EXHIBIT B-1(ii)
EXECUTION COPY
AMENDMENT NO. 2 TO AMENDED AND
RESTATED LAKE INTEREST OPTION AGREEMENT
Amendment No. 2, dated as of December 29, 1995
("Amendment No. 2"), to Amended and Restated Lake Interest Option
Agreement, dated as of June 13, 1994, as amended by Amendment
No. 1 thereto dated as of January 1, 1995 (the Option Agreement,
as amended by Amendment No. 1, is referred to as the "Original
Agreement"), among North Canadian Resources, Inc., a Delaware
corporation ("NCRI"), Lake Interest Holdings Inc., a Delaware
corporation ("LIHI"), and Energy Initiatives, Inc., a Delaware
corporation ("Buyer") (NCRI, LIHI and Buyer are collectively
referred to herein as the "Parties") (capitalized terms used
herein and not otherwise defined herein shall have the meanings
set forth in the Original Agreement).
WHEREAS, the Parties have entered into the Original
Agreement, whereby, among other things, (A) LIHI granted to
Buyer, for a period ending as of the close of business on the
Lake Option Expiration Date, the exclusive right and option to
purchase all right, title and interest of LIHI in and to (i) the
Lake Interest; (ii) the Lake Federal QF Interest; and/or the
(iii) Lake Florida QF Interest; and (B) NCRI irrevocably granted
to Buyer the exclusive right and option to purchase all right,
title and interest of NCRI in and to the LIHI Stock.
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WHEREAS, the Parties desire to extend the Lake Option
Expiration Date with respect to the Lake Interest Option, the
Lake Federal QF Interest Option and the LIHI Stock Option.
NOW, THEREFORE, in consideration of the above premises
and for other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledge, the Parties,
intending to be legally bound, agree as follows:
1. Section 2.3 of the Original Agreement is hereby
amended to read in its entirety as follows:
2.3 As used herein, "Lake Option Expiration Date" means,
(I) as to each Option other than the Lake Florida QF
Interest Option, the earlier of (a) June 30, 1997 and (b)
six months following the date of the Litigation Resolution
(as hereinafter defined), and (II) as to the Lake Florida QF
Interest Option, the date of exercise of such Option (or, if
earlier, termination of the Lake Partnership); provided,
however, that each Option shall immediately expire at such
earlier time as may be provided by Section 3 of Amendment
No. 2, dated as of December 29, 1995, to this Agreement. As
used herein, "Litigation Resolution" means a final
resolution, either by a binding settlement agreement or
final order, of the proceeding or any successor proceeding
entitled NCP Lake Power Inc. v. Florida Power Corporation,
Case No. 94-2354-CAOI (Fifth Judicial Circuit, Lake County,
Florida).
2. (a) This Amendment No. 2 shall not be effective
unless and until TIFD III-C Inc., a Delaware corporation
("TIFD"), shall have consented hereto as required by Section 6 of
the Original Agreement.
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(b) In addition, simultaneously with the
execution and delivery hereof, Buyer is exercising the Federal QF
Interest Option (as defined in the Pasco Interests Options
Agreement, dated as of June 13, 1994 ("Pasco Option Agreement"),
among NCRI, Pasco Interest Holdings Inc., Dade Investment L.P.
and PAS Power Co.), and the related Pasco Interest Closing (as
defined in the Pasco Option Agreement) is occurring (including
payment to NCRI of the purchase price therefor from the Pasco
Interest Deposit (as defined in the Pasco Option Agreement).
3. EI agrees to submit or cause to be submitted as
soon as practicable following the date hereof and otherwise in
accordance with the Original Agreement an application with the
Commission and diligently pursue receipt of the FERC Order in
order to be able to exercise the Lake Federal QF Interest Option,
and for a related Lake Interest Closing to occur, by June 30,
1996 ("Target Date"). Provided EI is diligently pursuing the
FERC Order and TIFD has not waived the requirement to obtain the
FERC Order as a condition to the exercise of the Lake Federal QF
Interest Option, NCRI and LIHI agree to reasonable extensions of
the Target Date up to and including June 30, 1997 (it being
understood that TIFD's consent shall not be required for any such
extension up to and including June 30, 1997). If the Lake
Interest Closing with respect to the Lake Federal QF Interest
Option does not occur by the Target Date (as it may be extended
from time to time), each Option shall immediately expire.
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4. Notwithstanding anything herein or in the Original
Agreement to the contrary, none of the Lake Interest Option, the
Lake Federal QF Interest Option, the LIHI Stock Option or the
Lake Florida QF Interest Option shall be exercised without the
parties obtaining the prior written consent of TIFD, which
consent shall not be unreasonably withheld provided that the
parties execute and deliver such documents and assurances, and
take such further action, as TIFD deems necessary or desirable to
maintain its first priority perfected security interests provided
for in the Security Documents.
5. Except as amended hereby, the Original Agreement
is hereby ratified and shall remain in full force and effect in
accordance with its terms.
6. The consent to this Amendment No. 2 by TIFD, as
indicated by its signature below, shall be narrowly construed and
shall be limited to the facts as described herein and shall not
be deemed or construed as constituting, (i) a consent by TIFD to
any future modifications or amendments to the Original Agreement
or (ii) a waiver of any other requirement set forth in the
Operative Documents.
7. It is understood and agreed that TIFD's consent is
not applicable to paragraph 2(b) hereof.
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IN WITNESS WHEREOF, each of the Parties has caused this
Amendment No. 2 to be duly executed as of the date first written
above.
NORTH CANADIAN RESOURCES, INC. ENERGY INITIATIVES, INC.
By: By:
Name: Name:
Title: Title:
LAKE INTEREST HOLDINGS INC.
By:
Name:
Title:
Consented and Agreed to:
TIFD III-C INC.
By:
Name:
Title:
