facilities or City. "Hazardous 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 admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-containing materials. "Indemnifvina Pa! W'as defined in Section 7.5(a). "Knowledge" means an individual will be deemed to have"Knowledge" of a particular fact or other matter if such individual is actually aware of such fact or other matter. With respect to the City, the City shall only be deemed to have Knowledge if any of City's board members or the system operator is actually aware of the fact or matter at issue. "Lave" means any law, rule, regulation or ordinance of any federal, foreign, state or local Governmental Authority. "Liabilit ' with respect to any Person any liability or obligation of such Person for any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, 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 such Person. "Occupational Safety and Health Law" means any Law designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (including those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions. "Order" 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. Cedar City Salell Schedule 1 • "Organizational Documents" means the articles or certificate of incorporation and the bylaws of a . corporation and any amendment thereto. "Permit' 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. "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, 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. "Real Prooert v'as defined in Section 3.4. "Records" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. "Related Person"with respect to a particular individual, means: (a) Each other member of such individual's Family(as hereinafter defined); (b) Any Person that is directly or indirectly controlled by such individual or one or more members of such individual's Family; (c) Any Person in which such individual or members of such individual's Family hold • (individually or in the aggregate)a Material Interest; and, (d) 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). With respect to a specified Person other-than an individual: (e) 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; (f) Any Person that holds a Material Interest in such specified Person; (g) Each Person that serves as a director, officer, partner, executor or trustee of such specified Person(or in a similar capacity); (h) Any Person in which such specified Person holds a Material Interest; (i) Any Person with respect to which such specified Person serves as a general partner or a trustee(or in a similar capacity); and (j) Any Related Person of any individual described in clause(b)or(c). For purposes of this definition, (i)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 (D) any other natural person who resides with such individual; and (ii) "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 outstanding equity securities or equity interests in a Person. Cedar City Salell Schedule 1 • "Release" means any spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping or other releasing into the Environment, whether intentional or unintentional. "Cit ' shall have the meaning given that term in the introductory paragraph and for purposes of this Agreement and all other documents executed in connection herewith, shall include any Subsidiary of City. `Tax' means all taxes, charges, withholdings, fees, levies, penalties, additions, interest or other assessments, including, without limitation, income, gross receipts, excise, property, sales, employment, withholding, social security, occupation, use, service, service use, license, payroll, franchise, transfer and recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar taxes, charges, fees, levies or other assessments, imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or any other basis. 'Tangible Personal Property" 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 City (wherever located and whether or not carried on City's books), together with any express or implied warranty by the manufacturers or Citys or lessors of any item or component part thereof, and all maintenance records and other documents relating thereto. 'Transaction Documents" means this Agreement,. the Bill of Sale, the Assignment and Assumption Agreement 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 by mutual agreement from time to time. • Rules of Construction For purposes of this Agreement and the other documents executed in connection herewith, the following rules of construction shall apply, unless specifically indicated to the contrary: (i) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter; (ii) the term "or' is not exclusive; (iii) the term "including" (or any form thereof) shall not be limiting or exclusive; (iv) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; (v) 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 (vi)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. Cedar City Salell Schedule 1 • Schedule 3.4 Real Property WA • • • Schedule 3.5 Tangible Personal Property WA • • • Schedule 3.6 Contracts N/A • • • Schedule 3.7(a) Environmental Matters WA Ili • • Schedule 3.8 Permits Permit of Approval for a Community Water Supply to Dispense Water to the Public (Missouri 3010146) • • • T I Mel Carnahan,Governor Stephen M.Mahfood,Director D V ; T OF NATURAL RESOURCES r ",-,_: DIVISION OF ENVIRONMENTAL QUALITY ` t � P.O. Box 176.Jefferson City,MO 65102-0176 JUN 15 1999 North Jefferson City Callaway County Permit No. 3010146 Review No. 3457-99 The Honorable Duane Schreimann Mayor of Jefferson City City Hall 320 East McCarty Jefferson City, Missouri 65101 Dear Mayor Schreimann: • As you requested, enclosed is your replacement PERMIT OF APPROVAL FOR A COMMUNITY WATER SUPPLY TO DISPENSE WATER TO THE PUBLIC (Permit Number 3010146). It replaces the permit your public water supply formerly held by Cedar City, Missouri. This new permit should be displayed where your old permit is currently located. If you have any questions, please contact the Department of Natural Resources, Public Drinking Water Program, or the Regional Office located in your area. Sincerely, PUBLIC DRINKING WATER PROGRAM Jer L. L E. Die r J :lde Enclosure • c: Jefferson City Regional Office Mr. David Erwin, Water Superintendent 0 R-a'kd 1•uprr STATE OF MISSOURI DEPARTMENT OF NATURAL RESOURCES • aeaaaa tl paapa a y o 3 il. PERMIT OF APPROVAL FOR A COMMUNITY WATER SYSTEM TO DISPENSE WATER TO THE PUBLIC PERMIT NO. 3010146 ISSUED TO • NORTH JEFFERSON CITY ISSUED IN ACCORDANCE WITH SECTION 640.115 MISSOURI REVISED STATUTES AND RULES AND REGULATIONS (10 CSR 60) PROMULGATED UNDER.SECTION 640.100 This permit applies only to community water systems with approval to dispense water to the public; it does not apply to other environmentally regulated areas. JUN 15 1999 Date Director,D 'Sion of EnAro VH11 tal Quality Special Conditions do not apply O Special Conditions apply per attached b Expiration Date: Direct ,Public Dr Program • MO 780-1274(8-93) ®P peeped • Schedule 3.12 Litigations and Proceedings N/A i M • CERTIFICATE OF THE SECRETARY OF MISSOURI-AMERICAN WATER COMPANY I, Martin D. Kerckhoff, do hereby certify that I am the duly appointed and acting Secretary of Missouri-American Water Company ("MAWC"), and do hereby certify the following as of the date hereof- (i) attached hereto as Exhibit A and incorporated herein by this reference is a true, correct and complete copy of certain resolutions duly adopted by unanimous consent of the Board of Directors of MAWC as of December 29, 2008 regarding the Asset Purchase Agreement dated November 20, 2008 by and between MAWC and the City of Jefferson City, Missouri; and said resolutions have not been rescinded or modified in any manner and are in full force and effect as of the date hereof; and (ii) attached hereto as Exhibit B and incorporated herein by this reference is a true, correct and complete copy of the Certificate of Incumbency of MAWC, and such Certificate of Incumbency has not been amended, modified, annulled, rescinded, revoked or changed in any manner whatsoever; and (iii) attached hereto as Exhibit C and incorporated herein by this reference is a • true, correct and complete certificate of good standing of MAWC issued by the Missouri Secretary of State. IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed the corporate seal of MAWC effective as of 12:01 am CDT on the 29th day of December, 2008. 14� Martin D. Kerckhoff, Secretary (SEAL) • Jeff City See Cert-MAWC.doc i • EXHIBIT A Resolutions of the Board of Directors • UNANIMOUS CONSENT OF THE DIRECTORS OF MISSOURI-AMERICAN WATER COMPANY The undersigned, being all of the Directors of Missouri-American Water Company (the"Corporation"), do hereby consent to the following actions, effective as of the 29th day of December, 2008, in lieu of a special meeting of the Board of Directors of the Corporation, and do hereby waive all notices necessary or required in connection therewith: WHEREAS, that certain Asset Purchase Agreement ("APA") by and between the Corporation and the City of Jefferson City, Missouri, is attached hereto as Exhibit A and has been reviewed by the Directors; WHEREAS, the APA, together with any and all other agreements, amendments, certificates, instruments and documents of any kind contemplated by therein and thereby are collectively referred to herein as the "Transaction Documents". NOW,THEREFORE, BE IT RESOLVED, that the Corporation is hereby authorized and directed to (i) execute, deliver and • perform all of its obligations under the Transaction Documents, and (ii) take such other actions as may be necessary to consummate the transactions contemplated by the Transaction Documents; and be it FURTHER RESOLVED, that the President of the Corporation be and hereby is authorized and directed to (i) execute, attest and deliver, in the name of and on behalf of the Corporation, each of the Transaction Documents, with such changes thereto as deemed necessary or advisable by the President to permit the consummation of the transactions contemplated thereby, and such execution shall be binding upon the Corporation, and (ii) take such other actions on behalf of the Corporation as the President deems necessary to permit the consummation of the transactions contemplated by the Transaction Documents; and be it FURTHER RESOLVED, that the Secretary of the Corporation be and hereby is authorized and directed to execute, attest and deliver any and all certifications required by each of the Transaction Documents in a form deemed necessary or advisable by the Secretary; and be it • FURTHER RESOLVED, that this unanimous consent may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same unanimous consent and the signature of a • Director to this unanimous consent may be sent by facsimile or other electronic transmission and shall be deemed to constitute an original and fully effective signature of such Director; and be it FURTHER RESOLVED, that this consent be filed by the Secretary of this Corporation with its minutes. IN WITNESS WHEREOF, the undersigned have executed this unanimous consent effective the day and year first above written. DIRECTORS Terry L. G oriod J mes M. Jenkins • ran artm n 7)n Martin D. Kerchhoff Ellen C. Wolf Being all of the Directors of the Corporation I Ii �I e Director to this unanimous consent maybe sent by facsimile or -other electronic transmission and shall be deemed to constitute an original and fully effective signature of such i Director; and be it FURTHER RESOLVED, that this consent be filed by the Secretary of this Corporation with its minutes. IN WITNESS WHEREOF,the undersigned have executed this unanimous consent effective the day and year first above written. DIRECTORS Terry L. loriod J es M. Jen ns • rank Martin D. Kerchhoff Ellen C. Wolf Being all of the Directors of the Corporation i i i r • Exhibit A • • • ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement") is made and entered into thils'd-2—th day of _, 2008 by and between the Missouri-American Water Company, a Missouri public utility corporation ("Missouri-American"), and the City of Jefferson City, Missouri, a Missouri municipal corporation (the "City"). Hereinafter, Missouri-American and the City may be referred to individually as a party or collectively as the parties. RECITALS: A. City owns and operates a water supply system commonly known as North Jefferson City which provides a potable water supply to approximately thirty-eight (38) customers (collectively, the "Business"). B. The City desires to sell substantially all of the assets of the Business to Missouri- American pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants contained herein and in exchange for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties, 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 in Schedule 1 and for purposes of this Agreement and all other documents executed in connection herewith, the rules of construction set forth in Schedule 1 shall govern. • ARTICLE 2 Purchase and Sale of Assets; Closing 2.1 Transfer and Description of Assets. Subject to and upon all other terms and conditions of this Agreement, at the Closing Date, but effective as of the Effective Time, City shall, for One Dollar ($1) and other good and valuable consideration (including Missouri-American's assuming responsibility for operating the Business and providing potable water service to the customers), sell, convey, transfer, assign and deliver to Missouri-American free and clear of all Encumbrances, and Missouri-American shall acquire from City, all of City's right, title and interest in and to all of City's property and assets used in the operation of the Business, including the following: (a) all Real Property now used and required to operate the Business; (b) all fire hydrants, water pipes, tanks and valves used in the Business; (c) all data and Records related to City's operation of the Business; (d) all Permits and all pending applications therefor, renewals thereof or exemptions therefrom-, in each case to the extent assignable or transferable to Missouri- American, including those listed on Schedule 3.8; (e) all of the intangible rights and property of City such as easements, use of rights of way or other special use permits utilized by City in the operation of the Business. All of the foregoing property and assets are herein referred to collectively as the "Assets". • Other than as expressly provided in this Agreement, the tangible assets being sold hereunder are being sold in their "as-is, where-is" condition, without representation or warranty by City, and subject to ordinary wear and tear between the date of this Agreement and the Closing Date. Jefferson City APA v1 - 1 - • 2.2 Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, the following assets of City (collectively, the "Excluded Assets") are not part of the sale and purchase contemplated hereunder, are excluded from the Assets, and shall remain the property of City after the Closing: (a) all cash, cash equivalents and short-term investments, and all accounts receivable arising prior to the Effective Time; (b) all insurance policies and rights thereunder; (c) all personnel Records and other Records that City is required by law to retain in its possession; (d) all rights in connection with and assets of the Employee Plans; (e) all rights of City under this Agreement, the Bill of Sale, and the Assignment and Assumption Agreement; (f) wells, well houses, pumping and treatment facilities used in the Business; (g) an elevated tank used in the operation of the Business; (h) roads; and v (i) the sewer system serving the identified area known as North Jefferson City. 2.3 Consideration. • (a) Missouri-American shall pay to the City one dollar and other good and valuable consideration, including, but not limited to, the obligation to provide the supply of potable water and the continued operation of the Business. (b) At or prior to the Closing, the City shall make certain improvements to the system and shall cap and close certain wells as requested by Missouri-American (collectively the "Capital Improvements"). 2.4 Liabilities. Every Liability of City shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by City. 2.5 Closing. The purchase and sale provided for in this Agreement (the "Closing") will take place at a time and place mutually agreeable to both parties. The parties shall use commercially reasonable efforts to cause the Closing to occur as soon as,practical. In any event, the Closing shall be effective as of 12:01 p.m. (the "Effective Time") on the day the Closing actually occurs (the "Closing Date"). 2.6 Closinq Obligations. (a) At or prior to the Closing (as the case may be), City shall deliver to Missouri- American the following documents, duly executed, if applicable: (i) a bill of sale for all of the Assets that are tangible personal property in a form reasonable acceptable to each party(the "Bill of Sale"); (ii) an assignment of all of the Assets which are intangible personal property in a form reasonably acceptable to each party, which shall contain Missouri-American's undertaking and • assumption of the Assumed Liabilities (the"Assignment and Assumption Agreement"); Jefferson City APA v1 - 2 - (iii) for each interest in Real Property and each easement and/or right-of-way identified on Schedule 3.4, a recordable warranty deed or such other appropriate document or instrument of transfer or approval, as the case may require, each in form and substance reasonably satisfactory to Missouri-American and City and their respective legal counsel. Notwithstanding the fact that the same may not be listed on Schedule 3.4, City must provide easements or other transferable property rights to Missouri-American for all mains used in the Business, which are not located on public rights-of-way, and must provide assignments of public rights-of-way permits with only those conditions mutually acceptable to Missouri-American and City for all mains located in municipal, County or State owned public rights-of- way; (iv) such other deeds, bills of sale, assignments, certificates of title, documents and other instruments of transfer and conveyance as may reasonably by requested by Missouri-American, each in form and substance reasonably satisfactory to Missouri-American and City and their respective legal counsel; (v) a certificate as to the accuracy of City's representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 5.1(a) and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before at Closing in accordance with Section 5.1(b); (vi) a certificate of the secretary of City, dated as of the Closing [date, certifying: (A) that attached to the secretary's certificate are true copies of the duly adopted resolutions of the board of directors of City authorizing the execution of this Agreement and the performance of the Contemplated Transactions; and (B) that attached to the secretary's certificate is a true and complete original copy of the incumbency and signatures of the officers of City executing this Agreement or any agreement contemplated hereby on behalf of City; (vii) a certificate of good standing issued by the Secretary of State of Missouri with respect to City, dated not earlier than thirty (30) days prior to Closing; and (vii) a legal opinion of City's legal counsel, affirmatively opining to such matters as Missouri-American or its legal counsel may reasonably request, including but not limited to (A) the due authorization and execution of this Agreement by City and the enforceability thereof, and (B) the enforceability of the Customer Fair Share Charge of current and future members of City. (b) At or prior to the Closing, Missouri-American shall deliver to City, or perform, the following, duly executed, if applicable: 0) the Capital Improvements; (ii) the Assignment and Assumption Agreement; (iii) a certificate as to the accuracy of Missouri-American's representations and warranties as of the date of this Agreement and as of the Closing in accordance with Section 5.2(a) and as to its compliance with and performance of its covenants and obligations to be performed or complied with at or before at Closing in accordance with Section 5.2(b); (iv) a certificate of the secretary of Missouri-American, dated as of the Closing Date, certifying: (A)that attached to the secretary's certificate are true copies of the duly adopted resolutions of the board of directors of Missouri-American authorizing the execution of this Agreement and the performance of the Contemplated Transactions; and (B) that attached to the secretary's certificate is a true and complete original copy of the incumbency and signatures of the officers of Missouri-American executing this Agreement or any agreement contemplated hereby on behalf of Missouri-American; and (v) a certificate of good standing issued by the Secretary of State of Missouri with respect to Missouri-American, dated not earlier than thirty(30) days prior to Closing. Jefferson City APA v1 - 3 - . ARTICLE 3 Representations and Warranties of City City hereby makes the following representations and warranties to Missouri-American: 3.1 Organization and Good Standing. City is a municipal corporation duly organized, validly existing and in good standing under the Laws of the State of Missouri, with full corporate power and authority to conduct the Business as it is now being conducted and to own, lease and operate its properties and the Assets. 3.2 Enforcement, Authority; No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of City, enforceable against City 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. City 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, and such action has been duly authorized by all necessary action by City's City Counsel. (b) Neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions will, directly or indirectly(with or without notice or lapse of time): (i) contravene, conflict with or result in a violation of: (A) any provision of the Organizational Documents of City; or(B) any resolution adopted by the City Counsel of City; (ii) to City's Knowledge, contravene, conflict with or result in a violation of or give any Governmental Authority or 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 City or any of the Assets may be subject; (iii) to City's Knowledge, 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 City or that otherwise relates to the Business or any of the Assets; (iv) to City's Knowledge, contravene, conflict with or result in a violation or breach of any provision of, require the Consent of any Person, 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 of which City is a party or by which any of the Assets are bound; or (v) result in the imposition or creation of any Encumbrance upon or with respect to any of the Assets, except as contemplated by this Agreement. 