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EXHIBIT (2)(b)(3)
DEED OF AMENDMENT
This deed of amendment, hereinafter referred to as the "Deed of Amendment", is
entered into on this second day of September 1999
by and among
1. RELIANT ENERGY WHOLESALE HOLDINGS (EUROPE) INC.,
a company incorporated under the laws of the State of Delaware, USA,
having its principal offices at 1111 Louisiana, Houston, Texas,
United States of America, herein represented by Charles M. Oglesby,
hereinafter referred to, together with any successors and permitted
assignees, as the "New Partner";
and
2. PROVINCIE NOORD HOLLAND
having its seat at Haarlem, the Netherlands,
herein represented by [N. Klijn],
hereinafter referred to as the "Province of North Holland";
and
3. GEMEENTE AMSTERDAM
having its seat at Amsterdam, the Netherlands,
herein represented by [G. ter Horst],
hereinafter referred to as the "City of Amsterdam";
and
4. PROVINCIE UTRECHT,
having its seat at Utrecht, the Netherlands,
herein represented by [D.H. Kok],
hereinafter referred to as the "Province of Utrecht";
and
5. GEMEENTE UTRECHT,
having its seat at Utrecht, the Netherlands,
herein represented by [H.H.W. Kernkamp],
hereinafter referred to as the "Municipality of Utrecht";
and
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6. N.V. PROVINCIAAL EN GEMEENTELIJK UTRECHTS
STROOMLEVERINGSBEDRIJF
having its registered office at Utrecht, the Netherlands,
herein represented by [M. ten Klooster],
hereinafter referred to as "Pegus";
and
7. RELIANT ENERGY, INCORPORATED,
a company incorporated under the laws of the State of Texas, United
States of America, with its principal offices located at 1111
Louisiana, Houston, Texas USA, herein represented by [Charles M.
Oglesby], hereinafter referred to as "Ultimate Parent 1";
and
8. RELIANT ENERGY POWER GENERATION, INC.,
a company incorporated under the laws of the State of Delaware,
United States of America, with its principal offices at
1111 Louisiana, Houston, Texas, United States of America, herein
represented by Charles M. Oglesby, hereinafter referred to as the
"Ultimate Parent 2"
and
9. N.V. ENERGIEPRODUKTIEBEDRIJF UNA
having its registered office at Utrecht, the Netherlands,
herein represented by [P. Koppen de Neve],
hereinafter referred to as the "Company";
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(The New Partner, Province of North Holland, City of Amsterdam, Pegus, Province
of Utrecht, City of Utrecht, Ultimate Parent 1, Ultimate Parent 2 and the
Company hereinafter collectively referred to as the "Parties" and each
individually as a "Party").
WHEREAS:
A. The Parties have entered into the Partnership Agreement (the
"Partnership Agreement"), the Share Purchase Agreement ("Share Purchase
Agreement"), and the Share Subscription Agreement ("Share Subscription
Agreement"), each dated as of March 29, 1999 (the Partnership
Agreement, Share Purchase Agreement, Share Subscription Agreement and
any agreement pursuant thereto, including all schedules and annexes, as
amended, collectively being referred to herein as the "Partnership
Documentation");
B. Pursuant to the Partnership Documentation, the Existing Partners and
the Company have requested that the Minister of Economic Affairs
("MEA") approve the transactions contemplated by the Partnership
Documentation on or prior to September 3, 1999; and
C. In order to obtain the approval of the MEA, the Parties have agreed to
amend certain provisions in the Partnership Documentation on the terms
and conditions set forth in this Deed of Amendment, while preserving
the other terms and conditions of the Partnership Documentation, which
other terms and conditions shall, to the extent not amended by this
Deed of Amendment, continue in full force and effect.
IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
Capitalized terms used in this Deed of Amendment and not otherwise
defined in this Deed of Amendment shall have the meanings ascribed to
them in Schedule 1.1, as amended pursuant to this Deed of Amendment, to
the Partnership Agreement, except as the context may otherwise require.
