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PURCHASE AGREEMENT
Dated as of January 17, 1997
among
TIGER BAY LIMITED PARTNERSHIP,
FPC ACQUISITION L.L.C.
and
FLORIDA POWER CORPORATION
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PURCHASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS................................1
Section 1.01 Definitions....................................................1
Section 1.02 Terminology....................................................6
ARTICLE II
PURCHASE AND SALE............................6
Section 2.01 Purchase and Sale of Assets....................................6
Section 2.02 Purchase Price and Adjustment..................................7
Section 2.03 Allocation of Purchase Price...................................8
ARTICLE III
CLOSING DATE...............................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.......................8
Section 4.01 Representations and Warranties of Tiger Bay....................8
Section 4.02 Representations and Warranties of FPC and Guarantor...........12
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS; GUARANTY...............14
Section 5.01 Covenants of Tiger Bay........................................14
Section 5.02 Covenants of FPC and Guarantor................................16
Section 5.03 Guaranty......................................................17
ARTICLE VI
CONDITIONS TO CLOSING..........................17
Section 6.01 FPC's Obligation to Close.....................................17
Section 6.02 Tiger Bay's Obligation to Close...............................19
ARTICLE VII
LIMITATIONS...............................20
Section 7.01 Representations and Warranties................................20
Section 7.02 Remedies......................................................20
ARTICLE VIII
TERMINATION RIGHTS............................21
Section 8.01 Termination...................................................21
Section 8.02 Limitation on Right to Terminate; Effect of Termination.......22
ARTICLE IX
GENERAL.................................23
Section 9.01 Exclusive Agreement; Schedules................................23
Section 9.02 Assignment....................................................23
Section 9.03 Amendments....................................................23
Section 9.04 Further Assurances............................................23
Section 9.05 Notices.......................................................23
Section 9.06 Governing Law.................................................24
Section 9.07 Severability..................................................24
Section 9.08 Counterparts..................................................25
Section 9.09 Expenses......................................................25
Section 9.10 Conditions to Tiger Bay's Obligations.........................25
SCHEDULES
Schedule 1.01(a) List of Other Assigned Contracts
Schedule 1.01(b) Permits
Schedule 1.01(c) Plant Site Description
Schedule 2.03 Allocation of $445,000,000.00 of the Purchase
Price Among Certain Assets of Tiger Bay Limited
Partnership
Schedule 4.01(c) Violations
Schedule 5.01(e) Consents and Approvals
Schedule 4.01(h) Environmental Matters
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Schedule 4.01(j) Effectiveness and Enforceability of, and
Compliance with, Assigned Contracts
Schedule 4.01(m) Tax Disputes
Schedule 5.01(a) Changes
Schedule 6.02(i) Funds to be Released
EXHIBITS
Exhibit A Assignment and Assumption
Exhibit B Assignment and Substitution
Exhibit C ▇▇▇▇ of Sale
Exhibit D Form of Opinion to Counsel to Tiger Bay
Limited Partnership
Exhibit E Form of Opinion of Florida Counsel to
Tiger Bay Limited Partnership
Exhibit F Form of Opinion of Counsel to FPC
Acquisition L.L.C. and Florida Power
Corporation
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PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "AGREEMENT") dated as of the 17th day of
January, 1997 among TIGER BAY LIMITED PARTNERSHIP ("TIGER BAY"), FPC ACQUISITION
L.L.C. ("FPC") and FLORIDA POWER CORPORATION ("GUARANTOR").
RECITALS:
WHEREAS, Tiger Bay is the owner of a nominally rated 220 megawatt
cogeneration power plant located in Polk County, Florida and certain other
assets related thereto; and
WHEREAS, Tiger Bay wishes to sell certain of its assets, and FPC
wishes to purchase said assets, on the terms herein set forth;
NOW, THEREFORE, in consideration of the mutual promises made herein,
and subject to the conditions hereinafter set forth, the parties agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. The terms set forth below shall have the
meanings ascribed to them in this Article I or in the part of this Agreement
referred to below:
"ACCOUNTS PAYABLE" has the meaning specified in SECTION 2.02 (b)(ii).
"ACCOUNTS RECEIVABLE" has the meaning specified in SECTION
2.02(b)(ii).
"ADDITIONAL ASSETS" has the meaning specified in SECTION 2.02 (a)(ii).
"ADDITIONAL ASSETS CHARGE" has the meaning specified in SECTION
2.02(a)(ii).
"ADDITIONAL INVENTORY CONTRACTS" has the meaning specified in SECTION
2.02(a)(ii).
"AFFILIATE" means, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity. As
used in this definition, the term "control", including the correlative
terms "controlling", "controlled by" and "under common control with" shall
mean the possession, direct or indirect, of the power to direct or cause
the direction of the management or policies of an entity, whether through
ownership of voting securities, by contract or otherwise.
"AGREEMENT" means this Purchase Agreement.
"ALLOCATION" has the meaning specified in SECTION 2.03.
"APPEAL PERIOD" has the meaning specified in SECTION 8.01(e).
"ASSETS" means the Plant, the Assigned Contracts, the Permits, to the
extent assignable, and the Books and Records.
"ASSIGNED CONTRACTS" means the Material Assigned Contracts and the
Other Assigned Contracts.
"ASSIGNMENTS" means, collectively, the forms of the (a) Assignment and
Assumption attached as EXHIBIT A, (b) Leasehold Assignment and Substitution
attached as EXHIBIT B and (c) ▇▇▇▇ of Sale attached hereto as EXHIBIT C.
"BANKS" has the meaning specified in SECTION 6.01(g).
"BEST EFFORTS" means a party's best efforts in accordance with
reasonable commercial practice and without the incurrence of unreasonable
expense.
"BOARD APPROVAL" has the meaning specified in SECTION 6.02(g).
"BOOKS AND RECORDS" means the books, records, plans, specifications
and drawings of Tiger Bay related to or required for the operation and
maintenance of the Plant.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banks in Houston, Texas, New York, New York, or St. Petersburg,
Florida are authorized or required by law to be closed.
"CLOSING" has the meaning specified in ARTICLE III.
"CLOSING DATE" has the meaning specified in ARTICLE III.
"CONFIDENTIALITY AGREEMENT" has the meaning specified in SECTION
5.02(c).
"CREDIT AGREEMENT" has the meaning specified in SECTION 6.01(g).
"CREDIT SUPPORT OBLIGATIONS" means any letters of credit, guarantees
and security deposits created by or for the benefit of Tiger Bay with
respect to any of the Assigned Contracts.
"DELIVERED ADDITIONAL INVENTORY" has the meaning specified in SECTION
2.02(a)(ii).
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"ENGINEERING OPINION" has the meaning specified in SECTION
8.01(d)(ii).
"ENVIRONMENTAL CLAIM" means and includes any investigation, notice of
violation, demand, allegation, action, suit, injunction, judgment, order,
consent decree, penalty, fine, lien, proceeding, or claim (whether
administrative, judicial or private in nature) arising: (A) pursuant to, or
in connection with, an actual or alleged violation of any Environmental
Requirement; (B) in connection with any Hazardous Substance or actual or
alleged activity associated with any Hazardous Substance; (C) from any
abatement, removal, remedial, corrective, or other response action in
connection with any Hazardous Substance, Environmental Requirement, or
other order or directive of any Governmental Entity or regulatory entity;
or (D) from any actual or alleged damage, injury, threat, or harm to
health, safety, welfare, natural resources, or the environment.
