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EXHIBIT 10.3
AMENDMENT NO. 2 TO
TRANSACTION AGREEMENT
THIS AMENDMENT NO. 2 TO TRANSACTION AGREEMENT ("AMENDMENT") is made
effective as of the 13th day of November, 1998 between Enron Corp., an Oregon
corporation, Enron Capital & Trade Resources Corp., a Delaware corporation, RCM
Holdings, Inc., a Texas corporation (formerly Cogen Technologies, Inc.), Cogen
Technologies Camden, Inc., a Texas corporation, Cogen Technologies Capital
Company, L.P. and the XxXxxx Group Sellers and Minority Group Sellers listed on
the signature page hereto, with reference to the following background.
WHEREAS, the parties hereto are all of the parties to a Transaction
Agreement dated October 25, 1998, as amended by Amendment No. 1 to Transaction
Agreement effective as of November 6, 1998 (the "TRANSACTION AGREEMENT"); and
WHEREAS, the parties hereto wish to amend the Transaction Agreement on
the terms set forth herein;
NOW THEREFORE, in consideration of the respective agreements contained
herein, the parties hereto agree as follows (capitalized terms used but not
defined herein have the meaning set forth in the Transaction Agreement):
SECTION 1. Amendments.
(a) Annex 7.04-F to the Transaction Agreement (referred to in
Section 7.04(a)(vi)) is hereby amended and restated to read in its
entirety as set forth on ANNEX 7.04-F attached hereto. Annexes 7.04-G,
7.04-H, 7.04-I, 7.04-J and 7.04-K are hereby deleted in their
entirety.
(b) Section 7.04(b) of the Transaction Agreement is hereby
amended and restated to read in its entirety as follows:
(b) XxXxxx, RCM Holdings, CTCI and the Buyer Entities will
endeavor to use their commercially reasonable efforts to obtain
prior to the Closing the Bayonne Consents, the Camden Consents
and the Linden Consents.
(c) Section 7.04(c) of the Transaction Agreement is hereby
amended and restated to read in its entirety as follows:
(c) Sellers will pay all fees and expenses payable in
connection with obtaining the Bayonne Consents and all fees and
expenses payable in connection with obtaining the required
consent of GE or the Owner Trustee
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in connection with obtaining the Camden Consents or the Linden
Consents. The Buyer Entities will pay all fees and expenses
payable to the parties other than GE or the Owner Trustee in
connection with obtaining the Camden Consents and the Linden
Consents in excess of the $540,000 of fees that have been paid or
have been previously agreed to be paid by CT Capital with respect
to consents as of the date of this Agreement.
(d) Section 7.04(d) of the Transaction Agreement is hereby
amended and restated to read in its entirety as follows:
(d) The Buyer Entities and the Sellers acknowledge and agree
that the forms of Partnership Consents are in form and substance
satisfactory to Buyer and the Sellers. Any amendments or
modifications to such documents shall be approved by Buyer and
the Sellers' Representatives, which approval shall not be
unreasonably withheld. Buyer and XxXxxx each agree to use their
best efforts to keep each other reasonably informed as to their
progress in obtaining the consents referred to in this Section
7.04, and agree to notify the other as soon as possible if they
determine that any of the consents referred to in this Section
7.04 will not be able to be obtained on terms that would satisfy
the condition to Closing set forth in Section 10.01(e).
(e) Section 10.01(e) of the Transaction Agreement is hereby
amended and restated to read in its entirety as follows:
The Bayonne Consents, Camden Consents, Linden Consents and
Partnership Consents shall have been obtained; provided that
Buyer shall have the right to waive, without the consent of the
Sellers, the foregoing condition to Closing with respect to the
portion of any such consent that relates to Buyer's obtaining
financing for the Contemplated Transactions, including matters
relating to liens and intercreditor relationships.
(f) Sections 12.01(f) and 12.01(h) of the Transaction Agreement
are hereby deleted in their entirety. In addition, the reference
beginning in the eighth line of Section 7.01(a) to "the expiration of
the termination rights set forth in Sections 12.01(f) and 12.01(h)
hereof" shall be deemed to refer to the date of this Amendment.
(g) Section 12.02(a) of the Transaction Agreement is hereby
amended to delete therefrom the words in the first line "Except as set
forth in Section 12.02(b)", and Section 12.02(b) of the Transaction
Agreement is hereby deleted in its entirety.
(h) Section 13.01 of the Transaction Agreement is amended to
provide that H. Xxxx Xxxxxx may be notified by telecopy at (713)
532-7668, and that Xxxx X. Xxxxxx may be notified by telecopy at (713)
735-3276.
