AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment"), dated
March 2 , 2009, is
made and entered into by and among TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD., a Bermuda company limited by shares
("Seller"); SEABOARD CORPORATION, a Delaware corporation
("Seller
Parent"); and PUEBLO VIEJO DOMINICANA CORPORATION, a Barbados
corporation registered as a branch in the Dominican Republic
("Buyer"). Each of Seller, Seller Parent and Buyer are
sometimes
individually referred to in this Amendment as a "Party" and
collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, the Parties are parties to the
Asset Purchase
Agreement (the "Purchase Agreement"), dated September 23, 2008
(capitalized terms used in this Amendment which are not
otherwise
defined herein shall have the respective meanings ascribed to
those terms in the Purchase Agreement);
WHEREAS, the Parties have now completed
the Pre-Effective
Date Inspection and, based on the results of that Inspection,
now
desire to take steps to establish the Effective Date; and
WHEREAS, the Parties desire to amend the
Purchase Agreement
in certain respects as hereinafter provided;
NOW, THEREFORE, in consideration of the
foregoing and the
respective covenants and agreements contained in this
Amendment,
and intending to be legally bound hereby, the Parties agree as
follows:
Section
1. Effective Date.
1.1
Pre-Effective Date Inspection. The Pre-Effective Date
Inspection was completed as of January 14, 2009. A copy of
the
Pre-Effective Date Inspection summary of results and an
accompanying cover letter, dated January 14, 2009, were
delivered
by Seller and Seller Parent to Buyer. Seller, Seller Parent
and
Buyer subsequently agreed to certain changes to some of the
Pre-Effective Date Inspection summary results, which were
memorialized in a cover letter dated February 11, 2009 from
Seller and Seller Parent to Buyer attaching the updated results
of the Pre-Effective Date Inspection.
1.2
Effective Date Certificate. On February 13, 2009, Buyer
delivered the Effective Date Certificate to Seller and Seller
Parent (a copy of which is attached hereto as Exhibit I).
<PAGE>
1.3
Effective Date. Seller and Seller Parent hereby waive
their
right to give Buyer a Baseline Termination Notice, and the
Parties hereby agree, notwithstanding anything in the Purchase
Agreement to the contrary, as follows:
(a)
The Effective Date shall be deemed to be March 2, 2009; and
(b)
Pursuant to Section 3.1(a) of the Purchase Agreement, Buyer
shall deposit with Escrow Agent the sum of
Fifteen Million
Dollars (U.S. $15,000,000) as the
Effective Escrow Deposit on or
before March 3, 2009.
Section
2. Amendments.
The Purchase
Agreement is hereby amended as follows:
(a)
The definitions set forth in Section 1.1 of the Purchase
Agreement for the terms "Baseline Hull
Condition," "Baseline
Performance Levels" and "Effective Date"
are hereby deleted in
their entirety and the following
definitions are hereby
substituted in lieu thereof:
"Baseline Hull Condition" means the state of the
Barges'
hulls, as determined based upon the Pre-
Effective
Date Inspection (tested in accordance with
the Hull
Test Guidelines and the Hull Test Procedures,
listed in
Schedule 1.1(a)) and set forth in Exhibit A
to the
Effective Date Certificate, which, for the
avoidance of
doubt, shall take into account, in the
case of the
covenants to be performed by Seller
pursuant to
Section 6.2(a) and the tests and covenants
to be
performed in connection with the Closing in
accordance
with Section 6.6, any tolerance or
degradation,
in the case of pitting, to the extent, but
only to the
extent, of pitting permitted as set forth
in Table 4
(Pitting intensity and corresponding maximum
average
depth of pitting), in the case of the thickness
of the
"Neutral Axis Zone" or the "Bottom Zone" of the
hull of each
Barge, to the extent, but only to the
extent, of
wastage permitted as set forth in the
"Neutral
Axis Zone" and the "Bottom Zone" sections,
respectively, of Table 5 (Local and global acceptance
criteria for
general cargo ships (given in % of
wastage)),
and, with respect to matters other than
pitting and
thickness, as otherwise expressly permitted
by the Hull
Test Guidelines and the Hull Test
Procedures. Notwithstanding the Pre-Effective Date
Inspection
results with respect to the state of the
Barges' hull
thickness, the Baseline Hull Condition
hull
thickness of each of the Barges shall be deemed to
be no
greater than the original manufactured thickness
of such
Barge.
"Baseline Performance Levels" means those levels,
as
determined based upon the Pre-Effective Date
Inspection
and set forth in Exhibit B to the Effective
Date
Certificate, for the Heat Rate Baseline, the Net
Electrical
Capacity Baseline, the Capacity Factor
Baseline,
the Lubricating Oil Consumption Baseline, the
Stack
Emissions Baseline, the Noise Emissions Baseline
and the
Effluent Emissions Baseline (with respect to
the
Generation Assets operating individually or
simultaneously in compliance with all applicable Laws
and within
acceptable
<PAGE>
2
operating
limits
as recommended
by the
manufacturer and specified in the manufacturer's
operations
and maintenance manuals), tested in
accordance
with the Performance Test Guidelines and the
Performance
Test Procedures, which, for the avoidance
of doubt,
shall take into account, in the case of the
covenants to
be performed by Seller pursuant to Section
6.2(a) and
the tests and covenants to be performed in
connection
with the Closing in accordance with Section
6.6, (a) any
tolerance or degradation expressly
permitted by
the Performance Test Guidelines and
Performance
Test Procedures and (b) with respect to the
Noise
Emissions Baseline, the fact that Seller's
obligations
shall be limited as provided in Section
4.F.3 of
Schedule 1.1(d).
"Effective
Date" means March 2, 2009.
(b)
The following definitions are hereby added to Section 1.1 of
the Purchase Agreement, in alphabetical
order:
"Table 4" means the narrative information under
part 4.5 and
the following Table 4: Pitting intensity
and
corresponding maximum average depth of pitting,
which is set
forth in Chapter 2 Appendix 3 (Thickness Measurements:
Extent,
Determination of Locations, Acceptance Criteria) of the Rules
for the
Classification of Steel Ships - Part A
Classification and Surveys published by Bureau Veritas
(May 2006)
and which is attached hereto as Schedule
1.1(j).
"Table 5" means the narrative information under
part 4.5 and
the following Table 5: Local and global
acceptance
criteria for general cargo ships (given in %
of wastage),
which is set forth in Chapter 2, Appendix 3 (Thickness
Measurements: Extent, Determination of Locations,
Acceptance
Criteria) of
the Rules for the Classification of Steel Ships - Part A
Classification and Surveys published by Bureau Veritas
(May 2006)
and which is attached hereto as Schedule
1.1(j).
(c)
Schedule 1.1(j), which is attached to this Amendment, is
hereby deemed attached to
