EXHIBIT 10.1
------------
16
FOURTH AMENDMENT
THIS FOURTH AMENDMENT, made and entered into as of the 26th day of June
1996, by and between Selkirk Cogen Partners, L.P. ("Selkirk") and Niagara
Mohawk Power Corporation ("NIAGARA"). Capitalized terms not defined herein
shall have the meaning set forth in the Power Purchase Agreement (as defined
below).
WHEREAS, Selkirk (by assignment) and NIAGARA are parties to an Agreement
dated December 7, 1987, which was approved by the Public Service Commission
of the State of New York on March 30, 1988, as amended by an Amendment dated
December 14, 1989, a Second Amendment dated January 25, 1990, a Third
Amendment dated October 23, 1992, and an Agreement dated March 31, 1994
(collectively, the "Power Purchase Agreement"); and
WHEREAS, Selkirk and NIAGARA have agreed to amend the Power Purchase
Agreement to set forth new procedures for determining the PLANT's DMNC;
NOW, THEREFORE, in consideration of the premises and covenants
hereinafter set forth, the parties hereto have agreed and do hereby mutually
agree as follows:
FIRST: The last paragraph of Section I of Attachment I to the Power
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following in lieu thereof:
"The Dependable Maximum Net Capability ("DMNC" ) shall be
determined in accordance with the testing procedures set forth in
Section VII of this Attachment I."
SECOND: Section VII(a) of Attachment I to the Power Purchase Agreement
is hereby amended as follows:
17
1. by inserting in the first sentence the phrase "testing procedures set
forth in Section VII(c) of this Attachment I and Sections II (A), II
(D), VII (A) and VII (C) of" after the phrase "accordance with the";
and
2. by deleting the last sentence of Section VII(a) of Attachment I.
THIRD: Section VII(c) of Attachment I to the Power Purchase Agreement is
hereby amended by deleting it in its entirety and substituting the following
in lieu thereof:
"(c) Semi-Annual Capability Test. Throughout the term of the
Agreement, SELLER shall schedule and conduct at least one ( 1 )
Capability Test, and may, at SELLER's discretion, schedule, up to
three (3) additional Capability Tests, per Capability Demonstration
Period to determine the DMNC. For the purposes of this AGREEMENT,
the Capability Demonstration Periods shall be, in each year, between
November 1 and April 15 ("Winter Capability Demonstration Period")
and between June 1 and September 15 ("Summer Capability Demonstration
Period"). Upon completion of testing for the Capability
Demonstration Period, SELLER shall provide written notice ("DMNC
Notice") to NIAGARA of the PLANT's DMNC for that Capability
Demonstration Period and, therefore, for the corresponding "Winter
Capability Period" (November 1 through April 30) or "Summer
Capability Period" (May 1 through October 31), respectively. The
DMNC shall be the higher of: (i) the highest Capability Test during
the current Capability Demonstration Period, or (ii) the highest
Capability Test during the last like Capability Demonstration Period.
SELLER shall notify NIAGARA at least three (3) business days in
advance of any Capability Test in order to allow NIAGARA to have one
or more of its representatives present to observe the Capability
Test, except that SELLER may cancel any scheduled Capability Test by
giving NIAGARA notice by 10:00 A.M. on the day before the scheduled
Capability Test and such cancelled Capability Test shall not be
considered a Capability Test for the Capability Demonstration
Period."
FOURTH: Section VII of Attachment I to the Power Purchase Agreement is
hereby amended by adding the following as Section VII(d):
18
"(d) Adjustment of Payments for Capability Test. If the DMNC for any
Winter or Summer Capability Period, as set forth in the DMNC Notice
for that Winter or Summer Capability Period (the "Effective DMNC"),
is higher or lower than the DMNC used to calculate payments for that
Winter or Summer Capability Period prior to delivery of the DMNC
Notice, then the payments for that Winter or Summer Capability Period
shall be recalculated using the Effective DMNC and either (i) SELLER
shall refund any overpayments to NIAGARA within thirty (30) days of
delivery of the DMNC Notice, or (ii) SELLER shall deliver an invoice
to NIAGARA for any underpayment which invoice NIAGARA shall pay
within thirty (30) days of receipt. No interest shall accrue on
amounts paid when due in accordance with the preceding sentence;
amounts not paid when due shall be subject to late payment charge
calculated in accordance PARAGRAPH NINTH of the Agreement."
FIFTH: All terms and conditions of the Power Purchase Agreement not
expressly amended herein shall remain in full force and effect.
SIXTH: This Fourth Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, Selkirk and NIAGARA have caused this Fourth Amendment
to be executed by their proper officers thereunto duly authorized as of the
date written below.
SELKIRK COGEN PARTNER, L.P.
By JMC Selkirk, Inc., the Managing General Partner
By: /s/ George J. Grunbeck
_______________________
NIAGARA MOHAWK POWER CORPORATION
By: /s/ C.E. NADEAU
------------------------------
C.E. Nadeau
Vice President
Power Transactions & Planning
19