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Exhibit 10.1
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
FIRST AMENDMENT TO SERVICES AGREEMENT
between
PECO ENERGY COMPANY
and
GREAT BAY POWER CORPORATION
This First Amendment to Services Agreement (the "Amendment Agreement")
between PECO Energy Company, a Pennsylvania corporation ("PECO"), and Great Bay
Power Corporation, a New Hampshire corporation ("Great Bay") (collectively the
"Parties") is made and dated this 27th day of September, 1996.
WHEREAS, PECO and Great Bay are parties to a Services Agreement dated as of
November 3, 1995 (the "Agreement"); and
WHEREAS, PECO and Great Bay have determined that entering into the
Amendment Agreement is in their respective best interests;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto, intending to be legally bound, do hereby agree
as follows:
1. TERM OF THE AGREEMENT. Section 2 of the Agreement is hereby deleted in
its entirety and the following is substituted therefor:
"The initial term of this Agreement shall expire on December 31, 1999,
provided however, that if either Party does not give notice to the other
party on or prior to September 1, 1999 and each September 1 thereafter that
the Party does not elect to terminate this Agreement, then the term of this
Agreement shall be automatically extended to December 31 of the following
year. If either Party provides notice of termination, the Agreement will
terminate on December 31 of the relevant year. Notice of termination shall
be provided in accordance with the terms of Section 20 of this Agreement.
Services under the Agreement shall commence upon the Service Commencement
Date."
2. SEABROOK CAPACITY FACTOR. The last sentence of Section 12 of the
Agreement is deleted and the following is substituted therefor:
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
"During any year in which there is a scheduled Seabrook refueling Outage,
the number of hours equal to the planned duration of such scheduled
Seabrook refueling Outage, as reported by Seabrook to its owners, which
notice Great Bay shall provide to PECO promptly upon Great Bay's receipt of
such notice, shall be exempted from calculation of Seabrook Capacity Factor
for the purposes of Sections 9(c) and 12 and all calculations made pursuant
to Attachment 1."
3. RESERVATION FEE. Section 6(a) of the Agreement is amended by deleting
the last sentence thereof and substituting therefor the following:
"PECO shall not pay a Reservation Fee for energy associated with the
Seabrook Capacity Factor equal to or greater than 85%."
4. SERVICE FEE. Section 6(b) of the Agreement is amended by deleting said
Section and substituting therefor the following:
"In consideration for providing the services specified above, PECO shall be
paid by Great Bay a Service Fee, which during each calendar year, or
portion thereof, in which the Agreement is in effect equals the product of
(i) ***, (ii) Net Sales Revenues, and (iii) the lesser of Seabrook Capacity
Factor and 85.0% PECO shall not be paid a Service Fee for the portion of
total Net Sales Revenues Associated with a Seabrook Capacity Factor equal
to or greater than 85.0%."
5. PECO EXCLUSIVITY. Paragraph 3(b) of the Agreement is amended by deleting
subparagraph (v) and substituting therefor the following:
"(v) enter into an agreement that would cause the Initial Power Amount to
deviate from the amount set forth in Attachment 2 hereto, unless otherwise
agreed to in writing by PECO and except pursuant to a Transaction."
6. EFFECTIVE DATE. The amendments to the Agreement provided for in
paragraphs 3 and 4 of this Amendment Agreement shall be applicable only to
calculations of Reservation Fees and Service Fees for periods on and after the
date hereof. Accordingly, an Annual True-Up shall be calculated for the period
January 1, 1996 through September 30, 1996 in accordance with the Agreement
prior to giving effect to this Amendment Agreement and an Annual True-Up shall
be calculated for the period October 1, 1996 through December 31, 1996, and for
each year thereafter, in accordance with the Agreement as amended hereby. This
Amendment Agreement shall be effective and the enforceable obligation of the
Parties upon exercise by PECO of Warrant No. 2, dated September 27, 1996 to
purchase 417,800 shares of Great Bay Common Stock, and payment by PECO of the
purchase price therefor.
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7. ATTACHMENT 1. Attachment 1 to the Services Agreement is deleted and
Attachment 1 which is attached hereto is substituted therefor in its entirety.
8. TRUE-UP UPON TERMINATION. The first sentence of Section 16(c) is amended
by deleting said sentence and substituting therefor the following:
"Not later than fifteen (15) days following termination of the Agreement
pursuant to paragraph 2 or subparagraphs (a) and (b) of this Section 15,
PECO and Great Bay shall conduct a Termination True-Up."
9. STATUS OF AGREEMENT. Except as modified hereby, the Agreement remains in
full force and effect.
10. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
agreement of the Parties concerning the subject matter addressed by the First
Amendment.
IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to
be duly executed by their respective representatives thereunto duly authorized
as of the respective dates set forth below.
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PECO ENERGY COMPANY GREAT BAY POWER CORPORATION
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By: /s/ Xxxxx X. Xxxxxxx By: Xxxx X. Xxxxxxxxxxx
----------------------------------- ------------------------------
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Date: 9/27/96 Date: September 26, 1996
--------------------------------- ----------------------------
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
ATTACHMENT 1
METHODOLOGY FOR COMPUTATION OF TRUE-UP AMOUNTS
HALF-YEAR TRUE-UP AMOUNT
------------------------
The following methodology will be utilized to determine the Half-Year True-Up
Amount. During 1996, the period over which the Half-Year True-Up Amount will be
determined will be adjusted to reflect the Service Commencement Date.
