Exhibit (10) (i) 82
TRANSITION POWER AGREEMENT
By and Between
CENTRAL ▇▇▇▇▇▇ GAS & ELECTRIC CORPORATION
and
DYNEGY POWER MARKETING, INC.
Dated January 30, 2001
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS................................................1
ARTICLE 2 - TERM AND TERMINATION.......................................1
2.1 - Term...........................................................1
2.2 - Option Period..................................................2
2.3 - Termination....................................................2
ARTICLE 3 - CAPACITY RESOURCES.........................................2
3.1 - Capacity Resources Obligations.................................2
3.2 - Capacity Resources Information Requirements....................2
ARTICLE 4 - ANCILLARY SERVICES.........................................3
4.1 - Ancillary Services.............................................3
4.2 - Ancillary Services Defined.....................................3
ARTICLE 5 - ENERGY.....................................................3
5.1 - Fixed Energy...................................................3
5.2 - Additional Energy..............................................3
5.3 - NYISO Requirements.............................................4
5.4 - Delivery Point.................................................4
5.5 - Risk of Loss...................................................4
ARTICLE 6 - PRICING....................................................4
6.1 - Compensation for Services......................................4
6.2 - Taxes..........................................................6
6.3 - First Through the Meter........................................6
ARTICLE 7 - LIABILITY AND LIMITATION OF LIABILITY......................7
7.1 - Liability Failure to Provide Services..........................7
7.2 - Limitation of Liability........................................7
ARTICLE 8 - FORCE MAJEURE..............................................7
8.1 - Effect of Force Majeure........................................7
8.2 - Force Majeure Defined..........................................8
8.3 - Notification...................................................8
ARTICLE 9 - INDEMNIFICATION FOR THIRD PARTY CLAIMS.....................8
9.1 - Supplier's Indemnification.....................................8
9.2 - Central ▇▇▇▇▇▇'▇ Indemnification...............................8
9.3 - Indemnification Procedures.....................................9
9.4 - Survival.......................................................9
ARTICLE 10 - DEFAULT...................................................9
10.1 - Event of Default..............................................9
10.2 - Remedies.....................................................10
ARTICLE 11 - TPA COMMITTEE............................................10
ARTICLE 12 - COST RESPONSIBILITIES AND BILLING PROCEDURES.............10
12.1 - Billing Procedures...........................................10
12.2 - Billing Disputes.............................................11
12.3 - Interest on Unpaid Balances..................................11
ARTICLE 13 - CONFIDENTIALITY..........................................11
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13.1 - Confidentiality Obligations..................................11
13.2 - Confidentiality of Audits....................................12
13.3 - Remedies.....................................................12
ARTICLE 14 - DISPUTE RESOLUTION.......................................12
14.1 - Disputes.....................................................12
14.2 - Arbitration..................................................13
ARTICLE 15 - REPRESENTATIONS..........................................14
15.1 - Representations of Central ▇▇▇▇▇▇............................14
15.2 - Representations of Supplier..................................15
ARTICLE 16 - ASSIGNMENT/CHANGE IN CORPORATE IDENTITY..................16
16.1 - Generally....................................................16
16.2 - Central ▇▇▇▇▇▇'▇ Assignment Rights...........................16
16.3 - Supplier's Assignment Rights.................................16
16.4 - Mergers or Consolidations....................................16
16.5 - Limitations..................................................16
16.6 - Successors...................................................17
ARTICLE 17 - NOTICES..................................................17
ARTICLE 18 - AMENDMENTS...............................................18
18.1 - Amendments...................................................18
18.2 - NYISO Agreement Modifications................................18
ARTICLE 19 - AUDITS...................................................19
ARTICLE 20 - MISCELLANEOUS PROVISIONS.................................19
20.1 - Waiver.......................................................19
20.2 - No Third Party Beneficiaries.................................19
20.3 - Governing Law................................................19
20.4 - Counterparts.................................................19
20.5 - Interpretation...............................................19
20.6 - Jurisdiction and Enforcement.................................20
20.7 - Entire Agreement.............................................20
20.8 - Severability.................................................21
20.9 - Further Assurances...........................................21
20.10-Independent Contractor Status.................................21
20.11-Conflicts.....................................................21
SCHEDULE 1 - DEFINITIONS...............................................1
ii
TRANSITION POWER AGREEMENT
This Transition Power Agreement ("Agreement") dated as of January 30,
2001 by and between Central ▇▇▇▇▇▇ Gas & Electric Corporation ("Central ▇▇▇▇▇▇")
a New York corporation, and Dynegy Power Marketing, Inc. ("Supplier") a Texas
corporation. Central ▇▇▇▇▇▇ and Supplier are each referred to herein as a
"Party," and collectively referred to herein as the "Parties."
WITNESSETH:
WHEREAS, Central ▇▇▇▇▇▇ and Dynegy Power Corp., a Delaware corporation
("Dynegy") have entered into an Asset Purchase and Sale Agreement for the
Danskammer Station and Related Assets ("Danskammer APSA") dated August 7, 2000;
WHEREAS, Dynegy has assigned rights and obligations under the
Danskammer APSA relating to the Agreement to Supplier in accordance with Section
12.5 of the Danskammer APSA.
WHEREAS, Central ▇▇▇▇▇▇ will continue to operate its transmission and
distribution businesses which includes obligations to sell and provide power and
energy to its retail customers; and
WHEREAS, the Parties have agreed in the Danskammer APSA to execute this
Agreement in order to provide for the sale by Supplier, and purchase by Central
▇▇▇▇▇▇, of electric capacity, power and energy and certain ancillary services in
accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual representations,
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise defined herein, capitalized terms used in this
Agreement shall have the meanings specified or referred to in Schedule 1 of this
Agreement.
ARTICLE 2
TERM AND TERMINATION
2.1 TERM. This Agreement shall become effective at the time that the
Closing becomes effective ("Effective Date"). Unless terminated sooner in
accordance with the terms of this Agreement or extended pursuant to Section 2.2
below, this Agreement shall continue in full force and effect from the Effective
Date through and including October 31, 2003.
2.2 OPTION PERIOD. The term of this Agreement may be extended for one
additional year, through and including October 31, 2004, at the election of
Central ▇▇▇▇▇▇, upon not less than thirteen (13) months advance written notice
to Supplier.
2.3 TERMINATION. The applicable provisions of this Agreement shall
continue in effect after cancellation or termination hereof to the extent
necessary to effectuate the interpretation and enforcement of the Agreement and
provide for final ▇▇▇▇▇▇▇▇, billing adjustments and payments pertaining to
liability and indemnification obligations arising from acts or events that
occurred while this Agreement was in effect.
ARTICLE 3
CAPACITY RESOURCES
3.1 CAPACITY RESOURCES OBLIGATIONS.
(a) During the term of this Agreement, Supplier shall supply
to Central ▇▇▇▇▇▇, and Central ▇▇▇▇▇▇ shall purchase from Supplier, installed
capacity ("ICAP") in the amounts set forth in Schedule 3.1(a) hereto. Supplier's
supply of ICAP under this Agreement shall satisfy all requirements and financial
obligations established by the NYISO, as they apply to Central ▇▇▇▇▇▇ and to
Supplier as the supplier of ICAP to Central ▇▇▇▇▇▇.
