Asset Purchase Agreement, dated February 16, 2022, by and among Artesian Water Company, Inc. a Delaware corporation, and the Town of Clayton, a Delaware municipality

THIS ASSET PURCHASE AGREEMENT (“Agreement”) is entered into as of this ___ day of ____________________, 2022 by and between Artesian Water Company, Inc., a Delaware corporation (“Buyer”), and the Town of Clayton, a Delaware municipality (“Seller”).

WHEREAS, Seller is a municipality that provides public water service and water for fire protection service (the “Municipal Water Utility”) within its corporate limits and to certain customers outside its corporate limits (the “Service Area”); and

WHEREAS, in September 2021 Seller publicly issued Request for Proposal No. 21-01, titled Provision of Drinking Water Service to Town of Clayton Service Area (the “RFP”), and Addendum 1 thereto, concerning a potential sale of Seller’s Municipal Water Utility assets, which are incorporated herein by reference; and

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell, assign, transfer, convey and deliver to Buyer, substantially all of the operating assets of Seller’s water system, including the right to provide water service to Seller’s existing customers, under the terms and conditions set forth herein, free and clear of all Indebtedness and Liens (as hereinafter defined); and

WHEREAS, in connection with sale of the water system assets, Seller and Buyer shall jointly file an application with the Delaware Public Service Commission (“PSC”) seeking regulatory approval to consummate the Agreement and the transactions contemplated in connection herewith;

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements of the parties hereinafter set forth, as well as other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Buyer and Seller, intending to be legally bound, do hereby agree as follows:

Section 1.1 The following capitalized terms shall have the following meanings when used in this Agreement:

(a)  “Indebtedness” means all (i) indebtedness of Seller for borrowed money, including, without limitation, purchase money indebtedness, bonds, debentures, capital or financing leases, equipment operating leases, non-trade payables and credit facilities, or obligations for or in respect of the deferred purchase price of goods or services, (ii) obligations of Seller under any guaranty, letter of credit, performance credit or other contract having the effect of assuring a creditor against loss, (iii) obligations of Seller under any interest rate, currency or other hedging contract, and (iv) any prepayment penalties, premiums or fees under any of the foregoing items described under causes (i), (ii) or (iii).

(b) “Liability” or “Liabilities” means any and all direct or indirect Indebtedness, liability, assessment, claim, loss, damage, deficiency, environmental liability, obligation or responsibility, expense (including, without limitation, reasonable attorneys’ fees, court costs, accountants’ fees, environmental consultants’ fees, laboratory costs and other professional fees), Order (as hereinafter defined), settlement payments, taxes, fines and penalties, fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute, actual or potential, contingent or otherwise (including any liability under any guaranties or letters of credit, or with respect to insurance loss accruals).

(c) “Lien” or “Liens” means, with respect to any Purchased Asset (as hereinafter defined), any lien (including mechanic’s, warehouseman’s, laborer’s and landlord’s liens), charge, restriction, claim, hypothecation, pledge, security interest, mortgage, preemptive right, right of first refusal, option, judgment, title defect, right of way, easement, conditional sale or other title retention agreement, or other restriction or encumbrance of any kind in respect of or affecting such asset.

(d) “Order” means any order, judgment, preliminary or permanent injunction, temporary restraining order, award, citation, decree, consent decree or writ.

Section 2.1 Sale and Delivery of Purchased Assets.

At Closing (as hereinafter defined), and subject to the terms and conditions of this Agreement, Seller shall sell, assign, transfer, convey and deliver to Buyer, free and clear of all Liens and Indebtedness, all of Seller’s right, title and interest in and to all of the following assets, rights, claims, properties and interests that Seller owns or in which Seller has any right, title or interest, other than the Excluded Property as hereinafter defined (each a “Purchased Asset” and collectively the “Purchased Assets”), as follows:

(a) Municipal Water Utility.  Subject to the accounts receivable terms of Section 3.2 below, all of Seller’s right, title and interest in and to the Municipal Water Utility, including, without limitation, all of Seller’s right to serve the customers now or hereafter provided water service in the Service Area and all of Seller’s right to be served by or otherwise interact with all vendors and suppliers with respect to the conduct of the Municipal Water Utility.  The Seller will cooperate with Buyer in Buyer’s efforts to secure exclusive franchise territory for any future growth or annexation areas identified or annexed by the Seller; and

(b) Water Plant, Property and Equipment.  Except as specified herein as excluded property (the “Excluded Property”), all of Seller’s wells, supply facilities, water treatment facilities, water storage facilities, water service related equipment, water transmission and distribution mains, lines, conduits, and their related appurtenances, hydrants, services, meters and related appurtenances from the mains to the shut-off valve (located at the property line or the right-of-way) at each service location (collectively, the “Water Plant”) on an “as is” basis.  See Exhibit A-1 hereto for a non-exhaustive list of purchased assets.  The Excluded Property shall consist of, and the Purchased Assets shall not include (a) the meter pit or any on-site water facilities after the shut-off valve (located at the property line or the right-of-way) at any service location on the date of Closing and (b) all service lines that are outside the right-of-way; and

(c) Real Property.

(d) Assumed Contracts.  All instruments, documents, contracts, agreements, arrangements, commitments, bids, licenses and any other contract rights (whether written or oral) (collectively, “Assumed Contracts”) of Seller existing on the date of Closing and relating to the Municipal Water Utility and/or Water Plant.

(e) Existing interconnection agreements between Buyer and Seller will terminate at the time of Closing; and

(f) Easements.  All of Seller’s rights to access or use any real property or fixtures (including by license or easement) directly or indirectly used in connection with the Municipal Water Utility and/or the Water Plant, with the understanding that Buyer will subdivide and return to the Town of Clayton an unoccupied portion of the WTP Parcel and the Underwoods Corner Parcel and that Seller shall retain the right to attach future antennas, cabling and related equipment to the existing elevated water storage tanks for the Town’s municipal networking, communications, and transmission needs (such as public safety or public works equipment).  This does not extend to commercial communication needs that are installed for revenue-generating purposes, with the exception of the Town’s current Verizon contract. Seller will convey to Buyer any and all necessary easements, licenses, and approvals to access or use any real property or fixtures owned by Seller directly or indirectly used in connection with the Municipal Water Utility and/or the Water Plant; and

(g) Permits.  All approvals, consents, licenses, permits, waivers, certificates of public convenience and necessity, or other authorizations issued, granted, given, or applied for at the time of Closing or otherwise made available by or under the authority of any governmental authority (collectively, “Permits”) for the ownership or operation of the Municipal Water Utility and/or Water Plant, to the extent such Permits are assignable.  Seller will cooperate with Buyer in obtaining and/or transferring any such Permits.

(h) Risk of Loss.  Buyer shall be given exclusive possession of the Purchased Assets at the time of Closing.  Until Closing, risk of loss with respect to the Purchased Assets shall remain with Seller, and Seller agrees to maintain comprehensive property/casualty insurance and third party public liability insurance covering the Purchased Assets until Closing.

Section 2.2 Liabilities.

(a) Liabilities Assumed by Buyer.  At Closing, Buyer shall assume Liability for and agree to pay, perform and discharge all of the following (collectively, the “Assumed Liabilities”):

(b) Liabilities Retained by Seller.  Except for the Assumed Liabilities, Buyer shall not assume, and shall not be deemed to have assumed through anything contained in this Agreement or otherwise, any Indebtedness, Liabilities or Liens of Seller whatsoever (the “Excluded Liabilities”).  Without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed by anything contained in this Agreement or otherwise to have assumed the following Excluded Liabilities:

Section 2.3 Purchase Price.

(a) Purchase Price for the Purchased Assets.  In consideration of the sale, assignment, transfer, conveyance and delivery of the Purchased Assets by Seller to Buyer and in reliance on the representations, warranties, covenants and agreements made by Seller in this Agreement, at the Closing Buyer shall pay Seller as set forth below:

(b) Payment of the Purchase Price for the Purchased Assets.  No later than five (5) business days prior to Closing, Seller shall deliver to Buyer:  (i) a statement setting forth the payoff amount as of the Closing date of any secured debt or debt associated with the water system, including the Real Property, together with wire payment instructions for making the payoff payment of such debt; and (ii) wire payment instructions for payment to Seller of the Cash Purchase Price, less  the current payoff amount of any secured debt or debt associated with the water system, including the Real Property.

(c) Proration.  The parties shall make customary proration with respect to any personal or real property taxes, and power or other utility charges as of the Closing date.

(d) Allocation of Purchase Price.  Buyer and Seller agree to allocate the Cash Purchase Price (and all other capitalizable costs) among the Purchased Assets for all purposes (including financial, accounting and tax purposes) in accordance with an allocation schedule to be agreed upon by Buyer and Seller, and, in the absence of an agreement then in such manner as determined by Buyer in its reasonable discretion.  Buyer and Seller shall file all tax returns, reports and other documents, including an asset acquisition statement on Form 8594, required by any competent taxing authority in a timely manner consistent with the allocation set forth on such agreed schedule.

Section 3.1 Closing.

