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2002 SEC 10-K EXHIBIT 10-B-92
FOURTH AMENDMENT AGREEMENT
BETWEEN
XXXXXX XXXXXXX CAPITAL GROUP INC.
AND
GREEN MOUNTAIN POWER CORPORATION
THIS FOURTH AMENDMENT AGREEMENT, dated as of August 5, 2002 , (the "Third
Amendment"), is entered into by and between Green Mountain Power Corporation, a
corporation organized and existing under the laws of Vermont (together with any
permitted successor or assign, "GMP"), and Xxxxxx Xxxxxxx Capital Group Inc., a
corporation organized and existing under the laws of Delaware (together with any
permitted successor or assign, "MSCG").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS MSCG and GMP have previously entered into that certain Power
Purchase and Sale Agreement, dated as of February 11, 1999 (the "Master
Agreement"), which, along with the following documents, constitute the
"Agreement":
1. "The First Amendment Agreement to the Power Purchase and Sale Agreement
between Xxxxxx Xxxxxxx Capital Group Inc. and Green Mountain Power Corporation";
2. the "Agreement for Procedures on Nominations and Scheduling";
3. the "Agreement Between Green Mountain Power Corporation and Xxxxxx
Xxxxxxx Capital Group Inc. Concerning the Mitigation of Financial Risk Related
to Initial Implementation";
4. the "Confirmation of Transaction between Xxxxxx Xxxxxxx Capital Group
Inc. and Green Mountain Power Corporation," dated February 11, 1999, setting
forth the terms of GMP's sale and delivery of Firm Energy to MSCG ("GMP Sales
Confirmation"); and
5. the "Confirmation of Transaction between Xxxxxx Xxxxxxx Capital Group
Inc. and Green Mountain Power Corporation," dated February 11, 1999, setting
forth the terms of MSCG's direct or indirect sale and delivery of Firm Energy
to GMP ("MSCG Sales Confirmation"); and
6. the "Second Amendment Agreement To The Power Purchase And Sale Agreement
between Xxxxxx Xxxxxxx Capital Group Inc. and Green Mountain Power" ("Second
Amendment"); and
7. the "Agency Agreement Between Xxxxxx Xxxxxxx Capital Group, Inc. and
Green Mountain Power Corporation", effective February 1, 2000, which pertains to
MSCG's provision of scheduling and bidding services to GMP; and
8. the "Third Amendment Agreement Between Xxxxxx Xxxxxxx Capital Group, Inc.
and Green Mountain Power Corporation", effective January 1, 2001.
WHEREAS the Parties wish to amend the terms and conditions of the Agreement
as set forth below in this Fourth Amendment;
NOW THEREFORE, in consideration of mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties acknowledge and agree as follows:
1. a. The Third Amendment shall be replaced and superseded by this
Fourth Amendment effective as of January 1, 2004, but shall remain in effect
(subject to the modification set forth in 1.b. below) through December 31, 2003
unless otherwise agreed by the Parties in a separate written and executed
amendment thereto.
b. The price charged by MSCG and paid by GMP for Firm Energy sold by MSCG
pursuant to the Third Amendment, as reflected in Exhibit 2.2B to the MSCG Sales
Confirmation, shall be changed to $31.45/MWH for the period January 1, 2003
through December 31, 2003.
2. The Second Amendment, as amended by the Third Amendment, is hereby
further amended as follows:
a. The definition of "Agreement" is modified as set forth above and further
amended upon the Effective Date set forth herein to include this Fourth
Amendment.
b. Section 2(a) is amended by replacing it, in its entirety, with the
following:
"the term of each of the constituent documents of the Agreement, except for the
Master Agreement, the term of which shall be unaffected by this Amendment, shall
be extended to December 31, 2006;"
c. Exhibit 2.0B to the GMP Sales Confirmation (which was added by the Third
Amendment to replace Exhibit 2.0A as described in Section 2(b) of the Second
Amendment), shall be replaced with Exhibit 2.0C effective January 1, 2004.
Exhibit 2.0C is attached hereto.
d. Exhibit 2.1B and Exhibit 2.2B to the MSCG Sales Confirmation (which were
added by the Third Amendment to replace Exhibit 2.1A and Exhibit 2.2A, as
described in Section 2(c) of the Second Amendment) shall be replaced with
Exhibit 2.1C and Exhibit 2.2C effective January 1, 2004. Exhibit 2.1C and 2.2C
are attached hereto.