ARTICLE 2 - AMENDMENTS TO PARTNERSHIP AGREEMENT.
2.1 The Parties agree to amend the Partnership Agreement as set
forth in this Article 2.
2.2 Article 11.8 of the Partnership Agreement shall be amended to
read in its entirety as follows:
11.8 Resolutions of the General Meeting with respect to
the settlement of Stranded Costs can only be adopted
with the Simple Majority of the Existing Partners.
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2.3 Article 13.1 shall be amended by the adding of the following
phrase at the beginning of the first sentence:
"Except as otherwise provided in the Share Purchase
Agreement,"
2.4 Article 20.1 of the Partnership Agreement shall be amended to
read in its entirety as follows:
20.1 Until the Third Completion Date, and unless pursuant
to this Partnership Agreement (including Article
20.2) and the Share Purchase Agreement, the
Shareholders shall not sell, transfer, pledge,
encumber or otherwise dispose of any Shares to a
third party without the Unanimous Approval of the
other Shareholders.
2.5 Article 20.4 of the Partnership Agreement shall be amended to
read in its entirety as follows:
20.4 The Ultimate Parent 2 shall not sell, transfer,
pledge, encumber or otherwise dispose of any shares
in the share capital of the New Partner to a third
party without the Unanimous Approval of the other
Shareholders, provided however that the aforesaid
restriction shall not apply to (i) any sale or
transfer of the shares in the share capital of the
New Partner to an Affiliate of Ultimate Parent 2
subject to the condition precedent that such
Affiliate shall assume the obligations of the New
Partner to this Partnership Agreement and any
agreement pursuant thereto or (ii) any pledge by
Ultimate Parent 2 of all or any portion of its
ownership interest in New Partner to an Affiliate of
Ultimate Parent 2 pursuant to a pledge agreement, in
form and substance reasonably satisfactory to the
Existing Partners, which pledge shall be, to the
extent it relates to shares in New Partner also
pledged for the benefit of the Existing Partners,
subordinate to such pledge in favor of the Existing
Partners made pursuant to Article 2.3 of this Share
Purchase Agreement, and provided further, that at
such time as New Partner and its Affiliates have
acquired at least 75% of the issued and outstanding
Shares, Ultimate Parent 2 and its subsidiaries may
pledge or encumber the share capital of the New
Partner to a third party and the other Shareholders
hereby agree and consent to any such pledge or
encumbrance, any transfer to the pledgee and any
transfer by the pledgee to any other Person.
2.6 Schedule 1.1 (Definitions) to the Partnership Agreement shall
be amended as set forth below:
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2.6.1 The following definitions shall be deleted:
Adjustment Principles
Date of Payment
Definitive Stranded Costs
Estimated Stranded Costs
Existing Partners Accountant
Expected Allocation
New Partner's Accountant
Statement
2.6.2 The following definitions shall be added, in
alphabetical order:
"Second Tranche Option Date" shall be the date on
which the Existing Partners and/or the Company shall
have obtained all required consents necessary for the
Completion of the Second Tranche Shares and the Third
Tranche Shares. The date of the Second Tranche Option
Date shall be no later than 1 November 1999. The
Existing Partners and/or the Company shall promptly
provide notice to the New Partner when such consents
have been obtained).
