Exhibit 99.2
FIRST AMENDMENT TO
MASTER CROSS-PRODUCT NETTING, SETOFF AND SECURITY AGREEMENT
This First Amendment to Master Cross-Product Netting, Setoff, and Security
Agreement dated effective as of May 4, 2001 (this "Amendment"), is made and
entered into by and among The New Power Company, a Delaware corporation
("NEWPOWER"), Enron North America Corp., a Delaware corporation ("ENA"), Enron
Energy Services, Inc., a Delaware corporation ("EES"), and Enron Power
Marketing, Inc., a Delaware corporation ("EPMI").
WHEREAS, XxxXxxxx, XXX, and EES entered into that certain Master
Cross-Product Netting, Setoff, and Security Agreement dated effective as of
March 14, 2001 (the "MASTER NETTING AGREEMENT")
WHEREAS, Enron Corp. ("ENRON") provided that certain Enron Guaranty dated
March 14, 2001, in favor of NewPower in connection with the Master Netting
Agreement;
WHEREAS, NewPower Holdings, Inc. ("HOLDINGS") provided that certain
Holdings Guaranty dated March 14, 2001, in favor of ENA and EES in connection
with the Master Netting Agreement;
WHEREAS, NewPower and EPMI entered into that certain Master Power Purchase
& Sale Agreement dated effective as of May 4, 2001 (the "NEWPOWER-EPMI POWER
MASTER AGREEMENT") and
WHEREAS, New Power, ENA, EES, and EPMI desire to include the NewPower-EPMI
Power Master Agreement as a part of the Master Netting Agreement in accordance
with the terms and provisions hereof, and on the conditions that Enron ratify
its Enron Guaranty pursuant to the Ratification of Guaranty hereto attached as
EXHIBIT A and that Holdings ratify its Holdings Guaranty pursuant to the
Ratification of Guaranty hereto attached as EXHIBIT B.
NOW THEREFORE, for and in consideration of the agreements herein made and
other good and valuable consideration, the parties hereto agree as follows:
I. AMENDMENT
1. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Master Netting Agreement unless otherwise specified.
2. The Master Netting Agreement is hereby amended as follows:
(a) The NewPower-EPMI Power Master Agreement shall be an Underlying Master
Agreement and the term Underlying Master Agreements shall include the
NewPower-EPMI Power Master Agreement for all purposes.
(b) EPMI shall be an Enron Party and the Enron Parties shall include ENA, EES,
and EPMI for all purposes.
(c) The definition of "Party" set forth in Section 1(b) shall be deleted in its
entirety and restated as follows: " 'Party' means NewPower, on the one hand, or
ENA, EES, and/or EPMI, on the other hand, as the context indicates."
(d) The following shall be added to the end of Section 12 (b):
If to EPMI: Enron Power Marketing, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Power Contract Administration
with copies to:
Enron Power Marketing, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Assistant General Counsel, Trading Group
and
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
3. Each of EPMI, EES, ENA, and NewPower do hereby ratify and confirm the Master
Netting Agreement, as hereby amended, in all respects.
II. MISCELLANEOUS
1. This Amendment may be executed in multiple counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument. This Amendment shall
be governed by, and construed, interpreted, and enforced in accordance with, the
substantive law of the State of New York (without reference to its choice of law
doctrine).
2. Each of ENA, EES, EPMI, and NewPower represents and warrants to the others
that (i) it is duly authorized to execute and deliver this Amendment and to
perform its obligations hereunder and has taken all necessary actions to
authorize such execution, delivery, and performance, (ii) the person signing
this Amendment on its behalf is duly authorized to do so on its behalf, and
(iii) this Amendment constitutes its legal, valid, and binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, conservatorship, receivership,
moratorium, or other similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
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3. Any and all references to the Master Netting Agreement shall hereafter refer
to the Master Netting Agreement as amended by this Amendment and as the same may
be amended, supplemented, or modified from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
effective as of the date first stated herein.
ENRON NORTH AMERICA CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: VP [INITIALS]
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ENRON ENERGY SERVICES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Printed Name: Xxxx X. Xxxxxx
---------------------------
Title: President - New Business Ventures
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THE NEW POWER COMPANY
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Printed Name: Xxxx X. Xxxxxxx
---------------------------
Title: VP & Treasurer
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ENRON POWER MARKETING, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Printed Name: Xxxxx Xxxxxx
---------------------------
Title: VP [INITIALS]
----------------------------------
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