Exelon Generation Acquisitions, LLC v. Deere & Company

176 A.3d 1262
CourtSupreme Court of Delaware
DecidedDecember 18, 2017
Docket28, 2017
StatusPublished
Cited by70 cases

This text of 176 A.3d 1262 (Exelon Generation Acquisitions, LLC v. Deere & Company) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Exelon Generation Acquisitions, LLC v. Deere & Company, 176 A.3d 1262 (Del. 2017).

Opinion

TRAYNOR, Justice:

When Exelon Generation Acquisitions purchased Deeré & Company’s wind energy business, it agreed to make earn-out payments to Deere if it reached certain milestones .in the development of three wind farm projects that were underway at the time of the sale. One of the projects was the Blissfield Wind Project, which was defined in the parties’ Purchase Agreement as “the wind project under development in Lenawee County, Michigan, by Blissfield Wind Energy, LLC with a nameplate capacity of 81 megawatts.” 1 Included in the sale of the Blissfield Wind Project was a “Power Purchase Agreement”—a binding commitment Deere had secured from a local utility to purchase energy from the wind farm once it commenced operations.

It is undisputed that Exelon was unable to bring the Lenawee County site to fruition because of civic opposition. But shortly thereafter, Exelon managed'to acquire another nascent wind farm from a different developer, this time at a site in Gratiot County, Michigan, about a hundred miles away from the site of the Blissfield Wind Project. Exelon managed to persuade the local utility to transfer the Power Purchase Agreement there, and this time, the wind farm was successful. ■■

Deere caught wind of Exelon’s success with the new site (and its use of the Power Purchase Agreement) and filed suit to- recover the earn-out payment, claiming that “Exelon had simply relocated the Blissfield Wind Project to Gratiot -County” 2 and, that the earn-out payment obligation had traveled with it. Exelon denied - that it had relocated the project, contending that, after it was prevented from developing the Blissfield Wind Project by forces beyond its control, it acquired and ’ developed, at great expense, a new project in Gratiot County with different counterparties, developers, equipment manufacturers, landowners, townships, counties, and permits.

On cross-motions for summary judgment, the Superior Court sided with Deere’s interpretation of the Purchase Agreement and ordered Exelon to pay the $14 million earn-out payment' for successfully developing a wind farm in Gratiot County. We disagree with the- Superior Court’s interpretation of the Purchase Agreement and therefore reverse.

I

A

In August of 2010, Exelon agreed to acquire all of the limited liability company interests of John Deere Renewables, LLC, a wholly owned subsidiary of Deere & Company that held its wind assets. The base purchase price was $860 million.

One of the subsidiary LLCs that Exelon acquired was Blissfield Wind Energy, LLC, of which Deere owned a 50% interest, the other 50% being held by a separate entity ealled Great Lakes Wind, LLC. At the time of the transaction, Blissfield was developing a wind farm called the Blissfield Wind Project, which the Purchase Agreement between Exelon and Deere defined as “the wind project under development in Lenawee County, Michigan, by Blissfield Energy, LLC, with nameplate capacity of 81 megawatts.”

Just two months before the sale, Deere had succeeded in securing a power purchase agreement (PPA) for the Blissfield Wind Project with Consumers Energy Company, an electric utility in Michigan. Under the PPA, which stipulated that the Blissfield Wind Project would be located in Lenawee County, Michigan, Consumers agreed to purchase energy generated by the Project for twenty years at a fixed rate schedule. It is undisputed that a PPA is a valuable asset that helps to ensure the viability of a wind farm.

At the time of the sale, Blissfield was one of three wind farms under development in Michigan for which Deere had secured PPAs, which the Purchase Agreement collectively referred to as the Michigan Wind Projects. As a condition of the sale, Exelon agreed that if those three Projects were to achieve certain development milestones, it would pay Deere an additional amount, above the base purchase price, for each Project that achieved the milestones (a so-called earn-out payment). Whether Exelon owes Deere an earn-out payment for the Blissfield Wind Project is at the center of this dispute.

B

When the Purchase Agreement was executed, the parties were aware that there was civic opposition to the development of a wind farm in Lenawee County. And although Deere represented in the Agreement that it “reasonably believe[d] that all material Permits necessary for the development, construction, ownership, maintenance, use and/or operation of the [three] Michigan Wind Projects... [could] be obtained in the ordinary course,” 3 one of Deere’s disclosure schedules that was attached to the Agreement warned of the possibility of a moratorium on wind energy projects in Riga Township, the planned location in Lenawee County for the Bliss-field Wind Project. 4 In fact, an internal Deere memorandum revealed that Deere believed that the vice chair of the Riga Township Planning Commission “[was] actively working with the opponents of the [Blissfield] project to prevent the wind projects in Riga from becoming a reality.” 5 Against this backdrop, Exelon and Deere executed the Purchase Agreement.

Only eleven months after they signed the Purchase Agreement, Riga Township passed a zoning ordinance that rendered development of the Blissfield Wind Project “impossible” from a regulatory perspective. 6 Consequently, Exelon provided Consumers Energy with a notice of a force majeure event under the PPA, 7 which suspended Exelon’s obligations and jeopardized its chance to use the PPA.

C

After the setback in Lenawee County, Exelon began to devise ways to salvage the PPA. Within a month of declaring the force majeure event, Exelon informed Consumers that it was “pursuing several alternatives,” 8 including the possibility of submitting a request to the Riga Township authorities for a new zoning ordinance to allow the development to go forward, acquiring additional parcels in nearby Ogden Township and constructing a wind farm there, which would have satisfied the

PPA’s requirement that a wind farm be built in Lenawee County, and assessing the feasibility of “moving the Project” to an “alternative site ... in a nearby county within Michigan.” 9 Exelon ultimately decided to pursue the last of these alternatives, hopeful that Consumers would be willing to amend the PPA to allow the wind farm to be built in either Gratiot or Ionia County, rather than Lenawee. To that end, Exelon sent a draft letter to Consumers stating that, while it could not proceed with the “Blissfield Wind project ... at the current Plant Site” 10

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Bluebook (online)
176 A.3d 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exelon-generation-acquisitions-llc-v-deere-company-del-2017.