3.3 Assets. City has good and marketable title to all of the Assets. The Assets are free and clear of any and all Encumbrances whatsoever. None of the Assets are leased or on loan by City to any third party. The Assets constitute all property necessary for the operation of the Business in the manner currently being operated by City. 3.4 Real Property; Easements. To City's Knowledge, City has good and marketable title to those parcels of real property and those easements or rights-of-way used in the operation of the Business, together with all fixtures, fittings, buildings, structures and other improvements erected therein or thereon (the"Real Property'). • 3.5 Tangible Personal Property. Set forth on Schedule 3.5 is a complete and accurate listing of all items of Tangible Personal Property owned or used by Seller in the operation of the Business. Jefferson City APA v1 - 4 - 3.6 Contracts. Set forth on Schedule 3.6 is a complete and correct list of all Contracts related to the Business to which City is a party. City has delivered or caused to be delivered to Missouri- American correct and complete copies of each Contract (including all amendments thereto), a description of the terms of each Contract which is not in writing, and all documents affecting the rights or obligations of any party thereto. The Contracts have not been modified or amended amended except as disclosed on Schedule 3.6. To City's Knowledge: (i) each Contract is valid and enforceable against City in accordance with its terms and is in full force and effect, and each 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 similar laws affecting the rights of creditors generally and by general principles of equity; (ii) no default and no event which, with the giving of notice, lapse of time, or both, would be a default has.occurred under any Contract; (iii) there are no setoffs, counterclaims or disputes existing or asserted with respect to such Contracts, and City 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 Contract or tend to reduce or increase the amounts payable thereunder; (v) City has not, directly or indirectly, by operation of law or otherwise, transferred or assigned all or any part of its right, title or interest in and to any Contract to any other Person; and (vi) there are no Proceedings pending nor threatened against any party to any of the Contracts which relate to the subject matter of the Contracts. 3.7 Environmental Matters. To City's Knowledge, except as previously disclosed to Missouri-American: (a) Except as set forth on Schedule 37(a), City is and at all times has been in full compliance with and has not been and is not in violation of or liable under any applicable Environmental Law. City has no basis to expect nor has it received any actual or threatened Order, notice or other communication from any Governmental Authority or private citizen acting in the public interest of any . actual or potential 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 mixed) in which City has or has had an interest or with respect to any property, the Real Property or other real property at or to which Hazardous Materials were generated, manufactured, refined, transferred, imported, used or processed by City 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 City has or had an interest. (c) Neither City nor any other Person for whose conduct it is or may be held to be responsible has received any citation, directive, inquiry, notice, Order, summons, warning or other communication that relates to Hazardous Activity, Hazardous Materials or any alleged, actual or potential violation or failure to comply with any Environmental Law or of any alleged, actual or potential 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 mixed) in which City has or has had an interest or with respect to any property to which Hazardous Materials generated, manufactured, refined, transferred, imported, used or processed by City or any other Person for whose conduct it is or may be held responsible, have been transported,treated, stored, handled, transferred, disposed, recycled or received. (d) Neither City 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 City (or any predecessor) has or has had an 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. Jefferson City APA v1 - 5 - . (e) There are no Hazardous Materials 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 City nor any other Person for whose conduct it is or may be held to be responsible has permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Real Property or any other properties or assets (whether real, personal or mixed) in which City has or has had an interest except in material compliance with all applicable Environmental Laws. (f) There has been no Release or threat of Release, of any Hazardous Materials at or from the Real Property or from or by any other properties and assets (whether real, personal or mixed) in which City has or has had an interest, or any geologically or hydrologically adjoining property, whether by City or any other Person. (g) City has delivered to Missouri-American true and complete copies and results of any reports, studies, analyses, tests or monitoring possessed or initiated by City pertaining to Hazardous Materials or Hazardous Activities in, on or under the Real Property, or concerning compliance by City or any other Person for whose conduct it is or may be held to be responsible, with Environmental Laws, said reports, studies, etc. to include without limitation, any and all Phase I environmental reports now or hereafter in the possession or control of City. 3.8 Permits. Set forth on Schedule 3.8 is a complete and correct list of all Permits used by City in the operation of the Business. To City's Knowledge, such Permits constitute all Permits necessary for the operation of the Business and all such Permits are valid and subsisting and in full force and effect. There exists no fact or circumstance which is reasonably likely to cause any Permit to be revoked or materially altered after the Closing Date. . 3.9 Insurance. To City's Knowledge, City maintains and has maintained appropriate insurance necessary for the full protection of all of its assets, properties, business, operations, products and services. All such policies are in full force and effect and City will use commercially reasonable efforts to cause such policies to be outstanding and in full force and effect at the Closing and immediately following consummation of the Contemplated Transactions and the premiums therefor have been paid in full as they become due and payable. There are no pending Proceedings arising out of, based upon or with respect to any of such policies of insurance and to City's Knowledge, no basis for any such Proceedings exists which will result in an Encumbrance against the Assets. To City's Knowledge, City is not in default with respect to any provisions contained in any such insurance policies and no insurance provider is in default with respect to such insurance policies. 3.10 No Material Adverse Change. Since 12 2008, to City's knowledge, there have been no material adverse changes in the Business or Assets nor has there been any material adverse change in the relationships City maintains with its customers, employees and Governmental Authorities nor are there any events, transactions or other facts which exist or have occurred and which are likely to have an adverse effect on the foregoing. 3.11 Conduct of Business In Ordinary Course. Since 1 2008, City has operated the Business only in the ordinary course of business. Without limita ion of the foregoing, since such date, City has not entered into, amended, terminated or received notice of termination of any Contract or Permit. 3.12 Litigation and Proceedings. Other than as set forth on Schedule 3.12 hereto, there are no Proceedings pending or threatened against City or directly affecting any of the Assets or the Business by or on account of any Person or before any Governmental Authority and to City's Knowledge, there is • no valid basis for any such Proceeding. City has not been charged with, nor to City's Knowledge, 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 Assets or the Business and there is no valid basis for any such charge or investigation. No judgment, Order, writ, injunction, decree, assessment or Jefferson City APA v1 - 6 - . other command of any Governmental Authority affecting City or any of the Assets or the Business has been entered.which is presently in effect. There is no Proceeding pending or to City's Knowledge, threatened which challenges the validity of this Agreement or the Contemplated Transactions or otherwise seeks to prevent, directly or indirectly, the consummation of the Contemplated Transactions, nor is there any valid basis for any such Proceeding. 3.13 Compliance with Laws. To City's Knowledge, City is in compliance with all Laws applicable to the Assets and the operation of the Business and has not committed any violation of any Law applicable to the Assets and/or operation of the Business. The Assets, in their current condition, are capable of complying with all Laws. 3.14 Material Omissions. Independent of and in addition to the foregoing representations and warranties contained in this Article 3, neither this Agreement nor any written statement, list, certificate or other information furnished by or on behalf of City in response to specific written requests made by Missouri-American or Missouri-American's representatives or attorneys contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading. ARTICLE 4 Representations and Warranties of Missouri-American Missouri-American hereby makes the following representations and warranties to City: 4.1 Organization. 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 and to conduct its business as now being conducted. . 4.2 Enforcement: Authority: No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of Missouri- American, enforceable against Missouri-American in accordance with its terms. Missouri-American 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, and such action has been duly authorized by all necessary action by Missouri-American's board of directors. (b) Neither the execution and delivery of this Agreement, nor the consummation of the Contemplated Transactions nor compliance by Missouri-American with any of the provisions hereof will result in: (i) a violation of or a conflict with any provision of the Organizational Documents of Missouri- American; (ii) 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; (iii) 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; or (iv) any Person having the right to enjoin, rescind or otherwise prevent or impede the Contemplated Transactions or to obtain damages from City or to obtain any other judicial or administrative relief. 4.3 Litigation and Proceedings. There is no Proceeding pending nor, to the Knowledge of Missouri-American, threatened which challenges the validity of this Agreement or the Contemplated Transactions or otherwise seeks to prevent, directly or indirectly, the consummation of such transactions, nor, to the Knowledge of Missouri-American, is there a valid basis for any such Proceeding. ARTICLE 5 Conditions Precedent to Closing Jefferson City APA V1 - 7 - 5.1 Conditions Precedent to the Obligations of Missouri-American. 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) Representations and Warranties. Each of the representations and warranties of City contained in Article 3 is true, correct and accurate from the date of this Agreement and as of the Closing Date shall be true, correct and accurate as though restated on and as of such date (except in the case of any representation and warranty that by its terms is made as of a date specified therein, which shall be accurate as of such date); (b) Covenants. City shall have performed and complied with all covenants required by this Agreement to be performed or complied with by them prior to or at the Closing; (c) Proceedinos. No Order shall be in effect and no Proceeding by any Person shall be threatened or pending before any Governmental Authority, or before any arbitrator, wherein an unfavorable Order would: (i) prevent consummation of the Contemplated Transactions; (ii) have a likelihood of causing the Contemplated Transactions to be rescinded following consummation; (iii) adversely affect the right of Missouri-American to own any.of the Assets; or (iv) adversely affect the business prospects, value or condition of any of the Assets or the Business; (d) Approvals. - (i) By 11,3_, 20011, Missouri-American shall have obtained all applicable Consents and approvals from third parties, including without limitation any Governmental Authority, and those Consents required for Missouri-American's assumption of any Assumed Contract and (ii) any waiting periods under existing Laws, and all extensions thereof, the passing of which is necessary to consu mate the Contemplated Transactions, shall have expired. Without limiting the foregoing, by 200 Missouri-American shall have received all necessary regulatory approvals of its tar is and of rates, and the necessary ratebase to support such . rates, to be effective as of the Closing Date; (e) Closing Deliveries. City shall have delivered to Missouri-American the Closing Deliveries set forth in Section 2.7(a); (f) Due Diligence. Missouri-American shall be satisfied, in its sole and absolute discretion, with the results of its due diligence review of the Business, the Assets and the City, including without limitation, satisfaction with the results of any environmental assessment performed with respect to the Real Property or the Assets. In the event Missouri-American is dissatisfied with any such results, Missouri-American may, by written notice to City on or before 5:00 p.m. Central Time on the date that is three weeks after the date hereof, terminate this Agreement, in which event the parties shall be released from all further obligations hereunder. (g) No Adverse Change. Missouri-American has determined that there has not been any material adverse change in the Business, the Assets, financial condition or business prospects of City and that there is no adverse change in the relationships maintained by City with its employees, suppliers, customers or Governmental Authorities; and \ (h) Water Supply Agreement with Calloway County WSD #1. Missouri-American shall have an enforceable agreement with the Callaway County WSD #1 to purchase all of the potable water supply needs of the Business. The agreement for the purchase of water shall by in Missouri- American's sole and absolute discretion and the City shall have no right or authority to force Missouri- American to accept any contract for the purchase of water. 5.2 Conditions Precedent to Obligations of City. The City's obligation to consummate the Contemplated Transactions is subject to the satisfaction in full, unless expressly waived in writing by City, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of Missouri-American contained in Article 4 is true, correct and accurate as of the date of this Agreement Jefferson City APA v1 - 8 - i and as of the Closing Date shall be true, correct and accurate as though restated on and as of such date (except in the-case of any representation and warranty that by its terms is made as of a date specified therein, which shall be accurate as of such date); (b) Covenants. Missouri-American shall have performed and complied with all covenants required by this Agreement to be performed or complied with by Missouri-American prior to or at the Closing; (c) Proceedings. No Order shall be in effect and no Proceeding by any Person shall be threatened or pending before any Governmental Authority or before any arbitrator wherein an unfavorable Order would: (i) prevent consummation of the Contemplated Transactions; or (ii) have a likelihood of causing the Contemplated Transactions to be rescinded following consummation;and (d) Closing Deliveries. The Missouri-American shall have delivered to City the Closing Deliveries set forth in Section 23(b). 5.3 All Reasonable Efforts. City will use commercially reasonable efforts to satisfy each of the conditions for Closing of the Missouri-American set forth in Section 5.1 above and the Missouri- American will use commercially reasonable efforts to satisfy each of the conditions for Closing of City set forth in Section 5.2 above. ARTICLE 6 Covenants and Special Agreements 6.1 Certain Covenants of All Parties Prior to Closing. (a) (a) Each party shall ensure that all Confidential Information which such party or any of its respective officers, directors, employees, counsel, agents, or accountants may now possess or may hereafter create or obtain relating to the financial condition, results of operations, business, 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 shall not be published, disclosed or made accessible by any of them to any other person or entity 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 required by law, (ii) to the extent such Confidential Information shall have otherwise become publicly available, and (iii) as to Buyer, to disclosure by or on its behalf to regulatory authorities or other third parties whose consent or approval may be required to consummate the Contemplated Transactions and to its lenders and professionals for the purpose of obtaining financing of such transactions. 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 will 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. Notwithstanding anything in this Section 6.1(a) to the contrary, each party hereto agrees that each party may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the proposed transaction and all materials of any kind (including opinions or other analyses) that are provided to such party or such person relating to such tax treatment and tax structure. This authorization is not intended to permit disclosure of any other information including, without limitation, (1) any portion of any materials to the extent not related to the tax treatment or tax structure of the transaction, (ii) the identities of participants or potential participants in the transactions contemplated hereby, (iii) the existence or status of any negotiations, (iv) any pricing or financial information, except to the extent such pricing or financial information is related to the tax treatment or tax structure of the Jefferson City APA v1 - 9 - proposed transaction, or (v) any other term or item of information not relevant to the tax treatment or the tax structure of the proposed,transaction. (b) Publicity: Announcements. From the date hereof through and including the Closing Date, no party hereto shall issue, cause or permit the publication by any of their respective Related Persons, agents or representatives, any press release or other public announcement with respect to this Agreement or the Contemplated Transactions except: (i) with the consent of the other parties hereto (which shall not be unreasonably withheld); or (ii) as required by applicable Law (including, without limitation, any applicable securities Law). Seller will not, without the prior consent of Buyer, make any announcements to employees of Seller with respect to the Contemplated Transactions and, at such time as an announcement to the employees is made, Buyer shall be allowed to participate in such announcement. It is hereby acknowledged that the parties will discuss the Contemplated Transactions with their respective financial and legal advisors and such discussions shall not be deemed to violate the provisions of this Section 6.1. (c) Cooperation. Any notices or certifications given under this Agreement or any related agreement shall be given in good faith without any intention to unfairly impede or delay the other party. Missouri-American and City shall cooperate fully with each other and their respective counsel and accountants in connection with any actions required to be taken as part of their respective obligations under this Agreement including, without limitation, actions required to be taken with respect to obtaining any applicable regulatory approval of the Contemplated Transactions and Missouri-American and City shall execute such other documents as may be necessary and desirable to the implementation and consummation of this Agreement. Each party agrees to use all reasonable efforts to consummate the Contemplated Transactions including, without limitation, doing all things reasonably necessary to obtain the requisite regulatory approval. (d) Certain Notifications. At all times prior to the Closing Date, each party agrees to promptly notify the others in writing of the occurrence of any event which will result in the failure of any of the conditions contained in Article 5 to be satisfied. (e) No Inconsistent Action. No party shall take any action inconsistent with its respective obligations under this Agreement or any of the Contemplated Transactions. 6.2 Covenants of City Prior to Closing. City covenants and agrees that during the period from the date hereof until Closing: (a) Non-Solicitation. Unless and until such time as this Agreement is terminated pursuant to Article 8, City shall not, and will cause each officer, director and agent not to, directly or indirectly: (i) submit, solicit, initiate, encourage or discuss any proposal or offer from any Person relating to any sale of all or any portion of the Assets or a sublease or assignment of any lease or any similar transaction involving City and the Business or the Assets; (ii) enter into any agreement or commitment related to any such transaction; or (iii) furnish any information with respect to or assist or participate in or facilitate in any other manner any effort to attempt by any Person to do or seek any of the foregoing. City shall notify Missouri-American immediately if any Person makes any proposal, offer, inquiry or contact with respect to any of the foregoing. (b) Access. Between the date of this Agreement and the Closing Date, and upon reasonable prior notice by Missouri-American, City shall: (i) furnish Missouri-American and its financial and legal advisors with copies of all such Contracts, books and records and other existing documents and data as Missouri-American may reasonably request; (ii) furnish Missouri-American and its financial and legal advisors with such additional financial, operating and other data and information as Missouri- American may reasonably request; (iii) permit Missouri-American or its representatives to conduct such physical inspections and environmental audits of the Real Property, as requested by Missouri-American; and (iv) permit Missouri-American or its representatives to conduct interviews of employees of City. (c) Ordinary Course. City shall carry on the operation of the Business in the ordinary course of business, consistent with prior practice, not introduce any materially new method of Jefferson Cfty APA v1 - 10 - management or operation, use their reasonable efforts to preserve the Business and conserve the goodwill and relationships of City's customers, suppliers, Governmental Authorities and others having business relations with it and continue to operate the Business during the normal business hours consistent with past practice. City shall not engage in any activity or transaction during the term of this Agreement which is inconsistent with the terms of this Agreement. (d) Liens; Encumbrances. City shall not enter into or assume any mortgage, pledge, security agreement or other title retention agreement or permit any Encumbrance to attach to any of the Assets, whether now owned or hereafter acquired. (e) Further Covenants. (i) Reports. City shall duly and timely file all reports required to be filed with any Governmental Authority and will promptly pay when due all Taxes, assessments and governmental charges including interest and penalties levied or assessed, unless diligently contested in good faith by appropriate Proceedings; I (ii) Condition of Property. Consistent with past practice, City shall maintain and keep the Assets in substantially the same condition as of the date hereof, normal wear and tear excepted; (iii) Insurance. City shall maintain in full force and effect all policies of insurance now in effect; (iv) No Breach or Default of Contracts. City shall not do any act or omit any act or permit any omission to act which will cause a breach or default by City of any Contract; (v) Supplies. City shall keep supplies at a level which is sufficient to operate the Business in accordance with past practice; (vi) Contracts. City shall not enter into any Contract other than in the ordinary course of business; and (vii) Related Person Transactions. City shall not enter into any transaction with any Related Person. 