EXHIBIT 2.A.2
SECOND AMENDMENT TO TRANSACTION AGREEMENT
This SECOND AMENDMENT TO TRANSACTION AGREEMENT (this "AMENDMENT") is
made this 22 day of February 2001 between East Coast Power Holding Company
L.L.C., a Delaware limited liability company ("SELLER"), ECTMI Trutta Holdings
LP, a Delaware limited partnership ("TRUTTA"), Enron Corp., an Oregon
corporation ("ENRON"), Mesquite Investors, L.L.C., a Delaware limited liability
company ("BUYER"), and El Paso Corporation, a Delaware corporation formerly
known as El Paso Energy Corporation ("EL PASO"). Capitalized terms used, but not
defined, herein shall have the meaning set forth in the Agreement (defined
below).
A. The parties hereto have entered into that certain Transaction
Agreement dated December 18, 2000, as amended by that certain
Amendment to Transaction Agreement dated as of January 22, 2001
(as amended, the "AGREEMENT"), pursuant to which, among other
things, Buyer shall acquire a 98.01% Sharing Ratio of the Company,
Buyer Affiliate shall acquire a 0.99% Sharing Ratio of the Company
and Seller shall have its interests in the Company reduced to a
1.0% Sharing Ratio, all on the terms and subject to the conditions
set forth in the Agreement.
B. The parties hereby desire to amend certain of the terms and
conditions of the Agreement as provided herein.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
amend the Agreement as follows:
AGREEMENT
1. LLC AGREEMENT. The agreement attached as Annex 2.01-B to the
Agreement is hereby deleted in its entirety and replaced with that certain Third
Amended and Restated Limited Liability Company Agreement in the form attached
hereto as Exhibit A.
2. INITIAL CLOSING SHARING RATIOS. The references to 44.28% in Recital
E and Section 2.01 to the Agreement are hereby deleted and replaced with 45.53%.
The references to 44.82% in Recital E and Section 2.01 to the Agreement are
hereby deleted and replaced with 43.57%.
3. CASH CONTRIBUTION AMOUNT. The definition of "Cash Contribution
Amount" provided in Section 1.01 to the Agreement is hereby deleted in its
entirety and replaced with the following: "CASH CONTRIBUTION AMOUNT" means
$22,650,000.00.
4. SELLER'S MEMBERSHIP INTEREST VALUE. The following definition is
hereby added to Section 1.01 of the Agreement:
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"SELLER'S MEMBERSHIP INTEREST VALUE" means value of the consideration
to be received by Seller in exchange for its Membership Interests at
the Second Closing, which consists of both the cash to be paid pursuant
to Section 2.02(a)(ii) and the present value as of the Second Closing
Date of the net payments under the Swap Agreement to be delivered to
Seller under Section 2.02(a)(i), determined using an annual discount
rate of 8.5%. For the purpose of allocating the Swap Agreements between
Seller's Membership Interests and the Company Subordinated Notes, the
value of the Swap Agreements to be allocated to the Company
Subordinated Notes shall equal $157,900,000 plus 51% of the accrued and
unpaid interest thereon to the Second Closing Date.
5. CAPITAL ACCOUNT AND SALES PRICE AFFIRMATION. Section 5.09 to the
Agreement is hereby deleted in its entirety and replaced with the following:
"SECTION 5.09 CAPITAL ACCOUNT AND SALES PRICE AFFIRMATION.
Buyer and Seller agree that, immediately prior to the Initial Closing,
they will execute a certificate setting forth their respective Capital
Accounts (as defined in the LLC Agreement) with respect to their
Membership Interests in the Company immediately prior to the Initial
Closing. Buyer and Seller agree that such Capital Accounts shall be
valued using the Seller's Membership Interest Value. Seller will
further certify, as of the Second Closing, the amount to be realized by
it on the disposition of its Membership Interests pursuant to Section
2.02 of this Agreement, which will also be valued in accordance with
the definition of Seller's Membership Interest Value."
6. DELETION OF SECTION 6.01(g). Section 6.01(g) to the Agreement is
hereby deleted in its entirety.
7. AMENDMENT TO SECTION 6.02(g). Section 6.02(g) to the Agreement is
hereby deleted in its entirely and replaced with the following:
"(g) Seller shall have delivered to Buyer and El Paso a
written representation dated as of the Initial Closing and the Second
Closing to the effect that, to Seller's knowledge without inquiry, the
execution, delivery and performance by Seller of this Agreement and
performance of its obligations hereunder does not and will not
(assuming the absence of any adverse federal, state or local tax
consequences that may arise out of the transactions contemplated by the
Agreement and assuming the absence of any consequences arising out of
Sections 7.2 or 12 (or provisions related thereto) of the Amended and
Restated Joint Venture Agreement for Cogen Technologies NJ Venture
dated as of August 25, 1986 as amended or any other agreements related
to Cogen Technologies NJ Venture or its Affiliates as a result of any
such consequences) conflict with, or result in a breach or violation
of, or accelerate the performance required by, the terms of any of the
partnership or joint venture agreements governing Camden Xxxxx X.X.,
Cogen Technologies NJ Venture, or Cogen
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Technologies Linden Venture, L.P. or any material loan agreement,
indenture or other financing instrument (including any security
agreements related thereto) to which any subsidiary of the Company is a
party, except as would not have a Material Adverse Effect on the
Company and its subsidiaries, taken as a whole."
8. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
9. COUNTERPARTS. This Amendment may be executed by one or more of the
parties in any number of separate counterparts, and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.
10. ENTIRE AGREEMENT. This Amendment shall constitute the entire
agreement among the parties with respect to the subject hereof. All prior
understandings, statements and agreements, whether written or oral, relating to
the subject hereof are superceded by this Amendment, provided that all other
terms and conditions of the Agreement not specifically amended hereby remain in
full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed individually or by their authorized representatives on the day and year
first above written.
EAST COAST POWER HOLDING COMPANY L.L.C.
By: Joint Energy Development
Investments II Limited Partnership,
its Managing Member
By: Enron Capital Management II Limited
Partnership, its General Partner
By: Enron Capital II Corp., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
ECTMI TRUTTA HOLDINGS LP
By: Brook I LLC, general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
MESQUITE INVESTORS, L.L.C.
By: /s/ D.T. Field
--------------------------------------------------
Name: D. T. Field
Title: Attorney-in-Fact
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EL PASO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ENRON CORP.
By: /s/ Xxx X. Xxxxxxx, Xx.
--------------------------------------------------
Name: Xxx X. Xxxxxxx, Xx.
Title: Managing Director, Finance and Treasurer
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EXHIBIT A
FORM OF THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
