THIRD AMENDMENT TO THE AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF INDIANTOWN COGENERATION, L.P.
THIRD AMENDMENT TO THE
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF
INDIANTOWN COGENERATION, L.P.
THIS THIRD AMENDMENT TO THE AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT OF INDIANTOWN COGENERATION, L.P. (this "Third Amendment")
dated as of the 4th day of June, 1999 by and among PALM POWER
CORPORATION/, a Delaware corporation ("Palm"), TOYAN
ENTERPRISES, a California corporation ("Toyan"), INDIANTOWN
PROJECT INVESTMENT PARTNERSHIP, L.P., a Delaware limited partnership
("IPIP"), TIFD III-Y INC., a Delaware corporation
("TIFD") and THALEIA, LLC, a Delaware limited liability
company ("Thaleia" and together with Palm, IPIP, Toyan and TIFD,
the "Partners").
STATEMENT OF PURPOSE
WHEREAS, Partners are parties to that certain Amended and Restated
Limited Partnership Agreement of Indiantown Cogeneration, L.P. (the
"Partnership") dated September 30, 1992 (as amended by the First
Amendment thereto, dated as of November 1, 1994, the Cogentrix Amendment thereto
dated August 10, 1998 and the ▇▇▇▇ Amendment thereto dated August 10, 1998, the
"Agreement").
WHEREAS, TIFD is the owner of a 40% limited partner interest (the
"Partnership Interest") in the Partnership, which limited
partnership interest includes BOC Partner Rights.
WHEREAS, pursuant to that certain Purchase Agreement dated as of
June 3, 1999 by and between Thaleia and TIFD (the "Purchase
Agreement"), TIFD has agreed to sell, and Thaleia has agreed to purchase
the Partnership Interest, including the BOC Partner Rights, in three
installments as follows: at the First Closing (as defined in the Purchase
Agreement), Thaleia shall purchase a 19.9% interest in the Partnership, at the
Second Closing (as defined in the Purchase Agreement), Thaleia shall purchase a
20.0% interest in the Partnership (including the BOC Partner Rights held by
TIFD), and at the Third Closing (as defined in the Purchase Agreement), Thaleia
shall purchase a 0.1% interest in the Partnership, in each case, subject to the
terms and conditions set forth in the Purchase Agreement (such sale, the
"Proposed Sale").
WHEREAS, Thaleia is a wholly-owned indirect subsidiary of Cogentrix
Energy, Inc. and, as such, qualifies as a PGE Corp.-Cogentrix Affiliate under
the Agreement.
WHEREAS, the Partners desire to amend the Agreement in certain
respects in connection with the Proposed Sale.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partners intending to be
legally bound, hereby agree as follows:
1. Certain Terms. All capitalized terms
used herein without definition shall have the meanings assigned thereto in the
Agreement.
2. Effective Date. This Agreement shall be
effective as of the date hereof except for the provisions set forth in Sections
3(a), (c), (d), (e), (f), (g), (h) and (j), which shall become effective as of
the Second Closing (as defined in the Purchase Agreement).
3. Amendments to Agreement.
(a) The definition of "BOC Partner" in Section 1.7 of the
Agreement is hereby amended by deleting the name "TIFD" in subsections (i) and
(ii) thereof and adding Thaleia in lieu thereof.
(b) Section 1.7 of the Agreement is hereby amended to
include the following term: "Thaleia" means Thaleia LLC, a Delaware limited
liability company.
(c) Section 6.1(b) of the Agreement is hereby amended by
deleting the phrase "TIFD Representatives: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇" therefrom and adding the phrase "Thaleia Representatives: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇" in lieu thereof.
(d) Section 6.9(a) of the Agreement is hereby amended by
deleting the semicolon at the end of subparagraph (i) thereof and adding the
word "and" in lieu thereof.
(e) Section 6.9(a) of the Agreement is hereby further
amended by deleting the phrase "; and (iii) the president of GE Capital Services
Structured Finance Group, Inc." therefrom and adding a period in lieu thereof.
(f) Section 6.9(c) of the Agreement is hereby deleted in
its entirety.
(g) Section 6.10(a) of the Agreement is hereby amended by
deleting the name "TIFD" in the third and eighth lines thereof and adding
"Thaleia" in lieu thereof.
(h) Section 6.10(b) of the Agreement is hereby amended by
deleting the name "TIFD" in the third line thereof and adding "Thaleia" in lieu
thereof.
(i) Section 11.4 of the Agreement is hereby amended by
adding the following after the notice address of TIFD therein:
"Thaleia
Thaleia, LLC
c/o Cogentrix Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President-Finance and Treasurer
with a copy to:
Cogentrix Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel"
(j) Section 11.4 of the Agreement is hereby amended by
deleting the notice address of TIFD therefrom.
4. Admission and Withdrawal of Partners.
Effective at the time the First Closing shall have been consummated, Thaleia is
admitted as a Partner and agrees to be bound by the terms and conditions of the
Agreement. Effective at the time the Third Closing shall have been consummated,
TIFD withdraws as a Partner.
5. Board of Control Consent. The Board of
Control of the Partnership shall be deemed to have consented to the sale of the
Partnership Interest to Thaleia and the other transactions contemplated by the
Purchase Agreement.
6. 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.
7. Amendments. This Amendment may not be
amended, altered, modified or revoked without the prior written consent of all
parties hereto.
8. 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.
9. 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.
10. 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.
11. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed by their duly authorized officers, all as of the date
first above written.
PALM:
PALM POWER CORPORATION
By:________________________________
Name:
Title:
TOYAN:
TOYAN ENTERPRISES
By:________________________________
Name:
Title:
TIFD:
TIFD III-Y INC.
By:________________________________
Name:
Title:
THALEIA:
THALEIA, LLC
By:________________________________
Name:
Title:
INDIANTOWN PROJECT INVESTMENT
PARTNERSHIP, L.P.:
By:________________________________
Name:
Title: