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EXHIBIT 10.1
AMENDED AND RESTATED POWER PURCHASE AGREEMENT
BETWEEN
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
AND
CEDAR BRAKES I, L.L.C.
March 21, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS .......................................................... 2
ARTICLE II GENERAL CONDITIONS OF DELIVERY AND ACCEPTANCE OF ELECTRIC
ENERGY AND CAPACITY ............................................................ 6
Section A Status of Facility .............................................. 7
Section B Sale of Energy .................................................. 7
Section C Sale of Capacity ................................................ 7
Section D Exceptions to Obligation to Accept Energy and Capacity .......... 8
Section E Distribution Surcharges ......................................... 10
Section F Reactive Power .................................................. 10
ARTICLE III TERM; EFFECTIVENESS ................................................ 11
Section A Term ............................................................ 11
Section B Conditions Precedent ............................................ 11
ARTICLE IV PURCHASE PRICE AND PAYMENT CONDITIONS ............................... 13
Section A Energy and Capacity Rates ....................................... 13
Section B Transmission of Energy .......................................... 13
Section C Binding Rate .................................................... 13
ARTICLE V DELIVERY OF ENERGY AND CAPACITY ...................................... 14
Section A Scheduling ...................................................... 14
Section B Rate of Delivery ................................................ 15
Section C Minimum On-Peak Energy Deliveries ............................... 16
Section D Make-up Energy Deliveries ....................................... 16
Section E Seller's Failure to Deliver Energy and Capacity ................. 17
Section F PSE&G's Failure to Accept Delivery of Energy .................... 19
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ARTICLE VI BILLING AND PAYMENT ................................................. 20
ARTICLE VII METERING/RECORDS ................................................... 21
ARTICLE VIII USE OF THE PUBLIC SERVICE SYSTEM .................................. 21
ARTICLE IX DEDICATION OF FACILITIES ............................................ 22
ARTICLE X LIABILITY ............................................................ 22
ARTICLE XI FORCE MAJEURE ....................................................... 23
ARTICLE XII INDEMNIFICATION .................................................... 25
ARTICLE XIII WARRANTIES ........................................................ 26
ARTICLE XIV EVENTS OF DEFAULT AND BREACH OF CONTRACT ........................... 27
Section A Default by Seller ................................................ 27
Section B Default by PSE&G ................................................. 29
Section C Remedies ......................................................... 31
ARTICLE XV ARBITRATION ......................................................... 32
ARTICLE XVI ENTIRE AGREEMENT ................................................... 35
ARTICLE XVII ASSIGNMENT/TRANSFER ............................................... 35
ARTICLE XVIII CURE BY FINANCIER ................................................ 37
ARTICLE XIX FINANCIER SECURITY AGREEMENTS ...................................... 37
ARTICLE XX CHOICE OF LAW ....................................................... 39
ARTICLE XXI CAPTIONS ........................................................... 39
ARTICLE XXII COUNTERPARTS ...................................................... 40
ARTICLE XXIII MISCELLANEOUS .................................................... 40
ARTICLE XXIV RESERVATIONS ...................................................... 41
ARTICLE XXV SURVIVAL OF OBLIGATIONS ............................................ 41
ARTICLE XXVI NOTICES ........................................................... 41
ARTICLE XXVII RELEASE .......................................................... 44
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AMENDED AND RESTATED POWER PURCHASE AGREEMENT
This Amended and Restated Power Purchase Agreement ("Amended
Agreement") is made and entered into this 21st day of March, 2000 by and between
Public Service Electric and Gas Company, a New Jersey corporation ("PSE&G") and
Cedar Brakes I, L.L.C., a Delaware limited liability company (the "Seller")
(each individually referred to as a "Party" and collectively as "Parties").
RECITALS
WHEREAS, PSE&G is a public utility as defined in N.J.S.A. 48:2-13 and,
as such, is required by applicable statutes and regulations to furnish safe,
adequate and proper service to its customers and further, to have and maintain
its property, plant and equipment in such condition as to enable it to do so;
WHEREAS, PSE&G is a member of the PJM Interconnection, L.L.C. ("PJM");
WHEREAS, PJM operates a fully coordinated power pool pursuant to an
agreement (the "PJM Operating Agreement") executed by and among its members;
WHEREAS, PSE&G and Newark Bay Cogeneration Partnership, L.P. ("NBCP")
are parties to a Power Purchase Agreement dated June 15, 1988, as amended by the
First Amendment dated January 28, 1991 (together referred to as the "Original
Agreement"), providing for the interconnection of the Facility with PSE&G and
the sale by NBCP and the purchase by PSE&G of the output of the Facility;
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WHEREAS, the Original Agreement was entered into by PSE&G pursuant to
its obligations under the Public Utility Regulatory Policies Act of 1978
("PURPA") and was approved by the New Jersey Board of Public Utilities ("NJBPU")
by orders dated May 10, 1989, and March 12, 1991;
WHEREAS, New Jersey's Electric Discount and Energy Competition Act,
N.J. 208th Legislature, Assembly, No. 16 ("the New Jersey Competition Act") and
certain orders of the NJBPU encourage the mitigation of above-market costs of
long-term power purchase agreements with non-utility generators to effect rate
payer savings;
WHEREAS, PSE&G and NBCP desire to amend the Original Agreement to,
among other things, reduce the rates for energy and capacity paid by PSE&G for
the amounts of energy and capacity sold under the Original Agreement, and to
provide for NBCP or its assignees or transferees to supply such energy and
capacity from sources other than the Facility; and
WHEREAS, NBCP intends to transfer and/or assign its rights and
obligations under the Original Agreement to Seller.
NOW, THEREFORE, in consideration of the recitals and mutual covenants
contained herein, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms when used herein with capitalization shall have
the following meanings, unless a different meaning shall be expressly stated:
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"AAA" shall mean American Arbitration Association as defined and
described in Article XV.
"Amended Agreement" means this Amended and Restated Power Purchase
Agreement between Seller and PSE&G.
"Capacity" has the meaning in Section II(C).
"Curtailed Energy Deliveries" has the meaning in Section V(D).
"Date Of Commercial Operation" means September 1, 1993.
"Delivery Point" means any of: (i) the Facility Interconnection Point;
(ii) the Fairlawn 138-kV interconnection; (iii) the New Milford 230-kV
interconnection; or (iv) any alternate point of delivery in the PJM System of
which Seller notifies PSE&G (any of which is referred to herein as the "Delivery
Point").
"Eastern Prevailing Time" means Eastern Standard Time or Eastern
Daylight Savings Time, as applicable, in New York, New York.
"Effective Date" has the meaning in Section III(A).
"Energy" means electric energy measured in kilowatt-hours (or
megawatt-hours), sixty hertz, balanced three phase alternating current at the
nominal voltage of the Delivery Point.
"Facility" means the gas-fired combined cycle power plant together with
the Substation Facility and all appurtenant structures and equipment that NBCP
owns/leases, operates and maintains, for the purpose of generating electricity,
steam and/or other forms of useful thermal energy output.
"Facility Interconnection Point" means the existing point of physical
connection of the Facility to the Public Service System as further defined in
the Interconnection Agreement.
"FERC" means the Federal Energy Regulatory Commission.
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"Financier or Lender" means any individual(s) or entity(ies) and any
representative(s) or trustee(s) for any such individual(s) or entity(ies)): (i)
providing financing to El Paso Merchant Energy Holding Company or Seller or any
entity controlling, controlled by or under common control with such entity, in
respect of the transactions in this Amended Agreement and the Interconnection
Agreement and the PJM Interconnection Service Agreement, including without
limitation in the form of (a) term or interim debt or subordinated debt
financing; (b) the establishment and/or maintenance of working capital
requirements; and/or (c) any refinancing or take-out of any such loan(s); and/or
(ii) participating as an equity investor in such transactions; and/or (iii) any
lessor under a lease finance arrangement.
"Interconnection" means the physical facilities interconnecting the
Facility with the Public Service System as further described in the
Interconnection Agreement.