2.6.3 The definition of "Stranded Costs" shall be amended
to read in its entirety as follows:
"Stranded Costs" shall mean the costs pertaining to
all obligations entered into prior to the withdrawal
of the Electricity Act of 1989 by the naamloze
vennootschap Samenwerkende
Elektriciteitsproduktiebedrijven (SEP) and/or the
Dutch electricity production companies in relation to
the Agreement of Cooperation (OvS) net of the
Company's share of (i) any contributions to SEP as
defined in Article 77(d) of the Bill dated as of June
3, 1999, amending, the Electricity Act of 1998 and
any other contributions by the Dutch government to
the Companies with respect to the aforementioned
obligations pursuant to this Bill or any regulation
or resolution pursuant thereto (the "Act"), (ii) the
sum of the value of the (financial and non-financial)
assets of SEP as realized either through the transfer
to the Companies or distribution of proceeds from the
sale of such assets or (iii) the final dividend
distributed by SEP following the effective
dissolution of SEP pursuant to the termination of the
OvS. The adjustments in (ii) and (iii) above shall be
reduced for purposes of this definition by NLG 125
million (in words one hundred and twenty five million
Dutch Guilders). "Stranded Costs" shall also include
"Legal Action Stranded Costs". These costs or
obligations include, without limiting the generality
of the foregoing,
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more specifically the realization of the district heating
projects, the construction and exploitation of the
experimental coal gasification installation "Demkolec" in
Buggenum, the import of electricity from France and Germany
and of electricity and gas from Norway and the construction of
an electricity transportation link between the Netherlands and
Norway. The assets of SEP include but are not limited to
TenneT and Demkolec.
2.7 Schedule 18.2 (First Completion Actions) and Schedule 7.2.a,
respectively, to the Partnership Agreement shall be amended as
set forth below.
2.7.1 The Company and the Existing Partners shall execute
and enter into the Escrow Agreement attached as
Appendix A (as defined in Section 9.4 of the Share
Purchase Agreement, as amended).
2.7.2 A new Section 1.1.19 shall be added to the First
Completion Conditions that shall read as follows:
The Existing Partners shall irrevocably instruct the
Notary in writing to arrange for the payment to the
Escrow Account of NLG 450 million of the First
Purchase Price to be received from Reliant Energy
Wholesale (Europe) CV to the Escrow Account.
2.8 A new Section [ ] shall be added to the Second Completion
Conditions that shall read as follows:
The Existing Partners shall irrevocably instruct the
Notary in writing to arrange for payment to the
Escrow Account of NLG 450 million of the Second
Purchase Price to be received from Reliant Energy
Wholesale (Europe) CV to the Escrow Account.
ARTICLE 3 - AMENDMENTS TO THE SHARE SUBSCRIPTION AGREEMENT
3.1 The Parties agree to amend the Share Subscription Agreement as
set forth in this Article 3.
3.2 Article 13.1 of the Share Subscription Agreement shall be
amended to read in its entirety as follows.
13.1 If the Partnership Agreement is terminated in
accordance with article 22 of the Partnership
Agreement, this Share Subscription Agreement shall
terminate in accordance with its terms, except that
the provisions of Article 12 shall continue to apply
in accordance with the terms thereof.
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3.3 The word "Purchase" appearing in Article 14.1 of the Share
Subscription Agreement shall be deleted and be replaced with
the word "Subscription".
ARTICLE 4 - AMENDMENTS TO THE SHARE PURCHASE AGREEMENT
4.1 The Parties agree to amend the Share Purchase Agreement as set
forth in this Article 4.
4.2 Article 2.1.2 of the Share Purchase Agreement shall be amended
to read in its entirety as follows:
2.1.2 Subject to the Second Completion Conditions, the
Existing Partners hereby sell to the New Partner, and
the New Partner hereby purchases, from the Existing
Partners such number of Shares as is required to
provide the New Partner with a majority interest of
52% (in words: fifty two percent), in the issued and
outstanding share capital of the Company, whereby
each Existing Partner sells to the New Partner one
third of such number of Shares (the "Second Tranche
Shares").
4.3 Article 2.3 of the Share Purchase Agreement shall be amended
by adding at the end thereof the following:
Ultimate Parent 2 may also grant a second pledge with respect
to all or any portion of its ownership interest in New Partner
to an Affiliate of Ultimate Parent 2, which second pledge
shall be, to the extent it relates to shares in New Partner
also pledged for the benefit of the Existing Partners pursuant
to this Article 2.3, subordinate to such pledge in favor of
the Existing Partners on terms reasonably satisfactory to the
Existing Partners.
