Exhibit 10.19
PUBLIC RELEASE VERSION
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
BETWEEN
GEORGIA POWER COMPANY
AND
SOUTHERN POWER COMPANY
AT
PLANT AUTAUGAVILLE
August 6, 2001
TABLE OF CONTENTS
ARTICLE 1.........................................................................................................2
DEFINITIONS..............................................................................................2
1.1 Certain Definitions....................................................................2
ARTICLE 2........................................................................................................12
CONDITIONS PRECEDENT....................................................................................12
2.1. Regulatory Approvals and Transfer of Assets...........................................12
ARTICLE 3........................................................................................................13
TERM OF THE AGREEMENT...................................................................................13
3.1. Term..................................................................................13
ARTICLE 4........................................................................................................13
REPRESENTATIONS, WARRANTIES AND COVENANTS...............................................................13
4.1 Mutual Representations, Warranties and Covenants......................................14
4.2 Covenants of Seller...................................................................15
ARTICLE 5........................................................................................................16
DELIVERY OF RETAIL CAPACITY AND ENERGY..................................................................16
5.1 Agreement to Provide Capacity and Energy for Retail Service...........................16
5.2 Calculation of Monthly Capacity Payments..............................................16
5.3 Calculation of Monthly Energy Payments................................................16
ARTICLE 6........................................................................................................17
BILLING AND COLLECTION..................................................................................17
6.1 Capacity and Energy Billing and Payment...............................................17
ARTICLE 7........................................................................................................17
FACILITY IMPLEMENTATION AND CONSTRUCTION................................................................17
7.1 Project Implementation................................................................17
7.2 Failure to Achieve Required Threshold Date............................................18
7.3 Cover Period Energy...................................................................18
7.4 Failure to Meet Required Commercial Operation Date....................................19
7.5. Right to Advance Required Commercial Operation Date...................................19
ARTICLE 8........................................................................................................19
INTERCONNECTION AND METERING............................................................................19
8.2 Protective Devices....................................................................20
8.3 Meters................................................................................20
ARTICLE 9........................................................................................................21
COMMERCIAL OPERATION, TESTING AND DESIGNATION OF CAPACITY...............................................21
9.1 Commercial Operation Test.............................................................21
9.2 Capacity Examination..................................................................21
ARTICLE 10.......................................................................................................22
OPERATION, MAINTENANCE AND DISPATCH.....................................................................22
10.1 Operation, Maintenance and Dispatch...................................................22
10.2 Maintenance Scheduling................................................................22
10.3 Air Permits...........................................................................22
ARTICLE 11.......................................................................................................23
FUEL SUPPLY.............................................................................................23
11.1 Fuel Supply Plan......................................................................23
11.2 Fuel Transportation Capacity..........................................................23
ARTICLE 12.......................................................................................................24
FORCE MAJEURE...........................................................................................24
12.1 Definition of Force Majeure Event.....................................................24
12.2 No Breach or Liability................................................................24
12.3 Capacity and Energy Payments..........................................................25
12.4 Mitigation............................................................................25
12.5 Suspension of Performance.............................................................25
ARTICLE 13.......................................................................................................25
FAILURE OF PERFORMANCE AND REMEDIES.....................................................................25
13.1 Notice of Failure of Performance......................................................25
13.2 Failure of Performance by Seller......................................................25
13.3 Failure of Performance by Buyer.......................................................27
13.4 Remedies..............................................................................29
13.5 Discharge of Obligations Upon Termination.............................................29
13.6 No Consequential Damages..............................................................30
13.7 No Warranties.........................................................................30
ARTICLE 14.......................................................................................................30
COMPLIANCE WITH LAWS, RULES AND REGULATION..............................................................30
14.1 Compliance............................................................................30
14.2 Change of Law.........................................................................30
14.3 NOx Emissions.........................................................................31
14.4 Taxes.................................................................................31
ARTICLE 15.......................................................................................................31
ASSIGNMENT AND TRANSFERS OF INTERESTS...................................................................31
15.1 Assignment and Assumption of Obligations..............................................31
15.2 Assignment to Lenders.................................................................31
ARTICLE 16.......................................................................................................32
INDEMNIFICATION.........................................................................................32
16.1 Indemnity.............................................................................32
16.2 Notice of Proceedings.................................................................32
ARTICLE 17.......................................................................................................33
MISCELLANEOUS PROVISIONS................................................................................33
17.1 Amendments............................................................................33
17.2 Binding Effect........................................................................33
17.3 Counterparts..........................................................................34
17.4 Notices...............................................................................34
17.5 Entire Agreement......................................................................35
17.6 Governing Law.........................................................................35
17.7 Non-Waiver............................................................................35
17.8 Headings Not Affecting Meaning........................................................35
17.9 Third Parties.........................................................................36
17.10 Severability..........................................................................36
17.11 Cooperation...........................................................................36
17.12 Relationship..........................................................................36
17.13 Confidentiality.......................................................................36
17.14 Replacement Index.....................................................................37
APPENDIX A........................................................................................................1
CAPACITY PAYMENT CALCULATION.............................................................................1
APPENDIX B........................................................................................................1
ENERGY PAYMENT CALCULATION...............................................................................1
APPENDIX C........................................................................................................1
DESIGN PARAMETERS AND SCHEDULING PROCEDURES..............................................................1
APPENDIX D........................................................................................................1
PERFORMANCE TESTING PROCEDURES AND DISPATCH..............................................................1
APPENDIX E........................................................................................................1
DAILY DAMAGE FOR FAILURE TO MEET THE REQUIRED COMMERCIAL OPERATION DATE..................................1
APPENDIX F........................................................................................................1
HIGHER HEATING VALUE GUARANTEED HEAT RATE CURVES.........................................................1
APPENDIX G........................................................................................................1
TRANSMISSION INTERCONNECTION COST ADJUSTMENT.............................................................1
APPENDIX H........................................................................................................1
BILLING PROCEDURES.......................................................................................1
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
BETWEEN
GEORGIA POWER COMPANY
AND
SOUTHERN POWER COMPANY
THIS AMENDED AND RESTATED POWER PURCHASE AGREEMENT ("Agreement"), dated
as of August 6, 2001, is made by and between Georgia Power Company ("Buyer"), a
corporation organized and existing under the laws of the State of Georgia with
its principal address at 241 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, and the Southern Power Company ("Seller"), a corporation organized and
existing under the laws of the State of Delaware with its principal address at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (individually a "Party" or
collectively the "Parties").