"Interconnection Agreement" means the Interconnection Agreement
between PSE&G and NBCP providing for the Interconnection of the Facility with
the Public Service System.
"Loan Agreement" means any agreement with one or more Lenders pursuant
to which debt and/or equity financing is obtained.
"Make-up Energy Deliveries" has the meaning in Section V(D).
"Month" means the calendar Month commencing at 12:00.01 a.m. Eastern
Prevailing Time on the first day of the calendar Month and concluding at
midnight Eastern Prevailing Time on the final day of the same calendar Month.
"NERC" means North American Electric Reliability Council or any
successor thereto.
"Net Electrical Power Output" means Energy generated by the Facility
less energy consumed by the Facility's auxiliary load. "NJBPU Order" has the
meaning in Section III(B).
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"OATT means the Open Access Transmission Tariff filed by PJM with the
FERC on July 14, 1997, in Docket No. OA97-261-000 as amended effective April 1,
1998, as further amended modified or superseded from time to time, under which
transmission service is provided within the PJM Control Area.
"Off-Peak Period" means all other hours of a week exclusive of the
On-Peak Period.
"On-Peak Period" means the period commencing with hour beginning 0700
through hour ending 2300 (Eastern Prevailing Time) Monday through Friday,
excluding NERC holidays.
"PJM Interconnection Service Agreement" means the PJM Interconnection
Service Agreement between PJM and NZBCP regarding interconnection under Part IV
of the OATT.
"PJM Operating Agreement" means the agreement governing the PJM
Interconnection, L.L.C. dated June 2, 1997, as amended December 31, 1997, as in
effect from time to time, together with all amendments and supplements thereto.
"PJM System" means Transmission Facilities within the PJM Control Area,
as each such term is defined in the PJM Operating Agreement.
"PJM Tariff" means the PJM Open Access Transmission Tariff.
"Public Service System" means the electric power generation,
transmission, subtransmission and distribution facilities owned, operated and
maintained by PSE&G, including the Interconnection.
"PURPA" shall have the meaning set forth in the fifth whereas clause
hereof.
"RAA" means the PJM Reliability Assurance Agreement dated June 2, 1997,
as in effect from time to time, together with all amendments and supplements
thereto.
"Substation Facility" has the meaning set forth in the Interconnection
Agreement.
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"System Emergency" means the existence of a physical or operational
condition and/or the occurrence of an event on the Public Service System (or PJM
System) which in PSE&G's judgment is: (i) imminently likely to endanger life or
property; or (ii) impairs and/or imminently will impair: (a) PSE&G's ability to
discharge its statutory obligation(s) to provide safe, adequate and proper
service to its customers; and/or (b) the safety and/or reliability of the Public
Service System (or PJM System). System Emergency shall include a minimum
generation emergency declaration by PJM that meets the requirements specified in
the previous sentence if PSE&G treats Seller equally with all other generation
under contract with PSE&G (except for Small Power Producers as defined in PURPA)
on the Public Service System.
ARTICLE II
GENERAL CONDITIONS OF DELIVERY AND
ACCEPTANCE OF ELECTRIC ENERGY AND CAPACITY
Seller agrees to deliver and PSE&G agrees to accept, during the term of
this Amended Agreement, Energy and Capacity delivered by Seller, subject to and
in accordance with the terms of this Amended Agreement. Seller may provide
Energy and Capacity to PSE&G, at Seller's sole option, from any source of supply
including the Facility or other sources. Seller shall have the right to sell all
or a portion of the Net Electrical Power Output of the Facility to any third
party purchaser without prior notice thereof to PSE&G, subject to Section II(E)
below.
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SECTION A
STATUS OF FACILITY
Seller's and PSE&G's obligations under this Amended Agreement are
expressly not conditioned on Seller's maintenance of the "qualifying facility"
(QF) status of the Facility under PURPA and this Amended Agreement shall remain
binding upon the Parties without regard to whether the Facility is or remains a
QF. Seller shall have no obligation to maintain such QF status. Seller, on
behalf of itself and any successor owner of the Facility, hereby waives and
agrees not to exercise any rights it may have under PURPA to require the
purchase by PSE&G of the Net Electrical Power Output of the Facility.
SECTION B
SALE OF ENERGY
Seller will sell and deliver Energy to PSE&G that is scheduled and
delivered by Seller in accordance with Article V, and PSE&G will purchase and
accept delivery of such Energy, at the Delivery Point(s). The annual quantities
of Energy that Seller may schedule and deliver in each calendar year of the
Amended Agreement commencing with the Year 2000 are set forth in Exhibit I. The
annual quantity applicable to the initial calendar year of the Term of this
Amended Agreement (if a partial calendar year) shall be adjusted by multiplying
the applicable annual quantity for such year times the number of days in such
partial calendar year divided by 365 days.
SECTION C
SALE OF CAPACITY
Seller shall arrange for capacity credits to be made available to PSE&G
from Capacity Resources (as defined in the RAA) ("Capacity"), which may include
at Seller's option capacity provided by the Facility or from other sources of
such capacity, such that PSE&G shall be credited by PJM with at least one
hundred twenty-three (123) MW per day of such Capacity
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credits. Seller shall take all necessary steps utilizing PJM's "eCapacity"
mechanism, or as otherwise may be required by PJM, such that PSE&G's account
with PJM shall reflect such one hundred twenty-three (123) MW per day of
Capacity credits as of the effective date of this Agreement and at all times
throughout the term hereof. PSE&G agrees to cooperate with Seller in making any
submittals required by PJM.
The amount of Capacity credits to be provided to PSE&G above is based
on the methodology currently specified in the RAA. If such methodology is no
longer used by PJM, the minimum quantity of Capacity credits Seller is required
to provide hereunder (restated in terms of the new unit of measurement) shall be
calculated based upon the operation of the Facility during the twelve (12) Month
period from September 1, 1998 through August 31, 1999 or such shorter period
ending as of August 31, 1999 as may be specified in the new measurement
methodology. If the RAA and the PJM Operating Agreement no longer require PSE&G
to obtain such Capacity credits, Seller shall provide Capacity to PSE&G in an
amount equal to the amount specified in the measurement methodology in effect
immediately prior to the cancellation of such requirement.
SECTION D
EXCEPTIONS TO OBLIGATION TO ACCEPT
ENERGY AND CAPACITY
Notwithstanding the above, and without derogating from the provisions
of Article XI of this Amended Agreement, PSE&G shall be excused from accepting
all or a portion of Seller's
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Energy and Capacity in the event of a System Emergency, if such purchases would
contribute to such System Emergency.
Where practicable, PSE&G shall give Seller advance notice of any
interruption, curtailment or reduction effected pursuant to this Article, the
circumstances requiring or necessitating the interruption, curtailment or
reduction of PSE&G's acceptance of Energy and Capacity and, if able, the reasons
therefor, and the extent and duration thereof. In the event PSE&G is unable, for
any reason, to give Seller advance notice of such an interruption, curtailment
or reduction of such acceptance of the Energy and Capacity, PSE&G shall, as soon
thereafter as practicable, contact Seller to confirm such interruption,
curtailment or reduction, explaining the circumstances requiring or
necessitating the interruption, curtailment or reduction, and, if able, furnish
the reasons therefor and the extent and duration thereof. At Seller's request,
PSE&G shall provide written notice to Seller explaining the circumstances
requiring or necessitating any interruption, curtailment or reduction of service
effective pursuant to this Article. PSE&G will promptly notify Seller when the
reason for the interruption, curtailment or reduction no longer exists and shall
promptly resume the acceptance of the Energy and Capacity.
In the event acceptance of the Energy and Capacity is interrupted,
curtailed or reduced by PSE&G for any reason specified in this Section II(D),
PSE&G agrees to use its best efforts (consistent with PSE&G's existing
obligations to restore service to its retail and wholesale customers) to correct
any condition and to restore acceptance of such power upon the cessation of any
System Emergency. Seller expressly agrees that PSE&G is not liable for damages
of any kind to Seller or any third party due to PSE&G's failure to accept the
Energy and Capacity for any of the reasons expressed above.
