_______________________________________________________________________________
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
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
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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
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
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.
"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, "▇▇▇▇▇▇▇▇ Del Norte",
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇-▇▇▇▇-▇, and the Generation Assets
owned and operated by Seller thereon, which is currently located
at Avenida La Marina (Avenida del Puerto) Muelle Timbeque, Santo
▇▇▇▇▇▇▇, 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, "▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇, 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
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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 ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, or Santo ▇▇▇▇▇▇▇, 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).
3
"▇▇▇▇▇ ▇▇▇▇" 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).
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).
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
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
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).
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"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
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).
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
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.
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"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
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).
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"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.
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);
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.
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;
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;
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
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
(▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇) 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;
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(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 ▇▇▇▇ 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.
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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.
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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
(▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇) 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 ▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇ 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
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
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(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.
26
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 to the terms of this Agreement, the
"Closing" is divided into two "Closings", one being held on the
First Closing Date and the other being held on the Second Closing
Date, or, if at a Closing, the Acquired Assets being transferred
to Buyer consist of less than both Barges and the other Acquired
Assets, then the Closing Date Payment and the disbursement of the
Escrow Deposit and the Escrow Interest Amount shall be adjusted
as otherwise provided by the terms of this Agreement and the
Escrow Agreement.
(d) Accrued Employee Termination Amount. To the
extent Seller and Buyer decide to transfer, and Buyer
decides to assume, certain employees of Seller at the
Closing, Seller shall calculate the Accrued Employee
Termination Amount per employee and, subject to confirmation
by Buyer, either (i) Seller shall pay such amount and give
satisfactory proof thereof to Buyer or (ii) such amount
shall be deducted from the Closing Date Payment, whereby if
such amounts are deducted from the Closing Date Payment,
Buyer shall promptly pay such amounts on behalf of Seller
to those assumed and transferred employees in accordance
with applicable Law after the transfer and assumption of
such employee. Any miscalculation of the Accrued Employee
Termination Amount shall be paid by the Party in whose
favor the miscalculation was made and such payment shall not
be subject to the limitations of Section 7.5 or Section 7.6.
3.2 Payment of the Closing Date Payment. No later than
forty-five (45) days prior to the Closing Date, Seller shall
deliver to Buyer for its review an inventory of spare parts
expected to be included among the Acquired Assets as contemplated
in Section 3.1 above. No later than fifteen (15) days prior to
the Closing Date, Seller shall deliver to Buyer for its review
an inventory of all lubricant oils and spare parts included among
the Acquired Assets as contemplated in Section 3.1 above,
segregating the spare parts into the three categories provided in
clauses (A), (B) and (C) of Section 3.1 (c)(iii), reflecting the
respective purchase dates of the spare parts, and setting forth
the cost of such Acquired Assets listed on Schedule 3.2 (the
"Inventory Schedule"). To the extent that the cost of any of the
lubrication oil set forth in the Inventory Schedule was paid in a
currency other than Dollars, such sums shall be converted to
Dollars at the exchange rate published in the Wall Street Journal
one Business Day prior to the Closing. Buyer shall be afforded
the opportunity to review during normal working hours the books
and records of Seller pertaining to the calculations set forth in
the Inventory Schedule to confirm the accuracy of such inventory
and calculations. Notwithstanding anything herein to the
contrary, it is understood that (i) the spare parts included in
the Acquired Assets include only spare parts which are as of the
Closing Date in good and useful condition and which are not
obsolete and (ii) Buyer may, at its election, exclude from the
Acquired Assets any or all of the lubrication oil which would
have otherwise been included as Acquired Assets by giving Seller
written notice (prior to the Closing Date) of Buyer's election to
exclude such lubrication oil. At the Closing, Buyer shall pay to
Seller the Closing Date Payment by wire transfer of immediately
27
available funds to a bank account (or accounts) as shall have
been designated in writing by Seller to Buyer.
3.3 Allocation of Purchase Price. The Purchase Price shall
be allocated to all Acquired Assets in accordance with the
allocations set forth on Schedule 3.3, which shall be
supplemented to account for those Acquired Assets not reflected
thereon but included in the Inventory Schedule. Allocations to
the extent enumerated on Schedule 3.3 shall be binding on Buyer
and Seller and their respective Affiliates for Tax purposes, and
none of the Parties or their respective Affiliates shall take,
for Tax purposes, any position in any Tax Return that is
inconsistent with such allocation.
3.4 Nonassignability of Assets. Notwithstanding anything
to the contrary contained in this Agreement, to the extent the
sale, assignment, sublease, transfer, conveyance or delivery or
attempted sale, assignment, transfer, conveyance or delivery to
Buyer, of any Contract or other asset that would be an Acquired
Asset or any claim or right or any benefit arising thereunder or
resulting therefrom is prohibited by any applicable Law or would
require any authorizations, approvals, consents or waivers of a
Governmental Entity or other third party, and such
authorizations, approvals, consents or waivers shall not have
been obtained prior to the Closing, if Buyer, in its sole
discretion, so elects in writing, the Closing shall proceed
without the sale, assignment, sublease, transfer, conveyance or
delivery of such Contract or other asset and this Agreement shall
not constitute a sale, assignment, sublease, transfer, conveyance
or delivery of such Contract or other asset or an attempt
thereof. If the Closing proceeds (as a result of Buyer's
election above) without the sale, transfer, conveyance, sublease,
assignment or delivery of any such Contract or other asset, then,
following the Closing, the parties shall use Commercially
Reasonable Efforts, and cooperate with each other, to obtain
promptly such authorizations, approvals, consents or waivers;
provided, however, that Buyer shall be required to pay any
consideration for any such authorization, approval, consent or
waiver other than filing, recordation or similar fees which shall
be paid by the party who is required by Law or course of dealing
to do so. Pending such authorization, approval, consent or
waiver, the Parties shall cooperate with each other in any
mutually agreeable, reasonable and lawful arrangements designed
to provide to Buyer the benefits of use of such Contract or other
asset and to Seller the benefits, including any indemnities, that
they would have obtained had the Contract or other asset been
conveyed to Buyer at the Closing. To the extent that Buyer is
provided the benefits pursuant to this Section 3.4 of any
Contract or other asset, Buyer shall perform for the benefit of
the other Persons that are parties thereto the obligations of
Seller or any Affiliate of Seller thereunder and any related
liabilities that, but for the lack of an authorization, approval,
consent or waiver to assign such liabilities to Buyer, would be
Assumed Liabilities and such obligations and liabilities shall
for the purposes of Article VII be deemed to be Assumed
Liabilities. Once authorization, approval, consent or waiver for
the sale, assignment, sublease, transfer, conveyance or delivery
of any such Contract or other asset not sold, assigned,
subleased, transferred, conveyed or delivered at the Closing is
obtained, Seller shall or shall cause its Affiliates to assign,
transfer, convey and deliver such Contract or other asset to
Buyer at no additional cost to Buyer.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES
Subject to the terms and conditions and limitations set
forth in this Agreement, Seller Parties hereby, jointly and
severally, represent and warrant, as of (i) the date of this
Agreement, (ii) the Effective Escrow Deposit Date, (iii) the
Effective Escrow Deposit Release Date and (iv) the Closing Date
(including the Second Closing Date, as the case may be), to Buyer
as follows:
4.1 Organization. Seller is a company limited by shares
validly existing under the laws of Bermuda and has the corporate
power and authority to own, lease and operate the Acquired
Assets. Seller Parent is a corporation validly existing under the
laws of the State of Delaware, United States.
4.2 Authorization. Seller Parties have the power and
authority to execute and deliver this Agreement and each Seller
Ancillary Document (as applicable), and to perform their
obligations hereunder and thereunder and to consummate the
Acquisition. This Agreement has been, and the Seller Ancillary
Documents shall be as of the Closing Date, duly authorized,
executed and delivered by Seller Parties (as applicable) and do
or shall, as the case may be, when duly executed by all parties
and delivered by Seller Parties (as applicable), constitute the
valid and binding agreements of Seller Parties (as applicable),
enforceable against Seller Parties (as applicable) in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency and other similar Laws affecting the
enforceability of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies.
4.3 Consents and Approvals; No Violations. Neither the
execution and delivery of this Agreement or the Seller Ancillary
Documents by Seller Parties (as applicable) nor the consummation
of the Acquisition will (a) conflict with or result in any breach
of any provision of the charter documents of Seller Parties;
(b) require any filing with, or the obtaining of any permit,
authorization, consent or approval of, any Governmental Entity;
(c) to the Knowledge of Seller, violate, conflict with or result
in a default under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions
or provisions of any agreement, lease or other contract,
instrument or obligation (including any power sales agreement);
or (d) to the Knowledge of Seller, violate any Law applicable to
Seller Parties; excluding from the foregoing clauses (b), (c) and
(d) such requirements, violations, conflicts, defaults or rights
(i) which would not adversely affect the ability of Seller
Parties to consummate the Acquisition or (ii) which become
applicable as a result of the business or activities in which
Buyer is or proposes to be engaged or as a result of any acts or
omissions by, or the status of or any facts pertaining to, Buyer.
4.4 Title. At the Closing, Seller will have and convey to
Buyer title to all Acquired Assets, free and clear of any Liens,
except for Permitted Liens.
4.5 Absence of Material Adverse Effect. Except as set
forth on Schedule 4.5, such:
(a) Seller has owned and operated the Acquired Assets
in all material respects in the ordinary course in
accordance with Prudent Standards and Practices; and
29
(b) there has been no Material Adverse Effect since
January 1, 2008.
The matters listed on Schedule 4.5 are applicable only to the
representations and warranties as at the date of the signing of
this Agreement; as of the Effective Escrow Deposit Date, as of
the Effective Escrow Deposit Release Date, and as of the Closing
Date, such schedule does not apply to matters occurring after the
date hereof and there are no exceptions as to matters occurring
after the date hereof.
4.6 Litigation. Except as set forth on Schedule 4.6, as of
the date of this Agreement, there is no action, suit or
proceeding pending or, to the Knowledge of Seller after due
inquiry, threatened against Seller by or before any Governmental
Entity or brought by any third party that would be an Assumed
Liability if existing after the Closing. Except as set forth on
Schedule 4.6, as of the date hereof none of the Acquired Assets
is subject to any outstanding order, writ, judgment, award,
injunction or decree of any Governmental Entity of competent
jurisdiction or any arbitrator or arbitrators.
4.7 Compliance with Applicable Law. As of the date of this
Agreement, Seller has received no notice that the Seller's
ownership or use of the Acquired Assets is in violation of any
applicable Law, except for violations that have been rectified,
and except as disclosed in Schedule 4.16.
4.8 Contracts. All Contracts are in full force and effect
and, assuming the due authorization, execution and delivery by
each other party thereto, are currently enforceable against
Seller (and any Affiliate of Seller party thereto), and as of the
Closing will be (if not scheduled to expire by their respective
terms on or prior to the Closing Date), enforceable by Seller and
any Affiliate of Seller party thereto in accordance with the
express terms thereof, subject to bankruptcy, insolvency,
reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors' rights and to
general principles of equity. There does not exist under any
material Contract any event of default or event or condition
that, after notice or lapse of time or both, would constitute a
violation, breach or event of default thereunder as of the date
hereof on the part of Seller or any Affiliate of Seller, or as of
the Closing on the part of Seller or any Affiliate of Seller,
except as set forth on Schedule 4.8. No counterparty to any
Contract has received written notification from Seller or any of
its Affiliates that such counterparty is in breach or default
under any Contract. There are no oral contracts.
