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Exhibit
10.1
MEMBERSHIP INTEREST
PURCHASE AND SALE AGREEMENT
THIS MEMBERSHIP INTEREST
PURCHASE AND SALE AGREEMENT (this “Agreement”), dated
and effective as of July 7, 2004, is entered into by and among HLH,
LLC, a Delaware limited liability company formerly known as Delian
Holdings, L.L.C. (“HLH”), Horizon Lines of Puerto Rico,
Inc., a Delaware corporation (“HLPR,” and, collectively
with HLH, “Buyers”), CSX Domestic Shipping Corporation,
a Delaware corporation (“CSX Domestic”), CSX Residual
Company, a Delaware corporation (“CSX Residual,” and,
collectively with CSX Domestic, “Sellers”), CSX
Corporation, a Virginia corporation (“CSX”), and CSX
Alaska Vessel Company, LLC, a Delaware limited liability company
(“CSX Alaska”). All capitalized terms used but not
defined herein shall have the meanings given to them in the Amended
and Restated Limited Liability Company Agreement of Horizon Lines,
LLC (the “Company”), dated as of February 27, 2003, as
heretofore amended, supplemented or otherwise modified (the
“Horizon LLC Agreement”).
WHEREAS, CSX Residual is the
record and beneficial owner of a Membership Interest in the Company
consisting of 54,000 Senior Preferred Units and desires to sell all
such Senior Preferred Units to HLH in exchange for cash and HLH
desires to purchase all such Senior Preferred Units from CSX
Residual.
WHEREAS, CSX Domestic is the
record and beneficial owner of a Membership Interest in the Company
consisting of 6,000 Senior Preferred Units and 100 Common Units and
desires to sell all such Senior Preferred Units and Common Units to
HLPR in exchange for cash, and HLPR desires to purchase all such
Senior Preferred Units and Common Units from CSX
Domestic.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements made herein,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Purchase and Sale of
Membership Interests, etc . Upon the execution and delivery of
this Agreement, the parties hereby agree as follows:
(a) CSX Residual hereby
assigns, sells, transfers and delivers to HLH (for its own
account), and HLH hereby purchases, acquires and accepts from CSX
Residual, (i) all of CSX Residual’s right, title and interest
in and to 54,000 Senior Preferred Units of the Company, free and
clear of all liens, pledges, encumbrances, charges, and claims
thereon, (ii) all of CSX Residual’s right and interest in and
to the Capital Account for such Senior Preferred Units under the
Horizon LLC Agreement and (iii) all of CSX Residual’s right
and interest under the Horizon LLC Agreement in respect of its
status as a Senior Preferred Member and holder of Senior Preferred
Units thereunder;
(b) CSX Domestic hereby
assigns, sells, transfers and delivers to HLPR (for its own
account), and HLPR hereby purchases, acquires and accepts from
CSX
Domestic, (i) all of CSX
Domestic’s right, title and interest in and to 6,000 Senior
Preferred Units of the Company, free and clear of all liens,
pledges, encumbrances, charges, and claims thereon, (ii) all of CSX
Domestic’s right and interest in and to the Capital Account
for such Senior Preferred Units under the Horizon LLC Agreement and
(iii) all of CSX Domestic’s right and interest under the
Horizon LLC Agreement in respect of its status as a Senior
Preferred Member and holder of Senior Preferred Units
thereunder;
(c) CSX Domestic hereby
assigns, sells, transfers and delivers to HLPR (for its own
account), and HLPR hereby purchases, acquires and accepts from CSX
Domestic, (i) all of CSX Domestic’s right, title and interest
in and to 100 Common Units of the Company, free and clear of all
liens, pledges, encumbrances, charges, and claims thereon, (ii) all
of CSX Domestic’s right and interest in and to the Capital
Account for such Common Units under the Horizon LLC Agreement and
(iii) all of CSX’s right and interest under the Horizon LLC
Agreement in respect of its status as a Common Member and holder of
such Common Units thereunder; and
(d) Sellers hereby cease to
be parties to the Horizon LLC Agreement and hereby cease to have
any rights thereunder;
provided, however, that
notwithstanding anything to the contrary in this paragraph 1,
except as contemplated in paragraph 5 of this Agreement, Sellers
are not releasing or transferring to Buyers any rights or claims,
absolute or contingent, under the Horizon LLC Agreement in respect
of (X) indemnities contained therein, including, without
limitation, Section 6.6 thereof, and (Y) breaches of covenants or
other obligations thereunder arising on or prior to the effective
date of this Agreement, and Sellers shall retain all such rights
and claims.
2. Consideration
.
(a) Concurrently with the
execution and delivery of this Agreement, HLH is paying to CSX
Residual, and CSX Residual accepts, $52,886,279.70 in cash by wire
transfer of immediately available funds from an account in the name
of H-Lines Holding Corp. to the account designated on Exhibit A
hereto in full payment in exchange for the transfer of the Senior
Preferred Units described above in paragraph 1(a).
(b) Concurrently with the
execution and delivery of this Agreement, HLPR is paying to CSX
Domestic, and CSX Domestic accepts, $5,876,253.30 in cash by wire
transfer of immediately available funds from an account in the name
of H-Lines Holding Corp. to the account designated on Exhibit A
hereto in full payment in exchange for the transfer of the Senior
Preferred Units described above in paragraph l(b).
(c) Concurrently with the
execution and delivery of this Agreement, HLPR is paying to CSX
Domestic, and CSX Domestic accepts, $100,000 in cash by
wire
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transfer of immediately
available funds from an account in the name of H-Lines Holding
Corp. to the account designated on Exhibit A hereto in full payment
in exchange for the transfer of the Common Units described above in
paragraph l(c).
3. Representations and
Warranties of Buyers . Buyers hereby represent and warrant to
Sellers as follows:
(a) Authority . Buyers
have all requisite corporate or limited liability company power and
authority to execute and deliver this Agreement and perform their
respective obligations hereunder. The execution of this Agreement
by Buyers and the delivery and performance by Buyers of this
Agreement have been duly and validly authorized. Any and all
corporate acts and other proceedings required for the due and valid
authorization, execution, delivery and performance by Buyers of
this Agreement and the consummation by Buyers of the transfer of
the Membership Interests to Buyers have been validly and
appropriately taken.
(b) Enforceability .
This Agreement is a legal, valid and binding obligation of Buyers,
enforceable against Buyers in accordance with its terms, except
that enforcement may be limited by bankruptcy, reorganization,
insolvency and other similar laws and court decisions relating to
or affecting the enforcement of creditors’ rights generally
and by general equitable principles.
(c) No Conflicts . The
execution and delivery of this Agreement by Buyers, and the
performance by Buyers of their respective obligations under this
Agreement, will not result in any conflict with, or result in a
violation or breach of any of the provisions of, or constitute
(with or without due notice, lapse of time or both) a default
under, or give rise to a right of termination, cancellation or
acceleration of any obligation under, or result in the creation of
any lie
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