"ENVIRONMENTAL REQUIREMENT" means any applicable local, regional,
state or federal statute, rule, regulation, order, decree, judgment, code,
permit, by-law, variance, license or ordinance pertaining to: (A)
occupational health; (B) the conservation management, or use of natural
resources and wildlife; (C) the protection or use of surface water and
ground water; (D) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation, or handling of, or
exposure to, any Hazardous Substance; (E) pollution (including any release,
direct or indirect, to air, land, surface water and ground water); or (F)
land use, zoning or land development; and includes, without limitation, the
following federal statutes (and their implementing regulations and the
analogous state, regional and local statutes and regulations): the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. Section 9601 ET SEQ.; the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976, as amended
by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. s 6901
ET SEQ.; the Federal Water Pollution Control Act of 1972, as amended by the
Clean Water Act of 1977, as amended, 33 U.S.C. Section 1251 ET SEQ.; The
Toxic Substances Control Act of 1976, as amended, 15 U.S.C. Section 2601 ET
SEQ.; the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 1100 ET SEQ.; the Clean Air Act of 1966, as amended by the
Clean Air Act Amendments of 1990, 42 U.S.C. Section 7401, ET SEQ.; the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Section
651 ET SEQ.; and the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
Section 300(f) ET SEQ., and Chapters 373, 376 and 403, Florida Statutes.
"FERC" means the Federal Energy Regulatory Commission.
"FGT" means Florida Gas Transmission Company.
"FPSC" means the Florida Public Service Commission.
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"GAS SALES CONTRACT" means, collectively, (i) the Gas Sales and
Purchase Contract dated September 22, 1993 between Tiger Bay and Vastar Gas
Marketing, Inc. and (ii) the Parent Guaranty dated September 22, 1993
issued by Atlantic Richfield Company as supplemented by the letter
agreement dated December 30, 1993 between Tiger Bay and Vastar Gas
Marketing, Inc., each as amended through the date hereof.
"GAS TRANSPORTATION AGREEMENTS" means (i) the Firm Transportation
Service Agreement (Rate Schedule FTS-1) dated December 30, 1993 between
Tiger Bay and FGT and (ii) the Firm Transportation Service Agreement (Rate
Schedule FTS-2) dated December 30, 1993 between Tiger Bay and FGT, each as
amended through the date hereof.
"GOVERNMENTAL APPROVAL" means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, authorization,
decision or action or approval of any federal, state, regional or local
governmental authority with jurisdiction over any Environmental
Requirement.
"GOVERNMENTAL ENTITY" means any court, governmental department,
commission, council, board, agency or other instrumentality of the United
States of America or any state, county, municipality or local government.
"HAZARDOUS SUBSTANCE" means any substance, chemical, compound,
product, solid, gas, liquid, waste, by-product, pollutant, contaminant, or
material which is defined, listed, designated or regulated as hazardous or
toxic under any Environmental Requirement.
"HSR ACT" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"LEASE" means the Lease Agreement dated June 15, 1993 between Tiger
Bay and USAC, as amended through the date hereof.
"LEGAL REQUIREMENT" means any applicable law, statute, decree,
judgment, rule, regulation, code, ordinance, permit, bylaw, variance,
order, or license of a Governmental Entity, but does not include any
Environmental Requirement.
"LIEN" means any lien, charge, mortgage, pledge, encumbrance,
hypothecation, conditional sales contract, or security interest.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
financial condition of Tiger Bay or the operation of the Plant, as the case
may be.
"MATERIAL ASSIGNED CONTRACTS" means the PPAs, the O&M Agreement, the
Gas Sales Contract, the Gas Transportation Agreements, the Steam Sale
Agreement, and the Lease.
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"NOTICES" has the meaning specified in SECTION 9.05.
"O&M AGREEMENT" means that certain Operation and Maintenance
Agreement, dated as of July 15, 1993, between Tiger Bay and Destec
Operating Company, as amended through the date hereof.
"OTHER ASSIGNED CONTRACTS" means the contracts listed on SCHEDULE
1.01(a).
"PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of Tiger Bay dated as of December 30,
1993.
"PERMITS" means the governmental licenses, authorizations, permits and
approvals, including any Governmental Approvals, listed on SCHEDULE
1.01(b).
"PERMITTED ENCUMBRANCES" means (i) any encumbrances created under or
pursuant to the Assigned Contracts, (ii) the encumbrances and other title
exceptions listed on or referenced in title policy no. 10 0057 10 001396
dated December 30, 1993 issued by Chicago Title Insurance Company
(including attachments thereto), (iii) liens and security interests
securing indebtedness incurred pursuant to the Credit Agreement and (iv)
all other encumbrances on and exceptions that do not in the aggregate
substantially impair the use of the Assets as they are currently being
used, including restrictive protective covenants, ad valorem taxes and
assessments that are not yet due and payable, mineral and royalty
reservations, easements, zoning ordinances and regulations, and mechanics'
and materialmen's liens for repairs or alterations in the ordinary course.
"PLANT" means all of Tiger Bay's personal property, fixtures,
leasehold improvements and equipment (exclusive of the Delivered Additional
Inventory) (i) located on the Plant Site as of the Closing Date, including,
without limitation: (A) the General Electric 7-FA combustion turbine, the
Deltak heat recovery steam generator and the General Electric steam
turbine, (B) spare parts, (C) the equipment owned by Tiger Bay connecting
the Plant to FPC's transmission lines, and (D) all operations, maintenance,
environmental and safety manuals and other written procedures relating to
the Plant, and (ii) any of the aforementioned in (A) through (D) that is
normally located on the Plant Site but is located off the Plant Site as of
the Closing Date.
"PLANT SITE" means the property described on SCHEDULE 1.01(c).
"PPAs" means (i) the three Contracts for the Purchase of Firm Energy
and Capacity from a Qualifying Facility each dated November 30, 1988
between General Peat Resources L.P., whose interest was assigned to Tiger
Bay, and Guarantor, (ii) the Negotiated Contract for the Purchase of Firm
Capacity and Energy from a Qualifying Facility dated as of March 28, 1991
between EcoPeat Avon Park, whose interest was assigned to Tiger Bay, and
Guarantor and (iii) the Standard Offer Contract for Purchase of Firm Energy
and
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Capacity from a Qualifying Facility dated July 1989 between Timber Energy
Resources Inc., whose interest was assigned to Tiger Bay, and Guarantor,
(iv) any interconnection agreements entered into between Tiger Bay and
Guarantor with respect to any of the foregoing, (v) Sections 3 and 4 of the
Lease Termination Agreement dated February 22, 1993 among Tiger Bay,
Guarantor and EcoPeat Avon Park and (vi) all letters, agreements, documents
or instruments which supplement, modify, clarify, waive or amend any of the
foregoing.
"PURCHASE PRICE" has the meaning specified in SECTION 2.02(a)(ii).
"PURCHASE PRICE ADJUSTMENT" has the meaning specified in SECTION
2.02(b)(ii).
"REMEDIAL ACTIONS" means those actions consistent with remedial
actions recommended by a Governmental Entity.
"SCHEDULED OUTAGE" has the meaning specified in SECTION 8.01(d)(i).
"STEAM SALE AGREEMENT" means the Steam Sale Agreement dated as of June
15, 1993 between Tiger Bay and USAC, as amended through the date hereof.
"USAC" means U.S. Agri-Chemicals Corporation.
