File No. 70-8505
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
APPLICATION OR DECLARATION on FORM U-1
under
The Public Utility Holding Company Act of 1935
THE SOUTHERN COMPANY
64 Perimeter Center East
Atlanta, Georgia 30346
(Name of company or companies filing this statement
and addresses of principal executive offices)
THE SOUTHERN COMPANY
(Name of top registered holding company parent of
each applicant or declarant)
Tommy Chisholm, Secretary Thomas G. Boren, President
The Southern Company Southern Electric International,
64 Perimeter Center East Inc.
Atlanta, Georgia 30346 900 Ashwood Parkway, Suite 500
Atlanta, Georgia 30338
(Names and addresses of agents for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to:
W.L. Westbrook John F. Young
Financial Vice-President Vice President
The Southern Company Southern Company Services, Inc.
64 Perimeter Center East One Wall Street, 42nd Floor
Atlanta, Georgia 30346 New York, New York 10005
Thomas G. Boren John D. McLanahan, Esq.
President Troutman Sanders
Southern Electric 600 Peachtree Street, N.E.
International, Inc. Suite 5200
900 Ashwood Parkway Atlanta, Georgia 30308-2216
Suite 500
Atlanta, Georgia 30338
<PAGE>
Item 6. Exhibits and Financial Statements.
a. Exhibits.
B-1 - Acquisition Documents
(a) Asset Purchase Agreement between
Mobile Energy and Scott.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned companies have duly caused
this statement to be signed on their behalf by the undersigned
thereunto duly authorized.
Dated: December 12, 1994 THE SOUTHERN COMPANY
By: /s/ Tommy Chisholm
Tommy Chisholm
Secretary
2
<PAGE>
EXHIBIT B-1(a)
L&W Draft No. 5
December 7, 1994
ASSET PURCHASE AGREEMENT
by and between
SCOTT PAPER COMPANY,
a Pennsylvania corporation,
as "Seller,"
and
MOBILE ENERGY SERVICES COMPANY, INC.,
an Alabama corporation,
as "Buyer"
Dated as of , 1994
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 - DEFINITIONS; INTERPRETATION . . . . . . . . . . . . . 3
1.1 Definitions . . . . . . . . . . . . . . . . . . . . 3
1.2 Rules of Interpretation . . . . . . . . . . . . . . 3
ARTICLE 2 - PURCHASE AND SALE OF PURCHASED ASSETS . . . . . . . . 3
2.1 Transfer of Purchased Assets . . . . . . . . . . . 3
2.2 Assumption of Liabilities . . . . . . . . . . . . . 3
2.3 Excluded Liabilities . . . . . . . . . . . . . . . 4
2.4 Purchase Price . . . . . . . . . . . . . . . . . . 5
2.5 Apportionment . . . . . . . . . . . . . . . . . . . 5
2.6 Closing Costs; Transfer Taxes and Fees . . . . . . 6
ARTICLE 3 - CLOSING . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Closing . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Conveyances at Closing . . . . . . . . . . . . . . 6
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . 7
4.1 Organization of Seller . . . . . . . . . . . . . . 7
4.2 Authorization . . . . . . . . . . . . . . . . . . . 7
4.3 Absence of Certain Changes or Events . . . . . . . 8
4.4 Title and Liens . . . . . . . . . . . . . . . . . . 8
4.5 No Special Assessments . . . . . . . . . . . . . . 8
4.6 Contracts . . . . . . . . . . . . . . . . . . . . . 8
4.7 Permits and Consents . . . . . . . . . . . . . . . 9
4.8 No Conflict or Violation . . . . . . . . . . . . . 9
4.9 Litigation . . . . . . . . . . . . . . . . . . . . 9
4.10 Compliance with Law . . . . . . . . . . . . . . . . 9
4.11 No Brokers . . . . . . . . . . . . . . . . . . . . 10
4.12 No Other Agreements to Transfer the Assets . . . . 10
4.13 Proprietary Rights . . . . . . . . . . . . . . . . 10
4.14 Tax Matters . . . . . . . . . . . . . . . . . . . . 10
4.15 Material Misstatements Or Omissions. . . . . . . . 11
4.16 Mechanics' Liens . . . . . . . . . . . . . . . . . 11
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . 11
5.1 Organization of Buyer . . . . . . . . . . . . . . . 12
5.2 Authorization . . . . . . . . . . . . . . . . . . . 12
5.3 No Conflict or Violation . . . . . . . . . . . . . 12
5.4 Consents and Approvals. . . . . . . . . . . . . . . 12
5.5 No Brokers . . . . . . . . . . . . . . . . . . . . 12
5.6 Litigation . . . . . . . . . . . . . . . . . . . . 12
i
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Page
ARTICLE 6 - COVENANTS OF SELLER AND BUYER . . . . . . . . . . . . 13
6.1 Further Assurances . . . . . . . . . . . . . . . . 13
6.2 Notification of Certain Matters . . . . . . . . . . 13
6.3 Books and Records . . . . . . . . . . . . . . . . . 14
6.4 Access to Information . . . . . . . . . . . . . . . 14
6.5 Conduct of Business . . . . . . . . . . . . . . . . 14
ARTICLE 7 - CONDITIONS TO SELLER'S OBLIGATIONS . . . . . . . . . . 15
7.1 Representations, Warranties and Covenants . . . . . 15
7.2 Consents . . . . . . . . . . . . . . . . . . . . . 15
7.3 No Proceedings, Litigation or Laws . . . . . . . . 15
7.4 Opinion of Counsel . . . . . . . . . . . . . . . . 15
7.5 Certificates . . . . . . . . . . . . . . . . . . . 15
7.6 Corporate Documents . . . . . . . . . . . . . . . . 15
7.7 HSR Act . . . . . . . . . . . . . . . . . . . . . . 16
7.8 Operative Documents . . . . . . . . . . . . . . . . 16
7.9 Purchase Price . . . . . . . . . . . . . . . . . . 16
7.10 Off-Credit Treatment . . . . . . . . . . . . . . . 16
7.11 Territorial Act . . . . . . . . . . . . . . . . . . 16
ARTICLE 8 - CONDITIONS TO BUYER'S OBLIGATIONS . . . . . . . . . . 16
8.1 Representations, Warranties and Covenants . . . . . 16
8.2 Consents; Estoppel Certificates . . . . . . . . . . 17
8.3 No Proceedings or Litigation . . . . . . . . . . . 17
8.4 Opinion of Counsel . . . . . . . . . . . . . . . . 17
8.5 Certificates . . . . . . . . . . . . . . . . . . . 17
8.6 Material Changes . . . . . . . . . . . . . . . . . 17
8.7 Corporate Documents . . . . . . . . . . . . . . . . 17
8.8 HSR Act . . . . . . . . . . . . . . . . . . . . . . 18
8.9 Release of Liens . . . . . . . . . . . . . . . . . 18
8.10 Operative Documents . . . . . . . . . . . . . . . . 18
8.11 Nonforeign Affidavit. . . . . . . . . . . . . . . . 18
8.12 Additional Certificates; Opinions. . . . . . . . . 18
8.13 PUHCA. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 9 - RISK OF LOSS; CONSENTS TO ASSIGNMENT . . . . . . . . . 19
9.1 Risk of Loss . . . . . . . . . . . . . . . . . . . 19
9.2 Consents to Assignment . . . . . . . . . . . . . . 19
ARTICLE 10 - ACTIONS BY SELLER AND BUYER AFTER THE CLOSING . . . . 20
10.1 Collection of Payments . . . . . . . . . . . . . . 20
10.2 Books and Records; Tax Matters . . . . . . . . . . 20
10.3 Survival of Representations, Etc. . . . . . . . . . 21
10.4 Indemnifications . . . . . . . . . . . . . . . . . 21
ii
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Page
ARTICLE 11 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 24
11.1 Termination . . . . . . . . . . . . . . . . . . . . 24
11.2 Assignment . . . . . . . . . . . . . . . . . . . . 25
11.3 Notices; Transfer of Funds . . . . . . . . . . . . 25
11.4 Governing Law . . . . . . . . . . . . . . . . . . . 27
11.5 Entire Agreement; Amendments . . . . . . . . . . . 27
11.6 Counterparts . . . . . . . . . . . . . . . . . . . 28
11.7 Expenses . . . . . . . . . . . . . . . . . . . . . 28
11.8 Severability . . . . . . . . . . . . . . . . . . . 28
11.9 Headings . . . . . . . . . . . . . . . . . . . . . 28
11.10 Confidential Information . . . . . . . . . . . 28
11.11 Cumulative Remedies. . . . . . . . . . . . . . 28
11.12 Service of Process, Consent to Jurisdiction. . 28
11.13 Dispute Resolution. . . . . . . . . . . . . . 29
11.14 Attorneys' Fees . . . . . . . . . . . . . . . 29
11.15 Delay and Waiver . . . . . . . . . . . . . . . 29
11.16 Third-Party Beneficiaries . . . . . . . . . . 29
11.17 Decision-Making by Parties. . . . . . . . . . 29
11.18 Investigation by Buyer. . . . . . . . . . . . 29
11.19 WAIVER OF JURY TRIAL. . . . . . . . . . . . . 30
iii
<PAGE>
EXHIBITS
Exhibit Page
A Definitions . . . . . . . . . . . . . . . . . . A-1
B Allocation of Purchase Price . . . . . . . . . B-1
C Form of Bill of Sale . . . . . . . . . . . . . C-1
D Form of Assignment and Assumption Agreement . . D-1
E Scott Environmental Indemnity Agreement . . . . E-1
F Environmental Guaranty . . . . . . . . . . . . F-1
G 1984 Tax-Exempt Lease Agreement . . . . . . . . G-1
H 1984 Taxable Lease Agreement . . . . . . . . . H-1
I 1973 Tax-Exempt Lease Agreement . . . . . . . . I-1
J 1976 Tax-Exempt Lease Agreement . . . . . . . . J-1
K Lease Assignment Agreement . . . . . . . . . . K-1
L TRT Agreement . . . . . . . . . . . . . . . . . L-1
M Bond Transfer Agreement . . . . . . . . . . . . M-1
N Southern Company Guaranty . . . . . . . . . . . N-1
O Employee Transition Agreement . . . . . . . . . O-1
P-1 Form of Opinion of Latham & Watkins . . . . P-1-1
P-2 Form of Opinion of Troutman Sanders . . . . . . P-2-1
P-3 Form of Opinion of Balch & Bingham . . . . . . P-3-1
Q Form of Buyer's Officer's Certificate . . . . . Q-1
R-1 Form of Opinion of Skadden Aprs, Slate, Meagher &
Flom R-1-1
R-2 Form of Opinion of __________ . . . . . . . . . R-2-1
R-3 Form of Opinion of Armbrecht, Jackson, DeMovy,
Crowe, Holmes & Reeves . . . . . . . . . . . . R-3-1
S Form of Seller's Officer's Certificate . . . . S-1
T Form of Opinion of Morgan, Lewis & Bockius . . T-1
U Form of Consent to Assignment . . . . . . . . . U-1
iv
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SCHEDULES
Schedule
1.1(a) - Accounts
1.1(b) - [RESERVED]
1.1(c) - Credits
1.1(d) - Deposits
1.1(e) - Description of Energy Complex
1.1(f) - Fixtures and Equipment
1.1(g) - Excluded Assets
1.1(h - Liens
1.1(i) - Description of Real Property
1.1(j) - Supplies
1.1(k) - Warranties
4.3 - Certain Changes and Events
4.6 - Energy Complex Contracts
4.7 - Permits and Consents
4.9 - Litigation
4.10 - Compliance with Law
4.12 - Agreements to Sell Assets
[4.13 - Proprietary Rights]
4.14 - Tax Matters
5.4 - Consents and Approvals
v
<PAGE>
ASSET PURCHASE AGREEMENT
1 This Asset Purchase Agreement (this "Agreement"), dated
2 as of ___________, 1994 is by and between MOBILE ENERGY SERVICES
3 COMPANY, INC., an Alabama corporation ("Buyer"), and SCOTT PAPER
4 COMPANY, a Pennsylvania corporation ("Seller").
5
6
7 RECITALS
8
9 A. Seller owns certain assets which it uses in
10 connection with the operation of the Energy Complex (as defined
11 in Exhibit A).
12
13 B. Seller uses the Energy Complex to produce, among
14 other things, electricity, steam and green liquor for the
15 operation of the Mills (each as defined in Exhibit A).
