AMENDMENT NO.1 TO PURCHASE AND SALE AGREEMENT
Exhibit
2.1
EXECUTION
VERSION
AMENDMENT NO.1 TO PURCHASE
AND SALE AGREEMENT
This Amendment No. 1 dated as of
November 25, 2009 (this “Amendment”)
to that certain Purchase and Sale Agreement, dated as of August 9, 2009 (the
“Purchase
Agreement”), is by and among LS Power Partners, L.P., LS Power
Associates, L.P., LS Power Equity Partners, L.P., LS Power Equity Partners PIE
I, L.P., LSP Gen Investors, L.P., Port River, LLC, Valley Road, LLC, Dos Xxxx,
LLC, Dynegy Inc., Dynegy Gen Finance Co, LLC, Southwest Power Partners, LLC,
Riverside Generation, Inc., Dynegy Renaissance Power, Inc., Bluegrass
Generation, Inc., Dynegy Midwest Generation, Inc., RRP Company, Dynegy Power
Services, Inc., and Dynegy Falcon Holdings Inc. and shall amend the Purchase
Agreement. Unless otherwise defined in this Amendment, capitalized terms used in
this Amendment shall have the respective meanings assigned to them in the
Purchase Agreement.
WHEREAS, the Buyers, the Seller Parent
and the Sellers desire to modify and amend the Purchase Agreement as more fully
described herein; and
WHEREAS, each of the signatories hereto
is a party to the Purchase Agreement.
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Buyers and the Sellers hereby
agree as follows:
1.
Amendments.
1.1. Section
1.1.
(a) Section
1.1 of the Purchase Agreement is hereby amended by adding the following defined
terms in alphabetical order:
““Amendment No. 1” means
Amendment No. 1 dated as of November 25, 2009 to this Agreement.
“Mutual Release” means the
agreement attached as Schedule A to Amendment No. 1.
“Riverside Agreement” means the
agreement attached as Schedule B to Amendment No. 1.
“Specified Buyer Events” means
those matters described on Schedule D to Amendment No. 1.
“Specified Events Agreement”
means the agreement attached as Schedule C to Amendment No. 1.
“Specified Seller Events” means
those matters described on Schedule E to Amendment No. 1.”
(b) The
definition of “Transaction Documents” in Section 1.1 of the Purchase Agreement
is amended in its entirety to read as follows:
““Transaction Documents” means
(i) this Agreement, (ii) the New Shareholder Agreement, (iii) the Amended
Registration Rights Agreement, (iv) the Senior Notes, (v) the Senior Notes
Registration Rights Agreement, (vi) the Note Purchase Agreement, (vii) the
Mutual Release, (viii) the Riverside Agreement, and (ix) the Specified Events
Agreement.”
1.2. Section 2.2. Section
2.2(a) of the Purchase Agreement is hereby amended by deleting the first
sentence thereof and replacing such sentence in its entirety with the
following:
“LS Power
Purchaser I shall pay an estimated purchase price in cash equal to (i)
$650,250,000 plus (ii) the
Estimated Group I Companies Net Working Capital plus (iii)
the Estimated Group I Companies Required Maintenance Amount minus (iv)
$51,500,000 (collectively, the “Estimated Group I Companies Purchase
Price”).”
1.3. Section 3.1. Section
3.1 of the Purchase Agreement is hereby amended by deleting the first sentence
thereof and replacing it in its entirety with the following:
“Upon the
terms and subject to the satisfaction of the conditions contained in this
Agreement, the closing of the transactions contemplated by this Agreement (the
“Closing”) shall take
place at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, at 10:00 a.m., local time, on November 30, 2009 or at such other place
or time as the parties may agree in writing.”
1.4. Section 3.2. Section
3.2 of the Purchase Agreement is hereby amended by deleting the “and” at the end
of subsection (k) thereof, deleting the period at the end of subsection (l)
thereof and replacing it with a semicolon, and adding the following as
subsections (m), (n) and (o):
“(m)
an executed counterpart by the Seller Parent and the Sellers to the Mutual
Release;
(n) an
executed counterpart by the Seller Parent, Riverside Generation, Inc., and
Riverside/Foothills to the Riverside Agreement; and
(o) an
executed counterpart by the Seller Parent and the Sellers to the Specified
Events Agreement.”
1.5. Section 3.3. Section
3.3 of the Purchase Agreement is hereby amended by deleting the “and” at the end
of subsection (j) thereof, deleting the period at the end of subsection (k)
thereof and replacing it with a semicolon, and adding the following as
subsections (l), (m) and (n):
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“(l) an
executed counterpart by the Buyers to the Mutual Release;
(m) an
executed counterpart by Port River, LLC to the Riverside Agreement;
and
(n) an
executed counterpart by the Buyers to the Specified Events
Agreement.”
1.6. Section 7.2. Section
7.2 of the Purchase Agreement is hereby amended by adding the following as a new
paragraph following subsection (i) thereof:
“Notwithstanding
anything to the contrary in this Agreement, none of the Specified Seller Events
shall be considered in determining whether any condition set forth in this
Section 7.2 has failed to have been satisfied.”
1.7. Section 7.3. Section
7.3 of the Purchase Agreement is hereby amended by adding the following as a new
paragraph following subsection (f) thereof:
“Notwithstanding
anything to the contrary in this Agreement, none of the Specified Buyer Events
shall be considered in determining whether any condition set forth in this
Section 7.3 has failed to have been satisfied.”
