_______________________________________________________________________________
ASSET PURCHASE AGREEMENT
BY AND AMONG
TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD.
(AS SELLER),
SEABOARD CORPORATION
(AS SELLER PARENT),
AND
PUEBLO VIEJO DOMINICANA CORPORATION
(AS BUYER),
dated as of SEPTEMBER 23, 2008
_______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1
1.1
DEFINITIONS
1
1.2
CONSTRUCTION
16
ARTICLE II PURCHASE AND SALE OF
ASSETS
16
2.1 PURCHASE AND
SALE
16
2.2 EXCLUDED
ASSETS
18
2.3 ASSUMPTION OF ASSUMED
LIABILITIES
19
2.4 EXCLUDED
LIABILITIES
19
2.5 CLOSING; SELLER DELIVERY
FAILURE
20
2.6 CLOSING DELIVERIES BY
SELLER
21
2.7 CLOSING DELIVERIES BY
BUYER
23
2.8 LOCAL DOMINICAN
DOCUMENTS
23
2.9 SECURITY
AGREEMENT
23
2.10 ESCROW
AGREEMENT
23
2.11 CONDITIONS PRECEDENT TO RELEASE OF
THE EFFECTIVE
ESCROW
DEPOSIT
24
2.12 PRE-EFFECTIVE DATE
INSPECTION
25
ARTICLE III PURCHASE PRICE; ADJUSTMENTS;
ALLOCATIONS 25
3.1 PURCHASE
PRICE
25
3.2 PAYMENT OF THE CLOSING DATE
PAYMENT
27
3.3 ALLOCATION OF PURCHASE
PRICE
28
3.4 NONASSIGNABILITY OF
ASSETS
28
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER
PARTIES 29
4.1
ORGANIZATION
29
4.2
AUTHORIZATION
29
4.3 CONSENTS AND APPROVALS; NO
VIOLATIONS
29
4.4
TITLE
29
4.5 ABSENCE OF MATERIAL ADVERSE
EFFECT
29
4.6
LITIGATION
30
4.7 COMPLIANCE WITH APPLICABLE
LAW
30
4.8
CONTRACTS
30
4.9
TAXES
30
4.10
PERMITS
31
4.11 BARGES AND TANGIBLE PERSONAL
PROPERTY
31
4.12 CERTAIN
FEES
32
4.13 CONDUCT IN THE ORDINARY
COURSE
32
4.14
INSURANCE
32
4.15
TRUTH
32
4.16 ENVIRONMENTAL AND OTHER PERMITS AND
LICENSES;
RELATED
MATTERS
32
4.17 LABOR MATTERS AND EMPLOYEE
BENEFITS
33
4.18 ABSENCE OF CERTAIN PAYMENT
OBLIGATIONS
33
<PAGE> i
4.19 NO OTHER REPRESENTATIONS OR
WARRANTIES
33
ARTICLE V REPRESENTATIONS AND
WARRANTIES OF BUYER
34
5.1
ORGANIZATION
34
5.2
AUTHORIZATION
34
5.3 CONSENTS AND APPROVALS; NO
VIOLATIONS
34
5.4
LITIGATION
34
5.5 CERTAIN
FEES
35
5.6 BUYER
QUALIFICATIONS
35
5.7 INDEPENDENT
REVIEW
35
ARTICLE VI
COVENANTS
35
6.1 PRE-CLOSING
COVENANTS
35
6.2 OPERATION AND MAINTENANCE OF
ACQUIRED ASSETS
35
6.3 ACCESS TO
INFORMATION
36
6.4
CONSENTS
36
6.5 FURTHER
ASSURANCES
37
6.6 WIND
DOWN
37
6.7 SHIPPING OF ACQUIRED ASSETS FROM
DELIVERY POINT 44
6.8 PUBLIC
ANNOUNCEMENTS
44
6.9 TAX
MATTERS
44
6.10
CONFIDENTIALITY
45
6.11 SOLICITATION BY
BUYER
45
6.12 INSURANCE COVERAGE; RISK OF
LOSS
46
6.13 TRANSFER TAXES; EXPENSES;
VAT
46
6.14 ASSISTANCE IN COLLECTING CERTAIN
AMOUNTS
46
6.15 EXCLUDED
LIABILITIES
47
6.16
ESCROW
47
6.17 DR EMPLOYEES
WARRANTY
47
6.18
PERMITS
47
6.19
CERTIFICATIONS
47
ARTICLE VII
INDEMNIFICATION
48
7.1 INDEMNIFICATION OBLIGATIONS OF
SELLER PARTIES 48
7.2 INDEMNIFICATION OBLIGATIONS OF
BUYER
48
7.3
SURVIVAL
49
7.4 INDEMNIFICATION
PROCEDURE
49
7.5 SELLER LIABILITY
LIMITS
50
7.6 BUYER LIABILITY
LIMITS
52
7.7 REASONABLE STEPS TO
MITIGATE
53
7.8 EXCLUSIVE
REMEDIES
53
7.9 FORCE MAJEURE
LOSSES
53
ARTICLE VIII
TERMINATION
53
8.1
TERMINATION
53
8.2 PROCEDURE AND EFFECT OF
TERMINATION
54
8.3 TERMINATION
FEES
55
8.4 NO DUPLICATE
PAYMENTS
56
<PAGE> ii
ARTICLE IX
MISCELLANEOUS
56
9.1 FEES AND
EXPENSES
56
9.2
NOTICES
56
9.3
SEVERABILITY
59
9.4 BINDING EFFECT;
ASSIGNMENT
59
9.5 NO THIRD-PARTY
BENEFICIARIES
59
9.6 ENTIRE
AGREEMENT
59
9.7 GOVERNING LAW AND CHOICE OF
FORUM
59
9.8 WAIVER OF JURY
TRIAL
60
9.9 PROCESS
AGENTS
60
9.10 SPECIFIC
PERFORMANCE
60
9.11
COUNTERPARTS
60
9.12 AMENDMENT;
MODIFICATION
61
9.13 DISCLOSURE
SCHEDULES
61
9.14
WAIVER
61
<PAGE> iii
Exhibits
Exhibit A Form of Assignment and Assumption Agreement
Exhibit B Form of Bills of Sale
Exhibit C Form of Escrow Agreement
Exhibit D Protocol of Delivery and Acceptance
Exhibit E Form of Security Agreement
Exhibit F Form of Transfer Deed
Exhibit G Form of Notice to the Dominican Tax Authorities
Exhibit H Form of Notice to the Dominican Labor Department
Exhibit I Form of Hipoteca Naval
Exhibit J Form of Monthly Maintenance Report
Exhibit K Form of Contrato de Prenda de la Concesion
Exhibit L Form of Contrato de Prenda sin Desapoderamiento
Exhibit M Fuel Calculation Example
Exhibit N Replacement Power Example
Schedules
Schedule 1.1(a) Hull Test Guidelines for
Minimum Hull Standards
Schedule 1.1(b) Knowledge of Buyer
Schedule 1.1(c) Knowledge of Seller
Schedule 1.1(d) Performance Test Guidelines
for Baseline Performance Levels
Schedule 1.1(e) Permitted Liens
Schedule 1.1(f) Prudent Standards and
Practices
Schedule 1.1(g) Hull Maintenance
Schedule 1.1(h) Effective Date
Certificate
Schedule 1.1(i) Known Hull Repair Issues On
or Before Presigning Inspection
Schedule 2.1(a) Generation Assets
Schedule 2.1(b) Spare Parts Expected to be
on Hand at Closing
Schedule 2.1(c) Tangible Personal
Property
Schedule 2.1(d) Contracts
Schedule 2.1(g) Permits
Schedule 2.2(g) Events or Occurrences for
Claims
Schedule 3.2 Inventory
Schedule
Schedule 3.3 Allocation
of Purchase Price
Schedule 4.5 Certain
Exceptions
Schedule 4.6
Litigation
Schedule 4.8
Contingencies with Respect to Contracts
Schedule 4.9 Taxes
Schedule 4.10 Permit
Exceptions
Schedule 4.14 Insurance
Schedule 4.15 Data and
Documents
Schedule 4.16 Environmental
Matters
Schedule 4.17 Schedule of
Employees and Benefits
Schedule 6.11 Restricted
Employees
<PAGE> iv
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT,
dated September 23, 2008
(this "Agreement"), 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 Agreement as a "Party" and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, Buyer and
Seller desire to enter into
this
Agreement pursuant to which (i) Seller will sell to
Buyer, and
Buyer will purchase from Seller, certain assets, and (ii)
Seller
will assign, and Buyer will assume,
certain liabilities and
obligations of Seller associated with such assets
(collectively,
the "Acquisition");
WHEREAS, Seller Parent also
desires to enter into this
Agreement and undertake certain obligations and
assume certain
liabilities in connection with the Acquisition; and
WHEREAS, the Parties desire to make
certain representations,
warranties, covenants and agreements in
connection with the
Acquisition.
NOW, THEREFORE, in consideration of
the foregoing and the
respective representations, warranties, covenants, agreements
and
conditions contained in this Agreement, and
intending to be
legally bound hereby, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The
following terms, as used in this
Agreement, have the following meanings:
"Accrued Employee Termination
Amount" means the accrued
termination and severance benefits under the laws and
regulations
of the Dominican Republic due from the beginning of employment
up
until the actual date of transfer of employment from
Seller to
Buyer for those employees of Seller.
"Acquired Assets" has the meaning set
forth in Section 2.1.
"Acquisition" has the meaning set forth in
the Recitals.
"Affiliate" of any specified Person
means any other Person
directly or indirectly Controlling or Controlled
by, or under
common Control with, such specified Person.
"Agreed kWh Rate" means the sum of (a) 2.6
cents (U.S.) plus
(b) the product of the Heat Rate Baseline multiplied by the
Fuel
Cost divided by the BTU per BBL.
<PAGE>
"Agreement" has the meaning set forth in
the Preamble.
"Ambient Conditions"
has the meaning set
forth in
Schedule 1.1(d).
"Ancillary Documents" means the
Seller Ancillary Documents
and Buyer Ancillary Documents.
"Assignment and Assumption
Agreement" means that certain
Assignment and Assumption Agreement, by and
between Buyer and
Seller, in substantially the form attached hereto as Exhibit A.
"Assumed Liabilities"
has the meaning set forth
in
Section 2.3 .
"Barge A" means, as at
the date of the signing of this
Agreement, the Panamanian flagged barge, "Estrella
Del Norte",
Patente de Navegacion No. 19564-PEXT-1, and the Generation
Assets
owned and operated by Seller thereon, which is currently
located
at Avenida La Marina (Avenida del Puerto) Muelle Timbeque,
Santo
Domingo, Distrito Nacional, Dominican Republic.
"Barge A Purchase Price" means Nineteen
Million Five Hundred
Thousand Dollars (U.S. $19,500,000).
"Barge B" means, as at
the date of the signing of this
Agreement, the Panamanian flagged barge, "Estrella Del
Mar I",
Patente de Navegacion No. 28070-01-B, and the
Generation Assets
owned and operated by Seller thereon, which is currently
located
at Avenida La Marina (Avenida del Puerto) Muelle Timbeque,
Santo
Domingo, Distrito Nacional, Dominican Republic.
"Barge B Purchase Price"
means Forty-Nine Million Five
Hundred Thousand Dollars (U.S. $49,500,000).
"Barges" has the meaning set forth in
Section 2.1 (a).
"Base Purchase
Price" has the meaning set
forth in
Section 3.1 .
"Baseline Hull Condition"
means the state of the Barges'
hulls as determined during the Pre-Effective Date
Inspection in
accordance with the Hull Test Guidelines
and the Hull Test
Procedures, listed in Schedule 1.1(a), 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 expressly permitted by the Hull Test
Guidelines and
the Hull Test Procedures.
"Baseline Performance Levels" means
those levels determined
during the Pre-Effective Date Inspection
for the Heat Rate
Baseline, the Net Electrical Capacity
Baseline, the Capacity
Factor Baseline, the Lubricating Oil Consumption Baseline,
Stack
Emissions Baseline and the Noise Emissions Baseline (with
respect
to the Generation Assets operating individually or
simultaneously
in compliance with all applicable Laws and
within acceptable
operating limits as
<PAGE> 2
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).
"Baseline Termination Notice" has the
meaning set forth in
Section 2.12 .
"Bills of Sale" means those bills of
sale required by the
Dominican Republic to register the Barges in Buyer's name in
the
form attached hereto as Exhibit B.
"Books and Records" has the meaning set
forth in Section 2.1
(e).
"BTU per BBL" means an
amount equal to product of fuel
density in kg/m3 and lower heating value in MJ/kg multiplied by
a
factor of 150.7. The values for fuel density and
lower heating
values will be based on actual fuel sample test results that
will
be obtained from a reputable lab. In
situations where fuel
sample results are not available,
a generalized value of
6,000,000 BTU/barrel will be used.
"Business Day" means any day except
Saturday, Sunday or any
day on which banks are generally not open for
business in The
City of New York, United States, or Santo
Domingo, Dominican
Republic.
"Buyer" has the meaning set forth in the
Preamble.
"Buyer Ancillary
Document" means any deed,
public
instrument, certificate, agreement, document or other
instrument,
other than this Agreement, to be executed and delivered by
Buyer
or any Affiliate of Buyer in connection
with the Acquisition
pursuant to this Agreement.
"Buyer Fundamental
Representations" has the meaning set
forth in Section 7.2 (a).
"Buyer Indemnified Parties" means
Buyer and its Affiliates
and each of their respective officers,
directors, employees,
agents, successors and permitted assigns.
"Buyer Interest Payment"
means an amount calculated at
simple interest at the rate of two and one-half
percent (2.5%)
per annum on the amount of the Escrow Deposit for the time
period
commencing on and including March 1, 2009
and ending on and
including the date on which the Escrow Deposit is deposited
with
the Escrow Agent by Buyer pursuant to Section 3.1 (b).
"Capacity Factor"
has the meaning set
forth in
Schedule 1.1(d).
"Capacity Factor Baseline" has
the meaning set forth in
Schedule 1.1(d).
"Capacity Factor Test"
has the meaning set forth
in
Schedule 1.1(d).
<PAGE> 3
"Chase Lien" means the
pledge on the assets of Seller
created in the public records of
Bermuda under the Pledge
Agreement, dated as of January
19, 1990, between Seaboard
Overseas Limited and The Chase
Manhattan Bank (National
Association), as amended by Amendment
No. 1, dated as of
November 24, 1993, among Seaboard Overseas Limited,
Seller, and
The Chase Manhattan Bank (National Association).
"Chosen DR
Employees" has the meaning set
forth in
Section 6.11 .
"Closing" has the meaning set forth in
Section 2.5(a).
"Closing Date" has the meaning set forth
in Section 2.5(a).
"Closing Date Payment"
has the meaning set forth
in
Section 3.1 (c).
"Closing Notice"
has the meaning set
forth in
Section 2.5(a).
"Commercially Reasonable Efforts" means
efforts which do not
require the performing Party to expend material funds
or incur
material obligations.
"Concession" means (i) that concession
granted to Seller for
the generation, distribution and commercialization of
electricity
produced by its power plant installed on Barge
A pursuant to
Resolution 3-92 of the Directorio de Desarrollo y
Reglamentacion
de la Industria de la Energia Electrica (DDRIE)
on April 13,
1992, pursuant to Law 14-90, and Resolution No. 24-2001
of the
Superintendence of Electricity dated October 9, 2001, (ii)
those
documents granting to the Seller the
legal rights for the
generation, distribution and commercialization of the
electricity
produced by its power plant installed on Barge B,
including a
certain power purchase agreement executed with the
then state-
owned electricity
company, Corporacion
Dominicana de
Electricidad, dated June 2, 1989,
and its amendments, and
Resolution No. 24-2001 of the
Superintendence of Electricity
dated October 9, 2001, and (iii)
the Generation Concession
granted by the Dominican State to the
Transcontinental Capital
Corporation (Bermuda) Ltd. in connection with the Barges
pursuant
to General Electricity Law No. 125-01.
"Confidential Information" has
the meaning set forth in
Section 6.10 .
"Contracts" has the meaning set forth in
Section 2.1 (d).
"Control" when used with
respect to any specified Person,
means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership
of
voting securities, by contract or otherwise.
"Damaged Assets" has the meaning set
forth in Section 6.6
(c).
"Damage Period" has the meaning set
forth in Section 6.6
(f).
"Decommission Certificate" has
the meaning set forth in
Section 6.19 (a).
<PAGE> 4
"Decommission Non-Authorization Event"
means the failure of
Seller, after exercising Commercially
Reasonable Efforts, to
obtain, on or before September
30, 2009, the Decommission
Certificate.
"Delinquent Barge(s)"
has the meaning set forth
in
Section 6.6 (f).
"Delinquent Date" has the meaning
set forth in Section 6.6
(f).
"Delivery Point"
has the meaning set
forth in
Section 6.6(a)(i).
"Delivery Window"
means the sixty (60)
day period
immediately following the Wind Down Date
unless extended in
accordance with Section 6.6 (b) due to a Force Majeure Event.
"Dollars" or "U.S. $"
means the lawful currency of the
United States of America.
"DR Employees" has the meaning set forth
in Section 4.17 .
"Dry Dock Force Majeure Event"
means items (a), (b), (c),
(d) and (e) of the definition of Force Majeure Event except
that
with respect to items (a) and (c) it includes naturally
occurring
phenomena to the extent occurring in the
Caribbean, and with
respect to item (d) to the extent that there are no dry
docking
facilities available for the Barges in the Caribbean after
Buyer
has used Commercially Reasonable
Efforts, after Buyer has
delivered the Wind Down Notice to Seller, to procure
reservations
for dry docking for the Barges.
"Early Decommission Date" means (a)
if the Extension Period
is zero days, then the "Early Decommission Date" is the Wind
Down
Date and (b) if the Extension Period is one (1)
or more days,
then the "Early Decommission Date" is the last calendar
day of
the period which commences on the Wind Down Date
and ends "X"
number of days immediately following the Wind Down
Date, where
"X" is equal to the number of days included
in the Extension
Period.
"Early Decommission Payment" means
an amount equal to the
lesser of (A) Three Million Seven Hundred Fifty Thousand
Dollars
(U.S. $3,750,000) or (B) the product of (1)
Forty-One Thousand
Six Hundred Sixty-Seven Dollars (U.S. $41,667)
times (2) the
number of days (inclusive) during the period commencing
on the
Early Decommission Date and ending on December 31, 2010.
"Early Termination Event"
means the failure of Seller,
despite Seller's exercise of Commercially Reasonable Efforts,
to
satisfy the condition set forth
in Section 2.11 (b) or
Section 2.11 (c) by September 30, 2009, if such
has not been
permanently waived by Buyer in writing by October 31, 2009.
"Effective Date" means the
eleventh (11th) Business Day
after Buyer has given Seller the Effective Date Certificate.
"Effective Date Certificate" has the
meaning set forth in
Section 2.12 .
"Effective Escrow Deposit" has
the meaning set forth in
Section 3.1 (a).
<PAGE> 5
"Effective Escrow Deposit Date" has the
meaning set forth in
Section 3.1 (a).
"Effective Escrow Deposit Release Date"
has the meaning set
forth in Section 2.11 .
"Effluent Emissions"
has the meaning set
forth in
Schedule 1.1(d).
"Effluent Emissions Baseline" has the
meaning set forth in
Schedule 1.1(d).
"Effluent Emissions Test" has
the meaning set forth in
Schedule 1.1(d).
"Environmental Laws" means all Laws, as in
effect as of the
date hereof or as in effect with respect to any time period
after
the date hereof but prior to, and including the
date of, the
Closing Date, with respect to the Acquired Assets and
the Power
Business and any judicial or
administrative interpretation
thereof, including any judicial or administrative order,
consent
decree or judgment, relating to the environment, health,
safety,
natural resources or hazardous materials.
"Environmental Permits"
means all permits, approvals,
identification numbers, licenses
and other authorizations
required under or issued pursuant to any applicable
Environmental
Law with respect to the Acquired Assets or the power business.
"Escrow Account" means a
United States Dollar interest
bearing account at Escrow Agent.
"Escrow Agent" means the Bank of New
York.
"Escrow Agreement" means that escrow
agreement by and among
Seller, Buyer and the Escrow Agent in the form of Exhibit C.
"Escrow Deposit" has the meaning set
forth in Section 3.1
(b).
"Escrow Fraction" means the fraction, the
numerator of which
is the amount of the Escrow Deposit which is to be paid to
Seller
on the Closing Date, and the denominator of which is
the total
amount of the Escrow Deposit (determined as of the
Closing Date
prior to any distribution thereof to Buyer or Seller).
"Escrow Interest Amount"
has the meaning set forth in
Section 3.1 (b).
"Escrow Shortfall" has the meaning set
forth in Section II.2
of the Escrow Agreement.
"Excluded Assets" has the meaning set
forth in Section 2.2 .
"Excluded Liabilities"
has the meaning set forth
in
Section 2.4 .
"Extension Period" means (a)
if the Closing Date occurs
within sixty (60) days after the Wind
Down Date, then the
"Extension Period" is zero days, (b) if the Closing
Date occurs
after the sixtieth (60th) day following the Wind Down
Date, and
the delay beyond such sixtieth (60th) day is due solely to
delay
or nonperformance by Buyer of
its obligations under this
Agreement, then the "Extension Period" is zero days or (c) if
the
Closing Date occurs after the
<PAGE> 6
sixtieth (60th) day following the Wind Down Date, and
the delay
beyond such sixtieth (60th) day is for any reason
(including a
Force Majeure Event or delay or nonperformance by
Seller of its
obligations under this Agreement) not listed in clause (b),
then
the "Extension Period" is equal to the number of days
(inclusive)
in the period commencing on the sixty-first (61st) day
following
the Wind Down Date and ending on the earlier of the Closing
Date
or December 31, 2010.
"Final Testing Period"
has the meaning set forth
in
Section 6.6 (a)(ii).
"Financing Party" means any Person
providing financing to
Buyer and its Affiliates,
including any trustee or agent
representing such Person.
"First Anniversary" means the first
anniversary of the date
as of which Buyer has
filed an action seeking specific
performance by Seller of this
Agreement or the Acquisition
following the failure of the Closing to have occurred as
required
by this Agreement with respect to a Delinquent Barge.
"First Closing
Date" has the meaning set
forth in
Section 6.6 (e).
"Force Majeure Event" means
any of the following events
which are outside of the
asserting Party's control that
materially and adversely affect the performance by that Party
of
its obligations (other than payment
obligations) under or
pursuant to this Agreement:
(a)
the following naturally occurring phenomena to the
extent occurring in
the Dominican Republic: acts of God
including storms, floods, hurricanes,
tornadoes, earthquakes,
tsunamis, volcanic eruptions,
landslides, famines, plagues
or epidemics;
(b)
fires and explosions;
(c)
to the extent such events occur in the Dominican
Republic: sabotage, wars, blockades,
insurrections, riots or
acts of terrorism;
(d)
to the extent such events occur in the Dominican
Republic: impossibility
to obtain materials, supplies,
permits or labor; or
(e)
any laws, orders, rules, regulations,
acts or
restraints of any Governmental Entity or
authority (civil or
military) (that are
not attributable to the acts
or
omissions or provocation
of the asserting Party, or their
respective contractors, subcontractors,
employees, officers,
directors or agents) to the extent such
laws, orders, rules,
regulations acts or restraints directly
affect the ownership
(or ability to
transfer ownership) or operation of the
Acquired Assets,
so long as the foregoing
are not within the control of the
asserting Party and which by
the exercise of due diligence,
oversight and planning the asserting Party is unable to
prevent
or overcome. For the purposes of this Agreement, the
expression
"due diligence, oversight and planning" means the level
of duty
and care expected of a reasonable and prudent operator of
assets
similar to, or like, the Acquired
Assets. No consequence or
circumstances knowingly created by, and no
intentional act or
omission of, the asserting Party
or any of its contractors,
subcontractors, agents, employees, officers or
directors of the
foregoing shall ever (a) constitute
<PAGE> 7
a Force Majeure Event or (b) relieve the asserting Party from
an
obligation or requirement hereunder. Any increase in the cost
of
performance not resulting from the Force Majeure Event shall
not
be a Force Majeure Event.
"Force Majeure Delivery Failure" has
the meaning set forth
in Section 6.6 (b).
"Force Majeure Exclusion" has
the meaning set forth in
Section 6.6 (b).
"Force Majeure Notice"
has the meaning set forth
in
Section 6.6 (b).
"Force Majeure Termination" has the
meaning set forth in
Section 6.6 (b).
"Fuel Cost" means the sum of (a)(i) 40%
times the cost of a
barrel of Fuel Oil No. 6 (1% sulfur) for the day
in question,
which cost of a barrel shall be determined
for the purposes
hereof by taking the average of the high and low price
for such
day as published by Platts U.S. Marketscan under the heading
Gulf
Coast Waterborne, plus (ii) 60% times the cost of
a barrel of
Fuel Oil No. 6 (3% sulfur) for the day in question, which cost
of
a barrel shall be determined for the purposes hereof
by taking
the average high and low price for such day as reported by
Platts
U.S. Marketscan under the heading Gulf
Coast Waterborne plus
(b) $7 per barrel. An example of such calculation is attached
as
Exhibit M.
"Fuel Oil" has the meaning set forth in
Schedule 1.1(d).
"Fuel Samples" has the meaning set forth
in Schedule 1.1(d).
"Generation Assets" has the meaning set
forth in Section 2.1
(a).
"Governmental Entity" means any
nation or government, any
state, municipality or other political subdivision
thereof, or
any court, administrative or
regulatory agency, department,
instrumentality, body or commission
or other governmental
authority or agency, domestic or foreign.
"Heat Rate" has the meaning set forth in
Schedule 1.1(d).
"Heat Rate
Baseline" has the meaning set
forth in
Schedule 1.1(d).
"Heat Rate
Test" has the meaning
set forth in
Schedule 1.1(d).
"Hull Escrow Amount" means, in the
case where both Barges
are being sold to Buyer by Seller at the Closing, Three
Million
Dollars (U.S. $3,000,000) and, in the case where only
one Barge
is being sold to Buyer by Seller at the Closing, One Million
Five
Hundred Thousand Dollars (U.S. $1,500,000).
"Hull Maintenance"
means, with respect to the
Barges,
inspections and servicing of their hulls in accordance
with the
guidelines set forth in Schedule 1.1(g).
"Hull Net Repair
Cost" has the meaning set forth
in
Section 6.6 (a)(iii).
"Hull Test Guidelines"
has the meaning set forth
in
Schedule 1.1(a).
<PAGE> 8
"Hull Test Procedures"
has the meaning set forth
in
Schedule 1.1(a).
"Income Tax" means any
tax (whether U.S., Panamanian or
Dominican or any Governmental Entity of the U.S.
or Dominican
Republic) based on or measured by reference to
net income or
capital gains, including any
interest, penalty or addition
thereto, whether disputed or not.
"Indebtedness" means, with respect
to any Person, (a) all
indebtedness of such Person, whether or
not contingent, for
borrowed money; (b) all obligations of
such Person for the
deferred purchase price of property
or services; (c) all
obligations of such Person evidenced by notes, bonds,
debentures
or other similar instruments; (d) all
indebtedness created or
arising under any conditional sale or
other title retention
agreement with respect to property acquired by such Person
(even
though the rights and remedies of the seller or lender under
such
agreement in the event of default are limited to repossession
or
sale of such property); (e) all obligations of
such Person as
lessee under leases that have been or
should be recorded as
capital leases; (f) all obligations, contingent or otherwise,
of
such Person under acceptance, letter
of credit or similar
facilities; (g) all obligations of such
Person to purchase,
redeem, retire, defease or otherwise
acquire for value any
capital stock of such Person or any warrants, rights or
options
to acquire such capital stock, valued, in the case of
redeemable
preferred stock, at the greater of its voluntary or
involuntary
liquidation preference plus accrued and unpaid dividends; (h)
all
Indebtedness of others referred to in clauses (a)
through (g)
above guaranteed directly or indirectly in any
manner by such
Person, or in effect guaranteed directly or indirectly
by such
Person through an agreement (i)
to pay or purchase such
Indebtedness or to advance or supply funds for
the payment or
purchase of such Indebtedness, (ii) to purchase, sell
or lease
(as lessee or lessor) property, or to purchase or sell
services,
primarily for the purpose of enabling the debtor to make
payment
of such Indebtedness or to assure the holder of such
Indebtedness
against loss, (iii) to supply funds to or in any
other manner
invest in the debtor (including any agreement to pay for
property
or services irrespective of whether such property is received
or
such services are rendered) or (iv)
otherwise to assure a
creditor against loss; and (i) all Indebtedness
referred to in
clauses (a) through (g) above secured by (or for which the
holder
of such Indebtedness has an
existing right, contingent or
otherwise, to be secured by)
any encumbrance on property
(including accounts and contract rights) owned by
such Person,
even though such Person has not assumed or become liable for
the
payment of such Indebtedness.
"Indemnified Party"
means a Buyer Indemnified Party or
Seller Indemnified Party, as applicable.
"Indemnifying Party"
has the meaning set
forth in
Section 7.4(a).
"Insured Event" has the meaning set
forth in Section 6.2
(d).
"Interest Rate" means two and
one-half percent (2.5%) per
annum.
"Inventory Schedule"
has the meaning set
forth in
Section 3.2 .
"Knowledge of Buyer" means the actual
knowledge as of the
date hereof or the Closing Date of any of the individuals
listed
on Schedule 1.1(b), as well as any successor to those
<PAGE> 9
individuals or similar positions if such
positions no longer
exist; it being understood that
all managerial persons of
Buyer are hereby included.
"Knowledge of Seller" means the actual
knowledge as of the
date hereof or the Closing Date of (a) any of the six
individuals
listed on Schedule 1.1(c) under the caption "Executive Group",
as
well as any successor to any of
those individuals or any
individual holding a position with
similar responsibilities,
(b) all managerial persons of Seller and all managerial
persons
of Seller Parent who have responsibility for the Power
Business,
and (c) in the case of Section 4.11, in addition to the
persons
described in the foregoing clauses (a)
and (b), those four
individuals listed on Schedule 1.1(c) under the caption
"Persons
Reviewing Sections 4.5 and 4.11".
"Known Hull Repair Issues" means
those items needing repair
listed on Schedule 1.1(i).
"Law" means
any material statutes,
rules, codes,
regulations, ordinances or orders of, or issued by,
Governmental
Entities.
"Liens" means mortgages, liens, pledges,
security interests,
charges, claims, restrictions and
encumbrances filed in the
public records.
"Loss" has the meaning set forth in
Section 7.1 .
"Lubricating Oil Consumption" has the
meaning set forth in
Schedule 1.1(d).
"Lubricating Oil Consumption Baseline" has
the meaning set
forth in Schedule 1.1(d).
"Lubricating Oil Consumption Test" has the
meaning set forth
in Schedule 1.1(d).
"Major Delivery Failure" means, with
respect to a Barge, the
failure of four (4) or more engine generation sets on that
Barge
to operate in a manner, which meets
the Required Operating
Condition of those engines.
"Market Rates" has the meaning set forth
in Section 6.6 (f).
"Material Adverse Effect" means a material
adverse effect on
the physical and operating condition of the
Acquired Assets,
taken as a whole; provided, however, that in determining
whether
there has been or would be a "Material
Adverse Effect", any
adverse change in the Acquired Assets, taken as a whole, that
is
cured by Seller before the earlier of (a) five (5) Business
Days
before the anticipated Closing Date and (b) the
date on which
this Agreement is terminated pursuant to Section
8.1 shall be
taken into account.
"Mining Project" has the meaning set forth
in Section 9.4 .
"Minor Delivery Failure" means the
failure of any of the
Acquired Assets to operate in a manner, which meets the
Required
Operating Condition if such failure does not constitute
a Major
Delivery Failure.
"Mortgage Certificates" means the
certificates referred to
in Section 2.11 (c).
<PAGE> 10
"Net Electrical Capacity" has
the meaning set forth in
Schedule 1.1(d).
"Net Electrical Capacity Baseline" has the
meaning set forth
in Schedule 1.1(d).
"Net Electrical Output"
has the meaning set forth in
Schedule 1.1(d).
"No Hire Period" has the meaning set forth
in Section 6.11 .
"Noise Emissions"
has the meaning set
forth in
Schedule 1.1(d).
"Noise Emissions Baseline" has
the meaning set forth in
Schedule 1.1(d).
"Noise Emissions Test"
has the meaning set forth
in
Schedule 1.1(d).
"No Power Day" has the meaning set forth
in Section 6.6 (f).
"Option A" has the meaning set forth in
Section 6.6 (d).
"Option B" has the meaning set forth in
Section 6.6 (d).
"Option C" has the meaning set forth in
Section 6.6 (e)(i).
"Option C-1" has
the meaning set forth in Section 6.6
(e)(i).
"Option C-2" has
the meaning set forth in Section 6.6
(e)(i).
"Option D" has the meaning set forth in
Section 6.6 (e)(ii).
"Partial Termination Escrow Payment"
means an amount (in
U.S. Dollars) equal to the sum of (a) the
lesser of (i) the
Escrow Deposit or (ii) the Partial Termination
Purchase Price
Adjustment plus (b) the Partial Termination Interest Payment.
"Partial Termination Interest
Payment" means an amount (in
U.S. Dollars) equal to (a) the amount of
the Escrow Interest
Amount (determined as of the Business Day immediately
preceding
the Business Day on which the Escrow Agent
pays the Partial
Termination Escrow Payment to Buyer
pursuant to the Escrow
Agreement) multiplied by (b) a fraction, the numerator
of which
is the Partial Termination Purchase Price
Adjustment and the
denominator of which is the
Escrow Deposit (both in U.S.
Dollars); provided, however, that if the
Partial Termination
Purchase Price Adjustment is equal to or more
than the Escrow
Deposit, then the "Partial Termination Interest Payment" means
an
amount equal to the Escrow Interest Amount (determined as of
the
immediately preceding Business Day on which the Escrow Agent
pays
the Partial Termination Escrow Payment to Buyer pursuant
to the
Escrow Agreement).
"Partial Termination Payment"
means an amount (in U.S.
Dollars), if any, equal to the excess, if any, of (a) the
Partial
Termination Purchase Price Adjustment
over (b) the Escrow
Deposit.
"Partial Termination Purchase
Price Adjustment" means an
amount equal to the sum of (a) the Barge A Purchase Price or
the
Barge B Purchase Price, as applicable to the
Barge which
<PAGE> 11
was excluded from the Acquisition pursuant to the Force
Majeure
Exclusion or Option D, as applicable, plus
(b) the allocable
Purchase Price of any other related Generation Assets
(determined
in accordance with Schedule 3.3) which were also
excluded from
the Acquisition pursuant to the Force
Majeure Exclusion or
Option D, as applicable.
"Party" and "Parties" have the
meaning set forth in the
Preamble.
"Performance
Tests" has the meaning
set forth in
Schedule 1.1(d).
"Performance Test Guidelines" has
the meaning set for in
Schedule 1.1(d).
"Performance Test Procedures" has the
meaning set forth in
Schedule 1.1(d).
"Permits" has the meaning set forth in
Section 2.1 (g).
"Permitted Liens" means all Liens listed
on Schedule 1.1(e)
and Liens created by the Security Agreement.
"Person" means any individual,
partnership, joint venture,
corporation, trust, limited liability
company, unincorporated
organization or other entity or any Governmental Entity.
"Power Business" means the business
conducted by Seller in
the Dominican Republic on, or with respect to, the Barges.
"Pre-Effective Date Inspection"
means the inspection and
testing process
described in Schedule
1.1.(a) and
Schedule 1.1(d).
"Projected Repair Time"
has the meaning set forth in
Section 6.6 (c).
"Property Tax" means any Tax resulting
from and relating to
the assessment of real or personal property by any
Governmental
Entity.
"Protocol of Delivery and
Acceptance" means that certain
protocol of delivery and acceptance for the
delivery of the
Acquired Assets on the Closing Date as set forth in Exhibit D.
"Provider" has the meaning set forth in
Section 6.10 .
"Prudent Standards and
Practices" means those practices,
methods and maintenance schedules to be applied by Seller to
the
Acquired Assets prior to the Closing Date
and set forth in
Schedule 1.1(f).
"Purchase
Price" means
Seventy Million Dollars
(U.S. $70,000,000).
"Reasonable Rectification Period" means,
with respect to the
actions necessary to replace, restore or
repair the Acquired
Assets in question to the Required Operating Condition, the
time
period reasonably required to complete
such repair actions,
taking into account then typical lead times
for material and
availability of qualified labor for repair of
such action in
question, all as established on the basis of at
least two (2)
written estimates from reputable contractors in
the case that
Buyer and Seller fail to agree thereon.
<PAGE> 12
"Recipient" has the meaning set forth in
Section 6.10 .
"Registration Termination
Event" means the failure of
Seller, after exercising Commercially
Reasonable Efforts, to
obtain and deliver to Buyer on or prior to May
31, 2009, the
Title Certificate and, unless expressly waived
permanently by
Buyer in writing, the Mortgage Certificates.
"Remaining Assets" has the meaning set
forth in Section 6.6
(e)(i).
"Repair Actions" has the meaning set
forth in Section 6.6
(c).
"Repair Condition" has the meaning set
forth in Section 6.6
(c).
"Repair Costs" has the meaning set forth
in Section 6.6 (c).
"Repair Notice" has the meaning set
forth in Section 6.6
(c).
"Repair Time" means the Projected
Repair Time if Seller as
promptly as practicably possible gives Buyer the
Repair Notice
pursuant to Section 6.6 (c) or, if Seller fails to so provide
the
Repair Notice or if Buyer
elects Option C-2 pursuant to
Section 6.6 (e), then "Repair Time" shall mean
the Reasonable
Rectification Period.
"Replacement Costs Amount" has
the meaning set forth in
Section 6.6 (f).
"Replacement Power" means the
excess, if any, of (a) the
power that Buyer desires to consume on the day in
question over
(b) the actual amount of power, if any, on such day
that Buyer
consumes from its own generation equipment
(or that of its
affiliates) permanently located in the Dominican Republic
(other
than that which is powered by diesel fuel)
during the Damage
Period, but only to the extent such
generation equipment has
adequate capacity to serve the load of the Mining Project
without
the need for Buyer to obtain additional power
from alternative
sources not owned by Buyer (or its affiliates) in the
Dominican
Republic; such excess for the purposes hereof shall
not exceed
the total maximum power determined on a per diem basis that
Buyer
could have derived from the Delinquent Barge(s) if the
Barge(s)
had been delivered to Buyer in the Required Operating
Condition
on the Delinquent Date and operated
at but not beyond the
Baseline Performance Levels and at the annual historical
average
availability level. An example is attached as Exhibit N.
"Required Operating Condition" has the
meaning set forth in
Section 6.2(a).
"Required Repairs" has the meaning set
forth in Section 6.6
(a)(iii).
"Restricted Employee"
means an employee restricted for
solicitation or hire by Buyer listed on Schedule 6.11.
"Seaworthy" means with respect to a
Barge, tight, staunch
and strong condition, for uninterrupted coastwise
towing by a
tugboat with an international load line with a
certificate duly
issued by Lloyd's Register, American Bureau of Shipping
or Den
Norske Veritas for distances
<PAGE> 13
not to exceed one hundred fifty (150) nautical miles and in
winds
not to exceed Beaufort Force 4 (Beaufort Force 4=Wind Speed
11-16
Knots and Sea Wave Height 3.5-5 feet).
"Second Closing
Date" has the meaning set
forth in
Section 6.6 (e)(i)(2).
"Security Agreement" means that framework
security agreement
in the form of Exhibit E and such
local security documents,
deeds, public documents, certificates, instruments
and similar
documents filed in the Dominican Republic or elsewhere
pursuant
to which certain of the Acquired Assets are mortgaged,
assigned,
pledged or otherwise granted a security
interest on a first
priority basis to Buyer to
secure all of Seller Parties'
obligations under this Agreement.
"Seller" has the meaning set forth in the
Preamble.
"Seller Ancillary Document"
means the Security Agreement,
any deed, public instrument, certificate, agreement, document
or
other instrument, other than this Agreement, to be
executed and
delivered by Seller or any Affiliate of Seller in connection
with
the Acquisition pursuant to this Agreement.
"Seller Delivery Failure" has
the meaning set forth in
Section 2.5 (b).
"Seller Delivery Failure Amount" has
the meaning set forth
in Section 6.6 (e).
"Seller Fundamental Representations"
has the meaning set
forth in Section 7.1 (a).
"Seller Indemnified Parties" means Seller
Parties and their
Affiliates and each of their respective
officers, directors,
employees, agents, successors and permitted assigns.
"Seller Interest Payment" means an amount
calculated as at
the Interest Rate on the Effective Escrow Deposit for
the time
period commencing on the date the Effective
Escrow Deposit is
deposited with the Escrow Agent pursuant to Section 3.1
(a) and
ending on the date that the Effective Escrow Deposit is repaid
by
Seller to Buyer pursuant to Section 8.3 .
"Seller Late Decommission Payment" has the
meaning set forth
in Section 6.6 (f).
"Seller Parent" has the meaning set forth
in the Preamble.
"Seller Parties" means Seller and Seller
Parent.
"Spare Parts Expected to be on
Hand at Closing" has the
meaning set forth in Section 2.1 (b).
"Special Force Majeure Event" has
the meaning set forth in
Section 8.1 (g).
"Stack Emissions"
has the meaning set
forth in
Schedule 1.1(d).
"Stack Emissions Baseline" has
the meaning set forth in
Schedule 1.1(d).
"Stack Emissions Test"
has the meaning set forth
in
Schedule 1.1(d).
<PAGE> 14
"Superintendence" means the
Superintendence of Electricity
organized under the General Electricity Law, with
authority to
regulate the electric energy sector in the Dominican Republic.
"Superintendence Certificate" has the
meaning set forth in
Section 6.19(d).
"Tangible Personal Property" has the
meaning set forth in
Section 2.1 (c).
"Taxes" means all
taxes, assessments, charges, duties
(including custom duties, excises and other related
assessments),
contributions mandated by any Government Entity, fees, levies
or
other governmental charges (including
interest, penalties or
additions associated therewith), including
income, franchise,
capital stock, property, tangible,
withholding, employment,
payroll, social security, social
contribution, unemployment
compensation, disability, transfer taxes, sales,
use, excise,
gross receipts, value-added,
environmental contributions,
electricity contributions, tolls and fees, and all
other taxes
imposed by any Governmental Entity, whether disputed or not,
and
any material charges, interest or
penalties imposed by any
Governmental Entity.
"Tax Return" means any material
report, return, declaration
or other information required to be supplied to a
Governmental
Entity in connection with Taxes, including
material estimated
returns and reports with respect to Taxes.
"Title Certificate" means the
certificate referred to in
Section 2.11 (b).
"Total Purchase Price" means the actual
paid sum of (a) the
Closing Date Payment, (b) the Effective Escrow Deposit,
(c) the
actually invoiced cost of
lubrication oils described in
Section 3.1(c)(ii), (d) the actually invoiced cost of spare
parts
described in Section 3.1 (c)(iii) and (e) the Early
Decommission
Payment, if applicable.
"Transfer Deed" means
the documents in the form
of
Exhibit F.
"Transfer Notification" means such
notification to be given
to the tax authorities of the Dominican Republic with respect
to
labor, social security, tax and similar obligations in
the form
of Exhibit G and Exhibit H, as the case may be.
"Transfer Taxes" has the meaning set forth
in Section 6.13 .
"United States" or
"U.S." means the United States of
America.
"VAT" means value-added taxes of the
Dominican Republic.
"Wind Down Date" means that calendar date
which is the later
of (a) October 1, 2010 or (b) ninety (90)
days following the
receipt by Seller of the Wind Down Notice.
"Wind Down Notice" means that
written notice by Buyer to
Seller pursuant to which Buyer instructs Seller to dismantle
and
decommission the Barges and prepare for delivery of the Barges
to
Buyer as required herein.
<PAGE> 15
1.2 Construction.
(a)
General. Unless the context of this
Agreement
otherwise clearly requires,
(i) references to the plural
include the singular, and references to
the singular include
the plural, (ii) references to one
gender include the other
gender, (iii) the words "include",
"includes" and "including"
do not limit the preceding
terms or words and shall be
deemed to be followed by
the words "without limitation",
(iv) the terms "hereof",
"herein", "hereunder", "hereto"
and similar terms in this Agreement
refer to this Agreement
as a whole and not
to any particular provision of this
Agreement, (v) "or" is
used in the inclusive sense of
"and/or", (vi) the terms "day" and "days"
mean and refer to
calendar day(s), (vii) the terms "year"
and "years" mean and
refer to calendar
year(s), (viii) the phrases "ordinary
course of business"
and "ordinary course of business
consistent with past
practice" refer to the business and
practice of Seller in
connection with the Acquired Assets,
(ix) the table of
contents and headings contained in this
Agreement are
for reference purposes only and shall not
affect in any way
the meaning or interpretation of this
Agreement, (x) any amount paid or to
be paid in "U.S. $" or
"Dollars" shall be paid in Dollars
and (xi) for purposes of
any indemnification
provision in this Agreement, the word
"expenses" shall mean out-of-pocket
expenses, and shall not
include any allocations
of internal salaries and other
expenses.
(b)
References. Unless otherwise set forth in
this
Agreement, references in
this Agreement to any document,
instrument or agreement
(including this Agreement) (i)
includes and incorporates all
Exhibits, Schedules and other
attachments
thereto, (ii) includes
all documents,
instruments or agreements issued or
executed in replacement
thereof and (iii)
means such document, instrument
or
agreement, or replacement or predecessor
thereto, as amended,
modified or supplemented
from time to time in accordance
with its terms and in effect at any given
time. All Article,
Section, Exhibit and
Schedule references herein are to
Articles, Sections, Exhibits and Schedules
of this Agreement,
unless otherwise specified.
(c)
Joint Preparation. This Agreement shall not
be
construed as if prepared by
one of the Parties, but rather
as if all Parties had prepared it.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale. Subject
to the terms and conditions
set forth in this Agreement, at the
Closing, Seller agrees to
sell, transfer and deliver to Buyer, and Buyer agrees to
purchase,
all of Seller's right, title and interest in and to the
following
assets, properties and rights (the "Acquired Assets"):
(a)
Barge A and Barge B (collectively, the "Barges"),
and all power
generation equipment, HFO units, docking
equipment, land-based equipment,
fuel oil pumps, piping and
facilities, oil separators and treatment,
electrical cables,
lines, transformers,
switchgear and controls and
all
ancillary equipment relating to the
foregoing used or useful
in connection therewith (all of the
foregoing, including the
Barges, collectively,
the "Generation Assets"), all as
described in Schedule 2.1(a);
<PAGE> 16
(b)
the spare parts which (i) are on hand and
also
listed in Schedule 2.1(b)
because they were expected to be
on hand at the Closing (the
"Spare Parts Expected to be on
Hand at Closing"), (ii)
are in good and useful condition,
and (iii) are delivered in accordance with
the standards set
forth in the Protocol of Delivery and
Acceptance;
(c)
substantially all of the shop equipment,
tools,
dies and other equipment
listed in Schedule 2.1(c) (all of
the foregoing "Tangible Personal
Property");
(d)
by way of written assignment, all
agreements,
purchase orders,
commitments, service and
maintenance
contracts, bids and proposals
described on Schedule 2.1(d)
(except to the
extent constituting Excluded Assets as
described in Section 2.2 ) (the
"Contracts");
(e)
all records, materials
and data, including
intellectual property, trade
secrets, know-how, operations
and maintenance manuals,
business information, production
processes and techniques,
market data, software, programs,
databases, data
(whether operational, technical
or
otherwise), source code,
software engines, platforms and
data formats, licenses, all
third-party warranties and all
related tangible and
intangible property relating to the
Acquired Assets (except
for financial information (other
than related to
operating expenses), and except
for
employee records or
records regarding Seller or
its
Affiliates not relevant to the
Acquired Assets) (the "Books
and Records"),
including all such Books and
Records
necessary to understand past and
current performance of the
Acquired Assets and to allow
for the future performance of
the Acquired Assets consistent with past
practices;
(f) at
Buyer's sole option, all lubrication oils; and
(g) to
the extent they are assignable, all permits and
approvals required to
generate, deliver and sell power,
including generation concessions as listed
in Schedule 2.1(g)
(the "Permits"); provided, however, that
Seller's obligation
to obtain the transfer
of any Permits shall be limited to
the use of its Commercially
Reasonable Efforts to secure
such assignments.
Seller shall grant Buyer all
reasonable access and entry
rights necessary to remove the Acquired Assets. Seller shall,
at
its sole expense and cost, dismantle,
decommission, pack and
otherwise prepare for removal of the Acquired Assets so that
they
are surrendered in Seaworthy
condition and ready for safe
shipping (or, if such are not to be transported
by sea, in a
condition for safe vehicular transportation) consistent with
the
Protocol of Delivery and Acceptance. The removal of the
Acquired
Assets by or on behalf of Buyer shall
be conducted in all
material respects in accordance with all applicable
Laws. Buyer
shall indemnify, defend and hold Seller Parties harmless of,
from
and against all claims, causes of action and losses of
whatsoever
kind or nature, including any liability by
reason of injury
(including death) to persons, damage
to any property and
mechanics' liens or similar charges which may affect the
Seller's
property, resulting from the entry onto Seller's
property, or
work conducted thereon by, or on behalf of, Buyer in
connection
with the removal of the Acquired Assets.
<PAGE> 17
Notwithstanding anything to the contrary
contained in this
Agreement, to the extent any of the Contracts, Books and
Records
and other documents are susceptible to duplication and are
either
(i) used in connection
with Seller's other businesses,
(ii) needed for the preparation
of Tax Returns, (iii) in
connection with product liability claims or
claims related to
Excluded Assets or Excluded Liabilities, (iv) needed to carry
out
the terms or purposes of this Agreement or (v) required by Law
to
be retained by Seller, Seller may keep
photostatic copies or
other reproductions thereof. Possession of an original
or copy
of any thereof by Seller in no way implies it has
ownership or
other rights thereto except as expressly provided herein.
2.2 Excluded
Assets. Notwithstanding anything
to the
contrary contained in this Agreement, the Acquired
Assets shall
not include any of the following assets, properties,
or rights
(collectively, the "Excluded Assets"):
(a)
all cash and cash
equivalents or accounts
receivables, including
the revenues Seller earns from
generating and selling electricity
from the Barges prior to
the Wind Down Date;
(b)
except to the extent purchased by Buyer on
the
Closing Date, any lubrication oils;
(c)
all power purchase agreements of Seller;
(d)
all real estate and onshore offices, buildings and
fuel storage facilities owned by Seller or
its Affiliates;
(e)
any refund related to Property Taxes paid prior to
the Closing Date in respect of the
Acquired Assets; all Tax
Returns and financial
statements of Seller related to the
Acquired Assets and all
records (including working papers)
related thereto;
(f)
all credits, prepaid expenses, deferred charges,
advance payments,
security deposits, prepaid items and
duties to the extent related to any
Excluded Asset;
(g)
all insurance proceeds which Seller has a right to
receive and that relate to any
Excluded Assets or Excluded
Liabilities or events or
occurrences for claims listed in
Schedule 2.2(g);
(h)
all trade names, trademarks, service
marks or
logos owned by Seller or
its Affiliates, including all of
Seller's right, title and interest in, to
and under the name
"Transcontinental Capital Corporation
(Bermuda) Ltd." or any
related or similar trade names,
trademarks, service marks or
logos;
(i)
insurance policies, prepaid insurance premiums and
any refund or
reduced premium resulting from retroactive
adjustment under, or
cancellation of, any insurance policy
and other similar insurance refunds;
(j)
any Permit that by its terms is not assignable to
Buyer if Seller has used
Commercially Reasonable Efforts to
obtain such assignment;
<PAGE> 18
(k)
all information, files, correspondence, records,
data, plans, reports, contracts and
recorded knowledge, and
all accounting or
other books and records related
to
Acquired Assets in
whatever media retained or stored
including computer
programs and disks, to the
extent
required by applicable
Law to be maintained by Seller
following the Closing Date; and
(l)
all rights of Seller under this Agreement or any
Ancillary Document.
2.3 Assumption of Assumed
Liabilities. In connection with
the purchase by Buyer of the Acquired Assets and pursuant to
the
Assignment and Assumption Agreement, and subject to Article
VII,
Buyer shall assume and thereafter pay, perform and discharge,
and
indemnify the Seller Indemnified Parties against and
hold them
harmless from all debts, obligations and liabilities relating
to
the Acquired Assets, arising from a circumstance
which occurs
after the Closing Date, and whether known
or unknown, fixed,
absolute, contingent, material or
immaterial, matured or
unmatured, other than the Excluded Liabilities,
including the
following (collectively, the "Assumed Liabilities"):
(a)
all obligations and liabilities of Seller
under
the Contracts and Permits assigned to and
accepted by Buyer;
provided that all requisite
consents have been obtained by
Seller;
(b)
Transfer Taxes;
(c)
all debts, liabilities and
obligations not
otherwise enumerated above which are
directly related to the
ownership or operation of any
Acquired Assets to the extent
arising from an event which
occurs after the Closing Date;
and
(d)
all other liabilities expressly allocated to Buyer
in this Agreement or in any
Ancillary Document executed by
Buyer or expressly contemplated
herein.
2.4 Excluded Liabilities.
Notwithstanding the provisions of
Section 2.3 of this Agreement, Buyer
shall not assume the
business operations of Seller or any of the following
liabilities
or obligations of
Seller (collectively, the
"Excluded
Liabilities"):
(a)
any liability of Seller arising out of or relating
to the execution, delivery or
performance of this Agreement
or any of the Seller Ancillary
Documents;
(b)
any Indebtedness for which Seller is liable either
as an obligor, guarantor or otherwise;
(c)
any liability or obligation relating in any way to
any Excluded Asset;
(d)
any liability or obligation (whether scheduled or
not, whether excluded or
not, whether in the Knowledge of
Seller or not)
which should otherwise be disclosed in
accordance with the representations
and warranties given by
Seller Parties to
Buyer in Schedule 4.5, Schedule 4.6,
Schedule 4.8, Schedule 4.9, Schedule
4.10, Schedule 4.16 or
Schedule 4.17 and that arises or has
arisen on or prior to
the Closing Date;
<PAGE> 19
(e)
Income Taxes resulting from the ownership, use or
possession of the Acquired Assets up
until the Closing Date
or the sale of the Acquired Asset;
(f)
all other Taxes of Seller (except for
Transfer
Taxes);
(g)
any and all closure costs (including,
without
limitation, notary fees,
attorneys' costs and taxes) and
disconnection costs (including
any charges assessed by any
Person) incurred as a result
of the disconnection from the
grid, the sale and
transfer of Acquired Assets or the
transactions contemplated herein;
(h)
all debts, liabilities and obligations related to
the Acquired Assets
under warranty agreements given by
Seller on or prior to the Closing
Date;
(i)
all debts, liabilities, fines,
penalties and
obligations (including environmental
liabilities) arising as
a result of the
ownership, use, retirement, disassembly
and/or possession of
the Acquired Assets prior to the
Closing Date; and
(j)
all employee contracts
and amounts due to
employees of Seller and the
tax, labor and social security
obligations in connection
therewith (including the Accrued
Employee Termination Amount).
2.5 Closing; Seller Delivery
Failure.
(a)
Closing. The closing of the
Acquisition shall
occur on the Business
Day during the Delivery Window (as
extended, if applicable,
in accordance with the terms of
this Agreement), specified by Seller
by written notice (the
"Closing Notice") given
to Buyer at least ten (10) days
prior to the Closing
Date, and if Seller fails to
so
designate such a date, the
Closing shall occur on the last
Business Day of the Delivery
Window (the "Closing"). If
Seller has not received the Wind Down
Notice on or prior to
January 1, 2011, then,
notwithstanding anything herein to
the contrary, Seller may, at
its election, establish the
target Closing Date as of a Business Day
on or after April 1,
2011, by giving
the Closing Notice to Buyer at
least
seventy-five (75) days prior
to the expected Closing Date.
The date of the Closing shall
be referred to herein as the
"Closing Date". (If, in
accordance with Section 6.6 (e),
there is a First Closing Date and,
if applicable, a Second
Closing Date, then the term "Closing
Date" shall refer to
the First Closing Date with respect to
the Acquired Assets
acquired by Buyer
on the First Closing Date and,
if
applicable, to the Remaining
Assets acquired on the Second
Closing Date, and, similarly, the term
"Closing" shall refer
to both the closing occurring on the First
Closing Date and,
if applicable, the Second Closing
Date.) The Closing shall
take place at the offices of
King & Spalding LLP, New York
office or at such
other place as the Parties may agree.
Seller shall satisfy all its
obligations hereunder so that
the Closing may occur
promptly and the Seller and Buyer
agree time is of the essence.
(b)
Seller Delivery Failure. If the Closing has
not
occurred with respect
to a Delinquent Barge by
the
applicable Delinquent Date due to any
reason other than as a
result of a Force Majeure
Event or Buyer's failure to be
ready, willing and able
to perform its obligations to be
performed at the
Closing (a "Seller Delivery Failure"),
Buyer shall have the right on the
First Anniversary (i) to
terminate this Agreement if it
<PAGE> 20
has not obtained (or
been able to enforce)
specific
performance of the
Acquisition or of this Agreement, in
which case Buyer, upon written notice to
Seller, may, at any
time prior to the Closing,
terminate this Agreement and be
entitled to its actual damage
amounts (excluding any such
damages to the
extent mitigated by Seller's provision of
Replacement Power and/or payment of Seller
Late Decommission
Payments pursuant to Section 6.6 (f)) on
such day or (ii) to
have access to the site to take possession
of the Delinquent
Barge(s) and the other
related Acquired Assets and deduct
from the Closing Date Payment (or to the
extent the Closing
Date Payment is
not sufficient, Buyer and Seller shall
jointly instruct the Escrow Agent to
deduct such amount from
the Escrow Deposit
for payment to Buyer) all costs and
expenses incurred by Buyer to
prepare them for the Buyer at
Closing as contemplated herein.
Notwithstanding anything in
this Agreement to
the contrary, the total damage amount
(including costs and expenses)
payable by Seller to Buyer
(or to be taken as a deduction from the
Closing Date Payment
or paid from the
Escrow Deposit) in accordance with this
Section 2.5(b) and/or Section
3.1 (c)(xiii) together with
the total amount
of Seller Late Decommission Payments
payable in accordance
with Section 3.1 (c)(v) and Section
6.6 (f) shall not exceed a total of
Fifteen Million Dollars
(U.S. $15,000,000). If
Buyer files an action to seek
specific performance by
Seller of this Agreement or the
Acquisition, (i) Buyer
shall, so long as it desires to
acquire the Acquired
Assets (as determined in its sole
discretion and acting solely
in its own self-interest), in
good faith pursue and, if successful,
enforce that action or,
in the alternative, (ii)
Buyer may instead elect not to
pursue or continue that action at
any time, but, if it does
so prior to the
First Anniversary, Buyer shall forgo its
right to claim damages pursuant to this
Section 2.5 (b).
2.6 Closing
Deliveries by Seller.
At the Closing
(including on the Second Closing
Date, as the case may be),
Seller will deliver or cause to be
delivered to Buyer (unless
delivered previously) the following (each
of which shall be a
condition precedent to Buyer's obligations at the
Closing):
(a)
an official certification from
the Internal
Revenue Directorate (Direcion General de
Impuestos Internos)
in the Dominican
Republic confirming that Seller is in
compliance
(without qualification) with
its fiscal
obligations, dated within thirty (30)
Business Days prior to
the Closing Date;
(b) an
official certification from the Naval Ministry
(Marina de Guerra) in the Dominican
Republic confirming that
the Barges are registered in
the Dominican Republic, dated
within thirty (30) Business Days prior to
the Closing Date;
(c) an
official certification from the General Customs
Directorate (Direccion General de
Aduanas) in the Dominican
Republic confirming that Seller has
no pending Indebtedness
before such institution;
(d)
the Bills of Sale, duly executed by Seller;
(e)
a counterpart of the Transfer Deed
transferring
the Acquired Assets, duly executed by
Seller;
<PAGE> 21
(f)
subject to
the prior receipt
of the
Superintendence Certificate, a counterpart
of the Assignment
and Assumption Agreement, executed by
Seller;
(g)
the Books and Records and all written Contracts,
if any, in Seller's possession;
(h)
a certificate executed
by an authorized
representative of
Seller, certifying and attaching all
requisite resolutions or
actions of Seller's board of
directors approving the
execution and delivery of the
Transfer Deed and the Bill of
Sale and the consummation of
the transfers contemplated on the Closing
Date;
(i)
a certificate of a duly authorized
officer of
Seller Parties
certifying that the representations and
warranties set forth in
Article IV are true and correct in
all material respects as of the Closing
Date, except for (i)
representations and
warranties which are as of a specific
date, which shall
be true and correct in all material
respects as of such date, and (ii) where
the failure to be
true and correct would not have a
Material Adverse Effect,
or have a material adverse effect on the
ability of Seller
to consummate the Acquisition;
(j)
proof of Transfer Notification delivered fifteen
(15) Business Days
prior to the Closing Date to
the
appropriate tax
authorities in the Dominican
Republic
jointly by Buyer and Seller
as well as VAT application as
further described in Section 6.13 ;
(k)
a revised Schedule 2.1(d) updated at the Closing
Date;
(l)
a revised Schedule 4.17 updated at the Wind Down
Date;
(m)
labor transfer agreement for the transfer of those
employees that Buyer expressly accepts in
writing to hire as
of the Closing as contemplated
in Section 6.11 hereof, if
applicable and such
agreement shall be filed with the
appropriate Governmental
Entity of the Dominican Republic
within the notification
period required by applicable Law
and notified to those employees
affected;
(n) a
copy of the Decommission Certificate; and
(o)
the Acquired Assets in the Required
Operating
Condition.
With respect to the certificates specified in
Section 2.6 (a),
Section 2.6 (b), Section 2.6(c) and
Section 2.6 (n), it is
understood (i) that Seller's obligation to obtain such
shall be
limited to using its Commercially Reasonable
Efforts to obtain
and to deliver, or cause to be delivered, such
certificates and
(ii) that in all events, unless obtaining and delivering such
is
expressly waived permanently by Buyer in writing on the
Closing
Date, each such certificate shall remain a condition precedent
to
Buyer's obligations at the
Closing. With respect to
the
Decommission Certificate, prior to the Closing, Seller shall
have
fulfilled (or the Superintendence shall have permanently
waived)
any conditions contained in the Decommission Certificate that
are
required to be fulfilled at or
prior to the dismantling and
removal of the Barges and the
other Generation Assets in
accordance with the terms of this Agreement.
<PAGE> 22
2.7 Closing Deliveries
by Buyer. At the Closing, Buyer
will deliver or cause to be
delivered to Seller (unless
previously delivered) the following (each of which
shall be a
condition precedent to Seller's obligations at the Closing):
(a)
the Closing Date Payment;
(b)
the Bills of Sale, duly executed by Buyer;
(c)
a counterpart of the Transfer Deed
transferring
the Acquired Assets (other
than the Barges), duly executed
by Buyer;
(d)
subject to
the prior receipt
of the
Superintendence Certificate, a counterpart
of the Assignment
and Assumption Agreement executed by
Buyer;
(e)
reasonable proof that the Transfer
Notification
was (so long as
Seller timely provided all
relevant
information) delivered fifteen
(15) Business Days prior to
the Closing Date to the
appropriate tax authorities in the
Dominican Republic jointly by Buyer and
Seller;
(f)
a certificate of a duly authorized officer of the
Buyer certifying that the representations
and warranties set
forth in Article V
are true and correct in all material
respects as
of the Closing
Date, except for (i)
representations and
warranties which are as of a specific
date, in which event they shall be
true and correct as of
such date, and (ii) where the failure to
be true and correct
in all material respects would not have
a material adverse
effect on the ability of Buyer to
consummate the Acquisition;
and
(g)
confirmation that the
preliminary list of
employees to be transferred to Buyer from
Seller, if any, in
accordance with Section 6.11 delivered
before Closing has or
has not changed.
2.8 Local Dominican
Documents. After the Effective Date
and prior to the Effective Escrow Deposit Release Date, Buyer
and
Seller agree to execute and deliver the following:
(a)
Hipoteca Naval, in substantially the form attached
hereto as Exhibit I.
2.9 Security Agreement. After
the Effective Date and prior
to the Effective Escrow Deposit Release Date,
Buyer and Seller
agree to execute and deliver the Security Agreement.
2.10 Escrow Agreement.
Contemporaneously with the execution
of this Agreement, the Parties agree to execute and
deliver the
Escrow Agreement. In accordance with this Agreement, Buyer
shall
deposit the Effective Escrow Deposit and the Escrow Deposit to
be
managed and paid out by the Escrow Agent to the
Seller on the
Effective Escrow Deposit Release Date or at
the Closing (as
applicable) upon joint instruction of both Buyer and Seller.
The
funds deposited in the Escrow Account shall accrue interest;
such
interest shall first be used to pay the Escrow
Agent, and the
remaining amount of interest, if any, shall be
distributed in
accordance with this Agreement.