W I T N E S S E T H:
WHEREAS, Buyer is engaged in the distribution and sale of electricity
for heat, light and power to the public in the State of Georgia;
WHEREAS, Seller is authorized to, among other things, own and operate
electric generating facilities and sell electric capacity and associated energy
from such facilities;
WHEREAS, Buyer has agreed to purchase from Seller and Seller has agreed
to sell to Buyer electric capacity and associated energy all in accordance with
the provisions of this Agreement;
WHEREAS, the Georgia Public Service Commission issued a Supplemental
Order in Docket No. 12499-U on August 2, 2001, (the "Supplemental Order")
modifying certain terms and conditions of that certain Power Purchase Agreement
Between Georgia Power Company and Southern Power Company at Plant Autaugaville,
dated as of March 30, 2001 (the "Original PPA"); and,
WHEREAS, the Parties desire to amend and restate the Original PPA to
incorporate the modifications ordered by the Georgia Public Service Commission
in its Supplemental Order.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Buyer and Seller each intending to be legally
bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. The following capitalized terms and phrases, in
addition to those defined above, as and when used in this Agreement shall have
the respective meanings set forth below:
1.1.1 "Affiliate" - means any other entity directly or indirectly controlling or
controlled by or under direct or indirect common control of a specified entity.
For purposes of this definition, "control" means the power to direct the
management and policies of such entity, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise. The terms
"controlling" and "controlled" have meanings correlative to the foregoing.
1.1.2 "Air Permits" - shall have the meaning as set forth in Section 10.3.
1.1.3 "Annual Period" - means any one of a succession of twelve (12) month
periods, the first of which shall begin on June 1, 2004, and end on May 31,
2005.
1.1.4 "Block" - means the natural gas-fired combined cycle generating unit
having a nominal capability of producing approximately 610 MW to be constructed
at the Facility. The Block will comprise two combustion turbines with two heat
recovery steam generators, a common steam turbine generator, and associated
equipment, systems, and structures as necessary for the operation of the Block.
1.1.5 "Business Day" - means any calendar day excluding Saturdays, Sundays and
NERC-defined holidays.
1.1.6 "Capacity Availability Performance Adjustment" or "CAPA" - means the
adjustment to the capacity pursuant to Section 5.2 and the calculation set forth
in Section C of Appendix A.
1.1.7 "Change of Law" - shall have the meaning as set forth in Section 14.2.
1.1.8 "Commercial Operation Date" - means for the Block, the date on which the
Block achieves commercial operation, which shall be deemed to have occurred when
(i) start-up and testing of the Block has been completed in accordance with
Section 9.2 and Appendix D and (ii) the Block is capable of producing energy and
delivering same to the Transmission System through the Interconnection Point on
a reliable basis.
1.1.9 "Confidential Information" - means business or technical information
rightfully in the possession of either Party, which information derives actual
or potential commercial value from not being generally known or readily
ascertainable through independent development or reverse engineering by persons
who can obtain economic value from its disclosure and use, and which information
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. Confidential Information consists of information
designated as confidential and furnished or disclosed to the other Party in
connection with this Agreement.
1.1.10 "Consents" - means any permit, approval, consent, authorization or other
requirement that is required from any Governmental Authority in connection with
Seller's performance of its obligations under this Agreement, including, without
limitation all applicable environmental certificates, licenses, permits and
approvals.
1.1.11 "Consumer Price Index" or "CPI" - means the measure of the average change
in prices paid by urban consumers for a fixed market basket of goods and
services approved by the Bureau of Labor Statistics or any Governmental
Authority succeeding to the powers and functions thereof.
1.1.12 "Contract Capacity" - means the capacity of the Block at Rated Conditions
new and clean, as specified in Section A.1 of Appendix A.
1.1.13 "Cover Amount" - means, [redacted] for delivery in any hour during the
applicable Summer Seasonal Performance Period.
1.1.14 "Cover Period" - shall have the meaning as set forth in Section 7.3.
1.1.15 "Delivered Energy" - means, either individually or in combination, the
energy in megawatt hours (MWh): (i) generated by the Block net of Station
Service and net of energy being delivered to third parties in accordance with
Section 5.1, measured by the Metering System and corrected for any gains or
losses between the metering point and the Interconnection Point; or (ii)
supplied by resources other than the Block and delivered to the Delivery Point.
1.1.16 "Delivery Point" - means the point on the Transmission System at which
Seller shall deliver the energy and shall be as follows: (i) if from the Block,
the Delivery Point shall be the Interconnection Point, and (ii) if from an
alternate resource, the Delivery Point shall be any point on the Transmission
System designated at the time of delivery.
1.1.17 "Demonstrated Capability" - means demonstrated capacity of the Block at
[redacted], as adjusted to Rated Conditions, resulting from a test under Article
9.
1.1.18 "Designated Capacity" - means the amount of capacity (in MW) for the
Block nominated by Seller at Rated Conditions. Designated Capacity shall be
nominated for each Annual Period by [redacted] prior to the beginning of each
such Annual Period and may not exceed the Demonstrated Capability of the Block.
1.1.19 "Facility" - means the land, rights-of-way, Block and related equipment
and facilities of the electric generating plant to be or being constructed on
the Site in connection with the Block. The Facility shall include (without
limitation) the Block and all associated auxiliary equipment and facilities
installed at the Site necessary or used for the production, control, delivery or
monitoring of electricity produced on the Site by the Block. All equipment and
facilities installed on the generator's side of the Interconnection Point in
connection with the Block are considered to be part of the Facility except those
that constitute Interconnection Facilities.
1.1.20 "Failure of Performance" - shall have the meaning as set forth in
Sections 13.2 and 13.3.
1.1.21 "FERC" - means the Federal Energy Regulatory Commission or any
Governmental Authority succeeding to the powers and functions thereof under the
Federal Power Act.
1.1.22 "FERC Approval" - means the consent and permission of FERC necessary to
satisfy all applicable federal regulations and rules that are administered by
and under the jurisdiction of FERC.
1.1.23 "Firm Fuel Capacity" - shall have the meaning as set forth in Article 11.
1.1.24 "Fixed Charge Rate" - means [redacted].
1.1.25 "Force Majeure Event" - shall have the meaning as set forth in Section
12.1.
1.1.26 "Fuel" - means natural gas, the quantity of which shall be determined
based on its higher heating value basis.
1.1.27 "Governmental Authority" - means any local, state, regional or federal
administrative, legal, judicial or executive agency, court, commission,
department or other such entity, but excluding any such agency, court,
commission, department or other such entity acting in its capacity as purchaser,
lender, guarantor or mortgagee.
1.1.28 "GPSC" - means the Georgia Public Service Commission or any Governmental
Authority succeeding to the powers and functions thereof.
1.1.29 "GPSC Approval" - means the granting of a certificate approving this
Agreement as a long-term power purchase capacity resource pursuant to O.C.G.A
ss. ss. 46-3A-5 and 46-3A-8.
1.1.30 "Guaranteed Heat Rate" - shall have the meaning set forth in Appendices D
and F and shall be determined based on the higher heating value basis.
1.1.31 "Incremental Replacement Cost" - means the positive difference, if any,
between the Replacement Cost for Scheduled energy not delivered by Seller under
this Agreement and the amount that Seller would otherwise have been entitled to
receive under Appendix B for such Scheduled energy.
1.1.32 "Interconnection Agreement" - means an agreement between Alabama Power
Company and Seller allowing Seller to interconnect the Facility to the
Transmission System and operate the Facility in parallel with the Transmission
System.
1.1.33 "Interconnection Cost Adjustment" or "ICA" - shall have the meaning as
set forth in Appendix G.
1.1.34 "Interconnection Facilities" - means those facilities that Alabama Power,
in its reasonable judgment, determines must be installed or modified in order to
electrically connect the Block to the Transmission System at 500 kV.
1.1.35 "Interconnection Point" - means the point of electrical connection
between the Block's collector bus and the 500 kV Interconnection Facilities.
1.1.36 "Interest Rate" - means [redacted].
1.1.37 "kW" - means kilowatt(s).
1.1.38 "Legal Requirement" - means any law, code, statute, regulation, rule,
ordinance, judgment, injunction, order or other requirement of a Governmental
Authority having jurisdiction over the matter in question, which is valid and
applicable to the matter in question at the time of the execution of the
Agreement or anytime thereafter during the Term.
1.1.39 "Metering System" - means all meters, metering devices and related
instruments used to measure and record electric capacity and energy and used to
determine the amount of such electric capacity and energy that is being made
available or delivered at the Interconnection Point.
1.1.40 "Monthly Capacity Payment" - means the monthly amount to be paid by Buyer
to Seller for the supply of Designated Capacity, as calculated in accordance
with Appendix A.
1.1.41 "Monthly Energy Payment" - means the monthly amount to be paid by Buyer
to Seller for the purchase of energy delivered during such month, as calculated
in accordance with Appendix B.
1.1.42 "MW" - means megawatt(s), or one thousand (1,000) kilowatts.
1.1.43 "MWh" - means megawatt hour(s).
1.1.44 "NERC" - means the North American Electric Reliability Council including
any successor thereto and subdivisions thereof.
1.1.45 "Primary Gas Delivery Point" - means the primary delivery point for Fuel
located at the point of interconnection between Southern Natural Gas Company's
("SNG") pipeline system and the Seller's pipeline lateral serving the Facility.
1.1.46 "Project" - means the design, engineering, financing, construction,
testing and commissioning of the Facility and the ownership, operation,
management and maintenance of the Facility, all of which being reasonably
expected to enable Seller to fulfill its obligations under this Agreement.
1.1.47 "Prudent Utility Practices" - means, at a particular time, any of the
practices, methods and acts engaged in or approved by a significant portion of
the United States electric utility industry prior to such time, or any of the
practices, methods and acts which, in the exercise of reasonable judgment in
light of the facts known at the time the decision was made, could have been
expected to accomplish the desired results at a reasonable cost consistent with
good business practices, reliability, safety and expedition. Prudent Utility
Practices is not intended to be limited to the optimum practice, method or act
to the exclusion of all others, but rather to be a spectrum of possible
practices, methods or acts expected to accomplish the desired results, having
due regard for, among other things, manufacturers' warranties and the
requirements of Governmental Authorities of competent jurisdiction and the
requirements of this Agreement.
1.1.48 "Rated Conditions" - means the conditions as set forth in Appendix D.
1.1.49 "Replacement Cost" - means: (i) the cost incurred in a commercially
reasonable manner to produce or purchase the Shortfall Amount, plus
transactional costs reasonably incurred in purchasing the Shortfall Amount and
additional transmission charges, if any, reasonably incurred to deliver such
Shortfall Amount to the Transmission System; or (ii) the market price at which
an amount of energy equal to the Shortfall Amount could have been acquired for
delivery to the Transmission System, as determined in a commercially reasonable
manner. In no event shall Replacement Cost include any penalties, ratcheted
demand or similar charges, nor shall there be any requirement to utilize or
change utilization of owned or controlled assets or market positions to minimize
such cost.
1.1.50 "Required Commercial Operation Date" - means June 1, 2004, for the Block,
or as such date(s) may be extended or adjusted pursuant to the terms of this
Agreement.
1.1.51 "Required Threshold Date" - means October 1, 2002.
1.1.52 "Schedule" - when used as a noun, means an energy schedule, including:
(i) economic dispatch of the Block using automatic generation control or (ii)
submission of a manual or electronic schedule of energy to the dispatch center
for delivery of energy from the Block or alternate resources, as submitted in
accordance with the provisions of Article 11 and Appendix C of this Agreement.
When used as a verb, "Schedule" means the act of submitting a Schedule in
accordance with the provisions of Article 11 and Appendix C of this Agreement.
1.1.53 "Scheduled Outage" - means a planned interruption of a portion or all of
the generation capability of the Block that has been coordinated with a mutually
agreed start date, time and duration.
1.1.54 "Seasonal Availability Factor" or "SAF" - shall have the meaning as
set forth in Appendix A.
1.1.55 "Seasonal Performance Period" - means one of the following periods
during the Annual Period: [redacted].
1.1.56 "SERC" - means the Southeastern Electric Reliability Council, including
any successor thereto and subdivisions thereof.
1.1.57 "Shortfall Amount" - means the positive difference (rounded to the
nearest whole MWh) of (i) the Cover Amount in any hour during a Cover Period,
less (ii) the amount of energy that Seller causes to be delivered to the
Transmission System in such hour in response to such Schedule.