(b) Supplier shall provide to the NYISO and the NYSRC, as
applicable, all information and data required with respect to ICAP supplied
under this Agreement, with copies to Central ▇▇▇▇▇▇, and Supplier shall be
responsible for any charges levied by the NYISO or the NYSRC on Central ▇▇▇▇▇▇
or Supplier due to the delayed receipt of such information and data, unless such
delay is caused by Central ▇▇▇▇▇▇.
3.2 CAPACITY RESOURCES INFORMATION REQUIREMENTS.
(a) Supplier shall provide in accordance with this Section 3.2
its proposed plan to satisfy its obligations hereunder to provide ICAP under
this Agreement ("ICAP Plan"). Schedule 3.2(a) hereto sets forth the Supplier's
ICAP Plan for the First Contract Year.
(b) On or before March 1 in each year during the term of this
Agreement, the Supplier shall provide to the TPA Committee, for review and
approval (such approval not to be unreasonably withheld or delayed), its
proposed annual ICAP Plan to be submitted to Central ▇▇▇▇▇▇ in a form that
satisfies the NYISO requirements for such data.
(c) If the Supplier intends to depart in any material respect
from the ICAP Plan set forth in Schedule 3.2(a) or an ICAP Plan which was
previously approved by the TPA Committee, the Supplier shall, prior to
implementing any such departure,
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obtain the approval of the TPA Committee to an amendment to the ICAP Plan
relating to such change, such approval not to be unreasonably withheld or
delayed.
ARTICLE 4
ANCILLARY SERVICES
4.1 ANCILLARY SERVICES. During the term of this Agreement, Central
▇▇▇▇▇▇ shall pay Supplier the positive difference, if any, between the prices
for Ancillary Services set forth in Schedule 4.1 and the prices established by
the NYISO for Ancillary Services payable by Central ▇▇▇▇▇▇ in the Day Ahead
Market to meet the requirements of its load for such Ancillary Services ("Market
Price") in every hour during the Month for the amount of Ancillary Services set
forth in Schedule 4.1, as set forth more fully in Section 6.1. If such
difference is negative, Supplier shall pay or credit Central ▇▇▇▇▇▇ with such
amount as provided in Section 6.1(b).
4.2 ANCILLARY SERVICES DEFINED. Ancillary Services means Regulation and
Frequency Response Service, Ten Minute Spinning Reserves and Thirty Minute
Spinning Reserves, all as defined in the NYISO OATT.
ARTICLE 5
ENERGY
5.1 FIXED ENERGY. During the term of this Agreement, Supplier shall
supply to Central ▇▇▇▇▇▇ at the Delivery Point, and Central ▇▇▇▇▇▇ shall
purchase, Fixed Energy in the amounts set forth in Schedule 5.1(a) hereto
("Fixed Energy").
5.2 ADDITIONAL ENERGY.
(a) During the term of this Agreement, Supplier shall supply
to Central ▇▇▇▇▇▇ at the Delivery Point, and Central ▇▇▇▇▇▇ shall purchase,
Additional Energy, as scheduled by Central ▇▇▇▇▇▇, up to the maximum demand
level set forth for Additional Energy in Schedule 5.1(a) ("Additional Energy").
Central ▇▇▇▇▇▇ shall schedule Additional Energy on an hourly basis for each Week
by notifying Supplier on or before noon Friday preceding such Week of its hourly
requirements for Additional Energy. The amount of Additional Energy scheduled by
Central ▇▇▇▇▇▇ shall correspond, on a monthly basis, to the applicable load
factor set forth in Schedule 5.1(a), although the amount scheduled at any time
may equal the applicable maximum demand set forth in Schedule 5.1(a).
(b) On the Effective Date and on the anniversary of the
Effective Date, Central ▇▇▇▇▇▇ will provide Supplier with a non-binding estimate
of the Additional Energy that Central ▇▇▇▇▇▇ projects it will require Supplier
to provide during the next twelve (12) Months pursuant to this Agreement. Not
less than thirty (30) days prior to the beginning of every Month during the term
of this Agreement, Central ▇▇▇▇▇▇ shall provide Supplier with a non-binding
estimate of the Additional Energy that Central ▇▇▇▇▇▇ projects it will require
Supplier to provide from the
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beginning of that Month through the end of the following two (2) Months pursuant
to this Agreement. At the time that Central ▇▇▇▇▇▇ is required to submit its
schedule for Additional Energy for a Week pursuant to Section 5.2(a), Central
▇▇▇▇▇▇ shall provide Supplier with a non-binding estimate of the Additional
Energy that Central ▇▇▇▇▇▇ believes it will require Supplier to provide during
the Week following the Week covered by Central ▇▇▇▇▇▇'▇ schedule submitted
pursuant to Section 5.2(a).
5.3 NYISO REQUIREMENTS. Supplier's supply of Fixed Energy and
Additional Energy under this Agreement shall satisfy all applicable requirements
and financial obligations established from time to time by the NYISO, as they
apply to Central ▇▇▇▇▇▇ or to Supplier as the supplier of energy to Central
▇▇▇▇▇▇.
5.4 DELIVERY POINT. The point of withdrawal for Fixed Energy and
Additional Energy supplied to Central ▇▇▇▇▇▇ shall be the New York Zone "G"
Central ▇▇▇▇▇▇/▇▇▇▇▇▇ Valley ("Delivery Point"). Supplier shall reimburse
Central ▇▇▇▇▇▇ for all NYISO Transmission Usage Charges payable by Central
▇▇▇▇▇▇ with respect to energy deliveries provided under this Agreement incurred
up to the Delivery Point. Central ▇▇▇▇▇▇ shall be responsible for any
Transmission Usage Charges with respect to energy deliveries provided under the
Agreement incurred beyond the Delivery Point.
5.5 RISK OF LOSS. Title to and risk of loss of Fixed Energy and
Additional Energy shall transfer from Supplier to Central ▇▇▇▇▇▇ at the Delivery
Point. As between the Parties, Supplier shall be deemed to be in exclusive
control (and shall be responsible for any damages or injuries caused thereby) of
the Fixed Energy and Additional Energy up to the Delivery Point and Central
▇▇▇▇▇▇ shall be deemed to be in exclusive control (and shall be responsible for
any damages or injuries caused thereby) of the Fixed Energy and Additional
Energy at and after the Delivery Point.
ARTICLE 6
PRICING
6.1 COMPENSATION FOR SERVICES. Subject to the terms of this Agreement,
Central ▇▇▇▇▇▇ shall be obligated to make a monthly payment to Supplier for the
Services it provides which shall be comprised of the following components:
(a) For each Month during the term of the Agreement, a
capacity payment for the ICAP that Supplier provides to Central ▇▇▇▇▇▇ in such
Month calculated as follows (the "Capacity Payment"):
Capacity Payment = ICAP x Price
Where:
ICAP = the amount of ICAP supplied during the Month
expressed in kW
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Price = the price of ICAP per kW for the Month as set
forth in Schedule 3.1(a)
(b) For each Month during the term of this Agreement, an
ancillary services payment calculated as follows (the "Ancillary Services
Payment"):
Ancillary Services Payment = Regulation Amount x (Contract
Regulation Price - NYISO Regulation Price) + 10 Minute SR
Amount x (Contract 10 Minute SR Price - NYISO 10 Minute SR
Price) + 30 Minute SR Amount x (Contract 30 Minute SR Price -
NYISO 30 Minute SR Price)
Where
"Regulation Amount" means the amount of Regulation and
Frequency Response Service expressed in MW per hour set forth
in Schedule 4.1 multiplied by the number of hours in the
Month.
