EIGHTH AMENDMENT TO UNIT POWER AGREEMENT FOR
THE SALE OF UNIT CAPACITY AND ENERGY
FROM OCEAN STATE POWER TO NEWPORT ELECTRIC CORPORATION
This Eighth Amendment is entered into this 12th day of February, 1996, by
and between Ocean State Power, a Rhode Island general partnership with its
principal office in Burrillville, Rhode Island ("Seller"), and Montaup Electric
Company, a Massachusetts corporation with its principal office in Boston,
Massachusetts ("Buyer").
WHEREAS, Seller and Newport Electric Corporation ("Newport") entered into a
Unit Power Agreement for the Sale of Unit Capacity and Energy from Seller's
combined-cycle generating plant located in Burrillville, Rhode Island, dated as
of May 14, 1986 (as amended prior to the date hereof, the "Unit Power
Agreement"); and
WHEREAS, under a Consent, Assignment and Assumption Agreement dated March
13, 1994, Newport, with Seller's consent, assigned its rights and obligations
under the Unit Power Agreement to Buyer and Buyer assumed those obligations; and
WHEREAS, Seller and Buyer propose to amend further the Unit Power Agreement
as set forth below.
NOW THEREFORE, in consideration of the mutual undertakings and agreements
contained in the Unit Power Agreement and in this Eighth Amendment, Seller and
Buyer hereby agree to amend the Unit Power Agreement as follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms
shall have the respective meanings ascribed to them in the Unit Power
Agreement, as amended hereby, unless otherwise provided.
2. Amendment. The following new paragraph shall be inserted at the end of
Article 7.4:
Buyer and Seller agree that if (i) Seller computes the monthly allowance
for income taxes pursuant to Article 7.3(b)(2) of this Agreement on the basis of
an effective income tax rate (other than for federal income taxes) that differs
from the applicable income tax rate as determined by a Competent Taxing
Authority, or (ii) Seller's charges for state excise taxes pursuant to Article
7.3(a)(4) of this Agreement differ from the actual liability of Seller or
partners in Seller as determined by a Competent Taxing Authority, then Seller
shall true-up any such difference, and shall either refund to Buyer or collect
from Buyer the Buyer's Share of the difference between the amount previously
billed and the amount of (a) the monthly allowance under Article 7.3(b)( 7)
computed on the basis of such applicable income tax rate, (b) the charges for
taxes under Article 7.3(a)(4) based on such actual tax liability of Seller or
partners in Seller, and (c) interest and penalties, if any, assessed (or
credited in the case of overpayments) by a Competent Taxing Authority with
respect to such taxes. Notwithstanding anything to the contrary in this Article
7.4, Seller shall true-up any such tax allowance or charges with respect to any
Contract Year at any time during the term of this Agreement or after the
termination of this Agreement, irrespective of whether Seller previously had
rendered recomputed bills pursuant to Article 7.4; provided, however, that
Seller shall render a statement for such true-up not later than three months
following a final and non-appealable determination with respect to any such tax
liabilities. Seller (or partners in Seller as the case may be) agrees to take
reasonable actions to contest or challenge any assessment of taxes subject to
true-up pursuant to this paragraph, and the Operating Committee shall determine
what reasonable actions should be taken in this regard. For purposes of this
Article 7.4, "Competent Taxing Authority" shall mean any state taxing authority
having jurisdiction over Seller or partners in Seller with respect to corporate
income and corporate excise taxes, and "applicable income tax rate" shall mean
the effective rate of corporate income tax found to be applicable to Seller or
partners in Seller with respect to income of Seller.
3. Effectiveness. It shall be a condition precedent to the effectiveness of
this Eighth Amendment that Seller shall have obtained the consent of the
Majority Noteholders (as defined in the Note and Guaranty Agreement,
dated October 19, 1992) with respect to this Amendment.
IN WITNESS WHEREOF, Seller and Buyer have executed this Eighth Amendment to
the Unit Power Agreement for the Sale of Unit Capacity and Energy from Ocean
State Power to Newport Electric Corporation, as of the date written above.
OCEAN STATE POWER, a General
Partnership
By: JMC Ocean State
Corporation, a General
Partner
By: Xxxxxxx XxXxxxxx
Title: Vice President
MONTAUP ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President