4.4 Article 6.1.2 of the Share Purchase Agreement shall be amended
to read in its entirety as follows:
6.1.2 the Completion of the Second Tranche Shares shall
take place on a Business Day after the Second Tranche
Option Date as specified in a written notice
delivered by the New Partner to the Existing
Partners, which notice shall be delivered at least 5
Business Days prior to the proposed date of the
Completion of the Second Tranche Shares. The
Completion of the Second Tranche Shares shall occur
no later than 1 December 1999.
4.5 Article 6.1.3 of the Share Purchase Agreement, shall be
amended to read in its entirety as follows:
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6.1.3 the Completion of the Third Tranche Shares, shall
take place in the following manner:
(i) On the Second Completion Date, each Existing
Partner may, at its option and by delivery
of written notice to the New Partner, to
elect to sell all, but not part, of its
remaining Shares to the New Partner, such
closing to occur on March 1, 2000; or
(ii) If an Existing Partner does not exercise its
option to sell its Third Tranche Shares
pursuant to Article 6.1.3(i) above, then
such Existing Partner may sell its Third
Tranche Shares after the Second Completion
Date pursuant to the delivery of a Request
subject to Article 6.1.4 of the Share
Purchase, such closing to occur within 60
(in words: sixty) Business Days of such
Request, but in no event later than 31
December 2006 (the "Third Completion Date").
4.6 Article 6.1.4 of the Share Purchase Agreement shall be amended
and restated in its entirety as follows:
6.1.4 The Request referred to in Article 6.1.3(ii) shall be
submitted to the New Partner at least 120 (in words:
one hundred twenty) days prior to the Third
Completion Date or 60 (in words: sixty) days after
the Third Completion Conditions have been fulfilled
or waived by the Party to whose benefit these
Completion Conditions inure, whichever is later.
4.7 Schedule 2.2.2 of the Share Purchase Agreement shall be
amended to provide for an increase in the aggregate Purchase
Price for the Second Tranche Shares equal to the sum of NLG
500 million (in words: five hundred million Dutch Guilders)
which shall be paid by the New Partner to the Existing
Partners on the Second Completion Date.
4.8 Article 9 of the Share Purchase Agreement (including the
Schedules) shall be amended to read in its entirety as
follows:
ARTICLE 9 STRANDED COSTS
9.1 The Existing Partners covenant and agree that they
will indemnify the Companies (collectively, the
Indemnified Parties) against, and hold each
Indemnified Party harmless from and in respect of,
all Stranded Costs not in excess of the
Indemnification Amount. Until the Second Completion
Date, the Indemnification Amount shall be equal to
the amount as shall be received by the Indemnifying
Parties on the First Completion Date (directly in
escrow). Effective the Second Completion Date, the
Indemnification Amount
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shall be increased up to the amount of NLG 1.400
million (in words: one billion four hundred million
Dutch Guilders).
9.2 All claims for indemnification under this Article 9
shall be asserted as follows in this Article 9.2.
(a) An Indemnified Party shall promptly notify
the Existing Partners from whom
indemnification is sought under this Article
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"Indemnifying Parties") of any Stranded Cost
that it believes to be for its account (such
determination, a "Stranded Cost
Determination" and such notice, a "Stranded
Cost Claim Notice"). Any Stranded Cost Claim
Notice shall include an estimate, to the
extent feasible, of the amount of Stranded
Costs for which the Company believes it is
obligated (which estimate shall not be
conclusive of the final amount of that
claim): provided, however, that the failure
to promptly deliver a Stranded Cost Claim
Notice shall not relieve the Indemnifying
Parties of their obligations to the
Indemnified Party with respect to Stranded
Costs. Within 15 days after receipt of any
Stranded Cost Claim Notice (the "Election
Period"), the Indemnifying Parties shall
notify the Indemnified Party whether the
Indemnifying Parties desire, at the sole
cost and expense of the Indemnifying
Parties, to contest or challenge the
validity of the relevant Stranded Cost
Determination. For purposes of this Article
9, the Indemnifying Parties shall act
jointly and not separately. If the
Indemnifying Party shall fail to notify the
Indemnified Party that it desires to contest
or challenge the Stranded Cost
Determination, the Indemnifying Party shall
pay the amount of Stranded Costs covered by
the relevant Stranded Cost Determination.
