Exhibit 10.1


 


Execution Copy


 


AMENDMENT NO. 3 TO THE 

SECOND AMENDED AND RESTATED OPERATING AGREEMENT


 


This
AMENDMENT NO. 3 TO THE SECOND AMENDED AND RESTATED OPERATING AGREEMENT (this “Amendment”)
is entered into as of November 3, 2010, by and among Constellation
Nuclear, LLC (“CNL”), a Delaware limited liability company and wholly
owned subsidiary of Constellation Energy Group, Inc. (“Constellation”),
CE Nuclear, LLC (“CEN”), a Delaware limited liability company, and EDF
Inc. (f/k/a EDF Development Inc.) (“EDFD”), a Delaware corporation and a
wholly owned subsidiary of E.D.F. International S.A. (“EDFI”), as
Members, and Constellation Energy Nuclear Group, LLC, a Maryland limited
liability company (the “Company”).


 


WITNESSETH:


 


WHEREAS,
on December 15, 1999, the Company was formed as a wholly owned subsidiary
of Constellation under the Maryland Limited Liability Company Act, as amended
from time to time, pursuant to Articles of Organization filed with the Maryland
Department of Assessments and Taxation;


 


WHEREAS,
Constellation entered into a second amended and restated operating agreement of
the Company, dated as of November 6, 2009 (the “Second Amended and
Restated Operating Agreement”), which amended and restated the operating
agreement of the Company, dated as of July 1, 2002; and


 


WHEREAS,
the Parties desire to amend the Second Amended and Restated Operating Agreement
as provided in this Amendment.


 


AGREEMENT:


 


NOW,
THEREFORE, in consideration of the promises and the mutual representations,
warranties, covenants, agreements and conditions herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:


 


SECTION 1.                                Defined Terms.  Capitalized terms used in this Amendment
without separate definition shall have the respective meanings assigned to such
terms in the Second Amended and Restated Operating Agreement.


 


SECTION 2.                                Amendment to Section 9.3.  Section 9.3 of the Second Amended and
Restated Operating Agreement is hereby amended by deleting it in its entirety
and replacing it with the text that follows so that, as amended, Section 9.3
of the Second Amended and Restated Operating Agreement shall read as follows:


 


Section 9.3                                      Right of First Offer.


 


(a)                                  Except in the case of a
Transfer to a Permitted Transferee pursuant to Section 9.2, prior to the
Transfer of Membership Interests, the Member(s) proposing to Transfer all
or any portion of its Membership Interest (the “Offering 


 

















 


Member”) must deliver a Transfer
Notice to the other Member(s) who is not an Affiliate of the Offering
Member at least sixty (60) Days prior to the proposed Transfer.  The other Member(s) who is not an
Affiliate of the Offering Member shall have the option to purchase all of the
Membership Interests proposed to be Transferred for the cash purchase price set
forth in the Transfer Notice and pursuant to the other terms and conditions set
forth in this Agreement.  The other
Member(s) who is not an Affiliate of the Offering Member shall have sixty
(60) Days from receipt of the Transfer Notice (the “Transfer Acceptance
Period”) in which to exercise its option to purchase all of the Membership
Interests pursuant to this Section 9.3(a) by providing written notice
of exercise of the option to the Offering Member and to the Company.


 


(b)                                 In the event that, at the
end of the Transfer Acceptance Period, the other Member(s) who is not an
Affiliate of the Offering Member has not elected to purchase all of the Membership
Interests proposed to be Transferred, then the Offering Member shall be free to
consummate the transaction described in the Transfer Notice, provided, that
within 90 days after the end of the Transfer Acceptance Period, a definitive
agreement is executed for the sale of such Membership Interests, and the terms
and conditions (including price) in such agreement are no more favorable to the
purchaser than those set forth in the Transfer Notice.  Prior to the execution of such definitive
agreement, the Offering Member shall not grant exclusivity to a prospective
third party purchaser (the “Third Party Purchaser”) to the extent such
grant of exclusivity would prohibit or restrict the Offering Member from
entertaining, negotiating or accepting an offer by another Member in respect of
the subject Membership Interest.  In the
event a Member exercises the option to purchase under Section 9.3(a), but
such Member fails to tender the required consideration at the closing, in
addition to being entitled to complete the proposed transaction, the Offering
Member shall have all rights and remedies against the other Member available
for breach of contract.