6.3 Certain Post-Closing Covenants of City. (a) City hereby agrees not to oppose the filing by Missouri-American of the approval of this transaction with the Missouri Public Service Commission. (b) City shall pay in a timely manner all Taxes resulting from or payable in connection with the sale of the Assets pursuant to this Agreement, regardless of the Person on whom such Taxes are imposed. (c) City shall pay, or make adequate provisions for the payment, in full of all of the Retained Liabilities and other Liabilities of City under this Agreement. (d) City hereby agrees to cooperate with Missouri-American to ensure a proper transition of all customers with respect to billing and customer service activities. (e) City hereby acknowledges that Missouri-American must comply with all provision of its tariffs as filed with and approved by the Missouri Public Service Commission. (f) Contemporaneously with the Closing and the connection of the servcie area to the Missouri-American's water system, City shall take all actions necessary to cause the wells currently providing water to the Business to be disconnected from the Assets. Such actions shall be undertaken so as to be in compliance with all applicable Laws. As soon as possible thereafter, and in any event within Jefferson City APA v1 - 11 - one year after Closing, City shall cause the wells to properly capped, in accordance with all Laws. All such actions shall be at City's sole cost and expense. City shall have the sole responsibility for removing the treatment facilities currently used from service and closure of such treatment facilities. ARTICLE 7 Indemnification 7.1 Survival; Right to Indemnification Not Affected by Knowledge. All representations, warranties, covenants and obligations of Seller given in this Agreement and/or any Transaction Document delivered pursuant to this Agreement shall survive the Closing; provided, however that the warranty contained in Section 3.9(b) shall only survive for a period of one (1) year after Closing. The right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty or on the performance of or compliance with any covenant or obligation will not affect the right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants and obligations. 7.2 Indemnification and Payment of Damages by Seller. (a) Seller hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless Buyer and Buyer's past, present and future officers, directors, shareholders, employees, agents, attorneys, representatives, successors and assigns (collectively the "Indemnified Persons), from any and all manner of actions, suits, debts, sums of money, interest owed, accounts, controversies, agreements, charges, damages, judgments, executions, and reasonably incurred costs, expenses, fees (including reasonable attorneys' fees and court costs), counterclaims, claims, demands, causes of action, liabilities and losses and award all other Liabilities incurred, paid or sustained by any of the foregoing (hereinafter referred to as "Damages"), in each case, arising out of, or caused by: (i)the misrepresentation, breach of warranty or nonfulfillment of any provision of this Agreement by Seller or; (ii) all Liabilities and/or duties of Seller, whether accruing prior to or after the Closing Date, and any Encumbrance affecting the Assets; (iii) assessments, charges and other similar claims due or owing, directly or indirectly, by Seller or otherwise as a result of on account of the Assets or the Business at any time prior to the Closing Date; (iv) the ownership and/or operation of any of the Assets or the Business prior to Closing; (v) any Proceeding now existing or hereafter arising and relating to the Assets or the Business of Seller and arising from events or matters occurring prior to the Closing Date; and (vi) any claim by an employee of Seller for any severance payment or arising out of such employee's employment with Seller or under the Worker Adjustment and Retraining Notification Act, COBRA (Sections 601 through 608 of the Employee Retirement Income Security Act of 1974), or under any employee benefit plan or employment Contract to which Seller is a party. (b) The indemnification set forth in Section 7.2(a) shall be subject to any maximum Damages allowed under appropriate theories of sovereign immunity. 7.3 Indemnification and Payment of Damages by Seller - Environmental Matters. In addition to the provisions of Section 7.2, Seller hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless the Indemnified Persons, and will pay to the Indemnified Persons the amount of any Damages (including costs of Cleanup, containment or other remediation) arising, directly or indirectly, from or in connection with: (a) Any Environmental, Health and Safety Liabilities arising out of or relating to: (i) (A) the ownership, operation or condition at any time on or prior to the Closing Date of the Assets and/or the Real Property or any other properties and assets (whether real, personal or mixed and whether tangible or intangible) in which Seller has or had an interest; or (B) any Hazardous Materials or other contaminants that were present on the Real Property or such other properties and assets at any time on or prior to the Closing Date; or (ii) (A) any Hazardous Materials or other contaminants, wherever located, Jefferson City APA v1 - 12 - • that were, or were allegedly, generated, transported, stored, treated, Released or otherwise handled by Seller or by any other Person for whose conduct it is or may be held responsible at any time on or prior to the Closing Date; or (B) any Hazardous Activities that were, or were allegedly, conducted by Seller or by any other Person for whose conduct it is or may be held responsible on or prior to the Closing Date; or (b) Any bodily injury (including illness, disability and death), personal injury, property damage (including.trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person, including any employee or former employee of Seller or any other Person for whose conduct is or may be held responsible, in any way arising from or allegedly arising from any Hazardous Activity conducted or allegedly conducted with respect to the Assets or the Real Property by Seller prior to the Closing Date, or from Hazardous Material that was: (i) present or suspected to be present on or before the Closing Date on or at the Real Property (or present or suspected to be present on any other property, if such Hazardous Material emanated or allegedly emanated from any of the Real Property and was present or suspected to be present on any of the Real Property on or prior to the Closing Date); or(ii) Released or allegedly Released by Seller or any other Person for whose conduct it is or may be held responsible, at any time on or prior to the Closing Date. Buyer and Seller shall jointly be entitled to control any Cleanup, any related Proceeding and, except as provided in the following sentence, any other Proceeding with respect to which indemnity may be sought under this Section 7.3. The procedure described in Section 7.3 will apply to any claim solely for monetary damages relating to a matter covered by this Section 7.3. 7.4 Indemnification By Buyer. Buyer hereby unconditionally, irrevocably and absolutely agrees to fully pay, protect, defend, indemnify and hold harmless Seller and its respective successors, heirs and assigns, from any and all Damages arising out of, or caused by: (i) Buyer's misrepresentation, breach of warranty or nonfulfillment of any provision of this Agreement; (ii) any Proceeding arising after the Closing Date and relating to events or matters occurring subsequent to the Closing Date; and (iii) any Claim by an employee of Buyer arising out of such employee's employment with Buyer. 7.5 Procedure for Indemnification. The procedure for indemnification shall be as follows: (a) The party claiming indemnification (the "Claimant") shall promptly give notice to the party from whom indemnification is claimed (the "Indemnifying Party") of any claim, whether between the parties or brought by a third party, specifying: (i) the factual basis for such claim; and (ii) the amount of the claim. If the claim relates to a Proceeding filed by a third party against Claimant, Claimant shall give such notice within ten (10) Business Days after written notice of such Proceeding was given to Claimant. Claimant's failure to give the Indemnifying Party such notice shall not preclude Claimant from. obtaining indemnification from the Indemnifying Party unless Claimant's failure has materially prejudiced the Indemnifying Party's ability to defend the claim or litigation, and then the Indemnifying Party's obligation shall be reduced to the extent of such prejudice. (b) Following receipt of notice from the Claimant of a claim, the Indemnifying Party shall have thirty (30) days to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For the purposes of such investigation, the Claimant agrees to make available to the Indemnifying Party and/or its authorized representatives the information relied upon by the Claimant to substantiate the claim. If the Claimant and the Indemnifying Party agree at or prior to the expiration of said thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall immediately pay to the Claimant the full amount of the claim. If the Claimant and the Indemnifying Party do not agree within said period (or any mutually agreed upon extension thereof), the Claimant may seek appropriate legal remedy. (c) (i) With respect to any claim by a third party as to which the Claimant • asserts it is entitled to indemnification hereunder, the Indemnifying Party shall have the right, at its own expense, to participate in or at its election to assume control of the defense of such claim, with counsel reasonably satisfactory to Claimant, subject to reimbursement of Claimant for actual out-of-pocket expenses incurred by Claimant as the result of request by the Indemnifying Party, subject to the following; Jefferson My APA v1 - 13 - • (A) The Claimant may retain separate co-counsel at its sole cost and expense and participate in the defense of any such claim by a third party; and (B) The Indemnifying Party shall conduct the defense of the third party claim actively and diligently thereafter. (ii) If the Indemnifying Party elects to assume control of the defense of any third party claim pursuant to Section 7.5(c)(i), the Indemnifying Party may nevertheless reserve the right to dispute the amount of indemnification claimed or dispute Claimant's right to be indemnified with respect to all or any portion of the claim. Except with the written consent of the Claimant, the Indemnifying Party shall not, in defending any claim or any litigation resulting therefrom, consent to entry of any judgment or enter into any settlement which does not release the Claimant from all liability in respect of such claim or litigation. In the event the Claimant fails to consent to any settlement or.compromise which such failure results in damages in excess of the amount for which consent was requested, the limitation of the Indemnifying Party's obligations to indemnify the Claimant with respect to the subject matter of the claim shall be the amount of the proposed settlement or compromise rejected by Claimant and the Claimant shall be responsible for, and shall hold harmless the Indemnifying Party from, all damages (including, without limitation, reasonable attorney's fees incurred with respect to matters subsequent to the rejection of the settlement by Claimant) in excess of the amount of the proposed settlement or compromise rejected by Claimant. (d) If a claim, whether between the parties or by a third party, requires immediate action, the parties will make every effort to reach a decision with respect thereto as expeditiously as possible. (e) All amounts paid pursuant to this Article 7 by one party to the other party shall be treated by such parties as adjustments to the Purchase Price. 7.6 Means of Indemnification and Right to Setoff. In addition to any other right or means Buyer may have to enforce the indemnities provided for in Sections 7.2 and 7.3 hereof, Buyer shall be entitled to set off any amount to which it may be entitled under this Agreement or Damages which Buyer may incur as a result of any breach of this Agreement or any covenant, guaranty or other provision contained within this Agreement against any payments of the Purchase Price and/or any indebtedness or obligation owed to Seller whether under this Agreement or any agreement or document related hereto. Buyer's right to setoff or its exercise thereof shall not prejudice the right of Buyer to pursue, in addition or as an alternative to such right, any other right or means Buyer may have to enforce the indemnification provided for in Sections 7.2 and 7.3 hereof and in no event shall the amount actually setoff limit Buyer's right to indemnification under Sections 7.2 and 7.3 hereof. ARTICLE 8 Termination 8.1 Termination and Abandonment. This Agreement may be terminated and abandoned at any time prior to the Closing Date by mutual written consent of Missouri-American and City. 8.2 Effect of Termination. The right of each party to terminate this Agreement under Section 8.1 is in addition to any other rights 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 9_9 ("Legal Fees; Costs"); and all other covenants and agreements which by their terms continue after the termination of this Agreement 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 (1) or more of the conditions to the terminating party'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. Jefferson City APA v1 - 14 - • ARTICLE 9 , General Provisions 9.1 Amendment and Modification. No amendment, modification, supplement, termination, consent or waiver of any provision of this Agreement, nor consent to any departure therefrom, will in any event be effective unless the same is in writing and.is signed by the parties. Any waiver of any provision of this Agreement and any consent to any departure from the terms of any provision of this Agreement is to be effective only in the specific instance and for the specific purpose for which given. 9.2 Assignments. City 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 assign its rights and obligations under this Agreement to any Related Person or successor in interest without the consent of City. 9.3 Captions. 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. 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 parties hereto are not signatories to the same counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or telecopier is to be treated as an original document. The signature of any party thereon is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party hereto, any facsimile or telecopy document is to be re-executed in original form by the parties who executed the facsimile or telecopy document. No party hereto may raise the use of a • facsimile machine or telecopier or the fact that any signature was transmitted through the use of a facsimile or telecopier machine as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Section. 9.5 Entire Agreement. 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, including without limitation that certain Term Sheet, dated September 23, 2005, executed by the parties. 9.6 Exhibits and Schedules. All of the Exhibits and Schedules attached to this Agreement are deemed incorporated herein by reference. 9.7 Failure or Delay. Except as otherwise provided by this Agreement, no failure on the part of any party hereto to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party hereto in any case entitles such party to any other or further notice or demand in similar or other circumstances. 9.8 Governing Law. This 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. In the event of any litigation or claim regarding this Agreement, the venue for such action shall be in Cole County, Missouri. 9.9 Legal Fees, Costs. 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; provided, however, in the event litigation is instituted by either party to enforce or remedy a breach of any provision of this Agreement, in addition to any other Jefferson City APA v1 - 15 - • relief therein awarded, the prevailing party shall be entitled to judgment for reasonable attorney's fees and litigation expenses. 9.10 Notices. All notices, consents, requests, demands and other communications hereunder are to be in writing and are deemed to have been duly given, made or delivered: (i) when delivered in person, (ii) three (3) business days after deposited in the United States mail, first class postage prepaid, (iii) in the case of telegraph or overnight courier services, one (1) business day after delivery to the telegraph company or overnight courier service with payment provided, or (iv) in the case of telex or telecopy or facsimile, when sent, verification received, in each case addressed as follows: if to City: Attn: Mayor City of Jefferson City [to be received] Jefferson City, Missouri If to Missouri-American: Missouri-American Water Company Attn: President 727 Craig Road St. Louis, Missouri 63141 With a copy to: American Water Works Divisional General Counsel 727 Craig Road St. Louis, Missouri 63141 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. 9.11 Severability. Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction is, as to such jurisdiction, ineffective to the extent of any such prohibition, unenforceability or nonauthorization without invalidating the remaining provisions hereof, or affecting the validity, enforceability or legality of such provision in any other jurisdiction, unless the ineffectiveness of such provision would result in such a material change as to cause completion of the Contemplated Transactions to be unreasonable. 9.12 Specific Performance and Iniunctive Relief. 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 performance or injunctive relief. 9.13 Successors and Assigns. Subject to Section 9.2, all provisions of this Agreement are 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. Jefferson City APA v1 - 16 - G • 9.14 No Third-Party Beneficiary. This Agreement is solely.for the benefit of the parties hereto and their respective successors and permitted assigns, and no other Person has any right, benefit, priority or interest under, or because of the existence of,this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Missouri-American Water Company, a Missouri City of_Jeffe son ity�Missouri public utility corporation By: C�'�I� dohr(Landwehr, Mayor 'erry L.b loriod, President v Attest: "City Clerk Appr ved as ta'Forfft: City Eo rrs&r Jefferson City APA v1 - 17 - SCHEDULE 11 Definitions "Assets"as defined in Section 2.1. "Adiustment Amount" as defined in Section 2.8. "Agreement" as defined in the introductory paragraph. "Assignment and Assumption Agreement" as defined in Section 2.7(a)(ii). "Assumed Contracts" as defined in Section 2.1(c). "Assumed Liabilities" as defined in Section 2.4. "Bill of Sale" as defined in Section 2.7(a)(i). "Business" as defined in the Recitals. "Business Days" means any day other than (i) Saturday or Sunday, or (ii) any other day on which governmental offices in the State of Missouri are permitted or required to be closed. "Missouri-American"as defined in the introductory paragraph. "Capital Improvements"as defined in Section 6.4. "Claimant" as defined in Section 7.5(a). • "Closing" as defined in Section 2.6. "Closing Date" as defined in Section 2.6. "Confidential Information" means (i) information not available to the general public concerning the business and financial affairs with respect to a party hereto, and (ii) 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. "Consent" means any approval, consent, ratification, waiver or other authorization. "Contemplated Transactions" means all of the transactions contemplated by this Agreement and the Transaction Documents. "Contract" means any agreement, contract, obligation, promise or undertaking (whether written or oral and whether express or implied), whether or not legally binding. "Damages"as defined in Section 7.2. "Effective Time"as defined in Section 2.6. "Employee Plans" means any plan, program, arrangement, practice or Contract that provides benefits or compensation to or on behalf of employees or former employees, including such plans governed by the Employee Retirement Income Security Act. "Encumbrance" means any charge, claim, community property interest, condition, easement, equitable interest, 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. Cedar City Salell Schedule 1 • "Environment" means soil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life and any other environmental medium or natural resource. "Environmental, Health 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); (b) 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 investigation, cleanup, removal, containment or other remediation or response actions ("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 ("CERCLA"). "Environmental Law" means any Law that requires or relates to: (a) Advising appropriate authorities, employees and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the Environment; (b) Preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the Environment; (c) Reducing the quantities, preventing the release or minimizing the hazardous characteristics of wastes that are generated; (d) Assuring that products are designed, formulated, packaged and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of; (e) Protecting resources, species or ecological amenities; M. Reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil or other potentially harmful substances; (g) Cleaning up pollutants that have been released, preventing the threat of release or paying the costs of such clean up or prevention; or (h) Making responsible parties pay private parties, or groups of them, for damages • done to their health or the Environment, or permitting self-appointed representatives of the public interest to recover for injuries done to public assets. "Excluded Assets"as defined in Section 2.2. Cedar City Salell Schedule 1 "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Governmental Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, applied on a basis consistent with prior periods. "Governmental Authority(ies)" means any: (a) Nation, state, county, city, town, 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 (including 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, judicial, legislative, police, regulatory or taxing authority or power of any nature. "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 Facilities or any part thereof into the Environment, and any other act, business, 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 Facilities, or that may affect the value of the Facilities or City. "Hazardous 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 admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-containing materials. "Indemnifying Part' as defined in Section 7.5(a). "_Knowledge" means an individual will be deemed to have "Knowledge" of a particular fact or other matter if such individual is actually aware of such fact or other matter. With respect to the City, the City shall only be deemed to have Knowledge if any of City's board members or the system operator is actually aware of the tact or matter at issue. "Law" means any law, rule, regulation or ordinance of any federal, foreign, state or local Governmental Authority. "Liabilit ' with respect to any Person any liability or obligation of such Person for any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, 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 such Person. "Occupational Safety and Health Law" means any Law designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (including those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions. "Order" 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. Cedar City Salell Schedule 1 • "Organizational Documents" means the articles or certificate of incorporation and the bylaws of a corporation and any amendment thereto. "Permit" 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. "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, 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. "Real Property" as defined in Section 3.4. "Records" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. "Related Person" with respect to a particular individual, means: (a) Each other member of such individual's Family(as hereinafter defined); (b) Any Person that is directly or indirectly controlled by such individual or one or more members of such individual's Family; (c) Any Person in which such individual or members of such individual's Family hold • (individually or in the aggregate) a Material Interest; and (d) 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). With respect to a specified Person other than an individual: (e) 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; (f) Any Person that holds a Material Interest in such specified Person; (g) Each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity); (h) Any Person in which such specified Person holds a Material Interest; (i) Any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity); and (j) Any Related Person of any individual described in clause (b) or(c). For purposes of this definition, (i) 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 (D) any other natural person who resides with such individual; and (ii) "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 outstanding equity securities or equity interests in a Person. Cedar City Salell Schedule 1 "Release" means any spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping or other releasing into the Environment, whether intentional or unintentional. "fit ' shall have the meaning given that term in the introductory paragraph and for purposes of this Agreement and all other documents executed in connection herewith, shall include any Subsidiary of City. 'Tax' means all taxes, charges, withholdings, fees, levies, penalties, additions, interest or other assessments, including, without limitation, income, gross receipts, excise, property, sales, employment, withholding, social security, occupation, use, service, service use, license, payroll, franchise, transfer and recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar taxes, charges, fees, levies or other assessments, imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or any other basis. 'Tangible Personal Property" 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 City (wherever located and whether or not carried on City's books), together with any express or implied warranty by the manufacturers or Citys or lessors of any item or component part thereof, and all maintenance records and other documents relating thereto. "Transaction Documents" means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement 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 by mutual agreement from time to time. • Rules of Construction For purposes of this Agreement and the other documents executed in connection herewith, the following rules of construction shall apply, unless specifically indicated to the contrary: (i) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter; (ii) the term "or' is not exclusive; (iii) the term "including" (or any form thereof) shall not be limiting or exclusive; (iv) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; (v) 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 (vi) 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. Cedar City Salell Schedule 1 EXHIBIT B Certificate of Incumbency • • • INCUMBENCY AND SIGNATURE CERTIFICATE I, Martin D, Kerckhoff, Secretary of Missouri-American Water Company ("MAWC"), do hereby certify that, as of the date hereof, the below-named person whose signature appears hereon has been duly elected and qualified as an officer of MAWC holding the respective office hereinafter set forth opposite her name, and that the signature set forth opposite her name below is her genuine signature. Name Office Si mature Terry L. Gloriod President IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed the corporate seal of MAWC effective as of 12:01 am CDT on the 29th day of December, 2008. V �h Martin D. Kerckhoff, Secretary • (SEAL) • • EXHIBIT C Certificate of Good Standing • • "'111 < r�< ;�• r it < ,t ;t r � r, � .X;' �+: . �- �. r �-z'r�, •�. •'-r,a w`. ,,��x d;: < Jf �%<� :;�%<"�.,. 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L Y/p , nr 1 f 1 + ti t�,.f).,vf�r+�ln, 4rri rY�i Y v :�yY �:;a'. .M I 4�•;`}'' ��� 4, -t1 { ,y t.4. �' (i. v r�l!Y..�f ”u1� ° �1 `v .{., � {! ..+, '`��,.r YS 2.�-�C'7 r;, i?C�Al�!� `� )'"F :1 x.tiff�,F�. S,DF at; V� n,Fs'13'.v�7>r `e";€.., �..) � t �,t g• a j C Y-r"Ve E.y<�,rJ 'v p� ' ) p6cwol 1'� No. 8033 Book M418 Page 758 Callaway Count y, State of Missouri R E C O R D E D Dec 30 2 8 9: 33 AM Fees $45.00 A.„ `•: �+ en Dillon, Recorder of Deeds Deputy unnstal VHUgh ta;t Above Space for Recorder's Use Only EASEMENT ASSIGNMENT This Easement Assignment ("Assignment") is made by and between the City of Jefferson City, Missouri ("Assignor"), and the Missouri-American Water Company, a Missouri public utility corporation ("Assignee"). Assignor hereby assigns to Assignee all of Assignor's right, title and interest in and to the easements identified on Exhibit A attached hereto and incorporated herein by reference (the "Easement"). Also included in this Assignment are Assignor's appurtenant rights, privileges and easements thereunto belonging, if any, in and to streets, roads, avenues, highways and lake and river bottoms adjoining the real property described in such Easement to the extent that any of the • foregoing constitute real property of Assignor under applicable federal, state or local law, rule, regulation or governmental requirement of any kind to the extent appurtenant to such Easements. Subject to any express limitations or restrictions set forth in the Easement, this Assignment, and the rights, obligations and interests assigned hereby, shall be perpetual and shall run with the lands described within the Easement, and shall be binding upon and inure to the benefit of Assignor and Assignee and each and all of their respective successors and assigns. This Assignment shall be construed in accordance with the laws of the State of Missouri. This Assignment may be executed in one or more counterparts, all of which when taken together, shall constitute one and the same instrument. This Assignment is made, executed and delivered pursuant to that certain Asset Purchase Agreement dated November 20, 2008, by and between Assignor and Assignee. i [Signature Pages to Follow] • 1 Jeff City Easement Assignments IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be effective as of 12:01 a.m. on the 29th day of December, 2008. ASSIGNOR: CITY OF JEFFERSON CITY, MISSOURI ACKNOWLEDGEMENT STATE OF MISSOURI ) ) ss COUNTY OF PA4 fY ) On this 29th day of December, 2008, before me appeared T P 1,64 Q to me personally known, who, being by me duly sworn, did say that he/she is the Zk A-Ya Ot of the • City of Jefferson City, Missouri (the "City"), and that said instrument was signed on behalf of the City; and said_1P k yolL acknowledged said instrument to be the free act and deed of the City. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. Notary Public (SEAL) " NOTARY SEAL" Drew W. Hilpert, Notary Public Boone County,State of Missour► My Commission Expires 9/6/2010 -Dwrnber.06936026 • 2 Jeff City Easement Assignments ASSIGNEE: • MISSOURI-AMERICAN WATER COMPANY A Missouri Public Utility Corporation By Terry L. loriod, President ACKNOWLEDGEMENT STATE OF MISSOURI ) ) ss COUNTY OF ST. LOUIS ) On this 291" day of December, 2008, before me appeared Terry L. Gloriod, to me personally known, who, being by me duly sworn, did say that he is the President of Missouri- American Water Company, and that said instrument was signed on behalf of said corporation; and said President acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal • in the County and State aforesaid, the day and year first above written. Notary Public (SEAL) Staet A.Olsen Notary Pubile-Notary Seal State of Missouri St. Charles County Commission #05519210 My Commission Expires: March 20, 2009 3 Jeff City Easement Assignments.DOC EXHIBIT A • Easements • • 4 Jeff City Easement Assignments WATER PIPELINE EASEMENT B0OK2_,CV PAGE Y BY CORPORATION THIS INDENTURE, Made on the day of , 19VA4 by and between ABB Power T & D COMPANY-: INC. 4Wk/a ABB TRANSMISSION HOLD, INC., a De aware Corporation, Party of the First Part, and the CITY OF FERSON, MISSOURI, a municipal corporation, Party of the Second Part: WITNESSETS, That the said Party of the First Part in consideration of the sum of One Dollar and other valuable considerations to it paid by the party of the Second Part, the receipt of which is hereby acknowledged, does by these presents Deed, Convey and Transfer to the City of Jefferson, Missouri, Party of the Second Part, its agents, employees and contractors, an easement to excavate within, install, construct, maintain, repair and service pipes and lines for the transmission of potable water, along with valves, meters, fittings, hydrants and all and any other appurtenances necessary in connection therewith, in, under, and through the following described land situated and lying in the County of Callaway, State of Missouri, to-wit: 10 FOOT EASEMENT ALONG NORTHERLY LINE An easement of ten (10) feet of even width across a tract of land as described in Book 296, Page 910, of the Callaway County Recorder's Office; said easement being situated in the Southeast Quarter of Section 10, Township 44 North, Range 11 West, in the City of Jefferson, County of Callaway, Missouri; the centerline of said ten (10) foot easement being more particularly described as follows: � mRe center of said Section 10; thence South 03° 15' West along the Quarter Section line, 441.9 feet to a point on the south line of the old right-of-way of the MR 6 T railroad, said south line also being the north line of the tract described in the aforementioned Book 296, Page 910; thence leaving the said Quarter Section line on a bearing of South 57° 30' East and along the north line of said tract in Book 296, Page 910, 846.1 feet; thence leaving said north line on a bearing of South 320 30' West, 5 feet to the POINT OF BEGINNING of this centerline description; thence North 570 30' West on a line 5 feet southerly of and parallel to said north line, 100 feet to the POINT OF TERMINATION of said centerline description. TO HAVE AND BOLD with all the rights, immunities, privileges and appurtenances necessary to the Party of the Second Party in exercising its right of easement herein obtained, so that neither the Parties of the First Part nor their heirs, grantees, assigns, or successors, nor any person or persons for them or in their name or behalf, shall thereafter make any use of the above-described premises in a manner that is inconsistent with, or in any way interferes with the use by Second Party of, the easement herein deeded, conveyed and transferred to the Party of the Second Part. IN WITNESSETH WHEREOF, the said Party of the First Part has cause these presents to be signed by it,(;Mj"t vakje attested by the assistant secretary and its corporate seal to be hereto affixed the day and year first above written. • ABB Power T&D�Company Inc: By President�tr, J n E. Wagner, e Attest: Assistant Secrei;*aky:: _ 11voy (_7 Thomas Mc STATE OF County ofg&,AV) es. p On this�day of JUAME 19 /a?