1.1.58 "Site" - means the land in Autauga County, Alabama, on which the
Facility is to be located.
1.1.59 "Station Service" - means energy produced by the Block that is used to
serve the electrical requirements of the Block.
1.1.60 "Taxes" - means all taxes, fees, levies, licenses or similar charges
imposed by any Governmental Authority, together with any interest and penalties
thereon.
1.1.61 "Term" - means the term of this Agreement as specified in Article 3.
1.1.62 "Threshold Date" - means the date on which Seller obtains the
necessary Air Permits for the Block.
1.1.63 "Transmission System" - means the high voltage electric transmission
system of Alabama Power Company, either singularly or as a part of the
integrated transmission systems of the electric utility operating companies of
Southern Company (currently, Alabama Power Company, Georgia Power Company, Gulf
Power Company, Mississippi Power Company, and Savannah Electric and Power
Company) including transmission systems that are co-owned by one or more of such
entities and one or more third parties, such as, but not limited to MEAG and
Georgia Transmission Corporation, as modified or expanded from time-to-time, as
well as any successor in function.
1.1.64 "Transportation Quantity" - means the quantity of Fuel that is equal to
the sum of (i) the product of the Guaranteed Heat Rate times the number of
kilowatt-hours Scheduled by Buyer, plus (ii) the quantity of Fuel necessary for
start-up, ramp up and ramp down.
ARTICLE 2
CONDITIONS PRECEDENT
2.1 Regulatory Approvals and Transfer of Assets.
2.1.1 The obligations of the Parties are conditioned on the following: (i)
GPSC Approval of this Agreement and GPSC authorization for the Buyer to recover
from its customers all payments required or contemplated to be made to Seller
pursuant to Article 5 and Section 14.2 of this Agreement; (ii) approval by FERC
of this Agreement without modification; and (iii) the closing of the expected
transfer of the Autaugaville Combined Cycle Unit Two Facility assets to Seller
necessary to perform this Agreement and of Seller's financing of such transfer.
2.1.2 The Parties shall use reasonable best efforts to obtain the GPSC
acceptance and FERC Approval in a timely manner without material modification to
the terms and conditions of this Agreement.
ARTICLE 3
TERM OF THE AGREEMENT
3.1 Term. Subject to the termination and survival provisions herein, this
Agreement shall be effective and remain in full force and effect from the date
it is executed and delivered by both Buyer and Seller. Buyer and Seller agree to
be bound by this Agreement until its termination according to the terms hereof.
Seller's obligation to deliver and Buyer's obligation to accept capacity and
associated energy from the Block shall be from its Required Commercial Operation
Date, through May 31, 2019 (the "Operating Term").
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Mutual Representations, Warranties and Covenants. Each Party
represents, warrants, and covenants to the other Party that: 4.1.1 it is a
corporation duly organized, validly existing, and in good standing under the
respective laws of the state of its formation; 4.1.2 it has all requisite
corporate power to own, operate and lease its properties, carry on its business
as now conducted, enter into this Agreement, carry out the transactions
contemplated hereby, and perform and carry out all covenants and obligations on
its part to be performed under and pursuant to this Agreement; 4.1.3 the
execution, delivery and performance of this Agreement has been duly authorized
by all necessary corporate action, do not and will not require any further
consents or approvals of its Board of Directors or shareholders other than that
which has been obtained, and do not and will not violate any of the terms or
conditions of any contract or other agreement to which it is a party or any
Legal Requirements applicable to it; 4.1.4 this Agreement constitutes each
Party's legally valid and binding obligation enforceable against it in
accordance with the terms thereof, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights of
creditors generally and by general principles of equity; 4.1.5 there are no
bankruptcy proceedings pending or being contemplated by it or, to its knowledge,
threatened against it; 4.1.6 to its knowledge, there are no pending or
threatened actions or proceedings affecting it before any Governmental Authority
which purport to affect the legality, validity or enforceability of this
Agreement or would be reasonably likely to materially adversely affect its
ability to perform this Agreement; and 4.1.7 the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby, and the
fulfillment of and compliance with the provisions of this Agreement do not and
will not conflict with or constitute a breach of or a default under, any of the
terms, conditions or provisions of any Legal Requirements, or any partnership
agreement, deed of trust, mortgage, loan agreement, other evidence of
indebtedness or any other agreement or instrument to which it is a party or by
which it or any of its property is bound, or result in a breach of or a default
under any of the foregoing. 4.2 Covenants of Seller. 4.2.1 Seller shall: (i)
construct or cause to be constructed; (ii) own, lease, or control the entire
electrical output of; and (iii) operate and maintain the Facility, all in
accordance with this Agreement. 4.2.2 Seller shall obtain and maintain at all
times during the Term all Consents as and when required by applicable Legal
Requirements for the construction, operation and maintenance of the Facility as
contemplated pursuant to this Agreement. 4.2.3 Seller shall at all times during
the Term of this Agreement construct, operate and maintain the Facility in
accordance with Prudent Utility Practices.
ARTICLE 5
DELIVERY OF CAPACITY AND ENERGY
5.1 Agreement to Provide Capacity and Energy.
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5.1.1 During the Operating Term, Seller shall make available
to Buyer the entire electrical output of the Block, net of Station Service,
except during periods of Scheduled Outages and Force Majeure Events.
5.1.2 Seller shall deliver to Buyer, and Buyer shall accept
from Seller, at the Delivery Point, the energy Scheduled by Buyer pursuant to
this Agreement from: (i) the Block or (ii) an alternate resource other than the
Block or (iii) any combination of (i) and (ii).
5.2 Calculation of Monthly Capacity Payments. Except as otherwise
provided herein, Buyer shall pay to the Seller, for each month of the Operating
Term, the Monthly Capacity Payment calculated in accordance with Appendix A. In
addition, following [redacted] (as shown in Table A-1 of Appendix A), a Capacity
Availability Performance Adjustment ("CAPA") shall be calculated in accordance
with Section C of Appendix A and paid in accordance with Section A of Appendix
H.
5.3 Calculation of Monthly Energy Payments. Except as otherwise provided
herein, Buyer shall pay to Seller, for each month of the Operating Term, the
Monthly Energy Payment calculated in accordance with Appendix B.
