EXHIBIT 10.2.1
AMENDMENT TO THE POWER PURCHASE AGREEMENT
This AMENDMENT TO THE POWER PURCHASE AGREEMENT, dated as of November
26, 2001 (this "Amendment"), is made by and between EL PASO MERCHANT ENERGY,
L.P., a limited partnership organized and existing under the laws of the State
of Delaware ("Seller"), and CEDAR BRAKES II, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware ("Buyer") (each
of Seller and Buyer may hereinafter be referred to as a "Party" and collectively
as the "Parties").
W I T N E S S E T H :
WHEREAS, Seller and Buyer entered into the Power Purchase Agreement
(the "PPA"), dated October 1, 2001;
WHEREAS, Seller and Buyer have agreed amend the PPA in order to make
certain clarifications to the PPA;
NOW, THEREFORE in consideration of these premises and of the mutual
covenants and agreements set forth herein, Seller and Buyer, intending to be
legally bound, hereby agree to the following amendments to the PPA:
Unless otherwise defined herein, all capitalized terms shall have the
meanings as in the PPA.
SECTION A. ARTICLE V(E) is amended as follows:
The term "Contract Rate" is deleted and replaced with the term
"Liquidated Damages Rate" in each of Sections V(E)(i)(b), (ii)(b), (iii)(b), and
(iv)(b).
SECTION B. ARTICLE V(F) is amended and replaced in its entirety as
follows:
If Seller does not deliver at least forty-two percent (42%) of the
Annual Quantity (as may be adjusted for any partial calendar year) by June 30 of
any calendar year or the entire Annual Quantity (as may be adjusted for any
partial calendar year) over any calendar year, then in addition to any amounts
to be credited to Buyer by Seller under Article V(E) hereof, Seller shall pay to
Buyer for such periods, as damages and not a penalty and as part of the
consideration for this Agreement, an amount (the "Energy Shortfall Liquidated
Damages") equal to the product of (i) the difference between (1)(x) forty-two
percent (42%) of the Annual Quantity (as may be adjusted for any partial
calendar year) for the period through June 30 or (y) the Annual Quantity (as may
be adjusted for any partial calendar year) for the calendar year, as applicable,
and (2) the Energy delivered by Seller (x) through June 30 of each calendar year
or (y) through December 31 of each calendar year, as applicable, multiplied by
(ii) the difference between (1) the Liquidated Damages Rate for such calendar
year set forth on Exhibit 2, hereof and (2) the Contract Rate for such calendar
year set forth on Exhibit 2, hereof; provided, however, that any amount
otherwise owed to Buyer by Seller due to Seller's failure to deliver the Annual
Quantity by December 31 in any calendar year shall be reduced by the amount paid
by Seller to Buyer due to Seller's failure to deliver at least forty-two percent
(42%) of the Annual Quantity by June 30
of that calendar year. Buyer shall prepare and present to Seller on or before
the fifth (5th) day of August each calendar year, applicable to any Energy
Shortfall Liquidated Damages incurred through June 30 of such calendar year, and
on or before the fifth (5th) day of February each calendar year, applicable to
any Energy Shortfall Liquidated Damages incurred during the entire preceding
calendar year, a statement of the Energy Shortfall Liquidated Damages due and
payable, if any, by Seller for the applicable period in accordance with the
terms hereof. Seller shall pay such Energy Shortfall Liquidated Damages on or
before the fifth (5th) day after receipt of the invoice from Buyer into an
account of Buyer in accordance with written instructions provided by Buyer to
Seller. If the payment is not received by the due date specified above, Seller
shall pay to Buyer an interest charge on unpaid amounts which shall accrue daily
from the due date until the date upon which payment is made at the then current
late payment charge for commercial customers prescribed in PSE&G's Standard
Terms and Conditions as may be amended from time to time (the "Late Payment
Rate").
SECTION C. ARTICLE XI is amended as follows:
The fourth paragraph is revised to read as follows: "Notwithstanding
anything herein to the contrary, the obligations of Seller under this Agreement
to schedule and deliver forty-two percent (42%) of the Annual Quantity by June
30 in any calendar year and the Annual Quantity by December 31 in any calendar
year shall not be excused or suspended by an event of Force Majeure."
SECTION D. Miscellaneous Provisions.
1. Except as herein amended in writing, the PPA previously entered into
shall remain unchanged and in full force and effect.
2. Except with respect to the provisions modified herein, if any
discrepancy exists between the provisions in the PPA and this Amendment, such
discrepancy shall be resolved in favor of the PPA.
3. This Amendment shall be governed by and construed in accordance with
the laws of the State of New Jersey, without regard to conflict of law
principles, and federal law, where applicable.
4. This Amendment shall be binding upon the Parties and their
respective successors, heirs and assigns.
5. This Amendment constitutes the entire agreement between the Parties
hereto with respect to the matters contained herein, and all prior agreements
with respect to the matters covered herein are superseded, except as provided
above, and each Party confirms that it is not relying upon any representations
or warranties of the other Party, except as specifically set forth herein or
incorporated by reference hereto.
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IN WITNESS WHEREOF, the Parties have entered into this Amendment as of
the date first written above.
EL PASO MERCHANT ENERGY, L.P.
By: /s/ John L. Harrison
-----------------------------------------
Name: John L. Harrison
Title: Senior Vice President
CEDAR BRAKES II, L.L.C.
By: /s/ John L. Harrison
-----------------------------------------
Name: John L. Harrison
Title: Senior Vice President
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