3. The Agency Agreement is modified as of the Effective Date of this Fourth
Amendment
a. to extend the term to December 31,2006 as stated above with respect to
the constituent documents of the Agreement;
b. by deleting the two paragraphs following the subtitle "HQ9601 Contract:"
of Attachment A to the "Agency Agreement;"
c. by agreeing that when NEPOOL's Standard Market Design is implemented, the
Parties will discuss possible ways to provide economic incentives to MSCG, in
MSCG's agency role, to maximize the benefits to GMP with respect to the
acquisition and disposition of electric energy and any other assets covered by
the Agency Agreement, provided that nothing herein is intended to modify any
other purchase or sales commitments embodied in the Agreement;
d. by amending Section 1.9 to insert prior to the period at the end: "or
such successor exhibits as may be substituted for Exhibit 2.0A of the by
subsequent amendments, including, but not necessarily limited to, the Third
Amendment (Exhibit 2.0B) and the Fourth Amendment (Exhibit 2.0C)";
e. by deleting Section 2.3(b) and replacing the period at the end of Section
2.3(a)(iv) with "; and".
4. Deliveries of Firm Energy by MSCG to GMP shall be to GMP load in the
NEPOOL-designated Vermont delivery zone ("Vermont Load Zone") (as defined as the
State of Vermont by the Composite Restated NEPOOL Agreement (through the 76th
Amendment) Sheet No. 198OO). This shall be the delivery point for MSCG supply
obligations for this transaction effective upon NEPOOL's implementation of the
Vermont Load Zone for transmission pricing. GMP shall receive the benefits of
any FCRs or Auction Revenue Rights ("ARRs") allocated to it by NEPOOL. MSCG
will have a right but not an obligation to use free of charge all or any part of
the FCR and ARR allocation that GMP receives in conjunction with its contractual
rights associated with the Xxxxx 4 and Stonybrook plants identified in Exhibit
2.0C of the GMP Sales Confirmation. GMP is responsible for making power
supplies from the resources on which Contract Resources are modeled ("Contract
Resource Locations") available at Xxxxx 4 and Stonybrook at their respective
busbars in accordance with Exhibit 2.0C to the GMP Sales Confirmation, or to the
NEPOOL hub in the event that the units have not been dispatched by ISO New
England. If NEPOOL or a successor organization fails to implement, as part of
its revised standard market design, zonal pricing based on the Vermont Load Zone
during the course of this transaction, sales by MSCG to GMP and sales by GMP to
MSCG will continue to be made at the NEPOOL PTF. If a market structure other
than Standard Market Design is implemented the Parties will attempt to negotiate
an adjustment to their Agreement in order to restore the Parties as nearly as
possible to the economic positions they would have occupied without the change
by NEPOOL or its successor organization. Such negotiations will commence within
seven (7) days after the adversely affected Party gives written notice to the
other Party of the nature of the harmful change by NEPOOL, the nature of the
harm, and the requesting Party's proposed solution. The Parties will attempt to
reach a resolution within sixty (60) days of the notice requesting such
negotiations. If the adverse impacts of the change(s) by NEPOOL (or its
successor) are, if fact, materially harmful to one of the Parties and no
negotiated resolution is achieved, the dispute will be resolved in accordance
with the second paragraph of Section 15.3 of the Master Agreement (and, if
necessary, by arbitration pursuant to Article 13, as provided in Section 15.3).
5. The Parties' obligation to sell, purchase and/or deliver "OPCAP" under
the Agreement no longer exists notwithstanding any other statement in the
AgreementGMP is responsible for obtaining, at its expense, any ancillary
services, reserves, capacity and necessary firm transmission required by it to
satisfy the requirements of NEPOOL and its own system reliability requirements.
6. Effective as of the implementation of Standard Market Design within NEPOOL
Section 1(d) of the Agreement for Procedures on Nominating and Scheduling,
dated February 11, 1999, will be eliminated, and Section 1(e) of such agreement
will be modified by replacing "3:00 PM EPT" with "10:00 A.M. EPT" as the time
for MSCG's submission to GMP of the MS Schedule.
7. Each Party warrants that it has all legal, corporate and governmental
authority needed to execute and implement this Third Amendment and the Agreement
as amended thereby. Each Party reaffirms, both in connection with this Third
Amendment and the Agreement as a whole, each of the representations and
warranties set forth in Article 11 of the Master Agreement.
IN WITNESS WHEREOF, the Parties have caused this Fourth Amendment to be executed
by their duly authorized officers effective as of the date first written above
("Effective Date").
GREEN MOUNTAIN POWER CORPORATION XXXXXX XXXXXXX CAPITAL GROUP INC.
/s/ Xxxxxxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx
---------------------------- ----------------------
By:Xxxxxxxxxxx X. Xxxxxx By:Xxxxxxx X. Xxxx
Title:CEO Title:Vice President
