AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO THE ASSET PURCHASE
AGREEMENT (this “ Amendment No. 1 ”), dated
as of May 12, 2008, is among Reliant Energy Wholesale
Generation, LLC, a Delaware limited liability company (“
REWG ”), Reliant Energy Asset Management, LLC, a
Delaware limited liability company (“ REAM ”),
and Nevada Power Company, an electric utility organized under the
laws of the State of Nevada (“ Purchaser ”).
REWG and REAM are also each referred to herein individually as a
“ Seller ” and collectively as the “
Sellers .” REWG and REAM, on the one hand, and
Purchaser, on the other hand, are also each referred to herein as a
“ Party ” and collectively as the “
Parties .”
WHEREAS, Sellers and Purchaser are parties to
that certain Asset Purchase Agreement, dated as of April 21,
2008 (the “ Agreement ”);
WHEREAS, capitalized terms used herein but not
defined herein shall have the meanings assigned to them in the
Agreement;
WHEREAS, the Agreement provides (a) that
Reliant Energy Services, Inc. shall assign to Purchaser that
certain Service Agreement for Long-Term Firm Point-to-Point
Transmission Service, designated as Service Agreement No. 90,
dated July 5, 2001 (the “ Transmission Services
Agreement ”) and (b) that Purchaser shall take
certain actions set forth in Section 5.1(k) of the Agreement
to make the assignment of the Transmission Services Agreement
effective, in each case prior to Closing;
WHEREAS, the Parties wish for the Transmission
Services Agreement to be terminated prior to Closing rather than
assigned; and
WHEREAS, the Parties wish to amend the Agreement
to reflect such termination.
NOW, THEREFORE, in consideration of the premises
and of the agreements contained herein, Purchaser and Sellers
hereby agree as follows:
Section 1. Amendments . Effective on
and as of the date hereof:
(a) The index of the Agreement is hereby
amended by deleting the phrase “Form of Assignment
Agreement” describing Exhibit C and replacing it
with the phrase “Form of Termination
Agreement.”
(b) Each of the definitions of “
Amended Transmission Services Agreement ,” “
Amended TSA FERC Order ,” and “ Assignment
Agreements ” in Section 1.1 of the Agreement
is hereby deleted in its entirety.
(c) Section 1.1 is hereby
amended by adding the following definition: “‘
Termination Agreement ’ is defined in
Section 2.5.1(b)(viii) .”
(d) Section 1.1 is hereby
amended by adding the following definition: “‘ TSA
Termination Order ’ is defined in
Section 5.1(k) .”
(e) Section 2.1.1 of the
Agreement is hereby amended by deleting the phrase “or shall
cause Reliant Energy Services, Inc. (with respect to the
Transmission Services Agreement) to.”
(f) Section 2.1.2 of the
Agreement is hereby amended to read in its entirety:
“Section 2.1.2 Assignment and
Assumption of Assigned Facility Agreements . On the terms and
subject to the conditions set forth in this Agreement, effective as
of the Closing, Sellers shall assign to Purchaser and Purchaser
shall assume all of Sellers’ rights under the Assigned
Facility Agreements and (a) in the case of Assigned Facility
Agreements other than the Interconnection Contracts, all of
Sellers’ obligations arising after the Closing under such
Assigned Facility Agreements, and (b) in the case of
Interconnection Contracts, all of Sellers’ obligations under
the Interconnection Contracts, other than any refund liability of
REWG to SCE pursuant to paragraph 31 of the 2003 Settlement
Agreement and the Amended and Restated 2003 Settlement Agreement,
with respect to refunds received by REWG. As of Closing, Purchaser
hereby releases, and agrees to cause its Affiliates to release
Sellers and their Affiliates, unconditionally and irrevocably, from
any and all claims, demands, causes of action, suits, damages,
attorneys’ fees, and costs or expenses of any type, whether
known or unknown, fixed or contingent, liquidated or unliquidated
of any kind or character arising from or relating in any way to the
Interconnection Contracts, other than any refund liability of REWG
to SCE pursuant to paragraph 31 of the 2003 Settlement Agreement
and the Amended and Restated 2003 Settlement Agreement, with
respect to refunds received by REWG. For the avoidance of doubt,
with respect to indemnity obligations under the Assigned Facility
Agreements (other than the Interconnection Contracts), Purchaser
shall assume liability only for events that occur after the
Closing.”
(g) The second sentence of
Section 2.4 of the Agreement is hereby amended to read
in its entirety as follows: “The Closing shall be deemed
effective as of 12:01 A.M. Las Vegas time on the day after the
Estimated Purchase Price has been paid to REWG and the Easement and
Lease Assignment and Assumption Agreement, the Bill of Sale and
Assignment and the Termination Agreement have been executed and
delivered to Purchaser.”
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(h) Section 2.5.1(b)(viii) of
the Agreement is hereby amended to read in its entirety as follows:
“A counterpart executed by Purchaser of a termination
agreement in the form of Exhibit C (the “
Termination Agreement ”), terminating the Transmission
Services Agreement.”
(i) Section 2.5.2(j) of the
Agreement is hereby amended to read in its entirety as follows:
“The Termination Agreement executed by Reliant Energy
Services, Inc.; and”
(j) Section 3.4 of the
Agreement is hereby amended by adding the phrase “ TSA
Termination Order,” after the phrase “FERC
Approval.”
(k) Section 3.13(b) of the
Agreement is hereby amended by deleting the phrase “Neither
REWG nor Reliant Energy Services, Inc. has assigned” and
replacing it with the phrase “REWG has not
assigned.”
(l) Section 4.4 of the
Agreement is amended by adding the phrase “ TSA Termination
Order,” after the phrase “FERC
Approval.”
(m) Section 4.5 of the
Agreement is hereby amended by deleting the phrase “the
Amended TSA FERC Order” and replacing it with the phrase
“the TSA Termination Order.”
(n) Section 5.1(b) of the
Agreement is amended by adding the phrase “TSA Termination
Order,” after the phrase “FERC
Approval.”
(o) Section 5.1(k) of the
Agreement is hereby amended to read in its entirety as follows:
“Prior to the Closing Date, Purchaser shall file notice of
termination of the Transmission Services Agreement with FERC
pursuant to Section 205 of the Federal Power Act and request
an effective date of termination as of the Closing Date, and FERC
shall have issued an order accepting such filing (the “
TSA Termination Order ”).”
(p) Section 6.1.4 of the
Agreement is hereby amended by deleting the phrase “the
Amended TSA FERC Order” and replacing it with the phrase
“the TSA Termination Order.”
(q) Section 6.2.4 of the
Agreement is hereby amended by deleting the phrase “the
Amended TSA FERC Order” and replacing it with the phrase
“the TSA Termination Order.”
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(r) Exhibit C to the Agreement
is hereby deleted in its entirety and replaced with the
Exhibit C attached hereto.
(s) Item 4 of
Schedule 1.1(a) to the Agreement is hereby amended to
read as follows: “[not used].”
(t) Item 9 of
Section 3.14(a) of the Sellers’ Disclosure
Schedule to the Agreement is hereby deleted.
Section 2. Representations and
Warranties of Buyer and Sellers . Buyer represents and warrants
to Sellers, and each Seller represents and warrants to Buyer, that
(a) it is duly formed, validly existing and in good standing
under the laws of the j
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