EXECUTION COPY
ELM ROAD II OWNERSHIP AGREEMENT
among
ELM ROAD GENERATING STATION SUPERCRITICAL, LLC
and
MGE POWER ELM ROAD, LLC
and
WISCONSIN PUBLIC POWER INC.
and
ELM ROAD SERVICES, LLC
and
W.E. POWER LLC
Dated as of December 17, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS; RULES OF INTERPRETATION
2
1.1
Definitions
2
1.2
Rules of Interpretation and Construction
14
ARTICLE II: OWNERSHIP OF UNIT 2
16
2.1
Ownership of Unit 2
16
2.2
[Intentionally Omitted]
16
2.3
Elections to Proceed or Not to Proceed
16
2.4
Tenancies-in-Common
20
ARTICLE III: RIGHTS AND OBLIGATIONS OF THE PARTIES
20
3.1
Effectiveness of Rights and Obligations of the Parties
20
3.2
Rights and Obligations with Respect to Government Approvals
20
3.3
Rights and Obligations with Respect to Information
21
3.4
Rights and Obligations with Respect to Closing and the Project
23
3.5
Inspection
23
ARTICLE IV: OWNERSHIP INTERESTS
23
4.1.
Timing of Closing
23
4.2
Closing Invoice; Purchase Price
23
4.3
Acquiring Party’s Conditions to Closing
24
4.4
ERGS SC’s Conditions to Closing
25
4.5
Failure to Close
26
4.6
Payment of Incremental Charge
28
4.7
Closing Costs
28
4.8
Effectiveness of Rights and Obligations of Unit 2 Owners
28
ARTICLE V: APPOINTMENT OF PROJECT MANAGER; PRINCIPAL
RESPONSIBILITIES OF THE PROJECT MANAGER
28
5.1
Appointment of Project Manager
28
5.2
Project Manager Functions
28
5.3
Standard of Conduct
29
5.4
Construction Agreements
29
5.5
Unit 2 Owners’ Waiver of Exercise of Rights and Remedies under
the Construction Agreements
29
5.6
Cooperation
29
5.7
Acceptance of Construction Documents and Project Manager Actions
29
ARTICLE VI: PAYMENTS BY THE UNIT 2 OWNERS
30
6.1
Billing Statements
30
6.2
Payments
31
6.3
Non-Payment
32
6.4
Payment Schedules
32
6.5
Late Interest
33
6.6
Disputes
33
6.7
Audits
34
6.8
Billing Statement Adjustments
34
6.9
Refunds
35
ARTICLE VII: TAXES
36
7.1
Tenants in Common
36
7.2
Liability and Compliance
36
7.3
Receipts, Records and Documentation
37
7.4
Tax Matters
37
ARTICLE VIII: OTHER RIGHTS AND OBLIGATIONS OF THE