The closing of the transactions contemplated by this Agreement (“Closing”) is contingent upon obtaining regulatory approval from the PSC.  Closing on the purchase of the Purchased Assets shall take place at Seller’s offices located at 414 Main Street, Clayton, Delaware 19938 on the later of (x) within thirty (30) days following the receipt of all necessary approvals from the PSC, and (y) within thirty (30) days of the satisfaction of any condition precedent and the completion of due diligence to the satisfaction of Buyer.

Section 3.2 Municipal Water Utility Accounts Receivable at Closing.

On the date of Closing Seller shall, with the assistance of Buyer, read the meters of all Municipal Water Utility customers.  Once Buyer has posted the final bills relating to the period of Seller’s ownership of the Municipal Water Utility, the Metering and Billing Agreement between Seller and Buyer shall terminate.  Seller shall retain all rights to accounts receivable relating to the Municipal Water Utility as of the date of Closing and be responsible for the collection thereof.

Section 3.3 Closing Deliveries.

(a) At Closing, Seller shall deliver or cause to be delivered to Buyer each of the following:

(b) At Closing, Buyer shall deliver or cause to be delivered to Seller each of the following:

(c) During Closing, Buyer shall pay the Cash Purchase Price, less the current payoff amount of any secured debt or debt associated with the water system, including the Real Property, to Seller using the wire payment instructions provided by Seller.  Before or during Closing, Buyer shall pay the current payoff amount of any secured debt or debt associated with the water system, including the Real Property, using the wire payment instructions to be provided by Seller.  Seller shall ensure that any liens are removed from property and assets associated with this acquisition.

Section 3.4 Conditions to Closing.

At or before Closing, the following provisions shall have been satisfied.

(a) Absence of Certain Changes.  There shall have been no change that constitutes or results in a material adverse change in the Municipal Water Utility or the Purchased Assets.

(b) Due Diligence.  Buyer shall have completed due diligence of the Purchased Assets, including review of title to and condition of the Real Property, the results of which shall have been satisfactory to Buyer in its sole discretion.  Seller shall cooperate with Buyer in the completion of Buyer’s due diligence, including but not limited to providing access to real property and/or other assets and providing requested information and documents related to the Municipal Water Utility and Water Plant.

(c) CPCN and Other Approvals. If and as necessary, Buyer (a) shall have been granted by the PSC regulatory approval to consummate the Agreement and the transactions contemplated in connection herewith and a Certificate of Public Convenience and Necessity (“CPCN”) to provide exclusive water service to the Service Area and (b) shall have received such other approvals and agreements from such parties, including but not limited to the PSC and the Town of Clayton, as Buyer deems necessary in order to operate the Purchased Assets.

Seller hereby represents and warrants to Buyer that each of the following representations and warranties are, as of the date hereof, and as of the Closing date will be, true and correct:

Section 4.1 Authority and Validity.

Seller’s execution and delivery of this Agreement, performance by Seller hereunder, and the consummation by Seller of the transactions contemplated hereby have been duly and validly authorized by all required action by or on behalf of Seller.  This Agreement has been duly and validly executed and delivered by Seller, and constitutes valid and legally binding obligations of Seller that are enforceable against Seller in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies.

Section 4.2 No Conflict.

Neither the execution and delivery of this Agreement nor the carrying out of any of the transactions contemplated hereby will result in any:  (a) violation, termination or modification of, or be in conflict with, Seller's powers or authority under applicable laws; (b) material breach of, or constitute a default (or with notice, lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation, or result in the creation of any Lien upon any of its properties or assets pursuant to any Permit or any contract to which Seller is a party or by which it or any of the Purchased Assets are bound or affected, or (c) violation of, or be in conflict with, any law or Permit applicable to Seller or by which the Purchased Assets are bound or affected.

Section 4.3 Title to Assets.

(a) The Purchased Assets constitute all of Seller’s assets, properties and rights (in each case whether real or personal, tangible or intangible), other than the Excluded Property, necessary for Buyer to conduct the Municipal Water Utility after Closing in the same manner as conducted immediately prior to Closing.  Title to the Purchased Assets shall be conveyed to Buyer at Closing free and clear of all Indebtedness, Liens and Liabilities.  Except as otherwise stated herein, Seller has good and marketable title to, or a valid license to use, all of the Purchased Assets (in each case whether real or personal, tangible or intangible) used by Seller in the Municipal Water Utility or located on any property owned or used by Seller, free and clear of all Liens and defects of title.  Seller specifically warrants and represents that, except as otherwise identified herein and set for repayment as part of Closing in accordance with the terms hereof, no Liens or Indebtedness exist relating to the Purchased Assets other than current, ordinary monthly accruals such as the current month’s electric bill.

