COGENTRIX AMENDMENT TO AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT OF INDIANTOWN COGENERATION, L.P.
This AMENDMENT TO AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT dated as of
August 10, 1998 (this "Amendment"), is made and entered into by and among PALM
POWER CORPORATION, a Delaware corporation ("Palm"), TOYAN ENTERPRISES, a
California corporation ("Toyan"), and TIFD III-Y INC., a Delaware corporation
("TIFD," and collectively with Palm and Toyan, the "Partners").
WHEREAS, the Partners are parties to that certain Amended and Restated Limited
Partnership Agreement dated as of September 30, 1992 (the "Partnership
Agreement"); and
WHEREAS, the 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 by and between BGCI and Cogentrix Energy, Inc. ("Cogentrix"), as
amended (the "Purchase Agreement"), 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
Sale"); and
WHEREAS, Toyan intends, through a series of related transfers, to transfer its
BOC Partner Rights and a portion of its Interest in the Partnership (together,
the "DCC XII Transfer") to a new partnership (the "Indiantown Project Investment
Partnership") that will initially have Toyan as its sole general partner and DCC
Project Finance Twelve, Inc., a wholly-owned subsidiary of Dana Commercial
Credit Corporation, as its sole limited partner; and
WHEREAS, in connection with the DCC XII Transfer, the Partners may enter into an
amendment to the Partnership Agreement (the "DCC XII Amendment"), portions of
which shall be effective only upon the formation of the Indiantown Project
Investment Partnership, the execution of the DCC XII Amendment and the closing
of the DCC XII Transfer, all as and to the extent set forth in the DCC XII
Amendment; and
WHEREAS, the Partners desire to amend the Partnership Agreement in certain
respects in connection with the Proposed Sale;
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:
Amendments to the Partnership Agreement. Effective as of the time when the
Proposed Sale shall have closed, and without regard to whether any portion of
the DCC XII Amendment is then effective or ever will become effective, the
Partnership Agreement shall be amended as follows: Section 1.7 is hereby amended
to include the following terms:
""PG&E Corp." means (i) PG&E Corporation, a California
corporation, (ii) any corporation that succeeds to substantially all
the assets and liabilities of PG&E Corporation and (iii) any Person
who directly or indirectly owns at least 80% of the voting stock of a
corporation described in clause (i) or (ii).""
""Cogentrix" means (i) Cogentrix Energy, Inc., a North Carolina
corporation, (ii) any corporation that succeeds to substantially all
the assets and liabilities of Cogentrix Energy, Inc. and (iii) any
Person who directly or indirectly owns at least 80% of the voting
stock of a corporation described in clause (i) or (ii).""
""PG&E Corp.-Cogentrix Affiliate" means (i) any partnership in
which Persons directly or indirectly wholly owned by PG&E Corp.,
Cogentrix or both are general partners with the unrestricted
collective voting power sufficient in and of itself to direct the
management and policies of such partnership (other than specified
matters for which the approval of other partners may be required),
(ii) any corporation more than 50% of the voting stock of which is
owned collectively or individually by Persons directly or indirectly
wholly owned by PG&E Corp., Cogentrix or both, which Persons have the
unrestricted collective voting power sufficient in and of itself to
direct the management and policies of such corporation (other than
specified matters for which the approval of other shareholders may be
required), or (iii) any Person directly or indirectly wholly owned by
a Person described in clause (i) or (ii)."
Section 6.1(b) shall be amended to delete the names Joseph P. Kearney and John
R. Cooper, and to reflect that Palm's representatives on the Board of Control
shall be Thomas J. Bonner and Thomas F. Schwartz.
Section 6.9(a) shall be amended and restated in its entirety as follows:
"6.9 Dispute Resolution. (a) The "Dispute Resolution Committee"
shall consist of the persons holding the following offices: (i) the
president of Cogentrix; (ii) the president of U.S. Gen. Power Group
LLC; and (iii) the president of GE Capital Services Structured Finance
Group, Inc. Any entity represented on the Dispute Resolution Committee
may substitute a person having authority greater than or equal to the
authority of the persons holding the offices designated in this
Section 6.9(a). Any member of the Dispute Resolution Committee may
bring one or more colleagues knowledgeable about the Project to any
meeting of the Dispute Resolution Committee, but no such colleague may
serve or vote as a member of the Dispute Resolution Committee unless
such colleague's authority is greater than or equal to the authority
of the person holding the office designated in this Section 6.9(a)."
