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EXHIBIT 10.2
AMENDMENT NO. 1 TO
TRANSACTION AGREEMENT
THIS AMENDMENT NO. 1 TO TRANSACTION AGREEMENT ("AMENDMENT") is
made effective as of this 6th 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 (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) The parenthetical phrase beginning in the third line of
Section 2.05(a) of the Transaction Agreement reading "(or, at Buyer's
option, on December 31, 1998 with respect to the Closing of the Linden
Acquisition and the Camden Acquisition, provided that the terms of
such Closing shall be reasonably agreeable to each of the parties
hereto)" is hereby deleted.
(b) Section 2.07(a) of the Transaction Agreement is hereby
amended to replace each reference therein to "negative $4,932,952"
with a reference to "negative $2,532,952".
(c) Section 12.01(g) of the Transaction Agreement is hereby
deleted (without affecting Annex 12.01(g) for the purposes of new
Section 13.13 added below).
(d) Article 13 of the Transaction Agreement is hereby amended
by adding thereto a new Section 13.13 as follows:
SECTION 13.13. Reimbursement for Certain Matters.
(a) Subject to paragraph (c) below, Buyer
agrees that if, after the Closing, Linden Venture is
awarded and receives compensation in the arbitration
referred to in Item 6 of Section II.11(a) of the
Disclosure Schedule with respect to the matter
referred to in Item 1 of Annex 12.01(g), then Buyer
will cause the amount of such compensation, up to a
maximum of
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$2,400,000, to be paid to the Sellers promptly after
Linden Venture's receipt thereof, in the manner
reasonably specified by the Sellers'
Representatives.
(b) Subject to paragraph (c) below, Buyer
agrees that if, after the Closing, Linden Venture
does not spend at least $2,400,000 to address the
matter referred to in Item 1 of Annex 12.01(g) prior
to December 31, 2000, then Buyer will cause to be
paid to the Sellers (in the manner reasonably
specified by the Sellers' Representatives) promptly
after December 31, 2000 an amount in cash equal to
the amount by which the funds spent by Linden
Venture to address such matter is less than
$2,400,000.
(c) Sellers agree that any amounts paid to
them pursuant to paragraph (a) above will be
credited against any amounts due to them pursuant to
paragraph (b), and any amounts paid to them pursuant
to paragraph (b) will be credited against any
amounts due to them pursuant to paragraph (a). In no
event will the Sellers be entitled to receive more
than a total of $2,400,000 pursuant to the
provisions of this Section 13.13.
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.
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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
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J. Xxxxxxxx Xxxxxx
Senior Vice President
ENRON CAPITAL & TRADE RESOURCES CORP.
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Xxxxxxx X. Xxxxxxx, Xx.
Vice President
RCM HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
Senior Vice President and Chief Financial Officer
COGEN TECHNOLOGIES CAMDEN, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
Senior Vice President and Chief Financial Officer
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COGEN TECHNOLOGIES CAPITAL COMPANY, L.P.
By: Cogen Technologies GP Capital
Corporation, its General Partner
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
THE XXXXXX GROUP SELLERS:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. XxXxxx
/s/ XXXXXX XXXX XXXXXX, XX.
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Xxxxxx Xxxx XxXxxx, Xx.
XXXXXX XXXXXXX XXXXXX
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Xxxxxx Xxxxxxx XxXxxx
/s/ XXXXXX XXXX XXXXXX, XX.
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Xxxxxx Xxxx XxXxxx, Xx.,
as Trustee of the Xxxxxx Xxxx XxXxxx, Xx.
Trust UTA dated 11/14/88, as amended
/s/ XXXXXX XXXXXXX XXXXXX
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Xxxxxx Xxxxxxx XxXxxx,
as Trustee of the Xxxxxx Xxxxxxx XxXxxx Trust
UTA dated 11/14/88, as amended
/s/ XXXX XXXXXX XXXXX
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Xxxx XxXxxx Xxxxx,
as Co-Trustee of the Xxxx XxXxxx Xxxxx Trust
UTA dated 11/14/88, as amended
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/s/ XXXXXXX XXXXXX XXXXXX XXXXXXXX
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Xxxxxxx Xxxxxx XxXxxx Xxxxxxxx,
as Co-Trustee of the Xxxxxxx Xxxxxx XxXxxx Xxxxxx Trust
UTA dated 11/14/88, as amended
/s/ XXXXXX XXXXXXX
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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
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Name: X. Xxxxxx Van Wart
Title: General Partner
/s/ XXXXXXX X. XXXX
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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
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Xxxxxx X. Xxxxxx
Evergreen Partnership Energy, Ltd.
By: /s/ H. XXXX XXXXXX
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Name: H. Xxxx Xxxxxx
Title: General Partner
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The 1989 Energy Trust
By: /s/ XXXXXX XXXX XxXXXX, XX.
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Xxxxxx Xxxx XxXxxx, Xx., Trustee
(and not in his individual capacity)
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, Trustee
(and not in his individual capacity)
/s/ X. XXXXXX VAN WART
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X. Xxxxxx Van Wart
Hansfam Three, a Trust
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Trustee
(and not in his individual capacity)
/s/ X. XXXXXX VAN WART
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X. Xxxxxx Van Wart, Trustee
(and not in his individual capacity)
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
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