FOURTH AMENDMENT TO UNIT POWER AGREEMENT FOR
THE SALE OF UNIT CAPACITY AND ENERGY
FROM OCEAN STATE POWER II TO NEWPORT ELECTRIC CORPORATION
This Fourth Amendment is entered into this 12th day of February, 1996, by
and between Ocean State Power II, 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 July 12, 1988 (as amended prior to the date hereof, the "Unit Power
Agreement"); and
WHEREAS, under a Consent, Assignment and Assumption Agreement dated March
1, 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 Fourth 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)(2) 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 Fourth Amendment that Seller shall have obtained the consent of the
Majority Noteholders (as defined in the Note and Guaranty Agreement, dated
October l9, 1992) with respect to this Amendment.
IN WITNESS WHEREOF, Seller and Buyer have executed this Fourth Amendment
to the Unit Power Agreement for the Sale of Unit Capacity and Energy from
Ocean State Power II to Newport Electric Corporation, as of the date written
above.
OCEAN STATE POWER II, a General Partnership
By: JMC Ocean State Corporation,
a General Partner,
By: /s/ Xxxxxxx XxXxxxxx
Title: Vice President
MONTAUP ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President
