EXECUTION COPY
AMENDMENT NO. 1
Dated as of December 20, 2001
to
AGREEMENT FOR LEASE
Dated as of July 20, 2001
between
WYGEN FUNDING, LIMITED PARTNERSHIP
as Owner
and
BLACK HILLS GENERATION, INC.
as Agent
This Amendment No. 1 has been manually executed in 10 counterparts, numbered
consecutively from 1 through 10, of which this is No. ____. To the extent, if
any, that this Amendment constitutes chattel paper (as such term is defined in
the Uniform Commercial Code as in effect in any jurisdiction), no security
interest in this Amendment may be created or perfected through the transfer or
possession of any counterpart other than the original executed counterpart which
shall be the counterpart identified as counterpart No.1.
This Amendment No. 1 to Agreement for Lease ("this Amendment No. 1"),
dated as of December 20, 2001, between WYGEN FUNDING, LIMITED
PARTNERSHIP, a Delaware limited partnership ("Owner"), and BLACK HILLS
GENERATION, INC., a Wyoming corporation ("Agent"), amending the Agreement
for Lease referred to below.
WHEREAS, Owner and Agent have heretofore entered into an Agreement for
Lease dated as of July 20, 2001 (the "Original Agreement for Lease") (the
Original Agreement for Lease, as amended hereby and as may hereafter be further
amended, modified, supplemented or restated from time to time, the "Agreement
for Lease"); and
WHEREAS, Owner and Agent wish to further amend the Agreement for Lease
as hereinafter provided;
NOW, THEREFORE, Owner and Agent hereby agree that the Agreement for
Lease is amended as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Original Agreement for Lease.
SECTION 2. AMENDMENTS. The Original Agreement for Lease is hereby amended
as follows:
2.1 Subsection 1.1 of the Agreement for Lease is amended by deleting the
definition of "Project Contracts" and inserting the following in its place:
"Project Contracts: The EPC Contract, the GE Turbine Contract,
the Ground Lease, the Performance Bonds (from and after the
date each such Performance Bond becomes effective), the Letter
of Credit, the Retention Letter of Credit (if any), the EPC
Subcontracts (from and after the date each such EPC
Subcontract becomes effective), the Easement Agreement, the
Required Easement Agreements (from and after the date each
such Required Easement Agreement becomes effective), the
Interconnection Agreement, the Services Agreement, the
Facility Support Agreement, the Fuel Supply Agreements and the
Power Purchase Agreements, as each of the same may be amended,
restated, modified or supplemented from time to time as
permitted hereunder. A list of the Project Contracts in
existence on the date hereof is attached as Exhibit E hereto."
2.2 Paragraph (a) of Section 15 of the Agreement for Lease is amended by
deleting such paragraph in its entirety and inserting the following in its
place:
"(a) If (1) an Event of Loss shall occur and (2) such Event of
Loss does not arise as a result of Agent's actions or the failure of
Agent to act or Agent's fraudulent act, illegal act, misapplication of
funds or willful misconduct, then in any such event, (A) Agent shall
promptly notify Owner in writing of such event,
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(B) Agent shall either (x) promptly commence the restoration and
reconstruction of the Project or (y) promptly pay to Owner, an amount
equal to the Acquisition Cost (less, to the extent any such amounts
have been paid, the amount of insurance or condemnation proceeds
received by Owner as a result of such Event of Loss); provided,
however, that any such election to restore and reconstruct the Project
shall be subject to the written consent of Owner and Assignee;
provided, further, that if Owner and Assignee shall fail to grant such
consent to restore and reconstruct the Project, Owner shall have the
right to terminate this Agreement and/or Owner's obligations to make
any further advances hereunder, whereupon Agent shall be released from
all obligations hereunder (other than insurance and condemnation
proceeds, if any, received by Agent and indemnity obligations for which
Owner has full recourse against Agent in accordance with the terms of
this Agreement), and Agent shall transfer to Owner all of Agent's
right, title and interest in and to the Project. In the event Agent
elects to restore and reconstruct the Project pursuant to the
immediately preceding sentence, (i) Owner shall continue to be
obligated to make advances to Agent pursuant to the terms of Section 5,
6 and 7 of this Agreement, (ii) any insurance or condemnation proceeds
payable with respect to such Event of Loss will be held in the
Operating Account for reimbursement to Agent during the course of
Agent's restoration and reconstruction of the Project pursuant to the
provisions of Section 5, 6 and 7 of this Agreement, and (iii) any such
insurance or condemnation proceeds received by Owner shall reduce
Acquisition Cost by the amount of such proceeds. In the event Agent
elects to pay Owner the amount described in clause (2)(B)(y) of the
first sentence of this paragraph (a), upon receipt of such amount,
Owner shall deliver to Agent a xxxx of sale, deed or similar document
assigning and conveying to Agent all of Owner's right, title and
interest in and to the Project, the Ground Lease, the Easements, the
EPC Contract and, if applicable, any Project Contract and, to the
extent transferable, any title insurance policies issued to Owner, and
when Owner transfers title, such transfer shall be on an as-is,
non-installment sale basis, without warranty by, or recourse to, Owner.
Insurance and condemnation proceeds, if any, received by Owner in
excess of the Acquisition Cost plus the Unrecovered Liabilities and
Judgments, so long as no Event of Default or Event of Project
Termination has occurred and is continuing, shall be paid by Owner to
Agent. In addition, Agent will use its best efforts to prevent an Event
of Loss, including, without limitation promptly and with due diligence
to contest such action by all appropriate proceedings at law and in
equity (including the filing of all appeals), to institute claims and
counterclaims against third parties and to do all things necessary or
desirable to preserve the rights and interests of Owner in the
Project."
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SECTION 3. MISCELLANEOUS.
3.1 Except as provided herein, all provisions, terms and conditions of the
Agreement for Lease shall remain in full force and effect. As amended hereby,
the Agreement for Lease is ratified and confirmed in all respects.
3.2 This Amendment No. 1 shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to the conflict of law rules thereof (other than Section 5-1401
of the New York General Obligations Law).
3.3 This Amendment No. 1 may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
taken together shall be deemed to be one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 the
day and year first above written.
WYGEN FUNDING, LIMITED PARTNERSHIP
By: WYGEN CAPITAL, INC.
its General Partner
By: _____________________________
Name:
Title:
BLACK HILLS GENERATION, INC.
By: ______________________________
Name:
Title:
