North American Dismantling Corp. v. Cate Street Capital, Inc., 101317 NHSUP, 218-2017-CV-00545

Docket Nº:218-2017-CV-00545
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:North American Dismantling Corporation v. Cate Street Capital, Inc., CSC Group Holdings, LLC, NewCo Energy, LLC, Berlin Station, LLC and Burgess Biopower, LLC
Case Date:October 13, 2017
Court:Superior Court of New Hampshire
 
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North American Dismantling Corporation

v.

Cate Street Capital, Inc., CSC Group Holdings, LLC, NewCo Energy, LLC, Berlin Station, LLC and Burgess Biopower, LLC

No. 218-2017-CV-00545

Superior Court of New Hampshire, Merrimack

October 13, 2017

UNPUBLISHED OPINION

ORDER

Richard B. McNamara, Presiding Justice

The Plaintiff, North American Dismantling Corporation ("North American"), has brought a declaratory judgment action against the Defendants, Cate Street Capital, Inc. ("Cate Street"), CSC Group Holdings, LLC ("CSC"), NewCo Energy, LLC ("NewCo"), Berlin Station, LLC ("Berlin Station") and Burgess Biopower, LLC ("Burgess") in order to obtain an order that North American is entitled to review certain documents identified in Exhibit B to its Complaint, and that it is entitled to access such further documents as may be reasonably necessary to comply with the provisions of an existing Asset Purchase Agreement ("APA") entered into by North American. North American alleges that the APA entitles North American to obtain five percent (5%) of the cash flow of a "Biomass Project, "[1] from companies that Cate Street manages. The Defendants have moved to dismiss. For the reasons stated in this Order, the Motion to Dismiss is DENIED. The Defendants shall provide an answer to the Complaint within 30 days from the date of the Clerk's Notice transmitting this Order.

I

North American alleges that it is entitled to review the documents it seeks by the explicit terms of the APA entered into between it and Laidlaw Berlin Biopower, LLC ("Laidlaw"). Under the terms of the APA, "[f]or a period of ten (10) years from the commencement of commercial operations of the Biomass Project that the Purchaser2intends to develop (the 'Earn-Out Period'), the Seller shall be entitled to five percent (5%) of the net cash flow earned by the Purchaser from the operation of the Business ('the Earn-Out')." (Compl., Ex. A at 5.) According to the Complaint, the APA requires that: The Purchaser shall maintain full and correct books and records showing in detail the earnings and expenses of the Premises and will permit the Seller, or its representatives, during regular business hours, to examine said books and records and all supporting vouchers and data from time to time upon request upon the Seller. Any such access shall occur at the expense of the Seller.

(Compl. ¶ 24.) North American seeks to review the documents described in Exhibit B to its Complaint (the "Documents"). (Id. ¶ 12.) It alleges that "[t]his case is necessary because the Defendants refused to provide the Documents to [North American] for its review." (Id. ¶ 13.)

North American alleges that after the APA was executed in 2008: 16. Thereafter, Laidlaw transferred its rights and obligations under the APA to the companies that Cate Street manages with respect to the ownership and operation of a 75 megawatt biomass power plant that Cate Street developed at the location of the former Fraser Pulp Mill ("Berlin Power Plant").

17. The companies that Cate Street manages with respect to the Berlin Power Plant, and which actually hold, own, operate and/or comprise the corporate structure of the Berlin Power Plant, include [CSC], NewCo, Berlin Station and Burgess. 18. In turn:

A. [CSC] holds a number of companies, including NewCo, each of which constitutes the parent entity of a separate investment project including the Berlin Power Plant;

B. NewCo holds a number of companies, all of which together comprise the entities that hold, own, operate and/or comprise the corporate structure of the Berlin Power Plant;

C. Berlin Station is the owner of the Berlin Power Plant; and D.Burgess is the operator of the Berlin Power Plant.

(Id. ¶¶ 16-18.)

Apart from alleging a transfer of rights, North American alleges that: 43. With respect to the Documents requested, as described in Exhibit B hereto, each of the companies identified therein is...

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