FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
Exhibit 2.3
CONFIDENTIAL
TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH
CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT
REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
FIRST
AMENDMENT TO PURCHASE AND SALE
AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE
AGREEMENT (this “Amendment”)
is dated and executed as of January 26, 2010, by and between Macquarie Xxxx
Power Inc., (“MCP”) a corporation
organized and existing under the laws of the State of Delaware, Integrys Energy
Services, Inc., (“IES”) a Wisconsin
corporation, and Integrys Energy Group, Inc., (“IEG”) a Wisconsin
corporation (collectively, the “Parties” and
individually, a “Party”).
BACKGROUND
WHEREAS, reference is made to
that certain Purchase and Sale Agreement (the “Agreement”), dated
December 23, 2009, between and among MCP, IES and IEG.
WHEREAS, the Parties wish to
amend certain terms of the Agreement.
NOW,
THEREFORE, the Parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms
used in this Amendment, to the extent not otherwise defined herein, have the
same meanings assigned to such terms in the Agreement, as amended
hereby.
2. AMENDMENTS
TO AGREEMENT.
2.1 Definition of “Initial
Purchase Price”
The definition of
“Initial Purchase Price” set forth in the Agreement shall be deleted in its
entirety and replaced with the following: “‘Initial
Purchase Price” means
[CONFIDENTIAL TREATMENT REQUESTED].”
2.2 Section 2.9: Exchange Traded
Transactions
The terms of
Section 2.9 shall be deleted in their entirety and replaced with the terms set
forth on Exhibit A hereto.
2.3 Section 2.16: Flattening
Trade and New Trades
The terms of
Section 2.16 shall be deleted in their entirety and replaced with the
following:
“Flattening Trades and New
Trades. On the Mirror Effective Date and on a monthly basis
thereafter until the Mirror Confirm is terminated in its entirety,
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Purchaser and
Seller shall enter into one or more physically-settled transactions under the
MCP-IES ISDA Master Agreement representing sales to Seller with respect to all
requirements of the Seller during the applicable month to purchase additional
physically-delivered electric energy, capacity, ancillary services, renewable
energy certificates, or related products (“Electricity”) or representing
purchases from Seller during such month for any excess Electricity Seller may
have in order to establish and maintain, to the extent reasonably practicable, a
flattened position in Electricity for Seller during such month (such
transactions, the “Flattening Trades”). All Flattening Trades shall
be priced using the same or equivalent index price, ISO-published price or
mutually-agreed price as specified in the relevant Mirror Transaction or
Post-Mirror Trade.”
2.4 Schedule 2.1(a)(ii)(A) –
Master Agreements
The following is
added as an additional Master Agreement on Schedule
2.1(a)(ii)(A): “Kentucky Municipal Power
Agency”
2.5 Schedule
2.2(b): Initial Purchase Price Adjustment
Paragraph 1 in
Schedule 2.2(b) is deleted in its entirety and replaced with the
following: “Initial
Purchase Price Adjustment Amount” is defined as $[CONFIDENTIAL TREATMENT
REQUESTED].”
2.6 Schedule
2.2(c): Final Purchase Price Adjustment
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(a)
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The “First
Valuation Difference” referenced in the first sentence of Paragraph 2
shall be deleted and replaced with “[CONFIDENTIAL TREATMENT
REQUESTED].”
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(b)
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The last
sentence of Paragraph 2 of the Schedule is deleted in its entirety and
replaced with the following: “For purposes hereof, the MCPI
First Valuation is [CONFIDENTIAL TREATMENT REQUESTED] and the IES First Valuation
is [CONFIDENTIAL TREATMENT REQUESTED].”
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(c)
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Paragraph 9,
“Exchange Traded Contract Adjustment,” is deleted in its entirety and
replaced with the following:
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“Exchange
Traded Contract Adjustment” means the dollar
amount (positive or negative) of the negative value of those Exchange
Traded Transactions which are natural gas forward exchange traded
transactions, calculated at the settlement price as of the close of
trading on the Relevant Exchange on the Mirror Effective
Date. For the avoidance of doubt, the parties acknowledge and
agree that the Exchange Traded Transactions referenced above do not
include power trades or option
trades.”
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3. GENERAL
PROVISIONS.
3.1 Section
Headings. Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context,
everything contained in each Section applies equally to this entire
Amendment.
3.2 Severability
of Provisions. Each provision of this Amendment will be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any specific provision.
3.3 Counterparts;
Electronic Execution. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which, when executed and delivered, will be deemed to be an original, and all
of which, when taken together, will constitute but one and the same
Amendment. Delivery of an executed counterpart of this Amendment by
facsimile or other then generally accepted means of electronic transmission
(such as portable document format (“PDF”)) will be equally as effective as
delivery of an original executed counterpart of this Amendment. Any
party delivering an executed counterpart of this Amendment by electronic means
also will deliver an original executed counterpart of this Amendment but the
failure to deliver an original executed counterpart will not affect the time of
deemed delivery, validity, enforceability, or binding effect of this
Amendment.
3.4 Reference
to Agreement; Effectiveness. The Agreement, as amended hereby,
and all other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms thereof are hereby amended so that any reference
in the Agreement or such other agreements, documents and instruments will mean a
reference to the Agreement, as amended hereby. This Amendment shall
be deemed effective on and as of the date of execution of this
Amendment. Except as hereby amended, the Agreement remains in full
force and effect, and is hereby, in all respects, ratified and
confirmed.
3.5 Successors
and Assigns. This Amendment is binding upon and will inure to
the benefit of Parties and their respective successors and assigns, subject to
the provisions of Section 10.8 of the Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed and delivered as of the
date first above written.
INTEGRYS
ENERGY SERVICES, INC.
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
MACQUARIE
XXXX POWER INC.
By:____________________________
Name: Xxxxxxxx
Xxxxxxx
Title: Executive
Director
By:____________________________
Name: Xxxxxxxx
Xxxxx
Title: Associate
Director
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EXHIBIT
A
Section
2.9 Exchange Traded
Transactions.
(a) The
Seller shall request of the Relevant Exchange (the “Exchange Request”)
that the Exchange Traded Transactions be transferred to the Purchaser in
accordance with the rules and procedures of the Relevant Exchange (if
applicable) from the commodity futures brokerage accounts of the Seller listed
on Schedule
2.9(a) attached hereto, carried by the futures commission merchants (each
an “FCM”)
listed thereon, to the account of the Purchaser as set forth below, and the
Purchaser shall assume each Exchange Traded Transaction, by a novation effected
pursuant to the applicable rules of the Relevant Exchange, if
applicable. The Exchange Request shall be in form and substance
reasonably satisfactory to the Seller and the Purchaser. To the extent
that the transfer or conveyance of any of the Exchange Traded Transactions to
the Purchaser requires the Consent of a Third Party or Governmental
Authorization, the Seller and the Purchaser shall use commercially reasonable
efforts, and cooperate with each other, to obtain promptly the relevant Consent
or Governmental Authorization prior to the Mirror Effective Date.
(i) Exchange Power
Forwards. On the Mirror Effective Date, Exchange Traded
Transactions which are power forward transactions shall be transferred to
Purchaser in one account at historical (original) prices via an ex-pit book
transfer in accordance with the applicable rules of the Relevant
Exchange. The Parties acknowledge that the Relevant Exchange shall
transfer such transactions at the settlement price as of the close of trading on
the Relevant Exchange on the Mirror Effective Date. Any difference
between such transfer calculations shall be resolved by mutual agreement between
the Parties and their respective brokerage accounts, such that the Parties are
kept whole to the Relevant Exchange. The Purchase Price will not
require adjustment due to the transfer of Exchange Power Forwards.
(ii) Exchange Power
Options. On the Mirror Effective Date, Exchange Traded
Transactions which are power option transactions shall be transferred to
Purchaser in one account at historical (original) strike prices with no
additional premium via an ex-pit book transfer in accordance with the applicable
rules of the Relevant Exchange. The Purchase Price will not require
adjustment due to the transfer of Exchange Power Options.
(iii) Exchange Gas
Options. On the Mirror Effective Date, Exchange Traded
Transactions which are natural gas option transactions with contract months on
or after March 2010 shall be transferred from Seller to Purchaser through the
execution of a new exchange-cleared options between Seller and Purchaser, such
that the transactions will be transferred to Purchaser at the original strike
prices of such transactions with no added premium. The Purchase Price will not
require adjustment due to the transfer of Exchange Gas Options.
(iv) Exchange Gas
Forwards. On February 1, 2010, Exchange Traded Transactions
which are natural gas forward transactions with contract months on or after
March 2010 shall be transferred from Seller to Purchaser through the execution
of a new exchange-cleared swap between Seller and Purchaser, such that the
transactions will be transferred to Purchaser at the settlement price as of the
close of trading on the Relevant Exchange on January
6
29,
2010. The Purchase Price will be adjusted for such transactions in
accordance with the Final Purchase Price Adjustment.
(b) If
following the Mirror Effective Date this Agreement is terminated in accordance
with the terms and conditions set forth in Article VIII, then with respect to
Exchange Power Forwards and
Exchange Power Options, on the Business Day immediately following the
date that this Agreement is terminated, the Purchaser shall submit to the
Relevant Exchange an Exchange Request that such Exchange Traded Transactions, or
trades cleared on the Relevant Exchange that are substantially similar to such
Exchange Traded Transactions (each a “Substitute Exchange Traded
Transaction”) be transferred to the Seller in accordance with the rules
and procedures of the Relevant Exchange from the commodity futures brokerage
accounts of the Purchaser listed on Schedule 2.9(b)
attached hereto, carried by each FCM listed thereon, to the account of the
Seller via an ex-pit, ex-Ring or ex-order book transfer, and the Seller shall
assume each Substitute Exchange Traded Transaction, by a novation effected
pursuant to the applicable rules of the Relevant Exchange. Each such
transfer pursuant to this Section 2.9(b) shall be effected at the historic
(original) price. The Exchange Request shall be in same form and have the
same substance as that which was provided to the Relevant Exchange under Section
2.9(a).
(c) If
following the Mirror Effective Date this Agreement is terminated in accordance
with the terms and conditions set forth in Article VIII, then with respect to
Exchange Gas Options and
Exchange Gas Forwards, on the Business Day immediately following the date
that this Agreement is terminated, the Purchaser and Seller shall enter into
equal and off-setting exchange-cleared option and swap transactions,
respectively, such that the Exchange Gas Options and Exchange Gas Forwards
positions are transferred back to Seller. Each such transfer of
Exchange Gas Options pursuant to this Section 2.9(c) shall be effected at the
original strike prices of such transactions (with no premium payable), and each
such transfer of Exchange Gas Forwards pursuant to this Section 2.9(c) shall be
effected at the settlement price as of the close of trading on the Relevant
Exchange on the trading date immediately preceding the date of such
transfer. Other than as provided in Article VIII, the Parties intend
that no additional consideration will be paid in respect of the Substitute
Exchange Traded Transactions.