SECTION 1.02 TERMINOLOGY. All article, section, subsection, schedule
and exhibit references used in this Agreement are to this Agreement unless
otherwise specified. All schedules and exhibits attached to this Agreement
constitute a part of this Agreement and are incorporated herein. Unless the
context of this Agreement clearly requires otherwise, (i) the singular shall
include the plural and the plural shall include the singular wherever and as
often as may be appropriate, (ii) the words "includes" or "including" shall mean
"including, without limitation", and (iii) the words "hereof", herein",
"hereunder" and similar terms in this Agreement shall refer to this Agreement as
a whole and not any particular section or article in which such words appear.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 PURCHASE AND SALE OF ASSETS. Upon the terms and subject
to the conditions of this Agreement, including the terms of the Assignments, at
the Closing, (a) Tiger Bay will sell, assign, convey, transfer and deliver to
FPC, the Assets and the Additional Assets (as hereinafter defined), and (b) FPC
shall purchase the Assets and the Additional Assets, shall assume all of Tiger
Bay's obligations with respect to the Assets and the Additional Assets, and
shall indemnify Tiger Bay, its partners, officers, employees, directors and
agents, from and against any and all liabilities arising after the Closing out
of, related to, or in connection with FPC's ownership or operation of the Assets
and the Additional Assets, and shall use its Best Efforts to cause the other
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parties to the Assigned Contracts to release Tiger Bay from any liability
thereunder effective as of the Closing.
SECTION 2.02 PURCHASE PRICE AND ADJUSTMENT.
(a) PURCHASE PRICE.
(i) The consideration (the "Purchase Price") to be paid by FPC
for the Assets and the Additional Assets shall be the sum of
$445,000,000.00 and the Additional Assets Charge (as hereinafter defined).
Upon the terms and subject to the conditions of this Agreement, at the
Closing, Tiger Bay and FPC will execute and deliver the Assignment and
Substitution and the ▇▇▇▇ of Sale, and Tiger Bay, FPC and Guarantor will
execute and deliver the Assignment and Assumption whereby (i) Tiger Bay
assigns the Assets and the Additional Assets to FPC, against payment
therefor by FPC to Tiger Bay of the Purchase Price, in immediately
available funds by wire transfer to one or more bank accounts designated by
Tiger Bay, and (ii) FPC assumes the obligations of Tiger Bay with respect
to the Assets and the Additional Assets, and FPC and Guarantor provide the
indemnities set forth in SECTION 2.01(a).
(ii) "Additional Assets Charge" means an amount equal to the sum
of all amounts, if any, paid by Tiger Bay to General Electric Company, Inc.
pursuant to the Additional Inventory Contracts as of the Closing Date.
"Additional Inventory Contracts" means the purchase order(s) issued by
Tiger Bay or Destec Energy, Inc. to General Electric Company, Inc. for the
spare parts and equipment required to perform the hot gas repair of the gas
turbine at the Plant scheduled to be performed during March and April 1998.
Tiger Bay shall provide to FPC a copy of each Additional Inventory Contract
upon issuance. "Delivered Additional Inventory" means all spare parts and
equipment referred to in the second sentence of this Section 2.02(a)(ii),
if any, that are delivered to the Plant Site pursuant to the Additional
Inventory Contracts on or before the Closing Date. "Additional Assets"
means the Additional Inventory Contracts and the Delivered Additional
Inventory.
(b) PURCHASE PRICE ADJUSTMENT.
(i) On the Closing Date, FPC or Tiger Bay, as appropriate, shall
pay to the other party in immediately available funds by wire transfer to
one or more bank accounts designated by the payee, an amount (the "Purchase
Price Adjustment") calculated in accordance with this SECTION 2.02(b). The
Purchase Price Adjustment shall equal the Accounts Receivable less the
Accounts Payable, as such terms are hereinafter defined. If the Purchase
Price Adjustment is positive, FPC shall pay such amount to Tiger Bay, and
if the Purchase Price Adjustment is negative, Tiger Bay shall pay such
amount to FPC, which may be accomplished by a setoff against the Purchase
Price.
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(ii) "Accounts Receivable" means all amounts owed to Tiger Bay
under the Material Assigned Contracts as of midnight on the day before the
Closing Date including amounts accrued but not yet due and payable to Tiger
Bay thereunder. "Accounts Payable" means (A) all amounts owing by Tiger Bay
under the Material Assigned Contracts including amounts accrued but not yet
due and payable and (B) an amount equal to Tiger Bay's pro rata share of
the ad valorem taxes with respect to the Plant payable in 1997 prorated
based on the number of days in 1997 the Plant is owned by Tiger Bay and
based on the 1996 tax assessment. To determine Accounts Receivable which
are accrued but not yet due and payable, Tiger Bay and FPC will agree upon
a good faith estimate of such amounts including a reading of any applicable
meters as of midnight on the day prior to the Closing Date.
SECTION 2.03 ALLOCATION OF PURCHASE PRICE. Tiger Bay and FPC shall
use the allocation of $445,000,000.00 of the Purchase Price among the Assets
shown on SCHEDULE 2.03 for purposes of all relevant filings and other
information provided by each to the Internal Revenue Service.
ARTICLE III
CLOSING DATE
The consummation of the transactions envisioned hereby (the "CLOSING")
shall be held at a location to be mutually agreed by the parties, at 10:00 A.M.,
local time, on the fifth Business Day after the last condition contained in
SECTIONS 6.01(c), 6.01 (h), 6.02(c), 6.02(g), 6.02(h) AND 6.02(j) is satisfied
or waived, or at such other time and date as may be mutually agreed to in
writing by the parties. The date on which the Closing actually occurs is
referred to herein as the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF TIGER BAY. Tiger Bay
hereby represents and warrants to FPC as follows:
(a) ORGANIZATION AND GOOD STANDING. Tiger Bay is a limited
partnership duly formed and validly existing under the laws of the State of
Delaware and is in good standing under the laws of the State of Florida and the
State of Texas. Tiger Bay is not qualified to do business as a foreign limited
partnership in any other jurisdiction. Neither the character of the properties
now owned or leased by Tiger Bay nor the nature of the business now conducted by
it requires it to be so qualified, except where the failure to be so qualified
would not be material to Tiger Bay.
(b) PARTNERSHIP AUTHORITY; AUTHORIZATION OF AGREEMENT; ENFORCEABILITY
OF THE AGREEMENT. Tiger Bay has all requisite power and authority to enter into
and perform this
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Agreement. The execution, delivery and performance of this Agreement and the
other documents and instruments to be delivered by Tiger Bay pursuant hereto,
and the transactions contemplated hereby and thereby, have been duly authorized
by Tiger Bay, subject to the conditions set forth in SECTIONS 6.02(g) AND (k).
This Agreement has been, and each such other document or instrument will be,
duly executed and delivered by Tiger Bay and constitutes, or upon such execution
and delivery shall constitute, legal, valid and binding obligations of Tiger
Bay, enforceable against Tiger Bay in accordance with its respective terms,
subject, however, to applicable bankruptcy, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as the
enforceability thereof may be limited by general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(c) NO VIOLATION. Except as set forth on SCHEDULE 4.01(c) hereto,
the execution and delivery hereof by Tiger Bay does not, and the performance and
compliance with the terms and conditions hereof by it and the consummation of
the transactions contemplated hereby by Tiger Bay will not:
(i) violate or conflict with any provision of its certificate
of limited partnership or the Partnership Agreement;
(ii) violate or conflict with any Legal Requirement binding
upon it, which violation would materially and adversely affect Tiger Bay's
ability to perform its obligations under this Agreement or FPC's operation
of the Plant after Closing; or
(iii) violate or result in a default under (whether with notice
or the lapse of time or both), or accelerate or permit the acceleration of
the performance required by, or require any consent, authorization or
approval or trigger any preferential right of purchase under (A) any
mortgage, indenture, loan or credit agreement or any other material
agreement or instrument evidencing indebtedness for money borrowed, or any
financing lease to which it is a party or by which it is bound or to which
any of its properties is subject or (B) any other material lease, contract,
agreement or instrument to which it is a party or by which it is bound or
to which its properties is subject, which violation would materially and
adversely affect Tiger Bay's ability to perform its obligations under this
Agreement.