(b) Except as previously disclosed in Seller’s publicly-issued Request for Proposals regarding the sale of the Municipal Water Utility, all of the Water Plant is in good condition and repair, ordinary wear and tear excepted, and has been maintained and repaired in a good and workmanlike manner in accordance with industry standards.

Section 4.4 Litigation.

There are no outstanding Orders of any governmental authority involving the Purchased Assets or the Municipal Water Utility.  There is no litigation (civil or criminal) and there are no other actions, suits, arbitrations, mediations, administrative proceedings, audits or investigations, whether or not the defense thereof or Liabilities in respect thereof are covered by insurance (collectively, “Claims”), pending or, to Seller’s knowledge, threatened against, or involving the Purchased Assets or the Municipal Water Utility.

Section 4.5 Environmental.

(a) None of the real property relating to the Purchased Assets or the Easement is or has been listed on the National Priorities List, the Comprehensive Environmental Response, Compensation, Liability Information System (“CERCLIS”) or any similar state list, or is or has been the subject of any “Superfund” evaluation or investigation, or any other investigation or proceeding of any governmental authority or unaffiliated third party or of Seller evaluating whether any remedial action is necessary to respond to any release of any hazardous substance, pollutant or contaminant in connection with such real property.

(b) Seller is not aware of and has received no notice, written or otherwise, which remains outstanding or unresolved, to the effect that the Water Plant is not being operated in compliance in all material respects with all applicable laws concerning the protection of public health, public safety or the environment (“Environmental Laws”) or that there are any water quality deficiencies or violations.  Seller has received no notice, written or otherwise, which remains outstanding or unresolved, (i) (A) alleging that Seller or any of its agents is liable under any Environmental Law, or (B) ordering Seller or any of its agents to remedy or recommending that Seller or any of agents remediate, any environmental damage to any real property or modify or upgrade its Water Plant to comply with Environmental Laws, and (ii) to Seller’s knowledge, no such claims or notices are threatened or pending.

(c)  There has been no violation of Environmental Laws that remain unremedied or unresolved respecting the release or threatened release of any hazardous substance, pollutant or contaminant to any soil, groundwater, surface water, building component, wastewater, air or other media on or from any real property relating to the Purchased Assets or the Easement during the ownership, occupation or use of such real property by Seller or any of its agents.

(d) There are no and have not been any underground storage tanks, underground piping (except for water or sewer), per- and polyfluoroalkyl substances, or polychlorinated biphenyls used, stored, treated or disposed of at any real property relating to the Purchased Assets or the Easement.

Section 4.6 Unclaimed Property.

Seller has no unpaid unclaimed property Liability relating to the Municipal Water Utility with respect to any taxable period ending on or before the Closing date for which Buyer would be liable or to which the Purchased Assets would be subject.

Section 4.7    Compliance with Laws.

The ownership and operation of the Purchased Assets and the operation of the Municipal Water Utility as it is currently conducted do not violate or infringe any law in any material respect.  Seller has not received written notice (or, to Seller’s knowledge, oral notice) of any violation by Seller of any law applicable to the operation of the Municipal Water Utility as currently conducted or the Purchased Assets as currently operated.  Seller has timely paid all applicable fees, including registration fees and maintenance fees, required by any governmental authority, to maintain Permits in good standing.

Section 4.8 No Brokers.

Neither Seller, nor any representative or other person acting on behalf of Seller, has agreed to pay a commission, finder’s or investment banking fee, or similar payment in connection with this Agreement or any matter related hereto to any person, nor has any such person taken any action on which a claim for such a payment could be based, other than payments for which Buyer will have no Liability or obligation.

Section 4.9 Disclosure.

All agreements, schedules, exhibits, certificates and reports furnished or to be furnished to Buyer by or on behalf of Seller in connection with this Agreement or the transactions contemplated hereby are true, complete and accurate in all material respects.  Except for the representations and warranties expressly set forth in this Agreement, Seller has not made and does not hereby make any express or implied representations or warranties, statutory or otherwise, of any nature, including, without limitation, with respect to any express or implied representation or warranty as to the merchantability, quality, quantity, suitability or fitness for any particular purpose of the assets, each of which are hereby disclaimed.

Buyer hereby represents and warrants to Seller that the following representations and warranties are, as of the date hereof, and as of the Closing date will be, true and correct:

Section 5.1 Organization and Good Standing.

Buyer is a corporation duly organized, validly existing and in good standing under the applicable laws of the State of Delaware.  Buyer has full corporate power and authority to own its properties and carry on its business as it is now being conducted.