 


(c)                                  The parties shall use their
reasonable efforts to close any purchase under Section 9.3 as promptly as
possible after (i) the other Members provide written notice of the
exercise of their option under Section 9.3(a) or (ii) the
Offering Member executes a definitive agreement as contemplated by Section 9.3(b),
as applicable.  At the closing, the
Offering Member shall deliver to the purchaser an executed assignment of the
subject Membership Interest satisfactory in form to counsel for the Company,
and the purchaser shall deliver the purchase price in cash or immediately
available funds.  The Offering Member and
the purchaser each shall execute and deliver such other documents as may
reasonably be requested by the other.  If
the closing of any purchase by the other Members under Section 9.3(a) does
not occur within one (1) year after the expiration of the Transfer Acceptance
Period, then the right to close on the purchase shall lapse and the Offering
Member may sell the Membership Interests proposed to be Transferred in
accordance with Section 9.3(b) (on terms and conditions (including
price) no more favorable to the purchaser than those set forth in the Transfer
Notice) as if the other Members had elected not to purchase the Offering Member’s
interests.


 


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(d)                                 In connection
with a reasonable due diligence investigation conducted by the Third Party
Purchaser in relation to a Transfer pursuant to Section 9.3(b) by the
Offering Member, the parties hereby agree that they shall cause the Company as
soon as practicable after the giving of a transfer notice to prepare a data room
and otherwise to provide reasonable access (during regular business hours upon
reasonable notice) to the offices, properties, plants, other facilities, books
and records, officers, directors, employees, agents, financial advisors,
accountants and counsel of the Company and furnish such additional financial
and operating data and other information regarding the business, operations,
assets, liabilities and financial condition of the Company as the Offering
Member or the Third Party Purchaser may reasonably request, subject to such
Third Party Purchaser signing a customary confidentiality agreement with the
Offering Member and the Company regarding any information to be delivered to
such Third Party Purchaser.  Such access
shall continue until the closing of the sale to the Third Party Purchaser, or
termination of the sales process with such Third Party Purchaser.


 


SECTION 3.                                Amendment to Article I.  Article I of the Second Amended and
Restated Operating Agreement is hereby amended by adding the text that follows:


 


““Product”
has the meaning assigned in the applicable CECG Power Purchase Agreement.”


 


SECTION 4.                                Amendment to Section 7.2(j)(xxv).  Section 7.2(j)(xxv) of the Second
Amended and Restated Operating Agreement is hereby amended by deleting clause (ii) therein
so that, as amended, Section 7.2(j)(xxv) of the Second Amended and
Restated Operating Agreement shall read as follows:


 


“(xxv)                 From such time that the
credit rating of Constellation’s senior unsecured debt is below BBB- according
to S&P or Baa3 according to Moody’s, the decision to enter into any Monthly
Energy Hedge Transaction under any CECG Power Purchase Agreement after such
event which requires the delivery of Product on or after January 1, 2012;”


 


SECTION 5.                                Amendment to Section 7.2(j)(xxix).  Section 7.2(j)(xxix) of the Second
Amended and Restated Operating Agreement is hereby amended by deleting the text
that follows so that, as amended, Section 7.2(j)(xxix) of the Second
Amended and Restated Operating Agreement shall read as follows:


 


“
(xxix)             [RESERVED].”


 


SECTION 6.                                Amendment to Exhibit D.  Exhibit D to the Second Amended and
Restated Operating Agreement is hereby amended by deleting Exhibit D in
its entirety and replacing it with the exhibit attached hereto as Exhibit D.


