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Exhibit
10.38
FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “
Amendment ”) is made and entered into as of
December 29, 2006, by and between DQE FINANCIAL CORP., a
Delaware corporation (“ Seller ”), and BLUE WOLF
ENERGY HOLDINGS LLC, a Delaware limited liability company (“
Purchaser ”).
RECITALS:
WHEREAS, Seller and Purchaser
are parties to that certain Membership Interest Purchase Agreement
dated as of November 22, 2006 relating to Montauk Energy
Capital, LLC (the “ Purchase Agreement
”);
WHEREAS, prior to the
Closing, Seller and Purchaser desire to update certain of the
schedules to the Purchase Agreement, reduce the Unadjusted Purchase
Price, and amend the mechanism for determining the Preliminary
Purchase Price; and
WHEREAS, prior to the
Closing, Seller and Purchaser desire to amend the Purchase
Agreement to reflect the items described above, all upon the terms
and conditions set forth below.
NOW, THEREFORE, in
consideration of the mutual promises and covenants herein
contained, the Parties, intending to be legally bound hereby, agree
as follows:
1. Defined Terms .
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Purchase Agreement.
2. Update of Schedules
. The Parties hereby agree to restate Schedule 4.2, Schedule 4.4,
Schedule 4.6(a), Schedule 4.8, Schedule 4.20, Schedule 4.21 and
Schedule 8.15 of the Purchase Agreement and to replace such
schedules, respectively, with the schedules attached hereto as
Exhibit A marked as “Schedule 4.2,”
“Schedule 4.4,” “Schedule 4.6(a),”
“Schedule 4.8,” “Schedule 4.20,”
“Schedule 4.21” and “Schedule
8.15.”
3. Purchase Price
Adjustment . The definition of “Unadjusted Purchase
Price” in Section 1.1 of the Purchase Agreement is
hereby reduced by $4,500,000 (i.e., from $116,600,000 to
$112,100,000). In consideration of such reduction, Purchaser
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