ARTICLE 6
BILLING AND COLLECTION
6.1 Capacity and Energy Billing and Payment. Seller and Buyer shall agree to the
billing and payment process as set forth in Appendix H. However, the Parties
shall maintain the right to amend the billing and payment process as appropriate
from time-to-time.
ARTICLE 7
FACILITY IMPLEMENTATION AND CONSTRUCTION
7.1 Project Implementation. Seller shall: (i) arrange for the
acquisition of or use of the Site for the Term; (ii) apply for, and use diligent
efforts to obtain and maintain, all Consents (including renewals thereof) and
any other approvals of Governmental Authorities that are required in connection
with the Project, including the transactions contemplated under this Agreement;
(iii) act consistent with Prudent Utility Practices in all aspects of the
Project; and (iv) use diligent efforts to meet the Required Commercial Operation
Date and to otherwise carry out the transactions contemplated under this
Agreement.
7.2 Failure to Achieve Required Threshold Date.
------------------------------------------
7.2.1 If the Threshold Date will not occur on or before the Required Threshold
Date, then Seller may choose either: (i) to continue to perform in accordance
with the provisions of Section 7.2.2 (the "Performance Election"); or (ii) to
perform in accordance with the provisions of Section 7.2.3 (the "Cover
Election").
7.2.2 If Seller chooses the Performance Election, then the Required Threshold
Date shall be extended to April 2, 2003, and Seller shall continue diligently to
obtain the necessary Air Permits. In the event that the Threshold Date is not
achieved by the extended Required Threshold Date, the Seller shall pay
[redacted] to Buyer. If at any time prior to the extended Required Threshold
Date, the Seller determines that it cannot obtain the Air Permits, it may elect
to terminate the Agreement in which case the same remedy shall apply.
7.2.3 [redacted].
7.3 Cover Period Energy.
-------------------
7.3.1 [redacted].
7.3.2 Appendix B will govern payments for the Scheduled energy delivered
during the Cover Period.
7.3.3 If Seller fails to deliver any Scheduled energy during the Cover Period,
Seller shall pay to Buyer an [redacted].
7.3.4 At the end of the Cover Period, this Agreement shall terminate and the
Parties shall have no further obligations hereunder.
7.4 Failure to Meet Required Commercial Operation Date.
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7.4.1 If Seller fails to obtain commercial operation of the
Block on or before the Required Commercial Operation Date for the Block for any
reason other than failure to obtain the Air Permits, [redacted].
7.4.2 [redacted].
7.5. Right to Advance Required Commercial Operation Date. Upon mutual
agreement of the Parties, Buyer and Seller may advance the Required Commercial
Operation Date. In the event that the Parties advance the Required Commercial
Operation Date, the Parties shall also advance accordingly the commencement and
due dates of their respective payment and performance obligations.
ARTICLE 8
INTERCONNECTION AND METERING
8.1 Interconnection. Georgia Power shall construct or cause to be
constructed the Interconnection Facilities in order to electrically connect the
Block to the Transmission System at the Interconnection Point. Seller shall
reimburse Buyer for actual costs incurred in constructing the Interconnection
Facilities in accordance with Appendix G.
8.2 Protective Devices. Seller shall provide, install and maintain
internal breakers, relays, switches, synchronizing equipment and other
associated protective control equipment necessary to maintain the reliability,
quality and safety of the electric power production of the Facility in
accordance with Prudent Utility Practices.
8.3 Meters.
------
8.3.1 Seller shall ensure that the Metering System is designed, located,
constructed, installed, operated and maintained in accordance with Prudent
Utility Practices in order to measure and record the amount of energy and
capacity delivered from the Block.
8.3.2 Seller shall ensure that all meters are inspected and tested at such times
as will conform to Prudent Utility Practices, but not less often than once every
two (2) years. 8.3.3 If the Metering System fails to register, or if the
measurement made by a metering device is found upon testing to vary by more than
one half percent (0.5%) from the measurement made by the standard meter used in
the test, an adjustment shall be made correcting all measurements of energy made
by the Metering System during: (a) the actual period when inaccurate
measurements were made by the Metering System, if that period can be determined;
or (b) if such actual period cannot be determined, the latter half of the period
from the date of the last test of the Metering System to the date such failure
is discovered or such test is made. The amount of the adjustment may be
determined: (i) by correcting the error if the percentage of error is
ascertainable by calibration, tests or mathematical calculation; or (ii) if not
so ascertainable, by estimating on the basis of deliveries under similar
conditions during the period since the last test.
ARTICLE 9
COMMERCIAL OPERATION, TESTING AND DESIGNATION OF CAPACITY
9.1 Commercial Operation Test.
-------------------------
9.1.1 The initial Demonstrated Capability of the Block shall
be established in accordance with the performance testing procedures set forth
in Appendix D. Seller shall nominate the initial Designated Capacity of the
Block following such performance testing, but such nomination shall occur at
least one day before the later of the Required Commercial Operation Date and the
Commercial Operation Date. Such nomination shall not exceed the Demonstrated
Capability of the Block.
9.1.2 Seller may at its option, perform additional capacity
tests prior to [redacted] after the later of (i) the Required Commercial
Operation Date and (ii) the Commercial Operation Date. [redacted].
9.2 Capacity Examination.
--------------------
9.2.1 Annual Nomination. Seller shall nominate the Designated
Capacity for each Annual Period by the May 1st immediately preceding such Annual
Period. Seller will use commercially reasonable efforts to ensure that
degradation [redacted] adjusted to Rated Conditions throughout the Term. Any
reduction in the Demonstrated Capability of the Block through a capacity
examination will result in a reduction of the Designated Capacity of the Block
to the demonstrated level and a corresponding reduction in capacity payments for
the Block in accordance with the Monthly Capacity Payment calculation set forth
in Appendix A.
ARTICLE 10
OPERATION, MAINTENANCE AND DISPATCH
10.1 Operation, Maintenance and Dispatch. Seller shall manage, control,
operate and maintain all parts of the Facility in a manner consistent with
Prudent Utility Practices. Seller shall also operate the Facility in accordance
with applicable reliability criteria and guides of the SERC and NERC. The
Parties intend to operate the Block in economic dispatch. However, upon mutual
agreement of the Parties, Seller and Buyer may Schedule the Block in accordance
with the procedures set forth in Appendix C. In the event that alternate
resources are utilized by Seller to supply energy, in order to Schedule delivery
of such energy Buyer shall follow the procedures set forth in Appendix C.
