-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Iif27fupGga4+vLsJEJfsOiRz7p1CCt+oFlxSybG6q2Us0KTEoNGl/HKJ2b5kcPK Uc5Z5EfVdkxzniG/TQ7HzA== 0000092122-94-000074.txt : 19941214 0000092122-94-000074.hdr.sgml : 19941214 ACCESSION NUMBER: 0000092122-94-000074 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19941213 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1/A SEC ACT: 1935 Act SEC FILE NUMBER: 070-08505 FILM NUMBER: 94564457 BUSINESS ADDRESS: STREET 1: 64 PERIMETER CTR EAST CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043930650 U-1/A 1 AMENDMENT NO. 3 TO FORM U-1 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 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 EX-99 2 EXHIBIT B-1(A) 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 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 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 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 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 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 EXHIBIT A DEFINITIONS A-1 EXHIBIT B ALLOCATION OF PURCHASE PRICE B-1 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 C-2 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 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 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 EXHIBIT E SCOTT ENVIRONMENTAL INDEMNITY AGREEMENT E-1 EXHIBIT F ENVIRONMENTAL GUARANTY F-1 EXHIBIT G 1984 TAX-EXEMPT LEASE AGREEMENT G-1 EXHIBIT H 1984 TAXABLE LEASE AGREEMENT H-1 EXHIBIT I 1973 TAX-EXEMPT LEASE AGREEMENT I-1 EXHIBIT J 1976 TAX-EXEMPT LEASE AGREEMENT J-1 EXHIBIT K LEASE ASSIGNMENT AGREEMENT K-1 EXHIBIT L TRT AGREEMENT L-1 EXHIBIT M BOND TRANSFER AGREEMENT M-1 EXHIBIT N SOUTHERN COMPANY GUARANTY N-1 EXHIBIT O EMPLOYEE TRANSITION AGREEMENT O-1 EXHIBIT P-1 FORM OF OPINION OF LATHAM & WATKINS P-1-1 EXHIBIT P-2 FORM OF OPINION OF TROUTMAN SANDERS P-2-1 EXHIBIT P-3 FORM OF OPINION OF BALCH & BINGHAM P-3-1 EXHIBIT Q FORM OF BUYER'S OFFICER'S CERTIFICATE Q-1 EXHIBIT R-1 FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM R-1-1 EXHIBIT R-2 FORM OF OPINION OF ________________ R-2-1 EXHIBIT R-3 FORM OF OPINION OF ARMBRECHT, JACKSON, DEMOVY, CROWE, HOLMES & REEVES R-3-1 EXHIBIT S FORM OF SELLER'S OFFICER'S CERTIFICATE S-1 EXHIBIT T FORM OF OPINION OF MORGAN, LEWIS & BOCKIUS T-1 EXHIBIT U FORM OF CONSENT TO ASSIGNMENT U -1 -----END PRIVACY-ENHANCED MESSAGE-----