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SECTION E
DISTRIBUTION SURCHARGES
Seller shall reimburse PSE&G for the amount of any Distribution
Surcharges, as defined below, not paid to PSE&G in respect of the Net Electrical
Power Output of the Facility because of an exemption from such Distribution
Surcharges pursuant to Section 28 of the New Jersey Competition Act. For
purposes of the foregoing provision, the term, "Distribution Surcharges" shall
mean the following charges individually or in any combination: (i) the societal
benefits charge or its equivalent, imposed pursuant to Section 12 of the New
Jersey Competition Act; (ii) the market transition charge or its equivalent,
imposed pursuant to Section 13 of the New Jersey Competition Act; and (iii) the
transition bond charge or its equivalent, imposed pursuant to Section 18 of the
New Jersey Competition Act. Upon request by PSE&G, Seller shall provide PSE&G
with data demonstrating the Net Electrical Power Output of the Facility for a
given calendar year and the amount of such Net Electrical Power Output sold to a
customer of Seller for which the exemption from Distribution Surcharges under
Section 28 of the New Jersey Competition Act, has been claimed.
SECTION F
REACTIVE POWER
PSE&G may request, and, when requested, Seller shall use best efforts
to provide reactive power, leading or lagging, from the Facility up to the
operating limits of the Facility to the extent that it does not require a
reduction in the Net Electrical Power Output of the Facility and there is no
cost to the Seller or the Facility in connection with the provision of such
reactive power. Further, in the event of a System Emergency, PSE&G may request
Seller to provide reactive power, leading or lagging, from the Facility and, if
PSE&G makes such a request, Seller shall
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use best efforts to provide same up to the operating limits of the Facility,
whether or not same requires a reduction in the Net Electrical Power Output of
the Facility. Notwithstanding the foregoing, Seller shall have no obligation to
provide reactive power as provided herein unless Seller is selling Energy
hereunder from the Facility or the Facility is otherwise running.
Seller shall have no obligation to provide ancillary services to PSE&G
except for reactive power as set forth herein.
ARTICLE III
TERM; EFFECTIVENESS
SECTION A
TERM
This Amended Agreement shall become effective (the "Effective Date")
upon the later to occur of (i) the last date upon which all of the conditions
precedent set forth in Section B below are satisfied or waived and (ii)
September 4, 2000. This Amended Agreement shall remain in effect through and
including August 31, 2013, except as otherwise provided herein.
SECTION B
CONDITIONS PRECEDENT
The following shall be conditions precedent to the effectiveness of
this Amended Agreement: (i)(a) issuance by the NJBPU of an order ("NJBPU Order")
finding that this Amended Agreement is reasonable and prudent, and that PSE&G
will be able to fully and timely recover from its rate payers all costs and
charges to be paid by PSE&G hereunder for Capacity and Energy purchased pursuant
to this Amended Agreement, and such NJBPU Order is issued without conditions or
is otherwise deemed acceptable to the Parties in their reasonable discretion and
(b) the expiration of all relevant notice and appeal periods and the filing of
all other notices
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and obtaining of all other approvals required under New Jersey law; (ii)
amendment, modification or replacement of the existing Gas Service Agreement
between PSE&G and NBCP dated January 24, 1991 on mutually acceptable terms and
the receipt of any required regulatory approvals; (iii) (a) issuance of a FERC
order ("FERC Order"), if required, accepting for filing pursuant to Section 205
of the Federal Power Act a rate schedule providing for Seller to make sales of
energy for resale in interstate commerce as contemplated herein and granting
waivers of regulation under the Federal Power Act routinely granted by FERC to
sellers of electricity which market power, and such FERC Order is to be issued
without conditions, or subject to such conditions as are reasonably acceptable
to Seller; and (b) if required, the expiration or all relevant notice and appeal
periods and the filing of all other notices and obtaining of all other approvals
required under federal law; (iv) PJM approval for Seller to become a member of
PJM; (v) approval of the transactions contemplated by this Amended Agreement by
the Lenders, (vi) approval of the Board of Directors of El Paso Energy
Corporation and PSE&G, if required, (vii) receipt by PSE&G from NBCP, and by
NBCP from PSE&G of a mutual waiver and release of any claims arising under the
Original Agreement prior to the effective date of this Amended Agreement,
including but not limited to claims or liability for breach of contract or
contract defaults, (viii) the transfer and/or assignment of NBCP's rights and
obligations under the Original Agreement to Seller; and (ix) closing of the
transactions contemplated by the Loan Agreements and availability of proceeds to
be obtained thereunder.
Upon satisfaction or waiver of the last such condition precedent to be
satisfied, the Parties shall promptly affirm in writing that all conditions
precedent have been satisfied. In the event the conditions precedent are not
satisfied, or waived (in the case of (iv) or (vi) above) by the Party
responsible for obtaining them, within 360 days of execution of this Amended
Agreement,
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either Party at its option may notify the other Party of its election to
terminate this Amended Agreement and upon receipt of such notice, this Amended
Agreement shall be terminated.
ARTICLE IV
PURCHASE PRICE AND PAYMENT CONDITIONS
SECTION A
ENERGY AND CAPACITY RATES
The rates payable by PSE&G for Energy and Capacity during the term of
this Amended Agreement are set forth in Exhibit II. The payment for Energy and
Capacity shall be calculated based on delivery of Energy by Seller as scheduled
by Seller in accordance with Article V, and shall be billed in accordance with
Article VI.
SECTION B
TRANSMISSION OF ENERGY
Seller shall be responsible for arranging transmission of all Energy
and Capacity that is delivered to PSE&G and paying for all related transmission
charges and congestion costs to the Delivery Point. In the event that Seller
elects to deliver Energy and Capacity to a Delivery Point specified in subpart
(iv) of the definition of Delivery Point, the delivery price for such Energy
shall be reduced by an amount equal to the difference (if positive) between the
locational marginal price at the Facility Interconnection Point and the
locational marginal price at the alternate point of delivery.
SECTION C
BINDING RATE
Each party, having entered into this Amended Agreement in good faith,
hereby waives all rights on its part now or hereafter to undertake any
proceeding for the purpose of having the
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purchase rate, as calculated in this Article IV of this Amended Agreement, set
aside or adjusted as being unjust and unreasonable or as impairing or
disallowing the full and timely recovery of any payment made by PSE&G under this
Amended Agreement.
PSE&G agrees to give notice to Seller of any challenge to the validity
of this Amended Agreement in any regulatory or judicial proceeding, so as to
permit Seller a reasonable opportunity to intervene in such proceeding, provided
that the failure of PSE&G to give notice shall not be deemed a breach of this
Amended Agreement so long as such failure was due to good faith error or
omission. PSE&G further agrees to refrain from objecting or in any way opposing
any application by Seller to intervene before any regulatory body or judicial
forum, or otherwise fully participate before such body or forum, in which the
validity or consequences of this Amended Agreement is subject to challenge.
Seller and PSE&G further agree to use their best efforts to defend this Amended
Agreement before such regulatory body or judicial forum.
ARTICLE V
DELIVERY OF ENERGY AND CAPACITY
SECTION A
SCHEDULING
Not later than three (3) business days prior to the commencement of
each calendar month, Seller shall provide PSE&G with a non-binding schedule of
proposed deliveries of Energy for each hour of the upcoming month (the "Monthly
Schedule").
Notwithstanding the quantities set forth in a Monthly Schedule, on the
business day preceding the day of delivery of such Energy, Seller shall provide
PSE&G with a final daily schedule for deliveries of Energy no later than the
time that is one hour prior to the time that PJM
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requires submission of final schedules. The volumes set forth in the final daily
schedules may vary from each other and from the volumes set forth in Monthly
Schedules, provided that Seller shall not schedule for delivery in any calendar
year, any amount which exceeds the annual quantities specified in Article II(B).
In the event Seller fails to furnish a final daily schedule or a
Monthly Schedule on or before the time specified in the second paragraph of this
Article V(A), the scheduled delivery of Energy shall be deemed to be that
specified in the Monthly schedule last delivered by Seller.
Any Monthly Schedule or final daily schedule shall be consistent with
the requirements of this Article V.
SECTION B
RATE OF DELIVERY
Seller may deliver Energy at a rate up to 150 MWh per hour, provided
that the rate of delivery may be up to 200 MW-hours per hour in any hour in
which Make-up Energy deliveries are scheduled in accordance with Section V(D).
Seller shall schedule and deliver Energy at the same delivery rate
during all On-Peak Hours in any day and at the same delivery rate during all
Off-Peak Hours in any day, provided that (i) the delivery rate for On-Peak Hours
may vary from that for Off-Peak Hours in any day and (ii) the delivery rate for
On-Peak Hours in any day may vary from that for On-Peak Hours in any other day.
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SECTION C
MINIMUM ON-PEAK ENERGY DELIVERIES
During the months of June, July, August and September of each year (the
"Summer Period"), Seller shall schedule and deliver to PSE&G 40,000 MWh per
month during the On-Peak Hours in the Summer Period.
During the period of the year which is not included in the Summer
Period, Seller shall schedule and deliver to PSE&G an aggregate of 234,000 MWh
during the On-Peak Hours.
SECTION D
MAKE-UP ENERGY DELIVERIES
If Seller is unable to deliver Energy or PSE&G is unable to accept
delivery of Energy which has been scheduled by Seller in accordance with Section
V(A) above, in either case due to an event of Force Majeure or due to the
occurrence of an event set forth in Section II(D) ("Curtailed Energy
Deliveries"), Seller shall have the right, but not the obligation, to reschedule
deliveries of make-up quantities of Energy equivalent to such Curtailed Energy
Deliveries during comparable periods during the remainder of the Month in which
the event occurred ("Make-up Energy Deliveries"). If Seller is unable to deliver
Energy or PSE&G is unable to accept delivery of Energy which has been
rescheduled by Seller in accordance with the immediately preceding sentence,
Seller shall have the right, but not the obligation, to reschedule deliveries of
make-up quantities of Energy equivalent to such undelivered Energy during
comparable periods during the remainder of the Month in which the event
occurred. If Seller is unable to reschedule such Energy due to an event of Force
Majeure or due to the occurrence of an event set forth in Section II(D), Seller
shall have the right (but not the obligation) to reschedule the delivery of such
make-up Energy quantities in respect of the Curtailed Energy Deliveries during
comparable periods during the immediately following Month. To the extent that
Seller fails to (i) deliver scheduled
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quantities of Energy or (ii) in the case of Curtailed Energy Deliveries under
Section V(D), reschedule and deliver any such make-up quantities with respect to
Curtailed Energy Deliveries in the immediately following Month, PSE&G may, but
shall not be obligated to permit Seller to reschedule any such quantities which
Seller seeks to deliver in any subsequent Month.
For the purposes of this Section V(D), rescheduled Energy deliveries
shall be deemed to be made during a comparable period if the rescheduled
deliveries are effected during the hours in which the curtailments occurred
(e.g., similar On-Peak Hours if the curtailment occurred during On-Peak Hours
and similar Off-Peak Hours if the curtailment occurred during Off-Peak Hours).
SECTION E
SELLER'S FAILURE TO DELIVER ENERGY AND CAPACITY
If Seller fails for reasons other than a Force Majeure event or in the
event of an occurrence described in Section II(D), to deliver all or part of the
scheduled Energy at the Delivery Point, PSE&G may but shall not be required to
permit Seller to reschedule delivery of such Energy. In the event that Seller
fails to deliver all or part of the Energy scheduled for delivery hereunder or
fails to schedule sufficient Energy to comply with Article V(C) hereunder, the
payment to Seller with respect to the corresponding billing period shall be
reduced by a credit against the amount payable by PSE&G for the next succeeding
Month; provided that if the amount of the credit is greater than the amount
payable by PSE&G for a single Month, the excess portion of the credit shall be
applied to reduce the amount otherwise payable by PSE&G for subsequent Month(s).
Such credit shall be calculated as follows:
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(i) if Seller fails to deliver any quantities of Energy scheduled
for delivery under Section V(A) hereof, the credit shall be
determined by multiplying the shortfall in scheduled Energy
deliveries by the difference, if positive, between (a) the
amounts paid by PSE&G to third parties to procure energy to
replace the scheduled Energy which Seller failed to deliver,
using commercially reasonable efforts under the circumstances,
less (b) the rates set forth in Exhibit 2 with respect to such
Energy;
(ii) if Seller fails during any Month of the Summer Period to
schedule at least an aggregate of 40,000 MWh during the
On-Peak Hours under Section V(C) hereof ("Deficient Summer
Month"), the credit shall be determined by multiplying the
shortfall in scheduled Energy quantities below 40,000 MWh by
the difference, if positive, between (a) the average On-Peak
locational marginal prices at the Facility Interconnection
Point (expressed in $/MWh) for those On-Peak Hours during the
Deficient Summer Month in which Seller failed to schedule at
least 120 MWh per hour for delivery, less (b) the rates set
forth in Exhibit 2 with respect to such Energy; or
(iii) if Seller fails during the period of the year which is not
included in the Summer Period, to schedule an aggregate of at
least 234,000 MWh during the On-Peak Hours under Section V(C)
hereof ("Deficient Non-Summer Period"), the credit shall be
determined by multiplying the shortfall in scheduled Energy
quantities below 234,000 MWh by the difference, if positive,
between (a) the average On-Peak locational marginal prices at
the Facility Interconnection Point (expressed in $/MWh) for
those
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On-Peak Hours during the Deficient Non-Summer Period in which
Seller failed to schedule at least 90 MWh per hour for
delivery, less (b) the rates set forth in Exhibit 2 with
respect to such Energy.
If Seller fails for reasons other than a Force Majeure or in the event
of an occurrence described in Section 11(D), during any calendar Month to
provide all or part of the Capacity to PSE&G pursuant to Section 11(C) hereof,
PSE&G shall use reasonable commercial efforts to purchase replacement capacity
in the amount of such shortfall, and Seller will be obligated to reimburse PSE&G
for all such replacement costs. In the event that PSE&G, in spite of using
reasonable commercial efforts, is unable to replace such capacity shortfall,
then the payments due to Seller in respect of that Month shall be reduced by a
credit against the amount payable by PSE&G for the next succeeding Month in an
amount equal to the deficiency charge, if any, or other charges, as applicable,
payable by PSE&G as a direct result of Seller's failure to provide such
Capacity.
The foregoing liquidated damages shall be the sole damages to which
PSE&G shall be entitled as the result of any failure by Seller to deliver Energy
or to provide Capacity under this Agreement, subject to Article XIV.
SECTION F
PSE&G'S FAILURE TO ACCEPT DELIVERY OF ENERGY
If PSE&G fails to accept deliveries of Energy scheduled by Seller in
accordance with this Amended Agreement, for reasons other than a Force Majeure
Event or due to the occurrence of an event excusing the acceptance of deliveries
under Section 11(D) hereof, PSE&G shall pay to
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Seller an amount equal to the difference, if positive, between (i) the amount
payable by PSE&G to Seller under this Amended Agreement for such scheduled
Energy which PSE&G failed to accept and (ii) the amount, if any, that Seller,
using commercially reasonable efforts under the circumstances realizes through
re-marketing of such Energy to persons other than PSE&G.
The foregoing liquidated damages shall be the sole damages to which
Seller shall be entitled as the result of any failure by PSE&G to accept Energy
under this Agreement, subject to Article XIV.
ARTICLE VI
BILLING AND PAYMENT
PSE&G shall prepare and present to Seller, on or before the last day of the
subsequent Month, a statement and payment for Energy and Capacity delivered to
PSE&G during the Month in accordance with Article IV. Such statement shall
indicate the total MWhs delivered during the Month for both the On Peak Period
and the Off Peak Period and the applicable Energy and Capacity rates.
If the payment is not received by the due date specified above, PSE&G
shall pay to Seller an interest charge on unpaid amounts which shall accrue
daily from the due date until the date upon which payment is made at the then
current late payment charge for commercial customers prescribed in PSE&G's
Standard Terms and Conditions as may be amended from time to time.
In the event Seller disputes any statement, Seller shall present the
dispute in writing and submit supporting documentation to PSE&G within a thirty
(30) day period from receipt of such
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statement. Upon receipt of notice of the dispute and supporting documentation,
PSE&G shall have thirty (30) days from receipt of such notice to resolve any
dispute with Seller. In the event the dispute is not resolved within the thirty
(30) day period, either party may submit the matter to arbitration for
resolution in accordance with Article XV. The disputed amount of any statement
disputed by Seller, in accordance with the provisions of this Article, which is
ultimately determined to be due and owing by PSE&G to Seller, from the date
originally due shall, until payment, accrue interest at the then current late
payment charge for commercial customers, prescribed in PSE&G's Standard Terms
and Conditions as may be amended from time to time.
ARTICLE VII
METERING/RECORDS
Metering of Energy and Capacity when delivered from the Facility shall
be conducted in accordance with the Interconnection Agreement and when delivered
from other sources shall be conducted in accordance with the requirements of the
PJM Operating Agreement, including with respect to verification of deliveries by
or on behalf of Seller at the Delivery Points.
ARTICLE VIII
USE OF THE PUBLIC SERVICE SYSTEM
Except as otherwise provided in and pursuant to the terms and
conditions of any applicable PSE&G tariff on file with the NJBPU or the FERC or
the PJM Tariff, Seller shall not be permitted to use the Public Service System
nor shall PSE&G be obligated to provide any service to Seller, other than as
provided for in this Amended Agreement and the Interconnection Agreement. Any
rights to or interest in the Public Service System that Seller has or may claim
as
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a result of this Amended Agreement shall cease or expire upon termination of
this Amended Agreement.
ARTICLE IX
DEDICATION OF FACILITIES
No undertaking by PSE&G under any provision of this Amended Agreement
or the Interconnection Agreement shall constitute the dedication to Seller or to
the public of the Public Service System.
ARTICLE X
LIABILITY
Neither Party nor its officers, directors, partners, agents, servants,
employees, affiliates, parent, subsidiaries or respective successors or assigns
shall be liable to the other Party (except as provided for in Article V of this
Amended Agreement or as otherwise provided for in this Amended Agreement) for
claims for incidental, special, direct, indirect or consequential damages
whether such damages claim is based on a cause of action based in warranty,
negligence, strict liability, contract, operation of law or otherwise except
where such claim for damages arises out of, relates to or results from the
gross negligence of such Party or the willful disregard by a Party of its
obligations under this Amended Agreement; provided, however, each Party shall
have the right to seek to recover from the other Party direct damages upon the
occurrence of an Event of Default under this Amended Agreement as defined in and
which has been established pursuant to and in accordance with Article XIV of
this Amended Agreement.
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ARTICLE XI
FORCE MAJEURE
An event of "Force Majeure" as used herein means an event beyond the
reasonable control of the Party claiming Force Majeure which events may include
but are not limited to: acts of God; strikes, lockouts or other similar such
industrial disturbances; acts of the public enemy, wars, civil disturbances,
blockades, military actions, insurrections or riots; landslides, floods,
washouts, lightning, earthquakes, tornadoes, hurricanes, blizzards or other
storms or storm warnings; explosions, fires, sabotage or vandalism; mandates,
directives, orders or restraints of any governmental, regulatory or judicial
body or agency (other than mandates, directives, orders or restraints either
sought, approved or not contested by the party asserting Force Majeure or issued
in any bankruptcy or insolvency proceeding for the relief the party asserting
Force Majeure); any catastrophic physical failures or disruptions of the PJM
transmission system; breakage, defects, malfunctioning, or accident to
machinery, equipment, materials or lines of pipe or wires; freezing of
machinery, equipment, materials or lines of pipe or wires; inability or delay in
the obtaining of materials or equipment; inability to obtain or utilize any
permit, approval, easement, license or right-of-way. The settlement of strikes,
lockouts or other similar such industrial disturbances shall be entirely within
the discretion of the Party directly affected. The requirement herein that any
event of Force Majeure shall be remedied with all reasonable dispatch shall not
require the settlement of strikes, lockouts or other similar such industrial
disturbances when such course is, in the opinion of the Party directly affected,
inadvisable.
An event of Force Majeure shall not include (i) failures of the
equipment of the Party claiming Force Majeure which are due to (a) wear and tear
and (b) defects in manufacture, design
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or construction; (ii) any increase in the cost of electricity supplies or costs
associated with transmission system operation, maintenance or congestion; (iii)
unavailability of Capacity and/or Energy from any source, regardless of price,
for delivery to the Delivery Point (except in the event of a System Emergency);
(iv) interruption in service by a transmission provider unless; (a) the Party
contracting with such transmission provider shall have made arrangements with
such transmission provider for the firm transmission, as defined under the
transmission provider's tariff, of the Energy to be delivered hereunder, and (b)
such interruption is due to an emergency or to an event of force majeure as
defined under the transmission provider's tariff; or (v) any change in economic
conditions not caused by a Force Majeure event.
In the event PSE&G or Seller is rendered unable, wholly or in part, by
an event of Force Majeure, to perform any obligation it has under this Amended
Agreement, it is agreed that, on PSE&G or Seller giving notice and full
particulars of such event of Force Majeure to the other Party, as soon
thereafter as practicable, the obligations of PSE&G or Seller, so far as they
are affected by such event of Force Majeure, shall be suspended during the
continuance of any inability or incapacity so caused, but for no longer period;
provided however, neither Party shall be relieved from any obligation to make
any payment to the other required under this Amended Agreement. PSE&G or Seller
shall use best efforts to remedy the cause of the Force Majeure with all
reasonable dispatch.
Neither Party shall be liable to the other for any claim(s), loss(es),
damage(s), liability(ies) or expense(s) sustained or incurred by PSE&G or
Seller, arising out of, relating to, or resulting from PSE&G's or Seller's
inability or incapacity to perform its obligations under this Amended Agreement
due to any event of Force Majeure, as herein defined.
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ARTICLE XII
INDEMNIFICATION
Each Party shall indemnify and hold harmless the other Party and each
and every of its officers, agents, servants and employees, its successors and
assigns of, from and against any and all claims, demands and suits, actions, and
liabilities, losses, damages, and/or judgments, which may arise therefrom, as
well as against any fees, costs, charges or expenses which PSE&G or Seller, its
officers, agents, servants and employees, its successors and assigns, incur in
the defense of any such claims, suits, actions or similar such demands made or
filed by any third-party, which in any manner arise out of, relate to, or result
from negligence, strict liability or breach of this Amended Agreement by the
indemnifying Party including but not limited to the design, construction,
engineering, installation, operation, maintenance, repair, replacement,
supervision, inspection, testing, protection, reinforcement, reconstruction,
decommissioning, removal, use, control or ownership of its facilities.
In case a claim is asserted or action brought against either Party as
to which it believes it is entitled to indemnification under this Article XII,
the party seeking indemnification shall promptly notify the other in writing of
such claim or action. Prompt notice as contemplated in the preceding sentence
shall mean such notice as would be required to enable the indemnitor to assert
and prosecute appropriate defenses relative to such claim or such action in a
timely fashion. If the Party seeking indemnification fails to give the other
Party prompt notice of any claim or action as provided in this Paragraph, that
Party shall have no obligation to indemnifY pursuant to this Article XII. Upon
receipt of such notice request for indemnification, that Party shall promptly
make a determination of whether it believes it is required to indemnify and
shall
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promptly notify the Party seeking indemnification in writing of that
determination. If the Party to whom such notice and request is directed
determines that it is required to indemnify the other Party pursuant to this
Article XII, it shall assume the defense of such claim or action, including the
employment of counsel and shall assume thereafter the payment of all costs and
expenses relative to the defenses of such claim or action. The non-indemnifying
Party shall cooperate in all reasonable respects with the indemnifying Party in
the defense of such claim or action. The non-indemnifying Party shall have the
right, at its own expense, to employ separate counsel in any such action and to
participate in the defense thereof. The indemnifying Party shall not be liable
for any settlement of any such claim or action effected without its consent.