10.2 Maintenance Scheduling. The Parties intend for maintenance of the
Blocks to be Scheduled to minimize the impact on the availability of the Block,
but such scheduled and approved unscheduled maintenance hours shall not be a
factor in the calculation of the SAF as set forth in Appendix A.
10.3 Air Permits. Seller shall be obligated to maintain, for the period
required by Legal Requirements during the Operating Term, all Consents
pertaining to air emissions necessary for the performance of Seller's
obligations under this Agreement ("Air Permits"). The Air Permits shall
authorize the operation of the Block for a [redacted].
ARTICLE 11
FUEL SUPPLY
11.1 Fuel Supply Plan.
----------------
11.1.1 At all times during the Operating Term, the Block shall
be capable of utilizing Fuel as Scheduled by Buyer in order to produce the
energy committed to Buyer under this Agreement. Buyer shall have the
responsibility for procuring at its sole cost and making available at the
Primary Gas Delivery Point the quantities of Fuel at the rates of delivery
required to accommodate Buyer's Scheduling instructions. To determine the
quantities of Fuel to be Scheduled by Buyer for transportation to the Primary
Gas Delivery Point in order to satisfy Buyer's Scheduling instructions, Buyer
shall calculate the Transportation Quantity. 11.1.2 Buyer shall pay, in
accordance with Appendix B, for all Fuel used to generate energy that is
delivered to Buyer pursuant to the Buyer's Scheduling instructions, including
energy received during periods of ramp up and ramp down. Seller shall pay for
Fuel used at the Facility for all other purposes, including (but not limited to)
Station Service, initial start-up, testing and synchronization of the Block,
Block start-up capacity examinations and sales to third parties. Seller shall be
responsible for the cost of Fuel for start-up of the Block through the operation
of the Monthly Fuel Cost Adjustment under Section E of Appendix B.
11.2 Fuel Transportation Capacity.
----------------------------
11.2.1 [redacted].
11.2.2 [redacted]
11.2.3 Seller agrees to accept at the Primary Gas Delivery
Point any Transportation Quantity meeting the minimum quality requirements for
delivered Fuel under SNG's FERC Gas Tariff and the applicable transportation
agreement(s).
11.2.4 The Parties shall exercise best efforts to minimize any
imbalances or other penalties or charges from transporters of Fuel delivered to
the Facility ("Imbalance Charges"). If Buyer or Seller receives an invoice from
a transporter for Imbalance Charges, the Parties shall determine the cause for
such charges. [redacted]
11.2.5 All Fuel supplied by the Buyer pursuant to this
Agreement shall be measured at the Primary Gas Delivery Point. [redacted].
ARTICLE 12
FORCE MAJEURE
12.1 Definition of Force Majeure Event. For the purposes of this
Agreement, a "Force Majeure Event" as to a Party means any occurrence,
nonoccurrence or set of circumstances that is beyond the reasonable control of
such Party and is not caused by such Party's negligence or lack of due
diligence, which prevents the Party from being able to perform its obligations
hereunder, including, without limitation, strike or stoppage of labor; flood,
ice, earthquake, windstorm or eruption; fire; explosion; invasion, riot or civil
war, commotion or insurrection; sabotage, terrorism or vandalism; military or
usurped power; or act of God or of a public enemy.
[redacted]
12.2 No Breach or Liability. Both Parties shall be excused from
performance and shall not be construed to be in default in respect of any
obligation hereunder for so long as failure to perform such obligation shall be
due to a Force Majeure Event.
12.3 Capacity and Energy Payments. [redacted].
----------------------------
12.4 Mitigation. Following the occurrence of a Force Majeure Event, the
directly affected Party shall use diligent efforts to remedy its inability to
perform as soon as practicable; however, the directly affected Party is not
required to settle any non Site-specific strike, walkout, lockout or other
general labor dispute on terms which, in the sole judgment of the Party involved
in the dispute, are contrary to its interest.
12.5 Suspension of Performance. The suspension of performance due to a
Force Majeure Event shall be of no greater scope and of no longer duration than
is required by such Force Majeure Event. No Force Majeure Event shall extend
this Agreement beyond the Operating Term.
ARTICLE 13
FAILURE OF PERFORMANCE AND REMEDIES
13.1 Notice of Failure of Performance. If a Party becomes aware of a Failure of
Performance by the breaching Party, it may give the breaching Party written
notice of the Failure of Performance.
13.2 Failure of Performance by Seller. The occurrence of any of the following
events shall constitute a "Failure of Performance" by Seller, except to the
extent caused by a Force Majeure Event:
13.2.1 Except as specifically permitted hereunder, Seller
abandons the development or construction of the Facility prior to the Commercial
Operation Date.
13.2.2 Seller fails to make any payment due to Buyer hereunder
for any undisputed amount or fails to comply with Appendix H with respect to any
disputed amount within [redacted] of receiving a written demand from Buyer,
which demand shall be received no earlier than the Business Day following the
Payment Due Date.
13.2.3 A court having jurisdiction shall enter: (i) a decree
or order for relief in respect of Seller in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law, or (ii) a decree or order adjudicating Seller bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Seller under any
applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of Seller
or of any substantial part of its affairs.
13.2.4 Seller: (i) commences or files a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or any other case or proceeding to be
adjudicated bankrupt or insolvent; (ii) consents to the entry of a decree or
order for relief in respect of Seller in any involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it; (iii) files any petition, answer or consent seeking
reorganization or relief under any applicable Federal or state law; (iv)
consents to the filing of any petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of Seller or of any substantial part of its property; (v)
makes an assignment for the benefit of creditors; (vi) is unable, or admits in
writing its inability, to generally pay its debts as they become due; or (vii)
takes any action in furtherance of any of the foregoing.
13.2.5 Seller assigns this Agreement or any of its rights or
obligations under this Agreement in violation of Article 15.
13.2.6 Any representation or warranty made by Seller herein shall prove to be
incorrect in any material respect when made, unless Seller promptly commences
and diligently pursues action to cause such representation or warranty to become
true and removes any material adverse effect on Buyer of such representation or
warranty having been incorrect.