(b) If the Indemnifying Parties notify the
Indemnified Party within the Election Period
that the Indemnifying Parties elect to
contest or challenge the validity of the
Stranded Cost Determination, then the
Indemnifying Parties shall have the right to
contest or challenge on behalf of the
Indemnified Parties the validity, at their
sole cost and expense, that Stranded Cost
Determination by all appropriate
proceedings, which proceedings shall be
prosecuted diligently by the Indemnifying
Parties to a final conclusion or settled at
the discretion of the Indemnifying Parties
in accordance with this Article 9.2.
(c) Notwithstanding Article 9.2(b), the
Indemnifying Parties shall not have the
right to contest or challenge the validity
of a Stranded Cost Determination if, in the
reasonable judgment of the Indemnified
Party, pursuing such contest or challenge
would (i) result in the loss
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of any material rights or licenses of the
Company or any of its Affiliates or (ii)
result in any injunction or other
governmental, judicial or arbitral directive
being imposed on the Company or any of its
Affiliates that materially interferes with
the existing or proposed business of the
Companies.
(d) The Indemnified Party will cooperate with
the Indemnifying Parties in any contest to
or challenge of a Stranded Cost
Determination; provided, however, that the
Indemnifying Parties shall not enter into
any settlement with respect to any Stranded
Cost Determination that (i) purports to
limit the activities of, or otherwise
restrict in any way, any Indemnified Party
or any Affiliate of any Indemnified Party,
(ii) results in any liens being imposed on
the properties or assets of the Company or
any of its Affiliates, (iii) impairs any
material business relationship maintained by
the Company or any of its Affiliates, (iii)
results in penalties being owed by the
Company or any of its Affiliates, (iv)
results in the loss of any material rights
or licenses of the Company or any of its
Affiliates or (v) results in any injunction
or other governmental, judicial or arbitral
directive being imposed on the Company or
any of its Affiliates that materially
interferes with the existing or proposed
business of the Company and its Affiliates
or (vi) would involve amounts that exceed
the amount of indemnity to which the
Indemnified Parties are entitled under this
Article 9 without the prior consent of that
Indemnified Party. The Indemnified Party is
hereby authorized, to file during the
Election Period, with prior written consent
of the Indemnifying Parties, any motion,
answer or other instrument that the
Indemnified Parties shall deem necessary or
appropriate to protect its interests or
those of the Indemnifying Parties. The
Indemnified Parties may participate in, but
not control, any defense or settlement of
any Stranded Cost Determination controlled
by the Indemnifying Parties pursuant to this
Article 9.2.
(e) If the Indemnifying Parties (i), within the
Election Period, fail to notify the
Indemnified Party that the Indemnifying
Parties elect to contest or challenge any
Stranded Cost Determination or (ii) elect to
contest or challenge a Stranded Cost
Determination but fail diligently and
promptly to contest, challenge or settle the
Stranded Cost Determination, then the
Indemnified Party shall have the right, but
not the obligation, to contest or challenge,
at the sole cost and expense of the
Indemnifying Parties, the Stranded Cost
Determination by all appropriate
proceedings, which proceedings shall be
promptly and vigorously prosecuted by the
Indemnified Party to a final conclusion or
settlement. The Indemnified Party shall have
full
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control of any such defense and proceedings.
The Indemnifying Parties may participate in,
but not control, any proceeding or
settlement controlled by the Indemnified
Party pursuant to this Article 9.2(e), and
the Indemnifying Parties shall bear their
own costs and expenses with respect to that
participation.
(f) The Indemnified Parties shall not (i) enter
into any definitive settlement agreement or
(ii) waive any rights with respect to
Stranded Costs without the prior written
consent of the Indemnifying Parties.
