ASSET PURCHASE AGREEMENT

 

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT is made and entered into effective as of December 20, 2006 (the “ Effective Date ”), by and between SALUDA RIVER ELECTRIC COOPERATIVE, INC. , a South Carolina electric cooperative (“ Seller ”), and DUKE ENERGY CAROLINAS, LLC , a North Carolina limited liability company (“ Purchaser ”).  Seller and Purchaser are also each referred to herein as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Purchaser and Seller each have an ownership interest in the nuclear-fueled generation facility known as Catawba Nuclear Station located on Lake Wylie in York County, South Carolina (the “ Station ”);

WHEREAS, Purchaser and Seller are parties to the Purchase, Construction and Ownership Agreement dated October 14, 1980, as amended (the “ PCOA ”) under which Seller acquired an 18.75 percent undivided ownership interest in Unit 1 (as defined below) of the Station and a 9.375 percent undivided ownership interest in the Support Facilities (as defined below) (collectively “ Seller’s Interest ”);

WHEREAS, Seller has agreed to sell 71.96 percent of Seller’s Interest to Purchaser under this Agreement and 28.04 percent of Seller’s Interest to North Carolina Electric Membership Corporation (“NCEMC”) under a separate agreement;

WHEREAS, the Rural Utilities Service (the “RUS”) is a lender of Seller acting pursuant to the Debt Restructuring Agreement dated April 30, 1999 between the United States of America, acting by and through the Administrator of the RUS, and Seller, as amended (the “Debt Restructuring Agreement”) and supports the sale of Seller’s Interest to Purchaser and NCEMC; and

WHEREAS, the Parties have determined to set forth in this Agreement the terms and conditions of their agreements regarding the foregoing.

AGREEMENTS

NOW, THEREFORE, in consideration of the Recitals set forth above, the respective covenants and agreements of the Parties herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties, intending to be legally bound, do hereby agree as follows:

ARTICLE I

DEFINITIONS; USAGE

Section 1.1             Definitions .  Unless the context shall otherwise require, capitalized terms used in this Agreement shall have the meanings assigned to them in this Section 1.1 .

 

“ Accounts ” has the meaning given to it in Section 2.1.1(b).

“ Affiliate ” of any Person means any other Person directly or indirectly Controlling, directly or indirectly Controlled by or under direct or indirect common Control with such Person.  Seller has no Affiliates.

“ Agreement ” means this Asset Purchase Agreement by and between Seller and Purchaser, as amended from time to time.

“ Assumed Liabilities ” has the meaning given to it in Section 2.1.3 .

“ Bill of Sale ” has the meaning given to it in Section 2.4.1(b)(ii) .

“ Business Day ” means any day except Saturday, Sunday or a weekday that banks in Charlotte, North Carolina or New York, New York are closed.

“ Catawba Agreements ” means the IA, OFA and PCOA.

“ Closing ” has the meaning given to it in Section 2.4 .

“ Closing Date ” means the date on which the Closing occurs.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Control ” of any Person means the possession, directly or indirectly, of the power either to (a) vote more than fifty percent (50%) of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (b) direct or cause the direction of management or policies of such Person, whether through the ownership of voting securities or interests, by contract or otherwise.

“ Debt Restructuring Agreement ” has the meaning given to it in the Recitals to this Agreement.

“ Deeds ” has the meaning given to it in Section 2.4.1(b)(iii) .

“ Default Rate ” has the meaning given to it in Section 11.2 .

 “ DOE ” means the Department of Energy.

“ Effective Date ” has the meaning given to it in the preamble to this Agreement.

“ Environmental Law ” means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1471 et seq.; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 through 2629; the Oil Pollution Act, 33 U.S.C. Section 2701 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f through 300j; N.C. Gen. Stat. § 130A-310.1 et

 

seq.; N.C. Gen. Stat.  § 143-214.1 et seq.; N.C. Gen. Stat. § 143-215.1 et seq.; N.C. Gen. Stat. § 143-215.81 et seq.; N.C. Gen. Stat. § 143-215.94A et seq.; N.C. Gen. Stat. § 130A-309.15 et seq.; N.C. Gen. Stat. § 130A-310.9 et seq.; and all other Laws that relate to or otherwise address Hazardous Materials, protection of human health, safety or the environment and all amendments to and all regulations implementing any of the foregoing, all as may be amended from time to time.