16
17 C. Buyer desires to purchase from Seller, and Seller
18 desires to sell to Buyer, such assets upon the terms and subject
19 to the conditions of this Agreement.
20
21 D. Seller leases the Leased Assets (as defined in
22 Exhibit A) which it also uses in connection with the operation of
23 the Energy Complex.
24
25 E. Concurrently herewith, Buyer and Seller will enter
26 into a Lease Assignment and Assumption Agreement relating to the
27 1984 Tax-Exempt Bonds (as defined in Exhibit A), substantially in
28 the form attached hereto as Exhibit G (the "1984 Tax-Exempt Lease
29 Agreement"), a Sublease and Assignment Agreement relating to
30 facilities financed with 1984-1985 taxable bonds, substantially
31 in the form attached hereto as Exhibit H (the "1984 Taxable Lease
32 Agreement"), a Lease and Assignment Agreement relating to
33 facilities financed with 1973-1980 tax-exempt bonds,
34 substantially in the form attached hereto as Exhibit I (the "1973
35 Tax-Exempt Lease Agreement"), a Lease and Assignment Agreement
36 relating to facilities financed with 1976 tax-exempt bonds,
37 substantially in the form attached hereto as Exhibit J (the "1976
38 Tax-Exempt Lease Agreement") and a Lease Assignment Agreement
39 relating to facilities financed with 1994 taxable bonds,
40 substantially in the form attached hereto as Exhibit K (the
41 "Lease Assignment Agreement").
42
43 G. Concurrently herewith, The Southern Company will
44 execute a Southern Company Guaranty (as defined in Exhibit A)
45 pursuant to which The Southern Company will guarantee the payment
46 and performance of certain obligations of MESC under the 1984
47 Tax-Exempt Lease Agreement.
<PAGE>
1 H. Concurrently herewith, Buyer will enter into an
2 Energy Services Agreement (as defined in Exhibit A) with each of
3 the Pulp Mill Owner, the Tissue Mill Owner and the Paper Mill
4 Owner (each as defined in Exhibit A) pursuant to which Buyer will
5 provide Power Processing Services, Steam Processing Services, and
6 Liquor Processing Services to the Mills.
7
8 I. Concurrently herewith, Buyer, Seller, Pulp Mill
9 Owner, Tissue Mill Owner and Paper Mill Owner will enter into the
10 Master Operating Agreement (as defined in Exhibit A) in order to,
11 among other things, define and allocate certain rights and
12 obligations among the Energy Complex, the Pulp Mill, the Tissue
13 Mill and the Paper Mill (each as defined in Exhibit A).
14
15 J. Concurrently herewith, Buyer and Seller will enter
16 into a Lease (as defined in Exhibit A) pursuant to which, among
17 other things, Seller will lease to Buyer the land constituting
18 the Leased Premises (as defined in Exhibit A).
19
20 K. Concurrently herewith, Buyer, Pulp Mill Owner,
21 Tissue Mill Owner and Paper Mill Owner will enter into the
22 Easement Deeds (as defined in Exhibit A) pursuant to which the
23 parties thereto will grant and obtain certain easements in
24 connection with the operation, maintenance and use of the Energy
25 Complex and the Mills.
26
27 L. Concurrently herewith, Buyer, Seller and SEI will
28 enter into an Employee Transition Agreement (as defined in
29 Exhibit A), pursuant to which, among other things, Buyer and
30 Seller will set forth their respective obligations with respect
31 to the Energy Complex Employees (as defined in Exhibit A).
32
33 M. Concurrently herewith, Buyer and Seller will enter
34 into a Scott Environmental Indemnity Agreement (as defined in
35 Exhibit A), pursuant to which, among other things, Buyer and
36 Seller will indemnify each other for certain specified
37 environmental claims relating to certain environmental
38 conditions, if and when any such claims arise.
39
40 N. Concurrently herewith, (i) MESC and Pulp Mill
41 Owner will enter into a Pulp Mill Environmental Indemnity
42 Agreement (as defined in Exhibit A); (ii) MESC and Paper Mill
43 Owner will enter into a Paper Mill Environmental Indemnity
44 Agreement (as defined in Exhibit A) and (iii) MESC and Tissue
45 Mill Owner will enter into a Tissue Mill Environmental Indemnity
46 Agreement (as defined in Exhibit A) in each case pursuant to
2
<PAGE>
1 which MESC and the applicable Mill Owner will indemnify each
2 other for certain specified environmental claims relating to
3 certain environmental conditions, if and when any such claims
4 arise.
5
6 O. Concurrently herewith, The Southern Company will
7 execute an Environmental Guaranty (as defined in Exhibit A) in
8 favor of the Mill Owners, pursuant to which The Southern Company
9 will guaranty the payment of certain payment obligations of MESC
10 under the Pulp Mill Environmental Indemnity Agreement, the Paper
11 Mill Environmental Indemnity Agreement and the Tissue Mill
12 Environmental Indemnity Agreement.
13
14 P. Concurrently herewith, Pulp Mill Owner, Tissue
15 Mill Owner, Paper Mill Owner and MESC will enter into a Common
16 Services Agreement (as defined in Exhibit A), which provides,
17 among other things, for the sharing of certain services and
18 facilities described therein among the parties thereto.
19
20 Q. Concurrently herewith, Pulp Mill Owner, Tissue
21 Mill Owner, Paper Mill Owner and MESC will enter into a Water
22 Agreement (as defined in Exhibit A), pursuant to which, among
23 other things, Pulp Mill Owner will provide water and waste
24 treatment services to each of the Mills and the Energy Complex.
25
26 R. Concurrently herewith, Pulp Mill Owner and MESC
27 will enter into a Boiler Ash Disposal Agreement (as defined in
28 Exhibit A), pursuant to which, among other things, Pulp Mill
29 Owner will treat and dispose of certain waste products produced
30 by the other parties thereto.
31
32 In consideration of the agreements herein and in the
33 other Operative Documents (as defined in Exhibit A) and in
34 reliance upon the representations and warranties herein and
35 therein, Seller and Buyer agree as follows:
36
37
38 ARTICLE 1 - DEFINITIONS; INTERPRETATION
39
40 1.1 Definitions. Except as otherwise expressly
41 provided herein, capitalized terms used in this Agreement and its
42 Exhibits shall have the meanings given in Exhibit A.
43
44 1.2 Rules of Interpretation. Except as otherwise
45 expressly provided herein, the rules of interpretation set forth
46 in Exhibit A shall apply to this Agreement.
3
<PAGE>
1
2 ARTICLE 2 - PURCHASE AND SALE OF PURCHASED ASSETS
3
4 2.1 Transfer of Purchased Assets. (a) Upon the terms
5 and subject to the conditions contained herein, at the Closing,
6 Seller will sell, convey, transfer, assign and deliver to Buyer,
7 and Buyer will acquire from Seller, free and clear of all Liens
8 other than Permitted Liens, the Purchased Assets.
9
10 (b) EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE 4
11 OR IN THE PURCHASE DOCUMENTS, BUYER ACKNOWLEDGES THAT IT IS
12 PURCHASING THE PURCHASED ASSETS ON AN "AS IS, WHERE IS" BASIS
13 WITH NO WARRANTY, EXPRESS OR IMPLIED, FROM SELLER WITH RESPECT TO
14 THE PURCHASED ASSETS, INCLUDING IMPLIED WARRANTIES OF
15 MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
16
17 2.2 Assumption of Liabilities. Upon the terms and
18 subject to the conditions contained herein, at the Closing, Buyer
19 shall assume the following, and only the following, obligations
20 and liabilities of Seller (the "Assumed Liabilities"):
21
22 (a) All obligations and liabilities accruing,
23 arising out of, or relating to events or occurrences happening
24 after the Closing under the Energy Complex Contracts and
25 Transferred Permits, but not including any obligation or
26 liability for any breach of any such Contract or Permit occurring
27 on or prior to the Closing;
28
29 (b) except as otherwise provided in any of the
30 Operative Documents, all Taxes imposed on the Purchased Assets or
31 on Buyer in its capacity as owner thereof accruing after the
32 Closing;
33
34 (c) the obligations of Seller expressly assumed
35 by Buyer pursuant to the Asset Lease Assumption Agreements;
36
37 (d) any other liabilities expressly assumed by
38 Buyer pursuant to the Scott Environmental Indemnity Agreement,
39 the Employee Transition Agreement or any of the other Operative
40 Documents; and
41
42 (e) unless attributable to the negligence or
43 willful misconduct of Seller, claims arising out of Actions to
44 the extent such Actions (i) are related to the Assets and
45 (ii) arise out of events or circumstances occurring after the
46 Closing Date.
4
<PAGE>
1 2.3 Excluded Liabilities. Notwithstanding any other
2 provision of this Agreement, except for the Assumed Liabilities
3 expressly specified in Section 2.2, Buyer shall not assume, or
4 otherwise be responsible for, any liabilities or obligations of
5 Seller, whether actual or contingent, matured or unmatured,
6 liquidated or unliquidated, or known or unknown, whether arising
7 out of occurrences prior to, at or after the date hereof
8 ("Excluded Liabilities"), which Excluded Liabilities include,
9 without limitation:
10
11 (a) except to the extent expressly included as an
12 Assumed Liability, any liability or obligation of Seller in
13 respect of any Taxes accruing on or prior to the Closing Date;
14
15 (b) except to the extent expressly included as an
16 Assumed Liability, any liability arising from any injury to or
17 death of any person or damage to or destruction of any property,
18 whether based on negligence, breach of warranty, strict
19 liability, enterprise liability or any other legal or equitable
20 theory arising from services performed by or on behalf of Seller
21 or any other Person on or prior to the Closing;
22
23 (c) except to the extent expressly included as an
24 Assumed Liability any liability or obligation of Seller arising
25 out of or related to (i) any Action against Seller or (ii) any
26 Action relating to the Assets, the Energy Complex or the Site
27 and, in the case of Actions described in this clause (ii), which
28 shall have been asserted on or prior to the Closing or to the
29 extent the basis of which shall have arisen on or prior to the
30 Closing;
31
32 (d) any liability or obligation of Seller
33 resulting from entering into, performing its obligations pursuant
34 to or consummating the transactions contemplated by, this
35 Agreement (including, without limitation, any liability or
36 obligation of Seller pursuant to Article 10 hereof); and
37
38 (e) subject to Section 6.1(b), any other
39 liabilities not expressly assumed by Buyer pursuant to the Scott
40 Environmental Indemnity Agreement, the Employee Transition
41 Agreement or any of the other Operative Documents.
42
43 2.4 Purchase Price. At the Closing, upon the terms
44 and subject to the conditions set forth herein, Buyer shall pay
45 to Seller for the sale, transfer, assignment, conveyance and
46 delivery of the Assets, the aggregate amount of three hundred
5
<PAGE>
1 fifty million Dollars ($350,000,000) (the "Purchase Price") minus
2 the Purchase Price Offset Amount. Subject to Section 3.2(b) of
3 the Employee Transition Agreement, such Purchase Price shall be
4 paid as follows: (i) Dollars ($ ), by
5 wire transfer of immediately available funds to an account
6 designated by Seller; and (ii) Dollars ($ )
7 by way of assumption of the obligations under the 1984 Tax-Exempt
8 Bonds. In addition, effective at the time of Closing, Buyer
9 shall assume the Assumed Liabilities pursuant to this Agreement.
10 The Purchase Price shall be allocated among the Assets in the
11 manner required by Section 1060 of the Code and regulations
12 thereunder. Exhibit B attached hereto sets forth the amount of
13 the Purchase Price allocable to the various Assets. Buyer and
14 Seller each agree to prepare and file on a timely basis with the
15 Internal Revenue Service substantially identical initial and
16 supplemental Internal Revenue Service Forms 8594 "Asset
17 Acquisition Statements Under Section 1060" consistent with
18 Exhibit B and which give effect to any adjustment determined in
19 accordance with Section 2.5.
20
21 [ONCE AHLSTROM CONSENT ISSUE IS RESOLVED, WE NEED TO BUILD IN THE
22 TRANSFER OF THE APPROX. $700,000 CONTRACT RETAINAGE]
23
24 2.5 Apportionment. Seller and Buyer agree to adjust
25 the Purchase Price at Closing, and if and to the extent that it
26 is not possible to do so at Closing, to continue to work together
27 in good faith and to make any remaining adjustments as promptly
28 as possible and in no event later than 180 days after the
29 Closing, to reflect the concept that all income and expenses with
30 respect to the Assets and the Energy Complex on or prior to the
31 Closing are for the benefit and are the obligation of Seller and
32 all income and expenses with respect to the Assets and the Energy
33 Complex commencing after the Closing are for the benefit and are
34 the obligation of Buyer. It is contemplated that such
35 adjustments shall include, for example, the proration of (i) all
36 real and personal property Taxes and other Taxes imposed on the
37 Assets that are being assumed by Buyer, the operation of the
38 Energy Complex or the Leased Premises and not paid by others,
39 (ii) utility charges payable by the owner of the Energy Complex,
40 (iii) all rents under leases and payments under maintenance
41 contracts included in the Energy Complex Contracts assumed by
42 Buyer, (iv) local business or other license, Permit and
43 inspection fees that are being assumed by Buyer, and other
44 similar periodic charges payable with respect to the Assets or
45 the Leased Premises, (v) all fees and other payments due in
46 connection with the 1984 Tax-Exempt Bonds (vi) the cost of all
6
<PAGE>
1 coal included in the Supplies transferred to Buyer hereunder (it
2 being understood that any charge to MESC for any coal included in
3 such Supplies shall be in addition to the Purchase Price) and
4 (vii) such other items specifically agreed upon in the Employee
5 Transition Agreement; provided that any adjustments to the
6 Purchase Price to be made pursuant to the Employee Transition
7 Agreement shall be made in accordance with the procedures set
8 forth therein. Any resulting difference which is not made to the
9 Purchase Price and adjusted at Closing shall be paid directly to
10 Buyer by Seller, or to Seller by Buyer, as the case may be,
11 within five days after the determination thereof in accordance
12 with this Section 2.5.
13
14 2.6 Closing Costs; Transfer Taxes and Fees. Buyer and
15 Seller shall each be responsible for one-half of all documentary
16 and transfer Taxes and any sales, use or other Taxes imposed by
17 reason of the transfers of Assets provided hereunder and under
18 the Asset Lease Assumption Agreements (other than Taxes imposed
19 on or measured by the net income or profits of Seller, which
20 shall be the sole responsibility of Seller) and any deficiency,
21 interest or penalty asserted with respect thereto. Buyer and
22 Seller shall each pay one-half of all fees and costs of recording
23 or filing all applicable conveyancing instruments described in
24 Section 3.2(a). Buyer shall pay all costs of obtaining the
25 transfer of Transferred Permits and applying for new Energy
26 Complex Permits which are not Transferred Permits.
27
28
29 ARTICLE 3 - CLOSING
30
31 3.1 Closing. The closing of the transactions
32 contemplated herein (the "Closing") shall be held at 10:00 a.m.
33 New York City time on the Closing Date at the offices of Latham &
34 Watkins, 885 Third Avenue, New York, New York 10022, unless the
35 parties hereto otherwise agree. All events at the Closing shall
36 be deemed to occur simultaneously, unless otherwise provided
37 herein.
38
39 3.2 Conveyances at Closing.
40
41 (a) Instruments and Possession. To effect the
42 sale and transfer referred to in Section 2.1, Seller shall, on
43 the Closing Date, deliver to Buyer:
44
45 (i) a duly-executed Bill of Sale;
46
7
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1 (ii) an affidavit of Seller with respect to
2 mechanics' liens certifying that there are no unpaid bills for
3 services rendered or materials furnished to the Energy Complex;
4
5 (iii) receipts showing payment of all real
6 and personal property Taxes, water and sewer Taxes, utility
7 charges and rents due and payable with respect to the Energy
8 Complex or the Assets on or prior to the Closing;
9
10 (iv) to the extent in the possession or
11 control of Seller, a complete set of as-built plans,
12 specifications and surveys showing each building and improvement
13 comprising part of the Energy Complex; provided that if such
14 plans, specifications or surveys are not available on the Closing
15 Date, then such documents shall be delivered to Buyer as promptly
16 thereafter as reasonably possible; and
17
18 (v) such other instruments as Buyer shall
19 reasonably request to vest in Buyer title in and to the Assets in
20 accordance with the provisions hereof.
21
22 (b) Assignment and Assumption. Upon the terms
23 and subject to the conditions contained herein, at the Closing
24 Buyer and Seller shall execute and deliver the Assignment and
25 Assumption Agreement, the 1984 Tax-Exempt Lease Agreement, the
26 1984 Taxable Lease Agreement, the 1973 Tax-Exempt Lease
27 Agreement, the 1976 Tax-Exempt Lease Agreement and the Lease
28 Assignment Agreement.
29
30 (c) Form of Instruments. To the extent that a
31 form of any document to be delivered hereunder is not attached as
32 an Exhibit hereto, such documents shall be in form and substance,
33 and shall be executed and delivered in a manner, reasonably
34 satisfactory to Buyer and Seller.
35
36 (d) Certificates; Opinions. Buyer and Seller
37 shall deliver each of the other Operative Documents and the other
38 certificates, opinions of counsel and other documents described
39 in Articles 7 and 8.
40
41 (e) Consents. Subject to Section 9.2, Seller
42 shall deliver all Permits and Consents required for the valid
43 transfer of the Assets as contemplated by this Agreement and the
44 Asset Lease Assumption Agreements.
45
46
8
<PAGE>
1 ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF SELLER
2
3 Seller hereby represents and warrants to Buyer as
4 follows, which representations and warranties are, as of the date
5 hereof, and will be, as of the Closing Date, true and correct in
6 all material respects:
7
8 4.1 Organization of Seller. Seller is a corporation
9 duly organized, validly existing and in good standing under the
10 laws of the State of Pennsylvania. Seller is duly qualified to
11 do business as a foreign corporation and is in good standing in
12 the State of Alabama.
13
14 4.2 Authorization. Seller has all requisite corporate
15 power and authority, and has taken all corporate action necessary
16 to execute and deliver this Agreement and the other Operative
17 Documents to which it is a party, to consummate the transactions
18 contemplated hereby and thereby and to perform its obligations
19 hereunder and thereunder. The execution and delivery of this
20 Agreement and the other Operative Documents by Seller and the
21 consummation by Seller of the transactions contemplated hereby
22 and thereby have been duly approved by the Board of Directors of
23 Seller. No other corporate proceedings on the part of Seller are
24 necessary to authorize this Agreement and the other Operative
25 Documents to which it is a party and the transactions
26 contemplated hereby and thereby. This Agreement and the other
27 Operative Documents to which Seller is a party have been duly
28 executed and delivered by Seller and are the legal, valid and
29 binding obligations of Seller, enforceable against Seller in
30 accordance with their respective terms, except to the extent that
31 enforceability may be limited by applicable bankruptcy,
32 insolvency, moratorium, reorganization or other similar laws and
33 subject to general equitable principles.
34
35 4.3 Absence of Certain Changes or Events. Except as
36 set forth on Schedule 4.3, between April 1, 1994, and the date of
37 this Agreement, there has not been any:
38
39 (a) event or change which, individually or in the
40 aggregate, could reasonably be expected to have a Material
41 Adverse Effect;
42
43 (b) material change in accounting methods,
44 principles or practices by Seller in respect of the Mills or the
45 Energy Complex;
46
9
<PAGE>
1 (c) amendment, cancellation or termination of any
2 Contract or Permit relating to the Assets or entry into any
3 Contract or Permit relating to the Assets other than in the
4 ordinary course of business consistent with past practice and
5 which amendment, cancellation or termination could reasonably be
6 expected to have a MESC Material Adverse Effect;
7
8 (d) sale, assignment or transfer of any material
9 Assets (individually or in the aggregate), other than pursuant to
10 this Agreement or in the ordinary course of business consistent
11 with past practice for which replacement Assets have been
12 obtained; or
13
14 (e) unremedied failure to pay or satisfy when due
15 any obligation of Seller relating to the Assets.
16
17 4.4 Title and Liens. Seller has and will transfer
18 good and marketable title to the Purchased Assets and a good and
19 marketable leasehold interest in the Leased Assets, and upon the
20 consummation of the transactions contemplated hereby, Buyer will
21 acquire good title to all of the Purchased Assets and a valid
22 leasehold interest in all of the Leased Assets, in each case free
23 and clear of any Liens other than Permitted Liens.
24
25 4.5 No Special Assessments. Seller has not received
26 notice of any special assessment relating to the Leased Premises
27 or any portion thereof and there is no pending or threatened
28 special assessment.
29
30 4.6 Contracts.
31
32 (a) Contracts. Seller has delivered to Buyer
33 true, correct and complete copies of all of the Energy Complex
34 Contracts, including all amendments and supplements thereto. All
35 Contracts which relate specifically to the Assets or the
36 operation of the Energy Complex are listed on Part I of
37 Schedule 4.6.
38
39 (b) Absence of Breaches or Defaults. All of the
40 Energy Complex Contracts are legal, valid and binding obligations
41 of Seller and are, to Seller's current actual knowledge, in full
42 force and effect. Seller has duly performed all of its
43 obligations under the Energy Complex Contracts to the extent
44 those obligations to perform have accrued, and no violation of,
45 or default or breach under any Energy Complex Contracts by Seller
46 or, to Seller's current actual knowledge, any other party has
10
<PAGE>
1 occurred which could reasonably be expected to have a Material
2 Adverse Effect and neither Seller nor, to Seller's current actual
3 knowledge, any other party has repudiated any provisions thereof.
4
5 4.7 Permits and Consents. Seller has all Permits
6 required to own, operate and maintain the Energy Complex as now
7 owned, operated and maintained. All Permits held by Seller and
8 relating specifically to the operation or the ownership of the
9 Energy Complex are listed on Part I of Schedule 4.7. Except as
10 set forth on Part II of Schedule 4.7, all Energy Complex Permits
11 are valid and in full force and effect. All Transferred Permits
12 are listed on Part III of Schedule 4.7. Other than approvals
13 required pursuant to the HSR Act in connection with the
14 consummation of the purchase of the Purchased Assets by Buyer
15 hereunder, and except as disclosed on Part IV of Schedule 4.7, no
16 Permit or Consent is required to be obtained by Seller in
17 connection with the execution or delivery of this Agreement or
18 the other Purchase Documents to which it is a party and the
19 consummation of the transactions contemplated hereby or thereby.
20
21 4.8 No Conflict or Violation. Except where such a
22 violation would not have a MESC Material Adverse Effect, neither
23 the execution or delivery of this Agreement or the other
24 Operative Documents to which Seller is a party, nor the
25 consummation by Seller of the transactions contemplated hereby or
26 thereby, will (a) violate or conflict with any provision of the
27 Articles of Incorporation or Bylaws of Seller, (b) violate,
28 conflict with, or result in a breach of any provision of, or
29 constitute a default (or an event which, with notice or lapse of
30 time or both, would constitute a default) under, or result in the
31 termination of, or accelerate the performance required by, or
32 result in a right of termination or acceleration under, or result
33 in the creation of any Lien upon any of its assets (including,
34 without limitation, the Assets) under, any of the terms,
35 conditions or provisions of any Contract to which Seller is a
36 party or by which it is bound or (c) violate any Governmental
37 Rule.
38
39 4.9 Litigation. Except as set forth on Schedule 4.9,
40 there is no action, order, writ, injunction, judgment or decree
41 outstanding or any claim, suit, litigation, proceeding, labor
42 dispute, arbitral action, governmental audit or governmental
43 investigation (collectively, "Actions") pending or, to Seller's
44 current actual knowledge, threatened or anticipated (a) against,
45 or specifically related to or affecting the Energy Complex, (b)
46 which could reasonably be expected to have a MESC Material
11
<PAGE>
1 Adverse Effect or (c) seeking to delay, limit or enjoin the
2 transactions contemplated by this Agreement. Seller is not in
3 default with respect to or subject to any judgment, order, writ,
4 injunction or decree of any Governmental Authority, and there are
5 no unsatisfied judgments against Seller, in each case relating to
6 or affecting the Energy Complex.
7
8 4.10 Compliance with Law. Except as set forth on
9 Schedule 4.10 or in the Scott Environmental Indemnity Agreement
10 or the Employee Transition Agreement, Seller has at all times
11 operated the Energy Complex in compliance with, and there
12 presently exists no violation with respect to the ownership or
13 operation of the Energy Complex of, any Applicable Law, except
14 where any such noncompliance or violation would not have a
15 Material Adverse Effect. Except as set forth in Schedule 4.10,
16 Seller has not received any notice to the effect that, or
17 otherwise been advised that it is not in compliance with any such
18 Applicable Law.
19
20 4.11 No Brokers. Neither Seller nor any of its
21 officers, directors, employees, shareholders or Affiliates has
22 employed or made any agreement with any broker, finder or similar
23 agent or any Person which will result in the obligation of Buyer
24 or any of its Affiliates to pay any finder's fee, brokerage fees
25 or commission or similar payment in connection with the
26 transactions contemplated hereby.
