MGEE » Topics » FORM OF OPINION

This excerpt taken from the MGEE 10-Q filed Nov 7, 2006.

FORM OF OPINION


[FIRM LETTERHEAD]

__________, 2006


Madison Gas and Electric Company

133 South Blair Street

Madison, WI 53703


Re: Asset Purchase Agreement between Northern Iowa Windpower II, LLC ("Windpower II"), Northern Iowa Windpower III LLC, ("Windpower III") and Madison Gas and Electric Company ("MGE"), and Ancillary Agreements between MGE and Windpower II and Midwest Renewable Energy Services, LLC ("Services").


Ladies and Gentlemen:


We have acted as counsel to Windpower II, Windpower III and Midwest Renewable Energy Corporation, a corporation and the manager of Windpower II and Windpower III ("Midwest") in connection with that certain Asset Purchase Agreement (the "Agreement") dated September 29, 2006, by and between Windpower III, Windpower II and MGE . Except as otherwise indicated herein, capitalized terms used in this opinion letter are defined in the Agreement.


In such capacity, we have reviewed the following documents:


(a) the Agreement;

(b) the Substation Use and Easement Agreement;

(c) the Management and Administration Agreement;

(d) the Meteorological Data Sharing Agreement;

(e) the Assignment and Assumption Agreement.


In rendering our opinion we have also examined such certificates of public officials, corporate and limited liability company documents and records and other certificates and instruments as we have deemed necessary for the purposes of the opinion herein expressed. As to various questions of fact material to our opinion, we have relied upon certificates and written statements of officers, managers and members of Windpower III. The Substation Use and Easement Agreement, Management and Administration Agreement, Meteorological Data Sharing Agreement and Assignment and Assumption Agreement are referred to collectively as the Ancillary Agreements.


We have assumed for purposes of the opinions set forth (a) that the Agreement and the Ancillary Agreements have been duly authorized, executed and delivered by the parties thereto other than Windpower III and Midwest, and (b) that each of the parties to the Agreement, other than Windpower III and Midwest, is duly organized and validly existing under the laws of its respective jurisdiction of organization and has the power, authority and legal right to perform the Agreement. We have also assumed that all natural persons who are signatories to the Agreement or other documents reviewed by us were legally competent at the time of execution; all signatures on the Agreement and the Ancillary Agreements (other than Windpower III and Midwest) and the other documents reviewed by us are genuine; the copies of all documents submitted to us are accurate and complete, each such document is authentic, and each such document that is a copy conforms to the original.


In basing any opinion set forth in this opinion on "our knowledge," the words "our knowledge" or similar words, signify that, in the course of our representation of Windpower and Midwest, no facts have come to our attention that would give us actual knowledge or actual notice that any such opinions or other matters are not accurate. Except as otherwise stated in this opinion, we have undertaken no investigation or verification of such matters. Further, the words "our knowledge" and similar language as used in this opinion are intended to be limited to actual knowledge of the attorneys within our firm who have been directly involved in representing Windpower III and Midwest in connection with the transactions contemplated by the Agreement, or who have knowledge of Windpower III and Midwest.


We express no opinion with respect to the effect of any law other than the law of the State of Iowa and the State of Delaware (with our opinion limited only to the Delaware Limited Liability Company Act and the Delaware General Corporation Law). For purposes of our opinions regarding the Delaware Limited Liability Company Act, we have reviewed the reviewed [insert treatise on which review is based], and our opinion is based solely on such review. For purposes of our opinions regarding the Delaware General Corporation Law, we have reviewed [insert treatise on which review is based], and our opinion is based solely on such review. We do not purport to be experts on the laws of the State of Delaware and we did not consult local counsel in Delaware.


Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications and exceptions herein contained, we are of the opinion that:


Windpower II is a limited liability company formed under the laws of the State of Delaware and is validly existing thereunder, with full limited liability company power and authority under its Certificate of Formation and Operating Agreement to do business and is in good standing as a foreign limited liability company under the law of the State of Iowa.