"Contract Regulation Price" means the applicable price per MW
per hour for Regulated Frequency Response Service set forth in
Schedule 4.1.
"NYISO Regulation Price" means the hourly average Market Price
per MW payable by Central ▇▇▇▇▇▇ to the NYISO for Regulation
and Frequency Response Service during the Month.
"10 Minute SR Amount" means the amount of Ten Minute Spinning
Reserves expressed in MW per hour set forth in Schedule 4.1
multiplied by the number of hours in the Month.
"Contract 10 Minute SR Price" means the applicable price per
MW per hour for Ten Minute Spinning Reserves set forth in
Schedule 4.1.
"NYISO 10 Minute SR Price" means the hourly average Market
Price per MW payable by Central ▇▇▇▇▇▇ to the NYISO for Ten
Minute Spinning Reserves during the Month.
"30 Minute SR Amount" means the amount of Thirty Minute
Spinning Reserves expressed in MW per hour set forth in
Schedule 4.1 multiplied by the number of hours in the Month.
"Contract 30 Minute SR Price" means the applicable price per
MW per hour for Thirty Minute Spinning Reserves set forth in
Schedule 4.1.
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"NYISO 30 Minute SR Price" means the hourly average Market
Price per MW payable by Central ▇▇▇▇▇▇ to the NYISO for the
Thirty Minute Spinning Reserves during the Month.
If the Ancillary Service Payment in any Month is a negative amount, it
shall be credited to Central ▇▇▇▇▇▇ as a reduction in Central ▇▇▇▇▇▇'▇ monthly
payments to Supplier or paid to Central ▇▇▇▇▇▇ as provided in Article 12.
(c) For each Month during the term of the Agreement, an energy
payment for Fixed Energy and Additional Energy that Supplier delivers to Central
▇▇▇▇▇▇ at the Delivery Point in such Month calculated as follows (the "Energy
Payment"):
Energy Payment = (Fixed Energy x Fixed Energy Price) +
(Additional Energy x Additional Energy Price).
Where:
Fixed Energy = the amount of energy expressed in MWh, delivered to
the Delivery Point in the Month as Fixed Energy under this
Agreement.
Fixed Energy Price = the price per MWh set forth in Schedule 5.1(a)
for Fixed Energy delivered in the Month.
Additional Energy = the amount of energy, expressed in MWh,
delivered to the Delivery Point in the Month as Additional Energy
under this Agreement.
Additional Energy Price = the price per MWh set forth in Schedule
5.1(a) for Additional Energy delivered in the Month.
(d) Central ▇▇▇▇▇▇'▇ monthly payment to Supplier will be
decreased, or Supplier's payment to Central ▇▇▇▇▇▇ will be increased, by (i) any
NYISO charges for transmission congestion, allocated losses and unaccounted-for
energy which Central ▇▇▇▇▇▇ incurs in connection with the Services Supplier
delivers to Central ▇▇▇▇▇▇ pursuant to Articles 4, 5 and 6 of this Agreement,
and (ii) the amounts of any payments Supplier owes to Central ▇▇▇▇▇▇ pursuant to
Section 6.2 and 7.1 of this Agreement.
6.2 TAXES. Supplier shall be responsible for taxes applicable to the
sale or provision of Services
6.3 FIRST THROUGH THE METER. If Supplier fails at any time to deliver
to Central ▇▇▇▇▇▇ at the Delivery Point an amount of energy equal to the sum of
the Fixed Energy and the Additional Energy scheduled by Central ▇▇▇▇▇▇ pursuant
to this Agreement, any shortfall will first be considered a shortfall in
Additional Energy, up to
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the amount of Additional Energy scheduled by Central ▇▇▇▇▇▇. Any shortfall in
excess of the amount of Additional Energy scheduled by Central ▇▇▇▇▇▇ shall be
considered a shortfall in the amount of Fixed Energy delivered to Central
▇▇▇▇▇▇.
ARTICLE 7
LIABILITY AND LIMITATION OF LIABILITY
7.1 LIABILITY FAILURE TO PROVIDE SERVICES. To the extent that Supplier
does not provide ICAP, Ancillary Services, Fixed Energy and/or Additional Energy
("Services") to Central ▇▇▇▇▇▇ as required under this Agreement, Supplier shall
pay Central ▇▇▇▇▇▇ the positive difference, if any, between the price Central
▇▇▇▇▇▇ pays for such Services in the appropriate NYISO market, or if not
available in the NYISO market, any other market ("Alternative Services") and the
price Central ▇▇▇▇▇▇ would have paid to Supplier for such Services under this
Agreement, plus penalties and nonperformance charges, if any, assessed on
Central ▇▇▇▇▇▇ by the NYISO to the extent resulting from the Supplier not
providing the Services. Calculation of the cost of Alternative Services
hereunder shall include all reasonable direct costs associated with the
procurement and delivery of Alternative Services, including reasonable legal or
transactional costs and expenses; taxes, energy, demand, capacity, or
reservation charges; energy losses; emergency energy; and any transmission or
congestion costs but does not include the NYISO Transmission Service Charge.
7.2 LIMITATION OF LIABILITY. Except for indemnity obligations set forth
in Article 9 and the damages, charges or penalties set forth in Sections 3.1(b),
5.4, 7.1 and 12.3 of this Agreement, neither Party, nor such Party's respective
officers, directors, agents, employees, Affiliates, or successors or assigns of
any of them, shall be liable to the other Party or such other Party's
Affiliates, officers, directors, agents, employees, successors or assigns for
claims, suits, actions or causes of action for incidental, punitive, special,
indirect, multiple or consequential damages (including, without limitation, lost
revenues, claims of customers, attorneys' fees and litigation costs) connected
with, or resulting from, performance or non-performance of this Agreement, or
any actions undertaken in connection with or related to this Agreement,
including, without limitation, any such damages which are based upon causes of
action for breach of contract, tort (including negligence and
misrepresentation), breach of warranty or strict liability. The provisions of
this Section 7.2 shall apply regardless of fault and shall survive termination,
cancellation, suspension, completion, or expiration of this Agreement.
ARTICLE 8
FORCE MAJEURE
8.1 EFFECT OF FORCE MAJEURE. Notwithstanding anything in this Agreement
to the contrary, the Parties shall be excused from performing their respective
obligations hereunder (except for the obligation to pay sums of money due and
owing hereunder) and shall not be liable in damages or otherwise, to the extent
that a Party is unable to perform or is prevented from performing by an event of
Force Majeure and has complied with Section 8.3.
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8.2 FORCE MAJEURE DEFINED. Force Majeure includes, without limitation,
storm, flood, damage to underwater cables, lightning, drought, earthquake, fire,
explosion, acts of God or the public enemy, civil disturbance, or any other
cause beyond a Party's reasonable control but only if and to the extent that the
event directly affects the availability of the transmission or distribution
facilities of the NYISO or Central ▇▇▇▇▇▇ which are necessary to deliver or
receive energy at the Delivery Point from all potential sources of supply of the
energy. Force Majeure shall not include events affecting the availability or
cost of operating any generating facility or resource.
8.3 NOTIFICATION. A Party shall not be entitled to rely on the
occurrence of an event of Force Majeure as a basis for being excused from
performance of its obligations under this Agreement unless the Party relying on
the event or condition shall: (a) provide prompt written notice of such Force
Majeure event to the other Party, including an estimation of its expected
duration and the probable impact on the performance of its obligations
hereunder; (b) exercise all reasonable efforts to continue to perform its
obligations under this Agreement; (c) expeditiously take action to correct or
cure the event or condition excusing performance; (d) exercise all reasonable
efforts to mitigate or limit damages to the other Party; and (e) provide prompt
notice to the other Party of the cessation of the event or condition giving rise
to its excuse from performance. Subject to this Section 8.3, any obligation
under this Agreement shall be suspended only to the extent caused by such Force
Majeure and only during the continuance of any inability of performance caused
by such Force Majeure but for no longer period.
ARTICLE 9
INDEMNIFICATION FOR THIRD PARTY CLAIMS
9.1 SUPPLIER'S INDEMNIFICATION. Supplier shall indemnify, hold
harmless, and defend Central ▇▇▇▇▇▇ and its Affiliates, as the case may be, and
their respective officers, directors, employees, agents, contractors,
subcontractors, invitees, successors and permitted assigns from and against any
and all claims, liabilities, costs, damages, and expenses (including, without
limitation, reasonable attorney and expert fees, and disbursements incurred by
any of them in any action or proceeding between Central ▇▇▇▇▇▇ and a third party
or Supplier) for damage to property of unaffiliated third parties, injury to or
death of any person, including Central ▇▇▇▇▇▇'▇ employees or any third parties,
to the extent caused, by the negligence or willful misconduct of Supplier and/or
its officers, directors, employees, agents, contractors, subcontractors or
invitees arising out of or connected with Supplier's performance or breach of
this Agreement, or the exercise by Supplier of its rights hereunder.
9.2 CENTRAL ▇▇▇▇▇▇'▇ INDEMNIFICATION. Central ▇▇▇▇▇▇ shall indemnify,
hold harmless, and defend Supplier and its Affiliates, as the case may be, and
their respective officers, directors, employees, agents, contractors,
subcontractors, invitees, successors and permitted assigns from and against any
and all claims, liabilities, costs, damages, and expenses (including, without
limitation, reasonable attorney and expert fees, and disbursements incurred by
any of them in any action or proceeding between the Supplier and a third party
or Central ▇▇▇▇▇▇) for damage to property of unaffiliated
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third parties, injury to or death of any person, including Supplier's employees
or any third parties, to the extent caused by the negligence or willful
misconduct of Central ▇▇▇▇▇▇ and/or its officers, directors, employees, agents,
contractors, subcontractors or invitees arising out of or connected with Central
▇▇▇▇▇▇'▇ performance or breach of this Agreement, or the exercise by Central
▇▇▇▇▇▇ of its rights hereunder.
9.3 INDEMNIFICATION PROCEDURES. If either Party intends to seek
indemnification under this Article 9 from the other Party, the Party seeking
indemnification shall give the other Party notice of such claim within ninety
(90) days of the later of the commencement of, or the Party's actual knowledge
of, such claim or action. Such notice shall describe the claim in reasonable
detail, and shall indicate the amount (estimated if necessary) of the claim that
has been, or may be sustained by, said Party. To the extent that the other Party
will have been actually and materially prejudiced as a result of the failure to
provide such notice, such notice will be a condition precedent to any liability
of the other Party under the provisions for indemnification contained in this
Agreement. Neither Party may settle or compromise any claim without the prior
consent of the other Party; provided, however, said consent shall not be
unreasonably withheld or delayed.
9.4 SURVIVAL. The indemnification obligations of each Party under this
Article 9 shall continue in full force and effect regardless of whether this
Agreement has either expired or been terminated or canceled.
ARTICLE 10
DEFAULT
10.1 EVENT OF DEFAULT. Unless excused by Force Majeure, each of the
following events shall constitute an event of default (an "Event of Default")
under this Agreement:
(a) the failure by a Party to pay any amount due within thirty
(30) days after receipt of written notice of nonpayment by the other Party,
unless the payment of such amount is disputed in good faith;
(b) a Party's breach of any material term or condition of this
Agreement including any material breach of a representation, warranty or
covenant made in this Agreement which, after receiving written notice of the
breach from the non-breaching Party (such notice to set forth in reasonable
detail the nature of the default and, where known and if applicable, the steps
necessary to cure such default), (i) the breaching Party fails to cure within
thirty (30) days following receipt of the notice or (ii) if such default is of
such a nature that it cannot be cured within thirty (30) days following receipt
of such notice, the breaching Party fails within such thirty (30) days to
commence the necessary cure and fails at any time thereafter diligently and
continuously to prosecute such cure to completion provided that the cure is
completed no later than 180 days after the receipt of the default notice;
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(c) the appointment of a receiver or liquidator or trustee for
either Party and such receiver, liquidator or trustee is not discharged within
sixty (60) days;
(d) the entry of a decree adjudicating a Party as bankrupt or
insolvent, and such decree is continued undischarged and unstayed for a period
of sixty (60) days; or
(e) the filing of a voluntary or involuntary petition in
bankruptcy under any provision of any federal or state bankruptcy law by a Party
or against it, and, with respect to an involuntary petition in bankruptcy, such
petition continues undischarged and unstayed for a period of sixty (60) days.
10.2 REMEDIES. Upon the occurrence of an Event of Default, the
non-defaulting Party may (a) terminate this Agreement by providing sixty (60)
days' prior written notice to the defaulting Party and this Agreement shall
thereupon terminate upon receipt of regulatory approval for such termination,
but not before the date specified in the notice, and/or (b) subject to Section
7.2 of this Agreement, exercise all such rights and remedies as may be available
to it under this Agreement or at law or equity with respect to such Event of
Default.
ARTICLE 11
TPA COMMITTEE
The Parties shall establish an operating committee consisting of one
representative for each Party ("TPA Committee"). The TPA Committee shall act
only by unanimous agreement or consent. The Parties shall designate their
respective representatives to the TPA Committee, plus an alternate by written
notice. Each Party's representative on the TPA Committee is authorized to act on
behalf of such Party with respect to any matter arising under this Agreement
which is to be decided by the TPA Committee, however, the TPA Committee shall
not have any authority to modify or otherwise alter the rights and obligations
of the Parties hereunder. The TPA Committee shall develop and implement suitable
policies and procedures to coordinate the interaction of the Parties with
respect to the performance of their duties and obligations under this Agreement.
ARTICLE 12
COST RESPONSIBILITIES AND BILLING PROCEDURES
12.1 BILLING PROCEDURES.
(a) Five (5) business days after receipt of the NYISO ▇▇▇▇ for
the preceding Month, Central ▇▇▇▇▇▇ shall provide to Supplier a written invoice
setting forth the amount, if any, Central ▇▇▇▇▇▇ owes to Supplier pursuant to
Article 6 of this Agreement for Services and any other payments which may be due
hereunder, and the amounts, if any, that Supplier owes to Central ▇▇▇▇▇▇
pursuant to this Agreement. Each invoice shall (i) delineate the Month in which
the Services or Alternative Services
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were provided or reimbursable charges were incurred, (ii) fully describe the
Services or Alternative Services rendered or reimbursable charges incurred,
(iii) be itemized to reflect the Services or Alternative Services performed or
provided or reimbursable charges incurred, (iv) be itemized to reflect any
billing revisions received from the NYISO during the preceding Month with a
description of the revision, and (v) provide reasonable detail as to the
calculation of the amounts involved. If data necessary to prepare an invoice is
not available, Central ▇▇▇▇▇▇ may reasonably estimate such data subject to
adjustment in the next invoice.
(b) All invoices shall be paid within fifteen (15) days after
the date of issuance, but not earlier than the 25th day of the Month in which
the invoice is rendered. All payments shall be made by wire transfer to a bank
designated in writing by such Party. Payment of invoices shall not relieve the
paying Party from any responsibilities or obligations it has under this
Agreement, nor shall such payment constitute a waiver of any claims arising
hereunder.
(c) To the extent that, for any billing period, a Party is
obligated to pay to the other Party amounts due under this Agreement, such Party
may use such amounts as a set-off solely against any amounts owed by the other
Party pursuant to this Agreement.
12.2 BILLING DISPUTES. In the event of a billing dispute between the
Parties, (i) each Party shall continue to perform its obligations in accordance
with the terms of this Agreement subject to the other Party's rights hereunder,
and (ii) the Party required to make payments hereunder shall pay to the other
Party all invoiced amounts when due, net of any set-offs permitted under Section
12.1(c), that are not in dispute. Payment of invoices by either Party shall not
relieve the paying Party from any responsibilities or obligations it has under
this Agreement; nor shall it constitute a waiver of any claims arising
hereunder.
12.3 INTEREST ON UNPAID BALANCES. Interest on any unpaid amounts and
interest on overpayments or underpayments of estimated or revised amounts shall
be calculated in accordance with the methodology specified for interest on
refunds in FERC regulations at 18 C.F.R. section 35.19a(a)(2)(iii). Interest on
delinquent amounts shall be calculated from the due date of the ▇▇▇▇ to the date
of payment. When payments are made by mail, bills shall be considered as having
been paid on the date of receipt by the other Party.
ARTICLE 13
CONFIDENTIALITY
13.1 CONFIDENTIALITY OBLIGATIONS. Each Party shall hold in confidence,
unless compelled to disclose by judicial or administrative process or other
provisions of law, all documents and information furnished by one Party to the
other Party in connection with this Agreement marked "Confidential" or
"Proprietary." Except to the extent that such information or documents are (i)
generally available to the public other
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than as a result of a disclosure by a receiving Party in breach of this
Agreement, (ii) available to the receiving Party on a non-confidential basis
prior to disclosure by the other Party, or (iii) available to the receiving
Party on a non-confidential basis from a source other than the other Party,
provided that such source is not known, and by reasonable effort could not be
known, by the receiving Party to be bound by a confidentiality agreement with
the other Party or otherwise prohibited from transmitting the information to the
receiving Party by a contractual, legal or fiduciary obligation, the receiving
Party shall not release or disclose such information to any other person, except
to its employees, representatives or agents on a need-to-know basis, in
connection with this Agreement who has not first been advised of the
confidentiality provisions of this Section 13.1 and has agreed in writing to
comply with such provisions. In no event shall such information be disclosed in
violation of the requirements of FERC Orders 889 and 889-A, and any successor
thereto. The Party receiving confidential information from the other Party shall
promptly notify the other Party if it receives notice or otherwise concludes
that the production of any information subject to this Section 13.1 is being
sought under any provision of law and the receiving Party shall use reasonable
efforts in cooperation with the other Party to seek confidential treatment for
such confidential information provided thereto.
13.2 CONFIDENTIALITY OF AUDITS. The independent auditor performing any
audit, as referred to in Article 19, shall be subject to a confidentiality
agreement between the auditor and the Party being audited. Such audit
information shall be treated as confidential except to the extent that its
disclosure is required by regulatory or judicial order, for reliability purposes
pursuant to NYISO requirements and pursuant to the NYPSC's and FERC's rules and
regulations. Except as provided herein, neither Party will disclose the audit
information to any third party, without the other Party's prior written consent.
Audit information in the hands of the Party not being audited shall be subject
to all provisions of Article 19.
13.3 REMEDIES. The Parties agree that monetary damages would be
inadequate to compensate a Party for the other Party's breach of its obligations
under Sections 13.1 and 13.2. Each Party accordingly agrees, subject to Section
7.2, that the other Party shall be entitled to equitable relief, by way of
injunction or otherwise, if the first Party breaches or threatens to breach its
obligations under Sections 13.1 or 13.2 of this Agreement, as applicable, which
equitable relief shall be granted without bond or proof of damages, and the
receiving Party shall not plead in defense that there would be an adequate
remedy at law.
ARTICLE 14
DISPUTE RESOLUTION
14.1 DISPUTES. A Party with a claim or dispute under this Agreement
shall submit to the TPA Committee a notification of such claim or dispute within
sixty (60) days after the circumstances that gave rise to the claim or the
question or issue in dispute. The notification shall be in writing and shall
include a concise statement of the claim or the issue or question in dispute, a
statement of the relevant facts and documentation to support the claim. In the
event the TPA Committee is unable, in
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good faith, to resolve the disagreement in a manner satisfactory to both Parties
within thirty (30) days after receipt by the TPA Committee of a notification
specifying the claim, issue or question in dispute, the Parties shall refer the
dispute to their respective senior management. If, after using their good faith
best efforts to resolve the dispute, senior management cannot resolve the
dispute within thirty (30) days, the Parties shall utilize the arbitration
procedures set forth below in Section 14.2 to resolve a dispute, provided that
nothing herein or therein shall prohibit a Party from at any time requesting
from a court of competent jurisdiction a temporary restraining order,
preliminary injunction, or other similar form of equitable relief to enforce
performance of the provisions of this Agreement.
14.2 ARBITRATION.
(a) Unless the Parties otherwise mutually agree in writing to
another form of dispute resolution, any arbitration initiated under this
Agreement shall be conducted before a single neutral arbitrator appointed by the
Parties within thirty (30) days of receipt by respondent of the demand for
arbitration. If the Parties are unable to agree on an arbitrator, such
arbitrator shall be appointed by the American Arbitration Association. Unless
the Parties agree otherwise, the arbitrator shall have experience in the
electric power industry, shall not have any current or past substantial business
or financial relationships with any Party to the arbitration or its Affiliates
and shall have experience in arbitration or mediation of contract disputes.