“ Excluded Assets ” has the meaning given to it in Section 2.1.2 .

“ Excluded Liabilities ” has the meaning given to it in Section 2.1.4 .

“ Federal Power Act ” means the Federal Power Act of 1935, as amended, and the regulations thereunder.

“ FERC ” means the Federal Energy Regulatory Commission.

“ FERC Approval ” means the order issued by FERC under Section 203 of the Federal Power Act that approves the sale and purchase of the Purchased Assets as contemplated by this Agreement.

“ Fuel Inventory ” has the meaning given to it in Section 2.1.1(c) .

“ Governmental Authority ” means any federal, state or local governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof).

“ Hazardous Materials ” means (i) any substance, emission or material, now or hereafter defined as, listed as or specified in a Law as a “pollutant,” “contaminant,” “regulated substance,” “hazardous substance,” “toxic substance,” “pesticide,” “hazardous waste,” “hazardous material” or any similar or like classification or categorization under any Law including by reason of ignitability, corrosivity, reactivity, carcinogenicity or reproductive or other toxicity of any kind, (ii) any product or substance that includes or contains petroleum, asbestos, or polychlorinated biphenyls and (iii) any substance, emission or material determined to be hazardous or harmful.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations thereunder.

“ IA ” means the Interconnection Agreement dated October 14, 1980, by and between Seller and Purchaser, as amended.

 “ Independent Accounting Firm ” means a nationally recognized certified public accounting firm chosen jointly by Seller and Purchaser.

“ Knowledge ” or any similar phrase in this Agreement means (i) in the case of Seller, the actual knowledge of Seller’s officers and employees listed in Section 3.1 of Seller’s Disclosure Schedule, and (ii) in the case of Purchaser, the actual knowledge of Purchaser’s officers and employees listed in Section 3.2 of Purchase’s Disclosure Schedule; provided, however, a Party shall be deemed to have Knowledge of a matter of which such Party has received written notice.

 

“ Law ” means any statute, law, treaty, rule, code, common law, ordinance, regulation, permit, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority.

“ Liability ” means any indebtedness, obligation and other liability of a Person (whether absolute, accrued, contingent, fixed or otherwise, and whether due or to become due).

“ Lien ” means any pledge, deed of trust, mortgage, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security grant or agreement of any kind or nature whatsoever, including without limitation any conditional sale or other title retention agreement, any financing lease having substantially the same effect as any of the foregoing, or the filing of any financing statement or similar instrument under the Uniform Commercial Code as in effect in any relevant jurisdiction or comparable law of any jurisdiction, domestic or foreign, and any other lease, and any easement, restriction, condition, covenant, right-of-way or other encumbrance or title exception.

“ Lien Releases ” means such UCC termination statements and release of lien instruments in recordable form as may be necessary to evidence, effective on or before Closing, the termination and release of any and all financing statements, security agreements, deeds of trust or mortgages which encumber the Purchased Assets and which secure indebtedness of Seller or its Affiliates as of Closing.

“ Material Adverse Effect ” means a material adverse effect on (a) the Station or the Purchased Assets, (b) the ability of Seller to perform its obligations under this Agreement or any of the other Transaction Agreements, or (c) the validity or enforceability of this Agreement or any of the other Transaction Agreements, or the rights or remedies of Purchaser hereunder or thereunder; provided, however, that the term “Material Adverse Effect” shall not include any change to the extent such change results from changes in general international, national or regional economic, financial or market conditions or the market price of electricity.

“ NCEMC ” has the meaning given to it in the Recitals to this Agreement.

“ NCEMC Asset Purchase Agreement ” means the Asset Purchase Agreement of even date herewith by and between Seller and NCEMC.