<PAGE> 23
2.11 Conditions Precedent to Release of
the Effective Escrow
Deposit. As promptly as practicable
following the Effective
Date, the Seller shall deliver, or cause to be delivered
at its
sole cost, the following (which deliveries shall
be conditions
precedent to the obligations of Buyer to direct the
release of
the Effective Escrow Deposit as provided in this Section 2.11
):
(a)
an official certification from
the Internal
Revenue
Directorate (Dirrecion General
de Impuestos
Internos) in the Dominican
Republic confirming that Seller
is in compliance with its
fiscal obligations, dated within
thirty (30) Business
Days of the Escrow Signing Deposit
Release Date;
(b)
an official certification from the Naval Ministry
(Marina de Guerra) in the Dominican
Republic confirming that
the Barges are registered in the Dominican
Republic;
(c) an
official certificate of registration of a valid
and perfected naval mortgage
(hipoteca naval) in the Barges
in the Dominican Republic and a valid and
perfected lien and
security interest in the other
Acquired Assets (other than
the Concession);
(d)
a certificate of a duly authorized
officer of
Seller Parties
certifying that the representations and
warranties set forth in
Article IV are true and correct in
all material respects as of
the Effective Date, except for
(i) representations and
warranties which are as of a
specific date, which
shall be true and correct in all
material respects as
of such date, and (ii) where the
failure to be true
and correct would not have a Material
Adverse Effect, or
have a material adverse effect on the
ability of Seller to consummate the
Acquisition; and
(e)
written confirmation that the Chase Lien has been
satisfied in full and discharged of
record, as evidenced by
a search performed by Buyer's
Bermuda counsel (which search
shall be conducted within five (5)
Business Days following
notice to Buyer from Seller that the
Chase Lien has been so
satisfied and discharged).
With respect to the certificates specified in Section
2.11 (a),
Section 2.11 (b) and Section 2.11 (c), it is understood (i)
that
Seller's obligation shall be limited to using its
Commercially
Reasonable Efforts to obtain and
to deliver or cause to be
delivered, such certificates and (ii) that in all events,
unless
expressly waived permanently by Buyer in writing on the
Effective
Escrow Deposit Release Date, obtaining and delivering
each such
certificate shall remain a condition precedent to the
obligations
of Buyer to direct the release of the Effective Escrow Deposit
as
provided in this Section 2.11 .
Upon the delivery of all
documents and certificates listed above, reasonably
satisfactory
to Buyer, the Buyer shall promptly instruct the Escrow
Agent to
release the Effective Escrow Deposit to Seller
(the "Effective
Escrow Deposit Release Date"). At any time after
the Effective
Escrow Deposit Release Date, it is revealed that any lien
exists
on the Acquired Assets that has priority over Buyer's lien,
then
Seller Parties shall promptly discharge any such lien and if
such
is not discharged within thirty (30) days of its arising then
the
Seller shall deposit in the Escrow Account the
stated value of
such lien if one is stated in a lien filing or
Fifteen Million
Dollars (U.S. $15,000,000) if no amount is so stated and upon
the
satisfaction or
<PAGE> 24
discharge of such lien the amount so
deposited in the Escrow
Account shall be returned to Seller by the Escrow Agent.
2.12 Pre-Effective Date
Inspection. Buyer and Seller shall
jointly conduct, as promptly as reasonably practicable, the
Pre-
Effective Date Inspection. Buyer and Seller agree
to have the
Pre-Effective Date
Inspection conducted
within thirty
(30) Business Days after the date of this Agreement and to
obtain
the results of that Inspection as soon thereafter as
practicably
possible. Buyer shall provide Seller three
(3) Business Days
notice of the date(s) on which Buyer intends to conduct the
Pre-
Effective Date Inspection and allow
representatives of both
Seller and Buyer to be present when
the Pre-Effective Date
Inspection is conducted. Within
thirty (30) days following
receipt of the conclusion of the Pre-Effective Date
Inspection,
Buyer may, if Buyer in its sole discretion so
chooses, either
(i) terminate this Agreement immediately by the
delivery of a
written notice of termination (a "Baseline Termination
Notice"),
or (ii) execute and deliver a
certificate in the form of
Schedule 1.1(h) (the "Effective Date Certificate") which
attaches
thereto the Baseline Hull Conditions and the Baseline
Performance
Levels. During the ten (10) Business Days after the
receipt of
the Effective Date Certificate but not at any
time thereafter,
Seller, in its sole discretion, may
give Buyer a Baseline
Termination Notice that Seller has elected
to terminate this
Agreement pursuant to this Section 2.12 . This
Agreement shall
be deemed immediately terminated upon the delivery of a
Baseline
Termination Notice or if Buyer has not delivered
the Effective
Date Certificate during the aforementioned thirty (30) day
period
allotted therefor.
ARTICLE III
PURCHASE PRICE; ADJUSTMENTS; ALLOCATIONS
3.1 Purchase Price. In
addition to the assumption of the
Assumed Liabilities, in consideration for the sale, transfer
and
delivery of the Acquired Assets, Buyer shall pay to
Seller the
sum of Seventy Million Dollars (U.S.
$70,000,000) (the "Base
Purchase Price") as adjusted pursuant
to this Article III
and, as applicable, the other provisions of this
Agreement.
(a)
Effective Escrow Deposit. Within one (1) Business
Day of the first date
that neither Party has the right to
terminate this Agreement under Section
2.12 (the "Effective
Escrow Deposit Date"), Buyer shall deposit
with Escrow Agent
the sum of Fifteen Million Dollars
(U.S. $15,000,000) as an
initial deposit towards the
Purchase Price (the "Effective
Escrow Deposit").
(b)
Escrow Deposit. Within one (1) Business Day
of
the Effective Escrow
Deposit Release Date, Buyer shall
deposit with the Escrow Agent the
sum of Fifty-Five Million
Dollars (U.S. $55,000,000)
(the "Escrow Deposit"). Any
interest earned and accrued on the Escrow
Deposit while held
by the Escrow Agent in the Escrow Account
minus the fees and
expenses due the
Escrow Agent under the Escrow Agreement
shall be referred to herein as the "Escrow
Interest Amount".
(c)
Closing Payments. At Closing, Buyer shall pay to
Seller an amount (the "Closing Date
Payment"), if positive,
equal to the Base Purchase Price:
(i)
minus the Effective Escrow Deposit; plus
<PAGE> 25
(ii)
the actually invoiced cost of any lubricant oils
included in the Acquired
Assets on the Closing Date as
determined in Section 3.2 below;
plus
(iii) (A)
for any new non-obsolete spare parts
that
have never been used or in service, the
actual invoiced cost
paid by Seller, (B)
for any non-obsolete parts that were
purchased as refurbished from
third parties, but have not,
as of the Closing Date, been put in use or
service by Seller
subsequent to such purchase,
the actual invoiced cost paid
by Seller, and (C) for any
other non-obsolete spare parts
that have been in use or in service
(whether refurbished or
not), seventy percent (70%) of
the actually invoiced cost
paid by Seller (in both cases, converted
into dollars on the
business day before the
Closing Date at the rate published
in the Wall Street
Journal on such date if incurred in
another currency); such non-obsolete
spare parts in Section
3.1 (c)(iii)(A) or Section 3.1 (c)(iii)
(B) shall be in good
and useful condition,
listed in Schedule 2.1 (b) and
included among the
Acquired Assets on the Closing Date in
accordance with the Protocol of Delivery
and Acceptance (the
Parties shall include such items in
Schedule 3.2); plus
(iv)
if the Early Decommission Date
occurs before
January 1, 2011, the Early Decommission
Payment; minus
(v)
the Seller Late Decommission Payments, (if
any)
(if not previously paid), as
determined in accordance with
Section 6.6 (f); minus
(vi) if
applicable, in accordance with Section 6.6 (e),
the Seller Delivery Failure Amount (if
any); minus
(vii)
if Buyer elects Option B, the Repair Costs,
if
any, in accordance with Section 6.6
(d) or Section 6.6 (e);
and minus
(viii)
any amount due Buyer by any Seller Party under
Section 7.1 ; plus
(ix)
any amount due to Seller Parties by Buyer
under
Section 7.2; minus
(x)
to the extent not previously paid by Sellers
to
the Escrow Agent, the
amount of Escrow Shortfall, if any;
minus
(xi) the
Hull Escrow Amount; minus
(xii) the
reasonable estimated costs for the
Known
Hull Repair Issues,
to the extent not already repaired
pursuant to Section 6.6 (a)(iv); minus
(xiii)
any amount due to Buyer by Seller pursuant to
Section 2.5 (b); minus
(xiv)
the Accrued Employee Termination Amount, if not
previously paid by
Seller pursuant to Section 3.1(d)(i);
plus
(xv)
the Buyer Interest Payment, if, but only if, the
Escrow Deposit has
not been paid by Buyer to the Escrow
Agent in accordance with
Section 3.1 (b) on or prior to
March 1, 2009.
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If the Closing Date Payment is
negative, the Seller shall
pay the absolute value thereof to Buyer at the Closing.
At the
Closing, the Escrow Agent shall, in accordance with the terms
of
this Agreement and express written joint instruction of Buyer
and
Seller, disburse to Seller the Escrow Deposit
(less the Hull
Escrow Amount) (towards payment of the Closing Date Payment)
and
the Escrow Interest Amount, if any.
Notwithstanding anything
in this Section 3.1 to
the
contrary, if, pursuant
