Exhibit 2.3
AMENDMENT TO THE
INVESTMENT AND PURCHASE AGREEMENT
This Amendment to the Investment and Purchase Agreement (this
"AMENDMENT") is made and entered into on February 23, 2004, by and between
XXXXXXXXX HOLDING CORPORATION, a Delaware corporation ("PURCHASER"), and COVANTA
ENERGY CORPORATION, a Delaware corporation ("COMPANY"), as debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code.
WHEREAS, Purchaser and Company have entered into that certain
Investment and Purchase Agreement, dated as of December 2, 2003 (the "INVESTMENT
AND PURCHASE AGREEMENT"); and
WHEREAS, Purchaser and Company desire to amend the Investment
and Purchase Agreement in accordance with Section 12.4 thereof.
NOW THEREFORE, in consideration of the mutual promises and
covenants contained herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
Purchaser and Company do hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Investment and
Purchase Agreement.
2. AMENDMENT TO SECTION 2.2. Section 2.2 of the Investment and Purchase
Agreement is hereby amended by inserting, immediately after "The Escrow Agent
shall hold the Deposit until the earlier of (a)", the following: "joint written
instructions from Purchaser and the Company to release all or any portion of the
Deposit from the Escrow Account, at which time the Deposit will be reduced by
such amount, (b)" and replacing the "(b)" currently in that same sentence with
"(c)".
3. AMENDMENT TO SECTION 3.1. Section 3.1 of the Investment and Purchase
Agreement is hereby amended by deleting "$30,000,000" and replacing it with
"$29,825,000".
4. RATIFICATION OF THE INVESTMENT AND PURCHASE AGREEMENT. The
Investment and Purchase Agreement, as amended by this Amendment, is hereby
ratified and confirmed in all respects.
5. EFFECT ON THE INVESTMENT AND PURCHASE AGREEMENT.
(a) On and after the date hereof, each reference in the Investment
and Purchase Agreement to "this Agreement", "herein", "hereof", "hereunder" or
words of similar import shall mean and be a reference to the Investment and
Purchase Agreement as amended hereby.
(b) Except as specifically amended above in connection herewith, the
Investment and Purchase Agreement shall remain in full force and effect and is
hereby ratified and confirmed.
6. GOVERNING LAW. This Amendment shall be governed and construed in
accordance with the laws of the State of New York.
7. HEADINGS. The headings in this Amendment are for reference only, and
shall not affect the interpretation of this Amendment.
8. COUNTERPARTS. This Amendment may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the parties have executed this Amendment
on the date first above written.
XXXXXXXXX HOLDING CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
COVANTA ENERGY CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: General Counsel