13.2.7 Seller fails both: (i) to perform or observe any of its material
obligations under this Agreement due to its failure to comply with a Legal
Requirement; and (ii) to promptly commence and diligently pursue action to cure
and cures such failure to perform within [redacted] unless such cure is not
capable of being effected within such [redacted] period, in which case Seller
shall have an additional [redacted] period in which to perform such cure.
13.2.8 [redacted]
13.3 Failure of Performance by Buyer. The occurrence of any of
the following events shall constitute a "Failure of Performance" by Buyer:
13.3.1 Buyer fails to make any payment due to Seller hereunder
for any undisputed amount or fails to comply with Appendix H with respect to any
disputed amount within [redacted] of receiving a written demand from Seller,
which demand shall be received no earlier than the Business Day following the
Payment Due Date.
13.3.2 A court having jurisdiction shall enter: (i) a decree
or order for relief in respect of Buyer in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law, or (ii) a decree or order adjudicating Buyer bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Buyer under any
applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of Buyer
or of any substantial part of its affairs.
13.3.3 Buyer: (i) commences or files a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or any other case or proceeding to be
adjudicated a bankrupt or insolvent; (ii) consents to the entry of a decree or
order for relief in respect of Buyer in any involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it; (iii) files any petition, answer or consent seeking
reorganization or relief under any applicable Federal or state law; (iv)
consents to the filing of any petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of Buyer or of any substantial part of its property; (v)
makes an assignment for the benefit of creditors; (vi) is unable, or admits in
writing its inability, to generally pay its debts as they become due; or (vii)
takes any action in furtherance of any of the foregoing.
13.3.4 Any representation or warranty made by Buyer herein shall prove to be
incorrect in any material respect when made, unless Buyer promptly commences and
diligently pursues action to cause such representation or warranty to become
true and removes any material adverse effect on Seller of such representation or
warranty having been incorrect.
13.3.5 Buyer fails both: (i) to perform or observe any of its material
obligations under this Agreement due to its failure to comply with a Legal
Requirement; and (ii) to promptly commence and diligently pursue action to cure
and cures such failure to perform within [redacted] unless such cure is not
capable of being effected within such [redacted] period, in which case Buyer
shall have an additional [redacted] period in which to perform such cure.
13.4 Remedies. If a Failure of Performance by either Party has
occurred, then the non-breaching Party may terminate this Agreement by giving
[redacted] prior written notice thereof to the breaching Party, which
termination shall be effective upon the [redacted] day following the date of
such notice. In such event Seller will not be entitled to recover Monthly
Capacity Payments and Monthly Energy Payments prospectively from the effective
date of such termination.
13.5 Discharge of Obligations Upon Termination. In the event of
termination of this Agreement, the Parties shall be released and discharged from
any further obligation arising or accruing hereunder from and after the date of
termination; provided, however, that termination shall not discharge or relieve
either Party from any obligations or liabilities for any act or failure to act
which may have accrued prior to such termination.
13.6 No Consequential Damages. In no event shall either Party or their
affiliates, contractors or consultants, or the officers, directors,
shareholders, employees or consultants of any of them be liable for punitive,
special, indirect, incidental or consequential damages under, arising out of,
due to or in connection with the performance or non-performance of this
Agreement or any of the obligations herein, whether based on contract, tort
(including without limitation negligence), strict liability, warranty, indemnity
or otherwise.
13.7 No Warranties. There are no warranties under this Agreement except to the
extent specifically set forth in Article 4. The Parties hereby specifically
disclaim and exclude all implied warranties, including the implied warranties of
merchantability and of fitness for a particular purpose.
ARTICLE 14
COMPLIANCE WITH LAWS, RULES AND REGULATION
14.1 Compliance. Seller shall be in compliance with all Legal
Requirements with respect to the construction, ownership, operation and
maintenance of the Facility.
14.2 Change of Law.
-------------
14.2.1 A "Change of Law" means a change in Legal Requirement
constituting a new environmental or tax law, or regulation or a new
interpretation of such law or regulation, which is enacted or promulgated after
December 15, 2000, and which generally affects the cost of electrical
generation.
14.2.2 [redacted].
14.2.3 [redacted].
14.2.4 [redacted].
14.3 NOx Emissions. [redacted]
-------------
14.4 Taxes. Seller shall at all times during the Term pay or cause to
be paid all charges, taxes, assessments and fees which may be assessed by a
Governmental Authority: (i) upon or against the Block; and/or (ii) upon or
against Seller by reason of the production, sale or purchase of electricity
hereunder.
ARTICLE 15
ASSIGNMENT AND TRANSFERS OF INTERESTS
15.1 Assignment and Assumption of Obligations. Seller may not assign
its obligations under this Agreement or any portion thereof to any entity other
than a creditworthy affiliate without the written permission of Buyer; provided,
however, (i) any assignee shall expressly assume assignor's obligations
hereunder, and (ii) unless otherwise expressly approved by the Buyer and the
GPSC, no assignment, whether or not consented to, shall relieve the assignor of
its obligations hereunder in the event its assignee fails to perform.
15.2 Assignment to Lenders. Notwithstanding Section 15.1, Seller may,
without the consent of Buyer or the GPSC, assign this Agreement to a Lender for
collateral security purposes in connection with any financing or the refinancing
of the Facility.
ARTICLE 16
INDEMNIFICATION
16.1 Indemnity. Subject to Section 13.7, each Party (the "Indemnifying
Party") expressly agrees to indemnify, hold harmless and defend the other Party
and its affiliates, trustees, agents, officers, directors, employees and
permitted assigns (the "Indemnified Party") against all claims, liabilities,
costs or expenses for loss, damage or injury to persons or property in any
manner directly or indirectly connected with or growing out of, the generation,
transmission or distribution of energy on its respective side of the Delivery
Point, unless such loss, damage or injury is the result of the gross negligence
or willful misconduct of the Party seeking indemnification.