Before settling any claim or action, the indemnifying Party shall demonstrate to
the other that it has sufficient financial means or has made adequate
arrangements to make all payments under any such settlement as and when due.
ARTICLE XIII
WARRANTIES
Seller warrants and shall be obligated to supply to the Delivery Points
Energy and Capacity free and clear of any liens and/or adverse claims which
might attach to said Energy and Capacity prior to supply and receipt by PSE&G
except with respect to any lien possessed by a Financier. Seller agrees to
indemnify and hold harmless PSE&G against any and all claims, demands, suits,
actions, costs, and liabilities, damages, losses and/or judgments arising out
of, relating to or resulting from any such adverse claim or lien, as well as
against any fees, costs, charges or expenses which PSE&G might incur in the
defense of any such claim, suit, action or similar such demand made or filed by
such person, its successors or assigns, asserting such
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adverse claim. In effecting the right of or obligation to indemnify pursuant to
and in accordance with the provisions of this Article XIII, the procedural
provisions set forth in Article XII of this Amended Agreement shall govern.
Seller further warrants and represents that implementation of this
Amended Agreement by Seller shall not increase the breakage costs associated
with a negotiation of a future buy-down or buy-out of the PPA by PSE&G, if any.
ARTICLE XIV
EVENTS OF DEFAULT AND BREACH OF CONTRACT
SECTION A
DEFAULT BY SELLER
Seller shall be in default under this Amended Agreement upon the
happening or occurrence of any of the following events or conditions, each of
which shall be deemed to be an "Event of Default," and each of which shall be
considered a breach of contract for purposes of this Amended Agreement unless it
is cured in accordance with the provisions specified below:
1. Seller breaches or fails to observe or perform, any of the
material obligations, covenants, conditions, services or
responsibilities under this Amended Agreement, unless, within
thirty (30) days after written notice from PSE&G specifying
the nature of such breach or failure, Seller either cures such
breach or failure or, if such cure cannot be completed within
thirty (30) days, provides PSE&G with a plan reasonably
acceptable to PSE&G to cure such breach or failure and
commences and diligently pursues such plan.
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2. There is an assignment for the benefit of Seller's
creditors, or Seller is adjudged bankrupt, or a petition is
filed by or against Seller under the provisions of any state
insolvency law or under the provisions of the federal
bankruptcy laws, or the business or principal assets of Seller
are placed in the hands of a receiver, assignee or trustee, or
Seller is dissolved, or Seller's existence is terminated, or
its business is discontinued; provided, however, that the
events described in this Paragraph 2 shall not constitute an
Event of Default or otherwise affect the validity of this
Amended Agreement, so long as the terms, covenants and
conditions of this Amended Agreement on the part of Seller are
performed, and in such event, this Amended Agreement shall
continue to remain in full force in accordance with the terms
herein contained.
3. Seller takes any actions which prevent PSE&G from
performing any of the material obligations, covenants,
conditions, responsibilities or services under this Amended
Agreement, unless, within thirty (30) days after written
notice from PSE&G specifying the nature of such action or
failure to act, Seller either cures such action or failure to
act, or, such cure cannot be completed within thirty (30)
days, provides PSE&G with a plan reasonably acceptable to
PSE&G to cure such breach or failure and commences and
diligently pursues such cure.
4. Seller fails to deliver Energy and Capacity to PSE&G for
two hundred and forty (240) out of three hundred and sixty
five (365) days for any reason other than Force Majeure or a
curtailment in accordance with Article II(D) of this
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Amended Agreement and fails to pay the liquidated damages
associated with such failure as set forth in Article V(E).
SECTION B
DEFAULT BY PSE&G
PSE&G shall be in default under this Amended Agreement upon the
happening or occurrence of any of the following events or conditions, each of
which shall be deemed to be an "Event of Default" and each of which shall be
considered a breach of contract for purposes of this Amended Agreement unless it
is cured in accordance with the provisions specified below.
1. PSE&G breaches or fails to observe or perform any of the
material obligations, covenants, conditions, services or
responsibilities under this Amended Agreement, unless, within
thirty (30) days after written notice from Seller specifying
the nature of such breach or failure, PSE&G either cures such
breach or failure, or, if such cure cannot be completed within
thirty (30) days, provides Seller with a plan reasonably
acceptable to Seller to cure such breach or failure and
commences and diligently pursues such cure.
2. PSE&G fails to accept deliveries of Energy and Capacity for
any reason other than a Force Majeure Event or reason
permitted under Article II(D), and such failure continues for
a period of thirty (30) days following receipt of notice of
such failure and fails to pay the liquidated damages
associated with such failure as set forth in Article V(F).
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3. There is an assignment for the benefit of PSE&G's
creditors, or PSE&G is adjudged bankrupt, or a petition is
filed by or against PSE&G under the provisions of any state
insolvency law or under the provisions of the federal
bankruptcy law, or the business or principal assets of PSE&G
are placed in the hands of a receiver, assignee or trustee, or
PSE&G is dissolved, or PSE&G's existence is terminated, or its
business is discontinued; provided, however, that the events
described in this Paragraph 3 shall not constitute an Event of
Default or otherwise affect the validity of this Amended
Agreement, so long as the payment for Energy and Capacity
delivered by the Seller to PSE&G as provided under Article IV
hereof continues to be paid and the other terms, covenants and
conditions of this Amended Agreement on the part of PSE&G are
performed, and in such event, this Amended Agreement shall
continue to remain in full force in accordance with the terms
herein contained.
4. PSE&G takes any actions which prevent Seller from
performing any of the material obligations, covenants,
conditions, responsibilities or services under this Amended
Agreement, unless within thirty (30) days after written notice
from Seller specifying the nature of such action or failure to
act, PSE&G either cures such action or failure to act, or, if
such cure cannot be completed within thirty (30) days,
provides Seller with a plan reasonably acceptable to Seller to
cure such breach or failure and commences and diligently
pursues such cure.
5. PSE&G fails to pay, when due, the payment provided under
Article IV, and such failure continues for a period of thirty
(30) days following the receipt by
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PSE&G of notice of such failure; provided, however, PSE&G shall not be
considered in default if (i) it has paid the undisputed portion of any
payment due under this Amended Agreement and (ii) the Parties are in
the process of resolving expeditiously any disputed portion in
accordance with the terms set forth in Article VI of this Amended
Agreement.
SECTION C
REMEDIES
In the event a party claims that an Event of Default has occurred, such
party shall provide the other party with written notice thereof (hereinafter
referred to as Notice of Breach). The Notice of Breach shall state the basis for
such claim and any remedy sought. The Parties shall have thirty (30) days within
which to resolve the dispute via negotiation. If within such thirty (30) day
period after service of the Notice of Breach, the Parties are unable to resolve
their differences by negotiation, either Party shall have the right to submit
the dispute for resolution to either arbitration or to any regulatory body
having jurisdiction.
The nature and extent of any damage incurred or sustained by the
non-breaching Party, as a result of any Event of Default shall be determined and
calculated as of the date the Event of Default commenced, taking into account
the non-breaching Party's obligation to act in a commercially reasonable manner
to mitigate damages.
Except as otherwise provided in this Article XIV, neither Party shall
refuse to make, suspend or delay any payment(s) otherwise required to be made
under this Amended Agreement or refuse to carry out any of its obligations under
this Amended Agreement for or on account of or as a result of an alleged breach
of this Amended Agreement or Event of Default.
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Any waiver by a Party of any breach or Event of Default shall be deemed to
extend only to the particular breach or Event of Default waived and shall not
limit or otherwise affect any right(s) that such party may have with respect to
any other of future breach or Event of Default, whether of a similar or
difference nature.