4.9 Taxes. (a) All Tax Returns required to be filed by or
with respect to Seller, the Acquired Assets, Assumed Liabilities
or the Power Business (including any consolidated, combined or
unitary Tax Return that includes Seller) have been timely filed
or as listed in Schedule 4.9 are being contested in good faith
and Seller expects to prevail;
(b) all Taxes required to be shown on such Tax Returns
or otherwise due by or with respect to Seller, the Acquired
Assets or the Assumed Liabilities have been timely paid or,
as are listed on Schedule 4.9, are being contested in good
faith;
(c) all such Tax Returns (insofar as they relate to
Seller, the Acquired Assets, the Assumed Liabilities, or the
Power Business) are true, correct and complete;
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(d) no adjustment relating to such Tax Returns has
been proposed formally or informally by any Governmental
Authority (insofar as either relates to Seller, the Acquired
Assets or its business or could result in liability of
Seller on the basis of joint and/or several liability) and,
to the Knowledge of Seller, after due inquiry, no basis
exists for any such adjustment;
(e) except as listed in Schedule 4.9, there are no
pending or, to the Knowledge of Seller after due inquiry,
threatened claims of action for the assessment or collection
of Taxes against Seller, the Acquired Assets, the Assumed
Liabilities, or the Power Business or any Person that was
included in the filing of a Tax Return with Seller on a
consolidated, combined or unitary basis;
(f) there are no tax Liens on any of the Acquired
Assets;
(g) except as listed in Schedule 4.9, there are no
requests for information outstanding that could affect the
Taxes relating to the Seller, the Acquired Assets, Assumed
Liabilities or the Power Business;
(h) Seller has not received any notice or inquiry from
any jurisdiction where Seller does not currently file Tax
Returns to the effect that such filings may be required with
respect to its business or that its business may otherwise
be subject to taxation by such jurisdiction;
(i) to the Knowledge of the Seller, after due inquiry,
Seller has properly and timely withheld, collected or
deposited and caused to be paid all amounts required to be
withheld, collected or deposited in respect of Taxes;
(j) to the Knowledge of the Seller, after due inquiry,
there are no Tax investigations, inquiries or audits by any
Tax authority in progress relating to the Acquired Assets or
the business, nor has Seller received any written notice
indicating that a Governmental Authority intends to conduct
such an audit or investigation; and
(k) Seller is otherwise in compliance with Tax Laws.
4.10 Permits. Except as set forth in Schedule 4.10, as of
the date of this Agreement, the Permits include all licenses and
permits necessary to utilize and operate the Acquired Assets as
they are currently operated for the generation of electricity in
accordance with applicable Law. As of the Closing Date, Seller
has all permits and licenses, including the Concession, necessary
to utilize and operate the Acquired Assets for the generation of
electricity in accordance with applicable Law.
4.11 Barges and Tangible Personal Property. The Barges, the
Generation Assets and the Tangible Personal Property are, as of
the date of this Agreement, the Effective Escrow Deposit Date,
and the Effective Escrow Deposit Release Date in the condition as
evidenced by the Pre-Effective Date Inspection and operate in
accordance with the Baseline Performance Levels, and, to the
Knowledge of Seller Parties, there is no reason that the Barges,
the Generation Assets and the Tangible Personal Property should
not be able, as of the date of this Agreement, the Effective
Escrow Deposit Date, and the Effective Escrow Deposit Release
Date
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to operate in accordance with the Baseline Performance
Levels. The hulls of the Barges are, as of the date of this
Agreement, the Effective Escrow Deposit Date, and the Effective
Escrow Date Deposit Release Date, in the condition as evidenced
by the Pre-Effective Date Inspection and meet the Baseline Hull
Condition, and, to the Knowledge of Seller Parties, there is no
reason that the hulls of the Barges should not be able, as of the
date of this Agreement, the Effective Escrow Deposit Date, and
the Effective Escrow Deposit Release Date, to remain in the
Baseline Hull Condition.
4.12 Certain Fees. No Seller Party has employed any broker,
finder, investment banker, or other intermediary or incurred any
liability for any investment banking fees, financial advisory
fees, brokerage fees, finders' fees or other similar fees in
connection with this Agreement or the Acquisition.
4.13 Conduct in the Ordinary Course. Seller has not failed
to pay any material obligation to any creditor or allowed any
Permit or Environmental Permit relating to its business to lapse
(other than in accordance with its terms) or to be terminated or
failed to renew any insurance policy (other than to replace such
policy with a new policy of the same coverage and quality),
Permit (other than to replace such Permit with a new Permit) or
Environmental Permit (other than to replace such permit with a
new Permit) that is scheduled to terminate or expire within
thirty (30) days of the Closing.
4.14 Insurance. All assets, properties and risks of Seller
relating to the Acquired Assets or the Power Business are covered
and insured by the policies set forth on Schedule 4.14, and all
premiums with respect to those policies have been paid and are
current.
4.15 Truth. No representation or warranty of any Seller
Party in this Agreement, nor any written statement or certificate
furnished or to be furnished to Buyer by a Seller Party pursuant
to Section 2.6 of this Agreement or pursuant to any Seller
Ancillary Document, contains or, in the case of such certificate,
will contain any untrue statement of a material fact, or omits
or, in the case of such certificate, will omit a material fact
necessary to make the statements contained herein and therein not
misleading. All data and documents contained in the electronic
data provided to Buyer by Seller in connection with the
Acquisition and which are listed in Schedule 4.15 hereto
represent accurate and complete copies of all originals of such
data and documents. Seller has delivered a copy of Sections 4.5
and 4.11 of this Agreement to those individuals listed on
Schedule 1.1(c) under the heading: "Persons Reviewing
Sections 4.5 and 4.11" and requested that each of them read those
Sections and advise Seller in writing of any inaccuracies that
they believed were contained in those Sections. Seller also
delivered the final execution version of this Agreement to each
of the other individuals listed on Schedule 1.1(c) prior to its
execution and requested that each one of them read this Agreement
and advise Seller in writing of any inaccuracies that they
believed were contained herein.
4.16 Environmental and Other Permits and Licenses; Related
Matters. Except as set forth in Schedule 4.16, (a) Seller is in
material compliance with, and for the past three (3) years has
been in material compliance with, all applicable Environmental
Laws and all Environmental Permits. All past noncompliance with
Environmental Laws or Environmental Permits has been resolved
without any pending, ongoing or future obligation, cost or
liability, and there is no requirement proposed for adoption or
implementation under any Environmental Law or
32
Environmental Permit; and (b) there are no environmental claims
pending or, to the Knowledge of Seller after due inquiry,
threatened against Seller or the Generation Assets, and, to the
Knowledge of Seller after due inquiry, there are no circumstances
that can reasonably be expected to form the basis of any such
environmental claim, including with respect to any off-site
disposal location currently or formerly used by Seller or any of
its predecessors or with respect to its or their previously
owned or operated facilities. Notwithstanding anything in this
Agreement to the contrary, no representation is made in Section
4.7 or this Section 4.16 with respect to compliance with noise
standards or requirements. The matters listed on Schedule 4.16
are applicable only to the representations and warranties as at
the date of the signing of this Agreement, the Effective Escrow
Deposit Date, and as of the Effective Escrow Deposit Release Date;
however, as of the Closing Date, such schedule does not apply and
there are no exceptions.
4.17 Labor Matters and Employee Benefits. Seller is in
compliance in all material respects with all labor, social
security, construction fund related and employment related Laws
related to the Acquired Assets and the Power Business. The
names, positions, salaries, bonuses, benefits and years of
longevity, respectively, of those people (the "DR Employees")
employed by Seller in the Power Business, as listed in
Schedule 4.17 as amended and restated at the Closing Date, are
true and correct. There are no additional bonuses or other
benefits payable to the DR Employees other than those listed on
Schedule 4.17. The DR Employees are not unionized, and there is
no collective bargaining agreement with the DR Employees. To the
Knowledge of Seller, there is no union activity or threat of
unionization for the DR Employees.
4.18 Absence of Certain Payment Obligations. As of the date
of this Agreement, Seller owes no payment obligations to:
(i) the City Hall (Ayuntamiento de Santo ▇▇▇▇▇▇▇) arising out of
the General Electricity Law and attributable to the Barges and
(ii) the Fossil Fuels Department of the Ministry of Treasury
(Departamento de Combustibles de la Secretaria de Estado de
Hacienda) arising out of the Import and purchase of fuels and
attributable to the Barges of the Power Business.
4.19 No Other Representations or Warranties. SELLER MAKES
NO REPRESENTATION OR WARRANTY TO BUYER WITH RESPECT TO ANY
PROJECTIONS, ESTIMATES OR BUDGETS HERETOFORE DELIVERED TO OR MADE
AVAILABLE TO BUYER, FUTURE REVENUES, EXPENSES OR EXPENDITURES OR
FUTURE RESULTS OF OPERATIONS. IN ADDITION, EXCEPT AS EXPRESSLY
COVERED BY A REPRESENTATION AND WARRANTY CONTAINED IN THIS
ARTICLE IV OR A SELLER ANCILLARY DOCUMENT OR A CERTIFICATE
CONFIRMING THE ACCURACY THEREOF AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY TO BUYER WITH RESPECT TO ANY OTHER
INFORMATION OR DOCUMENTS (FINANCIAL OR OTHERWISE) MADE AVAILABLE
TO BUYER OR ITS COUNSEL, ACCOUNTANTS OR ADVISERS WITH RESPECT TO
SELLER, THE BARGES, THE ACQUIRED ASSETS OR THE ASSUMED
LIABILITIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV OR
A SELLER ANCILLARY DOCUMENT OR A CERTIFICATE CONFIRMING THE
ACCURACY THEREOF AT CLOSING, SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF
THE ACQUIRED ASSETS, ITS LIABILITIES OR OPERATIONS. BUYER HEREBY
ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT SPECIFICALLY
SET FORTH IN THIS AGREEMENT,
33
BUYER IS PURCHASING THE ACQUIRED ASSETS ON AN "AS-IS" BASIS
SUBJECT TO SELLER'S OBLIGATIONS HEREUNDER. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, SELLER MAKES NO REPRESENTATION
OR WARRANTY REGARDING ANY ASSETS OTHER THAN THE ACQUIRED ASSETS
OR ANY LIABILITIES OTHER THAN THE ASSUMED LIABILITIES, AND NONE
SHALL BE IMPLIED AT LAW OR IN EQUITY.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Subject to the terms, conditions and limitations set forth
in this Agreement, Buyer hereby represents and warrants, as of
the date hereof, as of the Effective Escrow Deposit Date, and as
of the Closing Date, to Seller Parties as follows:
5.1 Organization. Buyer is a corporation validly existing
under the laws of Barbados and with a branch registered in the
Dominican Republic.
5.2 Authorization. Buyer has the requisite power and
authority to execute and deliver this Agreement and each Buyer
Ancillary Document, and to perform its obligations hereunder and
thereunder and to consummate the Acquisition. This Agreement has
been, and Buyer Ancillary Documents shall be as of the Closing
Date, duly authorized, executed and delivered by Buyer and do or
shall, as the case may be, when duly executed by all parties and
delivered by Buyer, constitute the valid and binding agreements
of Buyer, enforceable against Buyer in accordance with their
respective terms, subject to applicable bankruptcy, insolvency
and other similar Laws affecting the enforceability of creditors'
rights generally, general equitable principles and the discretion
of courts in granting equitable remedies.
5.3 Consents and Approvals; No Violations. Neither the
execution and delivery of this Agreement or the Buyer Ancillary
Documents by Buyer nor the consummation of the Acquisition will
(a) conflict with or result in any breach of any provision of the
charter documents of Buyer; (b) require any filing with, or the
obtaining of any material permit, authorization, consent or
approval of, any Governmental Entity; (c) to the Knowledge of
Buyer, violate, conflict with or result in a default (or any
event which, with notice or lapse of time or both, would
constitute a default) under, or give rise to any right of
termination, cancellation or acceleration under, any of the
material terms, conditions or provisions of any agreement, lease
or other contract, instrument or obligation to which Buyer is a
party or by which Buyer or any of its assets may be bound; or
(d) to the Knowledge of Buyer, violate any Law, order, injunction
or decree applicable to Buyer; excluding from the foregoing
clauses (b), (c) and (d) such requirements, violations,
conflicts, defaults or rights (i) which would not adversely
affect the ability of Buyer to consummate the Acquisition or
(ii) which become applicable as a result of any acts or omissions
by, or the status of or any facts pertaining to, Seller.
5.4 Litigation. There is no claim, action, suit,
proceeding or governmental investigation pending or, to the
Knowledge of Buyer, threatened against Buyer, by or before any
Governmental Entity or by any third party which challenges the
validity of this Agreement or which would be reasonably likely to
adversely affect or restrict Buyer's ability to consummate the
Acquisition.
34
5.5 Certain Fees. Buyer has not incurred any liability for
any investment banking fees, financial advisory fees, brokerage
fees, finders' fees, or other similar fees in connection with
this Agreement or the Acquisition which would be payable by
Seller.
5.6 Buyer Qualifications. Buyer is qualified to obtain all
consents and approvals required hereunder and there are no
conditions in existence, which could reasonably be expected to
delay, impede or condition the receipt by Buyer of any of such
consents or approvals.
5.7 Independent Review. Subject to Section 4.15, Buyer has
conducted its own independent review and analysis of the Acquired
Assets and the Assumed Liabilities, based on those statements
made by, and those documents and records provided by, Seller and
actual physical inspections conducted by Buyer, and acknowledges
that Buyer has been provided access to the premises of Seller for
this purpose.
ARTICLE VI
COVENANTS
6.1 Pre-Closing Covenants. The Parties hereby agree that,
except as otherwise expressly provided herein, Seller will
continue to have sole and exclusive possession of and right to
use and operate the Acquired Assets for its own account, using
good utility practice and in compliance with applicable Laws,
until the Wind Down Date. Seller agrees that, during the period
from the date of this Agreement to the Wind Down Date, except as
(a) contemplated by this Agreement or the Ancillary Documents,
(b) required by applicable Law or (c) otherwise consented to by
Buyer (which consent shall not be in the case of clause (ii) or
(iii) below unreasonably withheld) in advance expressly in
writing, Seller shall:
(i) not sell, encumber or dispose of any Acquired
Asset;
(ii) pay any amounts that become due and owing by
Seller to the tax authorities of the Dominican Republic in
connection with the import and purchase of fuel;
(iii) not enter into new contracts, which would
constitute Assumed Liabilities nor cancel, amend, modify,
terminate, replace or waive or fail to enforce any right or
default or settle any claim under any Contract or agree to
do any of the foregoing; and
(iv) use Commercially Reasonable Efforts to ensure
that, as of the Closing Date, the Acquired Assets will
include the spare parts specified in Schedule 2.1(b) in the
condition required by Section 3.1 .
6.2 Operation and Maintenance of Acquired Assets.
(a) Maintenance. During the period commencing on the
date hereof and ending on the Wind Down Date, Seller shall
operate, maintain and preserve, at its sole cost and expense,
the Barges (including the hulls thereof) and the other
Acquired Assets in accordance with Prudent Standards and
Practices and Hull Maintenance, Seaworthy (in the case of
the Barges), so that the Barges' hulls meet the Baseline
Hull Condition and the Acquired Assets otherwise operate
(through and until the Generation Assets cease to
35
operate) at the Baseline Performance Levels (provided,
with respect to the Noise Emissions Baseline, Seller's
obligations shall be limited as provided in Section 4.F.3 of
Schedule 1.1(d)) (collectively, the "Required Operating
Condition"). It is understood that the requirements of this
Section 6.2 shall be deemed to be satisfied if Seller has
operated, maintained and preserved the Acquired Assets
during the period commencing on the date hereof and ending
on the Wind Down Date consistent with Prudent Standards and
Practices and Hull Maintenance and so that the Barges' hulls
meet the Baseline Hull Conditions and the Acquired Assets
otherwise operate (through and until the Generation Assets
cease to operate) at the Baseline Performance Levels. With
respect to the hulls of the Barges, as of the date of this
Agreement, Seller shall perform the Hull Maintenance in a
prompt manner consistent with Prudent Standards and
Practices. As promptly as reasonably possible following the
date hereof, Seller shall cause the repairs referred to
Schedule 4.5 to be completed. Seller will furnish Buyer
with a maintenance report by the fifteenth (15th) day of
each month until the Second Closing in the form set forth in
Exhibit J.
(b) Decommission. From the Wind Down Date to the
Closing Date, Seller shall safeguard and maintain the
condition of the Acquired Assets as they are prepared for
delivery to Buyer in a manner consistent with Protocol of
Delivery and Acceptance.
(c) Expenses. All expenses in respect of the Acquired
Assets prior to the Closing Date shall be for the sole
account of Seller.
(d) Insured Events. If, prior to the Closing Date,
the Acquired Assets are damaged or destroyed due to any
event (the "Insured Event"), then, Seller shall promptly
notify Buyer in a detailed writing thereof and within
forty-five (45) days following the occurrence of the Insured
Event, Seller shall obtain and deliver to Buyer a written
estimate of the total costs and the repair time required to
complete the actions necessary to replace, restore or repair
the Acquired Assets to the Required Operating Condition.
6.3 Access to Information. Subject to the restrictions of
any applicable Law between the date hereof and the Closing,
Seller shall:
(a) give Buyer and its authorized representatives
reasonable access to all books, records, offices and other
facilities and properties of or relating to the Acquired
Assets and the Assumed Liabilities (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); and
(b) permit Buyer to make such inspections thereof as
Buyer may reasonably request; provided, however, that any
such investigation shall be conducted during normal business
hours and in such a manner as to not interfere unreasonably
with the business operations of Seller.
6.4 Consents.
(a) Joint Efforts. Each of Seller and Buyer shall
cooperate and use its Commercially Reasonable Efforts to
obtain all licenses, permits, consents, approvals,
36
authorizations, qualifications and orders of Governmental
Entities and other third parties necessary to assign the
Contracts and to consummate the Acquisition. In addition to
the foregoing, Buyer agrees to provide such information
relating to its financial capability, resources and
creditworthiness as may be reasonably requested by any third
party whose consent or approval is sought in connection with
the Acquisition.
(b) Releases. After the Closing Date, Buyer and
Seller shall use Commercially Reasonable Efforts (i) to
promptly cause Seller or any Affiliate of Seller, as the
case may be, to be released and discharged from any and all
Assumed Liabilities and (ii) to promptly cause Buyer to be
substituted in the place of Seller or any of the Affiliates
of Seller, as the case may be, for all purposes under the
Contracts.
6.5 Further Assurances. Each of Seller and Buyer shall
cooperate, and use Commercially Reasonable Efforts to take, or
cause to be taken, all action, and to do, or cause to be done,
all things necessary, proper or advisable under applicable Laws
to consummate the Acquisition.
6.6 Wind Down.
(a) Wind Down.
(i) Preparation for Delivery. After the date hereof,
Buyer will deliver to Seller the Wind Down Notice.
Notwithstanding anything herein to the contrary, however, it
is understood that the Wind Down Date shall not be a date
prior to October 1, 2010. On the Wind Down Date, Seller
will stop operating the Acquired Assets and will proceed to
prepare the Acquired Assets for delivery to Buyer in
accordance with the Protocol of Delivery and Acceptance.
Seller shall undertake all steps necessary to ensure that
the Closing Date occurs during the Delivery Window. In all
circumstances, the place of delivery for the Acquired Assets
(the "Delivery Point") shall be at their current location in
Santo ▇▇▇▇▇▇▇, Dominican Republic.
(ii) Baseline Performance Levels. After the Buyer has
delivered to the Seller the Wind Down Notice and (unless
otherwise expressly directed by Buyer in the Wind Down
Notice not to conduct such tests at all) on such dates as
mutually selected by Buyer and Seller to permit the
completion of the applicable tests as close to the Wind Down
Date as reasonably practicable but not in any event more
than sixty (60) days after the date of Seller's receipt of
the Wind Down Notice (such sixty (60) day period being
referred to herein as the "Final Testing Period"), Seller
shall, in the presence of representatives of Buyer, test the
Generation Assets in accordance with the Performance Tests
to determine if the Barges are in the Required Operating
Condition. The costs of the Performance Tests shall be
borne as provided in Schedule 1.1(d).
(iii) Hull Inspection. After Buyer has delivered to
the Seller the Wind Down Notice, Seller shall permit Buyer,
on a mutually agreed Business Day, which is at least sixty
(60) days prior to the Wind Down Date, to inspect the
Barges' hulls in accordance with the Hull Test Guidelines to
determine if the Barges' still meet the Baseline Hull
Condition. If a Barge does not meet the Baseline Hull
Condition, then Seller shall
37
promptly repair the Barge(s) so that the hull(s) of the
Barge(s) meet the Baseline Hull Condition by the last day of
the Delivery Window or, if not so repaired, a Minor Delivery
Failure shall be deemed to have occurred. Following the
Closing with respect to a Barge(s), Buyer shall, at its
election, be permitted to conduct, at its own expense, a dry
dock inspection of the hull(s) of the Barge(s). To the
extent that, within one hundred twenty (120) days following
the Closing Date of a Barge(s) (subject to extension of such
one hundred twenty (120) day period in cases of a Dry Dock
Force Majeure Event for an additional period of up to sixty
(60) days), Buyer and Seller mutually determine in writing
or an independent and reputable expert advises Buyer and
Seller, in writing, that the hull(s) of the Barge(s)
requires repairs in order for the hull(s) to meet the
Baseline Hull Condition (such repairs to meet such Condition
being hereinafter referred to as the "Required Repairs"),
then Buyer shall be entitled to cause the Required Repairs
to be made and Seller shall reimburse Buyer for such Repairs
in an amount (the "Hull Net Repair Cost"), if any, equal to
(A) the actual total cost of the Required Repairs for both
Barges less (B) One Million Dollars (U.S. $1,000,000). Any
amount payable to Buyer by Seller pursuant to this
Section 6.6 (a)(iii) shall be paid first from Escrow Account
out of the Hull Escrow Amount, to the extent thereof, and,
thereafter directly by Seller. Promptly following the
payment of the Hull Net Repair Cost or the determination
that no Hull Net Repair Cost will be payable hereunder by
Seller, the balance of the Hull Escrow Amount shall be
disbursed by the Escrow Agent to Seller.
(iv) Known Hull Repair Issues. Seller shall repair the
Known Hull Repair Issues in a reasonable manner within one
hundred eighty (180) days following the date hereof;
provided, however, that, if the Known Hull Repair Issues
have not been repaired at least sixty (60) days prior to the
Wind Down Date, Buyer may notify the Seller in writing that
Buyer wishes to address any or all of the Known Hull Repair
Issues after the Closing, in which case the applicable
amount set forth on Schedule 1.1(i) will be deducted from
the Closing Date Payment; provided further, however, if the
reasonable actual cost for the Known Hull Repair Issues
exceed the estimated amount of the Known Hull Repair Issues
listed in Schedule 1.1(i), Seller Parties shall promptly
reimburse and pay the difference upon demand (including
evidence thereof). The Parties agree that such amount may
also be paid to Buyer from the Hull Escrow Amount. For
purposes of clarity, it is understood that Seller's
estimated cost for Known Hull Repair Issues addressed by
Buyer after the Closing in accordance with this Section 6.6
(a)(iv) shall be deducted from the Closing Date Payment and
then any incremental actual cost for such Known Hull Repair
Issues shall be reimbursed to Buyer pursuant to this Section
6.6(a) (iv) and, as such, shall not be subject to the One
Million Dollars (U.S. $1,000,000) deductible otherwise
provided for in Section 6.6(a)(iii).
(v) Allocation. Notwithstanding anything in Section
6.6(a)(iii) or Section 6.6(a)(iv) to the contrary, it is
understood that (a) to the extent Required Repairs or
repairs for Known Hull Repair Issues are performed by Buyer
after the Closing, (b) those repairs are made to correct any
deteriorated shell plating on a Barge's hull where
deterioration exceeds 30% of original manufactured thickness,
and (c) Buyer elects to make repairs to the shell plating
such that, following such repairs, the remaining
deterioration to the repaired area is less than 30% of
original manufactured thickness, then, for the purposes of
Section 6.6(a)(iii) or Section 6.6(a)(iv), the actual cost
of
38
making the Required Repairs or the repairs for Known Hull
Repair Issues, as relates to such shell plating, shall be
determined on a pro rata basis (thus, for example, if the
relevant deterioration was 35% of original manufactured
thickness pre-repair and there was no (0%) deterioration
from original manufactured thickness post-repair, then one-
seventh (1/7th) (5% divided by 35%) of the applicable repair
costs would be deemed the cost of the applicable Required
Repairs or repairs for Known Hull Repair Issues while the
remaining six-sevenths (6/7ths) of the applicable repair
costs would be disregarded for the purposes of Section
6.6(a)(iii) or Section 6.6(a)(iv), as applicable.
