-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OlQzNDyU+WRychZU3SZlzI64EWyuj+Q+Spa/ac4vzSg663RjgC78dbCSw2w02Igp b9beuv+Ja7MrOt9hEFm7bw== 0000203248-04-000502.txt : 20040914 0000203248-04-000502.hdr.sgml : 20040914 20040914124126 ACCESSION NUMBER: 0000203248-04-000502 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20040910 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20040914 DATE AS OF CHANGE: 20040914 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN UNION CO CENTRAL INDEX KEY: 0000203248 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 750571592 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06407 FILM NUMBER: 041029044 BUSINESS ADDRESS: STREET 1: ONE PEI CENTER CITY: WILKES-BARRE STATE: PA ZIP: 18711 BUSINESS PHONE: (570) 820-2400 8-K 1 form8k9102004.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) September 10, 2004 SOUTHERN UNION COMPANY (Exact name of registrant as specified in its charter) Delaware 1-6407 75-0571592 (State or other jurisdiction (Commission File Number) (I.R.S. Employer of incorporation) Identification No.) One PEI Center 18711 Wilkes-Barre, Pennsylvania (Zip Code) (Address of principal executive offices) Registrant's telephone number, including area code: (570) 820-2400 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT On September 10, 2004, Southern Union Company ("Southern Union" or the "Company") announced that the U.S. Bankruptcy Court for the Southern District of New York (the "Court") issued a Final Sale Order approving the Purchase Agreement, as amended, between CCE Holdings, LLC ("CCE Holdings"), a joint venture of Southern Union and GE Commercial Finance Energy Financial Services, and Enron Corp. and its affiliates (collectively "Enron") to acquire 100% of the equity interests of CrossCountry Energy, LLC ("CrossCountry"). The total transaction is valued at $2.45 billion, including the assumption of certain consolidated debt. The acquisition is subject to satisfaction of certain approvals and other closing conditions and is expected to close no later than mid-December. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits. Exhibit Number Exhibit -------------- ------- 10.a Amendment No. 1 To Purchase Agreement by and among CCE Holdings, LLC, Enron Operations Services, LLC, Enron Transportation Services, LLC, EOC Preferred, L.L.C., and Enron Corp., dated September 1, 2004. 10.b Order of the United States Bankruptcy Court for the Southern District of New York, dated September 10, 2004, authorizing and approving the Purchase Agreement, as amended, between CCE Holdings, LLC and Enron Corp. et al, and consummation of the transactions contemplated thereby. 10.c Escrow Agreement as attached as Exhibit B to the Order of the United States Bankruptcy Court for the Southern District of New York dated September 10, 2004. 99.a Press Release issued by Southern Union dated September 10, 2004. This release and other reports and statements issued or made from time to time contain certain "forward-looking statements" concerning projected future financial performance, expected plans or future operations. Southern Union cautions that actual results and developments may differ materially from such projections or expectations. Investors should be aware of important factors that could cause actual results to differ materially from the forward-looking projections or expectations. These factors include, but are not limited to: cost of gas; gas sales volumes; gas throughput volumes and available sources of natural gas; discounting of transportation rates due to competition; customer growth; abnormal weather conditions in Southern Union's service territories; impact of relations with labor unions of bargaining-unit employees; the receipt of timely and adequate rate relief and the impact of future rate cases or regulatory rulings; the outcome of pending and future litigation; the speed and degree to which competition is introduced to Southern Union's gas distribution business; new legislation and government regulations and proceedings affecting or involving Southern Union; unanticipated environmental liabilities; ability to comply with or to challenge successfully existing or new environmental regulations; changes in business strategy and the success of new business ventures, including the risks that the business acquired and any other businesses or investments that Southern Union has acquired or may acquire may not be successfully integrated with the business of Southern Union; exposure to customer concentration with a significant portion of revenues realized from a relatively small number of customers and any credit risks associated with the financial position of those customers; factors affecting operations such as maintenance or repairs, environmental incidents or gas pipeline system constraints; Southern Union's, or any of its subsidiaries, debt securities ratings; the economic climate and growth in the energy industry and service territories and competitive conditions of energy markets in general; inflationary trends; changes in gas or other energy market commodity prices and interest rates; the current market conditions causing more customer contracts to be of shorter duration, which may increase revenue volatility; the possibility of war or terrorist attacks; the nature and impact of any extraordinary transactions such as any acquisition or divestiture of a business unit or any assets. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. SOUTHERN UNION COMPANY ---------------------- (Registrant) Date September 14, 2004 By /s/ DAVID J. KVAPIL ------------------- --------------------------------- David J. Kvapil Executive Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit Number Description - -------------- ---------------------------------------------------------------- 10.a Amendment No. 1 To Purchase Agreement by and among CCE Holdings, LLC, Enron Operations Services, LLC, Enron Transportation Services, LLC, EOC Preferred, L.L.C., and Enron Corp., dated September 1, 2004. 10.b Order of the United States Bankruptcy Court for the Southern District of New York, dated September 10, 2004, authorizing and approving the Purchase Agreement, as amended, between CCE Holdings, LLC and Enron Corp. et al, and consummation of the transactions contemplated thereby. 10.c Escrow Agreement as attached as Exhibit B to the Order of the United States Bankruptcy Court for the Southern District of New York dated September 10, 2004. 99.a Press Release issued by Southern Union dated September 10, 2004. EX-10 2 exhibit10a.txt FIRST AMENDED PURCHASE AGREEMENT 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/ THOMAS F. KARAM ------------------------- Name: Thomas F. Karam 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/ GEORGE M. MCCORMICK III --------------------------- Name: George M. McCormick 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/ GEORGE M. MCCORMICK III --------------------------- Name: George M. McCormick III Title: Managing Director, Corporate Development EOC PREFERRED, L.L.C. BY: ENRON CORP., ITS SOLE MEMBER By: /S/ GEORGE M. MCCORMICK III --------------------------- Name: George M. McCormick III Title: Managing Director, Corporate Development ENRON CORP. By: /S/ GEORGE M. MCCORMICK III --------------------------- Name: George M. McCormick III Title: Managing Director, Corporate Development EX-10 3 exhibit10b.txt BANKRUPTCY COURT ORDER BETWEEN CCE AND ENRON Exhibit 10.b UNITED STATES BANKRUPTCY COURT THE SOUTHERN DISTRICT OF NEW YORK _________________________________________x In re : Chapter 11 : ENRON CORP., et al, : Case No. 01-16034 (AJG) : Debtors.: Jointly Administered _________________________________________x ORDER PURSUANT TO SECTIONS 105, 363, AND 1146 OF THE BANKRUPTCY CODE, BANKRUPTCY RULES 2002, 6004, 9013, AND 9014 AUTHORIZING AND APPROVING (A) TILE EXECUTION, DELIVERY, AND PERFORMANCE, BY ENRON CORP., ENRON TRANSPORTATION SERVICES, LLC, ENRON OPERATIONS SERVICES, LLC, AND EOC PREFERRED, LLC, OF THE PURCHASE AGREEMENT AND CERTAIN TRANSACTION DOCUMENTS RELATED THERETO WITH CCE HOLDINGS, LLC WITH RESPECT TO TILE SALE OF TILE MEMBERSHIP INTERESTS IN CROSSCOIJNTRY ENERGY, LLC FREE AN]) CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES, RIGHTS OF SETOFF, NETTING, RECOUPMENT, AND DEDUCTION AND (B) THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY Upon the motion, dated May 27, 2004 (the "Motion")1, of Enron Corp., Enron Operations Services, LLC and Enron Transportation Services, LLC, each as debtor and debtors in possession (collectively, the "Debtors"), and EOC Preferred, LLC, a non-debtor affiliate of Enron (collectively, with the Debtors, the "Sellers"), pursuant to sections 105 and 363 of title 11 of the United States Code (the "Bankruptcy Code") and Rules 2002, 6004, 9013, and 9014 of the Federal Rules of Bankruptcy Procedures (the "Bankruptcy Rules") and Rule 9013-1(c) of the Local Bankruptcy Rules for the Southern District of New York (the "Local Rules"), for the entry of an order authorizing and approving (A) the entry by the Sellers into that certain Purchase Agreement, dated May 21, 2004, by and among the Sellers and NuCoastal, LLC, or into a purchase agreement with the winning bidder at the conclusion of an auction for the sale of all of the issued and outstanding membership interests (the "Equity Interest") in CrossCountry, LLC ("CrossCountry"), free and clear of all Liens and Claims to the extent permitted under section 363 of the Bankruptcy Code and (B) the consummation of the transactions contemplated therein; and the Notice of Filing of Purchase Agreement Among CCE Holdings, LLC (the "Purchase?') and Sellers dated as of June 24, 2004 (the "June 24 Agreement"); and the Court having entered on June 24, 2004, the Order Pursuant to Sections 105 and 363 of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure 2002, 6004, 9013 and 9014(A) Authorizing and Scheduling Auction at Which Enron Corp., Enron Operations, LLC, Enron Transportation Services, LLC and EOC Preferred, L.L.C. Will Solicit Bids for the Sale of Issued and Outstanding Membership Interests in CrossCountry, (B) Establishing Procedures for Solicitation and Consideration of Proposals to Purchase Such Membership Interests, (C) Scheduling a Hearing on Proposed Sale of Membership Interests, and (D) Approving Form and Scope of Notices of Bidding Procedures, Sale I-fearing, and Auction, on June 24, 2004 (the "Bidding Procedures Order"); and the Debtors, Creditors' Committee, and Purchaser having entered into a stipulation dated September 1, 2004 (the "Stipulation"), regarding, inter alia, an amendment to the June 24 Agreement enhancing the purchase price for the Equity Interest under the June 24 Agreement (such amendment annexed hereto as EXHIBIT A and the June 24 Agreement, as amended, the "CCE Purchase Agreement"); and the hearing on the Motion having been held before the Court on September 9, 2004 (the "Hearing"); and it appearing that due and proper notice of the Motion and the relief requested therein having been given, and no other or further notice need be given; and upon consideration of the objections and responses to the Motion, including the Objection of the Pension Benefit Guaranty Corporation ("PBGC") to Motion for Authority to Sell CrossCountry dated September 7, 2004 (the "PBGC Objection"); and all parties in interest having been heard or having been afforded an opportunity to be heard at the Hearing; and the relief requested in the Motion being an exercise of the Sellers' sound business judgment and in the best interests of the Sellers, their estates and creditors; and the Bankruptcy Court having determined that the legal and factual bases set forth in the Motion and in the record of the Hearing establish just cause for the relief granted herein and that the terms and provisions contained in the CCE Purchase Agreement, as amended, are fair and reasonable to the Sellers and the Purchaser; and all proceedings had before the Bankruptcy Court; and after due deliberation thereon and good and sufficient cause appearing therefor; IT IS HEREBY FOUND AND DETERMINED THAT: A. The findings of fact and conclusions of law set forth herein constitute the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. B. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. C. The Bankruptcy Court has jurisdiction over the parties and to consider the Motion and the relief requested therein pursuant to 28 U.S.C. ss.ss. 157 and 1334. Venue of these chapter 11 cases and the Motion in this district is proper pursuant to 28 U.S.C. ss.ss. 1408 and 1409. This matter is a core proceeding pursuant to 28 U.S.C. ss. 157(b)(2)(A) and (N). D. The statutory predicates for the relief sought in the Motion are sections 105(a), 363(b), (f), (in), and (n), and 1146(c) of the Bankruptcy Code, and Bankruptcy Rules 2002, 6004, 9013 and 9014. E. As evidenced by the certificates of service filed with the Court, and based on the representations of counsel at the Hearing, (A) proper, timely, adequate, and sufficient notice of the Motion, a substantially similar form of this Order, the CCE Purchase Agreement, the transactions contemplated therein, the Auction, and the Hearing has been provided in accordance with sections 105, and 363 of the Bankruptcy Code, Bankruptcy Rules 2002, 6004, 9013, and 9014 and Rule 9013-1(c) of the Local Rifles by serving (i) the Office of the United States Trustee; (ii) counsel for the DIP Lenders; (iii) counsel for the Official Committee of Unsecured Creditors in the Debtors' chapter 11 cases (the "Creditors' Committee"); (iv) Purchaser; (v) Purchaser's counsel; (vi) all entities known to the Sellers to have, or to have asserted, any Claims in or upon the Equity Interest; (vii) all parties who submitted a prior bid for the Equity Interest; (viii) all parties who expressed in writing to the Sellers an interest in the Equity Interest; (ix) all relevant taxing authorities; (x) the Examiner for ENA; (xi) counsel for the Employment-Related Issues Committee; and (xii) all entities who had filed a notice of appearance and request for service of papers in these cases in accordance with the Court's Second Amended Case Management Order, dated December 17, 2002, (B) such notice was good and sufficient and appropriate under the particular circumstances and (C) no other or further notice of the Motion, this Order, the CCE Purchase Agreement or the Hearing is required. F. The Sellers have complied with the procedures set forth in the Bidding Procedures Order (a) establishing Bidding Procedures, including the manner and form of notice, (b) scheduling a hearing to consider the Motion (i) approving the terms and conditions of a purchase agreement for the sale of the Equity Interest, and (ii) authorizing the consummation of the transactions contemplated therein, and (c) for giving notice of the Motion and the Hearing on approval of a purchase agreement, including the CCE Purchase Agreement and this Order. G. The Bidding Procedures were fair, were designed to maximize the purchase price for the Equity Interest, were implemented in a fair and reasonable manner, and were complied with in all respects. H. The Sellers have marketed the Equity Interest and conducted the auction process in compliance with the Bidding Procedures Order and the requirements of applicable law, whereby the Preliminary Purchase Price was enhanced by $100 million. I. The Sellers (i) are the legal and equitable owners of the Equity Interest; (ii) have frill corporate power and authority to enter into and execute the CCE Purchase Agreement, an escrow agreement, substantially in the form annexed hereto as Exhibit B (the "Escrow Agreement"), and any and all documents and/or agreements contemplated thereby (collectively, with the CCE Purchase Agreement, as amended, and the Escrow Agreement, the "Transaction Documents") and the transactions specified therein have been duly and validly authorized by all necessary corporate action of each of the Sellers, (iii) have all of the corporate power and authority necessary to consummate the transactions contemplated by the Transaction Documents; and (iv) have taken all corporate action necessary to authorize and approve the Transaction Documents and the consummation by each of the Sellers of the transaction specified therein. No consents or approvals, other than those expressly provided for in the Transaction Documents, are required for the Sellers to consummate such transactions. J. A reasonable opportunity has been afforded any interested party to make a higher or better offer for the Equity Interest or to be heard with respect to the Motion. Notice of the relief requested therein has been afforded to all interested persons and entities, including: (i) the Office of the United States Trustee; (ii) counsel for the Purchaser; (iii) counsel to the Creditors' Committee; (iv) the attorneys for the Debtors' DIP Lenders; (v) all entities known to have expressed an interest in a transaction with respect to the Equity Interest since the filing of the Debtors' chapter 11 cases; (vi) all entities known to have asserted any interests in or Liens upon the Equity Interest; (vii) counsel for the Employment-Related Issues Committee; (viii) the Examiner for Enron North America Corp.; (ix) the Examiner for Enron Corp.; (x) any person, or counsel if retained, appointed pursuant to 28 U.S.C. ss. 1104; (xi) all federal, state, and local regulatory or taxing authorities or recording offices which have a reasonably known interest in the relief requested by the Motion; (xii) the United States Attorney's Office; (xiii) the Securities and Exchange Commission; (xiv) the Internal Revenue Service; (xv) the PBGC; and (xvi) all parties having filed a notice of appearance in the Sellers' chapter 11 cases as of the date of the Motion. K. The terms and conditions of the CCE Purchase Agreement, as amended, and the Purchase Price to be paid to the Sellers by the Purchaser (i) are fair and reasonable, (ii) represent the highest or best offer for the Equity Interest, and (iii) constitute fair consideration for the Equity Interest. The good faith of the Purchaser is evidenced by, among other things, the following: (i) the Sellers and the Purchaser have engaged in substantial arms' length negotiations in good faith and the Transaction Documents are the product of such negotiations among the parties; and (ii) the Sellers, in consultation with the Creditors' Committee, determined that the Purchaser's bid as reflected in the CCE Purchase Agreement, was the highest or best offer for the Equity Interest. L. Sound business reasons exist for the Sellers' sale of the Equity Interest pursuant to the Transaction Documents, including the Escrow Agreement. The Court finds that the Sellers have articulated good and sufficient business reasons justifying the sale of the Equity Interest pursuant to sections 105, 363, and 1146 of the Bankruptcy Code. Therefore, execution of the Transaction Documents and consummation of the transaction specified therein, after consultation and cooperation with the Creditors' Committee, constitute the exercise by the Sellers of sound business judgment and such acts are in the best interests of the Sellers, their respective estates and creditors, and other parties in interest. M. The execution of the Transaction Documents, including the Escrow Agreement, and consummation of the transactions contemplated thereby is properly authorized under all applicable provisions of the Bankruptcy Code, including, without limitation, sections 105, 363. and 1146 of the Bankruptcy Code, and all of the applicable provisions of such sections have been complied with in respect thereof. N. The consideration provided by the Purchaser to the Sellers in exchange for their sale, conveyance and delivery to the Purchaser of the Equity Interest to the Purchaser constitutes reasonable equivalent value and fair consideration pursuant to the Bankruptcy Code and applicable nonbankruptcy law. A sale of the Equity Interest other than one free and clear of Liens, Claims, encumbrances, tights of setoff, netting, recoupment, and deduction would impact materially and adversely on the Sellers' bankruptcy estates, and would yield substantially less value for the Sellers' estates. O. The CCE Purchase Agreement was proposed, negotiated, and entered into by the parties thereto at arm's length, without collusion and in good faith between commercially sophisticated entities alter extended and vigorous negotiations. The Purchaser has acted and will be acting in good faith within the meaning of section 363(m) of the Bankruptcy Code in closing the transactions contemplated by the CCE Purchase Agreement, as amended, at all times after the entry of this Order. The Purchaser is a good faith purchaser under the Transaction Documents, and is entitled to all of the protections as to the sale of the Equity Interest afforded thereby. None of the parties to the CCE Purchase Agreement has engaged in any conduct that would cause or permit the CCE Purchase Agreement to be avoided (or the validity of the transactions contemplated therein and in the Transaction Documents affected) under section 363(n) of the Bankruptcy Code or any other provision of the Bankruptcy Code. P. The Purchaser is not an "insider" of any of the Sellers, as that term is defined in section 101 of the Bankruptcy Code. Q. Except as provided in this Order, no consents or approvals, other than this Order and those expressly provided for in the Transaction Documents, are required for the parties to consummate the transactions contemplated by the Transaction Documents. R The transactions specified herein and in the Transaction Documents constitute a sale for purposes of section 1146(c) of the Bankruptcy Code and all transfers in connection therewith shall be exempt from any and all stamp, value added, ad valorem, transfer, recording and other similar taxes and any transfer or recording fees or other similar costs charged or assessed by any federal, state, local, or foreign authority (including interest and penalties, if any). S. The transfer of the Equity Interest to the Purchaser will be a legal, valid, and effective transfer of the Equity Interest, and will vest the Purchaser with all tight, title, and interest of the Sellers in the Equity Interest free and clear of Liens, Claims, encumbrances, tights of setoff, netting, recoupment, deduction including, but not limited to those (i) that purport to give to any party a right or option to effect any forfeiture, modification, right of first refusal, or termination of the Sellers' or the Purchaser's interest in the Equity Interest, or any similar rights, (ii) relating to taxes arising under or out of, in connection with, or in any way relating to the operation of the Equity Interest prior to the Closing, and (iii) all mortgages, deeds of trust, security interests, pledges, liens, judgments, demands, encumbrances, or charges of any kind or nature, if any, including, but not limited to, any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership and all debts arising in any way in connection with any agreements, acts, or failures to act, of any of the Sellers or any of the Sellers' predecessors or affiliates, claims (as that term is defined in the Bankruptcy Code), obligations, liabilities, demands, guaranties, options, tights, contractual, or other commitments, restrictions, interests and matters of any kind and nature, whether known or unknown, contingent or otherwise, whether arising prior to or subsequent to the commencement of these cases pursuant to chapter 11 of the Bankruptcy Code, and whether imposed by agreement, understanding, law, equity, or otherwise, including but not limited to claims otherwise arising under doctrines of successor liability to the extent permitted by law ("Interests"). T. Except as otherwise provided in this Order, the Purchaser would not have entered into the Purchase Agreement and would not consummate the transaction specified therein, thus adversely affecting the Sellers, their estates, and their creditors, if the sale of the Equity Interest to the Purchaser were not free and clear of all Liens, Claims, and Interests of any kind or nature whatsoever, or if the Purchaser would, or in the future could, be liable for any other interests, including without limitation any unassumed liabilities. U. The Sellers may sell the Equity Interest free and clear of all Liens, Claims, and Interests of any kind or nature whatsoever because, in each case, one or more of the standards set forth in section 363(f) has been satisfied. Those holders of Interests and non-debtor parties who did not object or who withdrew their objections to the sale or the Motion are deemed to have consented pursuant to section 363(f)(2) of the Bankruptcy Code. Those holders of Interests and non-debtor parties who did object fall within one or more of the other subsections to 363(f) of the Bankruptcy Code and are adequately protected by having their Interests, if any, attach to the cash proceeds of the sale ultimately attributable to the property against which they claim an Interest. V. The Purchaser does not constitute a successor to the Sellers or their estates. The transactions contemplated pursuant to the CCE Purchase Agreement do not amount to a consolidation, merger or DE FACTO merger of the Purchaser and the Sellers or their estates. The Purchaser is not a continuation of the Sellers or their estates, there is not substantial continuity between the Purchaser and the Sellers, and there is no continuity of enterprise between the Sellers and the Purchaser. W. The Escrow Agreement provides adequate protection of the PBGC reasonably equivalent to that provided by the reserves established pursuant to Sections 42.2 and 21.3 of the Plan, and substitution of the Escrow Agreement for such reserves is fair and equitable to the PBGC. X. Purchaser acknowledges that entry of this Order satisfies the requirements for entry of an order approving the CCE Purchase Agreement pursuant to Sections 3.2(h) and 7.1(b) thereof THEREFORE, IT IS HEREBY ORDERED THAT: GENERAL PROVISIONS 1. The Motion is granted in its entirety, as further described herein. 