Answering Statement and Request for Dismissal by Gainesville ..

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After the PPA had been executed and delivere d, construction financing for the Facility had been committed and funded, and the Facility was under construction, GREC and GRU did engage in some discussions regarding potentia l ways to reduce GRU’s costs including a socalled “pre-pay option,” which might have gene rated capital cost savings. GREC had these discussions with GRU, and expend ed resources to do so, despit e having no legal obligation to renegotiate the agreed-to terms within the PPA. Only after discussions regarding the pre-pay option fell through did GRU file its original demand. Significantly, GRU filed its original demand purporting to challenge GREC’s failure to provide GRU with a Right of First Offer nearly twelve months after Tyr transferred its interest to Starwood without any objection by GRU. In filing both its original demand and th e Amended Demand, GRU disregarded several controlling provisions of the PPA, including: • GRU did not attempt to comply with the dispute resolution procedure set forth in Section 24.1 of the PPA prio r to bringing its claim in arbitration, failing to send any notice of its claim to GREC. • In addition to naming GREC, the Amended Demand improperly attempts to name as respondents entities for which GRU expr essly waived and released all right to assert liability under the PPA or to satisfy any cl aim arising under the PPA pursuant to Section 26.3. • GRU seeks specific performance despite th e parties’ waiver of this remedy in Section 26.1 of the PPA. • The Amended Demand relies exclusively on GRU’s inaccurate articulation of the parties’ rights and obligations under Section 27.3 of the PPA. A/75508616.1 16
III. ARGUMENT A. The PPA Precludes Specific Performance, the Remedy GRU Seeks. Section 26.1 of the PPA precludes specific performance as a remedy: See PPA § 26.1. . . . If no remedy or measure of damage s is expressly provided herein, the obligor’s liability shall be limited to direct actual damages only, such direct actual damages shall be the so le and exclusive remedy and all other remedies or damages at law or in equity are waived. . . . Section 27.3, the provision GRU relies on for it s claim that it was entitled to a Right of First Offer, does not “expressly provide[ ]” for any remedy or measure of damages in the event of a breach. Absent another remedy or measur e of damages expressly provided, Section 26.1 of the PPA clearly limits GREC’s liability for any alleged breach to “direct actual damages only.” GRU has waived “all other remedies or damages at law or in equity.” In its original demand, GRU sought “specific specifically to include providing GRU with the oppor performance of the Right of First Offer, tunity to make an offer to purchase the Facility.” Demand at 27. In its Amende d Demand, GRU seeks to bypass the ROFO process and requests an order directing GREC to sell th e entire Facility to GRU. Amended Demand at 31. The relief GRU seeks in its Amended Demand – an order directing GREC to sell the entire Facility to GRU – still is specific performance, an equitable remedy. See LaGorce Palace Condo Assoc., Inc. v. QBE Ins. Corp. , 733 F. Supp. 2d 1332, 1334 (S.D. Fla. 2010) (“Specific performance is an equitable remedy as opposed to a legal cause of action.”). For this reason, GRU’s Amended Demand is fatally flawed and the Arbitrator should dismiss it in its entirety. B. There Has Been No Sale of the Facility, Di rectly or Indirectly Through a “Change Of Control” of GREC. Setting aside GRU’s failure to comply with the notice requirement and request for an impermissible remedy, GRU fails to assert any ba sis for liability against GREC because GREC has not breached Section 27.3, nor any other section, of the PPA . GRU contends that GREC A/75508616.1 17
Page 1 and 2: AMERICAN ARBITRATION ASSOCIATION TH
Page 3 and 4: Facility to be ineligible to receiv
Page 5 and 6: federal incentives (and hence that
Page 7 and 8: hundreds of millions of dollars for
Page 9 and 10: No Recourse; Limited Liability . No
Page 11 and 12: BayCorp, EMI, and Tyr each appointe
Page 13 and 14: The ownership structure of GREC as
Page 15: operational management today as whe
Page 19 and 20: For example, the ROFO provision mak
Page 21 and 22: 3. The Transfer of Tyr’s Interest
Page 23 and 24: 1. GRU Has Not Indicated Any Intere
Page 25 and 26: Seventh Affirmative Defense GRU fai
Page 27 and 28: have any ownership interest in GR E
Page 29 and 30: Facility; and damages from confiden
Page 31: 20. GRU and GREC are engaged in the

Answering Statement and Request for Dismissal by Gainesville ..

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