“ NCEMC Catawba Agreements ” means the Purchase, Construction, and Ownership Agreement dated October 14, 1980, between Purchaser and NCEMC, as amended, the Interconnection Agreement dated October 14, 1980, between Purchaser and NCEMC, as amended, and the Operating and Fuel Agreement dated October 14, 1980, between Purchaser and NCEMC, as amended.

“ NCEMC Power Purchase Agreement ” means the Power Purchase Agreement of even date herewith by and between Purchaser and NCEMC.

“ NRC ” means the Nuclear Regulatory Commission.

 

“ NRC Approval ” means the order issued by the NRC that approves the transfer of Seller’s ownership license, Renewed License NPF-35 for Catawba Nuclear Station, Unit 1, to Purchaser.

“ OFA ” means the Operating and Fuel Agreement dated October 14, 1980, by and between Seller and Purchaser, as amended.

“ Party ” or “ Parties ” has the meaning given to it in the preamble to this Agreement.

“ PCOA ” has the meaning given to it in the Recitals to this Agreement.

“ Permits ” means permits, licenses, approvals, certificates and other authorizations of any Governmental Authority.

“ Permitted Liens ” means (i) those exceptions to title listed in Schedule 1.1 as of the date hereof, (ii) liens for Taxes or other governmental charges or assessments not yet due and delinquent or the validity of which is being contested in good faith by appropriate proceedings, (iii) mechanics’, carriers’, workers’, repairers’ and other similar liens and rights arising or incurred in the ordinary course of business for amounts not yet due and payable or the validity of which is being contested in good faith by appropriate proceedings, (iv) zoning, entitlement, conservation restrictions and other land use and environmental regulations by any Governmental Authority, and (v) any consensual Lien that secures indebtedness of Seller but only to the extent such Lien shall be discharged and released in full at Closing.

“ Person ” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of legal entity.

“ Prime Rate ” has the meaning given to it in Section 11.2 .

“ Property Taxes ” has the meaning given to it in Section 2.2.2 .

“ PSCSC ” means the Public Service Commission of South Carolina.

“ PSCSC Approval ” means the order issued by the PSCSC that approves an amendment of the Certificate of Public Convenience and Necessity for the Station to reflect Seller’s transfer of the Purchased Assets to Purchaser.

“ Purchase Price ” has the meaning given to it in Section 2.2.1 .

“ Purchased Assets ” has the meaning given to it in Section 2.1.1 .

“ Purchaser ” has the meaning given to it in the preamble to this Agreement.

“ Purchaser’s Disclosure Schedule ” means the schedule delivered to Seller by Purchaser herewith and dated as of the Effective Date, containing all lists, descriptions, exceptions and other information and materials as are required to be included therein by Purchaser pursuant to this Agreement, attached hereto as Schedule 3.2 .

 

“ Real Property ” means the real property upon which the Station is located, together with all buildings, structures and other improvements constructed thereon; rights, title and interests of Seller in and to all other easements, benefits, privileges and other rights appurtenant to such real property or in any way appertaining thereto, and all strips and gores and any land lying in the bed of any street or road open or closed adjoining such real property.

“ Related Agreements ” means the NCEMC Asset Purchase Agreement, NCEMC Power Purchase Agreement and amendments to the NCEMC Catawba Agreements.

“ Related Person ” means with respect to any Person, such Person’s Affiliates, and the employees, officers, directors, agents, representatives, licensees and invitees of such Person and its Affiliates.

 “ Required Consents ” means all consents required to be obtained from Governmental Authorities and third parties in connection with the transactions contemplated by this Agreement and the other Transaction Agreements, including all such consents as set forth on Section 3.1.5 of Seller’s Disclosure Schedule.

“ RUS ” has the meaning given to it in the Recitals to this Agreement.

“ Seller ” has the meaning given to it in the preamble to this Agreement.

 “ Seller’s Disclosure Schedule ” means the schedule delivered to Purchaser by Seller herewith and dated as of the Effective Date, containing all lists, descriptions, exceptions and other information and materials as are required to be included therein by Seller pursuant to this Agreement and attached hereto as Schedule 3.1 .

“ Seller’s Interest ” has the meaning given to it in the Recitals to this Agreement.

“ Settlement Agreement ” means the Settlement Agreement of even date herewith between Purchaser, Seller, NCEMC and the RUS.

“ Spare Parts Inventory ” has the meaning given to it in Section 2.1.1(e) .

“ Station ” has the meaning given to it in the Recitals to this Agreement.

“ Station Permits ” has the meaning given to it in Section 3.1.11 .

“ Station Settlement Agreements ” means (i) the Release and Settlement Agreement dated March 13, 1994 by and between Duke Power Company, Seller, NCEMC, North Carolina Municipal Power Agency Number 1, Piedmont Municipal Power Agency and Westinghouse Electric Corporation, as amended by the Release and Settlement Agreement Amendment dated June 30, 2000 by and between Duke Energy Corporation, Viacom Inc., Westinghouse Electric Company LLC and British Nuclear Fuels plc, (ii) any settlement agreement entered into with the Department of Justice with respect to the spent fuel litigation described in Duke Power, A Division of Duke Energy Corp., v. The United States, filed May 1, 2006, US Court of Federal Claims, Docket No. 98-485C, Case 1:98-cv-00485-JPW, John P. Wiese, Judge and (iii) any other settlement agreement related to the Station.

 

“ Support Facilities ” means all facilities at the Station, as described in Exhibit B attached hereto, which are not part of or identified with Unit 1 or Unit 2, any part of which being referred to as a Support Facility.

“ Tax ” or “ Taxes ” means any and all taxes, including any interest, penalties, or other additions to tax that may become payable in respect thereof, imposed by any federal, state, local, or foreign government or any agency or political subdivision of any such government, which taxes shall include all income taxes, profits taxes, taxes on gains, alternative minimum taxes, estimated taxes, payroll and employee withholding taxes, unemployment insurance taxes, social security taxes, welfare taxes, disability taxes, severance taxes, license charges, taxes on stock, sales and use taxes, ad valorem taxes, value-added taxes, excise taxes, franchise taxes, gross receipts taxes, business license taxes, occupation taxes, real or personal property taxes, stamp taxes, environmental taxes, transfer taxes, workers’ compensation taxes, and other taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the same or of a similar nature to any of the foregoing.

“ Tax Returns ” means any return, report, information return, claim for refund or other document (including any related or supporting information) supplied to or required to be supplied to any Taxing Authority with respect to Taxes, including any attachments, amendments and supplements thereto.

“ Taxing Authority ” means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.

“ Termination Agreement ” has the meaning given to it in Section 2.4.1(a)(i) .

“ Transaction Agreements ” means the following agreements:

1.1.1                         this Agreement;

1.1.2                         the Bill of Sale;

1.1.3                         the Deeds;

1.1.4                         the Termination Agreement;

1.1.5                         the Required Consents; and

1.1.6                         the Settlement Agreement.

“ Transfer Taxes ” has the meaning given to it in Section 4.4(a) .

“ Unit 1 ” means Unit 1 of the Station as described in Exhibit A attached hereto.

“ Unit 2 ” means Unit 2 of the Station as described in Exhibit A attached hereto.

 

Section 1.2             Rules as to Usage .  Except as otherwise expressly provided herein, the following rules shall apply to the usage of terms in this Agreement:

(a)           The terms defined above have the meanings set forth above for all purposes, and such meanings are equally applicable to both the singular and plural forms of the terms defined.

(b)           “Include,” “includes” and “including” shall be deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import.

(c)           “Writing,” “written” and comparable terms refer to printing, typing, and other means of reproducing in a visible form.

1.2.2        Any Law defined or referred to above means such Law as from time to time amended, modified or supplemented, including by succession of comparable successor Law.

(a)           References to a Person are also to its successors and assigns.

(b)           Any term defined above by reference to any agreement, instrument or Law has such meaning whether or not such agreement, instrument or Law is in effect.

(c)           “Hereof,” “herein,” “hereunder” and comparable terms refer, unless otherwise expressly indicated, to the entire agreement or instrument in which such terms are used and not to any particular article, section or other subdivision thereof or attachment thereto.  References in an instrument to “Article,” “Section,” or another subdivision or to an attachment are, unless the context otherwise requires, to the relevant article, section, subsection or subdivision of or an attachment to such agreement or instrument.  If such reference in this Agreement to “Article,” “Section,” or other subdivision does not specify an agreement or document, such reference refers to an article, section or other subdivision of this Agreement.  All references to exhibits or schedules in any agreement or instrument that is governed by this Agreement are to exhibits or schedules attached to such instrument or agreement.

(d)           Pronouns, whenever used in any agreement or instrument that is governed by this Agreement and of whatever gender, shall include natural Persons, corporations, limited liability companies, partnerships and associations of every kind and character.

(e)           References to any gender include, unless the context otherwise requires, references to all genders.

(f)            The word “or” will have the inclusive meaning represented by the phrase “and/or.”

(g)           “Shall” and “will” have equal force and effect.

 

Section 1.3             Schedules and Exhibits .  This Agreement consists of the Articles contained herein and the Schedules and Exhibits attached hereto, all of which constitute one and the same agreement with equal force and effect.

ARTICLE II

SALE AND PURCHASE; PRICE; CLOSING

Section 2.1             Sale and Purchase; Definition of Purchased Assets; Assumed Liability .

2.1.1        Closing, Seller shall sell, transfer, convey, assign and deliver to Purchaser, free and clear of all Liens (other than Permitted Liens), and Purchaser shall purchase and pay for, 71.96 percent of Seller’s right, title and interest in and to all assets and properties of Seller relating to its ownership interest in the Station, including without limitation, Seller’s right, title and interest in and to the following assets (collectively, the “Purchased Assets”):

(a)           Seller’s Interest;

(b)           All accounts established to hold funds for purposes of Seller’s share of the decommissioning costs of the Station, together with all cash, equity and debt securities, and other investments, and any proceeds thereof, held in such accounts (the “Accounts”);

(c)           Nuclear fuel inventory purchased and residing in Purchaser’s nuclear fuel fleet inventory accounts and all accounts related to such nuclear fuel inventory (the “Fuel Inventory”);

(d)           All rights of Seller in any fuel supply agreements for the Station;

(e)           Spare parts inventory of the Station, including equipment, tools, goods and supplies (the “Spare Parts Inventory”);

(f)            The Station Permits;

(g)           All rights of Seller in and under the Station Settlement Agreements;

(h)           All plans, designs, and specifications related to the construction, operation and maintenance of the Station; and

(i)            All rights of Seller in and under any agreements related to the ownership, operation or maintenance of the Station.

2.1.2        Excluded Assets .  The Purchased Assets shall not include Seller’s interest in the following agreements, assets and properties (the “Excluded Assets”), and Purchaser shall have no Liability with respect thereto:

 

 

(a)           Except as set forth in Section 2.1.1(b) , cash, cash equivalents, bank deposits, and accounts and notes receivable, trade or otherwise;

(b)           Rights of Seller arising under this Agreement, the Transaction Agreements or any other instrument or document executed and delivered pursuant to this Agreement; and

(c)           All assets and properties of Seller other than the Purchased Assets.

2.1.3        Assumed Liabilities .  On the terms and subject to the conditions set forth in this Agreement, effective as of the Closing, Purchaser shall assume and satisfy or perform all Liabilities of Seller that relate to the Purchased Assets, including those Liabilities described below, and other than the Excluded Liabilities (collectively, the “ Assumed Liabilities ”):

(a)           All Liabilities directly or indirectly related to the decommissioning of the Station; and

(b)           All accrued assessments by the DOE for the decommissioning of the DOE’s uranium enrichment facilities, but solely to the extent such accrued assessments relate to the Purchased Assets’ and

(c)           All Liabilities arising under Environmental Law.

2.1.4        Excluded Liabilities .  Except for the Assumed Liabilities, Purchaser shall have no liability or obligation whatsoever for, and Seller shall retain and continue to be responsible for, all of Seller’s duties, obligations and Liabilities, whether incurred or arising before or after Closing, (all of such retained duties, obligations and Liabilities being referred to herein as the “ Excluded Liabilities ”).