(d) NO DEFAULT; LEGAL REQUIREMENTS.
(i) Tiger Bay is not in material breach or violation of, or in
material default under, and no condition exists that with notice or lapse
of time or both would constitute such a default under, (A) any mortgage,
indenture, loan or credit agreement, evidence of indebtedness or other
material instrument evidencing or securing borrowed money, or any material
financing lease to which Tiger Bay is a party or its property is bound, (B)
any judgment, order or injunction of any court or governmental agency of
(C) any other material agreement, contract, lease, license or other
instrument.
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(ii) Tiger Bay is in compliance in all respects with all Legal
Requirements applicable to the Assets, except where the failure to so
comply does not have a Material Adverse Effect. Neither this SECTION
4.01(d)(ii) nor any other representation in this SECTION 4.01 (other than
SECTION 4.01(h)) is intended to, and none of them shall, cover
environmental matters, which are the subject of SECTION 4.01(h).
(e) APPROVALS AND CONSENTS. Except as set forth on SCHEDULE 4.01(e),
no material filing, consent, authorization or approval under any Legal
Requirement binding upon Tiger Bay is required to be made or obtained by Tiger
Bay in order to execute or deliver this Agreement or to consummate the
transactions contemplated by this Agreement. Except as set forth in SECTIONS
6.02(g) AND (k) and on SCHEDULE 4.01(e), no consent or approval of any third
party which is not a Governmental Entity is required for the execution and
delivery of this Agreement by Tiger Bay or for the performance by Tiger Bay of
its obligations hereunder. Except as set forth on SCHEDULE 4.01(e), all of the
Governmental Approvals necessary to permit Tiger Bay to lawfully conduct and
operate its business in the manner it is currently conducted and to permit Tiger
Bay to own and operate the Assets in the manner it currently owns and operates
such Assets have been obtained and are in full force and effect except where the
failure to obtain any such Governmental Approval or to maintain the
effectiveness of such Governmental Approval does not have a Material Adverse
Effect.
(f) LITIGATION. There are no suits, judicial or administrative
actions or proceedings pending or, to Tiger Bay's knowledge, threatened that
(i) challenge the validity or enforceability of this Agreement, or (ii) seek to
restrain or prevent any action to be taken by Tiger Bay pursuant to this
Agreement, or (iii) would have a material and adverse effect on Tiger Bay's
ability to perform its obligations under this Agreement.
(g) LIENS. Tiger Bay owns, leases or otherwise has the right to use
the Assets free and clear of all Liens, except for Permitted Encumbrances and
options or rights that (i) in the aggregate would not reasonably be expected to
materially interfere with the use or operation of such assets as they are
currently being used or operated or (ii) materially impair the value of such
assets taken as a whole.
(h) ENVIRONMENTAL MATTERS.
(i) Except as set forth in SCHEDULE 4.01(h), Tiger Bay is in
compliance with all Environmental Requirements.
(ii) Except as set forth in SCHEDULE 4.01(h), Tiger Bay has
obtained or applied for and is in compliance with all Governmental
Approvals required by any Environmental Requirement. Any Governmental
Approvals that are not final as of the date hereof are listed on SCHEDULE
4.01(h), and Tiger Bay shall act to have all pending Governmental Approvals
rendered final in the ordinary course of its business and according to
Tiger Bay's own business plan. Except as set forth in SCHEDULE 4.01(h), all
Governmental
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Approvals currently required for operation of the Plant and for Tiger
Bay's use of the Plant Site are in full force and effect and no
administrative or judicial appeal of any Governmental Approval is pending.
Any Governmental Approvals that are not final as of the Closing Date shall
be identified on a revised and updated SCHEDULE 4.01(h).
(iii) Except as set forth in SCHEDULE 4.01(h):
(A) Tiger Bay has not caused any unremediated release,
threatened release, or disposal of any Hazardous Substance at the
Plant Site in contravention of any Environmental Requirement.
(B) Tiger Bay has not manufactured, used, generated,
stored, treated, transported, disposed of, released, or otherwise
managed any Hazardous Substance except pursuant to and in
accordance with any Environmental Requirement.
(C) Tiger Bay: (a) has no knowledge that any condition
exists that would give rise to any liability on its part for
response or corrective action, natural resources damage, or any
other harm or activity pursuant to any Environmental Requirement
at the Plant Site, nor has Tiger Bay engaged in any activity
which would give rise to such liability or harm; (b) is not
subject to, has no notice or knowledge of, or is not required to
give any notice of any Environmental Claim involving Tiger Bay or
the Plant Site; (c) is subject to no condition or occurrence at
the Plant Site which could form the basis of an Environmental
Claim against Tiger Bay; and (d) has not received any written or
oral request for information under, or any Environmental Claim by
any Governmental Entity arising out of, any Environmental
Requirement.
(D) Neither Tiger Bay, the Plant, nor the Plant Site
is subject to, and Tiger Bay has no knowledge of, any imminent
restriction on the ownership, occupancy, use or transferability
of the Plant Site in connection with any (a) Environmental
Requirement, or (b) release, threatened release, or disposal of
any Hazardous Substance;
(i) BROKERAGE OR FINDERS FEES. Tiger Bay has not used a broker or
finder in connection with this Agreement, and there are no claims for brokerage
commissions, finders' fees or similar compensation in connection with the
transactions contemplated hereby based on any arrangement or agreement by or on
behalf of Tiger Bay.
(j) ASSIGNED CONTRACTS. Except as set forth on SCHEDULE 4.01(j),
each Material Assigned Contract is in full force and effect and is valid and
enforceable against Tiger Bay in accordance with its terms. Except as set forth
in SCHEDULE 4.01(j), (i) Tiger Bay is in compliance with all applicable material
terms and requirements of each Material Assigned Contract and has not
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received any written notice that it is currently in violation of any applicable
term or requirement of any Material Assigned Contract, and (ii) Tiger Bay is in
compliance with all applicable material terms and requirements of each Other
Assigned Contract and has not received any written notice that it is currently
in violation of any applicable material term or requirement of any Other
Assigned Contract, which violation has a Material Adverse Effect.
(k) CONDITION AND SUFFICIENCY OF ASSETS. The buildings, plants,
structures and equipment of Tiger Bay which are part of the Plant (except the
combustion turbine) are in good operating condition adequate for the uses to
which they are being put, normal wear and tear excepted.
(l) BOOK AND RECORDS. The Books and Records have been maintained in
all material respects in accordance with sound business practice.
(m) STATE AND LOCAL TAXES. Tiger Bay has timely filed, and as of the
Closing Date will have timely filed, all state, county and local property,
sales, use, and other tax returns relating to its overall business required to
be filed on or prior to the Closing Date, taking into account any extensions of
the filing deadlines which have been validly granted, and such returns are and
will be true and correct in all material respects. Tiger Bay has paid, or by the
Closing Date will have paid, all material state, county, and local property,
sales, use, and all other taxes and assessments (including penalties and
interest in respect thereof, if any) that have become or are due with respect to
its overall business or the purchased assets regarding any period ended on or
prior to the Closing Date, whether shown on such returns or not. SCHEDULE
4.01(m) describes all pending property, sales, use or other tax disputes
relating to or arising out of Tiger Bay's overall business or affecting any of
the purchased assets, including the nature and amount of the controversy, the
respective positions of the parties as to any material amounts claimed to be due
thereunder and the current status thereof.
SECTION 4.02 REPRESENTATIONS AND WARRANTIES OF FPC AND GUARANTOR.