(b) Force Majeure. Notwithstanding the foregoing, in
the event Seller cannot, due to a Force Majeure Event which
occurs at any time following the date hereof, deliver all
the Acquired Assets in the Required Operating Condition
during the Delivery Window, without prejudice to Buyer's
rights under Section 8.1 (e), then, so long as Seller shall
continue to exercise its best efforts to deliver all the
Acquired Assets in accordance with the terms of this
Agreement as promptly as possible, the Delivery Window shall
be extended for such reasonable time so as to permit Seller
to comply with its obligations under this Agreement. Seller
shall provide written notice to Buyer (the "Force Majeure
Notice") promptly following Seller's Knowledge of the Force
Majeure Event. The Force Majeure Notice shall set forth the
nature and facts surrounding the Force Majeure Event and the
actions Seller has taken or intends to take to resolve
issues related to the delivery of the Acquired Assets that
are attributable to such Force Majeure Event. Force Majeure
Events shall not excuse a Party from delay or failure in
performing its obligations:
(i) simply because performance has become more
expensive;
(ii) if its failure to perform is due to the non-
performing Party's intentional acts or omissions or its
failure to exercise due diligence, oversight or planning (as
defined in the definition of "Force Majeure Event" in
Section 1.1 ); or
(iii) to the extent that the Party asserting a Force
Majeure Event fails to fulfill its obligations as soon as
reasonably possible after such Force Majeure Event has been
eliminated or has ceased to prevent the affected Party from
fulfilling its obligations.
If a Force Majeure Event occurs at any time following the date
hereof and, as a result thereof, it is reasonably likely that
using Commercially Reasonable Efforts Seller will not be able to
consummate the Closing on or before May 31, 2011 (a "Force
Majeure Delivery Failure") with respect to one or both of the
Barges, other than due to the failure to cure a Minor Delivery
Failure as of May 31, 2011, then Buyer, at its election
(exercised by giving written notice to Seller within thirty
(30) days following the occurrence of the Force Majeure Event),
shall have the right (A) if the Force Majeure Delivery Failure is
applicable to both Barges, to terminate this Agreement pursuant
to Section 8.1 (e) (a "Force Majeure Termination") or (B) if the
Delivery Failure is applicable to only one of the Barges, to
exclude from the Acquisition the Barge so affected and any
related Acquired Assets (a "Force Majeure Exclusion"). In the
case where Buyer elects a Force Majeure Exclusion with respect to
only one Barge and any related Acquired Assets, then (i) Seller
shall, promptly thereafter, after receiving written notice of
such election, pay to Buyer, by wire transfer of immediately
available funds to a bank account (or accounts) as shall have
been designated in writing by Buyer to Seller, an amount (in U.S.
Dollars) equal to the
39
Partial Termination Payment, if any, (ii) the Escrow Agent shall
disburse to Buyer, in accordance with the terms of the Escrow
Agreement, the Partial Termination Escrow Payment and (iii) upon
receipt of the Partial Termination Payment, if any, and the
Partial Termination Escrow Payment, Buyer shall promptly
thereafter release all liens under the Security Agreement with
respect to the Barge and any related Acquired Assets which have
been excluded from the Acquisition.
(c) Repair Notice. If, for any reason other than a
Force Majeure Event, it can reasonably be expected that
Seller will not be able to deliver all the Acquired Assets
during the Delivery Window in the Required Operating
Condition (a "Repair Condition"), then Seller shall promptly
as practicably possible give Buyer written notice thereof
(the "Repair Notice"), which notice shall set forth (i) a
detailed listing of the Acquired Assets which cannot be
delivered during the Delivery Window in the Required
Operating Condition (the "Damaged Assets"); (ii) the actions
(the "Repair Actions") necessary to replace, restore or
repair the Damaged Assets to the Required Operating
Condition; and (iii) an estimate of the total time (stated
in days) (the "Projected Repair Time") and the estimated
total costs (the "Repair Costs") necessary to complete the
Repair Actions, which estimates shall be supported by
reasonably detailed documentation, and, if requested in
writing by Buyer, such estimates shall be reviewed by an
independent expert who shall comment on such estimates after
due consultation with the DR Employees (which expert shall
be mutually agreed to in writing by Buyer and Seller and the
costs of which expert shall be shared equally by Buyer and
Seller). If an independent expert is engaged, Seller
agrees to consider fully any and all recommendations
made by such expert and, if appropriate based upon a good
faith review of those recommendations, to revise the Repair
Actions, Projected Repair Time or Repair Costs pursuant to
this Section 6.6 (c) after due consultation with the
independent expert (which estimates, as so revised, shall
thereafter serve as the applicable estimates for Repair
Actions, Projected Repair Time and Repair Costs for the
purposes of this Agreement). Except as otherwise provided
in Section 6.6 (d) or Section 6.6 (e), promptly following
the occurrence of a Repair Condition, Seller shall use its
best efforts, at its expense, to have all Repair Actions
completed as soon as practicably possible.
(d) Minor Delivery Failure. Notwithstanding anything
herein to the contrary, if the Repair Actions constitute a
Minor Delivery Failure which have not been cured by the last
day of the Delivery Window, then Buyer, at its election
(exercised by giving written notice to Seller within thirty
(30) Business Days following Buyer's receipt of the Repair
Notice), shall either elect (i) to delay the Closing Date
(and to extend the Delivery Window) until such time as
Seller can deliver all of the Acquired Assets in the
Required Operating Condition (such option being hereinafter
referred to as "Option A") or (ii) to establish a date for
the Closing (and to extend the Delivery Window) to occur
(which shall be a Business Day selected by Buyer which shall
be no earlier than the seventy-fifth (75th) day after the
Wind Down Date) and to close the Acquisition on the Closing
Date, but, when the Closing is consummated pursuant to this
Section 6.6 (d)(ii), the Closing Date Payment shall be
reduced (in accordance with Section 3.1 (c) (vii)) by the
estimated Repair Costs which have not been paid by Seller
subsequent to the date of the Repair Notice and prior to the
Closing Date (in which case Buyer shall thereafter be
responsible for the completion of any remaining Repair
Actions and the payment of any remaining Repair Costs) (such
option being hereinafter referred to as "Option B").
Notwithstanding
40
anything herein to the contrary, in a case where Buyer
elects Option A pursuant to this Section 6.6 (d) and all of
the Acquired Assets are not in the Required Operating
Condition as of the end of the Repair Time, then Buyer, at
its election (exercised by giving written notice to Seller
within ten (10) Business Days following the end of the
Repair Time), shall once again have the option to elect
Option B (otherwise, Option A shall remain in effect).
(e) Major Delivery Failure. (i) Buyer Options.
Notwithstanding anything herein (other than in Section 6.6
(e)(ii)) to the contrary, if the Repair Condition
constitutes a Major Delivery Failure which Seller using
Commercially Reasonable Efforts cannot be reasonably
expected to rectify so that the Barges meet the Required
Operating Condition by the last day of the Delivery Window,
then Buyer, at its election (exercised by giving written
notice to Seller within thirty (30) Business Days following
Buyer's Knowledge of the Major Delivery Failure), shall
either elect (A) to elect Option A, (B) to elect Option B or
(C) to establish a date for the Closing (and to extend the
applicable Delivery Window) to occur (the "First Closing
Date") (consistent with the time frame prescribed in Option
B), to close the Acquisition with respect to any Barge which
does not have Damaged Assets situated thereon, in which case,
the Closing Date Payment shall be reduced (in accordance
with Section 3.1 (c)(vi)) by an amount (the "Seller Delivery
Failure Amount") equal to the sum of (1) the Barge A
Purchase Price or the Barge B Purchase Price, as applicable,
if Buyer is not purchasing Barge A or Barge B on the First
Closing Date plus (2) the respective amount of the Purchase
Price otherwise allocable (in accordance with Schedule 3.3)
to any other Generation Assets which are not being acquired
on the First Closing Date (the "Remaining Assets") (such
option being hereinafter referred to as "Option C").
(1) Notwithstanding anything herein to the
contrary, in a case where Buyer elects Option A
pursuant to this Section 6.6 (e)(i) and all of the
Acquired Assets are not in the Required Operating
Condition as of the end of the Repair Time, then
Buyer, at its election (exercised by giving
written notice to Seller within ten (10) Business
Days following the end of the Repair Time), shall
once again have the option to elect Option B or
Option C.
(2) In the case where Buyer elects Option C,
Buyer shall, as a part of that Option, also elect
(in the same written notice in which Buyer elects
Option C) either (x) to exclude from the
Acquisition completely the Remaining Assets (such
option, under Option C, being hereinafter referred
to as "Option C-1") or (y) to defer the
Acquisition of the Remaining Assets (and to extend
the applicable Delivery Window) until the end of
the Repair Time (such option, under Option C,
being hereinafter referred to as "Option C-2").
Notwithstanding anything herein to the contrary,
in the case where Buyer elects Option C-1, on the
Closing Date as part of the Closing, (1) the
Escrow Agent shall pay to Seller the Closing Date
Payment and an amount equal to the Escrow Fraction
times the Escrow Interest Amount shall also be
paid to Seller; (2) remaining balance of the
Escrow Deposit and the Escrow Interest Amount
shall be paid to Buyer;
41
and (3) Buyer shall release all liens under the
Security Agreement in connection with such
Remaining Assets which are excluded from the
Acquisition. In the case where Buyer elects
Option C-2, then, at such time as Seller has
completed the Repair Actions with respect to the
Damaged Assets, Seller shall establish a date for
the Closing to occur (the "Second Closing Date")
(by at least ten (10) Business Days' prior written
notice to Buyer) at which Buyer and Seller shall
close the Acquisition of the Remaining Assets, and
(1) Buyer shall pay on the Second Closing Date
(either directly or through the disbursement of
the Escrow Deposit by the Escrow Agent) the
balance of the Closing Date Payment which was not
otherwise paid on the First Closing Date, and (2)
the balance of the Escrow Interest Amount shall be
disbursed to Seller in accordance with the terms
of the Escrow Agreement. Notwithstanding anything
herein to the contrary, in a case where Buyer
elects Option C-2 pursuant to Section 6.6 (e)(i)
and the Remaining Assets are not in the Required
Operating Condition as of the end of the Repair
Time, then Buyer, at its election (exercised by
giving written notice to Seller within ten (10)
Business Days following the end of the Repair
Time), shall once again have the option to elect
Option C-1.
(ii) Additional Option. Notwithstanding anything
herein to the contrary, in case of a Major Delivery Failure
and if the Seller has delivered the Repair Notice promptly
as practicably possible and the Repair Costs with respect to
a Barge exceed, in the case of Repair Costs with respect
to Barge A, eighty-five percent (85%) of the Barge A
Purchase Price, or, in the case of Repair Costs with respect
to Barge B, eighty-five percent (85%) of the Barge B
Purchase Price, and if Buyer decides not to elect Option C,
within ten (10) Business Days of such decision not to elect
Option C, Buyer shall give Seller written notification
thereof and upon receipt of such notification Seller shall
have the option to exclude from the Acquisition (such option
being hereinafter referred to as "Option D") (A) any Barge
for which the Repair Costs with respect thereto exceed
eighty-five percent (85%) of its Purchase Price and (B) any
related Acquired Assets. Seller shall (if it chooses to do
so) exercise its rights under this Section 6.6 (e)(ii) by
giving Buyer written notice thereof within thirty (30)
Business Days following the date that the Repair Notice has
been given to Buyer as required by the previous sentence and
the Repair Cost has been determined within a reasonable
period. In the case where Buyer decides not to elect Option
C and Seller elects Option D with respect to both Barges,
then Seller, Buyer and the Escrow Agent shall take the
respective actions specified in Section 8.3(c) as if the
Agreement had been terminated in accordance with Section 8.1
(c) hereof. In the case where Buyer decides not to elect
Option C and Seller elects Option D with respect to only one
Barge and related Acquired Assets, then (i) the Seller shall,
within ten (10) Business Days after electing Option D, pay
to Buyer, by wire transfer of immediately available funds to
a bank account (or accounts) as shall have been designated
in writing by Buyer to Seller, an amount (in U.S. Dollars)
equal to the Partial Termination Payment, if any, (ii) the
Escrow Agent shall disburse to Buyer, in accordance with the
terms of the Escrow Agreement, the Partial Termination
Escrow Payment and (iii) upon receipt of the Partial
Termination Payment, if any, and the Partial Termination
Escrow Payment, Buyer shall release all liens under
the Security Agreement
42
with respect to the Barge and any related Acquired Assets
which have been excluded from the Acquisition.
