EXHIBIT 2.3
AMENDMENT NO. 2 TO AGREEMENT OF PURCHASE AND SALE
This Amendment No. 2 to Agreement of Purchase and Sale (this "AMENDMENT")
dated as of January 6, 1998, is entered into by and among Xxxxxx Economic
Development Authority, a public trust and agency of the State of Oklahoma
created pursuant to a Trust Indenture dated as of June 29, 1987, in Title 60
Oklahoma Statute 1981, Sections 176 to 180.4, as amended and supplemented
("SELLER"), and Cornell Corrections, Inc., a Delaware corporation ("PURCHASER").
WHEREAS, Seller and Foresite Capital Facilities Corporation ("FORESITE")
entered into an Agreement of Purchase and Sale dated as of November 17, 1997, as
amended by the Amendment dated December 10, 1997 (the "AGREEMENT"), which
Agreement was subsequently assigned by Foresite to Purchaser.
WHEREAS, Seller and Purchaser desire to further amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. The definition of "Purchase Price" set forth in SECTION 1.1 of the
Agreement is hereby amended and restated to read as follows:
" 'PURCHASE PRICE' shall mean Forty-Three Million and No/100 Dollars
($43,000,000.00) LESS the amount of accrued vacation, sick and holiday pay
as of Closing assumed by Purchaser pursuant to SECTION 2.5 below, payable
in the manner described in SECTION 2.2 hereof."
2. The Agreement is hereby amended by inserting a new SECTION 2.5 which
shall read as follows:
"2.5 ACCRUED VACATION, SICK AND HOLIDAY PAY. As further consideration for
the transactions contemplated herein, Purchaser hereby assumes and agrees
to pay Seller's accrued vacation, sick and holiday pay as of Closing
relating to Operator's employees (the "ACCRUED VACATION") determined in
accordance with generally accepted accounting principles consistently
applied ("GAAP"), and such amount shall be deducted from the Purchase
Price to be paid by Purchaser. As of the Closing Date, Seller estimates
the amount of the Accrued Vacation to be $ -0- and this amount shall be
adjusted and finalized in accordance with SECTION 7.6 below."
3. The Agreement is hereby amended by inserting second and third
paragraphs at the end of SECTION 3.15 which shall read as follows:
"Seller represents and warrants that (a) sewage or wastewater treatment
does not occur at the Property, (b) no direct or indirect discharge or
release of waste or wastewater presently occurs in connection with
operations at the Property which requires any permit or other
authorization from any governmental authority, except for permission to
connect to a publicly owned sewer system, (c) the Property has authorized
connections to a publicly owned sewer system suitable for the conveyance
and treatment offsite of all sewage generated at the Property, and (d) all
sewage sludge resulting from sewage treatment at the Property has been or
is currently being removed from the Property, or beneficially reused at
the Property, in accordance with all Environmental Requirements.
Seller agrees that to the extent that the costs and expenses for the
proper removal, disposal or reuse of the sewage sludge referenced in (d)
of the preceding paragraph exceeds $250, Seller shall be responsible for
and shall pay (or if Purchaser has paid or incurred such costs, Seller
shall immediately reimburse Purchaser for all such amounts) all such
excess costs and expenses."
4. The Agreement is hereby amended by inserting a new paragraph at the end
of SECTION 7.6 which shall read as follows:
"Notwithstanding the foregoing and for purposes of convenience, Seller
will close its accounting records as of December 31, 1997, and Purchaser
will account for Seller's operations for the period from January 1, 1998
through the close of business on January 5, 1998 (the "INTERIM PERIOD").
The calculation of Seller's revenues and expenses during the Interim
Period shall be determined by multiplying Purchaser's net income for the
month of January 1998 determined in accordance with GAAP by the fraction
of 5/31. The adjustments and prorations required by this Agreement shall
be made in accordance with the following procedure. Seller shall prepare,
within 90 days following the Closing Date, a balance sheet (the "CLOSING
DATE BALANCE SHEET") of Seller dated as of the Closing Date, including a
listing of Accrued Vacation. Purchaser shall prepare, within 90 days
following the Closing Date, an income statement (the "INTERIM PERIOD
INCOME STATEMENT") of Purchaser for the month of January 1998. The Closing
Date Balance Sheet and Interim Period Income Statement shall be prepared
in accordance with GAAP. If, within fifteen days following the receipt of
the Closing Date Balance Sheet by Purchaser and the Interim Period Income
Statement by Seller, Purchaser or Seller, as the case may be, has not
objected in writing thereto, then the Closing Date Balance Sheet and the
Interim Period Income Statement shall be used in computing any required
adjustment. If Purchaser or Seller, as the case may be, shall object in
writing to the Closing Date Balance Sheet or the Interim Period Income
Statement, then Seller and Purchaser
shall negotiate in good faith and attempt to resolve their disagreement.
Should such negotiations not result in agreement within 20 days, then the
matter will be submitted to a mutually agreed national accounting firm as
is jointly selected by Purchaser and Seller (the firm accepting the
engagement being referred to as the "ACCOUNTING ARBITER") whose decision
with respect thereto shall be final and binding on the parties in all
respects. Fees and expenses incurred in preparing the Closing Date Balance
Sheet shall be borne by Seller and the fees and expenses incurred in
preparing the Interim Period Income Statement shall be borne by Purchaser.
Fees and expenses incurred by Purchaser and Seller in reviewing the
financial statements shall be borne by the party incurring same. The fees
of any Accounting Arbiter shall be borne equally by Purchaser and Seller.
On the tenth business day following the final determination of any
required adjustment pursuant to this Section, the party owing the required
adjustment amount shall pay to the other party the full amount in
immediately available funds."
5. The Agreement is hereby amended by inserting anew paragraph at the end
of Section 9.1 which shall read as follows:
"Seller agrees to indemnify, defend, and hold Purchaser harmless from any
and all claims, demands, actions, fines, penalties, costs, and/or expenses
(including without limitation reasonable costs of investigation, redemption, or
monitoring) related to or arising from the use, reuse, release, storage,
disposal, handling, or distribution of sewage sludge which occurred or commenced
prior to the Closing Date". The provisions of this Section shall survive the
closing of the transaction contemplated hereby.
6. The notice information with respect to the Purchaser is hereby amended
to read as follows:
"If to Purchaser: Cornell Corrections, Inc.
0000 Xxxxxxx, Xxxxx 000X
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx Xxxxx, Senior Vice President
and Chief Financial Officer
Telephone: 713/000-0000
Facsimile: 713/623-2853
With a copy to: Liddell, Sapp, Zively, Hill & XxXxxx, LLP
3200 Texas Commerce Tower
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Telephone: 713/000-0000
Facsimile: 713/223-3717"
7. Except as provided herein, the terms of the Agreement shall remain in
full force and effect.
8. This Amendment may be executed in several counterparts, and all such
counterparts, when so executed and delivered, shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the 6TH day of January, 1998.
SELLER:
XXXXXX ECONOMIC DEVELOPMENT
AUTHORITY, a public trust and agency of the
State of Oklahoma
By: /s/ XXXXX XXXXXXXX
Xxxxx XxXxxxxx, Chairman
PURCHASER:
CORNELL CORRECTIONS, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx, Chief Financial Officer
