XXXX AMENDMENT TO AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT OF INDIANTOWN COGENERATION, L.P.
This AMENDMENT TO AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this
"Amendment"), is made and entered into effective as of August 10, 1998, by and
among PALM POWER CORPORATION, a Delaware corporation ("Palm"), TOYAN
ENTERPRISES, a California corporation ("Toyan"), TIFD III-Y INC., a Delaware
corporation ("TIFD," and collectively with Palm and Toyan, the "Existing
Partners") and INDIANTOWN PROJECT INVESTMENT PARTNERSHIP, L.P., a Delaware
limited partnership (the "New Partner", and together with the Existing Partners,
the "Partners").
WHEREAS, the Existing Partners are parties to that certain
Amended and Restated Limited Partnership Agreement dated as of September 30,
1992 (the "Partnership Agreement"); and
WHEREAS, the Existing Partners are
partners in a Delaware limited partnership known as INDIANTOWN COGENERATION,
L.P. (the "Partnership") formed under the Partnership Agreement for the purposes
described therein; and
WHEREAS, Bechtel Generating Company, Inc. ("BGCI") owns
all of the capital stock of Palm; and WHEREAS, pursuant to that certain Purchase
Agreement dated as of March 6, 1998 (the "Purchase Agreement"), by and between
BGCI and Cogentrix Energy, Inc. ("Cogentrix"), BGCI has agreed to sell, and
Cogentrix has agreed to purchase and accept through an indirect wholly owned
subsidiary that has not yet been formed, all of the capital stock of Palm
subject to the terms and conditions set forth in the Purchase Agreement (such
sale, the "Proposed Cogentrix Sale"); and
WHEREAS, in connection with the
Proposed Cogentrix Sale, Palm, Toyan and TIFD contemporaneously herewith are
entering into that certain Cogentrix Amendment to Amended and Restated Limited
Partnership Agreement of Indiantown Cogeneration, L.P., dated as of even date
herewith (the "Cogentrix Amendment"), certain amendatory paragraphs of which are
effective only as of the time the Proposed Cogentrix Sale shall have closed; and
WHEREAS, Toyan intends to create a new Delaware corporation as a wholly-owned
subsidiary of Toyan (the "New Subsidiary") and to transfer (as an equity
contribution) a ten percent (10%) Interest in the Partnership (the "New
Subsidiary Interest") to the New Subsidiary (the "Toyan to New Subsidiary
Transfer"); and
WHEREAS, Toyan intends to, and intends to cause New Subsidiary to, form New
Partner in which Toyan would hold an approximately forty-nine and eight hundred
seventy-five thousandths percent (49.875 %) general partner interest and the New
Subsidiary would hold an approximately fifty and one hundred twenty-five
thousandths percent (50.125%) limited partner interest; and
WHEREAS, Toyan then intends to transfer a nine and ninety-five hundredths
percent (9.95%) Interest in the Partnership and its BOC Partner Rights to the
New Partner (the "Toyan to New Partner Transfer"); and WHEREAS, Toyan then
intends to cause the New Subsidiary to transfer the New Subsidiary Interest to
the New Partner (the "New Subsidiary to New Partner Transfer"); and
WHEREAS, Toyan then intends to cause the New Subsidiary to sell its interest in
the New Partner to DCC Project Finance Twelve, Inc. ("DCC XII"), a wholly-owned
subsidiary of Xxxx Commercial Credit Corporation (the "New Subsidiary to DCC XII
Transfer," and collectively with the Toyan to New Partner Transfer, the Toyan to
New Subsidiary Transfer and the New Subsidiary to New Partner Transfer, the
"Proposed Transfers"); and WHEREAS, the Partners desire to amend the Partnership
Agreement in certain respects and take other actions in connection with the
Proposed Transfers as of the time when the Proposed Transfers shall have closed,
and without regard to whether any portion of the Cogentrix Amendment is then
effective or ever will become effective (it being the Partners' intention that
if any portion of the Cogentrix Amendment and the amendments set forth in this
Amendment both become effective, then such portions of the Cogentrix Amendment
and the amendments set forth in this Amendment all shall be and remain effective
concurrently) (such date, the "Effective Date"); NOW THEREFORE in consideration
of the premises and of the mutual covenants and agreements herein, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partners intending to be legally bound, hereby agree as
follows:
Admission as Partner. As of the Effective Date, the New Partner shall be
admitted as a general partner in the Partnership and the New Partner shall
succeed to thirty-nine and nine-tenths percent (39.9%) of the capital account
balance, and to thirty-nine and nine-tenths percent (39.9%) of the Sharing
Percentage, of Toyan as of the time when the Proposed Transfers shall have
occurred.