(f) Seller Late Decommission Obligations. If the
Closing with respect to one or both of the Barges (the
"Delinquent Barge(s)") has not occurred as a result of a
Seller Delivery Failure or Seller's failure to perform the
Performance Test during the Final Testing Period if directed
to perform such in the Wind Down Notice in accordance with
Section 6.6 (a) (ii), as of the following dates, as
applicable, (a) the last day of the Delivery Window with
respect to the Delinquent Barge (as extended with respect to
the Delinquent Barge by a Force Majeure Event, if applicable,
pursuant to Section 6.6 (b)), or, in the case of a Minor
Delivery Failure or a Major Delivery Failure, (x) if Buyer
has elected Option A or Option C-2 with respect to the
Delinquent Barge, the last day of the applicable Repair Time
with respect to the Delinquent Barge (as extended with
respect to the Delinquent Barge by a Force Majeure Event, if
applicable, pursuant to Section 6.6 (b)), or (y) if Buyer
has elected Option B or Option C with respect to the
Delinquent Barge, the applicable Closing Date established by
Buyer with respect to the Delinquent Barge pursuant to
Section 6.6 (d) or Section 6.6 (e), as applicable (such
date as described in clause (a), (x), or (y), as applicable,
being hereinafter referred to as the "Delinquent Date"),
Seller Parties shall for the time period (the "Damage
Period") commencing on the Delinquent Date and ending on the
earliest of, as applicable, (i) the Closing Date for the
Delinquent Barge, (ii) the date as of which Buyer elects to
exclude the Delinquent Barge from the Acquisition, or (iii)
the date which is two hundred seventy (270) days after the
Delinquent Date, take the following actions:
(i) Seller shall furnish to Buyer Replacement Power at
the Agreed kWh Rate as and when Buyer desires to consume
such Replacement Power during each day of the Damage Period;
(ii) to the extent that Seller fails to provide Buyer
the Replacement Power in accordance with Section 6.6 (f)(i),
then Seller shall pay to Buyer weekly on an estimated basis
(to be reconciled at the end of each month when actual costs
are available and subject to a late fee of one (1) percent
per month if not paid within five (5) days of the end of
each month) the costs (the "Replacement Costs Amounts")
Buyer incurs to obtain Replacement Power for use in the
Dominican Republic because the Market Rates at any time and
from time to time exceed the Agreed kWh Rate, as such costs
for convenience are determined on a per diem basis for each
day during the Damage Period when Seller fails to provide
Buyer the Replacement Power in accordance with Section 6.6
(f)(i) (the total of the Replacement Costs Amount, if any,
payable by Seller to Buyer hereunder is referred to as the
"Seller Late Decommission Payment").
During the Damage Period, Buyer shall first to the extent in
service utilize idle power capacity available from generation
stations owned by the Buyer and/or its affiliates that are
permanently located in the Dominican Republic and are not powered
by diesel fuel. Buyer shall use Commercially Reasonable Efforts
to procure Replacement Power from alternative sources at
commercially reasonable rates based upon then prevailing market
conditions (the "Market Rates") if Seller does not provide some
or all of such. If, on any day (a "No Power Day") during the
Damage Period, some or all Replacement Power is unavailable to
Buyer despite Buyer's
43
using its Commercially Reasonable Efforts to obtain such
Replacement Power, Seller shall pay Buyer consequential damages
up to a maximum of Ninety Thousand Dollars (U.S. $90,000) per No
Power Day for the first ninety (90) No Power Days during the
Damage Period and up to a maximum of One Hundred Fifty Thousand
Dollars (U.S. $150,000) per No Power Day for each additional No
Power Day during the Damage Period after the first ninety (90) No
Power Days. In all cases the foregoing amounts shall be pro rated
by multiplying them by the Replacement Power not provided divided
by the Replacement Power which was to be provided.
Notwithstanding Seller's provision of Replacement Power or
payment of Replacement Costs Amount above, to the extent Buyer
has not elected to exclude the Delinquent Barge(s) from the
Acquisition or to terminate this Agreement, Seller shall satisfy
all its obligations hereunder so that the Closing with respect to
the Delinquent Barge(s) may occur promptly, and Seller and Buyer
agree time is of the essence. Notwithstanding anything to the
contrary in this Agreement, if Seller Parties provide Replacement
Power or pay Buyer the Seller Late Decommission Payment in
accordance with this Section 6.6 (f), then, except as otherwise
provided in Section 2.5 (b), Seller Parties shall not
be responsible for any additional monetary damages due to Losses
incurred by Buyer as a result of the failure of the Closing to
occur with respect to the Delinquent Barge(s) on or prior to the
Delinquent Date, but Seller shall continue to be responsible to
perform its obligations under the previous sentence.
6.7 Shipping of Acquired Assets from Delivery Point. Seller
shall, at its sole expense and cost, dismantle, decommission,
pack and otherwise prepare the Acquired Assets for removal in
shipping quality consistent with Protocol of Delivery and
Acceptance. After the Closing Date, Buyer shall be responsible
for the shipping, relocation and installation of the Barges and
any other Acquired Assets from the Delivery Point to Buyer's
power plant or any other location determined by Buyer. For a
period not to exceed ninety (90) days after the Closing Date, at
Buyer's request, Seller shall provide (to the extent Seller
continues to employ skilled technical personnel), at no
additional cost to Buyer, technical consultation (up to a total
of 120 man/woman hours) with respect to the relocation, the
infrastructure and installation of the Barges and other Acquired
Assets as shall be reasonably requested in writing by Buyer.
6.8 Public Announcements. Except as hereafter agreed to in
writing by the Parties, the Parties hereby agree that no
disclosures with respect to this Agreement or the Acquisition
shall be made prior to the Effective Date. Notwithstanding the
foregoing, nothing shall prevent the Parties from announcing the
fact that Buyer has contracted with Seller Parties for the
purchase of the Acquired Assets in connection with the Mining
Project. Notwithstanding the first sentence above, if, in the
reasonable judgment of a Party, such Party is required by Law or
by the rules of a national securities exchange, to issue any
report, statement or press release or otherwise make any public
statements with respect to this Agreement or the Acquisition
which would otherwise violate the restrictions contained in the
first sentence of this Section 6.8 , then such Party shall be
permitted to make such disclosure following reasonable advance
notice thereof to the other Parties.
6.9 Tax Matters. After the Closing Date (as applicable),
Buyer and Seller shall use Commercially Reasonable Efforts and
cooperate (without being required to make any payment or incur
any economic burden) to provide the other with such assistance as
may reasonably be requested by the other party in connection with
the preparation of any Tax Return, any audit or
44
other examination by any taxing authority, or any judicial or
administrative proceedings relating to liability for Taxes.
6.10 Confidentiality. Each Party shall keep confidential
and shall not disclose to any Person without prior written
consent of the other Party (the "Provider") the existence or
content of this Agreement, all information (irrespective of
written, oral or any other form) received prior to, on or after
the date hereof by such Party or its representatives and
Affiliates (each, a "Recipient") from the Provider in connection
with this Agreement, the Ancillary Documents or the Acquisition
(the "Confidential Information"); provided, however, that the
Recipient may disclose Confidential Information to its
representatives, potential and actual investors, financers,
insurers, contractors, suppliers, consultants and Affiliates
involved in the Acquisition or the Mining Project; and provided
further, however, subject to the requirements of Section 6.8 ,
Barrick or any Affiliate shall be permitted to announce the fact
that it has contracted with Seller Parties to purchase the
Acquired Assets in connection with its proposed mining
operations. The Recipient shall be liable for any breach by its
representatives and Affiliates of any of its confidentiality
obligations contained herein. Notwithstanding the foregoing, in
the event that the Recipient or any of its representatives or
Affiliates is requested pursuant to, or required by, applicable
Law or legal process (including rules of any national securities
exchange) to disclose any Confidential Information, the Recipient
shall notify the Provider promptly so that the Provider may seek
a protective order or other appropriate remedy or, in the
Provider's sole discretion, waive compliance with the terms of
this Agreement. In the event that no such protective order or
other remedy is obtained, or that the Provider waives compliance
with the terms of this Agreement, the Recipient shall furnish
only that portion of the Confidential Information that the
Recipient is advised by counsel is required and will exercise all
reasonable efforts as are practicable to obtain reliable
assurance that confidential treatment will be accorded the
Confidential Information. Notwithstanding anything to the
contrary, however, any Party unconditionally shall be permitted
to file with the U.S. Securities and Exchange Commission any
information regarding this Agreement that it deems advisable in
its sole discretion.
6.11 Solicitation by Buyer. Following delivery of the Wind
Down Notice, Buyer may solicit the DR Employees for employment,
provided, however, that (absent Seller's written consent, which
shall not be withheld unreasonably) no DR Employees shall
commence employment with the Buyer or its Affiliates until the
later to occur of the Closing Date or the Second Closing Date (if
applicable). Notwithstanding the foregoing, Buyer shall not be
obligated to offer to employ any DR Employees or any other
Person, and Seller Parties shall indemnify Buyer for any
liability Buyer may incur as a result of Law of a Governmental
Entity or labor organization, which requires otherwise. Seller
and its Affiliates will provide reasonable assistance in the
transition of those DR Employees that accept employment with
Buyer pursuant to this Section 6.11 . Not later then ten
(10) days prior to the Closing Date, Buyer shall notify Seller in
writing of the names of the DR Employees which Buyer will hire as
of the Closing Date (the "Chosen DR Employees"). For the period
(the "No Hire Period") commencing on the date hereof and
continuing until the earlier of (a) the first anniversary of the
termination of this Agreement pursuant to Section 8.1 (if this
Agreement is terminated) or (b) the first anniversary of the
Closing Date (or, if applicable, the Second Closing Date), except
as otherwise permitted under the terms of this Section 6.11 with
respect to DR Employees, Buyer shall not solicit for employment
or otherwise hire any person who is (as of any point during the
No Hire Period) listed as a restricted employee of Seller or its
Affiliates on Schedule 6.11 ("Restricted
45
Employee"); provided, however, that the foregoing restriction
shall not apply to the extent that such DR Employee (other than
a Restricted Employee) has already solicited, responded to a
search for employment for, or is already in discussions (directly,
through a professional recruiter, online or otherwise) with,
Buyer or its Affiliates as of the time of this Agreement;
provided further that the foregoing restriction shall not be
deemed to include general solicitations of employment (e.g.,
the use of general advertisements in the media (including
trade media) or through the engagement of firms to conduct
searches not specifically directed toward the DR Employees).
6.12 Insurance Coverage; Risk of Loss.
(a) Insurance Coverage. From the date of this
Agreement through the Closing Date, Seller shall maintain
or cause to be maintained, at Seller's expense, insurance
coverage on the Acquired Assets in accordance with Schedule
4.14 hereto which may be improved by Buyer at its cost and
expense and Seller will promptly use Commercially Reasonable
Efforts to implement any such changes reasonably requested
by Buyer in writing. Seller shall promptly provide proof of
such insurance upon demand of Buyer. In addition, without
otherwise limiting Seller's obligations under this Section
6.12 , Seller shall notify Buyer as promptly as practicably
possible of changes in coverage under, the expiration of,
or the termination of insurance coverage otherwise required
hereunder and provide Buyer as soon as reasonably possible
with proof of any insurance policies replacing policies that
have expired or been terminated. Seller shall name Buyer as
an additional insured with respect to liability insurance
coverage listed in Schedule 4.14 (it being understood,
however, that Seller shall, without the consent of Buyer,
have the right to amend, modify or replace any insurance
maintained by Seller so long as it complies with the
requirements set out in Schedule 4.14 and Buyer is named as
an additional insured with respect to third-party liability
coverage). In addition, Buyer shall also have the right,
but not the obligation, at its sole cost and expense, to
procure insurance in its sole name with respect to the
Acquired Assets. In case of Seller's failure to maintain
such insurance, Buyer may procure such at Seller's expense
and deduct such from the Purchase Price.
(b) Risk of Loss. Seller shall retain the risk of
loss or damage by any circumstance to any Acquired Assets
before the Closing.
6.13 Transfer Taxes; Expenses; VAT. Any sales taxes,
recording fees or similar taxes (specifically excluding Income
Taxes, capital gains taxes and other similar taxes of Seller)
payable as a direct result of the transfer of the Acquired Assets
(collectively, the "Transfer Taxes") will be paid by Buyer. The
Parties will cooperate in the preparation, execution and filing
of all returns, questionnaires, applications or other documents
regarding any Transfer Taxes and VAT (including any VAT exemption
status with respect to the Assets). Seller shall present to the
Buyer the invoice related to the sale of the Acquired Assets in
compliance with applicable Laws and procedures established by
local authorities and procedures established by local authorities
so Buyer shall benefit from the VAT tax exemption.
