AMENDMENT NO. 2 to RESTATED PURCHASE AGREEMENT
EXHIBIT
2.2(d)
AMENDMENT
NO. 2
to
RESTATED
PURCHASE AGREEMENT
This
AMENDMENT
NO. 2 (this
“Amendment”),
dated
as of February 24, 2006, to the RESTATED
PURCHASE AGREEMENT,
dated
as of February 14, 2006, by and between TransEnergie HQ, Inc. (“TEHQ”),
TransEnergie U.S. Ltd. (“TEUS”),
United Capital Investments, Inc. (“UCI,”
and,
together with TEHQ and TEUS, the “Sellers”),
Cross-Sound Cable Company, LLC (the “Company”),
BBI
CSC LLC (“Purchaser”),
Xxxxxxx & Xxxxx Infrastructure Limited and Xxxxxxx & Xxxxx Investor
Services Limited (collectively, the "Purchaser
Guarantor”),
Hydro-Quebec (“HQ”)
and
United
Resources, Inc. (“UCI
Guarantor”),
as
amended.
Each of
the Sellers, the Company, Purchaser, Purchaser Guarantor, HQ and UCI Guarantor
are sometimes referred to individually herein as a “Party”
and
collectively as the “Parties.”
W
I T N E S S E T H :
WHEREAS,
the Parties entered into the Restated Purchase Agreement, dated as of February
14, 2006, as amended by the First Amendment to Amended and Restated Purchase
Agreement, dated February 22, 2006 (the “Agreement”);
and
WHEREAS,
the Parties desire for the Agreement to be amended as stated
herein;
NOW,
THEREFORE, in consideration of the mutual covenants, representations, warranties
and agreements hereinafter set forth, and intending to be legally bound hereby,
the Parties agree as follows:
AGREEMENT
1. Undefined
Terms.
Capitalized terms used but not defined in this Amendment shall have the meanings
ascribed to such terms in the Agreement.
2. Amendments.
The
Agreement is hereby amended as follows:
(a) Section
1.2 of the Agreement is hereby amended in its entirety to read as
follows:
The
aggregate consideration to be paid by Purchaser in respect of the purchase
of
the Company Membership Interests shall be an amount in cash equal
to
$213,000,000, less the amount to be transferred by Purchaser in respect of
the
Loan Agreement pursuant to Section
1.3
below
and
subject to adjustment as determined pursuant to Section
1.7
below
(the
“Purchase
Price”).
(b) The
Agreement is hereby amended to add a new Section 1.7, which shall read as
follows:
1.7 Working
Capital.
(a) The
Sellers hereby agree that the Company shall have, as of the Closing, Working
Capital in an amount equal to $3,200,000. As promptly as practicable, and in
any
event not later than sixty (60) days after the Closing Date, Purchaser shall
prepare and deliver to the Sellers a written statement (the "Purchaser
Working Capital Statement"),
setting forth either (i) Purchaser's confirmation that the amount of Working
Capital as of the Closing was $3,200,000 or (ii) Purchaser's calculation of
the
Working Capital as of the Closing Date and (x) if the amount of Working Capital
pursuant to such calculation is less than $3,200,000, the amount owed by the
Sellers (representing the amount by which Purchaser's calculation of the Working
Capital is less than $3,200,000), or (y) if the amount of Working Capital
pursuant to such calculation exceeds $3,200,000, the amount owed by Purchaser
(representing the amount by which Purchaser's calculation of the Working Capital
exceeds $3,200,000), as the case may be.