Section 2.2             Purchase Price .

2.2.1        Amount .  In consideration of the sale, assignment, conveyance, transfer and delivery to Purchaser as of the Closing of Seller’s right, title and interest in and to the Purchased Assets, Purchaser shall pay to Seller an amount equal to One Hundred Fifty-Eight Million Dollars ($158,000,000) (the “ Purchase Price ”).

2.2.2        Prorations .  Real and personal property ad valorem taxes with respect to the Purchased Assets (“ Property Taxes ”) will be prorated on a calendar year basis through the Closing Date.  Any special assessments or roll-back taxes on or against the Purchased Assets shall be paid by Seller on or prior to the Closing Date.  If the actual amount of Property Taxes is not known on the Closing Date, such taxes shall be prorated on the basis of the amount of such taxes payable for the prior year, and shall be adjusted between the Parties when the actual amount of such taxes payable in the year of Closing is known to Purchaser and Seller.  Within 30 days after the Property Tax liability is known for the calendar year in which the Closing occurs, Purchaser and Seller shall make such payments or credits between themselves as are necessary so that each Party bears only its pro rata portion of the actual Property Tax liability for the calendar year in which the Closing occurs.  All prorations shall be made as adjustments to the Purchase Price, provided that to the extent any charge or receipt to be prorated at Closing is not

 

known as of the Closing Date, the Parties shall make the applicable proration and adjusting payments as soon as possible after Closing.

2.2.3        Method of Payment of Purchase Price .  At Closing, Purchaser shall deliver to Seller the Purchase Price, as adjusted for the prorations and other adjustments hereunder, in United States dollars, by wire transfer of immediately available federal funds to an account designated by Seller.

Section 2.3             Allocation of Purchase Price for Tax Purposes .  The Purchase Price shall be allocated among the Purchased Assets as of the Closing in accordance with a schedule to be prepared by Purchaser, using the allocation method provided by Section 1060 of the Code and the regulations thereunder.  The consent of Seller under this Section shall not be a condition to the Closing.  The Parties shall cooperate to comply with all substantive and procedural requirements of Section 1060 of the Code and the regulations thereunder, and except for any adjustment to the Purchase Price, the allocation shall be adjusted only if and to the extent necessary to comply with such requirements.  Purchaser and Seller agree that they will not take nor will they permit any Affiliate to take, for income Tax purposes, any position inconsistent with such allocation; provided , however , that (i) Purchaser’s cost may differ from the total amount allocated hereunder to reflect the inclusion in the total cost of items (for example, capitalized acquisition expenses) not included in the total amount so allocated, and (ii) the amount realized by Seller may differ from the amount allocated to reflect transaction costs that reduce the amount realized for federal income Tax purposes. Transfer Tax on the Deeds shall be calculated based on such allocation.

Section 2.4             The Closing .  The closing of the transactions contemplated herein (the “Closing”) will take place at Purchaser’s offices in Charlotte, North Carolina (or such other location agreed to by the Parties), at 10:00 a.m. local time on the date as soon as practicable (but in no event longer than 10 Business Days) after all conditions to the Closing set forth in Section 5.1 and Section 5.2 have been satisfied or waived.  The Closing shall be deemed effective as of 12:01 A.M. Charlotte, North Carolina time on the Closing Date.

2.4.1        Closing .

(a)           At the Closing, Purchaser shall (i) pay to Seller the Purchase Price in accordance with Section 2.2 and (ii) execute (as applicable) and deliver the following items to Seller:

(i)           a Termination Agreement in substantially the form of Exhibit C attached hereto (the “ Termination Agreement ”), pursuant to which the Parties shall terminate the Catawba Agreements effective as of the Closing;

(ii)          the Required Consents obtained as of Closing to the extent Purchaser is the beneficiary, recipient or grantee thereof;

(iii)         a certificate of good standing with respect to Purchaser, as of a recent date, issued by the Secretary of State of the State of North Carolina;

 