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(i) Exhibit I of the Transaction Agreement is hereby amended to
delete therefrom the definitions of the terms "Bayonne Consent",
"Camden Bank Consent", "Camden GE Consent", "Linden Bank Consent" and
"Linden GE Consent," to change the name of the defined term "Competing
Transaction" to "Competing Proposal" and to add to such Exhibit I the
following definitions:
"BAYONNE CONSENTS" means any consents, waivers or amendments
necessary under the agreements referred to in Section
II.06(ii)(b) of the Disclosure Schedule with respect to the
Contemplated Transactions, including the proposed financing of
the Contemplated Transactions by Buyer on terms reasonably
satisfactory to Buyer (which terms shall include obtaining a lien
on the general partnership interest currently owned by NJ Inc. in
NJ Venture in favor of the Buyer Entities' lenders, together with
reasonable intercreditor agreements in connection therewith).
"CAMDEN CONSENTS" means any consents, waivers or amendments
necessary under the agreements referred to in Sections
II.04(i)(2)(e) and II.06(iii)(a), (c) and (f) of the Disclosure
Schedule with respect to the Contemplated Transactions, including
the proposed financing of the Contemplated Transactions by Buyer
on terms reasonably satisfactory to Buyer (which terms shall
include obtaining liens on the general partnership interest and
limited partnership interest in CT Camden and on the general
partner interest owned by CT Camden in Camden Cogen, each in
favor of the Buyer Entities' lenders, together with reasonable
intercreditor agreements in connection therewith).
"LINDEN CONSENTS" means any consents, waivers or amendments
necessary under the agreements referred to in Sections
II.04(i)(1)(d) and (e) and II.06(i)(b), (c), (d), (f) and (g) of
the Disclosure Schedule with respect to the Contemplated
Transactions, including the proposed financing of the
Contemplated Transactions by Buyer on terms reasonably
satisfactory to Buyer (which terms shall include obtaining liens
on the general partnership interest and limited partnership
interest in Linden Ltd. and on the general partnership interest
owned by Linden Ltd. in Linden Venture, each in favor of the
Buyer Entities' lenders, together with reasonable intercreditor
agreements in connection therewith).
(j) Sections II.04 and II.06 of the Disclosure Schedule are
hereby amended and restated to read in their entirety as set forth in
EXHIBIT A hereto.
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SECTION 2. Remainder of Agreement Not Affected. Except set forth in
Section 1 hereof, the terms and provisions of the Transaction Agreement remain
in full force and effect and are hereby ratified and confirmed.
SECTION 3. Authority. Each party represents that such party has full
corporate, partnership, trust or other power and authority to enter into this
Amendment, and that this Amendment constitutes a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms.
SECTION 4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 5. Governing Law. This Amendment shall be governed by Texas
law, without regard to the conflicts of laws principles thereof.
The parties have caused this Amendment to be duly executed individually
or by their authorized representatives on the day and year first above written.
ENRON CORP.
By: /s/ J. XXXXXXXX XXXXXX
---------------------------------------------
J. Xxxxxxxx Xxxxxx
Senior Vice President
ENRON CAPITAL & TRADE RESOURCES CORP.
By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Vice President
RCM HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
---------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Senior Vice President and Chief Financial
Officer
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COGEN TECHNOLOGIES CAMDEN, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
---------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Senior Vice President and Chief Financial
Officer
COGEN TECHNOLOGIES CAPITAL COMPANY, L.P.
By: Cogen Technologies GP Capital
Corporation, its General Partner
By: /s/ XXXXXXX X. XXXXXXXX, XX.
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
THE XXXXXX GROUP SELLERS:
/s/ XXXXXX X. XxXXXX
------------------------------------------------
Xxxxxx X. XxXxxx
/s/ XXXXXX XXXX XxXXXX, XX.
------------------------------------------------
Xxxxxx Xxxx XxXxxx, Xx.
/s/ XXXXXX XXXXXXX XxXXXX
------------------------------------------------
Xxxxxx Xxxxxxx XxXxxx
/s/ XXXXXX XXXX XxXXXX, XX.
------------------------------------------------
Xxxxxx Xxxx XxXxxx, Xx.,
as Trustee of the Xxxxxx Xxxx XxXxxx, Xx.
Trust UTA dated 11/14/88, as amended
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/s/ XXXXXX XXXXXXX XXXXXX
------------------------------------------------
Xxxxxx Xxxxxxx XxXxxx,
as Trustee of the Xxxxxx Xxxxxxx XxXxxx
Trust UTA dated 11/14/88, as amended
/s/ XXXX XXXXXX XXXXX
------------------------------------------------
Xxxx XxXxxx Xxxxx,
as Co-Trustee of the Xxxx XxXxxx Xxxxx Trust
UTA dated 11/14/88, as amended
/s/ XXXXXXX XXXXXX XXXXXX XXXXXXXX
------------------------------------------------
Xxxxxxx Xxxxxx XxXxxx Xxxxxxxx,
as Co-Trustee of the Xxxxxxx Xxxxxx XxXxxx
Xxxxxx Trust UTA dated 11/14/88, as amended
/s/ M. XXXXXX XXXXXXX
------------------------------------------------
M. Xxxxxx Xxxxxxx
as Co-Trustee of (1) the Xxxx XxXxxx Xxxxx Trust
UTA dated 11/14/88, as amended and (2) the
Xxxxxxx Xxxxxx XxXxxx Xxxxxx Trust UTA dated
11/14/88, as amended
THE MINORITY GROUP SELLERS:
COGEN TECHNOLOGIES LIMITED
PARTNERS JOINT VENTURE
By: /s/ X. XXXXXX VAN WART
---------------------------------------------
Name: X. Xxxxxx Van Wart
Title: General Partner
/s/ XXXXXXX X. XXXX
------------------------------------------------
Xxxxxxx X. Xxxx, as Trustee of the Xxxxxxx X.