(g) The Company shall keep the New Partner and
the Existing Partners (i) fully informed of
any actions taken by the Company with
respect to settlement proposals with respect
to Stranded Costs and (ii) shall provide the
Existing Partners an opportunity to
participate in any negotiations regarding
the settlement of such costs. Subject to the
limitations in Article 9.2(d), the Existing
Partners shall be entitled to assume a
primary role in such negotiations; provided,
however, that (i) the Existing Partners
first agree to designate a joint
representative for that purpose and (ii) the
Company shall be entitled to consent to the
designation of such representative (which
consent shall not be unreasonably withheld).
(h) Payments of all amounts owing by an
Indemnifying Party pursuant to this Article
9 shall be made within 30 days after the
date on which the Stranded Cost subject to
the Stranded Cost Claim Notice shall have
become final and binding on the Indemnifying
Party and the Indemnified Parties. Any
overdue payment under this Article 9 shall
bear interest at the rate of Euribor + 2%
per annum (based on a 360- day year) from
(and including) the due date until (but
excluding) the date the full payment is
actually received by the Indemnified
Parties. Any interest accrued pursuant to
the preceding sentence shall be due and
payable on the date the original amount
owing is paid.
9.2a In the event that the Indemnified Parties shall have
received any amounts pursuant to this Article 9 with
respect to Stranded Cost, the Indemnified Parties
shall utilise such amounts exclusively for the
payment of the Stranded Costs concerned.
9.3 The obligations of each of the Indemnifying Parties
under this Article 9 shall only be payable at 1/3 (in
words: one-third) of the amounts due under this
Article 9. The contractual obligation to indemnify
set forth in this Article 9 shall not be subject to
limitations specified in Section 13.6 of the Share
Purchase Agreement.
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9.4 Payment of any obligations, now existing or hereafter
accruing, of the Indemnified Parties under this
Article 9 shall be secured through an escrow account
(the "Escrow Account") in form and substance
satisfactory to the Indemnified Parties. The Existing
Partners shall maintain such account through December
31, 2003. The maximum amount subject to these
security arrangements shall be NLG 900 million (in
words: nine hundred million Dutch Guilders) (the
"Escrow Amount").
9.5 The Stranded Costs for district heating contracts
which have been allocated to the Company pursuant to
the Act shall be calculated only in accordance with
the formulas set out in Appendix B and for the
applicable heat sale volumes under each contract. The
Company's Stranded Costs for import or other Stranded
Cost contracts assigned to or assumed by the Company
shall be calculated as the difference between the
contract price and market price of the total volume
for the period. The other Stranded Costs assets and
liabilities assigned to the Company will be
calculated on the basis of a valuation method to be
agreed between the Indemnified Parties and the
Indemnifying Parties. If no agreement can be reached
within 20 days, an independent investment bank or
accounting firm or similar expert shall be appointed
by the Parties in order to carry out a valuation. If
the parties are unable to reach an agreement on the
basis of the advice from the independent expert, then
the dispute will be decided by arbitration in
accordance with the Dutch Arbitration Institute
("NAI").
9.6 With due observance of Article 9.7, a definitive and
final amount will be determined for (i) district
heating contracts on December 31, 2000, and (ii)
import or other Stranded Costs contracts assigned or
assumed by on December 31, 2002; unless the Existing
Partners notify the Company that they will not seek
to establish a final amount and (iii) other Stranded
Costs assets and liabilities of the Company at the
earlier of 30 days following the assignment or sale
of such liabilities or assets or 31 December 2002.
9.6.1 The net present value of the district
heating contracts shall be determined by
discounting the yearly amounts as defined
in Article 9.5 for the remaining years of
the contract.
9.6.2 The net present value of the import and
other Stranded Cost contracts shall be
determined by discounting the yearly
estimate of costs as defined in Article 9.5
for the remaining years of each contract,
taking into account the price indexes, the
flexibility of use and other optimisation
opportunities arising from such contracts.