Section 5.2 Authority and Validity.

Buyer’s execution and delivery of this Agreement, performance by Buyer hereunder, and the consummation by Buyer of the transactions contemplated hereby have been duly and validly authorized by all required corporate action by or on behalf of Buyer.  This Agreement has been duly and validly executed and delivered by Buyer, and constitutes valid and binding obligations of Buyer that are enforceable against Buyer in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to the enforcement of creditors’ rights generally or by principles governing the availability of equitable remedies.

Section 5.3 No Violation.

There is no legal action, proceeding or investigation pending or, to the knowledge of Buyer, threatened against Buyer, nor is there any judgment outstanding against Buyer or to which Buyer is subject or bound, that materially adversely affects the ability of Buyer to consummate any of the transactions contemplated hereby.

Section 5.4 No Brokers.

Neither Buyer nor any person acting on behalf of Buyer has agreed to pay a commission, finder’s fee, investment banking fee or similar payment in connection with this Agreement or any matter relating hereto, nor has Buyer taken any action on which a claim for such a payment could be based.

Section 5.5 Disclosure.

None of the representations and warranties set forth in this Agreement furnished by Buyer to Seller pursuant hereto, taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading.

During the period from the date of this Agreement through and including the Closing date:

Section 6.1 Seller’s Conduct of the Municipal Water Utility Pending Closing.

Except as may be first consented to by Buyer in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement through and including the Closing date: (i) Seller shall conduct the Municipal Water Utility and operate the Purchased Assets according to its ordinary and usual course of business, preserve intact its Municipal Water Utility and the Purchased Assets, and keep available the services of its employees and independent contractors; (ii) Seller will not sell, lease, transfer, assign, convey, hypothecate, encumber or make any dividend or distribution of any Purchased Assets, will not amend any unclaimed property filing relating to the Municipal Water Utility, and will otherwise use reasonable efforts to maintain satisfactory relationships with respect to the Municipal Water Utility with all relevant governmental authorities, suppliers, agents, customers, and others having relevant business relationships with Seller; and Seller shall promptly notify Buyer in writing of any notice or other communication that it receives (written or oral) respecting any litigation, regulatory proceeding, or audit involving or affecting Seller.  Should any major repairs to the Municipal Water Utility become necessary during the period between execution of this Agreement and Closing and should the parties agree that the reasonable cost of that repair exceeds Twenty-Five Thousand and 00/100 Dollars ($25,000.00), Buyer and Seller shall share such reasonable repair cost equally.  Should Closing occur more than ninety (90) days after the execution of this Agreement, the repair threshold shall be reduced to Fifteen Thousand and 00/100 Dollars ($15,000.00) for the period between the 90^th day after the execution of Agreement and Closing.  Should Closing fail to occur, Seller shall reimburse to Buyer any such repair contribution made during this period.  Without limiting the foregoing, Seller, except as may be first consented to by Buyer in writing (such consent not to be unreasonably withheld, conditioned or delayed), shall not:

(a) enter into any contract relating to the Municipal Water Utility other than with customers or suppliers in the ordinary course of business substantially as conducted heretofore;

(b) cause any material adverse change in the Municipal Water Utility, including performing or not performing any action, the performance or non-performance of which would reasonably be expected to result in a material adverse change;

(c) make any loan or advance relating to the Municipal Water Utility other than for services provided to customers on credit in the ordinary course of business consistent with past practice;

(d) incur any Indebtedness relating to the Purchased Assets or Municipal Water Utility, except expenses and current Liabilities incurred in connection with or for services rendered or goods supplied in the ordinary course of business, or obligations or Liabilities incurred by virtue of the execution of this Agreement, or (ii) create any Lien on any Purchased Assets; or

(e) change the accounting principles, methods or practices (including without limitation any change in depreciation or amortization policies or rates) utilized by Seller involving or affecting the Purchased Assets or the ownership or operation thereof; or

(f) make any capital expenditure or commitment therefor.

Section 6.2 2021 and 2022 Consumer Confidence Reports.

Seller and its agents will cooperate with Buyer in preparation of  the Consumer Confidence Reports (“CCR”) for the Municipal Water Utility for calendar year 2021 and 2022.

Section 6.3 Access; Cooperation.

