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EXHIBIT 6
ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER
This Addendum to the Agreement and Plan of Merger (this "Agreement"),
dated as of June 30, 2000, is entered into by and among Black Hills
Corporation, Black Hills Energy Capital, Inc., Indeck Capital, Inc., Gerald
R. Forsythe, Michelle R. Fawcett, Marsha Fournier, Monica Breslow, Melissa
S. Forsythe, and John W. Salyer, Jr., (collectively referred to as the
"Parties") and is an addendum to that certain Agreement and Plan of Merger,
by and among Black Hills Corporation, Black Hills Energy Capital, Inc.,
Indeck Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha
Fournier, Monica Breslow, Melissa S. Forsythe, and John W. Salyer, Jr.,
dated as of January 1, 2000, as amended to date (the "Merger Agreement").
RECITALS
The purpose of this Agreement is to modify certain terms, conditions
and obligations of the respective Parties pursuant to the Merger Agreement
(including the schedules, exhibits, annexes and documents delivered
thereto). Only those terms, conditions and obligations of the Merger
Agreement which are identified and modified by this Agreement shall be
changed; and all other terms, conditions and obligations shall remain as
originally stated in the Merger Agreement. In the event of a conflict
between this Agreement and the Merger Agreement (including all addenda,
supplements, schedules, exhibits, annexes and documents delivered thereto
and which continue to be in full force and effect), the terms of this
Agreement shall control.
NOW, THEREFORE, the Parties hereto agree as follows:
1. The following provision shall be added to the Agreement as 8.3(y):
(y) QF Adirondack Projects. The Company shall have transferred: (i) its
entire interest in the Middle Falls Limited Partnership and (ii)
one-half of its interest, including any right to an automatic increase
in that interest due to "Flip-Up LP Interests" (as defined in the
Amended and Restated Limited Partnership Agreement of Northern Electric
Power Co., L.P., dated February 15, 1994, and the Amended and Restated
Limited Partnership Agreement of South Glens Falls Limited Partnership,
dated March 18, 1993) in the Northern Electric Power Co., L.P., and
South Glens Falls Limited Partnership to an entity agreed upon by the
parties hereto and in consideration for a secured promissory note in
form and substance reasonably satisfactory to Parent.
2. The following provisions shall be deleted from the Merger Agreement
and shall be without force or effect:
Section 8.3(v)
Section 8.3(w)
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3. The following provision shall be added to the Merger Agreement as
8.3(z):
(z) EWG Adirondack Projects. With respect to the Sissonville Facility,
NYSD Facility, Warrensburg Facility and Otter Creek Facility, the
Company shall have caused the applicable owner of each Facility to have
(i) executed a Termination and Settlement Agreement with Niagara Mohawk
Power Corporation ("NMPC"), (ii)executed a Power Sales Agreement with
NMPC ("Adirondack Power Sales Agreements") and an Interconnection
Agreement with NMPC, and (iii) filed with the FERC applications for
Exempt Wholesale Generator status and approval of electricity rates
consistent with the Adirondack Power Sales Agreements.
4. Schedule 5.15 is amended by adding the following item:
City of Long Beach v. Indeck Harbor LLC. The City of Long Beach filed
an action on June 1, 2000 against Indeck Harbor LLC ("Harbor") in which
the Company owns indirectly approximately 18% and in which Black Hills
Corporation owns indirectly approximately 14% seeking damages in excess
of $2.5 million for breach of contract. The complaint was filed in
Superior Court in California in the County of Los Angeles. Harbor has
not yet responded to the complaint but intends to deny the claims of
the City of Long Beach and vigorously defend its position.
5. The following provision shall be added to the Merger Agreement as
2.2(d):
(d) Notwithstanding any other provision of this Agreement, in no event
shall the consideration paid to the Stockholders by Parent pursuant to
Section 2.2 and Section 2.2(c) in combination, exceed an aggregate
value of Thirty-Five Million Dollars ($35,000,000).
6. Notwithstanding any provision of the Merger Agreement or the Addendums,
the obligations of Parent, Newco, the Company, and the Shareholders to
Close the Merger are hereby extended to July 7, 2000 and each party waives
the failure of the Company to obtain the consent of Toronto Dominion Bank
and any other Lenders to any and all defaults under the applicable credit
agreements for the Middle Falls, New York State Dam and Sissonville
projects.
This Agreement shall be governed under the laws of the State of
Delaware.
This Agreement may be signed in two or more counterparts, each of which
when duly executed and delivered shall be deemed an original and all of
which together shall constitute one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BLACK HILLS CORPORATION
By: /s/
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Name:
-----------------------------
Title:
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BLACK HILLS ENERGY CAPITAL, INC.
By: /s/
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Name:
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Title:
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INDECK CAPITAL, INC.
By: /s/
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Name: John W. Salyer, Jr.
Title: President
/s/
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GERALD R. FORSYTHE
/s/
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MICHELLE R. FAWCETT
/s/
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MARSHA FOURNIER
/s/
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MONICA BRESLOW
/s/
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MELISSA S. FORSYTHE
/s/
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JOHN W. SALYER, JR.