FPC or Guarantor, as the case may be, hereby represent and warrant to Tiger Bay
as follows:
(a) ORGANIZATION AND GOOD STANDING. FPC is a limited liability
company duly organized, validly existing and of active status under the laws
of the State of Florida. Guarantor is a duly organized, validly existing
corporation in good standing under the laws of the State of Florida. Each of
FPC and Guarantor has the necessary power and authority to carry on its
respective business as now being conducted.
(b) AUTHORITY OF FPC AND GUARANTOR; ENFORCEABILITY OF THE AGREEMENT.
Each of FPC and Guarantor has all requisite power and authority to enter into
and perform this Agreement. The execution, delivery and performance of this
Agreement and the other documents and instruments to be delivered by FPC, or by
FPC and Guarantor, as the case may be, pursuant hereto, and the transactions
contemplated hereby and thereby, have been duly authorized by FPC, or by FPC and
Guarantor, as the case may be. This Agreement has been, and each such document
or instrument will be, duly executed and delivered by FPC, or by FPC and
Guarantor, as the case may be, and
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constitutes, or upon such execution and delivery will constitute, legal, valid
and binding obligations of FPC, or of FPC and Guarantor, as the case may be,
enforceable against FPC, or against FPC and Guarantor, as the case may be, in
accordance with its respective terms, subject to applicable bankruptcy,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as the enforceability thereof may be limited by general principles of
equity (regardless of whether considered in a proceeding in equity or at law).
(c) NO VIOLATIONS. The execution and delivery of this Agreement by
FPC and Guarantor does not and, the consummation of the transactions
contemplated hereby will not:
(i) violate or conflict with any of the provisions of the
certificate of formation or limited liability company agreement of FPC, or
the certificate of incorporation or bylaws of Guarantor,
(ii) violate or conflict with any Legal Requirement binding
upon either, which violation would materially and adversely affect FPC's or
Guarantor's ability to perform their respective obligations under this
Agreement; or
(iii) violate or result in a default under (whether with notice
or the lapse of time or both) or accelerate or permit the acceleration of
the performance required by, or require any consent, authorization or
approval under (A) any mortgage, indenture, loan or credit agreement or any
other material agreement or instrument evidencing indebtedness for money
borrowed, or any financing lease to which either is a party or by which
either is bound or to which any of their properties is subject or (B) any
other material lease, contract, agreement or instrument to which either is
a party or by which either is bound or to which any of their properties is
subject, which violation would materially and adversely affect FPC's or
Guarantor's ability to perform their respective obligations under this
Agreement.
(d) APPROVALS AND CONSENTS. No material filing, consent,
authorization or approval under any Legal Requirement binding upon FPC or
Guarantor is required to be made or obtained by FPC or Guarantor in order to
execute or deliver this Agreement or to consummate the transactions contemplated
by this Agreement by it, except the filings with the FERC and the FPSC described
in SECTIONS 6.01(c) and 6.02(c) and the filings required under the HSR Act. No
consent or approval of any third party which is not a Governmental Entity is
required for the execution and delivery of this Agreement by FPC or Guarantor or
for the performance by FPC or Guarantor of their respective obligations
hereunder.
(e) LITIGATION. There are no suits, judicial or administrative
actions or proceedings pending or, to the knowledge of FPC or Guarantor,
threatened that (i) challenge the validity of enforceability of this Agreement,
or (ii) seek to restrain or prevent any action to be taken by FPC or Guarantor
pursuant to this Agreement, or (iii) would have a material adverse effect on
FPC's or Guarantor's ability to perform their respective obligations under this
Agreement.
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(f) BROKERAGE OR FINDERS FEES. Neither FPC nor its Affiliates have
used a broker or finder in connection with this Agreement, and there are no
claims for brokerage commissions, finders' fees or similar compensation in
connection with the transactions contemplated hereby based on any arrangement or
agreement by or on behalf of FPC or its Affiliates.
(g) DUE DILIGENCE. FPC is generally familiar with the Plant and has
conducted limited due diligence with respect to the Assets and is aware that
there have been technical problems with the Plant's combustion turbine.
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS; GUARANTY
SECTION 5.01 COVENANTS OF TIGER BAY. Tiger Bay covenants and agrees
with FPC as follows:
(a) CERTAIN CHANGES. Except as may be permitted hereunder or as
otherwise contemplated in this Agreement and except as set forth on SCHEDULE
5.01(a), from the date hereof through the Closing Date, without first obtaining
the written consent of FPC, which consent shall not be unreasonably withheld,
Tiger Bay will not:
(i) make any material change in the conduct of its business or
operations;
(ii) merge into or with or consolidate with any other entity or
acquire all or substantially all of the business or assets of any
corporation, person or entity;
(iii) (A) mortgage, pledge or subject the Assets to any Lien,
except for Permitted Encumbrances, or (B) sell, transfer or terminate any
Asset, or amend any of the Assigned Contracts or the Permits, except in the
ordinary course of business;
(iv) take any action or enter into any commitment with respect
to or in contemplation of any liquidation, dissolution, recapitalization,
reorganization or other winding up of its business or operation except as a
result of this Agreement; or
(v) consent to the entry of any decree or order by a
Governmental Entity which would have a material adverse effect on (A) its
ability to perform hereunder or (B) the operation of the Plant.
(b) OPERATION OF BUSINESS. From the date hereof until the Closing
Date, except as permitted hereunder or contemplated hereby or as consented to in
writing by FPC, (i) Tiger Bay shall carry on its business in the usual and
ordinary course and (ii) use its Best Efforts to preserve and maintain the
Assets in all material respects in as good a condition as of the date hereof,
normal wear and tear excepted, and to enforce the O&M Agreement against Destec
Operating Company.
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Notwithstanding any provision of SECTION 5.01 to the contrary, Tiger Bay shall
have the right to release and terminate any and all Credit Support Obligations
and any agreements related to the Credit Agreement.
(c) ACCESS. Tiger Bay will afford to FPC and its authorized
representatives, at FPC's sole expense, risk and cost, reasonable access from
the date hereof through the Closing Date, during normal business hours, to its
personnel, properties, books and records relating to the Assets and will furnish
to FPC such additional financial and operating data and other information
relating to the Assets as FPC may reasonably request, to the extent that such
access and disclosure would not violate the terms of any agreement to which
Tiger Bay is bound or any Legal Requirement; provided, however, that the
confidentiality of any data or information so acquired shall be maintained by
FPC and its representatives in accordance with SECTION 5.02(c); and further
provided that all requests for access shall be directed to Destec Management
Services Inc., or such other persons as Tiger Bay may designate from time to
time. Tiger Bay will provide or otherwise make available to FPC any and all
audits, investigations, reports, records, data, site assessments or any other
documents in its possession concerning Hazardous Substances, compliance with any
Environmental Requirement or any other environmental subject.
(d) ANTITRUST NOTIFICATION; FERC AND FPSC FILINGS. Tiger Bay or its
Affiliate will, as promptly as practicable (and, in any event, within 30 days
after the execution hereof) (i) file with the Federal Trade Commission and the
Department of Justice the notification and report form required to be filed by
it for the transactions contemplated hereby (and shall request early termination
of the waiting period) and any supplemental information which may be reasonably
requested in connection therewith pursuant to the HSR Act, and (ii) cooperate
with FPC and Guarantor in the filing of any applications to the FERC and the
FPSC for any approvals required in connection with the transactions envisioned
by this Agreement.
(e) PUBLIC ANNOUNCEMENTS. Subject to applicable securities law or
stock exchange requirements, at all times until the Closing Date, Tiger Bay
shall promptly advise and obtain the approval (which may not be withheld
unreasonably) of FPC before issuing or permitting any of its Affiliates to
issue, any press release or other announcement with respect to this Agreement or
the transactions contemplated hereby, provided that no further approval shall be
required for press releases or other announcements which are substantially
similar to previously approved releases or announcements provided a copy of such
release or announcement is furnished promptly to FPC.
(f) TRANSACTION COSTS. Tiger Bay shall bear and pay all of the
costs, fees and expenses incurred by or on its behalf in connection with the
transactions contemplated by this Agreement, including any brokerage
commissions, finders' fee or similar compensation in connection with the
transactions contemplated hereby based on any arrangement or agreement by or on
behalf of Tiger Bay.
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(g) BEST EFFORTS. Assuming that all of the conditions to Tiger Bay's
obligations to close under this Agreement have been satisfied, Tiger Bay will
use its Best Efforts to obtain the satisfaction of the conditions to Closing set
forth in SECTION 6.01.
(h) PERMITS. Tiger Bay shall cooperate with FPC, including, without
limitation, by executing all necessary forms, applications, or notices, in (i)
the transfer and assignment to FPC of the Permits, to the extent assignable, on
or immediately after the Closing Date, and (ii) obtaining any modification,
revision or reissuance of a Permit which is not transferable or assignable to
FPC on or immediately after the Closing Date. FPC shall bear all out-of-pocket
costs and expenses in connection with any such transfer, assignment,
modification, revision or reissuance.
(i) SALES AND USE TAXES. Within fifteen days following the Closing
Date, Tiger Bay shall file a final Florida sales and use tax return, if
required, and pay any and all outstanding sales and use tax (including penalties
and interest in respect thereof, if any). Following the Closing Date, Tiger Bay
will furnish FPC with a certificate from the Florida Department of Revenue
stating that no taxes, interest, or penalty are due.
SECTION 5.02 COVENANTS OF FPC AND GUARANTOR. FPC or Guarantor as
the case may be, covenant and agree with Tiger Bay as follows:
(a) ANTITRUST NOTIFICATION AND OTHER GOVERNMENTAL FILINGS. FPC or
its Affiliate will as promptly as practicable (and, in any event, within 30 days
after the execution hereof) file with the Federal Trade Commission and the
Department of Justice the notification and report form required for the
transactions contemplated hereby (and request early termination of the waiting
period) and any supplemental information which may be reasonably requested in
connection therewith pursuant to the HSR Act. FPC, or FPC and Guarantor, will as
promptly as practicable make any filings with the FERC and the FPSC required to
be filed by them to consummate the transactions contemplated hereby and will
diligently seek the actions required of the FERC and FPSC to permit the
consummation of the transactions contemplated hereby.
(b) PUBLIC ANNOUNCEMENTS. Subject to applicable securities law or
stock exchange requirements, at all times until the Closing Date, FPC and
Guarantor shall promptly advise, and obtain the approval (which may not be
withheld unreasonably) of, Tiger Bay before issuing, or permitting any of FPC's
or Guarantor's directors, officers, employees or agents, or any of FPC's or
Guarantor's Affiliates to issue, any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby, provided that
no further approval shall be required for press releases or other announcements
which are substantially similar to previously approved releases or announcements
provided a copy of such release or announcement if furnished promptly to Tiger
Bay.
(c) CONFIDENTIAL INFORMATION. In the event that this Agreement is
terminated or, if not terminated, until the Closing Date, the confidentiality of
any data or information received by FPC or Guarantor regarding the business and
assets of Tiger Bay and its Affiliates shall be
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maintained by FPC, Guarantor and their representatives under the same terms as
contained in, and in accordance with, the Confidentiality Agreement dated July
10, 1996 executed by Guarantor and Tiger Bay (the "CONFIDENTIALITY AGREEMENT").
(d) TRANSACTION COSTS AND TAXES. FPC shall bear and pay all of the
costs, fees and expenses incurred by or on behalf of FPC in connection with the
transactions contemplated by this Agreement, including the filing fees under the
HSR Act or required to be paid to the FPSC or the FERC and any brokerage
commissions, finders' fee or similar compensation in connection with the
transactions contemplated hereby based on any arrangement or agreement by or on
behalf of FPC or its Affiliates. In addition, FPC shall pay any sales, use or
other transfer taxes or filing fees resulting from the execution, delivery and
performance of this Agreement.
(e) BEST EFFORTS. Assuming that all of the conditions to FPC's
obligations to close under this Agreement have been satisfied, FPC will use its
Best Efforts to obtain the satisfaction of the conditions to Closing set forth
in SECTION 6.02.
(f) PLANT OPERATIONS STAFF. Upon termination of the O&M Agreement,
FPC or Guarantor shall endeavor to employ the existing full-time Plant
operations staff.
(g) PERMITS; CREDIT SUPPORT OBLIGATIONS. FPC shall have the primary
responsibility for preparing all necessary forms, applications, or notices to
request the transfer or assignment to FPC of any Permit, to the extent
assignable, and shall use its Best Efforts to cause the Permits to be
transferred to it on the Closing Date. In addition, on or before the Closing
Date, FPC and Guarantor shall take whatever action is necessary to cause the
release and termination of the Credit Support Obligations, including, without
limitation, providing substitute credit supports acceptable to the other parties
to the Assigned Contracts.
SECTION 5.03 GUARANTY. Guarantor hereby unconditionally and
irrevocably guarantees to Tiger Bay (i) the accuracy of the representations and
warranties of FPC contained in this Agreement and any agreement, document or
instrument executed by FPC in connection with this Agreement, and (ii) the due
and timely performance by FPC of all of FPC's obligations under this Agreement
and any agreement, document or instrument executed by FPC in connection with
this Agreement.
ARTICLE VI
CONDITIONS TO CLOSING
SECTION 6.01 FPC'S OBLIGATION TO CLOSE. FPC's obligation to close
under this Agreement is subject to the fulfillment, on or before the Closing
Date, of each of the following conditions (except to the extent that FPC shall
have hereafter agreed in writing to waive one or more of such conditions):
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(a) COMPLIANCE WITH AGREEMENT. Tiger Bay shall have performed and
complied in all material respects with all covenants required by this Agreement
to be performed or complied with by it on or prior to the Closing.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Tiger Bay contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date.
(c) GOVERNMENTAL FILINGS AND ORDERS. With respect to the filings
contemplated by SECTIONS 5.01(d) and 5.02(a), (i) the waiting period under the
HSR Act shall have expired, (ii) the FPSC shall have issued a final, non-
appealable order approving the transactions envisioned by this Agreement in form
and substance satisfactory to FPC and Guarantor; provided, however, that any
such FPSC order that provides for approval of the transfer by FPC to Guarantor,
following the Closing, of the Assets and the Additional Assets and for cost
recovery by Guarantor of the Purchase Price over a period not to exceed five
years shall be satisfactory to FPC and Guarantor, and (iii) the FERC shall have
issued an order approving the transfer by Tiger Bay to FPC of any of the Assets
and the Additional Assets over which it has jurisdiction and the transfer by FPC
to Guarantor of any of the Assets or the Additional Assets over which it has
jurisdiction.
(d) LITIGATION. There shall not be pending any litigation or
proceeding (filed by a person or entity other than FPC, Guarantor or their
Affiliates) to restrain or prohibit the transactions contemplated by this
Agreement or to obtain material damages or other material relief in connection
with the consummation of such transactions.
(e) ASSIGNMENTS. Tiger Bay shall have executed and delivered to FPC,
or to FPC and Guarantor, as the case may be, the Assignments. Tiger Bay shall
have executed and delivered to FPC all forms, applications and notices prepared
by FPC to request the transfer or assignment to FPC of any Governmental
Approval.
