![]() | 30 Ivan Allen Jr. Blvd. NW Bin SC1104 Atlanta, Georgia 30308 |
1. | The definitions of “Closing Indebtedness” and “Closing Working Capital” set forth in Section 1.01(a) of the MIPA are hereby deleted in their entirety and replaced as follows: |
2. | Section 2.02(a) of the MIPA is hereby deleted in its entirety and replaced as follows: |
3. | Section 6.01(a), (b), and (c) of the MIPA are hereby amended by replacing the term “Closing Date” with the term “Closing” as used therein. |
4. | Section 6.16(a) and Section 6.16(b) of the MIPA are hereby deleted in their entirety and replaced as follows: |
(a) | “Shared Assets. Seller shall, and shall cause its Affiliates to, prior to or at the Closing, assign, convey and transfer to the Company, Buyer, O&M Provider or such other party, as mutually agreed to by Buyer and Seller, free and clear of all Liens other than Permitted Liens, all of Seller’s or its Affiliates’ right, title and interest in and to the Shared Assets, other than the Excluded Assets and the Shared Assets set forth in Schedule 6.16(a). |
(b) | Shared Contracts. Seller shall, and shall cause its Affiliates to, prior to or at the Closing, assign to the Company, Buyer, O&M Provider or such other party, as mutually agreed to by Buyer and Seller, all rights under the Shared Contracts to the extent relating to the Company’s business and operations, so as to allow the assignee to continue to receive the benefit of such rights; provided, that to the extent that such assignment is prohibited by any Applicable Law or would result in a violation or breach of such Shared Contract (provided that such violation or breach has not been cured despite Seller’s commercially reasonable effort to cure such violation or breach), or would require any Governmental Authority or third party authorizations, approvals, consents or waivers, and such authorizations, approvals, consents or waivers have not been obtained (provided that Seller has used its commercially reasonable efforts to obtain such authorizations, approvals, consents or waiver), Seller shall enter into in any reasonable and lawful arrangements agreed to in writing by Buyer and designed to provide the benefits of the continued use of such Shared Contract in accordance with its terms for the Company’s business and operations.” |
5. | Notwithstanding anything to the contrary in the MIPA, the parties acknowledge and agree that care, custody and control of the Facility will be deemed to have been transferred to Buyer upon the consummation of the Closing, but that the |
6. | Interpretation and enforcement of this Letter Agreement shall be governed by the same terms and provisions as are applicable to the interpretation and enforcement of the MIPA, all as if such applicable terms and provisions of the MIPA were set forth in this Letter Agreement. |
7. | This Letter Agreement may be amended, modified or supplemented only by a written instrument duly executed by each of the parties hereto. |
SOUTHERN POWER COMPANY | ||
By: | /s/Elliott Spencer | |
Name: | Elliott Spencer | |
Title: | Senior Vice President, Chief Financial Officer and Treasurer | |
ACKNOWLEDGED AND AGREED TO THIS 24th DAY OF MAY, 2019 | |
THE CITY OF AUSTIN d/b/a AUSTIN ENERGY | |
By: | /s/Pat Sweeney |
Name: | Pat Sweeney |
Title: | Vice President, Power Production |