Xxxx Family Trust-A and the Xxxxxxx X. Xxxx
Family Trust-B under the Will of Xxxxxxx X. Xxxx
/s/ XXXXXX X. XXXXXX
------------------------------------------------
Xxxxxx X. Xxxxxx
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Evergreen Partnership Energy, Ltd.
By: /s/ H. XXXX XXXXXX
------------------------------------------------
Name: H. Xxxx Xxxxxx
Title: General Partner
The 1989 Energy Trust
By: /s/ XXXXXX XXXX XXXXXX, XX.
------------------------------------------------
Xxxxxx Xxxx XxXxxx, Xx., Trustee
(and not in his individual capacity)
/s/ XXXXX X. XXXXXXX
------------------------------------------------
Xxxxx X. Xxxxxxx, Trustee
(and not in his individual capacity)
/s/ X. XXXXXX VAN WART
------------------------------------------------
X. Xxxxxx Van Wart
Hansfam Three, a Trust
By: /s/ XXXX X. XXXXXX
------------------------------------------------
Xxxx X. Xxxxxx, Trustee
(and not in his individual capacity)
/s/ X. XXXXXX VAN WART
------------------------------------------------
X. Xxxxxx Van Wart, Trustee
(and not in his individual capacity)
/s/ XXXXX X. XXXXXX
------------------------------------------------
Xxxxx X. Xxxxxx
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ANNEX 7.04-F
CONSENT AND WAIVER OF VENTURERS
(COGEN TECHNOLOGIES NJ VENTURE)
Reference is made to the Amended and Restated Joint Venture Agreement
of Cogen Technologies NJ Venture dated as of August 28, 1986 (the "Venture
Agreement") by and among Cogen Technologies NJ, Inc., a Delaware corporation
("NJ Inc."), Enron Cogeneration Five Company, a Delaware corporation ("EC5"),
CEA Bayonne, Inc., PSVO Bayonne, Inc., and Transco Cogeneration Company. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings as defined in the Venture Agreement.
WHEREAS, the undersigned, NJ Inc., EC5 and American National
Power/Mission Bayonne Partnership, a _________ partnership ("ANP/Mission"), are
the current Venturers;
WHEREAS, NJ Inc. has proposed certain transactions described in more
detail below;
WHEREAS, NJ Inc. has requested that EC5 and ANP/Mission consent to the
consummation of such transactions and waive any rights under certain provisions
of the Venture Agreement that may arise in connection therewith, and EC5 and
ANP/Mission desire to grant such consent and waiver;
NOW, THEREFORE, the undersigned Venturers hereby agree as follows:
1. Each of EC5 and ANP/Mission hereby grants its consent to the
following transactions (the "Transactions") for all purposes under the Venture
Agreement and agrees that NJ Inc. and its successors and assigns may consummate
the Transactions, notwithstanding any provision of the Venture Agreement that
might otherwise restrict or prohibit such consummation, including without
limitation Section 12.1, 12.3 or the first three sentences of 12.6 thereof:
(a) the assignment by NJ Inc. of its interest in the Venture
(the "Interest") to XxXxxx Energy Services Corporation
("MESC") pursuant to a merger of NJ Inc. into MESC, and the
admission of MESC as a substitute Managing Venturer of the
Venture;
(b) the pledge of the Interest by MESC to (i) NationsBank,
N.A., as agent, and (ii) the shareholders of MESC;
(c) the further assignment of the Interest (subject, if
applicable, to the pledges described in clause (b) above) to
one or more entities controlled 50% or more by Enron Capital &
Trade Resources Corp. ("ECT") or an Affiliate of ECT, and the
admission of any such entity as a substitute Managing Venturer
of the Venture; and
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(d) the making of an election by the Venture under section 754
of the Code.
2. ANP/Mission hereby waives any and all rights under Section 12.8 of
the Venture Agreement in connection with the Transactions.
3. EC5 and ANP/Mission hereby waive any and all rights under Sections
12.1, 12.2 and 12.9 of the Venture Agreement in connection with the
Transactions.
4. This Consent and Waiver may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Waiver of Venturers to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written
ENRON COGENERATION FIVE COMPANY
By:
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Name:
---------------------------------------
Title:
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AMERICAN NATIONAL POWER/MISSION
BAYONNE PARTNERSHIP
By:
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By:
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Name:
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Title:
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By:
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By:
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Name:
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Title:
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EXHIBIT A
AMENDED AND RESTATED SECTIONS II.04 AND II.06
OF THE DISCLOSURE SCHEDULE