2. All Objections, including, without limitation, the PBGC Objection and any objections interposed at the Hearing, to the Motion or the relief requested therein are resolved in accordance with the terms of this Order and as set forth in the record of the I-fearing and to the extent any such objection or response was not otherwise withdrawn, waived, or settled, they are, and all reservations of rights or relief requested therein are, overruled and denied. APPROVAL OF THE CCE PURCHASE AGREEMENT, AS AMENDED 3. The Transaction Documents and the transactions contemplated thereby, including, without limitation, the sale, conveyance, and delivery of the Equity Interest by the Sellers to the Purchaser, as set forth therein, are approved in their entirety pursuant to sections 105, 363, and 1146 of the Bankruptcy Code. 4. The Sellers are authorized and directed, pursuant to sections 105 and 363(b) of the Bankruptcy Code, to execute and to deliver the Transaction Documents and are empowered to perform under, consummate and implement the Transaction Documents and all of their obligations with respect thereto, and to execute and deliver, or cause their respective subsidiaries and affiliates to execute and deliver, such other documents, instruments and purchase agreements, and perform all of their obligations with respect thereto and take such other actions as are necessary to effectuate the transactions contemplated thereby. The Purchaser's claim for breach of the CCE Purchase Agreement shall constitute, in the amount allowed, an allowed administrative claim with the priority afforded pursuant to section 507(a)(1) of the Bankruptcy Code. 5. This Order and the Transaction Documents shall be binding in all respects upon all creditors (whether known or unknown) of any Sellers and their affiliates and subsidiaries, and all non-debtor interested parties. TRANSFER OF EQUITY INTEREST 6. Except as expressly permitted or otherwise specifically provided for in the CCE Purchase Agreement or this Order, pursuant to sections 105(a), and 363(17) of the Bankruptcy Code, upon the consummation of the transactions contemplated by the Transaction Documents, including the CCE Purchase Agreement, the Equity Interest shall be transferred to the Purchaser with good title to such Equity Interest and will be legal, valid and effective transfers of such Equity Interest free and clear of Liens, Claims and Interests held by the Debtors or their respective estates and creditors; provided, however, that, existing Liens and Claims (including the DIP Liens,2 if any) will be transferred and attached to the proceeds received in exchange for such Equity Interest with the same validity, enforceability, priority, force and effect as such Liens and Claims had prior to the consummation of the transactions contemplated by the Transaction Documents, subject to the rights, claims, defenses and objections, if any, of the Debtors and Sellers and all interested parties with respect to such Liens and Claims. 7. Subject to the provisions of paragraph 8 below, all proceeds received from the consummation of the CCE Purchase Agreement shall be held by the Sellers and the Sellers shall neither use nor distribute such proceeds until the earlier to occur of (i) consent of the Creditors' Committee to the release of such proceeds; and (ii) further order of the Court. The Debtors shall take such actions as are necessary to ensure compliance with this decretal paragraph by EOC Preferred, LLC. 8. Upon the occurrence of the Effective Date (as defined in the Supplemental Modified Filth Amended Joint Plan of Affiliated Debtors Pursuant the Chapter 11 of the United States Bankruptcy Code, dated July 2, 2004 (the "Plan")), the proceeds of the sale of the Equity Interest shall be used and/or disbursed as provided in the Plan and/or the Order Confirming Supplemental Modified Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code and Related Relief dated July 15, 2004 (the "Confirmation Order"). 9. If any person or entity that has filed financing statements, mortgages, mechanic's liens, lis pendens, or other documents or agreements evidencing Liens on or Interests in the Equity Interest shall not have delivered to the Sellers prior to the Closing Date, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfaction, releases of all Liens or other Interests that the person or entity has with respect to the Equity Interest, or otherwise, then (a) the Sellers are hereby authorized and directed to execute and file such statements, instruments, releases and other documents on behalf of the person or entity with respect to the transactions contemplated in the CCE Purchase Agreement and in the Transaction Documents and (b) the Purchaser is hereby authorized to file, register, or otherwise record a certified copy of this Order, which, once filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all Liens or other interests of any kind or nature whatsoever in the Equity Interest. 10. Except as otherwise provided in this Order or the CCE Purchase Agreement and documents executed in connection therewith, the Purchaser is not assuming nor shall it in any way whatsoever be liable or responsible as a successor or otherwise for any liabilities, debts, commitments, or obligations (whether known or unknown, disclosed or undisclosed, absolute, contingent, inchoate, fixed, or otherwise) of the Debtors or the Sellers or any liabilities, debts, commitments, or obligations in any way whatsoever relating to or arising from the Equity Interest, the Sellers' use or control of the Equity Interest, or the Sellers' businesses and operations on or prior to the Closing Date or any such liabilities, debts, commitments, or obligations that in any way whatsoever relate to periods on or prior to the Closing Date or are to be observed, paid, discharged or performed on or prior to the Closing Date (in each case, including any liabilities that result from, relate to, or arise out of tort or other product liability claims), or any liabilities calculable by reference to the Debtors or the Sellers or their assets or operations, or relating to continuing conditions existing on or prior to the Closing Date, which liabilities, debts, commitments and obligations are hereby extinguished insofar as they may give rise to successor liability, without regard to whether the claimant asserting any such liabilities, debts, commitments, or obligations has delivered to the Purchaser a release thereof Without limiting the generality of the foregoing, except as provided in this Order, the CCE Purchase Agreement and documents executed in connection therewith, or by federal statute, the Purchaser shall not be liable or responsible, as a successor or otherwise, for the Debtors' or the Sellers' liabilities, debts, commitments or obligations, whether calculable by reference to the Debtors or the Sellers, arising on or prior to the Closing and under or in connection with (i) any employment or labor agreements, consulting agreements, severance arrangements, change-in-control agreements or other similar agreement to which any Debtor or Seller is a party, (ii) any pension (including, without limitation, contributions or payments on account of any under- finding with respect to any and all pension plans), welfare, compensation or other employee benefit plans, agreements, practices and programs, including, without limitation, any pension plan of the Debtors or the Sellers, (iii) the cessation of the Debtors' or Sellers' operations, dismissal of employees, or termination of employment or labor agreements or pension, welfare, compensation or other employee benefit plans, agreements, practices and programs, obligations that might otherwise arise from or pursuant to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act of 1967, the Federal Rehabilitation Act of 1973, the National Labor Relations Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, or the Worker Adjustment and Retraining Notification Act, (iv) workmen's compensation, occupational disease or unemployment or temporary disability insurance claims, (v) environmental liabilities, debts, claims, or obligations arising from conditions first existing on or prior to the Closing Date (including, without limitation, the presence of hazardous, toxic, polluting, or contaminating substances or wastes), which may be asserted on any basis, including, without limitation, under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., (vi) any bulk sales or similar law, (vii) any liabilities, debts, commitments or obligations of, or required to be paid by, the Debtors or Sellers for any taxes of any kind for any period, (viii) any liabilities, debts, commitments, or obligations for any taxes relating to the business of the Debtors or Debtor for or applicable to the period prior to the Closing Date, including any property taxes, (ix) any liabilities, debts, commitments or obligations for any transfer taxes, (x) any litigation, and (xi) any products liability or similar claims, whether pursuant to any state or any federal laws or otherwise. 11. The recitation, in the immediately preceding decretal paragraph of this Order, of specific agreements, plans or statutes is not intended, and shall not be construed, to limit the generality of the categories of liabilities, debts, commitments or obligations referred to therein. 12. Except as expressly permitted by the Transaction Documents, or otherwise provided by this Order, all persons and entities, including, but not limited to the Sellers' affiliates, all holders of the Sellers' indebtedness, debt security holders, equity security holders, present and former officers, directors, and employees, governmental, tax, and regulatory authorities, lenders, trade and other creditors, holding Liens, Claims and/or Interests against the Sellers, the Equity Interest (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or noncontingent, or senior or subordinated), arising on or before the Closing, or out of; under, in connection with, or in any way relating to, events occurring prior to the Closing, with respect to the Equity Interest, hereby are forever barred, estopped, and permanently enjoined from asserting such Liens and Claims of any kind and nature against the Purchaser, and its affiliates, successors, assigns and property, or the Equity Interest. 13. Except as otherwise expressly provided in this Order or the CCE Purchase Agreement, no person or entity, including, without limitation, any federal, state or local governmental agency, department or instrumentality, shall assert by suit or otherwise against the Purchaser or its successors in interest any claim that they had, have or may have against the Debtors or Sellers, or any liability, debt or obligation relating to the Debtors' operations or the Sellers' operations or business, including, without limitation any liabilities calculable by reference to the Debtors, or the Sellers or their respective assets or operations and all persons and entities are hereby enjoined from asserting against the Purchaser in any way any such claims, liabilities, debts or obligations. 14. Notwithstanding any other provision contained in this Order, including, but not limited to, paragraphs 6, 10, 12, 13, 24(a), 28, and 29, PBGC shall retain all of its rights, interests, claims, and causes of action, if any, including those against CrossCountry, Transwestern Holding Company, Northern Plains, Pan Border, Northern Plains Partners, CrossCountry Citrus Corp., Citrus, Florida Gas, Citrus Energy Services, Citrus Trading and their subsidiaries (the "CrossCountry Entities"), and all other non-debtors, under ERISA. Because PBGC's rights, interests, claims, and causes of action, if any, attach to the CrossCountry Entities, not the Equity Interest, nothing in the preceding sentence in any way affects the section 363(f) relief in this Order. Nothing in this Order (a) confers jurisdiction on any bankruptcy court over causes of action involving, or claims against, any non-debtor under ERISA, or (b) constitutes a waiver or agreement by PBGC on any jurisdictional issue involving or in any way relating to ERJSA. All parties-in-interest shall retain their tights to assert defenses with respect to any claim or cause of action referred to in this paragraph. 15. The Transaction Documents and any related agreements, documents or other instruments may be modified, amended or supplemented by the parties' mutual agreement thereto, in a writing signed by the parties, and in accordance with the terms thereof without further order of the Bankruptcy Court; PROVIDED, HOWEVER, that, in connection therewith, the parties shall obtain the prior written consent of the Creditors' Committee, which consent shall not be withheld unreasonably; and, PROVIDED, FURTHER, that any such modification, amendment or supplement shall not be material in nature and not change the economic substance of the transactions contemplated hereby. 16. Each and every federal, state and local governmental agency or department is hereby directed to accept any and all documents and instruments necessary and/or appropriate to consummate the transactions contemplated by the Transaction Documents. This Order is and shall be binding upon and shall govern the acts of all entities, including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, registrars of patents, trademarks or other intellectual property, administrative agencies, governmental departments, secretaries of state, federal, state, and local officials, and all other persons and entities, who may be required by operation of law, the duties of their office, or contract, to accept, file, register or otherwise record or release any documents or instruments that reflect, upon the consummation of the transactions contemplated by the Transaction Documents that the Purchaser is the transferee and owner of the Equity Interest free and clear of Liens, Claims and Interests. 