6.14 Assistance in Collecting Certain Amounts. If, after
the Closing Date, Seller or any Affiliate of Seller shall wish to
make a claim or otherwise take action with respect to an
46
Excluded Asset or an Excluded Liability, Buyer shall at Seller's
expense paid in advance and if reasonably necessary assist,
cooperate and consult with Seller or such Affiliate of Seller
with respect to such action and shall remit promptly to Seller
or such Affiliate of Seller any payments or other sums received
by Buyer that relate thereto. Seller and the Affiliate of Seller
shall remit promptly to Buyer any payments or other sums received
by Seller or any Affiliates of Seller after the Closing Date that
relate to any Acquired Assets
6.15 Excluded Liabilities. Seller or Seller Parent shall
pay and discharge the Excluded Liabilities as and when the same
become due and payable.
6.16 Escrow. Buyer and Seller shall give joint express
written instructions and notices in connection with the
transactions contemplated in this Agreement to the Escrow Agent
with respect to the Escrow Account and amounts held therein
pursuant to this Agreement and the Escrow Agreement.
6.17 DR Employees Warranty. At the Closing Date, Seller
shall deliver a revised Schedule 4.17 which shall amend and
restate Schedule 4.17 as attached to this Agreement as of the
date of execution hereof.
6.18 Permits. Immediately prior to the Effective Escrow
Deposit Release Date, and again immediately prior to the Closing
Date, Seller shall deliver a revised Schedule 2.1(g). Such
Schedule shall include all permits required by applicable Law in
connection with the operation and utilization of the Acquired
Assets. Seller shall submit this Schedule to Buyer for Buyer's
local counsel approval and review; upon such review and
acceptance, it shall replace the existing schedule and become
Schedule 2.1(g) as of the Closing Date for purposes of the
Agreement.
6.19 Certifications. As promptly as reasonably possible
following the Effective Date, Seller shall use its Commercially
Reasonable Efforts to obtain and to deliver, or cause to be
delivered, at its sole cost, the following:
(a) a written authorization (the "Decommission
Certificate") from the Superintendence permitting Seller to
dismantle the Barges and other Generation Assets and remove
them from the grid at any time from and after October 1,
2010, if not so permitted at any time, which authorization
does not contain any conditions that cannot reasonably be
expected to be fulfilled by Seller at or prior to the
Closing;
(b) an official certification from the Naval Ministry
(▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇) in the Dominican Republic confirming that
the Barges are registered in the Dominican Republic;
(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; and
(d) a certification (the "Superintendence Certificate")
from the Superintendence authorizing (i) the pledge of the
Concession under the Contrato de Prenda de Concesion and the
Security Agreement and (ii) the assignment of the Concession,
on the Closing Date, under the Assignment and Assumption
Agreement.
47
In addition, as promptly as reasonably possible following
the receipt of the certificate referred to in Section 6.19 (d),
Buyer and Seller agree to execute and deliver the following:
(e) Contrato de Prenda de la Concesion, in
substantially the form attached hereto as Exhibit K; and
(f) Contrato de Prenda sin Desapoderamiento, in
substantially the form attached hereto as Exhibit L.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification Obligations of Seller Parties. Seller
Parties shall, jointly and severally, indemnify, hold harmless
and defend the Buyer Indemnified Parties from, against and in
respect of any actual out of pocket losses, claims, damages or
expenses (including amounts paid in settlement and reasonable
attorneys' fees and expenses), net of any insurance proceeds
actually received in respect thereof (after taking into
consideration any increase in insurance premium as a result of
the insurance claim) (any of the foregoing, a "Loss") arising out
of:
(a) any breach of any representation or warranty made
by any of Seller Parties in Section 4.1 (Organization),
Section 4.2 (Authorization), Section 4.4 (Title), Section
4.5 (Absence of Material Adverse Effect), Section 4.6
(Litigation), Section 4.9 (Taxes) including any matters
listed in Schedule 4.9, Section 4.12 (Certain Fees),
Section 4.16 (Environmental and Other Permits and Licenses),
Section 4.17 (Labor Matters and Employee Benefits) and
Section 4.18 (Absence of Certain Payment Obligations)
(hereinafter collectively referred to as the "Seller
Fundamental Representations") or any closing certificate
confirming the accuracy thereof at Closing;
(b) any breach of any representation or warranty made
by any of Seller Parties in Article IV of this Agreement
which does not constitute a Seller Fundamental
Representation or any closing certificate confirming the
accuracy thereof at Closing;
(c) a Seller Delivery Failure;
(d) any breach of any covenant, agreement or
undertaking made by Seller in this Agreement (other than as
described in Section 7.1 (c)) or any closing certificate
confirming the accuracy thereof at Closing; and
(e) any Excluded Liability.
7.2 Indemnification Obligations of Buyer. Buyer shall,
indemnify and hold harmless the Seller Indemnified Parties from,
against and in respect of any and all Losses arising out of:
(a) any breach of any representation or warranty made
by Buyer in Section 5.1 (Organization), Section 5.2
(Authorization), Section 5.4 (Litigation) or Section 5.5
(Certain Fees) (hereinafter collectively referred to as the
"Buyer Fundamental Representations");
48
(b) any breach of any representation or warranty made
by any of Buyer in Article V of this Agreement (other than
the Buyer Fundamental Representations) or any closing
certificate confirming the accuracy thereof at Closing;
(c) any breach of any covenant, agreement or
undertaking made by Buyer in this Agreement or any closing
certificate confirming the accuracy thereof at Closing; or
(d) any Assumed Liability.
7.3 Survival. (a) The representations and warranties given
or made by any Party herein shall survive the Closing for a
period ending on the first anniversary of the Closing Date (or,
if there is a Second Closing Date pursuant to Section 6.6, on the
first anniversary of the Second Closing Date); except that (i)
the Buyer Fundamental Representations and the Seller Fundamental
Representations shall survive the Closing indefinitely or until
the date thirty (30) days following the expiration of any
applicable statutes of limitations if one exists, and (ii) any
representation or warranty as to which a claim (including a
contingent claim) shall have been asserted during the applicable
survival period shall continue in effect with respect to such
claim until such claim shall have been finally resolved or
settled.
(b) The covenants and agreements of the Parties
contained in this Agreement, including those set forth in
Article VI, shall survive the Closing in accordance with
their terms.
7.4 Indemnification Procedure.
(a) Procedures for Third-Party Claims. Promptly after
receipt by an Indemnified Party of notice by a third party
of a threatened or filed complaint or the threatened or
actual commencement of any audit, investigation, action or
proceeding with respect to which such Indemnified Party is
covered hereunder, such Indemnified Party shall provide
written notification to Buyer, on the one hand, or Seller
Parties, on the other hand, whoever is the appropriate
indemnifying Party hereunder (the "Indemnifying Party"), but
in any event within five (5) days after the Indemnified
Party's knowledge of threatening or filing of such complaint
or knowledge of the threatened or actual commencement of
such audits, investigation, action or proceeding; provided,
however, that the failure to so notify the Indemnifying
Party shall relieve the Indemnifying Party from liability
under this Agreement with respect to such claim only if, and
only to the extent that, such failure to notify the
Indemnifying Party results in material prejudice to the
Indemnifying Party with respect to such claim. The
Indemnifying Party shall have the right, upon written notice
delivered to the Indemnified Party within thirty (30) days
thereafter, to assume the defense of such complaint, audit,
investigation, action or proceeding, including the
employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of the reasonable fees and
disbursements of such counsel. If the Indemnifying Party
declines or fails to assume and continue to diligently
prosecute the defense of the audit, investigation, action
or proceeding (with respect to which the Indemnified Party
is covered hereunder) on the terms provided above within
such thirty (30) day period, however, the Indemnified Party
may employ counsel to represent or defend it in any such
audit, investigation, action or proceeding and, the
49
Indemnifying Party will pay the reasonable fees and
disbursements of such counsel as incurred; provided, however,
that the Indemnifying Party will not be required to pay the
fees and disbursements of more than one (1) counsel for all
Indemnified Parties in any jurisdiction in any single audit,
investigation, action or proceeding. In any audit,
investigation, action or proceeding with respect to which
indemnification is being sought hereunder, the Indemnified
Party or the Indemnifying Party, whichever is not assuming
the defense of such action, shall have the right to
participate in such matter and to retain its own counsel at
such Party's own expense. The Indemnifying Party or
the Indemnified Party, as the case may be, shall at all
times use Commercially Reasonable Efforts to keep the
Indemnifying Party or the Indemnified Party, as the case may
be, apprised of the status of any matter the defense of
which they are maintaining and to cooperate in good faith
with each other with respect to the defense of any such
matter. No Indemnified Party may settle or compromise any
claim or consent to the entry of any judgment with respect
to which indemnification is being sought hereunder without
the prior written consent of the Indemnifying Party.
(b) Procedures for Direct Claims. If an Indemnified
Party claims a right to payment pursuant to this Agreement
not involving a third party claim covered by Section 7.4 (a)
hereof, such Indemnified Party shall send written notice of
such claim to the appropriate Indemnifying Party. Such
notice shall specify the basis for such claim. If the
Indemnifying Party has timely disputed its liability with
respect to such claim, the Indemnifying Party and the
Indemnified Party shall proceed in good faith to negotiate a
resolution of such dispute and, if not resolved through
negotiations, such dispute shall be resolved by arbitration
in accordance with this Agreement.
7.5 Seller Liability Limits. Notwithstanding anything to
the contrary set forth in this Agreement, Seller Parties'
obligation to indemnify, defend and hold Buyer Indemnified
Parties harmless shall be limited as follows:
(a) no amounts of indemnity shall be payable pursuant
to Section 7.1 (b) unless the amount of Loss in connection
with Section 7.1 (b) suffered by Buyer Indemnified Party
related to each individual claim exceeds Fifty Thousand
Dollars (U.S. $50,000), and then, subject to the other
limitations of this Agreement, to the full extent of such
claim;
(b) no amounts of indemnity shall be payable pursuant
to Section 7.1 (b) unless and until Buyer Indemnified
Parties shall have suffered Losses in excess of Seven
Hundred Fifty Thousand Dollars (U.S. $750,000) in the
aggregate, in which case Buyer Indemnified Parties shall be
entitled to recover only such Losses in excess of Three
Hundred Seventy Five Dollars (U.S. $375,000);
(c) Seller's obligations to Buyer as result of Seller
Delivery Failure shall be determined solely in accordance
with Section 2.5 (b) and Section 6.6 (f) and there shall be
no liability therefor except as set forth in Section 2.5 (b)
and Section 6.6 (f);
(d) in no event shall the aggregate amount of
indemnity required to be paid by Seller Parties to all Buyer
Indemnified Parties pursuant to Section 7.1 (b), Section 7.1
(c)
50
(and Seller's related obligations under Section 2.5 (b) and
Section 6.6 (f)) and Section 7.1 (d) exceed a total of
Fifteen Million Dollars (U.S. $15,000,000);
(e) in no event shall the aggregate amount of
indemnity required to be paid by Seller Parties to all Buyer
Indemnified Parties pursuant to Section 7.1 (a), Section 7.1
(b), Section 7.1 (c) (and Seller's related obligations under
Section 2.5 (b) and Section 6.6 (f)) and Section 7.1 (d)
exceed an amount equal to the greater of (i) the Base
Purchase Price and (ii) the Total Purchase Price;
(f) Seller's obligations under Section 7.1 (a) or
Section 7.1 (b) with respect to a breach of any
representation or warranty made by any of Seller Parties in
Section 4.7 (as it relates to Environmental Laws and
Environmental Permits), Section 4.10 (as it relates to
Environmental Laws and Environmental Permits) or Section
4.16 shall be limited to Losses constituting fines,
penalties or liability claims that are payable to
Governmental Entities or other third parties;
(g) for purposes of computing the aggregate amount of
claims against Seller Parties, the amount of each claim by a
Buyer Indemnified Party shall be deemed to be an amount
equal to, and any payments by Seller Parties pursuant to
Section 7.1 (b) shall be limited to, the amount of Losses in
connection with Section 7.1 (b) that remain after deducting
therefrom (i) any third party insurance proceeds actually
received (less any future increase in insurance premiums
payable by Buyer Indemnified Parties as a result of such
insurance payment), and any indemnity, contributions or
other similar payment payable by any third party actually
received with respect thereto, and (ii) to the extent Buyer
has used such Losses for Tax purposes, any net Tax benefit
recognized (by reason of a Tax deduction, basis reduction,
shifting of income, credit and/or deductions or otherwise)
by a Buyer Indemnified Party or any Affiliate thereof with
respect to the Losses or items giving rise to such claim for
indemnification;
(h) the amount of indemnity payable pursuant to
Section 7.1 (b) with respect to any Loss shall be reduced to
the extent appropriate to reflect the relative contribution
to such Loss, if any, caused by actions taken by Buyer or
any Affiliate of Buyer after the Closing;
(i) in any case where a Buyer Indemnified Party
recovers from third Persons any amount in respect of a
matter with respect to which Seller Parties has indemnified
the Buyer Indemnified Party pursuant to this Agreement, such
Buyer Indemnified Party shall promptly pay over to Seller
Parties the amount so recovered (after deducting therefrom
the full amount of the expenses incurred by it in procuring
such recovery), but not in excess of the sum of (i) any
amount previously so paid by Seller Parties to or on behalf
of Buyer Indemnified Party in respect of such matter and
(ii) any amount expended by Seller in pursuing or defending
any claim arising out of such matter; and
(j) in any claim for indemnification under this
Agreement, Seller Parties shall not be required to indemnify
any Buyer Indemnified Party for its special, exemplary or
consequential damages, including loss of profit or revenue,
any multiple of reduced cash flow, interference with
operations, or loss of tenants, lenders, investors or buyers.