Step Calculations to be Made Variable Name Formula
---- ----------------------- ------------- -------
1 Determine the number of hours during Half-Year =[Sigma]January[arrow]June (Hours in each
the half-year period Hours month)
2 Determine the number of MWhs of Half-Year GB =[Sigma]January[arrow]June (Initial Power
Seabrook energy owned by Great Bay Power Amount* number of hours, or portions
during the half-year period thereof, during each day in which Seabrook
generated power)
3 Determine Seabrook Net Power during Half-Year SB =[Sigma]January[arrow]June (Amount of Net
the half-year period Power Power generated by Seabrook each day)
4 Determine Planned Refueling Outage Half-Year =[Sigma]January[arrow]June (Number of hours,
Hours Planned or portions thereof, during the relevant
Refueling period in which Seabrook was in a planned
Outage Hours refueling outage)
5 Determine Half-Year Seabrook Capacity Half-Year SCF =Half-Year SB Power
Factor ------------------------------
Seabrook Rated Capacity during
period* (Half-Year Hours -
Half-Year Planned Refueling
Outage Hours)
If Half-Year SCF is less than 85.0%, the Half-Year True-Up Amount shall equal $0.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
Step Calculations to be Made Variable Name Formula
---- ----------------------- ------------- -------
6 Determine the amount of Half-Year Step 6 Result =Half-Year SCF = 85%
SCF which is greater than 85%
7 Determine Half-Year Revenue Share GB Half-Year =[(84.99%****) + (Step 6
for PECO and Great Bay, (expressed Revenue Share Result*100%)]/Half-Year SCF
as a %age)
PECO Half- =1-Great Bay Half-Year
Year Revenue Revenue Share
Share
ANNUAL TRUE-UP AMOUNT
---------------------
The following methodology will be utilized to determine the Annual True-Up
Amount. During 1996, the period over which the Annual True-Up Amount is
determined will be adjusted to reflect the actual Service Commencement Date.
Step Calculations to be Made Variable Name Formula
---- ----------------------- ------------- -------
1 Determine the number of hours Annual Hours =8760, unless the year is a leap
during the year year, in which case, =8784
2 Determine the number of MWhs of Annual GB =[Sigma]January[arrow]Dec31 (Initial Power
Seabrook energy owned by Great Bay Power Amount* number of hours, or portions
during the half-year period thereof, during each day in which Seabrook
generated power)
3 Determine Seabrook Net Power Annual SB =[Sigma]January[arrow]Dec.31 (Amount of Net
during the year Power Power generated by Seabrook each day)
4 Determine Annual Planned Refueling Annual =[Sigma]January[arrow]June 30 (Number of
Outage Hours Planned hours, or portions thereof, during the
Refueling relevant period in which Seabrook was in
Outage Hours a planned refueling outage)
5 Determine Annual Seabrook Capacity Annual SCF =Annual SB Power
Factor ----------------------------
Seabrook Rated Capacity
during period* (Annual Hours
- Annual Planned Refueling
Outage Hours)
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
If Annual SCF is less than 85.0%, the Annual True-Up Amount shall equal $0.
Step Calculations to be Made Variable Name Formula
---- ----------------------- ------------- -------
6 Determine the amount of Annual SCF Step 6 Result = Annual SCF-85%
which is greater than 85%
7 Determine Annual Revenue Share for GB Annual =[(84.99%****) + (Step 6
PECO and Great Bay, (expressed as a Revenue Share Result*100%)]/Annual SCF
%age)
PECO Annual = 1 GB Annual Revenue Share
Revenue Share
8 Determine Annual Net Sales Revenue Annual NSR =[Sigma]January[arrow]December (Net Sales
Revenue for each month)
9 Determine Delinquent Amounts Annual DA =Delinquent Amounts as of
outstanding as of December 31st of December 31st
relevant calendar year
10 Determine Reservation Fee Rebate. Annual RFR If Annual SCF is = or >85%,
No Reservation Fee Rebate is owed if Annual RFR=(Annual SCF-85%)*Annual
Annual Seabrook Capacity Factor is GB Power* ****
less than 85%
11 Determine Annual True-Up Basis Annual =Annual NSR-Annual DA-Annual RFR
Distribution
Basis
12 Determine Service Fee Owed to PECO =Annual Basis *PECO Annual Revenue Share
13 Determine Revenue Share Owed to Annual GB =Annual Basis*GB Annual Revenue Share
Great Bay Revenue Owed
14 Determine what share of Half-Year Half-Year DA =(Half-Year DA*GB Annual revenue
Delinquent Amount GB should have True-Up Share) -GB Half-Year Delinquent Share
been paid at the Annual GB Revenue
Share rate
15 Determine revenue received by XX XX Revenue =[Sigma]January[arrow]December (Monthly Payment
during the relevant calendar year Received to GB for each month)
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Step Calculations to be Made Variable Name Formula
---- ----------------------- ------------- -------
16 Determine Annual True-Up Amount Annual True- =Annual GB Revenue Owed-GB Revenue
Up Amount Received-Half Year True-Up Amount
+ Half-Year DA True Up
17 Determine Sharing of unpaid PECO =Annual DA*PECO Annual
Delinquent Amounts Delinquent Revenue Share
Share
TERMINATION TRUE-UP AMOUNT
--------------------------
The Termination True-Up Amount shall be calculated utilizing the same
methodology as the Half-Year True-Up Amount. The start date for the period for
which the Termination True-Up Amount is calculated shall be (i) January 1, if
the most recent true-up performed before the date of termination was an Annual
True-Up, and (ii) July 1, if the most recent true-up performed before the date
of termination was a Half-Year True-Up. The date end for the period for which
the Termination True-Up Amount is calculated shall be the date of termination.
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