17. The failure to specifically include any particular provisions of the Transaction Documents in this Order shall not diminish or impair the effectiveness of such provisions, it being the intent and action of the Bankruptcy Court that the Transaction Documents and the transactions contemplated thereby be approved in their entirety. Any conflict between the terms and provisions of this Order and the Transaction Documents shall be resolved in favor of this Order. 18. The terms and provisions of the Transaction Documents, together with the terms and provisions of this Order, shall be binding and inure to the benefit of the Sellers, the Purchaser, the Debtors' and their respective estates and creditors, and all other parties in interest, and any successors, assigns or affiliates of such person and entities, including, without limitation, any mediator, fiduciary, committee, trustee or examiner now existing or appointed in the future in these cases or any subsequent or converted cases of the Debtors under chapter 7 or chapter 11 of the Bankruptcy Code. This Order shall also be binding in all respects upon any affected third parties and all persons asserting a Lien, Claim or Interest against, or interest in, the Debtors' estates or any of the Equity Interest. ADDITIONAL PROVISIONS 19. The consideration provided by the Purchaser for the Equity Interest under the Transaction Documents, including the CCE Purchase Agreement, shall be deemed to constitute reasonably equivalent value and fair consideration under the Bankruptcy Code and under the laws of the United States, any state (including New York, Delaware, Texas, and Oregon), territory, possession, or the District of Columbia. 20. The Auction and Hearing have been conducted in accordance with the Bidding Procedures Order. 21. The consideration provided by the Purchaser for the Equity Interest is fair and reasonable and may not be avoided under section 3 63(n) of the Bankruptcy Code. 22. The Purchaser is a good faith purchaser under the Transaction Documents in accordance with section 363(m) of the Bankruptcy Code, and the Purchaser and its affiliates are entitled to all of the protections afforded thereby in connection with the Equity Interest. 23. On the Closing of the sale, each of the Sellers is authorized and directed to execute such documents and take all other actions as may be necessary to release its Interests in the Equity Interest, if any, as such Interests may have been recorded or may otherwise exist. 24. Except as otherwise provided in this Order, (a) this Order shall be effective as a determination that, upon Closing, all Claims against, Liens upon, and Interests of any kind or nature whatsoever existing as to the Sellers, and the Equity Interest prior to the Closing have been unconditionally released, discharged and terminated (other than the surviving obligations), and that the conveyances described herein have been effected, and (b) shall be binding upon and shall govern the acts of all entities including without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state, federal, state, and local officials, and all other persons and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register or otherwise record or release any documents or instruments, or who may be required to report or insure any title or state of title in or to any of the Equity Interest. 25. Purchaser's claims for indemnification under Sections 9.10, 9.11, 9.12 and Article X of or otherwise under the CCE Purchase Agreement, as amended (i) in the amount allowed, shall be administrative expense claims with priority set forth in section 507(a)(1) of the Bankruptcy Code, (ii) if estimated pursuant to section 5 02(c) of the Bankruptcy Code or otherwise, any such estimation shall not constitute a limit or "cap" on the Purchaser's allowed administrative expense claim, and (iii) the amount maintained under the Escrow Agreement from time to time shall not constitute a limit or "cap" on the Purchaser's allowed administrative expense claim. 26. Upon Closing, Sellers are authorized and directed to execute and deliver the Escrow Agreement, to find the Escrow Agreement and to perform the other transactions contemplated by the Escrow Agreement. Upon such funding, the Debtors and their debtor affiliates shall be deemed to have satisfied all of their obligations to the PBGC pursuant to Sections 21.3 and 42.2 of the Plan and the Escrow Agreement shall substitute for the amounts currently reserved or otherwise to be reserved for the benefit of the PBGC pursuant to Sections 42.2 and 21.3 of the Plan. The terms of the Escrow Agreement are incorporated herein and shall constitute provisions of this Order. 27. All entities which are presently, or upon Closing may be, in possession of any or all of the Equity Interest are directed to surrender possession of the Equity Interest to the Purchaser upon the Closing. 28. Except as otherwise provided in this Order, under no circumstances shall the Purchaser be deemed a successor of or to the Sellers for any Liens, Claims or Interests against or in the Sellers and the Equity Interest of any kind or nature whatsoever. Except as otherwise provided in this Order, the sale, transfer, assignment and delivery of the Equity Interest shall not be subject to any Claims, Liens, or Interests, and Claims, Liens, or Interests of any kind or nature whatsoever shall remain with, and continue to be obligations of the Debtors. Except as otherwise provided in this Order, all persons holding Interests against or in the Sellers and the Equity Interest of any kind or nature whatsoever (including, but not limited to, the Sellers and/or their respective successors, including any trustees thereof, creditors, directors, officers, employees, unions, former directors, officers, employees and shareholders, administrative agencies, governmental units, secretaries of state, federal, and local officials, maintaining any authority relating to any environmental, health and safety laws, and their respective successors or assigns) are forever barred, estopped, and permanently enjoined from asserting, prosecuting, or otherwise pursuing such Interests of any kind or nature whatsoever against the Purchaser, its property, its successors and assigns and the Equity Interest, as an alleged successor or otherwise, with respect to any Interest of any kind or nature whatsoever such Person or entity had, has, or may have against or in the Sellers, their estates, officers, directors, shareholders and the Equity Interest. Except as otherwise provided in this Order, following the Closing, no holder of a Claim, Lien, or Interest in the Sellers shall interfere with the Purchaser's title to or use and enjoyment of the Equity Interest based on or related to such Claim, Lien, or Interest, or any actions that the Sellers may take in their chapter 11 cases. 29. Unless otherwise provided in this Order or a particular Transaction Document, this Court retains exclusive jurisdiction to enforce and to implement the terms and provisions of the CCE Purchase Agreement, all amendments thereto, any waivers and consents thereunder, and of each of the Transaction Documents executed in connection therewith in all respects, including, but not limited to, retaining jurisdiction (a) to resolve any disputes related to the CCE Purchase Agreement, except as otherwise provided therein and (b) to interpret, implement, and enforce the provisions of this Order. 30. The transactions contemplated by the CCE Purchase Agreement are undertaken by the Purchaser in good faith, as that term is used in section 363(m) of the Bankruptcy Code, and accordingly, the reversal or modification on appeal of the authorization provided herein to consummate the sale shall not affect the validity of the sale of the Equity Interest to the Purchaser or the validity of the Escrow Agreement, unless such authorization is duly stayed pending such appeal. 31. The failure to include or reference any particular provisions of the CCE Purchase Agreement or the Transaction Documents in this Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Court that the CCE Purchase Agreement, as amended, be authorized and approved in its entirety. 32. The transfer of the Equity Interest pursuant to the CCE Purchase Agreement is a transfer pursuant to section 1146(c) of the Bankruptcy Code, and accordingly, pursuant to section 1146(c) of the Bankruptcy Code, the Transaction and the execution, delivery and/or recordation of any and all documents or instruments necessary or desirable to consummate the Transaction shall be, and hereby are, exempt from the imposition and payment of all recording fees and taxes, stamp taxes and/or sales, use, transfer, documentary, registration or any other similar taxes. Each and every federal, state and local government agency or department is directed to accept any and all documents and instruments necessary and appropriate to consummate the transfer of any of the Equity Interest, all without imposition or payment of any stamp tax, transfer tax, or similar tax. 33. No person or entity shall take any action to prevent, enjoin or otherwise interfere with the consummation of the transactions contemplated in accordance with the Transaction Documents or this Order. 34. The requirement set forth in Rule 9013-1(b) of the Local Rules that any motion or other request for relief be accompanied by memorandum of law is hereby deemed satisfied by the contents of the Motion. 35. Nothing in this Order and the transactions approved hereby shall release the Sellers and the Purchaser and their respective affiliates from any claims of the United States Government except to the extent such claims are satisfied from the attachment of Liens, Claims, and encumbrances to the proceeds of the Sale Transaction. 36. Each of the Debtors' and the Sellers' direct and indirect subsidiaries shall take all actions or refrain from taking all actions necessary for the full effectuation of this Order and the transactions provided for and contemplated by the CCE Purchase Agreement. 37. The provisions of this Order are nonseverable and mutually dependent. 38. Upon Closing, that certain Put Agreement, dated December 31, 2003, between Enron and ETS shall be terminated and of no further force and effect without the need for additional action by either party or further order of this or any other Court. 39. The stay of orders authorizing the use, sale or lease of property as provided for in Bankruptcy Rule 6004(g) shall not apply to this Order, and this Order is immediately effective and enforceable. Any party objecting to this Order must exercise due diligence in filing an appeal and pursuing a stay or risk its appeal being foreclosed as moot in the event the Purchaser and the Sellers elect to close prior to this Order becoming a final order. 40. To the extent of any inconsistency between the terms and provisions of the Plan, the Confirmation Order and this Order, the provisions of this Order shall govern. Dated: New York, New York September 10, 2004 S/ARTHUR J. GONZALEZ -------------------- HONORABLE ARTHUR J. GONZALEZ UNITED STATES BANKRUPTCY JUDGE _____________________________ 1 All capitalized terms used, unless otherwise defined herein, shall have the meanings set forth in the Motion or in the CCE Purchase Agreement (as that term is defined herein). 2 As defined in the Final Order Authorizing Debtors to Obtain Post-Petition Financing Pursuant to 11 U.S.C. ss.ss. 105, 361, 362, 364 (c)(1), 364 (c)(2) and 364 (d)(1), dated July 2, 2002, as supplemented by the Order Authorizing, Pursuant to 11 U.S.C. ss.ss. 105, 361, 362, 364 (c)(1), 364 (c)(2) 364 (c)(3) and 364 (d)(1). Amendment of DIP Credit Purchase Agreement to Provide for Extension of Post-Petition Financing, dated May 8, 2003. EX-10 4 exhibit10c.txt ESCROW AGREEMENT Exhibit 10.c ESCROW AGREEMENT This Escrow Agreement (as the same may be amended or modified from time to time in accordance with the terms hereof, and including any and all written instructions given to the Escrow Agent (hereinafter defined) pursuant hereto, this "ESCROW AGREEMENT") is made and entered into as of _______ ___, 2004, by and among Enron Corp., an Oregon corporation ("SELLER"), CCE Holdings, LLC, a Delaware limited liability company ("PURCHASER"), the Pension Benefit Guaranty Corporation (the "PBGC") and [________ (the "BANK")].1 WITNESSETH: WHEREAS, Seller and Purchaser have requested the Bank to act in the capacity of escrow agent under this Escrow Agreement, and the Bank, subject to the terms and conditions hereof, has agreed so to do; WHEREAS, pursuant to that certain Purchase Agreement, dated June 24, 2004, as amended as of September 1 , 2004 (the "PURCHASE AGREEMENT"), by and among Seller, certain of its affiliates and Purchaser, Purchaser has agreed to purchase, and Seller and certain of its affiliates have agreed to sell, 100% of the membership interests of CrossCountry Energy, LLC, a Delaware limited liability company, on the terms and conditions set forth in the Purchase Agreement; WHEREAS, unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in the Purchase Agreement; WHEREAS, pursuant to Section 9.11 of the Purchase Agreement, Seller has agreed to indemnify and hold the Purchaser Indemnified Parties harmless from and against all Losses that are imposed upon or assessed against a Transfer Group Company or the assets thereof arising out of certain claims under Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"); and WHEREAS, Seller has agreed to establish an escrow fund by depositing $321,800,000 in immediately available funds (the "ESCROW AMOUNT") with the Escrow Agent (hereinafter defined) contemporaneously with the Closing in lieu of the obligations in respect of claims of the PBGC under Sections 42.2 and 21.3 of the Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code; NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 1. APPOINTMENT OF ESCROW AGENT. Each of the Seller, Purchaser and PBGC hereby appoints the Bank as the escrow agent under this Escrow Agreement (the Bank in such capacity, the "ESCROW AGENT"), and the Escrow Agent hereby accepts such appointment. Each of the parties hereto acknowledges and agrees that the Escrow Agent has not reviewed, is not a party to and shall have no liability under the Purchase Agreement. 