 


SECTION 7.                                Effect of
Amendment.  The parties
hereto agree that, except as expressly set forth herein, all terms of the
Second Amended and Restated Operating Agreement shall remain in full force and
effect.  In the event of any
inconsistency or conflict between the 


 


3

















 


Second Amended and Restated Operating Agreement and
this Amendment, the terms, conditions and provisions of this Amendment shall
govern and control.


 


SECTION 8.                                Entire
Agreement.  This
Amendment and the Second Amended and Restated Operating Agreement, including
the Exhibits, Schedules and other documents referred to therein which form a
part thereof, contain the entire understanding of the parties hereto with
respect to the subject matter contained herein and therein.  From and after the execution of a counterpart
hereof by the parties hereto, any reference to the Second Amended and Restated
Operating Agreement shall be deemed to be a reference to the Second Amended and
Restated Operating Agreement as amended hereby.


 


SECTION 9.                                Governing Law.  This Amendment shall be governed by and
construed in accordance with the laws of the state of Maryland without regard
to principles of conflict of laws.


 


SECTION 10.                          Counterparts.  This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, and all of which
taken together shall constitute one instrument. 
Any signature page delivered by a facsimile machine shall be
binding to the same extent as an original signature page.


 


[SIGNATURE
PAGE FOLLOWS]


 


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IN
WITNESS WHEREOF, each of the Parties hereto has caused this Amendment to be
duly executed, all as of the day and year first above written.


 


	
   

  	
  CONSTELLATION NUCLEAR, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Berardesco

  
	
   

  	
   

  	
  Name: Charles A. Berardesco

  
	
   

  	
   

  	
  Its: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CE NUCLEAR, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Berardesco

  
	
   

  	
   

  	
  Name: Charles A. Berardesco

  
	
   

  	
   

  	
  Its: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EDF
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jean-Pierre Benque

  
	
   

  	
   

  	
  Name: Jean-Pierre Benque

  
	
   

  	
   

  	
  Its: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CONSTELLATION ENERGY NUCLEAR GROUP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven L. Miller

  
	
   

  	
   

  	
  Name: Steven L. Miller

  
	
   

  	
   

  	
  Its: Senior Vice President and Secretary

  



 


Signature Page to
Amendment to


Second Amended and Restated
CENG Operating Agreement


 

















 


Exhibit D


 


Risk Profile Guidelines


 


(Revised Guidelines Adopted November 2010)


 


Any capitalized term used in this Exhibit D and not
otherwise defined in this Agreement shall have the meaning given to such term
in the CECG Power Purchase Agreements and the EDFTNA Power Purchase Agreements.


 


Core
Risk Policy


 


·                       These Risk Profile
Guidelines will guide the activities of the Company and the Company
Generation-Subs.


 


·                       These Risk Profile
Guidelines may be amended from time to time by the Board of Directors upon the
recommendation of the Audit and Finance Committee.


 


·                       The Audit and Finance
Committee of the Board of Directors will identify the products which the
Company may use to implement its risk management strategy.  Use of such products will serve two
objectives:


 


(1)                                  fixing the
price of a portion of the Company’s anticipated future energy sales in
accordance with the hedging strategy described below (the “Hedging Strategy”)
so as to (A) provide the Company with an acceptable rate of return on the
Nuclear Facilities and (B) help control potential EBITDA volatility over a
three-year planning horizon; and


 


(2)                                  providing the
Company’s management with flexibility in managing the future physical operation
of the Nuclear Facilities.


 


·                       The Company will implement
the Hedging Strategy.


 


·                       The Company will not engage
in any speculative trading based on the Nuclear Facilities’ physical generation
position, due to price anticipation or otherwise.


 


·                       The Company will take
reasonable measures, if available, to address “intrinsic” or “unhedgeable” risk
(e.g., volume uncertainty, macroeconomic events).


 


·                       The Company will ensure the
adequacy of its risk policy given available capital and financial constraints.


 


·                       The Company will ensure
consistency between its risk policy, financial objectives and Hedging Strategy.


 

















 


·                       In implementing the Risk
Profile Guidelines, the Company will comply with all applicable rules and
regulations.


 


Hedging
Strategy (applicable through 2014)


 


·                       The Hedging Strategy focuses
on reducing exposure to forward energy and related product prices through a
rolling hedging process aimed at improving the predictability of revenues over
the next three full calendar years.


 


·                       Pursuant
to the Hedging Strategy, during each calendar year up to the end of 2014:


 


(i)                                     The initial
target hedge ratios will be:


 


(a)                                  Year 1:  100%(1)


 


(b)                                 Year 2:  60%


 


(c)                                  Year 3:  30%


 


(ii)                                  The target
hedge ratios may be adjusted from time to time by the Board of Directors upon
the recommendation of the Audit and Finance Committee.


 


(iii)                               During the Terms of the CECG Power Purchase Agreements and the EDFTNA
Power Purchase Agreements, if the Company-Generation Subs enter into Monthly Energy Hedge Transactions
under the CECG Power Purchase Agreements and the EDFTNA Power Purchase
Agreements, they will do so such that the aggregate amount of Hedged Quantity
of Product represents a percentage of the aggregate Available Energy of all the
Nuclear Units during Years 1—3 approximately equal to the target hedge ratios.


 


(a)                                  Except as set
forth in clause (b) below, the Company-Generation Subs will enter into
Monthly Energy Hedge Transactions under the EDFTNA Power Purchase Agreements
and the CECG Power Purchase Agreements so that, at the conclusion of each
calendar month, (x) the ratio of Hedged Quantity of Product to total
Quantity in each of Years 1—3 under the CECG Power Purchase Agreements approximately
equals (y) the ratio Hedged Quantity 
of 


 






(1) 
The first such year will be 2011.  The
Monthly Energy Hedge Transactions entered into in November 2010 and
December 2010 will cover the increase in the initial target hedge ratio
for 2011 on a ratable basis.  In
addition, for the months of November 2010 and December 2010, any
unhedged volumes (e.g. the 5% non-hedged portion) shall be sold at index.


 

















 


Product to total Quantity in each of Years 1—3 under
the EDFTNA Power Purchase Agreements.  The total Quantity shall reflect the total
capacity of the unit in question less any Legacy PPAs and, for this purpose,
shall also exclude volumes associated with the RSA at Nine Mile Point Unit 2,
if so determined in accordance with (iv) below.


 


(b)                                 Clause (a) will not apply at any time that the decision described at
Section 7.2(j)(xxv) of the Agreement constitutes a “Special
Matter,” at which time no further Monthly Energy Hedge
Transactions will be entered into under the CECG Power Purchase Agreements
unless agreed to by the Board of Directors and CECG.


 


(c)                                  During the period that the decision described at Section 7.2(j)(xxv) of
the Agreement constitutes a “Special Matter,” the Company may utilize
third-party products (e.g., financial hedges) to hedge market risk with respect
to future deliveries of Product under the CECG Power Purchase Agreements if
approved by the Board.


 


(iv)                              At the Risk Group’s discretion, volumes of Energy subject to the “Monthly
Price Adjustment” (as defined in the RSAs) may be subtracted from the estimated
Energy output of the Nuclear Units in
order to calculate Hedge Quantities with respect to any month during Years 1—3.


 


Additional Guidelines


 


·                       In the case of any exposure
to foreign currency (“FX”) markets or interest rate (“IR”)
risk  associated with the sale or
purchase of any commodity (including in connection with nuclear fuel
procurement activities), the Company will ensure that its FX and IR risk
allocation process is consistent with the hedging strategies it employs in
connection with the related commodities.


 


·                       With respect to counterparty
credit risk, the Company will have no non-collateralized exposure to
counterparties that fail to meet a credit rating threshold.  This provision will not apply to the CECG
Power Purchase Agreements, EDFTNA Power Purchase Agreements and any other
contracts in effect as of the Effective Date.


