Exhibit 2.c
EXECUTION COPY
AMENDMENT NO. 2 TO PURCHASE AGREEMENT
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This Amendment No. 2 to Purchase Agreement (this "Amendment") is made
and entered into this 11th day of November, 2004, by and among CCE Holdings,
LLC, a Delaware limited liability company ("Purchaser"), Enron Operations
Services, LLC, a Delaware limited liability company ("EOS"), Enron
Transportation Services, LLC, a Delaware limited liability company ("ETS"), EOC
Preferred, L.L.C., a Delaware limited liability company ("EOC"), and Enron
Corp., an Oregon corporation ("Enron", and, collectively with EOS, ETS and EOC,
"Sellers").
WHEREAS, the parties to this Amendment entered into a Purchase
Agreement dated as of June 24, 2004, as amended by that certain Amendment No. 1
to Purchase Agreement dated as of September 1, 2004 (as amended, the
"Agreement");
WHEREAS, Section 12.10 of the Agreement provides that the Agreement
(including the schedules and exhibits thereto) may be amended by an instrument
in writing signed by each party to the Agreement; and
WHEREAS, the parties desire to make certain amendments to the Agreement
to memorialize their current intent with respect to the subject matter thereof.
NOW, THEREFORE, in consideration of the premises and agreements herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties agree as follows:
1. Defined Terms. All capitalized terms used, but not defined, in this
Amendment shall have the meanings given to such terms in the Agreement.
2. Section 10.2(a)(ii). Section 10.2(a)(ii) shall be amended by deleting
the word "or" immediately following the semicolon contained therein.
3. Section 10.2(a)(iii). Section 10.2(a)(iii) shall be amended by adding
the word "or" immediately following the semicolon contained therein.
4. Section 10.2(a)(iv). A new Section 10.2(a)(iv) shall be added to the
Agreement as follows:
(iv) the indemnification obligation of
Transwestern pursuant to Section 9.04(c) of that certain
Transwestern Pipeline Company Credit Agreement dated as of
November 13, 2001 with Citicorp North America, Inc. as paying
agent and Citicorp North America, Inc. and JPMorgan Chase Bank
as Co-Administrative Agents) (the "Citibank Litigation
Indemnification Obligation"), but only to the extent such
Citibank Litigation Indemnification Obligation arises out of
or results from that certain adversary proceeding captioned
Enron Corp. et al. v. Citigroup Inc., et al. (In re Enron
Corp., et al.), adv. no. 03-93611 (AJG), ch. 11 no.
01-16034(AJG)(Bankr. S.D.N.Y. filed December 1, 2003, as
amended or supplemented from time to time) (the "Citibank
Litigation").
5. Section 10.2(c). The following sentence shall be added at the end of
Section 10.2(c): "No claim may be asserted nor may any action be commenced
against Sellers pursuant to Section 10.2(a)(iv) following entry of an Order of
the Bankruptcy Court or other court of competent jurisdiction, if any,(i)
dismissing with prejudice all of Enron's claims in the Citibank Litigation
against Citibank North America, Inc. and its affiliates subject to such
litigation ("Citibank"), and, on notice to and after an opportunity to be heard
by Citibank, determining that there are no bases in law or fact for Transwestern
to have a Citibank Litigation Indemnification Obligation to Citibank, and either
(A) the time for any available appeal of such Order has expired without such
appeal having been taken or (B) no appeal is available, (ii) adjudicating the
Citibank Litigation in its entirety in favor of Citibank and, on notice to and
after an opportunity to be heard by Citibank, determining that there are no
bases in law or fact for Transwestern to have a Citibank Litigation
Indemnification Obligation to Citibank, and either (A) the time for any
available appeal of such Order has expired without such appeal having been taken
or (B) no appeal is available or (iii) approving a complete settlement of the
Citibank Litigation that contains a full and complete release of Transwestern
with respect to the Citibank Litigation Indemnification Obligation without
Transwestern having to pay anything to any party."
6. Section 10.2(e). Section 10.2(e) shall be amended in its entirety and
shall read as follows:
(e) The amounts paid by all Sellers for indemnification of
Losses under this Agreement (i) pursuant to Sections
10.2(a)(i) and 10.2(a)(ii) shall be limited to, in the
aggregate, an amount equal to $50,000,000 (the
"Indemnification Cap"), with each Seller limited to an amount
equal to the product of its Percentage Interest multiplied by
the Indemnification Cap and (ii) pursuant to Section
10.2(a)(iv) shall be limited to, in the aggregate, an amount
equal to $137,500,000 plus Allocated Interest and Expenses, if
any (the "Special Indemnification Cap"), with each Seller
limited to an amount equal to the product of its Percentage
Interest multiplied by the Special Indemnification Cap.
7. Section 10.2(g). Section 10.2(g) shall be amended by adding the phrase
", claim pursuant to Section 10.2(a)(iv)" immediately before the phrase "or
claim pursuant to Sections 9.10, 9.11 or 9.12" appearing therein.
8. Section 10.4(b) The penultimate sentence of Section 10.4(b) shall be
amended by adding the phrase "or the Special Indemnification Cap, as
applicable," after the phrase "Indemnification Cap".