ARTICLE XV
ARBITRATION
Any controversy, dispute or claim between the Parties to this Amended
Agreement, which the Parties are unable to resolve by negotiation or over which
any regulatory body lacks jurisdiction or declines to initiate proceedings,
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"), then in effect, and the
provisions of this Article. If either Party chooses arbitration, no suit at law
that seeks to resolve any controversy, dispute or claim between the Parties
shall be instituted by either Party hereto, except where such suit is instituted
to confirm an arbitration award received pursuant to this Article. However,
nothing contained herein shall deprive either Party of any right to: (i) obtain
injunctive or other equitable relief in any court in the State of New Jersey, on
an interim basis pending disposition of the arbitration of any controversy,
dispute or claim if such relief is available under applicable principles of law
and equity; and/or (ii) assert any crossclaim, or third-party claim in any suit
at law instituted by a third-party; and/or (iii) file and prosecute any
complaint at and with the regulatory agency having jurisdiction or make and
prosecute any claim or position in any filing made with such regulatory agency
by either party or some third-party.
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Any controversy, dispute or claim submitted to arbitration shall be settled
by arbitration in Newark, New Jersey in accordance with the laws of the State of
New Jersey. Any award entered pursuant to such arbitration shall be binding on
both Parties and judgment upon the award rendered or received may be entered in
the Superior Court of the State of New Jersey pursuant to N.J.S.A.2A:24-l
et seq.
Exclusive jurisdiction relative to the entry of judgment on any arbitration
award relative to any controversy or claim between the parties shall be in any
court of appropriate subject matter jurisdiction located in New Jersey, and the
Parties to this Amended Agreement expressly subject themselves hereby to the
personal jurisdiction of said court for entry of any such judgment and for the
resolution of any dispute, action, or suit arising in connection with the entry
of such judgment.
The controversy or claim to be arbitrated shall be referred to three (3)
arbitrators, one to be selected by each party and the third to be selected by
the AAA. The selections to be made by the parties shall be made from the list of
the National Panel of Arbitrators maintained by the AAA. The arbitrator to be
selected by the AAA shall be qualified to pass on any technical or engineering
matters and shall be independent of and acceptable to both PSE&G and Seller. All
decisions and awards shall be made by a majority of the arbitrators, except for
decisions relating to discovery as set forth herein.
In the event any arbitrator dies, or refuses to act, or becomes incapable,
incompetent or unfit to act before hearings have been completed and/or before an
award has been rendered, a successor arbitrator may be selected by the party who
originally made the selection. The selection of the successor arbitrator shall
be made consistent with the selection procedure set forth in the preceding
paragraph.
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The arbitrators selected pursuant to this Amended Agreement shall be
governed by and apply the laws of the State of New Jersey and federal law, as
applicable, in conducting any arbitration proceeding and/or in making any award.
Notice of a demand for arbitration (hereinafter referred to as Demand for
Arbitration) of any controversy or dispute between the Parties shall be filed in
writing with the AAA by the Party seeking arbitration and a copy of same shall
be served contemporaneously with such filing on the other Party. The notice
shall state, with specificity, the nature of the dispute and the remedy sought.
After such notice has been filed, the Parties may make discovery of any matter
relevant to such dispute before the hearing, to the extent and in the manner
provided by the Rules Governing Civil Practice in the Superior Court contained
in the Rules Governing the Courts of the State of New Jersey. Any question that
may arise with respect to the obligations of the Parties relative to discovery
and/or relative to the protection of the discovery materials shall be referred
solely to the arbitrator selected by the AAA. His determination shall be final
and conclusive. Discovery shall be completed not later than ninety (90) days
after filing of the notice of arbitration unless such period for discovery is
extended by the arbitrator selected by the AAA, upon a showing of good cause by
either Party to the arbitration.
The arbitrators may consider any material that is relevant to the subject
matter of any such controversy even if such material might also be relevant to
an issue or issues not subject to arbitration hereunder. A stenographic record
shall be made of any arbitration hearing.
Any costs associated with any arbitration under this Article, including but
not limited to attorney fees and witness expenses, shall be paid by the Party
against whom an award is entered unless the arbitrators by their award otherwise
provide.
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Arbitration may not be utilized and the arbitrators selected in accordance
with this Article shall not possess the authority or power to alter, amend or
modify any of the terms or conditions or charges set forth in this Amended
Agreement, and further, the arbitrators may not enter any award which alters,
amends or modifies such terms, conditions or charges in any form or manner.
ARTICLE XVI
ENTIRE AGREEMENT
The Amended Agreement constitutes the entire Agreement between the Parties
with respect to the matters contained herein and all prior agreements with
respect thereto including the Original Agreement are superseded hereby. Each
Party confirms that it is not relying on any oral representations or warranties
of the other Party except as specifically set forth herein. No additions,
amendments or modifications hereof or of any terms included herein shall be
binding unless duly executed by both Parties.
ARTICLE XVII
ASSIGNMENT/TRANSFER
Seller may at any time and from time to time during the term of this
Amended Agreement, assign its rights in this Amended Agreement to any
Financier(s). PSE&G shall, at Seller's request, execute a consent to assignment
provided that the terms and conditions of same are reasonably acceptable to
PSE&G and Seller. Upon written notice to PSE&G, Seller may transfer its rights
and obligations under this Amended Agreement to El Paso Merchant Energy Holding
Company or Seller or any entity (i) controlling, controlled by or under common
control with El Paso Merchant Energy Holding Company or Seller, or (ii) which
has a credit rating by
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βββββ'β, Standard & Poors' or a similar independent credit rating agency at
least equal to Baa3, in the case of βββββ'β or BBB- in the case of Standard and
Poors or a similar rating from any other similar independent rating agency.
Except as otherwise provided herein, Seller may not assign its rights and/or
transfer its rights and obligations under this Amended Agreement without the
prior written consent of PSE&G, which consent shall not be unreasonably withheld
or delayed. Nothing contained herein shall prevent Seller from pledging or
mortgaging all or any part of its assets or interests in connection with any
financing for or related to the transactions contemplated herein.
PSE&G may, on notice to and with the approval of Seller, assign its rights
in this Amended Agreement. Additionally, PSE&G may, on notice to Seller, assign
and transfer its rights and obligations under this Amended Agreement to any
entity controlling, controlled by or under common control with PSE&G (a "PSE&G
Affiliate") or to any other entity only if such PSE&G Affiliate or other entity
has a credit rating by βββββ'β, Standard & Poor's or similar independent credit
rating agency at least equivalent to that of PSE&G. Except as otherwise provided
herein, PSE&G may not assign its rights and/or transfer its obligations under
this Amended Agreement without the prior written consent of Seller. Seller shall
not unreasonably delay or withhold any approval of an assignment or
assignment/transfer by PSE&G provided that the assignee or assignee/transferee
agrees to be bound by, subject to and to comply with the terms and conditions of
this Amended Agreement.
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ARTICLE XVIII
CURE BY FINANCIER
During any term of this Amended Agreement, Seller shall provide PSE&G with
such information as to enable it to know the name(s) and address(es) of any
Financier on a current basis. For so long as Seller shall have outstanding and
unpaid any financing liabilities, PSE&G agrees to promptly furnish to all
Financiers, then known to PSE&G, a copy of any Notice of Breach pursuant to
Article XIV or Demand for Arbitration pursuant to Article XV given to Seller.
Additionally, no termination of this Amended Agreement shall be effective unless
any written notice of such termination or breach, as the case may be, and the
reasons therefor have been give to and received by each Financier then known to
PSE&G thirty (30) days prior to the effective date of the termination. PSE&G
shall not terminate this Amended Agreement if, after notice thereof, and prior
to any effective date of termination Financier has:
1. cured the condition precipitating the Notice of Breach under Article
XIV; or
2. if the condition precipitating such Notice of Breach is not capable of
being cured prior to the date of termination, commenced in a diligent
manner to cure the condition precipitating the Notice of Breach and for so
long as the Financier diligently continues such efforts.
ARTICLE XIX
FINANCIER SECURITY AGREEMENTS
In the event Financier alleges that a breach or an event of default has
occurred under any operative agreement between Financier and Seller and
Financier thereafter elects to exercise any
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right(s) under any applicable security, mortgage, assignment or other agreement
then in effect between Financier and Seller, it is agreed that, upon receipt of
such notice from Financier, PSE&G shall provide notice to Seller and thereafter
PSE&G shall accept the instructions of Financier in accordance with the terms of
any applicable security, mortgage or assignment agreement. In such event, Seller
shall have no claim against PSE&G for, and hereby agrees to release PSE&G from,
any liability for any cost, expense, loss, damage or liability Seller may incur
or sustains arising out of, relating to or resulting from any action(s) which
PSE&G determines it is obligated to take pursuant to any operative agreement
between Seller and Financier.