 


·                       Any transaction or
investment to be entered into by the Company or any Company Generation-Sub with
a term greater than three years must be approved by the Board of Directors.


 

















 


·                       The Company will ensure that
long-term investment or contractual decisions are based on an explicit
consideration of risk exposure, employ a consistent risk/return approach
(identifying the impact of the transaction on the Company’s net consolidated
exposure) and serve to implement the Company’s risk management strategy.


 


Constellation
Energy Nuclear Group, LLC Risk Group Responsibilities


 


·                       The Company’s consolidated
physical and financial exposure will be continually assessed and managed by its
risk personnel (the “Risk Group”). 
Certain functions to be provided by the Risk Group may be outsourced to
Constellation’s Corporate Risk personnel as of the Effective Date; provided,
that the Company establishes an internal risk function within a reasonable
period of time after the Effective Date.


 


·                       The Risk Group will assess
exposure through the use of various risk indicators, including open position
analysis, value-at-risk, earnings-at-risk, cash-at-risk, credit risk,
operational risk and liquidity risk.


 


·                       The Risk Group will develop
and implement an auditable deal capture and risk management information
system.  This system will be designed to update
market information (e.g., price, volatilities, volumes) as frequently as
possible.


 


·                       The Risk Group will deliver
risk reports at least monthly to the Board of Directors.  Such reports will include a quantitative
assessment of the Company’s and each Company Generation-Sub’s financial and
physical exposure.


 


·                       The Risk Group will develop
and implement “alert procedures” which will notify the Board of Directors upon
the occurrence of a breach of these Risk Profile Guidelines.


 


·                       Through the end of 2014, the
Risk Group will deliver to the CEG Risk Group and the EDF Risk Group summaries
of any agreements in which third-party products are utilized to hedge future
deliveries by the Nuclear Units.


 


Additional Defined Terms


 


“RSAs” means (i) that certain
Revenue Sharing Agreement, dated as of December 11,
2000, between Nine Mile Point Nuclear Station, LLC (as assignee of
Constellation Nuclear, LLC) and Niagara Mohawk Power Corporation; (ii) that
certain Revenue Sharing Agreement,
dated as of December 11, 2000, between Nine Mile Point Nuclear Station,
LLC (as assignee of Constellation Nuclear, LLC) and New York State Electric &
Gas Corporation; (iii) that certain Revenue Sharing Agreement, dated as of December 11,
2000, between Nine Mile Point Nuclear Station, LLC (as assignee of
Constellation Nuclear, LLC) and Rochester Gas and Electric Corporation; and (iv) that
certain Revenue Sharing Agreement,
dated as of December 11, 2000, between Nine Mile Point Nuclear Station,
LLC (as assignee of Constellation Nuclear, LLC) and Central Hudson Gas &
Electric Corporation.


 

















 


“Legacy PPAs” means (i) that certain Power Purchase Agreement, dated as of December 11, 2000, between
Nine Mile Point Nuclear Station, LLC (as assignee of Constellation Nuclear,
LLC) and Niagara Mohawk Power Corporation; (ii) that certain Power Purchase Agreement, dated as of December 11,
2000, between Nine Mile Point Nuclear Station, LLC (as assignee of
Constellation Nuclear, LLC) and New York State Electric & Gas
Corporation; (iii) that certain Power Purchase Agreement, dated as of December 11, 2000, between
Nine Mile Point Nuclear Station, LLC (as assignee of Constellation Nuclear,
LLC) and Rochester Gas and Electric Corporation; (iv) that certain Power Purchase Agreement, dated as of December 11,
2000, between Nine Mile Point Nuclear Station, LLC (as assignee of
Constellation Nuclear, LLC) and Central Hudson Gas & Electric
Corporation; and (v) that certain Power Purchase Agreement, dated as of November 24,
2003, between R.E. Ginna Nuclear Power Plant, LLC (as assignee of Constellation
Power Source, Inc.) and Rochester Gas and Electric Corporation.