27
28 4.12 No Other Agreements to Transfer the Assets.
29 Except as set forth on Schedule 4.12, Seller has no commitment or
30 legal obligation, absolute or contingent, to any Person other
31 than Buyer to sell, assign, transfer, lease, sublease or effect a
32 sale of any material portion of the Assets (individually or in
33 the aggregate) or all or any portion of the Leased Premises,
34 except in the ordinary course of business consistent with past
35 practice in connection with routine replacement programs.
36
37 [4.13 Proprietary Rights. Schedule 4.13 sets forth
38 a complete and accurate list of all Proprietary Rights. Seller
39 owns and has the sole right to use each of the Proprietary
40 Rights. Except as noted in Schedule 4.13 and except for
41 Permitted Liens, such Proprietary Rights are free and clear of
42 any Liens. Seller is not currently in receipt of any notice of
43 infringement by others of, or conflict by others with, the right
44 of Seller in any such Proprietary Rights. To Seller's current
45 actual knowledge, none of the Proprietary Rights is being
46 materially infringed by others, and none is subject to any
12
<PAGE>
1 outstanding order, decree, judgment or stipulation adversely
2 affecting the rights thereunder.]
3
4 4.14 Tax Matters.
5
6 (a) Taxes. With respect to all amounts in
7 respect of Taxes imposed on the Assets and the Energy Complex or
8 for which the owner of the Assets or the Energy Complex is or
9 could be liable to taxing authorities with respect to all taxable
10 periods or portions of periods ending on or before the Closing
11 Date, all applicable tax laws and agreements have been fully
12 complied with, and all such amounts relating to the Assets or the
13 Energy Complex required to be paid by Seller to taxing
14 authorities or others before the Closing Date have been paid
15 (taking into account applicable extensions).
16
17 (b) Audits. Except as set forth in Schedule
18 4.14, no material deficiencies for Taxes have been claimed,
19 proposed or assessed by any taxing authority against Seller with
20 respect to the Assets or the Energy Complex. Except as set forth
21 on Schedule 4.14, there are no pending or, to the best of
22 Seller's knowledge, threatened audits, investigations or claims
23 for or relating to any material additional liability for Taxes
24 relating to the Assets or the Energy Complex.
25
26 (c) Liens. There are no liens for Taxes (other
27 than for current Taxes not yet due and payable) on the Assets.
28
29 (d) Safe Harbor Lease Property. None of the
30 Assets is property that is required to be treated as being owned
31 by any other Person pursuant to the so-called safe harbor lease
32 provisions of former Section 168(f)(8) of the Code.
33
34 (e) Security for Tax-Exempt Obligations. Except
35 as set forth on Schedule 4.14, none of the Assets directly or
36 indirectly secures any debt the interest on which is tax-exempt
37 under Section 103(a) of the Code.
38
39 (f) Foreign Person. Seller is not a Person other
40 than a United States Person within the meaning of the Code.
41
42 (g) Energy Complex. The Energy Complex is, and
43 at all times prior to the Closing Date has been, treated as owned
44 by Seller for federal income tax purposes.
45
13
<PAGE>
1 4.15 Material Misstatements Or Omissions. No
2 representations or warranties by Seller to Buyer in this
3 Agreement, in any Purchase Document, nor in any other document,
4 exhibit, statement, certificate or schedule furnished to Buyer by
5 Seller pursuant hereto or thereto, or in connection with the
6 transactions contemplated hereby or thereby, taken as a whole,
7 contain or will contain any untrue statement of a material fact,
8 or omits or will omit to state any material fact necessary to
9 make the statements or facts contained therein not misleading.
10 To the best knowledge of Seller, there is no event, fact or
11 condition which Seller has not disclosed to Buyer which could
12 reasonably be expected to materially adversely affect the
13 condition, financial or otherwise, of the Energy Complex or any
14 of the Assets.
15
16 4.16 Mechanics' Liens. No services, material or work
17 have been supplied to the Energy Complex by contractors,
18 subcontractors or materialmen for which payment has not been made
19 in full.
20
21 4.17 No Other Assets. Except for the Excluded Assets,
22 there are no other material assets of Seller (i) located on the
23 Energy Complex Premises or (ii) otherwise used or held for use
24 primarily in connection with the Energy Complex, which are
25 necessary for the continued operation maintenance or use of the
26 Energy Complex substantially in the manner heretofore operated
27 and in accordance with Prudent Plant Operating Standards, other
28 than those assets listed on Schedules 1.1(a), 1.1(b), 1.1(c),
29 1.1(d), 1.1(f), 1.1(j), 1.1(k), 4.6, 4.7 and 4.13.
30
31
32 ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF BUYER
33
34 Buyer hereby represents and warrants to Seller as
35 follows, which representations and warranties are, as of the date
36 hereof, and will be, as of the Closing Date, true and correct in
37 all material respects:
38
39 5.1 Organization of Buyer. Buyer is a corporation
40 duly organized, validly existing and in good standing under the
41 laws of the State of Alabama.
42
43 5.2 Authorization. Buyer has all requisite corporate
44 power and authority, and has taken all corporate action
45 necessary, to execute and deliver this Agreement and the other
46 Operative Documents to which it is a party, to consummate the
14
<PAGE>
1 transactions contemplated hereby and thereby and to perform its
2 obligations hereunder and thereunder. The execution and delivery
3 of this Agreement and the other Operative Documents by Buyer and
4 the consummation by Buyer of the transactions contemplated hereby
5 and thereby have been duly approved by the Board of Directors of
6 Buyer. No other corporate proceedings on the part of Buyer are
7 necessary to authorize this Agreement and the other Operative
8 Documents to which it is a party and the transactions
9 contemplated hereby and thereby. This Agreement and the other
10 Operative Documents to which Buyer is a party have been duly
11 executed and delivered by Buyer and are the legal, valid and
12 binding obligations of Buyer, enforceable against Buyer in
13 accordance with their respective terms, except to the extent that
14 enforceability may be limited by applicable bankruptcy,
15 insolvency, moratorium, reorganization or other similar laws and
16 subject to general equitable principles.
17
18 5.3 No Conflict or Violation. Except where such a
19 violation would not have a Scott Material Adverse Effect, neither
20 the execution or delivery of this Agreement or the other
21 Operative Documents to which Buyer is a party, nor the
22 consummation by Buyer of the transactions contemplated hereby or
23 thereby will (a) violate or conflict with any provision of the
24 Articles of Incorporation or Bylaws of Buyer, (b) violate,
25 conflict with, or result in a breach of any provision of, or
26 constitute a default (or an event which, with notice or lapse of
27 time or both, would constitute a default) under, or result in the
28 termination of, or accelerate the performance required by, or
29 result in a right of termination or acceleration under, or result
30 in the creation of any Lien upon any of Buyer's assets under, any
31 of the terms, conditions or provisions of any Contract to which
32 Buyer is a party or by which it is bound, or (c) violate any
33 Governmental Rule.
34
35 5.4 Consents and Approvals. Except as set forth on
36 Schedule 5.4 and other than in connection with or in compliance
37 with the provisions of the HSR Act and PUHCA, no Permit or
38 Consent is required to be obtained by Buyer in connection with
39 the execution or delivery of this Agreement or the other Purchase
40 Documents to which it is a party and the consummation of the
41 transactions contemplated hereby or thereby. All Permits and
42 Consents set forth on Schedule 5.4 are in full force and effect.
43
44 5.5 No Brokers. Neither Buyer nor any of its
45 officers, directors, employees, shareholders or Affiliates has
46 employed or made any agreement with any broker, finder or similar
15
<PAGE>
1 agent or any Person which will result in the obligation of Seller
2 or any of its Affiliates to pay any finder's fee, brokerage fees
3 or commission or similar payment in connection with the
4 transactions contemplated hereby.
5
6 5.6 Litigation. There is no Action against Buyer
7 pending or, to Buyer's current actual knowledge, threatened or
8 anticipated seeking to delay, limit or enjoin the transactions
9 contemplated by this Agreement.
10
11
12 ARTICLE 6 - COVENANTS OF SELLER AND BUYER
13
14 Seller and Buyer, as applicable, each covenant with the
15 other as follows:
16
17 6.1 Further Assurances. (a) Upon the terms and
18 subject to the conditions contained herein, each of the parties
19 hereto agrees, both before and after the Closing, (i) to use all
20 reasonable efforts to take, or cause to be taken, all actions and
21 to do, or cause to be done, all things necessary, proper or
22 advisable to consummate and make effective the transactions
23 contemplated by this Agreement, (ii) to execute any documents,
24 instruments or conveyances of any kind which may be reasonably
25 necessary or advisable to carry out any of the transactions
26 contemplated hereunder, and (iii) to cooperate with each other in
27 connection with the foregoing, including using their respective
28 reasonable best efforts (A) to obtain all necessary Consents from
29 other parties to the Energy Complex Contracts; provided, however
30 that neither Buyer nor Seller shall be required to make any
31 payments, commence litigation or agree to modifications of the
32 terms thereof in order to obtain any such Consents, (B) to obtain
33 the transfer of all Transferred Permits and to obtain all other
34 Permits as are required to be obtained under any Applicable Law
35 (including, without limitation, under the HSR Act) in connection
36 with the transactions contemplated by this Agreement and the
37 other Operative Documents; provided that Buyer shall, at its own
38 cost and expense, be solely responsible for obtaining such
39 Permits (and any transfer of any such Permits), with reasonable
40 cooperation and assistance from Seller, (C) to lift or rescind
41 any injunction or restraining order or other order adversely
42 affecting the ability of the parties to consummate the
43 transactions contemplated by this Agreement or the other
44 Operative Documents and, (D) subject to clause (B) above, to
45 effect all necessary registrations and filings, including,
46 without limitation, submissions of information requested by
16
<PAGE>
1 Governmental Authorities. Buyer and Seller will commence all
2 actions required under clauses (A) and (B) above (to the extent
3 not already commenced) by a date which is early enough to allow
4 the transactions contemplated hereunder and under the other
5 Operative Documents to be consummated by the Closing Date.
6 (b) If either party shall discover that any
7 assets or liabilities of Seller which should have been included
8 in the Assets or liabilities conveyed hereby in order to
9 effectuate the intent of the parties hereunder were not so
10 conveyed, or that any assets or liabilities of Seller that were
11 conveyed hereby should not have been so conveyed, then, in either
12 case, the parties shall work together in good faith to equitably
13 resolve the disposition of such assets or liabilities.
14
15 6.2 Notification of Certain Matters. (a) From the
16 date hereof through the Closing, Seller shall give prompt notice
17 to Buyer of (i) the occurrence, or failure to occur, of any event
18 which occurrence or failure would be likely to cause any
19 representation or warranty of Seller contained in this Agreement,
20 in any Exhibit or Schedule hereto, or in any other Operative
21 Document to be untrue or inaccurate, (ii) any failure of Seller,
22 or any of its Affiliates or Representatives, to comply with or
23 satisfy any covenant, condition or agreement to be complied with
24 or satisfied by it under this Agreement, any Exhibit or Schedule
25 hereto, or any other Operative Document, and (iii) any event or
26 change specified in Section 4.3; provided, however, that such
27 disclosure shall not be deemed to cure any such event, change or
28 breach of a representation, warranty, covenant or agreement or to
29 satisfy any condition.
30
31 (b) From the date hereof through the Closing,
32 Buyer shall give prompt notice to Seller of (i) the occurrence,
33 or failure to occur, of any event which occurrence or failure
34 would be likely to cause any representation or warranty of Buyer
35 contained in this Agreement, in any Exhibit or Schedule hereto,
36 or in any other Operative Document to be untrue or inaccurate and
37 (ii) any failure of Buyer, or any of its Affiliates or
38 Representatives, to comply with or satisfy any covenant,
39 condition or agreement to be complied with or satisfied by it
40 under this Agreement, any Exhibit or Schedule hereto, or any
41 other Operative Document; provided, however, that such disclosure
42 shall not be deemed to cure any such event, change or breach of a
43 representation, warranty, covenant or agreement or to satisfy any
44 condition.