2. ESCROWED PROPERTY. Contemporaneously with the Closing, Seller shall deliver the Escrow Amount in immediately available funds to the Escrow Agent. Once deposited with the Escrow Agent, the Escrow Amount is referred to herein as the "ESCROWED PROPERTY." The Escrowed Property shall be held by the Escrow Agent in one or more segregated escrow accounts (collectively, the "ESCROW ACCOUNT") for the benefit of Purchaser, Seller and the PBGC, as provided in this Escrow Agreement. In no event shall the Escrow Agent disburse or invest the Escrowed Property except in accordance with this Escrow Agreement. 3. INVESTMENT OF THE ESCROWED PROPERTY. (a) Pending disbursement of the Escrowed Property in accordance with the terms of this Escrow Agreement, the Escrow Agent shall invest and reinvest the Escrowed Property in Permitted Investments (as defined below). The Escrow Agent may use a broker-dealer of its own selection, including a broker-dealer owned by or affiliated with the Escrow Agent or any of its affiliates. The Escrow Agent or any of its affiliates may receive reasonable and customary compensation with respect to any investment directed hereunder (provided that such compensation shall be disclosed in writing to Seller and Purchaser prior to such investment). The Escrow Agent shall have the right to liquidate any investment held in order to release the Escrowed Property as provided by this Escrow Agreement. It is expressly agreed and understood by the parties hereto that the Escrow Agent shall not in any way whatsoever be liable for losses on any investments, including, but not limited to, losses from market risks due to premature liquidation or resulting from other actions taken pursuant to and consistent with this Escrow Agreement. For purposes of this Escrow Agreement, "PERMITTED INVESTMENTS" shall mean direct obligations of the U.S. government, obligations guaranteed by the U.S. government and money market funds that invest solely in direct obligations of the U.S. government or in obligations guaranteed by the U.S. government, in each case having maturities of ninety (90) days or less. (b) Receipt, investment and reinvestment of the Escrowed Property shall be confirmed by the Escrow Agent as soon as practicable following each such transaction by account statement to Seller, Purchaser and PBGC, and any discrepancies in any such account statement shall be noted by Seller and Purchaser to the Escrow Agent within thirty (30) calendar days after receipt thereof. Failure to inform the Escrow Agent in writing of any discrepancies (except for gross or manifest errors) in any such account statement within said 30-day period shall presumptively be deemed confirmation of such account statement in its entirety. For purposes of this paragraph, each account statement shall be deemed to have been received by the party to whom directed on the earlier to occur of (i) actual receipt thereof and (ii) five (5) Business Days after the deposit thereof in the United States Mail, postage prepaid. 4. DISBURSEMENT OF THE ESCROWED PROPERTY. The Escrow Agent is hereby authorized to release all or any portion of the Escrowed Property only as follows: (a) To the PBGC, with respect to claims of the PBGC related to the pension plans listed in Section 4(c) hereof (the "SELLER PLANS"), promptly, but in no event later than two (2) Business Days, after the Escrow Agent's receipt of written instructions directing such payment executed by Seller, with a copy thereof to Purchaser and the PBGC; (b) To the Purchaser, promptly, but in no event later than two (2) Business Days, after the Escrow Agent's receipt of (i) written instructions executed by Seller, with copies thereof to Purchaser and the PBGC, stating that liabilities or claims under Title IV of ERISA have been imposed upon or assessed against a Transfer Group Company (as defined in the Purchase Agreement) or the assets thereof, or (ii) copy of a final judgment of a court of competent jurisdiction that is not appealable as a matter of right (a "FINAL DETERMINATION"), with copies thereof to Seller and the PBGC, which establishes that liabilities or claims under Title IV of ERISA have been imposed upon or assessed against a Transfer Group Company or the assets thereof, and, in each case, paid by a Transfer Group Company to the PBGC, and by reason thereof the Purchaser is entitled to indemnification pursuant to Section 9.11 of the Purchase Agreement, in respect of such amounts paid to the PBGC; (c) Promptly, but in no event later than twenty-four (24) hours, after the Escrow Agent's receipt of written instructions executed by Seller, with a copy thereof to Purchaser, and the PBGC (with the PBGC notice being delivered, in writing, at least two (2) Business Days in advance of any distribution) directing the Escrow Agent to release all or a portion of the Escrowed Property (i) to one or more of the trusts maintained by Seller and/or its affiliates in connection with the Enron Corp. Cash Balance Plan (EIN: ), the Garden State Paper Pension Plan (EIN: ), the EFS Pension Plan (EIN: ) or the San Juan Gas Pension Plan (EIN: ) (collectively, the "PENSION Trusts"), which written instruction will provide that such disbursement shall be made directly by Escrow Agent to one or more of the Pension Trusts by wire transfer; or (ii) to Seller, in respect of a payment made by Seller after the date hereof to a Pension Trust, which written instruction will be accompanied by (x) a certification of an executive officer of Seller that an equivalent amount has been deposited by Seller, following the date hereof, into one or more of the Pension Trusts, (y) a written confirmation of the receipt of such funds by the trustee of such Pension Trust(s); provided, however, that in no event will Seller be entitled to a disbursement on account of any minimum funding contribution it makes to the Pension Trusts or will any disbursement be used to satisfy any minimum funding contributions to the Pension Trusts; and further provided the case of (i) or (ii) above, transferred amounts shall not be used to purchase annuities by any of the Pension Trusts, or to reimburse Seller therefor, without the express prior written consent of the PBGC (and the passage of time alone does not constitute such consent) and transferred amounts shall not be in an amount which would cause any Seller Plan to be funded in excess of its benefit liability obligations under the Seller Plan; (d) To the PBGC, promptly, but in no event later than two (2) Business Days, after receipt by the Escrow Agent, Seller and Purchaser of a copy of a Final Order (as defined in the Purchase Agreement) by the Bankruptcy Court which establishes that PBGC has allowed claims for unfunded benefit liabilities under Title IV of ERISA with respect to the Seller Plans, in the amount set forth in such Final Order; (e) The Escrow Agent shall promptly deliver after receipt by the Escrow Agent of express prior written instructions from Seller and the PBGC (which instructions the PBGC will reasonably give), with a copy thereof to Purchaser, (i) all then remaining Escrowed Property to Seller (A) in the case of involuntary termination of the Seller Plans by the PBGC upon complete satisfaction of the unfunded benefits liabilities as determined under ERISA as set forth in a Final Determination, or (B) in the case of standard termination of all of the Seller Plans, upon the earlier of (1) the first anniversary of the filing by the Seller with the PBGC of the Post-Distribution Certification (PBGC Form 501) in connection with the last termination of a Seller Plan, if the post-termination audit of such plan by the PBGC has not been completed or (2) the completion of the post-termination audits of all of the Seller Plans and settlement of all disputed items arising from such audits (the "Audit Claims"), but in no event earlier than the date upon which there is no liability with respect to a defined benefit pension plan subject to Title IV of ERISA for which Purchaser could be entitled to indemnification pursuant to Section 9.11 of the Purchase Agreement, or (ii) prior thereto, in the event there are outstanding Audit Claims, prior to the disbursement by (i) above, the amount by which the Escrowed Property exceeds the amount of such Audit Claims; or (f) Otherwise in accordance with the joint instructions of Seller, Purchaser and the PBGC. 5. AMOUNTS DISTRIBUTED OR EARNED. All amounts earned with respect to the Escrowed Property (whether interest or otherwise) shall become part of the Escrowed Property and shall be held under the same terms as the Escrowed Property initially delivered to the Escrow Agent hereunder. 6. TAX MATTERS. Purchaser and Seller agree that Seller shall include any amounts earned with respect to the Escrowed Property in their respective gross incomes for federal, state and local income tax purposes and that Seller shall be liable for payment (and shall indemnify Purchaser for Losses incurred by Purchaser from Seller's nonpayment) of all taxes payable with respect to such earnings and all related tax reporting duties. Each of Purchaser and Seller shall provide the Escrow Agent with its taxpayer identification number and the other information set forth on the signatures page hereto. Failure so to provide such information may prevent or delay disbursements from the Escrowed Property and may also result in the assessment of a penalty and the Escrow Agent's being required to withhold tax on any interest or other income earned on the Escrowed Property. Any payments of income shall be subject to applicable withholding regulations then in force in the United States or any other jurisdiction, as applicable. 7. SCOPE OF UNDERTAKING. The Escrow Agent's duties and responsibilities in connection with this Escrow Agreement shall be purely ministerial and shall be limited to those expressly set forth in this Escrow Agreement. The Escrow Agent is not a principal, participant or beneficiary in any transaction underlying this Escrow Agreement and shall have no duty to inquire beyond the terms and provisions hereof. Except as set forth in SECTION 16, the Escrow Agent shall have no responsibility or obligation of any kind in connection with this Escrow Agreement or the Escrowed Property and shall not be required to deliver the Escrowed Property or any part thereof or take any action with respect to any matters that might arise in connection therewith, other than to receive, hold, invest, reinvest and deliver the Escrowed Property as herein provided. Without limiting the generality of the foregoing, it is hereby expressly agreed and stipulated by the parties hereto that the Escrow Agent shall not be required to exercise any discretion hereunder and shall have no investment or management responsibility and, accordingly, shall have no duty to, or liability for its failure to, provide investment recommendations or investment advice to Seller or Purchaser. The Escrow Agent shall not be liable for any error in judgment, any act or omission, any mistake of law or fact, or for anything it may do or refrain from doing in connection herewith, except for, subject to SECTION 8 hereof, its own fraud, willful misconduct, gross negligence or material breach of this Escrow Agreement. It is expressly agreed and acknowledged that the Escrowed Property remains property of the Seller following the deposit of such funds with the Bank in accordance with the terms hereof and does not constitute the assets of any of the Pension Trusts or the defined benefit plans related thereto and that no action taken by the Bank in accordance with the terms hereof shall be construed or interpreted to render the Bank a fiduciary with respect to the Pension Trusts for any purpose. It is the intention of the parties hereto that the Escrow Agent shall never be required to use, advance or risk its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder. 8. RELIANCE; LIABILITY. The Escrow Agent may rely on, and shall not be liable for acting or refraining from acting in accordance with, any written notice, instruction or request or other paper furnished to it in hereunder or pursuant hereto and reasonably believed by it in good faith to have been signed or presented by the proper party or parties. The Escrow Agent shall be responsible for holding, investing, reinvesting and disbursing the Escrowed Property pursuant to this Escrow Agreement; provided, however, that in no event shall the Escrow Agent be liable for any lost profits, lost savings or other exemplary, consequential or incidental damages in excess of the Escrow Agent's fee hereunder (not resulting from its own fraud, gross negligence or willful misconduct), and provided, further, that the Escrow Agent shall have no liability for any loss arising from any cause beyond its control, including, but not limited to, the following: (a) acts of God, force majeure, including, without limitation, war (whether or not declared or existing), revolution, insurrection, riot, civil commotion, accident, fire, explosion, stoppage of labor, strikes and other differences with employees; (b) the act, failure or neglect of Seller or Purchaser, (c) the act, failure or neglect of any agent or correspondent or any other person selected by the Escrow Agent (unless such selection involved fraud, gross negligence or willful misconduct); (d) any delay, error, omission or default of any mail, courier, telegraph, cable or wireless agency or operator; or (e) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. The Escrow Agent is not responsible or liable in any manner whatsoever for the transaction or transactions requiring or underlying the execution of this Escrow Agreement or for the identity or authority of any person (other than the Escrow Agent) executing this Escrow Agreement or any part hereof or holding the Escrowed Property. 