Section 7.1(a)(1) shall be amended and restated in its entirety as follows:
"(1) in whole or in part, to (A) a corporation at least 80% of
the voting stock of which is owned by such Partner, (B) a corporation
which owns at least 80% of the voting stock of such Partner, (C) a
corporation at least 80% of the voting stock of which is owned
directly or indirectly by Persons which collectively own, directly or
indirectly, 80% of the voting stock of such Partner, (D) a corporation
into which such Partner shall merge or with which it shall consolidate
or to which it shall sell all or substantially all of its assets, if
after such merger, consolidation or sale, at least 80% of the voting
stock of such continuing corporation is
owned directly or indirectly by Persons which held (immediately prior
to such transaction), directly or indirectly, at least 80% of the
voting stock of such Partner or (E) a PG&E Corp.-Cogentrix Affiliate."
Section 7.1(a)(3) shall be amended and restated in its entirety as follows:
"(3) in whole or in part to a limited partnership in which such
Partner, a corporation having a relationship to such Partner described
in Section 7.1 (a) (2) above or a PG&E Corp.-Cogentrix Affiliate is
the sole general partner; but only if (A) the sale or other
disposition of limited partnership interests and admission of limited
partners in such partnership prior to or at the time of such Transfer
shall have complied with the conditions and restrictions set forth in
Section 9.1 (whether or not such partnership was a Partner at the time
of such disposition), (B) the partnership agreement for such
partnership complies with Section 9.2 and (C) the limited partners in
such partnership do not have the right to participate in the
appointment or removal of, or in the formulation of instructions given
to, such partnership's representatives, if any, on the Board of
Control."
Section 8.3(b)(1) shall be amended and restated in its entirety as follows:
"(1) Assignments by Limited Partners. A Limited Partner may
Assign all or a portion of its Limited Partner Interest only (x) to
(A) a corporation at least 80% of the voting stock of which is owned
by the Limited Partner, (B) a corporation which owns at least 80% of
the voting stock of such Limited Partner, (C) a corporation at least
80% of the voting stock of which is owned by Persons which
collectively own, directly or indirectly, at least 80% of the voting
stock of such Limited Partner, (D) a corporation into which such
Limited Partner shall merge or with which it shall consolidate or to
which it shall sell all or substantially all of its assets, if after
such merger, consolidation or sale, at least 80% of the voting stock
of such continuing corporation is owned directly or indirectly by
Persons which collectively owned (immediately prior to such
transaction), directly or indirectly, at least 80% of the voting stock
of such Limited Partner, or (E) a PG&E Corp.-Cogentrix Affiliate, or
(y) to a transferee whose identity has been approved by the Board of
Control, which approval shall not be unreasonably withheld; provided,
however, that such approval may be in the form of a list of permitted
transferees pre-approved from time to time by action of the Board of
Control, such list to be kept with the records of the Partnership; and
in each case only if:"
Section 9.1(b) shall be amended and restated in its entirety as follows:
"(b) A Second Tier Owner may Transfer all or a portion of its
Second Tier Interest only to (x) (1) a corporation at least 80% of the
voting stock of which is owned by the Second Tier Owner, (2) a
corporation which owns at least 80% of the voting stock of such Second
Tier Owner, (3) a corporation at least 80% of the voting stock of
which is owned by Persons which collectively own, directly or
indirectly, at least 80% of the voting stock of such Second Tier
Owner, (4) a corporation
into which such Second Tier owner shall merge or with which it shall
consolidate or to which it shall sell all or substantially all of its
assets, if after such merger, consolidation or sale, at least 80% of
the voting stock of such continuing corporation is owned directly or
indirectly by Persons which collectively owned (immediately prior to
such transaction), directly or indirectly, at least 80% of the voting
stock of such Second Tier Owner, or (5) a PG&E Corp.-Cogentrix
Affiliate, or (y) any Person whose identity has been approved in
advance by the Board of Control, which approval shall not be
unreasonably withheld; provided, however, that such approval may be in
the form of a list of permitted transferees pre-approved from time to
time by action of the Board of Control, such list to be kept with the
records of the Partnership; and in each case only if,"
Section 11.4 shall be amended to delete the notice address of U.S. Generating
Company and to reflect that copies of notices sent to Palm shall be sent to:
Palm Power Corporation
c/o Cogentrix Energy, Inc.
9405 Arrowpoint Blvd.
Charlotte, NC 28273
Attn: Senior Vice President - Finance and Treasurer
with a copy to:
Cogentrix Energy, Inc.
9405 Arrowpoint Blvd.
Charlotte, NC 28273
Attn: General Counsel
Board of Control Consent. The Board of Control of the Partnership shall be
deemed to have consented to the sale of the capital stock of Palm to Buyer and
the other transactions contemplated by the Purchase Agreement.
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.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and delivered as of the day and year first above written.
TOYAN ENTERPRISES, a California
corporation
By: _______________________________
Name: _______________________________
Title: _______________________________
TIFD III-Y INC., a Delaware corporation
By: _______________________________
Name: _______________________________
Title: _______________________________
PALM POWER CORPORATION, a Delaware
corporation
By: _______________________________
Name: _______________________________
Title: _______________________________