1.8. Section 8.1. Section
8.1 of the Purchase Agreement is hereby amended by adding the following as a new
paragraph following subsection (d) thereof:
“Notwithstanding
anything to the contrary in this Agreement, (i) none of the Seller Parent and
the Sellers shall have any obligation to indemnify or hold harmless any Person
under this Section 8.1 with regard to, or in respect of any Indemnifiable Losses
resulting from or arising out of, any Specified Seller Event, (ii) no Specified
Seller Event shall be the basis for any breach or inaccuracy of any
representation or warranty, or any breach or failure to comply with any
covenant, of the Seller Parent or the Sellers in this Agreement, and (iii) no
Specified Seller Event (and no Indemnifiable Losses resulting from or arising
out of any Specified Seller Event) shall constitute an Excluded Liability or a
Casualty Event under this Agreement.”
1.9. Section 8.2. Section
8.2 of the Purchase Agreement is hereby amended by adding the following as a new
paragraph following subsection (b) thereof:
“Notwithstanding
anything to the contrary in this Agreement, (i) none of the Buyers shall have
any obligation to indemnify or hold harmless any Person under this Section 8.2
with regard to, or in respect of any Indemnifiable Losses resulting from or
arising out of, any Specified Buyer Event and (ii) no Specified Buyer Event
shall be the basis for any breach or inaccuracy of any representation or
warranty, or any breach or failure to comply with any covenant, of the Buyers in
this Agreement.”
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1.10. Section 9.1. Section
9.1(b) of the Purchase Agreement is hereby amended by deleting the phrase “by
November 30, 2009” from the second line of such section and replacing it with
the phrase “by 11:59 p.m., New York City time, on November 30,
2009.”
2.
No Knowledge of Material
Events. As of the date of this Amendment, no Buyer has knowledge of any
event or events that would (or would reasonably be expected to), individually or
in the aggregate, prevent the fulfillment at or prior to the Closing Date of any
condition set forth in Section 7.2 of the Purchase Agreement, other than
conditions requiring the delivery of documents at Closing (it being understood
and agreed that, pursuant to this Amendment, the Specified Seller Events are not
to be considered in determining the satisfaction or failure of any such
condition); provided, however,
that the Seller Parent and the Sellers acknowledge that the foregoing does not
waive or modify any rights that the Buyers may have after the Closing under the
Purchase Agreement (including, but not limited to, pursuant to Section 6.9 and
Article VIII thereof) with respect to the items set forth on Schedule
F.
3.
Governing
Law; Consent to Jurisdiction; Etc. This Amendment shall be
governed by, and construed in accordance with, Section 10.5 of the Purchase
Agreement.
4.
No Other Amendments;
Confirmation. Except as expressly amended, modified and
supplemented by this Amendment, the provisions of the Purchase Agreement are and
shall remain in full force and effect.
5.
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.
[Signature pages
follow.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed by
their respective duly authorized officers as of the date first written
above.
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LS
POWER PARTNERS, L.P.
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By:
LS Power Development, LLC, its general partner
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| /s/ Xxx Xxxxxxx | |
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Name:
Xxx Xxxxxxx
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Title:
Assistant Secretary
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LS
POWER ASSOCIATES, L.P.
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By:
LS Power Development, LLC, its general partner
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| /s/ Xxx Xxxxxxx | |
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Name:
Xxx Xxxxxxx
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Title: Assistant
Secretary
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LS
POWER EQUITY PARTNERS, L.P.
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By:
LS Power Partners, L.P., its general partner
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By:
LS Power Development, LLC, its general partner
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| /s/ Xxx Xxxxxxx | |
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Name:
Xxx Xxxxxxx
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Title:
Assistant Secretary
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[Signature Page to Amendment No. 1]
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LS
POWER EQUITY PARTNERS PIE I, L.P.
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By:
LS Power Partners, L.P., its general partner
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By:
LS Power Development, LLC, its general partner
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| /s/ Xxx Xxxxxxx | |
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Name:
Xxx Xxxxxxx
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Title:
Assistant Secretary
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LSP
GEN INVESTORS, L.P.
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By:
LS Power Partners, L.P., its general partner
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By:
LS Power Development, LLC, its general partner
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| /s/ Xxx Xxxxxxx | |
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Name:
Xxx Xxxxxxx
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Title:
Assistant Secretary
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[Signature Page to Amendment No. 1]
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VALLEY
ROAD, LLC
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| /s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
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Title:
Executive Vice-President
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PORT
RIVER, LLC
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| /s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
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Title:
Executive Vice-President
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DOS
XXXX, LLC
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| /s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
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Title:
Executive Vice-President
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[Signature Page to Amendment No. 1]
| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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DYNEGY
GEN FINANCE CO, LLC
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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SOUTHWEST
POWER PARTNERS, LLC
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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RIVERSIDE
GENERATION, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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[Signature Page to Amendment No. 1]
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DYNEGY
RENAISSANCE POWER, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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BLUEGRASS
GENERATION, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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DYNEGY
MIDWEST GENERATION, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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RRP
COMPANY
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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[Signature Page to Amendment No.
1]
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DYNEGY
POWER SERVICES, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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DYNEGY
FALCON HOLDINGS, INC.
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| /s/ Xxxxx Xxxxxx | ||
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Name:
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Xxxxx
Xxxxxx
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Title:
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Vice
President, Strategic Planning
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and
Corporate Business Development
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[Signature Page to Amendment No. 1]