9. RIGHT OF INTERPLEADER. Should any controversy arise involving the parties hereto or any of them or any other person, firm or entity with respect to this Escrow Agreement or the Escrowed Property, or should a substitute escrow agent fail to be designated as provided in SECTION 16 hereof, or if the Escrow Agent should have reasonable doubt as to what action to take with respect to the continuation of the Escrow Account or any disbursements hereunder, the Escrow Agent shall have the right, but not the obligation, either to (a) withhold delivery of the Escrowed Property until the controversy is resolved, the conflicting demands are withdrawn or its reasonable doubt is resolved or (b) institute a petition for interpleader in (i) the Bankruptcy Court, if the Bankruptcy Cases remain open, or (ii) a court of competent jurisdiction, if the Bankruptcy Cases have been closed, to determine the rights of the parties hereto and pay into such court all applicable funds held by the Escrow Agent for holding and disbursement. Should a petition for interpleader be instituted, or should the Escrow Agent be threatened with litigation or become involved in litigation or binding arbitration in any manner whatsoever in connection with this Escrow Agreement or the Escrowed Property, Seller and Purchaser hereby jointly and severally agree to reimburse the Escrow Agent for its reasonable and documented attorneys' fees and any and all other reasonable and documented out-of-pocket expenses, losses, costs and damages incurred by the Escrow Agent in connection with or resulting from such threatened or actual litigation prior to any disbursement hereunder (other than any such threatened or actual litigation that results from a material breach by the Escrow Agent of this Escrow Agreement or the gross negligence, willful misconduct or fraud of the Escrow Agent). 10. INDEMNIFICATION. Seller and Purchaser hereby jointly and severally agree to indemnify the Escrow Agent, its officers, directors, partners, employees and agents (each hereinafter referred to as an "INDEMNIFIED PARTY") against, and hold each Indemnified Party harmless from, any and all reasonable and documented out-of-pocket expenses, including, without limitation, reasonable attorneys' fees and court costs, losses, costs, damages and claims, including, but not limited to, costs of investigation, litigation, tax liability (other than taxes payable with respect to fees paid or other income hereunder) suffered or incurred by any Indemnified Party in connection with or arising from or out of this Escrow Agreement, except such acts or omissions as may result from the fraud, willful misconduct or gross negligence of, or material breach of this Escrow Agreement by, such Indemnified Party. IT IS THE EXPRESS INTENT OF EACH OF SELLER AND PURCHASER TO INDEMNIFY EACH OF THE INDEMNIFIED PARTIES FOR, AND HOLD THEM HARMLESS FROM AND AGAINST, SELLER'S OR PURCHASER'S NEGLIGENT ACTS OR OMISSIONS. If any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought from Seller and Purchaser pursuant to this SECTION 10, or an Indemnified Party receives notice from any potential claimant, such Indemnified Party shall, as promptly as practicable after receiving notice thereof, give written notice to Seller and Purchaser of the commencement of such action or proceeding or of the existence of any such claim (any such action, proceeding or notice hereinafter referred to as a "CLAIM") and furnish Seller and Purchaser with copies of any summons or other legal process received by such Indemnified Party and other documents and information in the possession of such Indemnified Party as to the nature and basis of the claim; provided that no failure to give or delay in giving such notice or such documents and information shall relieve Seller or Purchaser from any of their indemnification obligations hereunder except to the extent such obligations could have been reduced or avoided in the absence of such failure or delay. In the event that any Claim shall be brought against any Indemnified Party, Seller and Purchaser will be entitled to participate in the defense of such Claim, and, after written notice from Seller and Purchaser to such Indemnified Party, to jointly assume the defense of such Claim with a single counsel mutually agreed upon and appointed by Seller and Purchaser and which counsel is reasonably acceptable to such Indemnified Party at Seller's and Purchaser's joint expense or, alternatively, if only Seller on the one hand, or Purchaser on the other hand, elect to assume the defense of such Claim, then such electing parties will, after written notice to the non-electing parties and such Indemnified Party, be entitled to defend such Claim separately with the cost of such defense to be shared equally by Seller on the one hand and Purchaser on the other hand (in each case, Seller or Purchaser shall not thereafter be responsible for the fees and disbursements of any separate counsel retained by such Indemnified Party in connection with such action or proceeding, except as provided below in this paragraph). For the avoidance of doubt, if Seller and Purchaser shall jointly assume the defense of any Claim against any Indemnified Party, such defense shall be jointly controlled by Seller and Purchaser and all decisions relating thereto shall be mutually agreed upon by Seller and Purchaser. If only Seller on the one hand, or Purchaser on the other hand, shall elect to assume the defense of any Claim separately, such electing parties shall obtain the prior written consent of (a) the non-electing parties before entering into any settlement of such Claim (other than sharing equally in the cost thereof as set forth above) if the settlement imposes any cost, expense or obligation on the non-electing parties or does not expressly and unconditionally release the non-electing parties from all liabilities and obligations with respect to such Claim and (b) the Indemnified Party if the settlement imposes any cost, expense or obligation on the Indemnified Party or does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Claim. Notwithstanding any election by Seller or Purchaser to assume the defense of any such Claim, such Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such Claim at the Indemnified Party's expense; provided, however that such Indemnified Party shall not have the right to settle any such Claim without the prior written consent of Seller and Purchaser. Seller and Purchaser agree to pay the reasonable and documented fees and disbursements of such separate counsel only if (x) the use of counsel jointly chosen by Seller and Purchaser to represent such Indemnified Party would present an actual conflict of interest which it would be unreasonable to waive or (y) Seller and Purchaser shall authorize such Indemnified Party to employ separate counsel at the expense of Seller and Purchaser. If Seller on the one hand, or Purchaser on the other hand, do not elect, jointly or separately, to assume the defense of a Claim against any Indemnified Party, such Indemnified Party shall obtain the prior written consent of Seller and Purchaser before entering into any settlement of such Claim. Notwithstanding anything to the contrary contained in this SECTION 10, Seller and Purchaser agree, as between themselves, to share in the aggregate amount of any indemnifiable costs or expenses for which any Indemnified Party may be liable in such proportion as is appropriate to reflect their respective relative fault in connection with the acts or omissions which resulted in such costs or expenses. The relative fault of Seller on the one hand, and Purchaser on the other hand, shall be determined by reference to whether the acts or omissions at issue were those of Seller on the one hand, or Purchaser on the other hand. If any amount paid by any of the Seller or Purchaser pursuant to this SECTION 10 is in excess of the amount allocable to it in accordance with the provisions of this SECTION 10, it shall be entitled to reimbursement of such excess amount (plus all reasonable attorneys' fees and documented expenses incurred in connection with enforcing this provision) from the other parties (other than the Escrow Agent). 11. COMPENSATION AND REIMBURSEMENT OF EXPENSES. Seller, Purchaser and PBGC hereby agree that the Escrow Agent may withdraw funds out of the Escrowed Property to satisfy the Escrow Agent's fees for its services hereunder in accordance with the Escrow Agent's fee schedule as attached as Schedule I hereto as in effect from time to time; provided, however, the Escrow Agent shall provide written notice (the "WITHDRAWAL NOTICE") to the Seller, Purchaser and PBGC ten (10) business days notice of any pending withdrawal of funds in accordance with this SECTION 11 and shall not effectuate such withdrawal if Seller, Purchaser or PBGC shall object to such withdrawal prior to the effective date set forth in the Withdrawal Notice. In addition, Seller, Purchaser and PBGC, each agree that the Escrow Agent may withdraw funds out of the Escrowed Property to reimburse the Escrow Agent for all of its reasonable and documented out-of-pocket expenses incurred by the Escrow Agent in connection with the performance of its duties and enforcement of its rights hereunder and otherwise in connection with the operation, administration and enforcement of this Escrow Agreement, including, without limitation, attorneys' fees, brokerage costs and related expenses incurred by the Escrow Agent, in each case to the extent reasonably necessary (collectively, "OTHER EXPENSES"). Notwithstanding the foregoing, the Escrow Agent shall have no right to withdraw funds from the Escrowed Property for any Other Expenses to the extent such expenses arise out of, relate to or result from the Escrow Agent's material breach of this Escrow Agreement or the gross negligence, willful misconduct or fraud of the Escrow Agent. 12. FUNDS TRANSFER. (a) All disbursements of any or all of the Escrowed Property shall be made by wire transfer of immediately available U.S. Federal Funds to an account designated by the payee therefor. In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing, by facsimile, or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule II hereto, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by the Escrow Agent. The parties to this Escrow Agreement acknowledge that such security procedure is commercially reasonable. (b) It is understood that the Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by Seller, Purchaser or PBGC hereto to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary bank, designated. 13. NOTICES. All notices or other communications under this Escrow Agreement by any party hereto shall be considered as properly given if in writing and (a) delivered against receipt therefor, (b) mailed by registered or certified mail, return receipt requested and postage prepaid or (c) sent by facsimile machine, in each case to the address or facsimile number, as the case may be, set forth below: If to the Escrow Agent, to: [------------] Attention: Facsimile: If to Seller, to: Enron Corp. 1221 Lamar Street, Suite 1600 Houston, TX 77002 Attention: General Counsel Facsimile: (713) 646-6227 With a copy to: Weil, Gotshal & Manges LLP 200 Crescent Ct., Suite 300 Dallas, TX 75201 Attention: Michael Saslaw Facsimile: (214) 746-7777 If to Purchaser, to: Southern Union Company One PEI Center, Second Floor Wilkes-Barre, PA 18711 Attention: Thomas F. Karam, President and COO Facsimile: (570) 829-8900 and General Electric Capital Corporation 120 Long Ridge Road Stamford, CT 06927 Attention: Manager of Operations Facsimile: (203) 961-2215 With a copy to: Fleischman & Walsh, L.L.P. 1919 Pennsylvania Avenue, N.W. Suite 600 Washington, DC 20006 Attention: Sean P. McGuinness Facsimile: (202) 265-5706 And a copy to: Paul, Hastings, Janofsky & Walker LLP 1055 Washington Boulevard Stamford, CT 06901 Attention: Jonathan Birenbaum Facsimile: (203) 359-3031 If to PBGC, to: John A. Menke Brenda Bachman Richard Perry Pension Benefit Guaranty Corporation Office of the General Counsel 1200 K Street, N.W. Washington, D.C. 20005-4026 Fax: (202) 326-4112 and Ajit Gadre Supervisory Financial Analyst Corporate Finance and Negotiations Department Pension Benefit Guaranty Corporation Office of the General Counsel 1200 K Street, N.W. Washington, D.C. 20005-4026 Fax: (202) 326-4071 Delivery of any communication given in accordance herewith shall be effective only upon actual receipt (and in the case of facsimile transmissions when received during normal business hours) thereof by the party or parties to whom such communication is directed. Any party to this Escrow Agreement may change the address to which communications hereunder are to be directed by giving written notice to the other party or parties hereto in the manner provided in this SECTION 13. All signatures of the parties to this Escrow Agreement may be transmitted by facsimile, and such facsimile will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party. 14. CHOICE OF LAWS; CUMULATIVE RIGHTS. This Escrow Agreement shall be construed and enforced in accordance with and governed by the laws of the State of New York. All of the Escrow Agent's rights hereunder are cumulative of any other rights it may have at law, in equity or otherwise. 15. JURISDICTION; SERVICE OF PROCESS. (a) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT FOR ANY AND ALL DISPUTES, CONTROVERSIES, CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS ESCROW AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES NOT TO COMMENCE ANY LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS ESCROW AGREEMENT EXCEPT IN THE BANKRUPTCY COURT; PROVIDED, HOWEVER, THAT IF THE BANKRUPTCY CASES HAVE CLOSED, THE PARTIES AGREE TO UNCONDITIONALLY AND IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY OR THE COMMERCIAL DIVISION CIVIL BRANCH OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND ANY APPELLATE COURT FROM ANY THEREOF, FOR THE RESOLUTION OF ANY SUCH DISPUTE, CONTROVERSY, CONFLICT, LITIGATION OR ACTION; NOTWITHSTANDING THE FOREGOING, Nothing in this Agreement (a) confers jurisdiction on any bankruptcy court over causes of action involving, or claims against, any non-debtor under ERISA, or (b) constitutes a waiver or agreement by any party hereto on any jurisdictional issue involving or in any way relating to ERISA. (b) The parties hereby unconditionally and irrevocably waive, to the fullest extent permitted by Applicable Law, any objection which they may now or hereafter have to the laying of venue of any dispute arising out of or relating to this Escrow Agreement or any of the transactions contemplated hereby brought in any court specified in paragraph (a) above, or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Each of the parties hereto hereby consents to process being served by any party to this Escrow Agreement in any suit, Action or proceeding by the mailing of a copy thereof in accordance with the provisions of Section 13. 16. RESIGNATION. The Escrow Agent may resign hereunder upon thirty (30) days' prior notice to Seller, Purchaser and the PBGC. Upon the effective date of such resignation, the Escrow Agent shall deliver the Escrowed Property to any substitute escrow agent designated in writing by Seller, Purchaser and the PBGC. Such substitute escrow agent shall be bound to the terms of this Escrow Agreement until such time as this Escrow Agreement shall be amended or modified in accordance with the terms hereof. If Seller, Purchaser and the PBGC fail to designate a substitute escrow agent within thirty (30) days after the giving of such notice, the Escrow Agent may institute a petition for interpleader. The Escrow Agent's sole responsibilities after such 30-day notice period expires shall be to (i) hold the Escrowed Property, and (ii) deliver the same to a designated substitute escrow agent, if any, or in accordance with the directions of a final order or judgment of (A) the Bankruptcy Court, if the Bankruptcy Cases remain open, or (B) a court of competent jurisdiction, if the Bankruptcy Cases have been closed, at which time of delivery the Escrow Agent's obligations hereunder shall cease and terminate, except that such resignation shall not relieve the Escrow Agent from any liability, losses, costs, damages or claims that result from a material breach by the Escrow Agent of this Escrow Agreement or the gross negligence, willful misconduct or fraud of the Escrow Agent. The Escrow Agent or successor agent shall continue to act as escrow agent hereunder until a successor is appointed and qualified to act as the escrow agent. 17. TERMINATION BY PURCHASER AND SELLER. By mutual agreement, Purchaser and Seller shall have the right at any time upon not less than ten (10) days' prior written notice to the Escrow Agent to terminate their appointment of the Escrow Agent as the escrow agent, or any successor escrow agent, as escrow agent hereunder. The Escrow Agent or successor agent shall continue to act as escrow agent hereunder until a successor is appointed and qualified to act as the escrow agent. 18. BINDING EFFECT; ASSIGNMENT. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except as set forth in SECTION 10 hereof, nothing in this Escrow Agreement shall create or be deemed to create any third party beneficiary rights in any Person not party to this Escrow Agreement. No assignment of this Escrow Agreement or of any rights or obligations hereunder may be made by any of Seller, Purchaser, or the Escrow Agent (by operation of law or otherwise) without the prior written consent (not to be unreasonably withheld, conditioned or delayed) of the other parties hereto and any attempted assignment without the required consent shall be void; provided, however, that Seller and Purchaser shall have the right to assign this Escrow Agreement to their respective Affiliates, provided that notice of such assignment is promptly given the Escrow Agent and the other parties hereto upon or immediately following such assignment. 19. SEVERABILITY. If one or more of the provisions hereof shall for any reason be held to be invalid, illegal or unenforceable in any respect under applicable law, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Escrow Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, and the remaining provisions hereof shall be given full force and effect. 20. TERMINATION. This Escrow Agreement shall terminate upon the disbursement, in accordance with the terms hereof, of the Escrowed Property in full; provided, however, that in the event all fees, expenses, costs and other amounts required to be paid to the Escrow Agent hereunder are not fully and finally paid prior to termination, the provisions of SECTIONS 8, 9 and 10 hereof shall survive the termination hereof; and provided, further, that such termination shall not relieve the Escrow Agent from any liability, losses, costs, damages or claims that result from a material breach by the Escrow Agent of this Escrow Agreement or the gross negligence, willful misconduct or fraud of the Escrow Agent. 21. NO RIGHT OF SET-OFF. Except as set forth in SECTION 11 hereof, the Escrow Agent hereby unconditionally and irrevocably waives any and all rights to set-off, netting, offset, recoupment, or similar rights that it has or may have against the Escrowed Property including, without limitation, claims arising as a result of any claims, amounts, liabilities, costs, expenses, damages, or other losses that Escrow Agent may be otherwise entitled to collect from any party to this Escrow Agreement. 22. HEADINGS. The section headings contained in this Escrow Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Escrow Agreement. 23. COUNTERPARTS. This Escrow Agreement and any document required to be provided hereunder 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. All signatures of the parties to this Escrow Agreement may be transmitted by facsimile, and such facsimile will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party. 24. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Escrow Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and neither Seller and Purchaser, on one hand, and the Escrow Agent, on the other hand, has relied on any representations or agreements of the other, except as specifically set forth in this Escrow Agreement. This Escrow Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Escrow Agreement signed by Seller and Purchaser and upon written notice to the PBGC. In addition, Sections 2, 3(b), 4, 5, 9, 15, 16, 20 and 24 shall not be amended, nor shall any other amendment of this Escrow Agreement be effective if it materially adversely affects the interests of the PBGC, without the written consent of the PBGC. No action taken pursuant to this Escrow Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any agreement contained herein. The waiver by any party hereto of a breach of any provision of this Escrow Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by Law. This Escrow Agreement or any provision hereof may be amended, modified, waived or terminated only by written instrument duly signed by the parties hereto. 25. EFFECT ON PBGC CLAIMS. This Escrow Agreement shall not be deemed or interpreted to limit the rights of the PBGC in respect of its proofs of claim filed in the chapter 11 cases of Seller and its debtor affiliates and, notwithstanding any other provision contained herein, nothing contained in this Escrow Agreement shall be construed as limiting, restricting or otherwise affecting: (i) the rights, interests, claims and causes of action, if any, of the PBGC, that may be brought under ERISA, including but not limited to, perfecting liens and filing or otherwise pursuing any claims and causes of action, if any, applicable to any entity, or (ii) the rights of Seller or any other party-in-interest in the chapter 11 cases of the Seller and its debtor affiliates to assert defenses with respect to any claim filed by the PBGC or any cause of action referred to in subparagraph (i) of this Section 25. 26. INDEMNITY CLAIMS. Purchaser hereby agrees that, notwithstanding anything to the contrary in the Purchase Agreement, the satisfaction of all claims under Section 9.11 of the Purchase Agreement related to amounts imposed upon or assessed against Purchaser or a Transfer Group Company by the PBGC with respect to any of the Seller Plans will first be pursued under this Escrow Agreement and satisfied from the Escrowed Property. 27. GENERAL. If performance by any party to this Escrow Agreement is delayed or prevented by any act of God, terrorism, fire, flood or other casualty, strike, national emergency or other cause beyond the reasonable control of a party, then the period of such party's performance of the applicable obligation shall be automatically extended for the same amount of time that such party is so delayed or hindered. The affected party shall use its best efforts to remove the cause of delay and shall notify the other parties to this Escrow Agreement in writing of any such delay or failure promptly after the commencement of the event relied upon for its delay or failure to comply with its obligations. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF the parties hereto have executed this Escrow Agreement to be effective as of the date first above written. [_________________]2 By: ----------------------------------------- Name: Title: - -------------------------------------------------------------------------------- TAX CERTIFICATION: Taxpayer ID#: 47-0255140 NOTE: THE FOLLOWING CERTIFICATION SHALL BE USED BY AND FOR A U.S. RESIDENT ONLY. NON-RESIDENTS MUST USE AND PROVIDE FORM W8-BEN - --------------------------- Customer is a (check one): X Corporation ___ Municipality ___Partnership ___ Non-profit or Charitable Org - ---- ___ Individual ___ REMIC ___ Trust ___ Other: Limited Liability Company Under the penalties of perjury, the undersigned certifies that: (1) the entity is organized under the laws of the United States; (2) the number shown above is its correct Taxpayer Identification Number (or it is waiting for a number to be issued to it); and (3) it is not subject to backup withholding because: (a) it is exempt from backup withholding or (b) it has not been notified by the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified it that it is no longer subject to backup withholding. (If the entity is subject to backup withholding, cross out the words after the (3) above.) Investors who do not supply a tax identification number will be subject to backup withholding in accordance with IRS regulations. - -------------------------------------------------------------------------------- Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. ENRON CORP. By: ----------------------------------------- Name: George M. McCormick III Title: Managing Director, Corporate Development - -------------------------------------------------------------------------------- TAX CERTIFICATION: Taxpayer ID#: 20-1275050 -------------------------------------- NOTE: THE FOLLOWING CERTIFICATION SHALL BE USED BY AND FOR A U.S. RESIDENT ONLY. NON-RESIDENTS MUST USE AND PROVIDE FORM W8-BEN - ----------------------- Customer is a (check one): ___ Corporation ___ Municipality ___Partnership ___ Non-profit or Charitable Org ___ Individual ___ REMIC ___ Trust X Other: LIMITED LIABILITY COMPANY ----- Under the penalties of perjury, the undersigned certifies that: (1) the entity is organized under the laws of the United States; (2) the number shown above is its correct Taxpayer