(f) CERTIFICATE. Tiger Bay shall have delivered to FPC a
certificate, dated the Closing Date, executed on its behalf by its duly
authorized representative to the effect that the conditions in SECTIONS 6.01(a)
and (b) are satisfied insofar as they relate to Tiger Bay.
(g) INDEBTEDNESS. Tiger Bay shall have delivered to FPC evidence
that the indebtedness of Tiger Bay to The Fuji Bank and Trust Company and the
other banks (collectively, the "Banks") under that certain Credit Agreement
dated December 31, 1993 among the Banks and Tiger Bay, as amended, (the "CREDIT
AGREEMENT") shall be repaid out of the proceeds of the Purchase Price, and that
any Permitted Encumbrances securing Tiger Bay's obligations under the Credit
Agreement shall be released.
(h) CONSENTS. Any consents of third parties required in connection
with the Assignments shall have been obtained.
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(i) AMENDMENT TO O&M AGREEMENT. The O&M Agreement shall have been
amended effective as of the Closing Date to enable either party thereunder to
terminate the O&M Agreement effective at any time after nine months after the
Closing Date upon 90 days prior written notice to the other party.
(j) OPINION OF COUNSEL. FPC shall have received the opinions of
Tiger Bay's counsel dated as of the Closing Date substantially in the forms
attached hereto as EXHIBITS D and E.
SECTION 6.02 TIGER BAY'S OBLIGATION TO CLOSE. The obligation of
Tiger Bay to close under this Agreement is subject to the fulfillment on the
Closing Date of each of the following conditions (except to the extent that
Tiger Bay shall have hereafter agreed in writing to waive one or more of such
conditions, provided, however, that the conditions set forth in SECTIONS 6.02(g)
AND 6.02(j) cannot be waived without the written consent of Polk County CoGen,
Inc.):
(a) COMPLIANCE WITH AGREEMENT. FPC and Guarantor shall have
performed and complied with all covenants to be performed or complied with by
each on or prior to the Closing.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of FPC and Guarantor contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date.
(c) GOVERNMENTAL FILINGS AND ORDERS. With respect to the filings
contemplated by SECTIONS 5.01(d) and 5.02(a), (i) the waiting period under the
HSR Act shall have expired, (ii) the FPSC shall have issued a final, non-
appealable order approving the transactions envisioned by this Agreement in form
and substance satisfactory to FPC and Guarantor; provided, however, that any
such FPSC order that provides for approval of the transfer by FPC to Guarantor,
following the Closing, of the Assets and the Additional Assets and for cost
recovery by Guarantor of the Purchase Price over a period not to exceed 5 years
shall be satisfactory to FPC and Guarantor, and (iii) the FERC shall have issued
an order approving the transfer by Tiger Bay to FPC of any of the Assets or the
Additional Assets over which it has jurisdiction and the transfer by FPC to
Guarantor of any of the Assets or the Additional Assets over which it has
jurisdiction.
(d) LITIGATION. There shall not be pending any litigation or
proceeding (filed by a person or entity other than Tiger Bay or its Affiliates)
to restrain or prohibit the transactions contemplated by this Agreement or to
obtain material damages or other material relief in connection with the
consummation of such transactions.
(e) PAYMENT OF PURCHASE PRICE. Tiger Bay shall have received the
payment of the Purchase Price pursuant to SECTION 2.02.
(f) CERTIFICATE. FPC and Guarantor shall have delivered to Tiger Bay
a certificate, dated the Closing Date, executed on behalf of each by its
president or a vice president, to the effect that (i) the conditions of SECTIONS
6.02(a) and (b) have been satisfied insofar as they relate to FPC
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and Guarantor and (ii) FPC has had such access to the Assets and the Additional
Assets, the records of Tiger Bay and such of Tiger Bay's officers, directors and
agents as it desired in order to enable it to perform all the due diligence that
it desired to perform in order to enable it to evaluate the risks and merits of
the transactions contemplated hereby.
(g) BOARD APPROVAL. On or before January 21, 1997, or such later
date as may by mutually agreed to by FPC, Tiger Bay and Destec Energy, Inc., the
Board of Directors of Destec Energy, Inc. shall have duly approved the
consummation of the transactions contemplated by this Agreement (the "BOARD
APPROVAL").
(h) CONSENTS AND RELEASES. Any consents required from third parties
in connection with the Assignments shall have been obtained and Tiger Bay shall
have obtained releases, in form and substance satisfactory to Tiger Bay, of the
Assigned Contracts and the Credit Support Obligations and Tiger Bay shall have
received all funds in accounts identified on SCHEDULE 6.02(j).
(i) OPINION OF COUNSEL. Tiger Bay shall have received an opinion of
FPC's and Guarantor's counsel dated as of the Closing Date substantially in the
form of EXHIBIT F.
(j) CLOSING OF DESTEC SALE. The closing of the sale of Destec
Energy, Inc. shall have been consummated.
ARTICLE VII
LIMITATIONS
SECTION 7.01 REPRESENTATIONS AND WARRANTIES. (a) The representations
and warranties of Tiger Bay contained in this Agreement or in any document or
instrument executed in connection herewith shall not survive the Closing.
(b) EXCEPT AS EXPRESSLY SET OUT HEREIN, TIGER BAY MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO MERCHANTABILITY OR
FITNESS FOR ANY PURPOSE.
SECTION 7.02 REMEDIES. (a) The sole remedy of any party for any
breach by another party of any representation or warranty made by such party
herein is to terminate the Agreement pursuant to and in accordance with ARTICLE
VIII.
(b) Nothing herein shall restrict any party from pursuing any rights
or remedies available to it at law or in equity in the event of a breach by
another party of any covenant or obligation hereunder (exclusive of
ARTICLE VII); provided, however, that no party shall be liable to
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any other party for any consequential, incidental, special, or indirect damages
(including lost profits) or punitive damages, whether based on statute,
contract, tort or otherwise.
ARTICLE VIII
TERMINATION RIGHTS
SECTION 8.01 TERMINATION. This Agreement may be terminated at any
time prior to the Closing Date as follows, and in no other manner:
(a) by mutual consent of FPC, Guarantor, and Tiger Bay;
(b) after January 21, 1997, or such later date for obtaining Board
Approval as has been mutually agreed to by FPC, Tiger Bay and Destec Energy,
Inc., by written notice from any party to the others, if the Board Approval has
not been obtained prior to the giving of such notice;
(c) prior to February 1, 1997, by written notice from FPC to Tiger
Bay that FPC's due diligence with respect to the Assets (except with respect to
the Plant gas turbine compressor) has been completed and the results were
unsatisfactory to it, and FPC is therefore terminating this Agreement;
(d) on or prior to April 30, 1997, by written notice from FPC to
Tiger Bay that:
(i) FPC's investigation of the Plant gas turbine compressor
conducted during the period of the outage of the Plant scheduled to begin
on March 15, 1997 (the "Scheduled Outage") has been completed; provided,
however, that if FPC requests that Tiger Bay open the compressor casing in
connection with such investigation, Tiger Bay shall do so and (A) FPC shall
reimburse Tiger Bay for all costs and expenses incurred by Tiger Bay to
open and close the compressor casing within twenty days after receipt of
Tiger Bay's invoice therefor, and (B) for purposes of the capacity factor
calculations pursuant to the PPAs, Guarantor shall exclude all the hours,
if any, by which the Scheduled Outage was extended due to the opening and
closing of the compressor casing at FPC's request; and
(ii) in the written opinion of FPC's professional engineer
performing or supervising such investigation rendered in good faith (the
"Engineering Opinion"), based on General Electric approved repair criteria
and performance versus aging data, such investigation has revealed that the
mechanical integrity of the compressor is compromised and/or that a
material loss of performance has resulted or will result in excess of that
which is to be expected from normal aging, unless Tiger Bay within ten days
after receipt of such notice and the Engineering Opinion shall have either
(i) offered in writing to repair or replace such compressor at no
additional cost to FPC, or (ii) shall have given FPC written notice that
Tiger Bay disputes the conclusion(s) reached in such Engineering Opinion.