(iv)        copies, certified by the Secretary or Assistant Secretary of Purchaser, of resolutions of Purchaser’s Board of Directors authorizing the execution and delivery of this Agreement and all of the other agreements and instruments, in each case, to be executed and delivered by Purchaser in connection herewith;

(v)         a certificate of the Secretary or Assistant Secretary of Purchaser identifying the name and title and bearing the signatures of the officers of Purchaser authorized to execute and deliver this Agreement and the other agreements and instruments contemplated hereby;  and

(vi)        a certificate addressed to Seller dated the Closing Date executed by the duly authorized officer of Purchaser to the effect that the conditions set forth in Section 5.2.1 and Section 5.2.2 have been satisfied by Purchaser.

(b)           At the Closing, Seller shall execute (as applicable) and deliver the following items to Purchaser:

(i)            the funds in the Accounts;

(ii)           a bill of sale in substantially the form of Exhibit D attached hereto (the “ Bill of Sale ”);

(iii)          general warranty deeds in substantially the form of Exhibit E attached hereto (the “ Deeds ”) and any other documents necessary to convey all of Seller’s right, title and interest in and to Seller’s Interest;

(iv)          the Termination Agreement;

(v)           the Required Consents obtained as of Closing to the extent Seller is the beneficiary, recipient or grantee thereof;

(vi)          the Lien Releases;

(vii)         a certificate of good standing with respect to Seller, as of a recent date, issued by the Secretary of State of the State of South Carolina;

(viii)        copies, certified by the Secretary or Assistant Secretary of Seller, of resolutions of Seller’s Board of Directors authorizing the execution and delivery of this Agreement and all of the other agreements and instruments, in each case, to be executed and delivered by Seller in connection herewith;

(ix)           a certificate of the Secretary or Assistant Secretary of Seller identifying the name and title and bearing the signatures of the officers of Seller authorized to execute and deliver this Agreement and the other agreements and instruments contemplated hereby; and

 

(x)            a certificate addressed to Purchaser dated the Closing Date executed by the duly authorized officer of Seller to the effect that the conditions set forth in Section 5.1.1 and Section 5.1.2 have been satisfied by Seller.

Section 2.5          Further Assurances . Subject to the terms and conditions of this Agreement, at any time or from time to time after the Closing, at either Party’s request and without further consideration, the other Party shall execute and deliver to such Party such other instruments of sale, transfer, conveyance, assignment and confirmation, provide such materials and information and take such other actions as such Party may reasonably deem necessary or desirable in order more effectively (i) to transfer, convey and assign to Purchaser, and to confirm Purchaser’s title to, the Purchased Assets, (ii) to the full extent permitted by Law, to put Purchaser in actual possession of the Purchased Assets, and (iii) otherwise to consummate the transactions contemplated by this Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1          Representations and Warranties of Seller .  Except as specifically set forth in Seller’s Disclosure Schedule attached hereto as Schedule 3.1 , Seller hereby represents and warrants to Purchaser that all of the statements contained in this Section 3.1 are true and correct as of the Effective Date.  Each exception and other response to this Agreement set forth in Seller’s Disclosure Schedule is identified by reference to, or has been grouped under a heading referring to, a specific individual section of this Agreement, and, except as otherwise specifically stated with respect to such exception, relates only to such section.

3.1.1        Existence .  Seller is a corporation duly organized, validly existing and in good standing under the Laws of the State of South Carolina.  Seller has all requisite corporate power and authority to own, lease and operate its properties and to carry out its business as it is now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its assets and properties makes such qualification necessary.

3.1.2        Authority .  Seller has full corporate power and authority to execute and deliver this Agreement and the Transaction Agreements to which it is or will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by Seller of this Agreement and the Transaction Agreements to which it is or will be a party, and the performance by Seller of its obligations hereunder and thereunder, have been duly and validly authorized by all required corporate action by Seller, and no other action on the part of Seller, its directors or shareholders is necessary.

3.1.3        Binding Agreement .  This Agreement and the Transaction Agreements to which Seller is or will be a party have been or will be when delivered duly executed and delivered by Seller and, assuming due and valid authorization,