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HECO Exhibit 10.1
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EXHIBIT A
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AMENDMENT NO. 4 TO POWER PURCHASE AGREEMENT
BETWEEN
HAWAIIAN ELECTRIC COMPANY, INC.
AND
KALAELOA PARTNERS, L.P.
This Amendment No. 4 to Power Purchase Agreement ("Amendment") is made
and entered into as of October 1, 1999 by and between HAWAIIAN ELECTRIC COMPANY,
INC., a Hawaii corporation ("HECO"), and KALAELOA PARTNERS, L.P., a Delaware
limited partnership ("Kalaeloa").
Recitals:
(a) HECO and Kalaeloa entered into a Power Purchase Agreement,
dated as of October 14, 1988, as amended and clarified by (i) Amendment No. 1
to Power Purchase Agreement dated as of June 15, 1989, (ii) Restated and
Amended Amendment No. 2 to Power Purchase Agreement dated as of February 9,
1990, (iii) Amendment No. 3 to Power Purchase Agreement dated as of December
10, 1991, and (iv) Agreement to Clarify and Interpret dated as of March 31,
1997 (as so amended and clarified, the "Power Purchase Agreement"), which
provides for, among other things, the sale by Kalaeloa and the purchase by
HECO of electric energy and capacity from Kalaeloa's combined cycle oil-fired
cogeneration facility located at Barbers Point, Oahu, Hawaii.
(b) The general partner of Kalaeloa, ABB Hawaiian Cogeneration
Inc., a Delaware corporation ("ABB Hawaiian"), has agreed to sell its general
partner partnership interest in Kalaeloa to PSEG Kalaeloa Inc., a Delaware
corporation formerly known as CEA Kalaeloa, Inc. ("PKI") pursuant to a
Purchase Agreement dated February 28, 1997 by and among ABB Hawaiian, New
Hawaiian Cogeneration Inc., a Delaware corporation, PKI, and Kalaeloa
Investment Partners, L.P., a Delaware limited partnership, as amended by a
letter agreement dated April 30, 1997 and a letter agreement dated as of
October 1, 1999 (the "Purchase Agreement").
(c) PKI is indirectly wholly-owned by PSEG Global Inc., a New
Jersey corporation formerly known as Community Energy Alternatives
Incorporated, which in turn is wholly-
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owned by PSEG Energy Holdings Inc., a New Jersey corporation formerly known as
Enterprise Diversified Holdings Incorporated.
(d) Kalaeloa and HECO desire to amend the Power Purchase
Agreement in connection with the transfer of the general partnership interest
in Kalaeloa from ABB Hawaiian to PKI.
Agreements:
NOW, THEREFORE, in consideration of the premises and mutual agreements
and covenants contained in this Amendment and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree that the Power Purchase Agreement is hereby amended further
as follows:
1. Definitions. Capitalized terms used but not defined in this
Amendment have the respective meanings given to them in the Power Purchase
Agreement.
2. Regarding Article I. The definition in Section 1.1 of
Article I of the Power Purchase Agreement is amended to read as follows:
1.1 ABB - ABB Power Generation Inc., or any successor
corporation thereto.
3. Regarding Section 2.1(A). The second sentence of Section
2.1(A) is amended to read as follows:
As General Partner of KALAELOA, PSEG Kalaeloa Inc. will have the
exclusive authority and full discretion to manage the business of
KALAELOA in accordance with the Kalaeloa Partners, L.P., Partnership
Agreement.
4. New General Partner. All references in the body of the Power
Purchase Agreement (excluding recitals) to "ABB Hawaiian Cogeneration Inc."
are deleted, and substituted with "PSEG Kalaeloa Inc.", except as set forth in
Section 7 of this Amendment.
5. Regarding Section 3.2M. The third sentence of Section 3.2M
is amended to read as follows:
The General Partner of KALAELOA shall, at HECO's request, make
available to HECO for direct consultation and communication the
executive officer of PSEG Global
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Inc. who has the highest direct responsibility and authority
concerning the business of the General Partner.
6. Regarding Section 7.1A(8)(b). Section 7.1A(8)(b) of the
Power Purchase Agreement is amended to read as follows:
(b) Without the prior written consent of HECO, such
consent not to be unreasonably withheld, PSEG Kalaeloa Inc.
is no longer controlled by PSEG Energy Holdings Inc.