45
17
<PAGE>
1 6.3 Books and Records. Prior to the Closing Date,
2 Seller will make available to Buyer copies of all Books and
3 Records, and on the Closing Date Seller will deliver to Buyer all
4 Books and Records in Seller's possession; provided that (a) if
5 any such Books and Records contain information relating to both
6 the Energy Complex and Seller's other businesses (including, but
7 not limited to, the Mills), Seller may provide Buyer with
8 redacted versions of such Books and Records in which any
9 information pertaining solely to Seller's other businesses shall
10 have been deleted (so long as the deletion of such information
11 does not cause any other information provided to Buyer to be
12 materially misleading), and (b) if the originals of any such
13 Books and Records are required by law to be retained by Seller,
14 only copies thereof shall be delivered to Buyer.
15
16 6.4 Access to Information. From the date hereof
17 through the Closing, Seller shall, and shall cause its
18 Representatives to, afford the Representatives of Buyer
19 reasonable access during Seller's regular business hours to the
20 Assets and the Site for the purpose of inspecting the Energy
21 Complex, and to the Representatives of Seller, and to the Books
22 and Records, Energy Complex Contracts and Energy Complex Permits,
23 and shall furnish Buyer and its Representatives with all
24 financial, operating and other data and information relating to
25 the Assets or the Site (other than income tax returns of Seller)
26 as Buyer or its Representatives may reasonably request.
27
28 6.5 Conduct of Business. From the date hereof through
29 the Closing, Seller shall, except as contemplated by this
30 Agreement, operate the Energy Complex in the ordinary course of
31 business and in accordance with past practice and all Applicable
32 Laws (except to the extent noncompliance would not have a
33 Material Adverse Effect) and will not take any action
34 inconsistent with this Agreement, with the intended rights of
35 Buyer hereunder or with the consummation of the Closing.
36
37
38 ARTICLE 7 - CONDITIONS TO SELLER'S OBLIGATIONS
39
40 The obligations of Seller to consummate the
41 transactions provided for hereby are subject, in the discretion
42 of Seller, to the satisfaction, on or prior to the Closing Date,
43 of each of the following conditions, any of which may be waived
44 in writing by Seller:
45
18
<PAGE>
1 7.1 Representations, Warranties and Covenants. All
2 representations and warranties of Buyer contained in this
3 Agreement and the other Operative Documents shall be true and
4 correct in all material respects at and as of the date of this
5 Agreement and at and as of the Closing Date, except as and to the
6 extent that the facts and conditions upon which such
7 representations and warranties are based are expressly required
8 or permitted to be changed by the terms hereof or thereof, and
9 Buyer shall have performed and satisfied in all material respects
10 all agreements and covenants required hereby to be performed by
11 it prior to or on the Closing Date.
12
13 7.2 Consents. All Permits and Consents necessary for
14 the transfer of the Assets and the consummation of the other
15 transactions contemplated hereby and by the other Operative
16 Documents shall have been obtained and shall be in full force and
17 effect.
18
19 7.3 No Proceedings, Litigation or Laws. No Action by
20 any Governmental Authority or other Person shall have been
21 instituted or threatened (and not terminated or withdrawn by the
22 Closing Date) which questions the validity or legality of the
23 transactions contemplated hereby and which could reasonably be
24 expected to have a Material Adverse Effect. There shall not be
25 any Governmental Rule that makes the purchase and sale of the
26 Purchased Assets contemplated hereby or any of the other
27 transactions contemplated hereby or by the Operative Documents
28 illegal or otherwise prohibited.
29
30 7.4 Opinion of Counsel. Buyer shall have delivered
31 to Seller (i) an opinion of Latham & Watkins, special counsel to
32 Buyer, substantially in the form attached hereto as Exhibit P-1,
33 (ii) an opinion of Troutman Sanders, counsel to Buyer,
34 substantially in the form attached hereto as Exhibit P-2 and
35 (iii) an opinion of Balch & Bingham, special Alabama counsel to
36 Buyer, substantially in the form attached hereto as Exhibit P-3,
37 in each case dated the Closing Date and with such additions,
38 modifications and qualifications as may be reasonably acceptable
39 to, or requested by, counsel for Seller.
40
41 7.5 Certificates. Buyer shall furnish Seller with the
42 officer's certificate attached hereto as Exhibit Q.
43
44 7.6 Corporate Documents. Seller shall have received
45 from Buyer:
46
19
<PAGE>
1 (a) resolutions adopted by the Board of Directors
2 of Buyer approving this Agreement, the other Operative Documents
3 to which Buyer is a party and the transactions contemplated
4 hereby and thereby, certified by the Secretary or an Assistant
5 Secretary of Buyer;
6
7 (b) a duly executed incumbency certificate of
8 Buyer as to the Person or Persons authorized to execute and
9 deliver this Agreement and the other Operative Documents to which
10 Buyer is a party and such other documents that will be executed
11 on behalf of Buyer at the Closing;
12
13 (c) (i) a copy, certified by the Secretary of
14 State of the jurisdiction of incorporation of Buyer of the
15 Articles of Incorporation of Buyer and (ii) a copy, certified by
16 the Secretary or an Assistant Secretary of Buyer, of the Bylaws
17 of Buyer; and
18
19 (d) a certificate of the Secretary of State of the
20 state of incorporation of Buyer as to the good standing and tax
21 status of Buyer.
22
23 7.7 HSR Act. The applicable waiting period, including
24 any extension thereof, under the HSR Act shall have expired or
25 been terminated.
26
27 7.8 Operative Documents. Seller shall have received a
28 duly executed copy of this Agreement and each other Operative
29 Document and each such document shall be in full force and
30 effect. All conditions precedent to effectiveness contained in
31 each of the Operative Documents shall have been satisfied or
32 waived in writing by the appropriate parties.
33
34 7.9 Purchase Price. Seller shall have received the
35 Purchase Price in accordance with the terms of Section 2.4.
36
37 7.10 Off-Credit Treatment. Seller shall be satisfied
38 in its sole discretion that the transactions contemplated by this
39 Agreement and the other Operative Documents will be treated as
40 "off-credit" for accounting and credit rating purposes.
41
42 [7.11 Territorial Act. Seller shall have received
43 (i) a letter from APC and (ii) an opinion from Balch & Bingham,
44 special counsel to Buyer, in each case confirming that by
45 providing electric power to the Mill, MESC will not be in
46 violation of the Territorial Act.
20
<PAGE>
1 7.12 Backup Power Comfort Letter. Seller shall have
2 received from APC a signed acknowledgment relating to the
3 continued provision of backup, maintenance and supplemental
4 electrical power.
5
6
7 ARTICLE 8 - CONDITIONS TO BUYER'S OBLIGATIONS
8
9 The obligations of Buyer to consummate the transactions
10 provided for hereby are subject, in the discretion of Buyer, to
11 the satisfaction, on or prior to the Closing Date, of each of the
12 following conditions, any of which may be waived in writing by
13 Buyer:
14
15 8.1 Representations, Warranties and Covenants. All
16 representations and warranties of Seller contained in this
17 Agreement and the other Operative Documents shall be true and
18 correct in all material respects at and as of the date of this
19 Agreement and at and as of the Closing Date, except as and to the
20 extent that the facts and conditions upon which such
21 representations and warranties are based are expressly required
22 or permitted to be changed by the terms hereof or thereof, and
23 Seller shall have performed and satisfied in all material
24 respects all agreements and covenants required hereby to be
25 performed by it prior to or on the Closing Date.
26
27 8.2 Consents; Estoppel Certificates. All Energy
28 Complex Permits and all Permits and Consents necessary for the
29 transfer of the Assets and the consummation of the transactions
30 contemplated hereby and by the other Operative Documents and for
31 the ownership or lease of the Assets, as the case may be, and the
32 operation of the Energy Complex and all required Consents to the
33 assignment of the Energy Complex Contracts shall have been
34 transferred or obtained and shall be in full force and effect.
35
36 8.3 No Proceedings or Litigation. No Action by any
37 Governmental Authority or other Person shall have been instituted
38 or threatened (and not terminated or withdrawn by the Closing
39 Date) which questions the validity or legality of the
40 transactions contemplated hereby and which could reasonably be
41 expected to have a Material Adverse Effect. There shall not be
42 any Governmental Rule that makes the purchase and sale of the
43 Purchased Assets contemplated hereby or any of the other
44 transactions contemplated hereby or by the Operative Documents
45 illegal or otherwise prohibited.
46
21
<PAGE>
1 8.4 Opinion of Counsel. Seller shall have delivered
2 to Buyer (i) an opinion of Skadden, Arps, Slate, Meagher & Flom,
3 counsel to Seller, substantially in the form attached hereto as
4 Exhibit R-1, (ii) __________, __________ of Buyer, substantially
5 in the form attached hereto as Exhibit R-2 and (iii) an opinion
6 of Armbrecht, Jackson, DeMovy, Crowe, Holmes & Reeves, special
7 Alabama counsel to Seller, substantially in the form attached
8 hereto as Exhibit R-3, in each case dated the Closing Date and
9 with such additions, modifications and qualifications as may be
10 reasonably acceptable to, or requested by, counsel for Buyer.
11
12 8.5 Certificates. Seller shall furnish Buyer with the
13 officer's certificate attached hereto as Exhibit S.
14
15 8.6 Material Changes. Since the date hereof, there
16 shall not have occurred any event or change specified in Section
17 4.3.
18
19 8.7 Corporate Documents. Buyer shall have received
20 from Seller:
21
22 (a) resolutions adopted by the Board of Directors
23 of Seller approving this Agreement, the other Operative Documents
24 to which Seller is a party and the transactions contemplated
25 hereby and thereby, certified by the Secretary or an Assistant
26 Secretary of Seller;
27
28 (b) a duly executed incumbency certificate of
29 Seller as to the Person or Persons authorized to execute and
30 deliver this Agreement and the other Operative Documents to which
31 Seller is a party and such other documents that will be executed
32 on behalf of Seller at the Closing;
33
34 (c) (i) a copy, certified by the Secretary of
35 State of the jurisdiction of incorporation of Seller of the
36 Articles of Incorporation of Seller and (ii) a copy, certified by
37 the Secretary or an Assistant Secretary of Seller, of the Bylaws
38 of Seller;
39
40 (d) a certificate of the Secretary of State of
41 the state of incorporation of Seller as to the good standing and
42 tax status of Buyer; and
43
44 (e) a certificate of good standing from the
45 Secretary of State of Alabama.
46
22
<PAGE>
1 8.8 HSR Act. The applicable waiting period, including
2 any extension thereof, under the HSR Act shall have expired or
3 been terminated.
4
5 8.9 Release of Liens. Seller shall have filed (where
6 necessary) and delivered to Buyer all documents necessary to
7 release the Assets from all Liens other than Permitted Liens,
8 which documents shall be in a form reasonably satisfactory to
9 Buyer's counsel.
10
11 8.10 Operative Documents. Buyer shall have received a
12 duly executed copy of each Operative Document and each Operative
13 Document shall be in full force and effect. All conditions
14 precedent to effectiveness contained in each of the Operative
15 Documents shall have been satisfied or waived in writing by the
16 appropriate parties.
17
18 8.11 Nonforeign Affidavit. Seller shall furnish Buyer
19 an affidavit, stating, under penalty of perjury, the transferor's
20 United States taxpayer identification number and that the
21 transferor is not a foreign Person, pursuant to Section
22 1445(b)(2) of the Code.
23
24 8.12 Additional Certificates; Opinions. Buyer shall
25 have received an opinion from Morgan, Lewis & Bockius, special
26 counsel to Seller, substantially in the form attached hereto as
27 Exhibit T (with such additions, modifications and qualifications
28 as may be reasonably acceptable to, or requested by, counsel for
29 Buyer).
30
31 8.13 PUHCA. The Southern Company (and any Affiliate
32 thereof with respect to which approval by the SEC under PUHCA is
33 required in connection with the transactions contemplated by the
34 Operative Documents), on its own behalf and on behalf of Buyer,
35 shall have obtained an order of the SEC under PUHCA authorizing
36 the transactions contemplated hereby and by the other Operative
37 Documents (to the extent SEC jurisdiction extends thereto), and
38 such order shall be in full force and effect.
39
40
41 ARTICLE 9 - RISK OF LOSS; CONSENTS TO ASSIGNMENT
42
43 9.1 Risk of Loss. From the date hereof through the
44 Closing, all risk of loss or damage to the property included in
45 the Assets shall be borne by Seller, and thereafter shall be
46 borne by Buyer.
