EXHIBIT NO. 10-A
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF BBI POWER L.P.
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
dated as of the __________ day of September, 1996 (the "First Amendment") by and
among BESICORP INTERNATIONAL POWER CORP., a Delaware corporation ("Besicorp"),
and CHESAPEAKE POWER INVESTMENTS CO. INC., a British Virgin Islands corporation
("Chesapeake"), each as a general partner, and BETA INTERNATIONAL POWER CORP., a
Delaware corporation ("BIPC"), and CHESAPEAKE POWER TRANSPORT INC., a Delaware
corporation ("CPT"), each as a limited partner.
PREAMBLE
WHEREAS, BESICORP and CHESAPEAKE, as general partners, formed a Delaware
limited partnership with BIPC and CPT, as limited partners, pursuant to a
Limited Partnership Agreement, dated as of November 4, 1994 which was amended
and restated as of June ___, 1995 (the "Amended and Restated Agreement"), and
which Amended and Restated Agreement was amended and restated as of January 31,
1996 (the "Second Amended and Restated Limited Partnership Agreement");
WHEREAS, the parties hereto desire to amend the Second Amended and Restated
Limited Partnership Agreement, in certain respects, as more fully set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
1. Definitions. All capitalized terms used in this First Amendment and not
otherwise defined herein shall have the meanings ascribed to them in the Second
Amended and Restated Limited Partnership Agreement.
2. Amendment to Article I. Article I of the Second Amended and Restated
Limited Partnership Agreement is hereby amended by amending and restating the
definitions of the following terms in their entirety to read as follows:
"'Prorata' shall mean the proportion the interest of Chesapeake, its
Affiliates, Clients and designees bears to the interest of Besicorp, its
Affiliates and designees of any kind in a Project Owner or for any cash flow
interest in a Partnership Development or for payment of expenses or fees or
representation on a committee, or for purposes of Section 3.11, which shall
mean a ratio of 50-50 in every case.
'Territory' shall mean the Union of India."
3. Amendment to Section 3.06. Section 3.06 is hereby amended to delete the
first sentence and to replace it with the following in its entirety to read as
follows:
"The Partnership is currently developing thermal power generation projects in
Krishnapatnam (the "Krishnapatnam Project") and Bhavanapadu, Andhra Pradesh,
India."
4. Amendment to Section 3.09. Section 3.09 is hereby amended and restated in
its entirety to read as follows:
"3.09. Allocation of Interests in Project Owners. (a) Ownership Interest. With
respect to all Partnership Developments, Chesapeake and Besicorp or their
respective designees shall have equal equity, cash flow and partnership
interests in each Project Owner until financial closing of construction
financing of such Partner-
ship Development. After financial closing of construction financing of any
partnership Development, and subject to the provisions of any Operative
Contracts for such Partnership Development and the provisions of Section 7.04,
each of Besicorp and Chesapeake may Assign its interests in such Project Owner
without regard to whether, after the Assignment, the interests of Chesapeake
and Besicorp would remain equal.
(b) Dilution of Ownership Interests. If either through the sale of equity or
the granting of cash flow interests of an incorporated Project owner or the
granting of a partnership or cash flow interest in an unincorporated Project
Owner, or otherwise, the ownership interests of Chesapeake and Besicorp, or
their respective designees, is diluted in a Project Owner, the resulting
dilution shall, nonetheless, preserve the equal interest in such Project Owner
by Chesapeake and Besicorp, or their respective designees, until financial
closing of construction financing with respect to that Partnership
Development.
(c) Executive Committees. If a committee consisting of representatives of
Co-Developers or other financing parties or equity participants is constituted
for any Partnership Development, Besicorp and Chesapeake, or their respective
designees, shall have equal representation on such committee."
5. Amendment to Section 3.10. Paragraphs (c) and (d) of Section 3.10 are
hereby amended and restated in their entirety to read as follows:
"(c) Allocation of Reimbursement of Project Expenses. (i) To the extent that
the Partnership or any Project Owner receives funding for a Partnership
Development from a Co-Developer, any equity participant, or from another
financing source to reimburse the line items in the Development Cost Budget
entitled Third Party Reimbursable Costs, Internal Timing Xxxxxxxx and
Out-of-Pocket Expenses, as between Besicorp and Chesapeake, such funding shall
be distributed as follows:
(x) For any Third Party Reimbursable Cost (to the extent specifically set
forth as such as a line item in the Development Capital Budget for such
Partnership Development) on a first-in first-out basis to the General Partner
which incurred such expense.
(y) For Internal Time Xxxxxxxx and Out-of-Pocket expenses, with respect to
such Partnership Development to Chesapeake and Besicorp in equal amounts,
without regard to the actual ratio of such Internal Time Xxxxxxxx and
Out-of-Pocket Expenses incurred by such General Partners.
(ii) The Managing General Partner shall make reasonable efforts to ensure
that each Development Cost Budget shall contain line items for Internal Time
Xxxxxxxx and Out-of-Pocket Expenses.
(d) Payment of Development Fees. If the financing provided to any Project
Owner will permit the payment of development, administrative and/or management
fees, for a Partnership Development, such fees shall be paid to Chesapeake and
Besicorp as further payment for the provision of services of its personnel,
with respect to Partnership Developments in India, in equal shares."
6. Governing Law. This First Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware (without reference to
principles of conflicts of laws).
7. Counterparts. This First Amendment may be executed in one or more
counterparts each of which when taken together with all original counterparts
will constitute one and the same instrument.
8. Amendment and Waiver. No amendment, modification or waiver of any
provision of this First Amendment shall be valid or effective unless made by one
or more instruments in writing and signed by such of the parties hereto which
would be affected by such amendment, modification or waiver.
9. Entire Agreement. The Second Amended and Restated Limited Partnership
Agreement as amended by this First Amendment constitutes the entire agreement
between the parties hereto with respect to the matters dealt with herein and
supersedes any previous agreement among the parties hereto, whether oral or
written, in relation to such matters.
10. Ratification. Except as expressly set forth herein, the Second Amended
and Restated Limited Partner-
ship Agreement is not modified hereby and shall remain in full force and effect
in accordance with the respective provisions thereof on the date hereof, and the
Second Amended and Restated Limited Partnership Agreement is in all respects
ratified and affirmed.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as of
the day and year first above written.
BESICORP INTERNATIONAL POWER CORP.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
BETA INTERNATIONAL POWER CORP.
By:/s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
CHESAPEAKE POWER INVESTMENTS CO. INC.
By Chesapeake Power Transport, Inc., its Agent
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
CHESAPEAKE POWER TRANSPORT, INC.
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
