SEVENTH AMENDMENT TO UNIT POWER AGREEMENT FOR
THE SALE OF UNIT CAPACITY AND ENERGY
FROM OCEAN STATE POWER TO MONTAUP ELECTRIC COMPANY
This Seventh 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 Buyer have entered into a Unit Power Agreement for
the Sale of Unit Capacity and Energy from Seller's combined-cycle generation
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, 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 Seventh
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 Seventh 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 Seventh
Amendment to the Unit Power Agreement for the Sale of Unit Capacity and Energy
from Ocean State Power to Montaup Electric Company, as of the date written
above.
OCEAN STATE POWER, a General
Partnership
By: JMC Ocean State
Corporation, a General
Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
MONTAUP ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President