(b) The
Sellers may, in good faith, dispute the Purchaser Working Capital Statement
by
delivery of written notice thereof (a "Dispute
Notice")
to
Purchaser within fifteen (15) days following receipt by the Sellers of the
Purchaser Working Capital Statement. The Dispute Notice shall set forth in
reasonable detail all items disputed by the Sellers, together with the Sellers'
proposed changes thereto. If (i) by written notice to Purchaser, the Sellers
accept the Purchaser Working Capital Statement or (ii) the Sellers fail to
deliver a Dispute Notice within the prescribed fifteen (15)-day period (which
failure shall result in the Sellers being deemed to have accepted the Purchaser
Working Capital Statement delivered by Purchaser), the Purchaser Working Capital
Statement delivered by Purchaser shall become final and binding on the Sellers
and Purchaser as of the date on which the earlier of the foregoing events
occurs. In the event of a dispute, the undisputed portion, if any, of the
Working Capital shall be paid in accordance with Section 1.7(e) within five
(5)
Business Days following the date on which the amount of such undisputed portion
was determined in accordance with this Section 1.7(b).
(c) Purchaser
and the Company agree to give the Sellers and their respective representatives
(including accountants) reasonable access during normal business hours to such
employees, officers, and facilities and such books and records of the Company
and the Company Subsidiary, as is reasonably
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necessary
to allow the Sellers and their respective representatives to review the
Purchaser Working Capital Statement, at the expense of the Sellers.
(d) If
the
Sellers have timely delivered a Dispute Notice, then Purchaser and the Sellers
shall attempt to reach agreement on the matters identified in the Dispute
Notice. If, by the thirtieth (30th) day following Purchaser’s receipt of the
Dispute Notice, Purchaser and the Sellers have not agreed in writing to the
resolution of the matters identified in the Dispute Notice, then such matters
shall be submitted to an internationally recognized firm of accountants mutually
agreed upon by Purchaser and the Sellers (the "Independent
Accountants")
for
resolution. Purchaser and the Sellers shall instruct the Independent Accountants
to prepare and deliver a statement confirming or revising the calculation of
the
Working Capital set forth in the Purchaser Working Capital Statement taking
into
account all items not in dispute between Purchaser and Sellers and those items
requested by either Purchaser and the Sellers to be resolved by the Independent
Accountants (the "Final
Working Capital Amount")
within
30 days of being engaged by Purchaser and the Sellers. Purchaser and the Company
shall furnish or cause to be furnished to the Independent Accountants access
to
such employees, officers, and facilities and such books and records relating
to
the disputed items as the Independent Accountants may reasonably request. The
fees and expenses of the Independent Accountants shall be borne equally by
the
Purchaser, on the one hand, and the Sellers, on the other hand. The revised
Purchaser Working Capital Statement (including the calculation of the Final
Working Capital Amount) delivered by the Independent Accountants shall be final
and binding upon Purchaser and the Sellers. If Purchaser and the Sellers are
not
able to agree upon a firm to serve as the Independent Accountants within ten
(10) days after the end of the aforementioned thirty (30)-day period, then
Purchaser and the Sellers shall retain JAMS-Endispute of New York, New York
to
select the Independent Accountants.
(e) If
the
Final Working Capital amount is more than the $3,200,000, then Purchaser shall
(i) pay to TEHQ an amount equal to one percent (1%) of the excess thereof,
(ii)
pay to TEUS an amount equal to seventy-four percent (74%) of the excess thereof
and (iii) pay to UCI an amount equal to twenty-five percent (25%) of the excess
thereof, plus in each case, interest on such amount from (and including) the
Closing Date to (but excluding) the date of payment at the per annum rate of
interest published as the "Prime Rate" in The Wall Street Journal determined
as
of the date the obligation to pay interest arises (the "Specified
Rate").