Designation of Board of Control Authority. As of the Effective Date, in
accordance with Section 7.1(c) of the Partnership Agreement, Toyan hereby
designates that New Partner shall succeed to all of Toyan's BOC Partner Rights
at the time when the Proposed Transfers shall have occurred and the New
Partner's initial members of the Board of Control under Section 6.1(b) of the
Partnership Agreement shall be X. Xxxxxxxx Xxxxx and M. Xxxxxxx Xxxxx.
Affiliate Status. As of the Effective Date, the New Partner shall be deemed to
be an affiliate of Toyan, including for the purposes of Section 6.9(c) of the
Partnership Agreement.
Amendments to the Partnership Agreement. As of the Effective Date, the
Partnership Agreement shall be amended as follows:
a. The definition of BOC Partner set forth in Section 1.7 of the
Partnership Agreement shall be amended and restated in its entirety as follows:
""BOC Partner" means (i) each of Palm, TIFD and Indiantown
Project Investment Partnership, in each case for so long as such
Partner retains its BOC Partner Rights, (ii) any successor to the
Interest of Palm, TIFD or Indiantown Project Investment
Partnership to whom BOC Partner Rights are transferred pursuant
to Section 7.1(c), or (iii) any other General Partner to whom BOC
Partner Rights are granted by the Board of Control."
b. The definition of General Partners set forth in Section 1.7 of the
Partnership Agreement shall be amended and restated in its entirety as follows:
""General Partners" means Palm and Indiantown Project Investment
Partnership and/or any Person who, at the time of the reference
thereto, has been admitted to the Partnership as a successor to
the duties or interest of either such Person, or as a replacement
or additional general partner as provided herein, and any other
Person admitted to the Partnership as a general partner in any
such Person's capacity as a
general partner, in any case, so long as such Person has not
ceased to be a general partner hereunder."
c. The definition of Limited Partners set forth in Section 1.7 of the
Partnership Agreement shall be amended and restated in its entirety as follows:
""Limited Partners" means TIFD, Toyan and/or any Person who, at
the time of reference thereto, has been admitted to the
Partnership as a limited partner in accordance with the terms of
this Agreement, in such person's capacity as a limited partner
for so long as such Person has not ceased to be a Limited Partner
hereunder."
d. Section 1.7 of the Partnership Agreement is hereby amended to include
the following term:
""Indiantown Project Investment Partnership" means Indiantown
Project Investment Partnership, L.P., a Delaware limited
partnership."
e. Section 11.4 of the Partnership Agreement shall be amended to include
the notice address of New Partner as follows:
Indiantown Project Investment Partnership
c/o U.S. Generating Company
0000 Xxx Xxxxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the state of Delaware, without regard to any other
applicable conflict of law provisions.
Amendments. This Amendment may not be amended, altered, modified or revoked
without the prior written consent of both parties.
Headings. All headings in this Amendment are included only for convenience
and ease of reference and shall not be considered in the construction and
interpretation of any provision hereof.
Further Obligations. Each of the parties hereto agrees to execute all other
agreements, instruments and documents and to perform all further acts which may
be necessary to consummate the transactions contemplated herein.
Binding Nature and Benefit. This Amendment shall be binding upon and inure
to the benefit of each party hereto and their respective successors and
assignors.
Counterparts. This Amendment may be executed in multiple counterparts, each
of which shall be deemed an original for all purposes, but all of which together
shall constitute one and the same instrument.
Defined Terms. Capitalized terms used herein without definition shall have
the meanings specified in the Partnership Agreement.
Effectiveness. Subject to paragraphs 1, 2, 3, and 4 with respect to the
date on which certain amendatory provisions set forth herein became effective,
the Amendment shall be effective as among the Existing Partners as of the date
first above written and shall be effective as among the Existing Partners and
the New Partner as of the date this Amendment is executed by the New Partner.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and delivered.
TOYAN ENTERPRISES, a California
corporation
Dated: ___________________ By: ____________________________
Name: ___________________________
Title: __________________________
TIFD III-Y INC., a Delaware
corporation
Dated: ___________________ By:______________________________
Name: ___________________________
Title: __________________________
PALM POWER CORPORATION, a Delaware
corporation
Dated: ___________________ By:______________________________
Name: ___________________________
Title: __________________________
INDIANTOWN PROJECT INVESTMENT
PARTNERSHIP, L.P., a Delaware
limited partnership
Dated: ___________________ By: Toyan Enterprises, a
California corporation,
its general partner
By: ____________________________
Name: ___________________________
Title: __________________________