9.6.3 The value of the other Stranded Cost assets
and liabilities other than the contracts
described in Article 9.5 allocated to the
Company, shall be calculated on
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the basis of a valuation method to be
agreed between the Indemnified Parties and
the Indemnifying Parties. If no agreement
can be reached within 20 days, an
independent investment bank or accounting
firm or similar expert shall be appointed
by the Parties in order to carry out a
valuation. If the parties are unable to
reach an agreement on the basis of the
advice from the independent expert, then
the dispute will be decided by arbitration
in accordance with the Dutch Arbitration
Institute ("NAI").
If no determination of Stranded Costs with
respect to the foregoing contracts, assets
or liabilities has been made that has
become binding and definitive for the
Company, the Parties will jointly designate
an independent investment banking firm
and/or other firm of international
reputation having special expertise in the
electric sector. For the purpose of
calculating a net present value, a discount
rate of 7% will be used. If the parties are
unable to reach an agreement on the basis
of the advice from the independent expert,
then the dispute will be decided by
arbitration in accordance with the Dutch
Arbitration Institute ("NAI").
Any changes or expenses incurred in
connection with the investment banker's or
independent experts' reviews shall be
allocated 50% to the New Partner and 50% to
the Existing Partners.
9.7 The Indemnification by the Indemnifying Parties
pursuant to this Article 9 shall not be limited in
time. Any agreements, arrangements or settlements
between the Parties including those referred to in
Article 9.5 and 9.6 through 9.6.3 shall not affect in
any way, whatsoever this Indemnification.
4.9 Article 14.1 of the Share Purchase Agreement shall be amended by
adding after the word "terms" and before the period the following:
"except that the provisions of Article 9 and Article 13 shall continue
to apply in accordance with the terms thereof"
4.10 Article 13.7 of the Share Purchase Agreement shall be amended
to read in its entirety as follows:
13.7 (a) The maximum amount of all payments required to be
made by the Existing Partners under Article 9 of this
Share Purchase Agreement shall not exceed NLG 1.4
billion (in words: one billion four hundred million
Dutch Guilders).
(b) The maximum amount of all final awards of Damages
payable by the Existing Partners with respect to
breaches of the Warranties shall not exceed NLG 500
million (in words: five hundred million Dutch
Guilders).
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(c) The New Partner may elect by written notice to
the Existing Partners to reallocate any unused
portion of the NLG 500 million amount referred to
under Article 13.7(b) to the Company rather than to
the New Partner for use by the Company to offset the
burden associated with Stranded Costs.
(d) Notwithstanding the foregoing, the following
items shall not be included in any calculations under
13.7(a) or 13.7(b) above: (x) any payments to adjust
the estimated First Purchase Price to the actual
First Purchase Price to reflect changes in net debt
and dividend payments as provided in Schedule 2.1.1,
(y) any requirements of an Existing Partner to pay
expenses under the provisions of the Partnership
Documentation including, but not limited to, articles
33.1 and 40.7 of the Partnership Agreement and
articles 9.4 and 9.8.
4.11 Article 13.8 of the Share Purchase Agreement shall be amended
to read in its entirety as follows:
13.8 The New Partner shall not be entitled to make any
claim against the Existing Partners for any Breach or
Non-fulfilment unless notice in writing of such claim
is given prior to 1 May immediately following the
first full Fiscal Year of the Company after the First
Completion Date except for a claim for a Breach
relating to tax for which the New Partner shall not
be entitled to make any claim against the Existing
Partners unless written notice of such claim is given
prior to the end of the period during which the
relevant Dutch tax authorities are competent,
according to the laws of the Netherlands, to impose
an additional tax assessment ("navorderingsaanslag"
or "naheffingsaanslag") concerning events, omissions,
acts or behaviours that have taken place prior to the
First Completion Date increased by a period of six
months.