Upon reasonable prior notice, during the period from the date of this Agreement through and including the Closing date: (i) Seller shall give Buyer and its representatives such access to the Purchased Assets, Municipal Water Utility records, customers and suppliers during regular business hours as may be reasonably requested by Buyer, including with respect to having surveys performed and a Phase I environmental assessment undertaken for the WTP Parcel, the Underwoods Corner Parcel, the Well 3 and Tank 1 Parcel, the Well 1 Parcel, and the Grain Mill Station Well Site Parcel; (ii) Seller and its representatives shall also cooperate with Buyer and its representatives, including Buyer’s auditors and counsel, in the preparation of any documents or other materials required in connection with the transactions contemplated by this Agreement, including with respect to obtaining all necessary regulatory approvals from the PSC; (iii) in addition, Seller and Buyer shall use their respective reasonable good faith efforts to satisfy all conditions to Closing and all other matters relating to the consummation of the transactions contemplated by this Agreement; and (iv) Seller and Buyer shall cooperate with each other in connection with any filings with any governmental entity with authority over the parties or the transactions contemplated by this Agreement.

Section 7.1 Remittance of Unclaimed Property.

  From and after Closing through and including the date that is the seventh (7th) anniversary of the Closing, Seller and Buyer shall cooperate fully with each other and make available or cause to be made available to each other in a timely fashion such data relating to taxes, prior tax returns, filings with the Internal Revenue Service or other governmental authorities, unclaimed property filings, and other information as may be reasonably requested for the preparation by Buyer or Seller of any tax returns or other filings with the Internal Revenue Service or other governmental authorities.

Seller and its agents will cooperate with Buyer in preparation of the 2021 and 2022 CCRs, which Buyer shall provide to all necessary governmental authorities and customers.

From and after Closing, Seller shall give Buyer and its agents such access to Seller’s books and records relating to the Purchased Assets and the Municipal Water Utility that pertain to the period prior to and ending at Closing as Buyer shall reasonably request, as necessary or appropriate for Buyer to prepare any tax filings or defend or prosecute any litigation or other proceeding.  Seller shall maintain its books and records relating to the period during which it owned the Purchased Assets and operated the Municipal Water Utility for at least seven (7) years after Closing, or such other period as mandated by applicable law.

Section 7.4 Rate Structure.

After Closing, Buyer shall continue to assess water charges in the Service Area based upon Seller’s Municipal Water Utility rates as of the date of Closing.  Buyer shall take all necessary and appropriate steps and seek all necessary regulatory approvals to make six annual adjustments in the water and fire protection rates in the Service Area, commencing on January 1, 2023 and occurring annually on January 1 for five additional years transitioning the rates to the rates that generally apply in the State of Delaware per Buyer’s PSC-approved tariff as amended from time to time (the “Rate Transition Period”), it being understood that:

(a) Buyer shall take reasonable steps to make the annual adjustments in Service Area rates during the Rate Transition Period similar in amount.  For illustrative purposes only, an example of a proposed rate transition schedule for an average residential customer, using 4,000 gallons per month, is attached hereto as Exhibit E; and

(b) after the Rate Transition Period, rates in the Service Area shall be the same as apply generally in the State of Delaware pursuant to Buyer’s PSC-approved tariff as amended from time to time; and

(c) Buyer will assess, collect, and retain the water fees charged to Seller’s customers, including a Five Hundred and 00/100 Dollars ($500) per equivalent dwelling unit water connection fee and an impact fee of Three Thousand and 00/100 Dollars ($3,000) per equivalent dwelling unit, which amounts may be amended from time to time.

After Closing, Buyer shall make the following investments in Service Area infrastructure, making good faith efforts to complete each item, it being understood that Buyer shall not be deemed in breach of this Agreement if, despite its good faith efforts, it is unable to do so for reasons beyond its control:

(a) All of the Seller’s water mains will be put into Buyer’s water main renewal program and the water quality and leak history of these mains will be tracked.  The mains will be evaluated regularly as part of Buyer’s water main renewal program. This program includes a variety of indices which are evaluated to determine when corrective action needs to be taken on a given main. Based on the age of certain cast iron mains identified by the Town, Buyer expects some corrective actions, up to and including replacement, to be necessary within the next ten years.  Buyer will report to or meet with the Town annually (so long as the Town continues to request such reports or meetings) regarding the maintenance and if necessary, renewal, of those water mains identified by the Town in V.A.4 (pages 3 and 4) of the RFP; and

(b) Buyer and the Town will coordinate and cooperate for the removal of any lead goosenecks or infrastructure found within the water system, including cooperating with the Town in accessing any public funding for such removal or for the benefit of the Municipal Water System and notification from the Town to the Buyer of any opportunity to access and inspect such infrastructure. If there are any costs borne by the Town in accessing or administering any awarded public funding for the benefit of the Municipal Water System, Buyer will ensure that such costs are covered by that public funding or otherwise reimbursed to the Town.  To the extent allowed, Buyer agrees to cooperate with the Town in any administrative functions of accessing or administering such public funding; and

(c) Buyer will evaluate and determine whether the 4” main that crosses Main Street needs to be replaced, upgraded, or supplemented in order to improve system reliability.  Buyer will work with Seller to determine if future development projects should be part of solving any issues identified with this 4” main.  Within one year after Closing, Buyer will report to or meet with the Town regarding the evaluation and determination related to the 4” main that crosses Main Street.