In the event that Tiger Bay disputes the Engineering Opinion and such
dispute is not resolved by good faith
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negotiations between FPC and Tiger Bay within thirty days after FPC's
receipt of written notice of such dispute, termination hereunder shall
become effective at the end of such thirty-day period.
(e) by notice from Tiger Bay to FPC, if the Closing Date shall not
have occurred on or before July 1, 1997 (or such later date as may have been
agreed upon in writing by the parties); provided, however that if (i) by July 1,
1997 the FPSC has issued an order approving the transactions contemplated by
this Agreement satisfactory to FPC and Guarantor in accordance with SECTIONS
6.01(c)(ii) and 6.02(c)(ii) and no party has filed an appeal therefrom, but the
time period(s) for filing any such appeal (the "Appeal Period") shall not have
expired, and (ii) all conditions in SECTION 6.02 except SECTION 6.02(c)(ii) have
been fulfilled or waived in accordance therewith, then Tiger Bay may exercise
its right to terminate this Agreement pursuant to this SECTION 8.01(e) only if
an appeal of such FPSC order is filed during the Appeal Period.
(f) by any party by notice to the others, if a final non-appealable
judgment has been entered against such party or any of its Affiliates
restraining, prohibiting or declaring illegal the transactions contemplated
hereby; or
(g) by a non-defaulting party giving written notice to a defaulting
party provided that the non-defaulting party shall have previously given the
defaulting party written notice specifying the nature of the default and thirty
days have passed since such notice was given and the default has not been cured
or waived. A party shall be in default under this Agreement, and thereby a
defaulting party, in the event that (i) any representation or warranty made by
such party in this Agreement shall prove to be false or misleading in any
material respect, (ii) such party fails to perform any covenant set forth in
this Agreement, or (iii) such party fails to timely perform or satisfy any
material obligation set forth in this Agreement to be performed or satisfied by
it.
(h) by written notice from any party to the others, if the FPSC
issues an order denying approval of the transaction envisioned by this
Agreement, or if the FPSC fails to issue an order in accordance with SECTIONS
6.01(c)(ii) and 6.02(c)(ii) on or before July 1, 1997; provided, however, that
if by July 1, 1997 the FPSC has issued an order approving the transactions
contemplated by this Agreement satisfactory to FPC and Guarantor in accordance
with SECTIONS 6.01(c)(ii) and 6.02(c)(ii) and no party has filed an appeal
therefrom, but the Appeal Period shall not have expired, then a party may
exercise its right to terminate this Agreement pursuant to this SECTION 8.01(h)
only if an appeal of such FPSC order is filed during such Appeal Period.
SECTION 8.02 LIMITATION ON RIGHT TO TERMINATE; EFFECT OF TERMINATION.
A party shall not be allowed to exercise any right of termination pursuant to
SECTION 8.01 if the event giving rise to the termination right shall be due to
the failure of such party or its Affiliate to perform or observe in any material
respect any of the covenants set forth herein to be performed or observed by
such party of its Affiliate; provided that SECTIONS 4.01(i), 4.02(f), 5.01(f),
5.02(c), 5.02(d), 5.03, 8.01(d)(i), 8.02 and 9.09 shall survive any such
termination.
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ARTICLE IX
GENERAL
SECTION 9.01 EXCLUSIVE AGREEMENT; SCHEDULES. This Agreement and the
attached schedules and exhibits and the agreements and documents to be executed
pursuant hereto set forth the entire agreement and understanding of the parties
in respect of the transactions contemplated hereby and supersede all prior
agreements, arrangements and undertakings (oral or written) relating to the
subject matter hereof. The disclosures in the Schedules hereto are to be taken
as relating to the representations and warranties of Tiger Bay as a whole. The
inclusion of information in the Schedules hereto shall not be construed as an
admission that such information is material. In addition, matters reflected in
the Schedules are not necessarily limited to matters required by this Agreement
to be reflected on such Schedules. Such additional matters are set forth for
information purposes only and do not necessarily include other matters of a
similar nature. No representation, promise, inducement or statement of intention
has been made by any party which is not embodied in or superseded by this
Agreement or the Confidentiality Agreement or in the agreements and documents
to be executed pursuant hereto, and no party shall be bound by or liable for any
alleged representation, promise, inducement or statement of intention not so set
forth.
SECTION 9.02 ASSIGNMENT. This Agreement and the rights and
obligations hereunder shall not be assigned by any party hereto without the
prior written consent of the other parties, except that any party may assign an
interest in all of its rights hereunder to any Affiliate after the Closing;
provided that no assignment shall relieve the assigning party of any of its
warranties, representations, or obligations contained herein.
SECTION 9.03 AMENDMENTS. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
executed by the parties, or, in the case of a waiver, by or on behalf of the
party waiving compliance. The failure of any party at any time or times to
require performance of any provisions hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by any party of any condition, or
of any breach of any term, covenant, representation or warranty contained in
this Agreement, in any one or more instances, shall be deemed to be or construed
as a further or continuing waiver of any such condition or breach or a waiver of
any other condition or of any breach of any other term, covenant, representation
or warranty. Notwithstanding the foregoing, in the event that the Closing
occurs, any condition not theretofore fulfilled will be deemed waived.
SECTION 9.04 FURTHER ASSURANCES. The parties agree to execute such
further instruments or documents as any party may from time to time reasonably
request in order to confirm or carry out the transactions contemplated in this
Agreement; provided that no such instrument or document shall expand a party's
liability beyond that contemplated in this Agreement.
SECTION 9.05 NOTICES. All notices, requests, demands and other
communications (collectively, "NOTICES") required or permitted to be given
hereunder shall be in writing and
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delivered personally, or by facsimile transmission or mailed first class,
postage prepaid, registered or certified mail, as follows:
If to Tiger Bay, to:
Tiger Bay Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Central Florida DGE, Inc.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to FPC, to:
FPC Acquisition L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Guarantor, to:
Florida Power Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be effective upon receipt. Any party may change its Notice
address by giving written Notice to the other in the manner specified above.
SECTION 9.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 9.07 SEVERABILITY. In the event any of the provisions hereof
are held to be invalid or unenforceable under any Legal Requirement, the
remaining provisions hereof shall not be affected thereby. In such event, the
parties hereto agree and consent that such provisions and this Agreement shall
be modified and reformed so as to effect the original intent of the parties as
closely as possible with respect to those provisions which were held to be
invalid or unenforceable.
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SECTION 9.08 COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute but one agreement.
SECTION 9.09 EXPENSES. Except as expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each party shall pay its own expenses incident to the preparation of the
Agreement and for consummating the transaction.
SECTION 9.10 CONDITION TO TIGER BAY'S OBLIGATIONS. Except with
respect to the second sentence of this SECTION 9.10, Tiger Bay's obligations
hereunder shall be conditioned upon its receipt from the Banks of their
consent(s) to the execution of this Agreement. Tiger Bay shall use its Best
Efforts to obtain such consent(s) as soon as practicable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
TIGER BAY LIMITED PARTNERSHIP
By: Central Florida DGE, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: Vice President
--------------------------
FPC ACQUISITION L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: President
--------------------------
For: Florida Power Corporation,
its sole member
FLORIDA POWER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: President
--------------------------
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