23
<PAGE>
1 (a) If, before the Closing, all or any portion of the
2 Assets is taken by eminent domain (or is the subject of a pending
3 or contemplated taking which has not been consummated), then
4 Seller shall notify Buyer promptly in writing of such fact. If
5 such taking would have a Material Adverse Effect, Buyer shall
6 then have the option to terminate this Agreement pursuant to
7 Section 11.1 upon written notice to Seller given not later than
8 twenty (20) days after receipt of Seller's notice. If Buyer does
9 not exercise this option to terminate this Agreement or if such
10 taking would not have a Material Adverse Effect, Buyer and Seller
11 shall use reasonable efforts to settle the loss resulting from
12 such taking (including, without limitation, by making a fair and
13 equitable adjustment to the Purchase Price) and, upon such
14 settlement, consummate the transactions contemplated by this
15 Agreement. If no such settlement is reached within thirty (30)
16 days after Seller has notified Buyer of such taking, then Buyer
17 or Seller may terminate this Agreement pursuant to Section 11.1.
18
19 (b) If, before the Closing, all or any portion of the
20 Assets is damaged or destroyed by fire or other casualty, Seller
21 shall notify Buyer promptly in writing of such fact. If such
22 damage or destruction would have a Material Adverse Effect, Buyer
23 shall then have the option to terminate this Agreement pursuant
24 to Section 11.1 upon written notice to Seller given not later
25 than twenty (20) days after receipt of Seller's notice. In the
26 event such damage or destruction would not have a Material
27 Adverse Effect, or if Buyer does not exercise its option to
28 terminate this Agreement, Buyer and Seller shall use reasonable
29 efforts to settle the loss resulting from such casualty
30 (including, without limitation, by making a fair and equitable
31 adjustment to the Purchase Price) and, upon such settlement,
32 consummate the transactions contemplated by this Agreement. If
33 no such settlement is reached within thirty (30) days after
34 Seller has notified Buyer of such taking, then Buyer or Seller
35 may terminate this Agreement pursuant to Section 11.1.
36
37 9.2 Consents to Assignment. Anything in this
38 Agreement to the contrary notwithstanding (but without limiting
39 the provisions of Section 8.2), this Agreement shall not
40 constitute an agreement to assign any Energy Complex Contract,
41 Energy Complex Permit, Proprietary Right or Warranty or any claim
42 or right or any benefit arising thereunder or resulting therefrom
43 if an attempted assignment thereof, without any necessary
44 Consents (which Consents have not been obtained), would
45 constitute a breach thereof or in any way adversely affect the
46 rights of Buyer or Seller thereunder. If such Consents are not
24
<PAGE>
1 obtained, or if an attempted assignment thereof would be
2 ineffective or would affect the rights thereunder so that Buyer
3 would not receive all such rights, Seller will cooperate with
4 Buyer, in all reasonable respects, to provide to Buyer the
5 benefits under any such Contract, Permit, Proprietary Right or
6 Warranty or any claim or right thereunder including, without
7 limitation, enforcement for the benefit of Buyer of any and all
8 rights of Seller against a third party thereto arising out of the
9 breach or cancellation by such third party or otherwise.
10
11
12 ARTICLE 10 - ACTIONS BY SELLER AND BUYER AFTER THE CLOSING
13
14 10.1 Collection of Payments. At the Closing, Buyer
15 will acquire hereunder, and thereafter Buyer or its designee
16 shall have the right and authority to collect for Buyer's or its
17 designee's account, all Accounts and other rights to payment
18 which constitute a part of the Assets, and Seller shall within
19 forty-eight (48) hours after receipt of any payment in respect of
20 any of the foregoing, properly endorse and deliver to Buyer any
21 letters of credit, documents or checks received on account of or
22 otherwise relating to any such Accounts or other rights. Seller
23 shall promptly transfer or deliver to Buyer or its designee any
24 cash or other property that Seller may receive in respect of any
25 deposit, prepaid expense, claim, contract, license, lease,
26 commitment, sales order, purchase order, letter of credit or
27 receivable of any character, or any other item, constituting a
28 part of the Assets.
29
30 10.2 Books and Records; Tax Matters.
31
32 (a) Books and Records. Each party agrees that it
33 will cooperate with and make available to the other party, during
34 normal business hours, all books and records, information and
35 employees (without substantial disruption of employment) retained
36 and remaining in existence after the Closing (other than income
37 tax returns) which are necessary or useful in connection with any
38 tax inquiry, audit, investigation or dispute, any litigation or
39 investigation or any other matter relating to the Energy Complex
40 requiring any such books and records, information or employees.
41 The party requesting any such books and records, information or
42 employees shall bear all of the out-of-pocket costs and expenses
43 (including, without limitation, attorneys' fees, but excluding
44 reimbursement for salaries and employee benefits) reasonably
45 incurred in connection with providing such books and records,
46 information or employees. All information received pursuant to
25
<PAGE>
1 this Section 10.2(a) shall be subject to the terms of the
2 Confidentiality Agreement.
3
4 (b) Cooperation and Records Retention. Seller
5 and Buyer shall (i) each provide the other with such assistance
6 as may reasonably be requested by any of them in connection with
7 the preparation of or response to any Return, audit, or other
8 examination by any taxing authority or with judicial or
9 administrative proceedings relating to liability for Taxes in
10 respect of the Assets or the operation of the Energy Complex,
11 (ii) each retain for the applicable statute of limitations period
12 and provide the other with any records or other information that
13 may be relevant to such Return, audit or examination, proceeding
14 or determination, and (iii) each provide the other with any final
15 determination of any such audit or examination, proceeding, or
16 determination that affects any amount required to be shown on any
17 tax return of the other for any period. Without limiting the
18 generality of the foregoing, Buyer and Seller shall each retain,
19 until the applicable statutes of limitations (including any
20 extensions) have expired, copies of all Returns, supporting work
21 schedules, and other records or information that may be relevant
22 to such Returns for all tax periods or portions thereof ending on
23 or before the Closing Date and, until such limitations period
24 shall have expired, shall not destroy or otherwise dispose of any
25 such records without first providing the other party with a
26 reasonable opportunity to review and copy the same.
27
28 10.3 Survival of Representations, Etc. The
29 representations, warranties, covenants and agreements of Seller
30 and Buyer contained herein shall survive the consummation of the
31 transactions contemplated hereby and the Closing Date, without
32 regard to any investigation made by any of the parties hereto
33 (unless the damaged party had current actual knowledge of any
34 misrepresentation or breach of warranty or covenant at the time
35 of Closing). All such representations and warranties and all
36 claims and causes of action with respect thereto (other than the
37 provisions of Section 4.15 and this Section 10.3, and all claims
38 and causes of action with respect thereto) shall terminate upon
39 expiration of two years after the Closing Date. The
40 representations and warranties in Section 4.15 shall survive
41 until the expiration of the applicable statute of limitations
42 (with extensions) with respect to the matters addressed in such
43 sections. The termination of the representations and warranties
44 provided herein shall not affect the rights of a party in respect
45 of any Claim made by such party in a writing received by the
26
<PAGE>
1 other party prior to the expiration of the applicable survival
2 period provided herein.
3
4 10.4 Indemnifications.
5
6 (a) By Seller. Seller hereby agrees to
7 indemnify, defend and hold harmless the MESC Indemnified Parties
8 from and against any and all Losses arising directly or
9 indirectly, in whole or in part, out of (i) any breach of any
10 representation or warranty, or the inaccuracy of any
11 representation, made by Seller in or pursuant to this Agreement;
12 (ii) any breach of any covenant or agreement made by Seller in or
13 pursuant to this Agreement; or (iii) any Excluded Liability. The
14 indemnity provided herein shall not include any Losses (nor shall
15 such Losses be included in the calculations set forth in Section
16 10.4(e)(ii)) on account of events, acts or omissions as to which
17 the MESC Indemnified Parties (or any of them) are (or is)
18 entitled to indemnification pursuant to the Scott Environmental
19 Indemnity Agreement, any Mill Environmental Indemnity Agreement
20 to which Seller is a party, or the Employee Transition Agreement
21 (notwithstanding that the amount of such indemnification under
22 the Environmental Agreement, any Mill Environmental Indemnity
23 Agreement to which Seller is a party, or the Employee Transition
24 Agreement, as the case may be, may be limited by the terms of
25 such agreement). Any indemnification payable with respect to a
26 claim by Buyer hereunder shall be net of any insurance proceeds
27 paid to Buyer under Buyer's insurance policies which relate to
28 the circumstances or occurrences giving rise to Seller's
29 indemnification of Buyer hereunder.
30
31 (b) By Buyer. Buyer hereby agrees to indemnify,
32 defend and hold harmless the Scott Indemnified Parties from and
33 against any and all Losses arising directly or indirectly, in
34 whole or in part, out of (i) any breach of any representation or
35 warranty, or the inaccuracy of any representation, made by Buyer
36 in or pursuant to this Agreement; (ii) any breach of any covenant
37 or agreement made by Buyer in or pursuant to this Agreement; or
38 (iii) after the Closing, any Assumed Liability. The indemnity
39 provided herein shall not include any Losses (nor shall such
40 Losses be included in the calculations set forth in
41 Section 10.4(e)(ii)) on account of events, acts or omissions as
42 to which the Scott Indemnified Parties (or any of them) are (or
43 is) entitled to indemnification pursuant to any Mill
44 Environmental Indemnity Agreement to which Scott is a party or to
45 the Employee Transition Agreement (notwithstanding that the
46 amount of such indemnification under any Mill Environmental
27
<PAGE>
1 Indemnity Agreement to which Scott is a party or the Employee
2 Transition Agreement, as the case may be, may be limited by the
3 terms of such agreement). Any indemnification payable with
4 respect to a claim by Seller hereunder shall be net of any
5 insurance proceeds paid to Seller under Seller's insurance
6 policies which relate to the circumstances or occurrences giving
7 rise to Buyer's indemnification of Seller hereunder.
8
9 (c) Cooperation. If either Seller or Buyer shall
10 receive notice or have knowledge of any claim, demand, action,
11 suit or proceeding that may result in a claim for indemnification
12 by such party against the other party pursuant to this Section
13 10.4 (collectively, "Claims"), such party shall, as promptly as
14 is reasonably possible, give the other party notice of such
15 Claim, including (i) a reasonably detailed description of the
16 facts and circumstances relating to such Claim, (ii) a reasonably
17 detailed description of the basis for its potential claim for
18 indemnification with respect thereto, and (iii) a complete copy
19 of all notices, pleadings and other papers related thereto;
20 provided that failure promptly to give such notice or to provide
21 such information and documents shall not relieve the other party
22 of any indemnification obligation it may have under this Section
23 10.4 unless such failure shall materially diminish the ability of
24 such other party to respond to or to defend the party failing to
25 give such notice against such Claim. Seller and Buyer shall
26 consult and cooperate with each other regarding the response to
27 and the defense of any such Claim, and the party against whom
28 indemnification is claimed shall, upon its acknowledgment in
29 writing of its obligation to indemnify the party seeking
30 indemnification, be entitled to and shall assume the defense or
31 to represent the interests of the party seeking indemnification
32 in respect of such Claim, which shall include the right to select
33 and direct legal counsel and other consultants to appear in
34 proceedings on behalf of such party and to propose, accept or
35 reject offers of settlement, all at its sole cost; provided that
36 no such settlement shall be made without the written consent of
37 the relevant Indemnified Party, such consent not to be
38 unreasonably withheld; provided, further, that if any such
39 proposed settlement is reasonably likely to adversely affect such
40 Indemnified Party's business operations, then, notwithstanding
41 the foregoing, such Indemnified Party shall be entitled to
42 withhold its consent to such proposed settlement and take control
43 of the defense and investigation of such Claim, to employ and
44 engage attorneys of its own choice to handle and defend the same
45 and to compromise or settle such Claim, all at the indemnifying
46 party's cost, risk and expense; provided, further, that the
28
<PAGE>
1 dollar amount of the proposed settlement, in and of itself, shall
2 not be adequate grounds hereunder for the Indemnified Party to
3 reject such proposed settlement. Nothing herein shall prevent an
4 Indemnified Party from retaining its own counsel and
5 participating in its own defense at its own cost and expense.
6 The parties shall cooperate with each other in any notifications
7 to insurers.
8
9 (d) Brokers and Finders. Pursuant to the
10 provisions of this Section 10.4, each of Buyer and Seller shall
11 indemnify, hold harmless and defend the other party from the
12 payment of any and all broker's and finder's expenses,
13 commissions, fees or other forms of compensation which may be due
14 or payable from or by the indemnifying party, or may have been
15 earned by any third party acting on behalf of the indemnifying
16 party in connection with the negotiation and execution of this
17 Agreement and the other Operative Documents and the consummation
18 of the transactions contemplated hereby and thereby.
19
20 (e) Limitation of Liability. (i) Notwithstanding
21 any other provision of this Agreement or any of the other
22 Operative Documents (other than as expressly provided in any of
23 the Energy Services Agreements or the Master Operating Agreement)
24 or the failure of the essential purposes of any remedies set
25 forth in this Agreement or any of the other Operative Documents,
26 Seller and Buyer shall only be liable for direct damages as a
27 result of a breach or default by such party hereunder or
28 thereunder. In no event shall such party be liable, whether
29 under contract, tort (including negligence), strict liability, or
30 any other cause of or form of action whatsoever, for claims of
31 non-party customers, cost of money, loss of profits, loss of use
32 of capital or revenue or any other incidental, special or
33 consequential loss or damage of any nature arising at any time or
34 from any cause whatsoever, or for punitive or exemplary damages.
35 The aggregate liability of Buyer or Seller under this Section
36 10.4 (except with respect to a breach by Seller of the
37 representations contained in Section 4.4) shall be limited to
38 eighty-seven million five hundred thousand Dollars ($87,500,000).
39
40 (ii) Neither Seller nor Buyer shall be liable
41 to the other under this Section 10.4 for any Losses until, and
42 only to the extent that, either any individual amount otherwise
43 due the Indemnified Party exceeds twenty-thousand Dollars
44 ($20,000); provided, however, that this limitation shall apply
45 only to the extent a party is entitled to indemnification
29
<PAGE>
1 exclusively under Section 10.4(a)(i) or Section 10.4(b)(i), as
2 the case may be.
3
4 (f) Insurance. In the event any insurer
5 providing insurance covering any judgment obtained by an
6 Indemnified Party against an indemnifying party for an
7 indemnified Loss refuses to pay such judgment, the party against
8 or through whom the judgment is obtained shall, at the request of
9 the prevailing party, execute such documents as may be necessary
10 to effect an assignment of its contractual rights against the
11 nonpaying insurer and thereby give the prevailing party the
12 opportunity to enforce its judgment directly against such
13 insurer.
14
15 (g) Limitation of Liability for Other Party's
16 Debts. Notwithstanding anything to the contrary contained
17 herein, (a) Seller shall have no liability whatsoever with
18 respect to, and no Lien shall be placed on Seller's assets in
19 connection with, the obligations of Buyer under its financing
20 agreements or other contracts between Buyer and any other Person
21 (including, without limitation, the Financing Documents), and (b)
22 Buyer shall have no liability whatsoever (except as between Buyer
23 and Seller as specifically set forth in Section 4 of the Asset
24 Lease Assumption Agreements) with respect to, and no Lien shall
25 be placed on Buyer's assets in connection with, the obligations
26 of Seller under its financing agreements or other contracts
27 between Seller and any other Person.
28
29 (h) No Release of Insurers. The provisions of
30 this Section 10.4 shall not be construed so as to relieve any
31 insurer of its obligation to pay any insurance proceeds in
32 accordance with the terms and conditions of valid and collectible
33 insurance policies.
34
35 (i) Representatives. No individual
36 Representative of either party shall be personally liable for any
37 Losses under the provisions contained in this Section 10.4.
38 Except as set forth in Section 10.4(f), nothing herein shall
39 relieve either party of any liability to make any payment
40 expressly required to be made by such party pursuant to this
41 Agreement.
42
43 (j) Survival of Indemnities. The provisions of
44 this Section 10.4 shall survive the consummation of the
45 transactions contemplated hereby and the Closing Date.
46
30
<PAGE>
1 ARTICLE 11 - MISCELLANEOUS
2
3 11.1 Termination.
4
5 (a) Termination. This Agreement may be
6 terminated at any time prior to Closing:
7
8 (i) By mutual written consent of Buyer and
9 Seller;
10
11 (ii) By Buyer or Seller if the Closing shall
12 not have occurred on or before ___________, 1994; provided
13 however, that this provision shall not be available to Buyer if
14 Seller has the right to terminate this Agreement under clause
15 (iv) of this Section 11.1, and this provision shall not be
16 available to Seller if Buyer has the right to terminate this
17 Agreement under clause (iii) of this Section 11.1;
18
19 (iii) By Buyer, by written notice to
20 Seller, if there is a material breach of any representation or
21 warranty set forth in Article 4 hereof or any covenant or
22 agreement to be complied with or performed by Seller pursuant to
23 the terms of this Agreement or the failure of a condition set
24 forth in Article 8 to be satisfied (and such condition is not
25 waived in writing by Buyer) on or prior to the Closing Date, or
26 the occurrence of any event which results or would result in the
27 failure of a condition set forth in Article 8 to be satisfied on
28 or prior to the Closing Date, provided that Buyer may not
29 terminate this Agreement prior to the Closing if Seller has not
30 had an adequate opportunity to cure such failure;
31
32 (iv) By Seller, by written notice to Buyer,
33 if there is a material breach of any representation or warranty
34 set forth in Article 5 hereof or of any covenant or agreement to
35 be complied with or performed by Buyer pursuant to the terms of
36 this Agreement or the failure of a condition set forth in Article
37 7 to be satisfied (and such condition is not waived in writing by
38 Seller) on or prior to the Closing Date, or the occurrence of any
39 event which results or would result in the failure of a condition
40 set forth in Article 7 to be satisfied on or prior to the Closing
41 Date; provided that, Seller may not terminate this Agreement
42 prior to the Closing if Buyer has not an adequate opportunity to
43 cure such failure; or
44
45 (v) By Buyer or Seller, as the case may be,
46 pursuant to Section 9.1.
31
<PAGE>
1 (b) In the Event of Termination. In the event of
2 termination of this Agreement:
3
4 (i) Each party will redeliver all documents,
5 work papers and other material of any other party relating to the
6 transactions contemplated hereby or by the other Operative
7 Documents, whether so obtained before or after the execution
8 hereof, to the party furnishing the same;
9
10 (ii) The provisions of the Confidentiality
11 Agreement shall continue in full force and effect; and
12
13 (iii) No party hereto shall have any
14 liability or further obligation to any other party to this
15 Agreement, except as stated in subsections (i), (ii) and (iii) of
16 this Section 11.1(b), and except for any willful breach of this
17 Agreement occurring prior to the proper termination of this
18 Agreement. The foregoing provisions shall not limit or restrict
19 the availability of specific performance or other injunctive
20 relief to the extent that specific performance or such other
21 relief would otherwise be available to a party hereunder.
22
23 11.2 Assignment. Neither this Agreement or any of the
24 other Purchase Documents nor any of the rights or obligations
25 hereunder or thereunder may be assigned by either party without
26 the prior written consent of the other party hereto; except that
27 Buyer may, without such consent, (i) assign any or all such
28 rights to any Lender as collateral security in connection with
29 any Financing and (ii) assign all such rights and obligations to
30 a wholly-owned subsidiary of The Southern Company (or a
31 partnership controlled by The Southern Company) or subsidiaries
32 of The Southern Company or to a successor in interest to Buyer
33 which shall assume all obligations and liabilities of Buyer under
34 this Agreement and the other Purchase Documents, as applicable.
35 In connection with any assignment by Buyer pursuant to clause (i)
36 above, Seller shall execute a Consent to Assignment in the form
37 attached hereto as Exhibit U. Subject to the foregoing, this
38 Agreement and the other Purchase Documents shall be binding upon
39 and inure to the benefit of the parties hereto and thereto and
40 their respective successors and permitted assigns, and no other
41 Person shall have any right, benefit or obligation under this
42 Agreement or the other Purchase Documents as a third party
43 beneficiary or otherwise.
44
45 11.3 Notices; Transfer of Funds. All notices,
46 requests, demands and other communications which are required or
32
<PAGE>
1 may be given under this Agreement shall be in writing and shall
2 be deemed to have been duly given when received if personally
3 delivered; when transmitted if transmitted by telecopy,
4 electronic or digital transmission method, subject to the
5 sender's facsimile machine receiving the correct answerback of
6 the addressee and confirmation of uninterrupted transmission by a
7 transmission report or the recipient confirming by telephone to
8 sender that he has received the facsimile message; the day after
9 it is sent, if sent for next day delivery to a domestic address
10 by recognized overnight delivery service (e.g., Federal Express);
11 and upon receipt, if sent by certified or registered mail, return
12 receipt requested. In each case notice shall be sent to:
13
14 If Seller, addressed to:
15
16 Scott Paper Company
17 Scott Plaza
18 Philadelphia, PA 19113-1585
19 Attention: Thomas C. Deas, Jr.
20 Telecopy: (610) 522-5665
21
22 With a copy to:
23
24 Scott Paper Company
25 Scott Plaza
26 Philadelphia, PA 19113-1585
27 Attention: John Murtagh, Esq.
28 Telecopy: (610) 522-____
29
30 and
31
32 Skadden, Arps, Slate, Meagher & Flom
33 1440 New York Avenue, N.W.
34 Washington, D.C. 20005
35 Attention: Martin Klepper, Esq.
36 Telecopy: (202) 393-5760
37
38 If to Buyer, addressed to:
39
40 Mobile Energy Services Company, Inc.
41 900 Ashwood Parkway
42 Atlanta, GA 30338-4780
43 Attention: President
44 Telecopy: (404) 393-9871
45
46 With a copy to:
33
<PAGE>
1 Mobile Energy Services Company, Inc.
2 ____________________________
3 Mobile, Alabama _________
4 Attention:_______________
5 Telecopy:_______________
6
7 and
8
9 Troutman Sanders
10 600 Peachtree Street, N.E.
11 Suite 5200
12 Atlanta, Georgia 30308-2216
13 Attention: Hugh M. Davenport, Esquire
14 Telecopy: (404) 885-3525
15
16 and
17
18 Latham & Watkins
19 505 Montgomery Street, Suite 1900
20 San Francisco, CA 94111
21 Attention: Tim Flato, Esquire
22 Telecopy: (415) 395-8095
23
24 or to such other place and with such other copies as either party
25 may designate as to itself by written notice to the others
26 pursuant to this Section 11.3.
27
28 Payments to be made to Seller hereunder shall be made
29 by wire transferred funds to be delivered to Seller's account
30 number _______________ at ________________________ or to such
31 other account or place as Seller may designate by written notice
32 as provided herein. Payments to be made to Buyer hereunder shall
33 be made by wire transferred funds to be delivered to Buyer's
34 account number ________________ at ______________________ or to
35 such other account or place as Buyer may designate by written
36 notice as provided herein.
37
38 11.4 Governing Law. This Agreement shall be construed,
39 interpreted and the rights of the parties determined in
40 accordance with the laws of the State of New York (without
41 reference to the choice of law provisions of New York law (except
42 Section 5-1401 of the New York General Obligations Law)), except
43 with respect to matters of law concerning the internal corporate
44 affairs of any corporate entity which is a party to or the
45 subject of this Agreement, and as to those matters the law of the
34
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1 jurisdiction under which the respective entity derives its powers
2 shall govern.
3
4 11.5 Entire Agreement; Amendments. This Agreement and
5 any agreement, document or instrument attached hereto or referred
6 to herein integrate all the terms and conditions mentioned herein
7 or incidental hereto and supersede all oral negotiations and
8 prior writings in respect to the subject matter hereof. Except
9 as provided in the immediately following sentence, in the event
10 of any conflict between the terms, conditions and provisions of
11 this Agreement and any such agreement, document or instrument,
12 the terms, conditions and provisions of this Agreement shall
13 prevail as against such other agreement, document or instrument.
14 This Agreement may only be amended or modified by an instrument
15 in writing signed by both Seller and Buyer.
16
17 11.6 Counterparts. This Agreement may be signed in
18 multiple originals and/or using counterpart signature pages. All
19 such multiple originals shall constitute but one and the same
20 document.
21
22 11.7 Expenses. Except as otherwise specified in this
23 Agreement or the other Operative Documents, each party hereto
24 shall pay its own legal, accounting, out-of-pocket and other
25 expenses incident to this Agreement and to any action taken by
26 such party in preparation for carrying this Agreement into
27 effect.