9. Section 10.7. A new Section 10.7 shall be added to the Agreement as
follows:
10.7. Special Indemnity Escrow. To secure
the indemnification obligations of Sellers under Section
10.2(a)(iv) hereof, in the event that Enron or an affiliate of
Enron who is currently a plaintiff in or who hereafter becomes
a plaintiff in the Citibank Litigation receives any cash award
or consideration as a result of any judgment or settlement in
respect of the Citibank Litigation (the "Citibank Litigation
Proceeds"), Sellers and/or the payees of the Citibank
Litigation Proceeds shall deposit into an escrow fund, earning
market interest (the "Citibank Litigation Proceeds Escrow
Fund"), pursuant to an escrow agreement (the "Citibank
Litigation Proceeds Escrow Agreement") to be reasonably
acceptable to Purchaser, an amount equal to the lesser of (a)
$137,500,000 plus any Allocated Interest and Expenses, if any,
(b) the aggregate actual Citibank Litigation Proceeds
(including any award of interest and expenses) received in
connection with any judgment or settlement in connection with
the Citibank Litigation, and (c) that portion of the Citibank
Litigation Proceeds (including any award of interest and
expenses) that is specifically identified in the documentation
evidencing the judgment or settlement effecting a resolution
of the Citibank Litigation as being attributable to claims in
respect of transactions involving Transwestern described in
the complaint filed in connection with the Citibank Litigation
and as to which, in the case of any such settlement only,
Citibank has agreed in writing (whether in the settlement
documentation or otherwise) is the absolute cap on any amount
it may seek from Transwestern in respect of the Citibank
Litigation Indemnification Obligation. Subject to and in
accordance with the terms of the Citibank Litigation Proceeds
Escrow Agreement, the Citibank Litigation Proceeds Escrow Fund
shall be maintained in effect until the earlier of (i)
Sellers' indemnification obligation under Section 10.2(a)(iv)
hereof having been satisfied in full (by application of
amounts deposited in the Citibank Litigation Proceeds Escrow
Fund or otherwise) as determined in writing by Purchaser, and
(ii) a court of competent jurisdiction having issued a final,
nonappealable order, on notice to and after an opportunity to
be heard by Citibank, determining that there are no bases in
law or fact for the existence of an indemnification claim
pursuant to Section 10.2(a)(iv). If and only if a Citibank
Litigation Proceeds Escrow Fund is established, the amounts
held in the Citibank Litigation Proceeds Escrow Fund shall be
the sole recourse, unless Sellers fail to comply with this
Section 10.7, of any Purchaser Indemnified Party with respect
to any Loss arising out of or resulting from the Citicorp
Litigation under Section 10.2(a).
10. Transfer Group Company Guaranty. Section 8.2(d) shall be amended by
substituting the parenthetical therein with a new parenthetical which shall read
as follows: "(other than the Citrus Group Companies, the Northern Plains Group
Companies and NBP Services Corporation)".
11. Section 11.1. Section 11.1 shall be amended by adding the following
definition:
"Allocated Interest and Expenses" means with
respect to any judgment or settlement in respect of the
Citibank Litigation in which interest and expenses are
awarded, either (a) if specifically identified in the
documentation evidencing the judgment or settlement effecting
a resolution of the Citibank Litigation as being attributable
to claims in respect of transactions involving Transwestern
described in the complaint filed in connection with the
Citibank Litigation, the aggregate amount of such interest and
expenses so identified or (b) if not specifically identified
in such documentation, a proportionate share of the aggregate
amount of such interest and expenses determined by multiplying
such aggregate interest and expenses by a fraction, the
numerator of which is $137,500,000 and the denominator of
which is the total amount of damages sought by Enron and/or
its affiliates in the Citibank Litigation and other
proceedings, if any, related to such judgment or settlement,
without regard to any award of interest and expenses.
12. Approval of this Amendment. The obligation of Purchaser to consummate
the transactions contemplated by the Agreement is subject to and conditioned
upon the obtaining, prior to Closing, of an Order of the Bankruptcy Court, the
effectiveness of which has not otherwise been stayed, approving this Amendment
substantially in the form hereof, unless the obtaining of such Order is waived
by all of the parties hereto.
13. Entire Agreement. This Amendment, the Agreement, the Confidentiality
Agreements, the Transaction Documents and the Stipulation and Order among
Debtors, Creditors' Committee and CCE Holdings, LLC Regarding CrossCountry
Energy, LLC, including the schedules and exhibits thereto, represent the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and thereof.
14. No Other Modification. Except as set forth in this Amendment, the terms
and conditions of the Agreement shall remain in full force and effect.
15. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
16. Governing Law. THIS AMENDMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE BANKRUPTCY CODE AND THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY CONFLICT OF LAWS
PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CCE HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
ENRON OPERATIONS SERVICES, LLC
By: Enron Transportation Services, LLC,
its Sole Member
By: EOC Preferred, L.L.C., its Sole Member
By: Enron Corp., its Sole member
By: /s/ Xxxxxx X. XxXxxxxxx III
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Name: Xxxxxx X. XxXxxxxxx III
Title: Managing Director,
Corporate Development
ENRON TRANSPORTATION SERVICES, LLC
By: EOC Preferred, L.L.C., its Sole Member
By: Enron Corp., its Sole Member
By: /s/ Xxxxxx X. XxXxxxxxx III
---------------------------------
Name: Xxxxxx X. XxXxxxxxx III
Title: Managing Director,
Corporate Development
EOC PREFERRED, L.L.C.
By: Enron Corp., its Sole Member
By: /s/ Xxxxxx X. XxXxxxxxx III
---------------------------------
Name: Xxxxxx X. XxXxxxxxx III
Title: Managing Director,
Corporate Development
ENRON CORP.
By: /s/ Xxxxxx X. XxXxxxxxx III
---------------------------------
Name: Xxxxxx X. XxXxxxxxx III
Title: Managing Director,
Corporate Development