51
Any indemnity payment under this Agreement by Seller shall be
treated as an adjustment to the Purchase Price for all Tax
purposes.
7.6 Buyer Liability Limits. Notwithstanding anything to
the contrary set forth in this Agreement, Buyer obligation to
indemnify, defend and hold Seller Indemnified Parties harmless
shall be limited as follows:
(a) no amounts of indemnity shall be payable pursuant
to Section 7.2 (b) unless the amount of Loss in connection
with Section 7.2 (b) suffered by Seller Indemnified Party
related to each individual claim exceeds Fifty Thousand
Dollars (U.S. $50,000), and then, subject to the other
limitations of this Agreement, to the full extent of such
claim;
(b) no amounts of indemnity shall be payable pursuant
to Section 7.2 (b) unless and until, Seller Indemnified
Parties shall have suffered Losses in excess of Seven
Hundred Fifty Thousand Dollars (U.S. $750,000) in the
aggregate, in which case Seller Indemnified Parties shall be
entitled to recover only such Losses in excess of Three
Hundred Seventy Five Thousand Dollars (U.S. $375,000);
(c) Buyer's obligation to Seller as a result of an
early decommission shall be calculated solely in accordance
with the definition of the Early Decommission Payment;
(d) in no event shall the aggregate amount of
indemnity required to be paid by Buyer to all Seller
Indemnified Parties pursuant to Section 7.2 (b) and Section
7.2 (c) exceed a total of Fifteen Million Dollars (U.S.
$15,000,000);
(e) in no event shall the aggregate amount of
indemnity required to be paid by the Buyer to all Seller
Indemnified Parties pursuant to Section 7.2 (a), Section 7.2
(b), and Section7.2 (c) exceed the greater of (i) the Base
Purchase Price and (ii) the Total Purchase Price;
(f) for purposes of computing the aggregate amount of
claims against the Buyer, the amount of each claim by a
Seller Indemnified Party shall be deemed to be an amount
equal to, and any payments by Buyer pursuant to Section 7.2
(b) shall be limited to, the amount of Losses in connection
with Section 7.2 (b) that remain after deducting therefrom
(i) any third party insurance proceeds actually received
(less any future increase in insurance premiums payable by
Seller Indemnified Parties as a result of such insurance
payment), and any indemnity, contributions or other similar
payment payable by any third party actually received with
respect thereto and (ii) to the extent such Seller Party has
used such Losses for Tax purposes, any net Tax benefit
recognized (by reason of a Tax deduction, basis reduction,
shifting of income, credit and/or deductions or otherwise)
by a Seller Indemnified Party or any Affiliate thereof with
respect to the Losses or items giving rise to such claim for
indemnification;
(g) the amount of indemnity payable pursuant to
Section 7.2 (b) with respect to any Loss shall be reduced to
the extent appropriate to reflect the relative contribution
to such Loss, if any, caused by actions taken by such Seller
Party or any Affiliate after the Closing;
52
(h) in any case where a Seller Indemnified Party
recovers from third Persons any amount in respect of a
matter with respect to which Buyer has indemnified Seller
Indemnified Party pursuant to this Agreement, such Seller
Indemnified Party shall promptly pay over to Buyer the
amount so recovered (after deducting therefrom the full
amount of the expenses incurred by it in procuring such
recovery), but not in excess of the sum of (i) any amount
previously so paid by Buyer to or on behalf of Seller
Indemnified Party in respect of such matter and (ii) any
amount expended by Seller in pursuing or defending any claim
arising out of such matter; and
(i) in any claim for indemnification under this
Agreement, Buyer shall not be required to indemnify any
Seller Indemnified Party for its special, exemplary or
consequential damages, including loss of profit or revenue,
any multiple of reduced cash flow, interference with
operations, of loss of tenants, lenders, investors or buyers.
7.7 Reasonable Steps to Mitigate. The Indemnified Party
will take all Commercially Reasonable Efforts at the
Indemnifying Party's cost (paid to the Indemnified Party in
advance) to mitigate all Losses, including availing itself of any
defenses, limitations, rights of contribution, claims against
third Persons and other rights at Law or equity, and will provide
such evidence and documentation of the nature and extent of the
Loss as may be reasonably requested by the Indemnifying Party.
7.8 Exclusive Remedies. The provisions of this Agreement
and the Security Agreement which expressly set forth the rights
and remedies shall be deemed exclusive and there shall be no
other remedy or relief whatsoever available in lieu thereof with
respect to such matters; provided, however, that nothing herein
shall limit in any way such Party's remedies in respect of
(i) the right to obtain specific performance of the terms of this
Agreement or the Security Agreement or (ii) fraud by another
Party arising in connection with this Agreement.
7.9 Force Majeure Losses. Notwithstanding anything in this
Agreement to the contrary, no Party shall be responsible for any
other Party's Losses to the extent any such Loss resulted from a
Force Majeure Event.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any
time at or prior to the Closing:
(a) in writing, by mutual consent of the Parties;
(b) by Seller or Buyer upon the delivery of a Baseline
Termination Notice in accordance with Section 2.12 ;
(c) by written notice from Buyer to Seller at any time
during the month of June 2009 upon the occurrence of a
Registration Termination Event;
53
(d) by written notice from Buyer to Seller or from
Seller to Buyer (i) upon the occurrence of an Early
Termination Event or (ii) upon the occurrence of a
Decommission Non-Authorization Event;
(e) by written notice from Buyer to Seller (i) if a
Major Delivery Failure has occurred with respect to either
of the Barges which has not been cured as of the last day of
the Delivery Window, (ii) pursuant to Section 6.6 (b) as a
Force Majeure Termination, or (iii) if Seller has received
the Wind Down Notice from Buyer and if the Closing has not
occurred, for any reason other than delay or nonperformance
by Buyer of its obligations under this Agreement, with
respect to the Barges, on or before May 31, 2011;
(f) by written notice from Seller to Buyer once all
Seller's delivery obligations hereunder are tendered and
Buyer fails to authorize the Escrow Agent to release the
Escrow Deposit and pay the balance of the Closing Date
Payment in accordance with Section 3.2 , and Buyer fails to
cure such default within ten (10) Business Days after
receipt of written notice of such failure from Seller; and
(g) in the event that, at any time during this
Agreement, it is reasonably expected that a Special Force
Majeure Event (i) will last longer than one hundred twenty
(120) calendar days from date as of which Buyer gives the
written notice to Seller of the Special Force Majeure Event
by Buyer and (ii) will materially and adversely affect the
performance by Seller of its obligations (other than payment
obligations) under or pursuant to this Agreement, Buyer has
the sole option to terminate the Agreement after giving
written notice to Seller that it intends to obtain
alternative generation assets for the Mining Project. The
definition of Special Force Majeure Event, for purposes of
this Section 8.1 (g), means (i) sabotage, war, blockades,
insurrections, and acts of terrorism, which are reasonably
predicted by an independent expert to last longer than a
period of one hundred twenty (120) days, (ii) the
continuation for a period lasting longer than one hundred
twenty (120) days of naturally occurring phenomena to the
extent occurring in the Dominican Republic of acts of God,
including storms, floods, hurricanes, tornadoes, earthquakes,
tsunami, volcanic eruption, landslide, famine, plague or
epidemic, and (iii) any laws, orders, rules, regulations,
acts or restraints of any Governmental Entity or authority
(civil or military), which are reasonably expected to last
longer than a period of one hundred twenty (120) days after
the Parties have jointly used Commercially Reasonable
Efforts to cause such action by such Governmental Authority
to cure the Special Force Majeure Event (to the extent that
such has not been provoked, caused or created by an act or
omission of Buyer or Seller, or their respective
Affiliates, contractors, subcontractors, agents, employees,
officers or directors).
8.2 Procedure and Effect of Termination. In the event of
the termination of this Agreement, each Party shall redeliver all
documents and other materials of the other Parties relating to
the transaction contemplated hereby, whether so obtained before
or after the execution hereof, to the Party furnishing the same,
and there shall be no liability or obligation hereunder on the
part of any of the Parties or any of their respective Affiliates,
except that the obligations provided for in this Section 8.2 and
in Section 8.3 and in Sections 6.8 , Section 6.10 and
Section 9.1 hereof shall survive any such termination.
54
8.3 Termination Fees.
(a) If this Agreement is terminated in writing by the
Parties pursuant to Section 8.1 (a) hereof, the Parties
shall take such steps as shall be specified in such mutual
agreement.
(b) If this Agreement is terminated by Buyer or Seller
pursuant to Section 8.1 (b), then no Party shall have any
further rights or obligations hereunder.
(c) If this Agreement is terminated by Buyer pursuant
to Section 8.1 (c) or Section 8.1(g) or by Buyer or Seller
pursuant to Section 8.1 (d), then (i) Seller shall promptly
pay to Buyer, by wire transfer of immediately available
funds to a bank account (or accounts) as shall have been
designated in writing by Buyer to Seller, an amount (in U.S.
Dollars) equal to the sum of (A) the Effective Escrow
Deposit plus (B) the Seller Interest Payment plus (C) if
applicable and not previously paid by Seller to the Escrow
Agent, the Escrow Shortfall and (ii) Buyer and Seller shall
instruct the Escrow Agent to disburse to Buyer, in
accordance with the terms of the Escrow Agreement the
following: the Effective Escrow Deposit, the Escrow Deposit
and the Escrow Interest Amount; Buyer shall upon receipt of
the above amount, at the cost of Buyer, release all liens on
the Acquired Assets pursuant to the Security Agreement. In
this regard, Seller agrees that the amounts payable to Buyer
pursuant to this Section 8.3 (c) are fair and reasonable,
are not penalties and are intended to compensate the losses
expected to be incurred by Buyer as a result of the
termination of this Agreement pursuant to Section 8.1 (c),
Section 8.1 (d) or Section 8.1 (g), and Buyer and Seller
Parties hereby accept and agree to the foregoing damage
calculation.
(d) If this Agreement is terminated by Buyer pursuant
to Section 8.1 (e), then (i) Seller shall promptly pay to
Buyer, by wire transfer of immediately available funds to a
bank account (or accounts) as shall have been designated in
writing by Buyer to Seller, an amount (in U.S. Dollars)
equal to the sum of (A) the Effective Escrow Deposit plus
(B) the Seller Interest Payment plus (C) if due, the Seller
Late Decommission Payment plus (D) if applicable and not
previously paid by Seller to the Escrow Agent, the Escrow
Shortfall and (ii) Buyer and Seller shall instruct the
Escrow Agent to disburse to Buyer, in accordance with the
terms of the Escrow Agreement, the Escrow Deposit and the
Escrow Interest Amount, and Buyer shall upon receipt of the
above amount, at the cost of Seller, release all liens on
the Acquired Assets pursuant to the Security Agreement. In
this regard, Seller agrees that the amounts payable to Buyer
pursuant to this Section 8.3 (d) are fair and reasonable,
are not penalties and are intended to compensate the losses
expected to be incurred by Buyer as a result of the
termination of this Agreement pursuant to Section 8.1 (e),
and Buyer and Seller Parties hereby accept and agree to the
foregoing damage calculation.