28
29 11.8 Severability. Any provision of this Agreement
30 that shall be prohibited or unenforceable in any jurisdiction
31 shall, as to such jurisdiction, be ineffective to the extent of
32 such prohibition or unenforceability without invalidating the
33 remaining provisions thereof, and any such prohibition or
34 unenforceability in any jurisdiction shall not invalidate or
35 render unenforceable such provision in any other jurisdiction.
36 In the event that any such provision of this Agreement is so held
37 invalid, the parties shall promptly renegotiate in good faith new
38 provisions to restore this Agreement as near as possible to its
39 original intent and effect. To the extent permitted by
40 Applicable Law, the parties hereto hereby waive any provision of
41 law that renders any provision hereof prohibited or unenforceable
42 in any respect.
43
44 11.9 Headings. The Table of Contents and headings of
45 the various Articles and Sections of this Agreement are for
35
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1 convenience of reference only and shall not modify, define or
2 limit any of the terms or provisions hereof.
3
4 11.10 Confidential Information. With respect to
5 the transaction described herein, and any information obtained by
6 Buyer or Seller in connection herewith, Buyer and Seller shall
7 comply with all of the terms and provisions of the
8 Confidentiality Agreement.
9
10 11.11 Cumulative Remedies. All rights and remedies
11 of either party hereto are cumulative of each other and of every
12 other right or remedy such party may otherwise have at law or in
13 equity, and the exercise of one or more rights or remedies shall
14 not prejudice or impair the concurrent or subsequent exercise of
15 other rights or remedies.
16
17 11.12 Service of Process, Consent to Jurisdiction.
18
19
20 (a) Service of Process. Subject to Section
21 11.13, each party hereto irrevocably consents to the service of
22 any process, pleading, notice or other papers by the mailing of
23 copies thereof by registered, certified or first class mail,
24 postage prepaid, to such party at such party's address set forth
25 herein, or by any other method provided or permitted under New
26 York law.
27
28 (b) Consent to Jurisdiction. Subject to
29 Section 11.13, each party hereto irrevocably and unconditionally
30 (i) agrees that any suit, action or other legal proceeding
31 arising out of this Agreement may be brought in the United States
32 District Court for the Southern District of New York or, if such
33 court does not have jurisdiction or will not accept jurisdiction,
34 in any court of general jurisdiction in New York, New York; (ii)
35 consents to the jurisdiction of any such court in any such suit,
36 action or proceeding; and (iii) waives any objection which such
37 party may have to the laying of venue of any such suit, action or
38 proceeding in any such court.
39
40 11.13 Dispute Resolution. The provisions of
41 Article 16 of the Master Operating Agreement shall govern the
42 resolution of any disputes which may arise under this Agreement
43 or any of the other Purchase Documents; provided that all such
44 disputes shall not be referred initially to the Site Operating
45 Committee and shall, instead, be referred directly to the
36
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1 respective Senior Managements of the parties involved in the
2 dispute.
3
4 11.14 Attorneys' Fees. If any party to this
5 Agreement brings a court action to enforce its rights under this
6 Agreement (to the extent that the bringing of such a court action
7 is permitted under Article 16 of the Master Operating Agreement),
8 the prevailing party shall be entitled to recover its costs and
9 expenses, including, without limitation, reasonable attorneys'
10 fees, incurred in connection with such action, including any
11 appeal of such action.
12
13 11.15 Delay and Waiver. No delay or omission to
14 exercise any right, power or remedy accruing upon the occurrence
15 of any breach or default of either Seller or Buyer under this
16 Agreement or any of the other Operative Documents shall impair
17 any such right, power or remedy of the other party, nor shall it
18 be construed to be a waiver of any such breach or default, or an
19 acquiescence therein, or of or in any similar breach or default
20 thereafter occurring, nor shall any waiver of any single breach
21 or default be deemed a waiver of any other breach or default
22 theretofore or thereafter occurring. Any waiver, permit, consent
23 or approval of any kind or character on the part of either Seller
24 or Buyer of any breach or default under this Agreement or any of
25 the other Operative Documents, or any waiver on the part of
26 Seller or Buyer of any provision or condition of this Agreement
27 or any of the other Operative Documents, must be in writing and
28 shall be effective only to the extent specifically set forth in
29 such writing.
30
31 11.16 Third-Party Beneficiaries. This Agreement is
32 intended to be solely for the benefit of Seller and Buyer and
33 their successors and permitted assigns and is not intended to and
34 shall not confer any rights or benefits on any third party not a
35 signatory hereto.
36
37 11.17 Decision-Making by Parties. Except where
38 this Agreement expressly provides for a different standard (e.g.,
39 sole discretion), whenever this Agreement provides for a
40 determination, decision, permission, consent or approval of a
41 party, the party shall promptly make such determination,
42 decision, grant or withholding of permission, consent or approval
43 in a commercially reasonable manner and without unreasonable
44 delay. Any denial of consent required to be made in a
45 commercially reasonable manner shall include in reasonable detail
37
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1 the reason for denial or aspect of the request that was not
2 acceptable.
3
4 11.18 Investigation by Buyer. Buyer acknowledges
5 that (i) it has conducted an independent review and analysis of
6 the business, assets, financial condition and prospects of the
7 Energy Complex and the Assets, (ii) Seller has provided Buyer
8 with access to the properties, premises and records of Seller
9 relating to the Energy Complex and the Assets for such purpose
10 and (iii) the representatives and agents of Buyer conducting such
11 review and analysis were qualified to interpret and evaluate the
12 data reviewed and to make an informed business judgment with
13 respect to the transactions contemplated by the Purchase
14 Documents.
15
16 11.19 WAIVER OF JURY TRIAL. THE PARTIES HEREBY
17 KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY
18 MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
19 HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
20 AGREEMENT OR ANY OF THE OTHER OPERATIVE DOCUMENTS, OR ANY COURSE
21 OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
22 WRITTEN), OR ACTIONS OF THE PARTIES HERETO. THIS PROVISION IS A
23 MATERIAL INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS
24 AGREEMENT.
25
26
27 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
38
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on their respective behalf, by
their respective officers thereunto duly authorized, all as of
the day and year first above written.
SELLER:
SCOTT PAPER COMPANY,
a Pennsylvania corporation
By ____________________________
Name:
Title:
BUYER:
MOBILE ENERGY SERVICES COMPANY, INC.,
an Alabama corporation
By:____________________________
Name:
Title:
39
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EXHIBIT A
DEFINITIONS
A-1
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EXHIBIT B
ALLOCATION OF PURCHASE PRICE
B-1
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EXHIBIT C
FORM OF BILL OF SALE
For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, SCOTT PAPER COMPANY, a
Pennsylvania corporation ("Seller"), does hereby grant, bargain,
transfer, sell, assign, convey and deliver to MOBILE ENERGY
SERVICES COMPANY, INC., an Alabama corporation ("Buyer"), all
right, title and interest of Seller in, to and under the
Purchased Assets, as such term is defined in the Asset Purchase
Agreement dated as of _________________, by and between Seller
and Buyer (the "Agreement"). Buyer hereby acknowledges that
Seller is making no representation or warranty with respect to
the assets being conveyed hereby except as specifically set forth
in the Agreement. EXCEPT AS SET FORTH IN SECTION 2.1(B) OF THE
ASSET PURCHASE AGREEMENT, BUYER ACKNOWLEDGES THAT IT IS
PURCHASING THE PURCHASED ASSETS ON AN "AS IS, WHERE IS" BASIS
WITH NO WARRANTY, EXPRESS OR IMPLIED, FROM SELLER WITH RESPECT TO
THE PURCHASED ASSETS, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
This Bill of Sale is being executed and delivered by
Seller as of the ___________________ pursuant to the terms of the
Agreement. Executed at ________________________________, this
______ day of ___________, _______.
SCOTT PAPER COMPANY
By __________________________
Its__________________________
MOBILE ENERGY SERVICES COMPANY,
INC.
By __________________________
Its__________________________
C-1
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C-2
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STATE OF ______________________ )
) ss.
COUNTY OF ____________________ )
On _______________________, before me, ___________________,
personally appeared ____________________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_________________________________ [SEAL]
Notary Public in and for said
County and State
C-3
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EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
, 1994, between SCOTT PAPER COMPANY, a Pennsylvania
corporation ("Seller"), and MOBILE ENERGY SERVICES COMPANY, INC.,
an Alabama corporation ("Buyer").
RECITALS:
A. Buyer and Seller have concurrently herewith
consummated the purchase by Buyer of the Purchased Assets
pursuant to the terms and conditions of the Asset Purchase
Agreement, dated as of , 1994, between Buyer and
Seller, (the "Asset Purchase Agreement"; terms defined in the
Asset Purchase Agreement and not otherwise defined herein being
used herein as therein defined);
B. Pursuant to the Asset Purchase Agreement, Buyer
has agreed to assume the Assumed Liabilities in connection with
the purchase of the Purchased Assets.
NOW, THEREFORE, in consideration of the sale of the
Purchased Assets and in accordance with the terms of the Asset
Purchase Agreement, Buyer and Seller agree as follows:
1. (a) Seller does hereby grant, bargain, transfer,
sell, assign, convey and deliver to Buyer all right, title and
interest of Seller in, to and under the Purchased Assets;
provided that no grant, bargain, transfer, sale, assignment,
conveyance or delivery shall be made of any of the Energy Complex
Contracts, Energy Complex Permits, Proprietary Rights or
Warranties if any such attempted grant, bargain, transfer, sale,
assignment, conveyance or delivery thereof, without the consent
of a third party, would constitute a breach or other
contravention thereof or in any way adversely affect the rights
of Buyer or Seller thereunder.
(b) Buyer does hereby accept all the right, title and
interest of Seller in, to and under all of the Purchased Assets
(except as aforesaid) and Buyer assumes and agrees to pay,
D-1
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perform and discharge promptly and fully when due all of the
Assumed Liabilities.
2. This Agreement shall be governed by and construed
in accordance with the law of the State of New York, without
reference to the choice of law provisions of New York law.
3. This Agreement may be signed in multiple originals
and/or using counterpart signature pages. All such multiple
originals shall constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
SELLER:
SCOTT PAPER COMPANY,
a Pennsylvania corporation
By ____________________________
Name:
Title:
BUYER:
MOBILE ENERGY SERVICES COMPANY, INC.,
an Alabama corporation
By:____________________________
Name:
Title:
D-2
<PAGE>
EXHIBIT E
SCOTT ENVIRONMENTAL INDEMNITY AGREEMENT
E-1
<PAGE>
EXHIBIT F
ENVIRONMENTAL GUARANTY
F-1
<PAGE>
EXHIBIT G
1984 TAX-EXEMPT LEASE AGREEMENT
G-1
<PAGE>
EXHIBIT H
1984 TAXABLE LEASE AGREEMENT
H-1
<PAGE>
EXHIBIT I
1973 TAX-EXEMPT LEASE AGREEMENT
I-1
<PAGE>
EXHIBIT J
1976 TAX-EXEMPT LEASE AGREEMENT
J-1
<PAGE>
EXHIBIT K
LEASE ASSIGNMENT AGREEMENT
K-1
<PAGE>
EXHIBIT L
TRT AGREEMENT
L-1
<PAGE>
EXHIBIT M
BOND TRANSFER AGREEMENT
M-1
<PAGE>
EXHIBIT N
SOUTHERN COMPANY GUARANTY
N-1
<PAGE>
EXHIBIT O
EMPLOYEE TRANSITION AGREEMENT
O-1
<PAGE>
EXHIBIT P-1
FORM OF OPINION OF LATHAM & WATKINS
P-1-1
<PAGE>
EXHIBIT P-2
FORM OF OPINION OF TROUTMAN SANDERS
P-2-1
<PAGE>
EXHIBIT P-3
FORM OF OPINION OF BALCH & BINGHAM
P-3-1
<PAGE>
EXHIBIT Q
FORM OF BUYER'S OFFICER'S CERTIFICATE
Q-1
<PAGE>
EXHIBIT R-1
FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM
R-1-1
<PAGE>
EXHIBIT R-2
FORM OF OPINION OF ________________
R-2-1
<PAGE>
EXHIBIT R-3
FORM OF OPINION OF ARMBRECHT, JACKSON,
DEMOVY, CROWE, HOLMES & REEVES
R-3-1
<PAGE>
EXHIBIT S
FORM OF SELLER'S OFFICER'S CERTIFICATE
S-1
<PAGE>
EXHIBIT T
FORM OF OPINION OF MORGAN, LEWIS & BOCKIUS
T-1
<PAGE>
EXHIBIT U
FORM OF CONSENT TO ASSIGNMENT
U -1
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