Buyer shall perform compliance monitoring consistent with its practices throughout the State of Delaware, which includes routine monthly bacteria sampling, annual disinfection by-product monitoring, and triannual lead and copper sampling.  Buyer will sample from the distribution entry point at the treatment plant. Notwithstanding anything to the contrary herein, Buyer’s sampling and monitoring shall conform to applicable state and federal statutes and regulations, including the Safe Drinking Water Act, as such statutes and regulations are amended from time to time.

Absent an emergency, Seller shall notify Buyer at least three (3) months prior to the commencement of construction about any road improvement project where Buyer owns or operates water utility facilities in the Service Area.

At any time and from time to time after Closing, without further consideration (but at Buyer’s cost of preparation and filing) Seller shall promptly execute and deliver such confirmatory instruments of sale, transfer, conveyance, assignment and delivery, and take such other reasonable actions, as Buyer may reasonably request to transfer, convey and assign to Buyer, and to confirm Buyer’s right, title and interest in and to, each and all of the Purchased Assets, to put Buyer in actual possession and operating control thereof, to assist Buyer in exercising all rights with respect thereto, and to carry out the purposes and intent of this Agreement.

The representations and warranties made by the parties in this Agreement shall survive the Closing, and shall remain in full force and effect until the date that is twelve (12) months from the Closing Date; provided, however, that the representations and warranties in Section 4.3(a) (the “Fundamental Representations”) shall survive until the date on which the statute of limitations otherwise applicable to such claims expires.  All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. The parties each agree to indemnify, defend and hold harmless the other party, including the other party’s affiliates, directors, officers, agents, employees, contractors, subcontractors, successors and assigns, from and against any and all claims, counterclaims, actions, proceedings, suits, losses, debts, demands, judgments, liens, costs and liabilities, including reasonable attorneys’ fees and expert witness fees, arising out of or in any way relating to any breach of the indemnifying party’s representations and warranties.  Without limiting the foregoing, (i) Seller indemnifies Buyer and shall hold Buyer harmless for all Liens, encumbrances, Liabilities, Indebtedness, security interests and claims of any nature relating to the Purchased Assets existing as of Closing, or that arise after Closing and relate to the period prior to the transfer of title to Buyer, and Seller shall bear all costs and expenses, including attorneys’ fees, necessary to remove any such Liens, encumbrances, Liabilities, Indebtedness security interests and/or claims, provided, however, that with specific respect to defects in title, Seller’s obligation shall be to provide Buyer reasonable cooperation in curing such defects, rather than an obligation of indemnification, and (ii) Buyer indemnifies Seller and shall hold Seller harmless for all Liens, encumbrances, Liabilities, Indebtedness, security interests and claims of any nature relating to the Purchased Assets that arise after Closing and do not relate to the period prior to the transfer of title to Buyer, and Buyer shall bear all costs and expenses, including attorneys’ fees, necessary to remove any such Liens, encumbrances, Liabilities, Indebtedness security interests and/or claims.

The indemnification provided for in this Section 8.1 shall be subject to the following limitations:

(a) Seller shall not be liable to Buyer for indemnification under this Section 8.1 until the aggregate amount of all losses exceeds Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (the “Basket”), in which event Seller shall be required to pay or be liable for all such losses from the first dollar.  The aggregate amount of all losses for which Seller shall be liable pursuant to Section 8.1 shall not exceed One Million and 00/100 Dollars ($1,000,000.00) (the “Cap”).

(b) Buyer shall not be liable to Seller for indemnification under Section 8.1 until the aggregate amount of all losses exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such losses from the first dollar. The aggregate amount of all losses for which Buyer shall be liable pursuant to Section 8.1 shall not exceed the Cap.

(c) Notwithstanding the foregoing, the limitations set forth in Section 8.1(a) and (b) above shall not apply to (i) losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, and (ii) losses related to fraud.

(d) The indemnified party shall use reasonable efforts to mitigate loss.

Notwithstanding anything to the contrary in this Agreement, the receipt from the PSC of regulatory approval relating to this Agreement or the transactions contemplated in connection herewith shall be a condition precedent to both parties’ obligation to consummate the transactions contemplated in this Agreement.