Windpower III is a limited liability company formed under the laws of the State of Delaware and is validly existing thereunder, with full limited liability company power and authority under its Certificate of Formation and Operating Agreement to do business and is in good standing as a foreign limited liability company under the law of the State of Iowa.


Services is a limited liability company formed under the laws of the State of Delaware and is validly existing thereunder, with full limited liability company power and authority under its Certificate of Formation and Operating Agreement to do business and is in good standing as a foreign limited liability company under the law of the State of Iowa.


Midwest is a corporation formed under the laws of the State of Delaware, is validly existing thereunder, and is duly qualified to do business and is in good standing as a foreign corporation under the law of the State of Iowa.


Windpower II, Windpower III and Services, each with respect to the Agreement or the Ancillary Agreements to which it is a party, has the limited liability company power and authority to execute, deliver, and perform its obligations under the Agreement and the Ancillary Agreements to which it is a party.


Midwest has the corporate power and authority to execute and deliver the Agreement and Ancillary Agreements as manager of Windpower II, Windpower III and Services


The execution and delivery of the Agreement and Ancillary Agreements by Midwest, on behalf of, as applicable, Windpower II, Windpower III and Services, and the performance of Windpower II's and Windpower III's obligations under the Agreement and, as applicable, Windpower II and Services under the Ancillary Agreements, have been duly authorized by all requisite action of Windpower II, Windpower III and Services. The Agreement and Ancillary Agreements have been duly executed and delivered by Midwest, on behalf of Windpower II, Windpower III and Services. The execution and delivery of the Agreement and Ancillary Agreements by Midwest have been duly authorized by all requisite action of Midwest and the Agreement and the Ancillary Agreements have been duly executed and delivered by Midwest.


The Agreement and the Ancillary Agreements represent, as applicable, the valid and binding obligations of Windpower II, Windpower III and Services, enforceable against each of them, as applicable, in accordance with their terms.


The execution and delivery by Windpower II and Windpower III of the Agreement and, as applicable, by Windpower II and Services of the Ancillary Agreements, and the acts of Midwest in executing and delivering the Agreement and Ancillary Agreements on behalf of Windpower II, Windpower III and Services, do not (a) conflict with or violate any provision of the Operating Agreement of Windpower II, Windpower III, Services or the articles of incorporation of Midwest, or (b) to the best of our knowledge, (i) conflict with or violate or result in a breach of any of the provisions of, or constitute a default under, or result in the creation or imposition of a lien, charge or encumbrance upon any of the properties or assets of Windpower II, Windpower III, Services or Midwest pursuant to, any agreement or instrument to which Windpower II, Windpower III, Services or Midwest, as applicable, is a party or by which any of its properties is bound, or (ii) conflict with or violate any judgment, order, writ, injunction or decree binding on Windpower II, Windpower III, Services or Midwest, or (c) conflict with or violate any law, rule, regulation or ordinance applicable to Windpower II, Windpower III, Services or Midwest.


To the best of our knowledge, there are no material pending or threatened lawsuits, claims or criminal proceedings against Windpower II, Windpower III Services or Midwest or specifically applicable to the Site.


Our opinions set forth above are modified by and subject to the following qualifications:


(a) The enforcement of the Agreement is subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general application related to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the Agreement;


(b) Applicable laws may adversely affect the enforcement of certain provisions of the Agreement and Ancillary Agreements relating to events of default and certain rights and remedies provided for therein, but such laws do not, in our opinion, make the remaining remedies available in respect thereof, inadequate for the practical realization of the benefits of the security intended to be provided thereby; and


(c) The availability of equitable remedies such as specific performance, injunctive relief or other equitable remedies involving any proceedings (legal or equitable) may limit the enforceability of any of the provisions of the Agreement and the Ancillary Agreements.


The foregoing opinions may be relied upon by MGE, its successors and/or assigns, and their respective counsel, but may not be relied upon by any other party.



[Nyemaster, Goode, West, Hansell & O'Brien, P.C]



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