Unless otherwise agreed, the arbitration shall be conducted in accordance with
the American Arbitration Association's Commercial Arbitration Rules, then in
effect. Any arbitration proceedings, decision or award rendered hereunder and
the validity, effect and interpretation of this arbitration agreement shall be
governed by the Federal Arbitration Act of the ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ U.S.C. section
section 1 et seq. The location of any arbitration hereunder shall be in New
York, New York.
(b) The arbitration shall, if possible, be concluded not later
than six (6) months after the date that it is initiated. The arbitrator shall be
authorized only to interpret and apply the provisions of this Agreement or any
related agreements entered into under this Agreement and shall have no power to
modify or change any of the above in any manner. The arbitrator shall have no
authority to award punitive or multiple damages or any damages inconsistent with
this Agreement. The arbitrator shall, within thirty (30) days of the conclusion
of the hearing, unless such time is extended by agreement of the Parties, notify
the Parties in writing of his or her decision, stating his or her reasons for
such decision and separately listing his or her findings of fact and conclusions
of law. The decision of the arbitrator rendered in such a proceeding shall be
final and binding on the Parties. Judgment on the award may be entered upon it
in any court having jurisdiction.
(c) Nothing in this Agreement shall preclude, or be construed
to preclude, any Party from filing a petition or complaint with FERC with
respect to any arbitrable claim over which FERC has jurisdiction. In such case,
the other Party may request FERC to reject or to waive jurisdiction. If FERC
rejects or waives jurisdiction with respect to all or a portion of the claim,
the portion of the claim not so accepted by
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FERC shall be resolved through arbitration, as provided in this Agreement. To
the extent that FERC asserts or accepts jurisdiction over the claim, the
decision, finding of fact or order of FERC shall be final and binding, subject
to judicial review under the Federal Power Act, and any arbitration proceedings
that may have commenced with respect to the claim prior to the assertion or
acceptance of jurisdiction by FERC shall be terminated.
ARTICLE 15
REPRESENTATIONS
15.1 REPRESENTATIONS OF CENTRAL ▇▇▇▇▇▇. Central ▇▇▇▇▇▇ hereby
represents and warrants to Supplier as follows:
(a) INCORPORATION. Central ▇▇▇▇▇▇ is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York, and has all requisite corporate power and authority to own, lease and
operate its material assets and properties and to carry on its business as now
being conducted.
(b) AUTHORITY. Central ▇▇▇▇▇▇ has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Central ▇▇▇▇▇▇
of this Agreement and the consummation by Central ▇▇▇▇▇▇ of the transactions
contemplated hereunder have been duly and validly authorized by the Board of
Directors of Central ▇▇▇▇▇▇ or by a committee thereof to whom such authority has
been delegated and no other corporate proceedings on the part of Central ▇▇▇▇▇▇
are necessary to authorize this Agreement or the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Central ▇▇▇▇▇▇ and, assuming that this Agreement constitutes a valid and binding
agreement of Supplier, constitutes a valid and binding agreement of Central
▇▇▇▇▇▇, enforceable by Central ▇▇▇▇▇▇ in accordance with its terms.
(c) CONSENTS AND APPROVALS; NO VIOLATION.
(i) Neither the execution and delivery of this Agreement by
Central ▇▇▇▇▇▇ nor performance by Central ▇▇▇▇▇▇ of its obligations hereunder
will (A) conflict with or result in any breach of any provision of the
Certificate of Incorporation or By-laws of Central ▇▇▇▇▇▇, (B) result in a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation to which
Central ▇▇▇▇▇▇ or any of its subsidiaries is a party or by which any of their
respective assets may be bound or (C) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Central ▇▇▇▇▇▇, or any of its
assets, except in the case of clauses (B) and (C) for such failures to obtain a
necessary consent, defaults and violations which would not, individually or in
the aggregate, have a material adverse effect on the ability of Central ▇▇▇▇▇▇
to discharge its obligations under this Agreement (a "Central ▇▇▇▇▇▇ Material
Adverse Effect").
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(ii) No declaration, filing or registration with, or notice
to, or authorization, consent or approval of any governmental authority is
necessary for performance by Central ▇▇▇▇▇▇ of its obligations hereunder, other
than such declarations, filings, registrations, notices, authorizations,
consents or approvals which, if not obtained or made would not, individually or
in the aggregate, have a Central ▇▇▇▇▇▇ Material Adverse Effect.
15.2 REPRESENTATIONS OF SUPPLIER. Supplier hereby represents and
warrants to Central ▇▇▇▇▇▇ as follows:
(a) INCORPORATION. Supplier is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas, and has all requisite corporate power and authority to own, lease and
operate its material assets and properties and to carry on its business as now
being conducted.
(b) AUTHORITY. Supplier has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Supplier of
this Agreement and the consummation by Supplier of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of
Supplier or by a committee thereof to whom such authority has been delegated and
no other corporate proceedings on the part of Supplier are necessary to
authorize this Agreement or the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Supplier and, assuming that
this Agreement constitutes a valid and binding agreement of Central ▇▇▇▇▇▇,
constitutes a valid and binding agreement of Supplier, enforceable against
Supplier in accordance with its terms.
(c) CONSENTS AND APPROVALS.
(i) Neither the execution and delivery of this Agreement by
Supplier nor performance by Supplier of its obligations hereunder will (A)
conflict with or result in any breach of any provision of the Certificate of
Incorporation or By-laws of Supplier, (B) result in a default (or give rise to
any right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which Supplier or any of
its subsidiaries is a party or by which any of their respective assets may be
bound or (C) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Supplier, or any of its assets, except in the case of
clauses (B) and (C) for such failures to obtain a necessary consent, defaults
and violations which would not, individually or in the aggregate, have a
material adverse effect on the ability of Supplier to discharge its obligations
under this Agreement (a "Supplier Material Adverse Effect").
(ii) No declaration, filing or registration with, or notice
to, or authorization, consent or approval of any Governmental Authority is
necessary for performance by Supplier of its obligations hereunder, other than
such declarations,
15
filings, registrations, notices, authorizations, consents or approvals which, if
not obtained or made would not, individually or in the aggregate, have a
Supplier Material Adverse Effect.
ARTICLE 16
ASSIGNMENT/CHANGE IN CORPORATE IDENTITY
16.1 GENERALLY. Except as otherwise set forth in this Article 16,
neither this Agreement nor any of the rights, interests, or obligations
hereunder shall be assigned by either Party hereto, without the prior written
consent of the other Party, which consent shall not be unreasonably withheld or
delayed.
16.2 CENTRAL ▇▇▇▇▇▇'▇ ASSIGNMENT RIGHTS. Subject to Section 16.5 below,
upon ten (10) days prior written notice to Supplier, Central ▇▇▇▇▇▇ may assign
this Agreement, and Central ▇▇▇▇▇▇'▇ rights, interests and obligations
hereunder, to an Affiliate of Central ▇▇▇▇▇▇ that assumes Central ▇▇▇▇▇▇'▇
obligations to provide Services to the retail customers.