16.2 Notice of Proceedings. An Indemnified Party which becomes entitled
to indemnification under the Agreement shall promptly notify the other Party of
any claim or proceeding in respect of which it is to be indemnified. Such notice
shall be given as soon as reasonably practicable after the Indemnified Party
obligated to give such notice becomes aware of such claim or proceeding. The
Indemnifying Party shall assume the defense thereof with counsel designated by
the Indemnifying Party; provided, however, that if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party reasonably concludes that there may be legal defenses
available to it that are different from or additional to, or inconsistent with,
those available to the Indemnifying Party, the Indemnified Party shall have the
right to select and be represented by separate counsel. The Indemnified Party
shall be responsible for the expenses associated with such separate counsel,
unless a liability insurer will pay the expenses of such separate counsel. If
the Indemnifying Party fails to assume the defense of a claim, the
indemnification of which is required under this Agreement, the Indemnified Party
may, at the expense of the Indemnifying Party, contest, settle, or pay such
claim; provided, however, that settlement or full payment of any such claim may
be made only with the Indemnifying Party's consent or, absent such consent,
written opinion of the Indemnified Party's counsel that such claim is
meritorious or warrants settlement.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Amendments. This Agreement may be amended by and only by a written
instrument duly executed by both Buyer and Seller which has received all
approvals of Governmental Authorities of competent jurisdiction necessary for
the effectiveness thereof.
17.2 Binding Effect. This Agreement and any extension shall inure to the
benefit of and shall be binding upon the Parties and their respective successors
and permitted assigns.
17.3 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
17.4 Notices. Where written notice is required by this Agreement, such
notice shall be in writing and shall be deemed given (i) when delivered by
United States registered or certified mail, postage prepaid, return receipt
requested, or delivered by recognized courier addressed as follows:
To Seller: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President,
Southern Company Generation and Energy Marketing
BIN 935
270 Peachtree Street, N.E.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
To Buyer: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Resource Planning Manager,
Southern Company Services, Inc.
BIN 15N-8182
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other address as may be designated by the Parties; or (ii) when sent
by facsimile transmission or electronic mail, provided receipt of such facsimile
transmission or electronic mail is confirmed by facsimile transmission,
electronic mail, or otherwise in writing at the time of transmission.
17.5 Entire Agreement. This Agreement constitutes the entire
understanding between the Parties. The Parties have entered into this Agreement
in reliance upon the representations and mutual undertakings contained herein
and not in reliance upon any oral or written representations or information
provided by one Party to the other Party not contained or incorporated herein.
17.6 Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Georgia, without giving
effect to conflict of laws principles, which may direct the application of the
laws of another jurisdiction.
17.7 Non-Waiver. No provision of this Agreement shall be deemed waived
and no breach shall be deemed excused unless such waiver or consent is in
writing and signed by a duly authorized representative of the Party waiving such
provision or excusing such breach. No such consent to, or waiver of a breach
hereof, whether express or implied shall constitute a consent to, waiver of, or
excuse for any subsequent or different breach.
17.8 Headings Not Affecting Meaning. The descriptive headings of the
various Sections and Articles of the Agreement have been inserted for
convenience of reference only and shall in no way modify or restrict any of the
terms and provisions hereof.
17.9 Third Parties. This Agreement is intended solely for the benefit
of the Parties hereto. Except as otherwise expressly provided herein, nothing in
this Agreement shall be construed to create any duty to, or standard of care
with reference to, or any liability to, any person not a Party to this
Agreement.
17.10 Severability. All provisions of this Agreement are severable. In
the event any provision of this Agreement, or a portion thereof, is ruled void,
invalid, unenforceable or contrary to public policy by a court of competent
jurisdiction, then any remaining portion of such provision and all other
provisions of this Agreement shall survive and be applied and any invalid and
unenforceable portion shall be construed or performed to preserve as much of the
original words, terms, purpose and intent to the fullest extent permitted by
law.
17.11 Cooperation. Upon the execution of this Agreement and thereafter,
each Party to this Agreement agrees to do such things as may be reasonably
requested by the other Party in order more effectively to consummate or document
the transactions contemplated by this Agreement.
17.12 Relationship. This Agreement shall not be interpreted or
construed to create an association, joint venture, or partnership between the
Parties, or to impose any partnership obligation or liability upon either Party.
17.13 Confidentiality.
---------------
17.13.1 Each Party agrees that for a period of five (5) years
from the date of termination of the Agreement it will not, without the written
consent of the other Party or as otherwise provided herein, disclose
Confidential Information to any third party (other than, when permitted by all
applicable Legal Requirements, to affiliates or to consultants, advisors and
lenders who need to know such information in connection with the performance of
their duties or services for the disclosing Party or its affiliates), except to
the extent that disclosure is required by law, or by a court or by an
administrative agency having jurisdiction over the disclosing Party.
17.13.2 Seller intends to seek confidential treatment of the
Confidential Information in this Agreement from FERC, and Buyer will provide
reasonable cooperation in connection with such request. Notwithstanding the
foregoing, the Parties acknowledge that certain Confidential Information may
need to be disclosed in Seller's filings with FERC which may become publicly
available.
17.14 Replacement Index. Whenever any published index or tariff is
referenced herein, the Parties intend to track those costs as faithfully as
commercially practicable. Should any such index or tariff be discontinued or no
longer published, the Parties will cooperate in establishing substitute
benchmarks through reference to equivalent indices or tariffs.
IN WITNESS WHEREOF, the undersigned Parties hereto have duly executed
this Agreement as of the date first written above.
FOR GEORGIA POWER COMPANY
By:
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FOR SOUTHERN POWER COMPANY
By:
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Appendix A - Page 2 of 3
APPENDIX A
CAPACITY PAYMENT CALCULATION
[redacted]
Appendix B - Page 1 of 5
APPENDIX B
ENERGY PAYMENT CALCULATION
[redacted]
Appendix C - Page 1 of 3
APPENDIX C
DESIGN PARAMETERS AND SCHEDULING PROCEDURES
[redacted]
Appendix D - Page 1 of 3
APPENDIX D
PERFORMANCE TESTING PROCEDURES AND DISPATCH
[redacted]
Appendix E - Page 1 of 1
APPENDIX E
DAILY DAMAGE FOR FAILURE TO MEET THE
REQUIRED COMMERCIAL OPERATION DATE
[redacted]
Appendix F - Page 1 of 2
Appendix F - Page 2 of 2
APPENDIX F
HIGHER HEATING VALUE
GUARANTEED HEAT RATE CURVES
For Normal Mode
[redacted]
HIGHER HEATING VALUE
GUARANTEED HEAT RATE CURVES
[redacted]
Appendix G - Page 1 of 1
APPENDIX G
TRANSMISSION INTERCONNECTION
COST ADJUSTMENT
[redacted]
Appendix H - Page 1 of 2
APPENDIX H
BILLING PROCEDURES
[redacted]