Exhibit 10.a
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
This Amendment No. 1 to Purchase Agreement (this "AMENDMENT") is made and
entered into this 1st day of September, 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 (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 2.1.SECTION 2.1 of the Agreement shall be deleted and replaced
in its entirety with the following:
2.1 PURCHASE PRICE. The purchase price for the Equity Interest
shall be an amount equal to (i) $2,450,000,000 less the
Transwestern Debt Amount (the "PRELIMINARY PURCHASE AGRREMENT"),
plus (ii) an amount, which may be positive or negative,
calculated pursuant to SCHEDULE 2.1 (the Preliminary Purchase
Price, after giving effect to all adjustments contemplated
pursuant to SCHEDULE 2.1, is referred to herein as the
"PURCHASE PRICE").
3. FINANCIAL CAPABILITY. Purchaser hereby represents that it has provided
Sellers true and complete copies of updated Commitment Letters described in
SECTION 5.6 of the Agreement which provide adequate funds to cover the Purchase
Price, as increased by this Amendment.
4. NONSOLICITATION. Notwithstanding anything to the contrary in the
Agreement, prior to entry of the Approval Order or a decision by the Bankruptcy
Court not to enter the Approval Order, Sellers shall not, directly orindirectly,
pursue or facilitate any Alternative Transaction or solicit, accept,facilitate,
review, cooperate with, discuss, or provide information in connection with, any
offer, inquiry, proposal, bid or indication of interest from any Person, or
respond to any inquiries from or engage in any negotiations with any Person, or
share any information regarding Purchaser or any of the Transfer Group
Companies, with respect to or in possible contemplation of any Alternative
Transaction, and Sellers shall not assist, cooperate with or help to facilitate
any other Person in taking or effecting any such actions. In addition, Sellers
shall not seek to postpone the hearing on the Approval Order scheduled for
September 9, 2004.
5. SECTION 6.18. SECTION 6.18 of the Agreement shall be deleted and
replaced in its entirety with the following:
6.18. REGULATORY APPROVALS. As promptly following the entry of
the Bidding Procedures Order by the Bankruptcy Court as is
reasonably practicable, Southern Union Company and Purchaser
shall commence commercially reasonable efforts to obtain all
of the consents and approvals identified on SCHEDULE 5.3(B) as
being required to be obtained in connection with the
consummation of the transactions contemplated by this
Agreement. Following receipt of such consents or approvals,
Purchaser agrees not to take any action that would be in
violation of such consents or approvals, or of any agreements
or understandings entered into with Governmental Authorities
in connection therewith.
6. SELLERS' DISCLOSURE SCHEDULES. SCHEDULES 4.5(A), 4.5(F), 4.8(A),
4.11(A),4.11(B), 4.13(D), 4.13(G), 4.21, 4.22, 6.2(B) and 6.15(A) of Sellers'
Disclosure Schedules attached to the Agreement shall be deleted and replaced in
their entirety with SCHEDULES 4.5(A), 4.5(F), 4.8(A), 4.11(A), 4.11(B), 4.13(D),
4.13(G), 4.21, 4.22, 6.2(B) and 6.15(A) attached hereto.
7. CONSENT TO SUBLEASE. Purchaser hereby consents to the execution of an
amendment to the Sublease with respect to the Company's office space located in
Houston, Texas, which releases the computer room located on the 5th floor of 4
Houston Center from such Sublease, while giving the Company the continued right
to use the computer room to operate its equipment during the term of the TSSA
and Enron and its affiliates the continued right to access the computer room
through the sublease premises.
8. PURCHASER ACKNOWLEDGEMENT.Purchaser hereby represents to Sellers that it
has no knowledge as of the date of this Amendment of any breach by Sellers of
any of Sellers' representations, warranties or covenants contained in the
Agreement.
9. 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.
10. NO OTHER MODIFICATION. Except as set forth in this Amendment, the terms
and conditions of the Agreement shall remain in full force and effect.
11. 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.
12. 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.]
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
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 written above.
CCE HOLDINGS, LLC
By: /S/ XXXXXX X. XXXXX
-------------------------
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
---------------------------
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