Effective control for purposes of this Section 7.1A(8) shall
mean voting control;
7. Regarding Section 10.1. Section 10.1 of the Power Purchase
Agreement is amended to read as follows:
HECO shall have the right (a) throughout the Term and for a
period of three (3) years following the end of the Term as
extended, upon reasonable prior notice, to audit the books
and records of KALAELOA and PSEG Kalaeloa Inc., and (b) for
a period of four (4) years after ceasing to be a general
partner of KALAELOA, to audit the books and records of ABB
Hawaiian Cogeneration Inc, in each case to the extent
necessary to verify the basis for any claim by KALAELOA for
payments from HECO or to determine KALAELOA's compliance
with the terms of this Agreement. HECO shall not have the
right to audit other financial records of KALAELOA, PSEG
Kalaeloa Inc., or ABB Hawaiian Cogeneration Inc. KALAELOA
shall make such records available at its office in Kapolei,
Hawaii, during normal business hours. PSEG Kalaeloa Inc. and
ABB Hawaiian Cogeneration Inc. shall make such records
available at their respective principal business offices
during normal business hours. HECO shall pay the reasonable
costs of KALAELOA, PSEG Kalaeloa Inc., or ABB Hawaiian
Cogeneration Inc. for such audits, including allocated
overhead.
8. Regarding Section 23.2. Notice address to Kalaeloa is
deleted and the following address is substituted therefor:
KALAELOA Kalaeloa Partners, L.P.
Cogeneration Plant
91-111 Kalaeloa Blvd.
Kapolei, Hawaii 96707
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9. Other Terms Unchanged. All of the terms and conditions of
the Power Purchase Agreement which are not altered, amended or replaced by the
provisions of this Amendment shall remain in full force and effect. In the event
that a conflict arises between the Power Purchase Agreement and this Amendment,
this Amendment shall prevail, but the respective documents shall be interpreted
to be in harmony with each other where possible.
10. Entire Agreement. This Amendment and the Power Purchase
Agreement, as amended herein, embody the whole agreement and understanding of
the parties as to matters described herein and supersede and nullify all prior
agreements, arrangements and understandings related to the subject matter of
this Amendment; provided, however, that:
(a) Nothing in this Section 10 shall cause the Power
Purchase Agreement to be invalid or unenforceable against HECO or Kalaeloa on
the basis of regulatory action concerning this Amendment, and
(b) Other than as provided in Section 11, neither HECO
nor Kalaeloa shall make any claim, directly or indirectly, in any form that this
Amendment is invalid or unenforceable on the basis of, or in reliance in any way
upon, any regulatory action concerning this Amendment.
11. Effective Date. Each provision of this Amendment shall
become effective upon (a) such provision being (i) approved by the Hawaii Public
Utilities Commission ("PUC"), and (ii) consented to by ING (U.S.) Capital LLC,
as Agent for the Lenders under the Amended and Restated Loan and Note Purchase
Agreement, dated as of December 10, 1991, and (b) transfer of ABB Hawaiian's
general partner partnership interest in Kalaeloa to PKI pursuant to the Purchase
Agreement. Should the PUC not approve this Amendment by March 31, 2000, this
Amendment shall be null and void ab initio. After receipt by HECO of a complete
set of closing documents for the transactions contemplated herein, HECO will,
within a commercially reasonable time, file with the PUC a request for its
approval.
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly-authorized officers as of the date first stated above.
HAWAIIAN ELECTRIC COMPANY, INC. KALAELOA PARTNERS, L.P.
By ABB Hawaiian Cogeneration Inc.,
Its general partner
By /s/ Thomas F. Joaquin
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Its Vice President - Power Supply
By /s/ Paul Oyer By______________________________
------------------------------------- Its
Its Financial Vice President &
Treasurer
CONSENT
PSEG KALAELOA,INC., a Delaware corporation formerly known as CEA
Kalaeloa, Inc., consents to the foregoing Amendment No. 4 to Power Purchase
Agreement, and agrees that upon becoming the general partner of Kalaeloa
Partners, L.P., it shall be bound thereby.
PSEG KALAELOA INC.
By_________________________________
Its
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly-authorized officers as of the date first stated above.
HAWAIIAN ELECTRIC COMPANY, INC. KALAELOA PARTNERS, L.P.
By ABB Hawaiian Cogeneration Inc.,
Its general partner
By_____________________________________
Its
By_____________________________________ By /s/ Lynn D. Dorsey
Its ------------------------------
Its President
CONSENT
PSEG KALAELOA,INC., a Delaware corporation formerly known as CEA
Kalaeloa, Inc., consents to the foregoing Amendment No. 4 to Power Purchase
Agreement, and agrees that upon becoming the general partner of Kalaeloa
Partners, L.P., it shall be bound thereby.
PSEG KALAELOA INC.
By_________________________________
Its
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly-authorized officers as of the date first stated above.
HAWAIIAN ELECTRIC COMPANY, INC. KALAELOA PARTNERS, L.P.
By ABB Hawaiian Cogeneration Inc.,
Its general partner
By_____________________________________
Its
By_____________________________________ By______________________________
Its Its
CONSENT
PSEG KALAELOA,INC., a Delaware corporation formerly known as CEA
Kalaeloa, Inc., consents to the foregoing Amendment No. 4 to Power Purchase
Agreement, and agrees that upon becoming the general partner of Kalaeloa
Partners, L.P., it shall be bound thereby.
PSEG KALAELOA INC.
By /s/ Jeffrey W. Moore
---------------------------------
Its Vice President
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