Notwithstanding the foregoing, in the event PSE&G provides a notice to
Seller under this Section, and Seller notifies PSE&G that it disagrees with and
is actively contesting the Financier's allegation that an event of default has
occurred under any operative agreement between Financier and Seller, PSE&G may
in its reasonable discretion elect not to accept the instructions of such
Financier, provided that Seller shall (i) indemnify PSE&G in accordance with the
terms of Article XII for any costs or damages PSE&G may incur or sustain as a
result of PSE&G's failure to follow the instructions of such Financier, and (ii)
provide PSE&G with a non-cancelable surety bond, irrevocable bank letter of
credit or other security in form, substance and amount acceptable to PSE&G upon
which PSE&G can draw in the event it incurs or sustains any expense, loss,
damage or liabilities as a result of its failure to follow the instructions of
such Financier.
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ARTICLE XX
CHOICE OF LAW
This Amended Agreement shall be interpreted, construed, governed by,
performed and enforced in accordance with the laws of the State of New Jersey
and federal law, where applicable. All questions concerning the validity,
construction and enforceability of this Amended Agreement as well as questions
concerning the sufficiency or other aspects of performance under this Amended
Agreement shall be determined under the laws of the State of New Jersey without
recourse to the law governing conflict of laws.
ARTICLE XXI
CAPTIONS
The subject headings of the Articles of this Amended Agreement are inserted
solely for the purpose of convenient reference and are not intended to, nor
shall same affect the meaning of any provision of this Amended Agreement.
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ARTICLE XXII
COUNTERPARTS
This Amended Agreement may be executed in counterparts. Each shall be
deemed an original but together shall constitute one and the same instrument.
ARTICLE XXIII
MISCELLANEOUS
This Amended Agreement and the obligations of the Parties hereunder are
subject to all present and future valid laws and to all valid present and future
orders, rules and regulations of any court or regulatory authority having
jurisdiction.
In case of conflict between any provisions hereof and any applicable law,
regulation or regulatory order, such applicable law, regulation or regulatory
order shall govern.
All terms defined in this Amended Agreement shall have the same defined
meanings when used in any notice, correspondence, report or other document made
or delivered pursuant to or in connection with this Amended Agreement, unless
the context shall otherwise require.
Each reference herein to Seller and PSE&G shall be deemed to include their
respective successors and assigns.
All of the covenants, warranties, undertakings and agreements of Seller and
PSE&G shall bind the respective Parties, their successors and assigns.
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ARTICLE XXIV
RESERVATIONS
No Party shall be prejudiced or bound, except as otherwise specifically
provided herein, nor shall any Party be deemed to have approved, accepted,
agreed or consented to any concept, theory or principle underlying or supposed
to underlie any of the matters contained herein, including but not limited to
any concept, theory, principle or method used to calculate the rates provided
for herein.
All Parties further understand and agree that the provisions of this
Amended Agreement relate only to the specific matter referred to herein and no
Party or person waives any claim or right which it may otherwise have with
respect to any matter not expressly provided for herein.
ARTICLE XXV
SURVIVAL OF OBLIGATIONS
Termination of this Amended Agreement for any reason shall not relieve
PSE&G or Seller of any obligation accruing or arising with respect to the period
prior to such termination and required by terms of this Amended Agreement to be
performed at date subsequent to the date of termination.
ARTICLE XXVI
NOTICES
Any notice, request, demand, or statement which either PSE&G or Seller may
desire to give to the other shall be in writing and except as otherwise provided
for in this Amended
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Agreement shall be considered as duly delivered when mailed by certified mail or
delivered against receipt by messenger or overnight courier addressed to said
Party as follows:
(a) If to PUBLIC SERVICE ELECTRIC AND GAS COMPANY:
Manager - Non Utility Generation
Public Service Electric and Gas Company
ββ ββββ βββββ, βββ
ββββββ, ββ βββββ
With electronic mail copies to:
(b) If to Seller or to such other person or address as the addressee may have
specified in a notice duly given as provided herein:
Managing Director, El Paso Merchant Energy Holding Company
ββββ βββββββββ ββββββ
βββββββ, ββ βββββ
Vice President, El Paso Merchant Energy Holding Company
ββ ββββββ ββββββ
βββββββββ, ββ βββββ
General Counsel, El Paso Merchant Energy Holding Company
ββββ βββββββββ ββββββ
βββββββ, ββ βββββ
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Except as otherwise provided in this Amended Agreement, routine
communications and Billing Statements shall be considered as duly delivered when
mailed by either certified or ordinary mail.
(a) If to PUBLIC SERVICE ELECTRIC AND GAS COMPANY:
Manager - Non Utility Generation
Public Service Electric and Gas Company
ββ ββββ βββββ, βββ
ββββββ, ββ βββββ
With electronic mail copies to:
βββββββ.βββββββ@ββββ.βββ
ββββββ.βββββββββ@ββββ.βββ
βββββββ.ββββββββ@ββββ.βββ
(b) If to Seller or to such other person or address as the addressee may have
specified in a notice duly given as provided herein:
Contract Administrator - Cedar Breaks I, L.L.C.
ββββ βββββββββ ββββββ
βββββββ, ββ βββββ
βββββ ββββββββ
El Paso Merchant Energy Holding Company
ββ ββββββ ββββββ
βββββββββ, ββ βββββ
With electronic mail copies to:
βββββββββ@ββββββββ.βββ
βββββ@ββββββββ.βββ
ββββββββββ@ββββββββ.βββ
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Monthly and Daily Schedules
Scheduling information, as set forth in Article V, Delivery of Energy and
Capacity, Section A, Scheduling, shall be provided by Seller to PSE&G's
Scheduling Department via:
FAX: βββ-βββ-ββββ and can be confirmed by telephone at βββ-βββ-ββββ.
ARTICLE XXVII
RELEASE
Effective on the effective date under Article III, PSE&G and Seller hereby
waives and releases the other from any claims arising under the Original
Agreement prior to the effective date of this Amended Agreement, including but
not limited to claims or liability for breach of contract or contract defaults.
This release shall not impair nor diminish the parties' duties and obligations
under this Amended Agreement.
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IN WITNESS WHEREOF, this Amended Agreement has been executed and delivered
as of the date and year first above written.
CEDAR BRAKES I, L.L.C.
/s/ ββββ β. βββββββ
---------------------------
By: ββββ β. βββββββ
Its: President
PUBLIC SERVICE ELECTRIC
AND GAS COMPANY
/s/ βββββββ β. ββββββ
---------------------------
By: βββββββ β. ββββββ
Its: Vice President - PSE&G
49
EXHIBIT 1
ANNUAL ENERGY DELIVERIES
Year Annual Energy Deliveries (MWh)
---- ------------------------------
2000 788,954
2001 788,954
2002 788,954
2003 811,229
2004 855,779
2005 855,779
2006 855,779
2007 855,779
2008 855,779
2009 855,779
2010 855,779
2011 855,779
2012 855,779
2013 570,519
50
EXHIBIT 2
CAPACITY AND ENERGY PURCHASE RATES ($/MWh)
Year Existing Rates Rate Reduction New Rate
---- -------------- -------------- --------
2000 76.48 5.74 70.74
2001 78.03 5.85 72.17
2002 79.50 5.96 73.53
2003 80.69 6.05 74.64
2004 81.56 6.12 75.44
2005 83.20 6.24 76.96
2006 85.13 6.38 78.74
2007 86.86 6.51 80.34
2008 88.79 6.66 82.13
2009 90.69 6.80 83.88
2010 92.71 6.95 85.76
2011 94.78 7.11 87.67
2012 96.90 7.27 89.63
2013 99.93 7.49 92.43