16.3 SUPPLIER'S ASSIGNMENT RIGHTS. Subject to Section 16.5 below,
Supplier may assign, transfer, pledge or otherwise dispose of its rights and
interests hereunder to a trustee, lending institution, or other person for the
purposes of financing or refinancing the Auctioned Assets, including upon or
pursuant to the exercise of remedies under such financing or refinancing, or by
way of assignments, transfers, conveyances of dispositions in lieu thereof;
provided, however, that no such assignment in accordance with this Section 16.3
shall relieve or in any way discharge Supplier from responsibility for the
performance of its duties and obligations under this Agreement. Central ▇▇▇▇▇▇
agrees to execute and deliver, at Supplier's expense, such documents as may be
reasonably necessary to accomplish any such assignment, transfer, conveyance,
pledge or disposition of rights hereunder for purposes of the financing or
refinancing of the Auctioned Assets, so long as Central ▇▇▇▇▇▇'▇ rights under
this Agreement are not thereby altered, amended, diminished or otherwise
impaired.
16.4 MERGERS OR CONSOLIDATIONS. Subject to Section 16.5 below, either
Party may assign this Agreement to a successor to all or substantially all of
the assets of such Party by way of merger, consolidation, sale or otherwise,
provided such successor assumes in writing and becomes liable for all of such
Party's duties and obligations hereunder.
16.5 LIMITATIONS.
(a) No assignment, transfer, conveyance, pledge or disposition
of rights, interests, duties or obligations under this Agreement by a Party
shall relieve that Party from liability and financial responsibility for the
performance thereof after any such transfer, assignment, conveyance, pledge or
disposition unless and until (i) the transferee or assignee shall agree in
writing to assume the obligations and duties of that Party under this Agreement
and to impose such obligations on subsequent permitted
16
transferees and assignees and (ii) the non-assigning Party has consented in
writing to such assumption and to a release of the assigning Party from such
liability, such consent not to be unreasonably withheld or delayed.
(b) If Supplier terminates its existence as a [corporate]
entity by merger, acquisition, sale, consolidation or otherwise, or if all or
substantially all of Supplier's assets are transferred to another person or
business entity without complying with this Article 16, Central ▇▇▇▇▇▇ shall
have the right, enforceable in a court of competent jurisdiction, to enjoin
Supplier's successor from using its assets in any manner that does not comply
with the requirements of this Agreement or that impedes Central ▇▇▇▇▇▇'▇ ability
to carry on its ongoing business operations.
16.6 SUCCESSORS. This Agreement and all of the provisions hereof are
binding upon, and inure to the benefit of, the Parties and their respective
successors and permitted assigns.
ARTICLE 17
NOTICES
Except as otherwise expressly set forth in this Agreement, all notices and
other communications hereunder shall be in writing and shall be deemed given (as
of the time of delivery or, in the case of a telecopied communication, of
confirmation) if delivered personally, telecopied (which is confirmed) or sent
by overnight courier (providing proof of delivery) to the Parties at the
following addresses (or at such other address for a Party as shall be specified
by like notice):
if to Central ▇▇▇▇▇▇, to:
Central ▇▇▇▇▇▇ Gas & Electric Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Brand, Senior Vice President
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
17
if to Supplier, to:
Dynegy Power Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Director - Project Acquisitions
with a copy to:
Dynegy Power Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
and a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
ARTICLE 18
AMENDMENTS
18.1 AMENDMENTS. Except as provided in Section 18.2, this Agreement
shall not be amended, modified, or supplemented unless mutually agreed to by the
Parties in writing. Except as provided in Section 18.2 below, the rates, terms
and conditions contained in this Agreement are not subject to change under
Sections 205 or 206 of the Federal Power Act absent the mutual written agreement
of the Parties. It is the intent of this Section 18.1 that, except as provided
in Section 18.2 below, the rates, terms and conditions of this Agreement shall
not be subject to change except by mutual written agreement by the Parties.
18.2 NYISO AGREEMENT MODIFICATIONS. If the services contemplated by the
NYISO Tariff, including without limitation the Services provided hereunder, are
changed materially from those in effect on July 31, 2000, the TPA Committee
shall cooperate to make conforming changes to this Agreement to fulfill the
purposes of this Agreement; provided that no such changes shall alter the
allocation between the Parties of the economic benefits of this Agreement. If
the TPA Committee fails to agree on such changes within thirty (30) days,
Central ▇▇▇▇▇▇ may unilaterally make conforming changes to this Agreement to
fulfill the purposes of this Agreement, and shall file such changes with the
FERC on behalf of both Parties; provided that nothing herein shall prejudice the
Supplier's rights to protest such change.
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ARTICLE 19
AUDITS
The Parties shall have the right, during normal business hours, to
audit each other's accounts and records pertaining to transactions under this
Agreement, upon twenty (20) days prior written notice, at the offices where such
accounts and records are maintained. Any such audit of a Party's accounts and
records will be at the expense of the auditing Party, shall not be made more
frequently than once in any twelve (12) month period, and no such audit may be
made with respect to accounts and records relating to periods more than
twenty-four (24) months prior to the date of the audit notice. The Party being
audited will be entitled to review the audit report and any supporting
materials. The Party conducting the audit shall maintain the confidentiality of
all information obtained during the audit in compliance with Section 13.2 of
this Agreement. To the extent that audited information includes confidential
information, the auditing Party shall designate an independent auditor at its
expense to perform such audit.
ARTICLE 20
MISCELLANEOUS PROVISIONS
20.1 WAIVER. Except as otherwise provided in this Agreement, any
failure of a Party to comply with any obligation, covenant, agreement, or
condition herein may be waived by the Party entitled to the benefits thereof
only by a written instrument signed by the Party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement, or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
20.2 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is
intended to confer upon any other person except the Parties any rights or
remedies hereunder or shall create any third party beneficiary rights in any
person. No provision of this Agreement shall create any rights in any such
persons in respect of any benefits that may be provided, directly or indirectly,
under any employee benefit plan or arrangement except as expressly provided for
thereunder.
20.3 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York (regardless of the laws
that might otherwise govern under applicable principles of conflicts of law).
20.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20.5 INTERPRETATION. When a reference is made in this Agreement to an
article, section, schedule or exhibit, such reference shall be to an article or
section of, or schedule or exhibit to, this Agreement unless otherwise
indicated. The table of contents
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and headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without limitation"
or equivalent words. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Unless otherwise expressly stated herein, the word "day"
shall mean any calendar day including weekends and holidays. Any agreement,
instrument, statute, regulation, rule or order defined or referred to herein or
in any agreement or instrument that is referred to herein means such agreement,
instrument, statute, tariff, regulation, rule or order as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes, regulations,
rules or orders) by succession of comparable successor statutes, regulations,
rules or orders and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its permitted
successors and assigns. Each Party acknowledges that it has been represented by
counsel in connection with the review and execution of this Agreement, and,
accordingly, there shall be no presumption that this Agreement or any provision
hereof be construed against the Party that drafted this Agreement.
