AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment"), dated March 2 , 2009, is
made and entered into by and among TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD., a Bermuda company limited by shares
("Seller"); SEABOARD CORPORATION, a Delaware corporation ("Seller
Parent"); and PUEBLO VIEJO DOMINICANA CORPORATION, a Barbados
corporation registered as a branch in the Dominican Republic
("Buyer"). Each of Seller, Seller Parent and Buyer are sometimes
individually referred to in this Amendment as a "Party" and
collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, the Parties are parties to the Asset Purchase
Agreement (the "Purchase Agreement"), dated September 23, 2008
(capitalized terms used in this Amendment which are not otherwise
defined herein shall have the respective meanings ascribed to
those terms in the Purchase Agreement);
WHEREAS, the Parties have now completed the Pre-Effective
Date Inspection and, based on the results of that Inspection, now
desire to take steps to establish the Effective Date; and
WHEREAS, the Parties desire to amend the Purchase Agreement
in certain respects as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements contained in this Amendment,
and intending to be legally bound hereby, the Parties agree as
follows:
Section 1. Effective Date.
1.1 Pre-Effective Date Inspection. The Pre-Effective Date
Inspection was completed as of January 14, 2009. A copy of the
Pre-Effective Date Inspection summary of results and an
accompanying cover letter, dated January 14, 2009, were delivered
by Seller and Seller Parent to Buyer. Seller, Seller Parent and
Buyer subsequently agreed to certain changes to some of the
Pre-Effective Date Inspection summary results, which were
memorialized in a cover letter dated February 11, 2009 from
Seller and Seller Parent to Buyer attaching the updated results
of the Pre-Effective Date Inspection.
1.2 Effective Date Certificate. On February 13, 2009, Buyer
delivered the Effective Date Certificate to Seller and Seller
Parent (a copy of which is attached hereto as Exhibit I).
1.3 Effective Date. Seller and Seller Parent hereby waive their
right to give Buyer a Baseline Termination Notice, and the
Parties hereby agree, notwithstanding anything in the Purchase
Agreement to the contrary, as follows:
(a) The Effective Date shall be deemed to be March 2, 2009; and
(b) Pursuant to Section 3.1(a) of the Purchase Agreement, Buyer
shall deposit with Escrow Agent the sum of Fifteen Million
Dollars (U.S. $15,000,000) as the Effective Escrow Deposit on or
before March 3, 2009.
Section 2. Amendments.
The Purchase Agreement is hereby amended as follows:
(a) The definitions set forth in Section 1.1 of the Purchase
Agreement for the terms "Baseline Hull Condition," "Baseline
Performance Levels" and "Effective Date" are hereby deleted in
their entirety and the following definitions are hereby
substituted in lieu thereof:
"Baseline Hull Condition" means the state of the
Barges' hulls, as determined based upon the Pre-
Effective Date Inspection (tested in accordance with
the Hull Test Guidelines and the Hull Test Procedures,
listed in Schedule 1.1(a)) and set forth in Exhibit A
to the Effective Date Certificate, which, for the
avoidance of doubt, shall take into account, in the
case of the covenants to be performed by Seller
pursuant to Section 6.2(a) and the tests and covenants
to be performed in connection with the Closing in
accordance with Section 6.6, any tolerance or
degradation, in the case of pitting, to the extent, but
only to the extent, of pitting permitted as set forth
in Table 4 (Pitting intensity and corresponding maximum
average depth of pitting), in the case of the thickness
of the "Neutral Axis Zone" or the "Bottom Zone" of the
hull of each Barge, to the extent, but only to the
extent, of wastage permitted as set forth in the
"Neutral Axis Zone" and the "Bottom Zone" sections,
respectively, of Table 5 (Local and global acceptance
criteria for general cargo ships (given in % of
wastage)), and, with respect to matters other than
pitting and thickness, as otherwise expressly permitted
by the Hull Test Guidelines and the Hull Test
Procedures. Notwithstanding the Pre-Effective Date
Inspection results with respect to the state of the
Barges' hull thickness, the Baseline Hull Condition
hull thickness of each of the Barges shall be deemed to
be no greater than the original manufactured thickness
of such Barge.