(e) If this Agreement is terminated by Seller pursuant
to Section 8.1 (f), then (i) Seller shall be entitled (A)
to retain the Effective Escrow Deposit and (B) if applicable,
to be paid the Early Decommission Payment by Buyer and (ii)
if applicable and not previously paid by Seller to the
Escrow Agent, Seller shall pay to the Escrow Agent the
Escrow Shortfall. Upon termination of this Agreement
pursuant to Section 8.1
55
(f), Buyer shall, at Buyer's expense, release all liens on
the Acquired Assets pursuant to the Security Agreement
and the Escrow Agent shall release the Escrow Deposit and
the Escrow Interest Amount to Buyer. In this regard, Buyer
agrees that the amounts payable to Seller pursuant to this
Section 8.3 (e) are fair and reasonable, are not penalties
and reflect the parties' assessment and estimate of the
damages and losses reasonably payable to Seller as a
result of the termination of this Agreement pursuant to
Section 8.1 (f), and Buyer and Seller Parties hereby accept
and agree to the foregoing amounts as liquidated
damages.
(f) Notwithstanding anything herein to the contrary,
it is understood that Seller's obligation to pay to Buyer,
pursuant to this Section 8.3 , an amount equal to the
Effective Escrow Deposit or the Seller Interest Payment
shall be applicable only if the Effective Escrow Deposit is
paid to Seller in accordance with Section 2.11 , and,
similarly, Buyer's and Seller's obligation to instruct the
Escrow Agent to disburse to Buyer the Effective Escrow
Deposit, the Escrow Deposit and the Escrow Interest Amount
shall be applicable only if Buyer has deposited the
Effective Escrow Deposit or the Escrow Deposit, as
applicable, with the Escrow Agent pursuant to Section 3.1.
(g) Notwithstanding anything herein to the contrary,
it is understood that Buyer or Seller, as applicable, may
elect to forgo the right to terminate this Agreement
pursuant to Section 8.1 .
8.4 No Duplicate Payments. Notwithstanding anything in
this Agreement to the contrary, it is understood that no Party
shall be required to make (or be charged with) any duplicate
payment under this Agreement, the Escrow Agreement or the
Security Agreement. Thus, for example, Seller Parties shall
not be required to make a Seller Late Decommission Payment to
Buyer under Section 2.5 (b) and also separately to have the
Closing Date Payment reduced by the Seller Late Decommission
Payment pursuant to Section 3.1 (c)(v). Similarly, for example,
Buyer shall not be required both to pay Seller the Early
Decommission Payment pursuant to Section 8.3(e)(i) and also
separately to have the Closing Date Payment increased by the
Early Decommission Payment pursuant to Section 3.1 (c)(iv).
ARTICLE IX
MISCELLANEOUS
9.1 Fees and Expenses. Whether or not the Acquisition is
consummated pursuant hereto, each of Seller Parties and Buyer
shall pay all fees and expenses incurred by, or on behalf of,
Seller Parties or Buyer, respectively, in connection with, or in
anticipation of, this Agreement and the consummation of the
Acquisition.
9.2 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under
this Agreement shall be in writing and shall be given by any of
the following methods: (a) personal delivery; (b) U.S. registered
or U.S. certified mail, postage prepaid, return receipt requested;
(c) by a nationally recognized overnight courier service); or
(d) by facsimile transmission. Notices shall be sent to the
appropriate Party at its address given below (or at such other
address for such Party as shall be specified by notice given
hereunder:
56
If to Buyer, to:
Pueblo Viejo Dominicana Corporation
P.O. Box 1395
First Floor, Enfield House
Upper ▇▇▇▇▇▇▇▇▇ Rock
St. ▇▇▇▇▇▇▇, Barbados
Attention: Chairman
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Gold Corporation
3700 - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: General Counsel
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
If to Seller, to:
Transcontinental Capital Corporation (Bermuda)
Ltd.
c/o Seaboard Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
57
with a copy to:
Transcontinental Capital Corporation (Bermuda) Ltd.
c/o Seaboard Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
King & Spalding LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
If to Seller Parent, to:
Seaboard Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice
President and Chief Financial Officer
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Seaboard Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Each such notice or communication shall be effective when
delivered at the address specified in this Section 9.2 (or in
accordance with the latest unrevoked direction from such Party);
provided, however, with respect to notice via facsimile
transmission, notice or communication shall be effective when the
sending Party has received a report of successful transmission.
In the event of facsimile transmission, the sending Party shall
promptly thereafter send a copy thereof via methods (a), (b) or
(c) for good order.
58
9.3 Severability. If any term or other provision of this
Agreement or any Ancillary Document is invalid, illegal or
incapable of being enforced by any rule of Law or public policy,
all other terms, conditions and provisions of this Agreement or
the applicable Ancillary Document shall nevertheless remain in
full force and effect so long as the economic or legal substance
of the Acquisition is not affected in any manner materially
adverse to any Party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify
this Agreement or the applicable Ancillary Document so as to
effect the original intent of the Parties as closely as possible
in a mutually acceptable manner in order that the Acquisition be
consummated as originally contemplated to the fullest extent
possible.
9.4 Binding Effect; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, directly or
indirectly, including by operation of Law, by any Party without
the prior written consent of any other Party; provided, however,
that Buyer may assign this Agreement to any Financing Party in
connection with the financing of the Pueblo Viejo mining and
processing project in the Dominican Republic (the "Mining
Project"), but, in such case, Buyer shall continue to be bound by
the terms hereof.
9.5 No Third-Party Beneficiaries. This Agreement is
exclusively for the benefit of Seller Parties, and their
respective successors and permitted assigns, with respect to the
obligations of Buyer under this Agreement, and for the benefit of
Buyer, and its respective successors and permitted assigns, with
respect to the obligations of Seller Parties under this Agreement,
and this Agreement shall not be deemed to confer upon or give to
any other third party any remedy, claim, liability, reimbursement,
cause of action or other right.
9.6 Entire Agreement. This Agreement (including the
Schedules and Exhibits attached hereto) and the Ancillary
Documents constitute the entire agreement among the Parties with
respect to the subject matter of this Agreement and supersede
all other prior agreements and understandings, both written and
oral, among the Parties with respect to the subject matter of
this Agreement.
9.7 Governing Law and Choice of Forum.
(a) Subject to the provisions of Section 9.10 , this
Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) Subject to the terms of Section 9.7 (c), actions
arising out of or relating to this Agreement (except with
respect to the Security Agreement, documents, certificates
or instruments filed outside the United States of America in
connection therewith) shall be heard and determined in any
New York federal court sitting in the Borough of Manhattan
of The City of New York (except with respect to the Security
Agreement, documents, certificates or instruments filed
outside the United States of America in connection
therewith); provided, however, that if such federal court
does not have jurisdiction over such action, such action
shall be heard and determined exclusively in any New York
state court sitting in the Borough of Manhattan of The City
of New York.
59
Consistent with the preceding sentence, the Parties hereby
(i) submit to the jurisdiction of any federal or state court
sitting in the Borough of Manhattan of The City of New York
for the purpose of any action arising out of or relating to
this Agreement brought by any party hereto and (ii)
irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such action, any claim that it
is not subject personally to the jurisdiction of the above-
named courts, that its property is exempt or immune from
attachment or execution, that the action is brought in an
inconvenient forum, that the venue of the action is improper,
or that this Agreement or the transactions contemplated by
this Agreement may not be enforced in or by any of the above-
named courts.
(c) Notwithstanding the provisions of Section 9.7 (b),
Buyer or Seller may initiate proceedings seeking specific
performance pursuant to Section 9.10 of this Agreement
against the other Parties (i) in any federal court sitting
in the Borough of Manhattan of the City of New York;
provided, however, that if such federal court does not have
jurisdiction over such action, such action shall be heard
and determined exclusively in any New York state court
sitting in the Borough of Manhattan of The City of New York,
or (ii) in the country of, and under the laws of, (A) the
Dominican Republic or (B) any such jurisdiction where the
Barges are to be found.
9.8 Waiver of Jury Trial. Each of the Parties hereby
waives to the fullest extent permitted by applicable Law any
right it may have to a trial by jury with respect to any
litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions
contemplated by this Agreement. Each of the Parties hereby (a)
certifies that no representative, agent or attorney of the other
party has represented, expressly or otherwise, that such other
party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it has been
induced to enter into this Agreement and the transactions
contemplated by this Agreement, as applicable, by, among other
things, the mutual waivers and certifications in this Section
9.8.
9.9 Process Agents. Seller Parties hereby irrevocably
designate and appoint Corporation Service Company as their
authorized agent upon which process may be served in any
action, suit or proceeding arising out of or relating to this
Agreement or any Ancillary Documents. Buyer hereby irrevocably
designates and appoints National Corporate Research, Ltd. as
its authorized agent upon which process may be served in any
action, suit or proceeding arising out of or relating to this
Agreement or any Ancillary Documents.
9.10 Specific Performance. The Parties acknowledge and
agree that any breach of the terms of this Agreement would give
rise to irreparable harm for which money damages would not be an
adequate remedy and accordingly the Parties agree that, in
addition to any other remedies, each Party shall be entitled to
enforce the terms of this Agreement by a decree of specific
performance without the necessity of proving the inadequacy of
money damages as a remedy or the defense thereof by a Party
claiming that there is an adequate remedy at law.
9.11 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement and
shall become effective when one or more counterparts have been
signed by each of the Parties and delivered (including by
facsimile) to the other Party.
60
9.12 Amendment; Modification. This Agreement may only be
amended, modified or supplemented by express written agreement of
the Parties.
9.13 Disclosure Schedules. In no event shall the listing of
such agreements or other matters in the Schedules be deemed or
interpreted to broaden or otherwise amplify Seller Parties'
representations and warranties, covenants or agreements contained
in this Agreement or in any Ancillary Document, and nothing in
the Schedules shall influence the construction or interpretation
of any of the representations and warranties contained in this
Agreement or in any Ancillary Document. The headings contained
in the Schedules are for convenience of reference only and shall
not be deemed to modify or influence the interpretation of the
information contained in the Schedules or this Agreement.
Furthermore, the disclosure of a particular item of information
in the Schedules shall not be taken as an admission by Seller
Parties that such disclosure is required to be made under the
terms of any of such representations and warranties. Disclosure
of any fact or item in any Schedule hereto referenced by a
particular Section in this Agreement shall be deemed to have been
disclosed with respect to every other Section in this Agreement
if such disclosure would permit a reasonable person to find such
disclosure relevant to such other Sections. The specification of
any dollar amount in the representations or warranties contained
in this Agreement or the inclusion of any specific item in any
Schedules hereto is not intended to imply that such amounts, or
higher or lower amounts or the items so included or other items,
are or are not material, and no Party shall use the fact of the
setting of such amounts or the inclusion of any such item in any
dispute or controversy as to whether any obligation, items or
matter not described herein or included in a Schedule is or is
not material for purposes of this Agreement.
9.14 Waiver. The failure of any Party to assert any of its
rights hereunder shall not constitute a waiver of any of such
rights. All rights and remedies existing under this Agreement
are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
[SIGNATURES FOLLOW ON NEXT PAGE.]
61
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed as of the date first above written.
SELLER:
TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SELLER PARENT:
SEABOARD CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
BUYER:
PUEBLO VIEJO DOMINICANA
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
EXHIBITS AND SCHEDULES TO
ASSET PURCHASE AGREEMENT
DATED SEPTEMBER 23, 2008
AMONG TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD.,
SEABOARD CORPORATION AND
PUEBLO VIEJO DOMINICANA CORPORATION
Following is a list of the Exhibits and Schedules to the Asset
Purchase Agreement dated September 23, 2008, 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"), which is filed with
the Securities and Exchange Commission ("SEC"). Seaboard
Corporation ("Seaboard") undertakes to provide to the SEC the
Exhibits and Schedules, as requested, subject to Seaboard's right
to request confidential treatment under the Freedom of
Information Act.
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
2