4.12 Article 13.10 of the Share Purchase Agreement shall be amended
to read in its entirety as follows:
13.10 The Existing Partners shall not owe Damages to the
New Partner by virtue of this Article 13 or otherwise
have obligations towards the New Partner if and to
the extent that the Damages ensue from or are related
to Stranded Costs.
4.13 The first sentence of Article 13.11 of the Share Purchase
Agreement shall be amended to read in its entirety as follows:
13.11 The amount of any award or Damages owed by the
Existing Partners to the New Partner shall at the
option of the Existing Partners be either paid
directly to the New Partner or subtracted from the
remaining unpaid amount, if any, of the Second
Purchase Price and the Third Purchase Price owed by
the New Partner to the Existing Partners.
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4.14 Article 13.12 shall be amended and restated in its entirety as
follows:
13.12 Notwithstanding Article 13.13 above, the Province of
Utrecht and the Municipality of Utrecht jointly
("niet hoofdelijk"), irrevocably and unconditionally
guarantee to the New Partner as guarantor for Pegus
prompt performance by Pegus of all its obligations
under or in connection with the Share Purchase
Agreement and such guarantee shall continue without
limitation as to time or as to amount.
4.15 Article 14 shall be amended and restated in its entirety as
follows:
All Parties to this Agreement waive any rights to (partially)
terminate, (partially) annul, (partially) rescind or request
the (partial) rescission or (partial) dissolution of this
Agreement.
4.16 The New Partner shall undertake and procure that the member of
the Management Board nor otherwise designated by the New
Partner shall not be dismissed prior to 31 December 2002.
ARTICLE 5 - MISCELLANEOUS
5.1 Without prejudice to other provisions of the Partnership
Agreement that are by their terms generally applicable,
Articles 22, 24, 26, 27, 29, 31 through 36, 38 through 42 of
the Partnership Agreement shall govern this Deed of Amendment.
5.2 Except as provided for herein, the Partnership Documentation
shall continue in full force and effect.
5.3 Each of the Parties shall execute and deliver to the other
Parties such other instruments and will take such other
actions and execute and deliver such other documents or
instruments as may be reasonably required in order to carry
out, evidence and confirm the intended purposes of the
Partnership Documentation provided that this shall not
obligate any Party to waive any condition set forth in the
Partnership Documentation.
IN WITNESS WHEREOF this Deed of Amendment has been executed by the
Parties hereto in ninefold on the date set out on page one
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SIGNED by
/s/ N. KLIJN
- ---------------------------------------------
for and on behalf of Provincie Noord Holland
by: [N. Klijn]
SIGNED by
/s/ G. TER HORST
- ---------------------------------------------
for and on behalf of Gemeente Amsterdam
By: [G. ter Horst]
SIGNED by
/s/ D.H. KOK
- ---------------------------------------------
for and on behalf of Provincie Utrecht
By: [D.H. Kok]
SIGNED by
/s/ H.H.W. KERNKAMP
- ---------------------------------------------
for and on behalf of Gemeente Utrecht
By: [H.H.W. Kernkamp]
SIGNED by
/s/ M. TEN KLOOSTER
- ---------------------------------------------
for and on behalf of N.V. Provinciaal en
Gemeentelijk Utrechts Stroomleveringsbedrijf
By: [M. ten Klooster]
SIGNED by
/s/ CHARLES M. OGLESBY
- ---------------------------------------------
for and on behalf of Reliant Energy Wholesale
Holdings (Europe) Inc.
By: Charles M. Oglesby
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17
SIGNED by
/s/ CHARLES M. OGLESBY
- ---------------------------------------------
Reliant Energy Power Generation, Inc.
By: Charles M. Oglesby
SIGNED by
/s/ CHARLES M. OGLESBY
- ---------------------------------------------
Reliant Energy, Incorporated
By: Charles M. Oglesby
SIGNED by
/s/ P. KOPPEN DE NEVE
- ---------------------------------------------
for and on behalf of N.V. Energieproduktiebedrijf UNA
By: [P. Koppen de Neve]
17