"Baseline Performance Levels" means those levels,
as determined based upon the Pre-Effective Date
Inspection and set forth in Exhibit B to the Effective
Date Certificate, for the Heat Rate Baseline, the Net
Electrical Capacity Baseline, the Capacity Factor
Baseline, the Lubricating Oil Consumption Baseline, the
Stack Emissions Baseline, the Noise Emissions Baseline
and the Effluent Emissions Baseline (with respect to
the Generation Assets operating individually or
simultaneously in compliance with all applicable Laws
and within acceptable
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operating limits as recommended
by the manufacturer and specified in the manufacturer's
operations and maintenance manuals), tested in
accordance with the Performance Test Guidelines and the
Performance Test Procedures, which, for the avoidance
of doubt, shall take into account, in the case of the
covenants to be performed by Seller pursuant to Section
6.2(a) and the tests and covenants to be performed in
connection with the Closing in accordance with Section
6.6, (a) any tolerance or degradation expressly
permitted by the Performance Test Guidelines and
Performance Test Procedures and (b) with respect to the
Noise Emissions Baseline, the fact that Seller's
obligations shall be limited as provided in Section
4.F.3 of Schedule 1.1(d).
"Effective Date" means March 2, 2009.
(b) The following definitions are hereby added to Section 1.1 of
the Purchase Agreement, in alphabetical order:
"Table 4" means the narrative information under
part 4.5 and the following Table 4: Pitting intensity
and corresponding maximum average depth of pitting,
which is set forth in Chapter 2 Appendix 3 (Thickness Measurements:
Extent, Determination of Locations, Acceptance Criteria) of the Rules
for the Classification of Steel Ships - Part A
Classification and Surveys published by Bureau Veritas
(May 2006) and which is attached hereto as Schedule
1.1(j).
"Table 5" means the narrative information under
part 4.5 and the following Table 5: Local and global
acceptance criteria for general cargo ships (given in %
of wastage), which is set forth in Chapter 2, Appendix 3 (Thickness
Measurements: Extent, Determination of Locations, Acceptance
Criteria) of the Rules for the Classification of Steel Ships - Part A
Classification and Surveys published by Bureau Veritas
(May 2006) and which is attached hereto as Schedule
1.1(j).
(c) Schedule 1.1(j), which is attached to this Amendment, is
hereby deemed attached to the Purchase Agreement as a part
thereof.
(d) Subparagraph (c) of Section 2.11 (Conditions Precedent to
Release of the Effective Escrow Deposit) of the Purchase
Agreement is amended to read as follows:
"(c) an official certificate of registration (i)
of a valid and perfected naval mortgage (hipoteca
naval) in the Barges in the Dominican Republic (based
on the execution and delivery of the Hipoteca Naval in
accordance with Section 2.8) and (ii) of a valid and
perfected lien and security interest in the other
Acquired Assets (other than the Concession) (based on
the execution and delivery of the Contrato de Prenda
sin Desapoderamiento in accordance with Section
6.19(f));"
(e) As noted in the results of the Pre-Effective Date
Inspection, the test of the oil and grease concentration of the
Effluent Emissions resulted in a reading of 15.7 mg/l for Barge A
against a maximum allowable concentration of 10 mg/l. Section
6.6(a)(ii)
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(Baseline Performance Levels) of the Purchase
Agreement is hereby amended by adding the following sentence as
the last sentence of that Section:
"Prior to the Wind Down Date, Seller shall
make any repairs and/or improvements to
Barge A which are necessary to enable Barge A
to meet the Baseline Performance Level for
the Effluent Emissions Baseline."
(f) Section 6.6(a)(iii) (Hull Inspection) of the Purchase
Agreement shall be amended by adding the following sentences as
the third and fourth sentences of that Section (immediately
following the sentence in that Section which begins "If a Barge
does not meet . . ."), with the remainder of that Section
continuing in effect as currently set forth in the Purchase
Agreement:
"If there is any disagreement between Buyer
or Seller as to whether a Barge meets the
Baseline Hull Condition, then the final
determination with respect to that issue
shall be made by an independent and reputable
expert mutually selected by Buyer and Seller
promptly following Buyer's inspection of the
Barges' hulls. Notwithstanding the
foregoing, with respect to the pitting or
hull thickness of each of the Barge(s) only,
if there is pitting or hull wastage, in
either case, in excess of that permitted by
the Baseline Hull Condition as determined in
accordance with the Hull Test Guidelines and
such condition is not repaired by the last
day of the Delivery Window, then such
condition shall be deemed to be a Minor
Delivery Failure and Buyer shall be required
to elect Option B under Section 6.6(d) (and,
for the avoidance of doubt, shall not be
entitled to elect Option A) with respect to
the Minor Delivery Failure caused by such
condition."
(g) The initial clause of the first sentence of Section
6.6(a)(iv) (Known Hull Repair Issues) of the Purchase Agreement
(which reads "Seller shall repair the Known Hull Repair Issues in
a reasonable manner within one hundred eighty (180) days
following the date hereof") shall be amended to read as follows:
"Seller shall repair the Known Hull Repair
Issues in a reasonable manner within one
hundred eighty (180) days following
February 23, 2009;"
and the remainder of that sentence shall continue in effect
as set out in the Purchase Agreement without change.
(h) Section 6.6(a)(v) (Allocation) of the Purchase Agreement
shall be amended to read as follows:
"(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
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Buyer after the Closing, (b)
those repairs are made to correct any pitting or
deteriorated shell plating on a Barge's hull where
pitting or deterioration exceeds that permitted by
the Baseline Hull Condition, and (c) Buyer elects to
make repairs to the shell plating such that,
following such repairs, the remaining pitting or
deterioration to the repaired area is less than that
permitted by the Baseline Hull Condition then, for
the purposes of Section 6.6(a)(iii) or Section
6.6(a)(iv), the actual cost of 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 permitted by the
Baseline Hull Condition was 30% and the actual
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."
(i) Schedule 1.1(a) (Hull Test Guidelines for Minimum Hull
Standards) of the Purchase Agreement and Schedule 1.1(g) (Hull
Maintenance) of the Purchase Agreement are hereby replaced in
their entirety by Schedule 1.1(a) (Hull Test Guidelines for
Minimum Hull Standards) and Schedule 1.1(g) (Hull Maintenance),
respectively, which are attached to this Amendment.
(j) In the definition of "Stack Emissions Baseline Tolerance" in
part 1 (Definitions) of Schedule 1.1(d) (Performance Test
Guidelines) of the Purchase Agreement, the four (4) references to
"2,200 mg/Nm3" are hereby deleted and, in lieu thereof, are
inserted references to "2,300 mg/Nm3."
(k) Schedule 1.1(i) (Known Hull Repair Issues) or the Purchase
Agreement shall be amended by adding the following paragraph
under the section entitled "Barge B - Known Hull Repair Issues:"
"2. The Cathodic Protection System shall be
serviced and/or repaired as necessary to
repair the issues listed in the report of
Miami Diver, Inc., dated 16 October 2008,
with respect to Barge B (Job Number 08510)
under the section entitled "Cathodic
Protection System" (a copy of which report is
attached to the Effective Date Certificate,
dated February 13, 2008)."
Section 3. Fulfillment of Certain Conditions.
3.1 Security Agreement. Contemporaneously with the execution of
this Amendment, Seller and Buyer have executed and delivered the
Security Agreement in accordance with Section 2.9 of the Purchase
Agreement.
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3.2 Certificates. Pursuant to Section 2.11 of the Purchase
Agreement, as promptly as practicable following the Effective
Date, Seller is to deliver, or cause to be delivered, certain
certifications/ confirmations (which deliveries are conditions
precedent to the release of the Effective Escrow Deposit). As of
the date hereof, the Parties acknowledge that the following items
have been delivered to Buyer:
(a) an official certification from the Internal Revenue
Directorate (Dirreci?n General de Impuestos Internos) in the
Dominican Republic, dated January 29, 2009, confirming that
Seller is in compliance with its fiscal obligations;
(b) official certifications, dated February 5, 2009, from the
Naval Ministry (Xxxxxx xx Xxxxxx) in the Dominican Republic
confirming that the Barges are registered in the Dominican
Republic;
(c) a certificate of a duly authorized officer of Seller Parties
certifying that the representations and warranties set forth in
Article IV of the Purchase Agreement 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 were 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
(d) written confirmation that the Xxxxx Xxxx has been satisfied
in full and discharged of record, as evidenced by a search
performed by Buyer's Bermuda counsel.
Section 4. Miscellaneous.
4.1 Binding Effect. This Amendment 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.
4.2 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
4.3 Counterparts. This Amendment 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.
4.4 Amendment; Modification. This Amendment may only be
amended, modified or supplemented by express written agreement of
the Parties.
4.5 Continuing Effect. The Purchase Agreement, as amended
pursuant to the terms hereof, shall continue in full force and
effect in accordance with its terms.
[SIGNATURES ON SUCCEEDING PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Amendment
to be executed as of the date first above written.
SELLER:
TRANSCONTINENTAL CAPITAL
CORPORATION (BERMUDA) LTD.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
SELLER PARENT:
SEABORD CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
BUYER:
PUEBLO VIEJO DOMINICANA CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Director
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
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EXHIBITS AND SCHEDULES TO
AMENDMENT TO ASSET PURCHASE AGREEMENT
DATED MARCH 2, 2009
Following is a list of the Exhibits and Schedules to the
Amendment to Asset Purchase Agreement dated March 2, 2009, 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 I Effective Date Certificate
Schedules
Schedule 1.1(a) Hull Test Guidelines for Minimum Hull Standards
Schedule 1.1(g) Hull Maintenance
Schedule 1.1(j) Chapter 2, Appendix 3 (Thickness Measurements: Extent,
Determination of Locations, Acceptance Criteria)
of the Rules for the Classification of Steel Ships - Part A
Classification and Surveys published by Bureau
Veritas (May 2006)