-, before me personally appeared ot", to :qe_personally known, who, being by me duly sworn, did say that he is SS`s-rAN� T�� of XA6 that the seal affixed to this instrument is the corporate seal of said corporation, and that the said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors. And the sai / j�j(� `' . © acknowledges said instrument to be the free act and deed of`o i1-;Coxpdxation. IN TEST MDNY WHEREOF, I have hereunto out my hand and affixed my official seh11 at my officd- in �lPI7S � the day and year first above written. My term expires 7— STATE OF MISSOURI. County of CaNaway IN THE RECORDER'S OFFICE WATER PIPELINE EASEMENT BY CORPORATION THIS INDENTURE, Made on the ZL""'day of �(�- 19 by and between ABB Power T It D COMPANY, INC. f/k/a TRANSMISSION HOLDINGS, INC., a Delaware Corporati arty of the First Part, and the CITY OF JEFFERSON, MISSOURI, a municipal corporation, Party of the Second Part: WITNESSETH, That the said Party of the First Part in consideration of the sum of One Dollar and other valuable considerations to it paid by the party of the Second Part, the receipt of which is hereby acknowledged, aPA by Imianamee ed a asseewLicn-tsf...the R9a -al-9irartoeareA={sw4V nf •tip 64 cat*mt does by these presents Deed. Convey and Transfer to the City of Jefferson, Missouri, Party of the Second Part, its agents, employees and contractors, an easement to excavate within, install, construct, maintain, repair and service pipes and lines for the transmission of potable water, along with valves, meters, fittings, hydrants and all and any other appurtenances necessary in connection therewith, in, under, and through the following described land situated and lying in the County of Callaway, State of Missouri, to-wit: 20 FOOT EASEMENT ALONG NORTHERLY LINE An easement of twenty (20.) feet of even width across a tract of land as described in Book 296, Page 910, of the Callaway County Recorder's-Of.fica;--said-eaaemont being s•i!uated-in-the Southeast Quarter .of_.SecSion 10, Township 44 North, Range 11 West, in the City of Jefferson, County of Callaway, Missouri; the centerline of said twenty (20) foot easement being more particularly described as follows: From the center of said Section 10; thence South 030 15' West along the Quarter Section line, 441.9 feet to a point on the south line of the old right-of-way of the MK & T railroad, said south line also being the north tine of the tract described in the aforementioned Book 296, Page 910; thence leaving the said Quarter Section line on a bearing of South 570 30' East and along the north line of said tract in Book 296, Page 910, 846.1 feet; thence leaving said north line on a bearing of South 320 30' West, 10 feet to the POINT OF BEGINNING of this centerline description; thence South 570 30' East on a line 10 feet southerly of and parallel to said north line, 705.6 feet to a point on the east line of said tract in Book 296, Page 910, said point being 11.46 feet south of the northeast corner of said tract and the POINT OF TERMINATION of said centerline description. 10 FOOT EASEMENT ALONG EAST LINE easement ten (10) feet of even width across a tract of land as described in Book 296, Page 910, of the Callaway County order's Office; said easement being situated in the Southeast Quarter of Section 10, Township 44 North, Range 11 West, in the City of Jefferson, County of Callaway, Missouri; the centerline of said ten (10) foot easement being more particularly described as follows: From the center-of said-Section.10; thence South 030 15' West along the Quarter Section line, 441.9 feet to a point on the south Line of the old right-of-way of the MK & T railroad, said south line also being the north line of the tract described in the aforementioned Book 296, Page 910; thence leaving the said Quarter Section line on a bearing of South 570 30' East and along the north line of said tract in Book 296, Page 910, 1540.37 feet to a point 5.73 feet west of the northeast corner of said tract, said point being the POINT OF BEGINNING of this centerline description; thence leaving said north line on a bearing of South 030 15' West on a tine five (5) feet west of and parallel to the east line of said tract, 1299.4 feet to a point on the south li.ne..n_f--said tract- i .6-ook-296..Page 91Q, pop int being 5_02 get west of the southeast corner of said tract and the POINT OF TERMINATION of said centerline description. 20 FOOT EASEMENT FOR HYDRANT BRANCH An easement of twenty (20) feet of even width across a tract of land as described in Book 296, Page 910, of the Callaway County Recorder's Office; said easement being situated in the Southeast Quarter of Section 10, Township 44 North, Range 11 West, in the City of Jefferson, County of Callaway, Missouri; the centerline of said twenty (20) foot easement being more particularly described as follows: From the center of said Section 10; thence South 030 15' West along the Quarter Section line, 441.9 feet to a point on the south Line of the old right-of-way of the MK & T railroad, said south line also being the north line of the tract described in the aforementioned Book 296, Page 910; thence leaving the said Quarter Section line on a bearing of South 570 30' East and along the north line of said tract in Book 296, Page 910, 896.1 feet to the POINT OF BEGINNING of this centerline description; thence leaving said north line on a bearing of South 320 30' West, 105 feet to the POINT OF TERMINATION of said centerline description. TO HAVE AND HOLD with all the rights, immunities, privileges and appurtenances necessary to the Party of the Second Party in exercising its right of easement herein obtained, so that neither the Parties of the First Part nor their heirs, grantees, assigns, or successors, nor any person or persons for them or in their name or behalf, shall thereafter make any use of the above-described premises in a manner that is inconsistent with, or in any way interferes with the use by Second Party the easement herein deeded, conveyed and transferred to the Party of the Second Part. IN WITNESSETH WHEREOF, the said Party of the First Part has cause these presents to be signed by its president and attested by :he,,secretary brxi its curporate seat .o ire hereto affixed the da-Y and yaa: firct a:.ave writc-% Q SS iS��4.rt "'Ie �TE OF PA ) ounty of MX1tqV as. On this 2fth day of July , 19 90 , before me personally appeared Joseph W. Baker to me personail l known, who, being by me duly sworn, did say that he is President of ABB Power TO Co. Inc. that the seal affixed to this instrument is the corporate seal of said corporation, and that the said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors. And the said President acknowledges said instrument to be the free act and deed of said Corporation. Blue N Be�I�TIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at my office in the day and year first above written. My term expires January 6 , t9 92 ; No',arial Seal Kathleen A.Thomas,Notary Public - - -- —----- ——— ----- yyhHpaln-Township,-Montgomery County- -- --- My conitfiission Expires Jan.8,1992 Member,Pennsylvania AscodAW of Natarios '\ (NAMES MUST BE TYPED OR PRINTED UNDER ALL SIGNATURES) STATE OF Missouri ) County of Callaway ) ss. I, the undersigned Recorder of Deeds for said County and State do hereby certify that the foregoing instrument of writing was filed for record in my office on the _q day of agj , 1990 at 42 o'clock and minutes _P--N., and is truly recorded in Book Q99 page Witness my hand and official seal on the day and year aforesaid. Helen Barrow Recorder _ By U�� n., /."Yitdl Deputy Rita bird. i WATERI PIPELINE EASEMENT Ig0�K3% P4GE Gy THIS INDENTURE,Made on the day or 1Q-5,by and between John L Wehmsyer,Sue A.Hines,Batty G. Wehmryer,Cud J.Wahmsyer,Melds J.Wahmeyer,Parties of the Part and the CITY OF JEFFERSON,MISSOURI,a municipal corporation, Party of the Second Part: WITNESSETH,That the said Parties of the First Part In consideration of the sum of One Dollar and other valuable considerations to them paid by the party of the Second Part the receipt of which Is hereby advtowledged, do by these presents Dead.Convey and Transfer to Iie City of Jefferson. Missouri.Party of the Second Part,Its agents,employs"and corttradors,an easement to excavate within.Instal,consbuct,maintain,repair and service pipes and tines for the transmlaslon of potable water,along with valves.,maters,fittings•hydrants and all and any other appurtanarw" necessary In connection therewith,in,under,and through the following described land situated and lying in the County of Callaway,State of Missouri,to-wit An easement of ten(10)feet of even width across a tract of land Ltuatod In and being a part of New Madrid Private Survey No.2638,Township 44 North, Range 11 West.In the City of Jefferson,Callaway County.Missouri;the centerline of said ten(10)foot easement being more particularly described as follows: From the northeast comer of said New Madrid Private Survey No.2638;thence South 04.54'17-W along the east dine thereof,238.85 foot to the southerly line of Missouri State Route 94;thence along the southerly line of said Missouri State Route 94 on a bearing of N60.40'09'W, 1801.86 feet to the POINT OF BEGINNING of said oentedine description;thence leaving salt)southerly Ilne of Missouri Route 94 on a bearing of SWS417-W and Wong a Ins being 5 foot west of and parallel to the west line of a tract conveyed to John and Sheila Meyer,as per Book 274•Page 218,of the Callaway County Recorders Office•and the southerly extension thereof.961.27 fast to a point chi Mo northerly tine of the Jaffe.-son City Memorial Airport;said point also boing 1836.71 feet west of the aforementioned east line of Now Madrid Private Survey No.2838 and the POINT OF TERMINATION of said oenterline description. TO HAVE AND HOLD with all the rights,Immunities•privileges and appurtenances necessary to the Party of the Second Party in exercising Its right of easement herein obtained•so that neither the Parties of the First Part nor their heirs•grantees,asslgns,or successors, tar any person or persons for them or In their name or behall,"I thereafter makal any use of the above-d"cilbed premises In a manner that Is inconsistent with,or In any way Interferes with the use by Second Parry of,the easement herein deeded,conveyed and transferred to the Party of the Second Part IN WITNESSETH WHEREOF,the Bald Patti"of the Firs`t Part have caused phew presents be algned the day and year first above written. John L Wahmeye Sue A.HI I�Qi/IJ.CI �7� ally G.Wehrreyer J.Wahmeyer ' la J.Wohmayer . STATE C�Lc���-''c[.'t-tom 1 /r'U SS. COUNTY OFII Jti On this 'day of before me personally appeared John L Wehmayer,Sue A.Hines,Betty G. Wahmeyer,Carol J.Wshmayss,and Models J.W meyer,to be lmown to be the persons described In and who executed.the foregoing Instrument and acMrowledged that they executed the same as TAIr free ad end deed for the consideration stated r IN TES/TIMONY WHEQFOF,I have hereunto set my hands and affixed my official seal at my office in the day and you first above wdtten. My term expires 1 WMITAIM 'BET "SEfER + '. •,.'- TARY PUBLIC,STATE OF MISSOURI CtUNTY OF COLE •!•,.."1'11 �. '�� - --� COPY S1 9L OF MISSOURI }SS nf?UYTv OF CALLAWAY a ifECORI)c!+i) 'JA'D COUNTY ANO STATE,DO HEREBY CERTIFY 1 HA l I H15 N$TRUMEN t WAS FILED AT /J O'CLO MA. ON L _19 e AND 1 dECORDED rN 800K _CN PAGE WITNESS MY HANU AND SEAL 0 OFFIUE Helen Barrow RECORDER =DIR y Moser. . r'