Identification Number (or it is waiting for a number to be issued to it); and (3) it is not subject to backup withholding because: (a) it is exempt from backup withholding or (b) it has not been notified by the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified it that it is no longer subject to backup withholding. (If the entity is subject to backup withholding, cross out the words after the (3) above.) Investors who do not supply a tax identification number will be subject to backup withholding in accordance with IRS regulations. - -------------------------------------------------------------------------------- Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. CCE HOLDINGS, LLC By: ----------------------------------------- Name: Thomas F. Karam Title: President - -------------------------------------------------------------------------------- TAX CERTIFICATION: Taxpayer ID#: NOTE: THE FOLLOWING CERTIFICATION SHALL BE USED BY AND FOR A U.S. RESIDENT ONLY. NON-RESIDENTS MUST USE AND PROVIDE FORM W8-BEN - ----------------------- Customer is a (check one): ___ Corporation ___Municipality ___ Partnership ___ Non-profit or Charitable Org ___ Individual ___ REMIC ___ Trust Other: ---- Under the penalties of perjury, the undersigned certifies that: (1) the entity is organized under the laws of the United States; (2) the number shown above is its correct Taxpayer Identification Number (or it is waiting for a number to be issued to it); and (3) it is not subject to backup withholding because: (a) it is exempt from backup withholding or (b) it has not been notified by the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified it that it is no longer subject to backup withholding. (If the entity is subject to backup withholding, cross out the words after the (3) above.) Investors who do not supply a tax identification number will be subject to backup withholding in accordance with IRS regulations. - -------------------------------------------------------------------------------- Note: The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. PENSION BENEFIT GUARANTY CORPORATION By: ----------------------------------------- Name: James J. Keightley Title: General Counsel SCHEDULE I ESCROW AGENT FEE SCHEDULES ================================================================================ SCHEDULE OF FEES FOR THE ESCROW AGENT'S SERVICES ================================================================================ NEW ACCOUNT ACCEPTANCE FEE..........................................$750 WAIVED Payable upon Account Opening MINIMUM ADMINISTRATIVE FEE................................................$3,500 Payable Upon Account Opening and in Advance for each year in which we act as Escrow Agent ACTIVITY FEES: DISBURSEMENTS Per Check....................................................................$35 Per Wire U.S.....................................$35 International..........................$100 RECEIPTS Per Check....................................................................$10 Per Wire.....................................................................$10 INVESTMENTS Per directed buy/sell).......................................................$50 LEGAL EXPENSES:..........................................................AT COST There will be no legal expenses if this Escrow Agreement is employed without substantial substantive amendments. A New Account Acceptance Fee will be charged for the Bank's review of this Escrow Agreement along with any related account documentation. A one (1) year Minimum Administrative Fee will be assessed for any account which is funded. The account will be invoiced in the month in which the account is opened and annually thereafter. Payment of the invoice is due 30 days following receipt. The Administrative Fee will cover a maximum of fifteen (15) annual administrative hours for the Bank's standard escrow services including account setup, safekeeping of assets, investment of funds, collection of income and other receipts, preparation of statements comprising account activity and asset listing, and distribution of assets in accordance with the specific terms of this Escrow Agreement. EXTRAORDINARY SERVICES AND OUT-OF POCKET EXPENSES: After this Escrow Agreement is executed and the escrow account is funded with the Deposit, any additional services beyond our standard services as specified above, such as annual administrative activities in excess of fifteen (15) hours and all reasonable and documented out-of-pocket expenses including reasonable attorney's fees will be considered extraordinary services for which related costs, transaction charges, and additional fees will be billed at the Bank's standard rate. MODIFICATION OF FEES: Circumstances may arise necessitating a change in the foregoing fee schedule. The Bank will attempt at all times, however, to maintain the fees at a level which is fair and reasonable in relation to the responsibilities assumed and the duties performed. ASSUMPTIONS: o The escrow deposit shall be continuously invested in JPMorgan US Govt. #220 Money Market Fund. The Minimum Administrative Fee would include A SUPPLEMENTAL CHARGE OF 50 BASIS POINTS on the escrow deposit amount if another investment option is chosen. o The account will be invoiced in the month in which the account is opened and annually thereafter. o Payment of the invoice is due 30 days following receipt. SCHEDULE II TELEPHONE NUMBER(S) FOR CALL-BACKS AND PERSON(S) DESIGNATED TO CONFIRM FUNDS TRANSFER INSTRUCTIONS (Need at least three individuals from each party) IF TO SELLER: NAME TELEPHONE ---- --------- 1. Mary Perkins (713) 853-3172 2. Cathy Moehlrnan (713) 853-3353 3. Carol McSpadden (713) 853-6632 4. Sam Round (713) 853-7465 IF TO PURCHASER: NAME TELEPHONE ---- --------- 1. Richard N. Marshall (570) 829-8795 2. Michael J. McLaughlin (570) 829-8919 IF TO PBGC: NAME TELEPHONE ---- --------- 1. James J. Keightley (202) 326-4020 2. John A. Menke (202) 326-4020 Telephone call-backs shall be made to Seller or Purchaser if joint instructions are required pursuant to this Escrow Agreement. ______________________________ 1 Bank to be a national or state bank having assets of $100,000,000,000 or more, as mutually agreed by Seller and Purchaser. 2 To be determined, upon mutual agreement between Seller and Purchaser. EX-99 5 exhibit99a.txt PRESS RELEASE 9/10/04 Exhibit 99.a 04-17 Investor Relations Media Relations Southern Union Company Southern Union Company John F. Walsh Jennifer K. Cawley Director of Investor Relations Vice President of Corporate 570-829-8662 Communications 570-829-8839 COURT APPROVES SOUTHERN UNION/GE COMMERCIAL FINANCE ACQUISITION OF CROSSCOUNTRY ENERGY WILKES-BARRE, PA. (BUSINESS WIRE) - September 10, 2004 - Southern Union Company ("Southern Union" or the "Company") (NYSE: SUG) announced today that the U.S. Bankruptcy Court for the Southern District of New York (the "Court") issued a Final Sale Order approving the Purchase Agreement, as amended, between CCE Holdings, LLC ("CCE Holdings"), a joint venture of Southern Union and GE Commercial Finance's Energy Financial Services, and Enron Corp. and its affiliates (collectively "Enron") to acquire 100% of the equity interests of CrossCountry Energy, LLC ("CrossCountry"). The total transaction is valued at $2.45 billion, including the assumption of certain consolidated debt. The acquisition is subject to satisfaction of certain approvals and other closing conditions and is expected to close no later than mid-December. Thomas F. Karam, President and Chief Operating Officer of Southern Union, stated, "We are happy to have finally reached the end of the auction process. Now the real effort begins as we work to close and then successfully integrate the acquisition. We very much look forward to working with the CrossCountry team to operate these superior assets. We are equally delighted to have such a strong equity partner as GE Commercial Finance." "This transaction is a great illustration of our strategy to invest in quality energy assets, from wellhead to wall socket," said Alex Urquhart, President and Chief Executive Officer of GE Commercial Finance's Energy Financial Services business. "Acquiring this interest in CrossCountry with Southern Union also demonstrates our commitment to supporting leading companies in the industry, across the entire energy spectrum." CrossCountry holds interests in and operates Transwestern Pipeline Company, Citrus Corp. and Northern Plains Natural Gas Company - which make up Enron's North American interstate natural gas pipeline system. The pipeline system owned or operated by CrossCountry is comprised of approximately 9,700 miles of pipeline and approximately 8.6 Bcf/d of natural gas capacity. Southern Union will provide further information on the acquisition during a public webcast and conference call in the near future. The Company will issue advance notice of the webcast and conference call via news release. ABOUT GE COMMERCIAL FINANCE ENERGY FINANCIAL SERVICES Based in Stamford, Conn., GE Commercial Finance's Energy Financial Services (EFS) provides enterprise financial solutions to the global energy industry from wellhead to wall socket. EFS's more than 200 professionals provide financial products that span the capital structure, including structured equity, leveraged leasing, partnerships, project finance and broad-based commercial finance. GE Commercial Finance is a global, diversified financial services company with assets of over US$220 billion. GE (NYSE: GE) is a diversified technology, media and financial services company dedicated to creating products that make life better. GE operates in more than 100 countries and employs more than 300,000 people worldwide. For more information, visit WWW.GE.COM. ABOUT SOUTHERN UNION COMPANY Southern Union Company, headquartered in Wilkes-Barre, Pennsylvania, is engaged primarily in the transportation and distribution of natural gas. Through its Panhandle Energy subsidiary, the Company owns and operates Panhandle Eastern Pipe Line Company, Trunkline Gas Company, Sea Robin Pipeline Company, Trunkline LNG Company and Southwest Gas Storage Company. Collectively, the pipeline assets operate more than 10,000 miles of interstate pipelines that transport natural gas from the Gulf of Mexico, South Texas and the Panhandle regions of Texas and Oklahoma to major U.S. markets in the Midwest and Great Lakes region. Trunkline LNG, located in Lake Charles, Louisiana, is the nation's largest liquefied natural gas import terminal. Through its local distribution companies, Missouri Gas Energy, PG Energy and New England Gas Company, Southern Union also serves nearly one million natural gas end-user customers in Missouri, Pennsylvania, Massachusetts and Rhode Island. For more information, visit WWW.SOUTHERNUNIONCO.COM. FORWARD-LOOKING INFORMATION This release and other reports and statements issued or made from time to time contain certain "forward-looking statements" concerning projected future financial performance, expected plans or future operations. Southern Union cautions that actual results and developments may differ materially from such projections or expectations. Investors should be aware of important factors that could cause actual results to differ materially from the forward-looking projections or expectations. These factors include, but are not limited to: cost of gas; gas sales volumes; gas throughput volumes and available sources of natural gas; discounting of transportation rates due to competition; customer growth; abnormal weather conditions in Southern Union's service territories; impact of relations with labor unions of bargaining-unit employees; the receipt of timely and adequate rate relief and the impact of future rate cases or regulatory rulings; the outcome of pending and future litigation; the speed and degree to which competition is introduced to Southern Union's gas distribution business; new legislation and government regulations and proceedings affecting or involving Southern Union; unanticipated environmental liabilities; ability to comply with or to challenge successfully existing or new environmental regulations; changes in business strategy and the success of new business ventures, including the risks that the business acquired and any other businesses or investments that Southern Union has acquired or may acquire may not be successfully integrated with the business of Southern Union; exposure to customer concentration with a significant portion of revenues realized from a relatively small number of customers and any credit risks associated with the financial position of those customers; factors affecting operations such as maintenance or repairs, environmental incidents or gas pipeline system constraints; Southern Union's, or any of its subsidiaries, debt securities ratings; the economic climate and growth in the energy industry and service territories and competitive conditions of energy markets in general; inflationary trends; changes in gas or other energy market commodity prices and interest rates; the current market conditions causing more customer contracts to be of shorter duration, which may increase revenue volatility; the possibility of war or terrorist attacks; the nature and impact of any extraordinary transactions such as any acquisition or divestiture of a business unit or any assets. ##### -----END PRIVACY-ENHANCED MESSAGE-----