Notwithstanding anything in this Agreement to the contrary, this Agreement and the transactions contemplated by this Agreement may not be terminated, except prior to Closing as follows:

(a) by mutual consent in writing of Seller and Buyer; or

(b) by Seller or Buyer at any time after September 30, 2022 (the “Outside Date”) if regulatory approval from the PSC has not been received by such date or the Closing has otherwise failed to occur by such date; provided, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement or whose efforts to hinder or delay this Agreement have been the cause of, or resulted in, the failure of the Closing to occur by such date.  Buyer and Seller agree to cooperate in the Buyer’s efforts to obtain any and all necessary approvals for such Closing to occur; or

(c) by either Buyer or Seller at any time (if such party is not then itself in material breach of any of its representations and warranties, covenants, agreements or other obligations contained in this Agreement), if the other party is in material breach or default of any of its representations and warranties, covenants, agreements or other obligations herein, which breach or default remains uncured for a period of ten (10) days after such other party’s written notice of the breach or default; or

(d) by Buyer at any time prior to Closing if there is a material adverse change in the Municipal Water Utility or the Purchased Assets; or

(e) by Buyer at any time prior to Closing if the Buyer’s due diligence results in concerns regarding the Purchased Assets; or

(f) by Buyer at any time if the PSC refuses to grant Buyer a CPCN for the territory served by the Purchased Assets or otherwise withholds consent for Buyer to enter into or perform under this Agreement.

In the event that this Agreement shall be terminated pursuant to this Section 9.1, all further obligations of the parties under this Agreement shall terminate without further liability of any party to another.

The parties shall bear their respective expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, all fees and expenses of their respective representatives and all fees, expenses and costs for obtaining any required consents.

This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors, heirs, executors and assigns; provided, however, that this Agreement and all rights and obligations hereunder may not be assigned or transferred without the prior written consent of the other party hereto, except Buyer may assign its rights hereunder to a directly or indirectly wholly-owned subsidiary or affiliate of Buyer or any successor-in-interest.  There are no intended third party beneficiaries in connection with this Agreement.

This Agreement and the rights of the parties shall be governed by and construed in accordance with the laws of the State of Delaware without consideration of the choice of law or conflict of law principles.  Each of the parties hereto irrevocably consents to the service of any process, pleading, notices or other papers by the mailing of copies thereof by certified mail with return receipt requested, to such party at such party’s address set forth herein, or by any other method provided or permitted under the laws of the State of Delaware.  Each party hereby irrevocably submits to the jurisdiction of any federal or state court located in the State of Delaware (and any appellate court therefrom) with respect to any action or proceeding arising out of or relating to this Agreement.  Each party hereby irrevocably and unconditionally waives and agrees not to plead, to the fullest extent provided by law, any objection it may have to venue and the defense of an inconvenient forum to the maintenance of such action or proceeding in Delaware courts.

EACH PARTY HERETO HEREBY KNOWINGLY AND VOLUNTARILY IRREVOCABLY WAIVES, AFTER CONSULTATION WITH COUNSEL, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED IN CONTRACT, TORT, EQUITY OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

Unless otherwise provided in this Agreement, any notice required or permitted under this Agreement shall be given in writing and addressed to the party to be notified as indicated below, or at such other addresses as the parties may designate from time to time by written notice to the other party:

Artesian Water Company, Inc.

Attention:  Courtney A. Emerson, General Counsel

664 Churchmans Road

Newark, Delaware 19702

If to Seller:

The Town of Clayton

Attention: Nick Smith, Mayor

414 Main Street

P.O. Box 1130

Clayton, Delaware 19938

If any portion of this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, that portion shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable, provided any such modification shall as nearly as possible retain the intent of the parties, and if such modification is not possible, such portion shall be severed from this Agreement.  In either case, the remainder of this Agreement shall be interpreted as if such provision were so modified or excluded, as the case may be, and shall be enforceable in accordance with its terms.

This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral.

 The parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of authorship of any particular portion hereof.  The titles and section headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.  The Recitals in this Agreement form a part of this Agreement.

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

The parties hereto agree that time is of the essence with respect to the performance of each party’s respective obligations and commitments under this Agreement.

IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement as of the date first written above.

BUYER:

ATTEST: ARTESIAN WATER COMPANY, INC.,

a Delaware corporation

____________________________ By: 

Name:  Joseph A. DiNunzio Name:  Nicholle R. Taylor

Title:     Secretary Title:     President

SELLER:

WITNESS: THE TOWN OF CLAYTON,

a Delaware municipality

By:  __________________________ By:  ______________________________

Name:  _______________________ Name: Nickolaus Smith

Title:   ________________________ Title:    Mayor