If
the Final Working Capital Amount is less than $3,200,000, then (i) TEHQ shall
pay to Purchaser an amount equal to one percent (1%) of such shortfall, (ii)
TEUS shall pay to Purchaser an amount equal to seventy-four percent (74%) of
such shortfall and (iii) UCI shall pay to Purchaser an amount equal to
twenty-five percent (25%) of such shortfall, plus in each case interest on
such
amount from (and including) the Closing Date to (but excluding) the date of
payment at the Specified Rate. Each payment (if any) required by this Section
1.7(e) shall be made within five (5) Business Days following the date the
Final
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Working
Capital Amount is deemed to be finally determined pursuant to Section 1.7(d)
or
the Purchaser Working Capital Statement becomes final and binding pursuant
to
Section 1.7(b), except to the extent any payment in respect of undisputed
amounts has been paid pursuant to Section 1.7(b). All payments required to
be
made pursuant to this Section 1.7 shall be made by wire transfer of immediately
available funds to the bank account or accounts designated by the Party
receiving such payment.
(c) Section
3.3(d) of the Agreement is hereby amended in its entirety to read as
follows:
"(d) As
of the
Closing Date, the Company shall have $1,000,000.00
in available funds in its bank account reflected in general ledger account
0000000 (#2 MM 1M-Restricted LOC-Saving)."
(d) Sections
5.16, 6.2(j) and 6.3(f) of the Agreement are hereby deleted in their entirety
and each such section shall be replaced with "[RESERVED]". In addition, Exhibit
C to the Agreement is hereby deleted and the reference to "O&M Agreement" in
the table of Exhibits following the table of contents shall be deleted and
replaced with "[RESERVED]".
(e) Exhibit
A
to the
Agreement is hereby amended in its entirety to read as set forth on the revised
Exhibit
A
attached
hereto.
(f) Exhibit
F
to the
Agreement is hereby amended in its entirety to read as set forth on the revised
Exhibit
F
attached
hereto.
3. Miscellaneous.
(a) Governing
Law.
THIS
AMENDMENT SHALL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES
OF
CONFLICT OF LAWS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF
THE STATE OF NEW YORK).
(b) Consent
to Jurisdiction.
All
proceedings by or against any Party or with respect to or arising out of this
Amendment shall be subject to the provisions of Section 11.11 of the
Agreement.
(c) Counterparts.
This
Amendment may be executed and delivered (including via facsimile) in any number
of counterparts, each of which shall be an original but all of which together
will constitute one instrument, binding upon all Parties hereto.
(d) No
Other Amendment.
Except
as amended by the terms and provisions of Amendment No. 1 to the Agreement,
dated as of February 22, 2006, and this
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Amendment,
there are no other amendments to the Agreement or any waivers by any of the
Parties of any of the Parties’ rights under the Agreement, and the Agreement
shall continue in full force and effect as amended by this Amendment. From
and
after the date hereof, references to the Agreement shall be deemed to refer
to
the Agreement, as amended by this Amendment.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Parties have caused this Amendment to be signed by their
respective duly authorized officers as of the date first above
written.
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TRANSENERGIE
HQ, INC.
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By: /s/
Xxxxxx Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title: President
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TRANSENERGIE
U.S. LTD.
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By: /s/
Xxxxxx Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title: Chairman
of the Board
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UNITED
CAPITAL INVESTMENTS, INC.
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By: /s/
Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
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Title: President
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CROSS-SOUND
CABLE COMPANY LLC
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By: /s/
Xxxxxx Xxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Title: Chairman
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UNITED
RESOURCES, INC.
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By: /s/
Xxxxx X. Xxxxxx
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Name: Xxxxx
X. Xxxxxx
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Title: CFO
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HYDRO-QUEBEC
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By: /s/
Xxxxxx Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title: Exec.
V.P. Finance and
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Chief
Financial Officer
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BBI
CSC LLC
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By: /s/
Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: President
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XXXXXXX
& XXXXX INFRASTRUCTURE
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LIMITED
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By: /s/
Xxxxxx X. Xxxxxxx
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Name: Xxxxxx
Xxxxxx Xxxxxxx
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Title: Chief
Executive
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XXXXXXX
& XXXXX INVESTOR SERVICES LIMITED
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By: /s/
Xxxxx Xxxxxxxx
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Name: Xxxxx
Xxxxxxxx
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Title: Director
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