20.6 JURISDICTION AND ENFORCEMENT. Each of the Parties irrevocably
submits to the exclusive jurisdiction of (i) the Supreme Court of the State of
New York, Dutchess County and (ii) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the Parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or, if such suit, action or proceeding may not be brought in such court
for jurisdictional reasons, in the Supreme Court of the State of New York,
Dutchess County. Each of the Parties further agrees that service of process,
summons, notice or document by hand delivery or U.S. registered mail at the
address specified for such Party in Article 17 (or such other address specified
by such Party from time to time pursuant to Article 17) shall be effective
service of process for any action, suit or proceeding brought against such Party
in any such court. Each of the Parties irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in (i) the Supreme
Court of the State of New York, Dutchess County and (ii) the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
20.7 ENTIRE AGREEMENT. This Agreement, the APSAs, the Confidentiality
Agreement and the Ancillary Agreements including the exhibits, schedules,
documents, certificates and instruments referred to herein or therein and other
contracts, agreements and instruments contemplated hereby or thereby, embody the
entire agreement and understanding of the Parties in respect of the transactions
contemplated
20
by this Agreement. There are no restrictions, promises, representations,
warranties, covenants or undertakings other than those expressly set forth or
referred to herein or therein. This Agreement, the APSAs and the Ancillary
Agreements supersede all prior agreements and understandings between the Parties
with respect to the transactions contemplated by this Agreement other than the
Confidentiality Agreement.
20.8 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
20.9 FURTHER ASSURANCES. The Parties hereto agree to execute and
deliver promptly, at the expense of the Party requesting such action, any and
all other and further instruments, documents and information which may be
reasonably requested in order to effectuate the transactions contemplated
hereby. Each Party agrees to cooperate with, assist and accommodate all
reasonable requests made by the other Party in respect of any regulatory
approval necessary for, or any regulatory proceeding relating to, the execution,
delivery or performance of this Agreement. Each Party further agrees to comply
in all material respects with all laws of governmental authorities relating to
this Agreement and the consummation of the transactions contemplated hereby.
20.10 INDEPENDENT CONTRACTOR STATUS. Nothing in this Agreement shall be
construed as creating any relationship between Central ▇▇▇▇▇▇ and Supplier other
than that of independent contractors.
20.11 CONFLICTS. In the event of any conflict or inconsistency between
the terms of this Agreement and the terms of the APSAs, the terms of this
Agreement shall prevail.
21
IN WITNESS WHEREOF, Central ▇▇▇▇▇▇ and Supplier have caused this
Transition Power Agreement to be signed by their respective duly authorized
officers as of the date first above written.
CENTRAL ▇▇▇▇▇▇ GAS & ELECTRIC
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. BRAND
-----------------------------
▇▇▇▇▇▇ ▇. Brand
Senior Vice President
DYNEGY POWER MARKETING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney-in-Fact
SCHEDULE 1
DEFINITIONS
PART A. Capitalized terms not defined in the body of the Agreement shall
have the meaning set forth in Part A of this Schedule 1. (Part B of
this Schedule 1 sets forth capitalized terms defined within the
Agreement.)
1. "AFFILIATE" has the meaning set forth in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934.
2. "ANCILLARY AGREEMENTS" has the meaning set forth in the APSAs.
3. "ANCILLARY SERVICES" means the services listed in Schedule 4.1.
4. "APSAS" means the Danskammer APSA and the Asset Purchase and Sale
Agreement for the Roseton Generating Facility and Related Facilities.
5. "AUCTIONED ASSETS" has the meaning set forth in the Danskammer APSA.
6. "CENTRAL ▇▇▇▇▇▇" has the meaning set forth in the preamble of this
Agreement and shall include its permitted successors or assigns.
7. "CLOSING" has the meaning set forth in the Danskammer APSA.
8. "CONFIDENTIALITY AGREEMENT" has the meaning set forth in the
Danskammer APSA.
9. "DAY AHEAD MARKET" has the meaning set forth in the NYISO OATT.
10. "FERC" means the Federal Energy Regulatory Commission or its
successors.
11. "FIRST CONTRACT YEAR" means the period from the Effective Date
through and including April 30, 2002.
12. "MONTH" means a calendar month.
13. "NETWORK CUSTOMER" has the meaning set forth in the NYISO OATT.
14. "NETWORK LOAD" has the meaning set forth in the NYISO OATT.
15. "NYISO" means the New York Independent System Operator and any
successor thereto including any regional transmission organization,
independent system operator, transco, or any other independent system
administrator that possesses operational control or planning control
over Central ▇▇▇▇▇▇'▇ transmission system.
16. "NYISO CONTROL AREA" means the interconnected transmission systems
in New York State subject to the NYISO OATT.
17. "NYISO OATT" means the Open Access Transmission Tariff of the NYISO
on file with the FERC.
18. "NYISO TRANSMISSION SERVICE CHARGE" means a charge designed to
recover the embedded cost of a transmission provider's transmission
system at the point of delivery for the transaction.
19. "NYSRC" means the New York State Reliability Counsel or its
successor.
20. "SUPPLIER" has the meaning set forth in the preamble of this
Agreement and shall include its permitted successors and assigns.
21. "TRANSMISSION USAGE CHARGE" has the meaning set forth in the NYISO
OATT.
22. "WEEK" means a calendar week beginning Sunday through the end of
Saturday.
2
PART B. The following terms have the meaning specified in the section of
this Agreement set forth opposite to such term:
TERM AGREEMENT REFERENCE
---- -------------------
Additional Energy Section 5.2
Additional Energy Price Section 6.1(c)
Agreement Preamble
Alternative Services Section 7.1
Ancillary Services Payment Section 6.1(b)
Capacity Payment Section 6.1(a)
Central ▇▇▇▇▇▇ Preamble
Central ▇▇▇▇▇▇ Material Adverse Effect Section 15.1(c)(i)
Danskammer APSA First Recital
Delivery Point Section 5.4
Effective Date Section 2.1
Energy Payment Section 6.1(c)
Event of Default Section 10.1
Fixed Energy Section 5.1
Fixed Energy Price Section 6.1(c)
Force Majeure Section 8.2
ICAP Plan Section 3.2(a)
ICAP Section 3.1(a)
Market Price Section 4.1
Party or Parties Preamble
Price Section 6.1(a)
Regulation Amount Section 6.1(b)
Services Section 7.1
Supplier Preamble
Supplier Material Adverse Effect Section 15.2(c)(i)
TPA Committee Article 11
3
SCHEDULE 3.1(A)
Installed Capacity and Price
-----------------------------------------------------------
YEAR 1:
-----------------------------------------------------------
MONTH ICAP (000 PRICE ($/KW-MO)
KW)
-----------------------------------------------------------
2001 Mar* 700 $2.50
Apr 700 $2.50
May 700 $2.50
June 700 $2.50
July 700 $2.50
Aug 700 $2.50
Sep 700 $2.50
Oct 700 $2.50
Nov 700 $2.50
Dec 700 $2.50
2002 Jan 700 $2.50
Feb 700 $2.50
Mar 700 $2.50
Apr 700 $2.50
YEAR 2: May 400 $2.70
June 400 $2.70
July 400 $2.70
Aug 400 $2.70
Sep 400 $2.70
Oct 400 $2.70
Nov 400 $2.70
Dec 400 $2.70
2003 Jan 400 $2.70
Feb 400 $2.70
Mar 400 $2.70
Apr 400 $2.70
YEAR 3: May 200 $3.00
June 200 $3.00
July 200 $3.00
Aug 200 $3.00
Sep 200 $3.00
Oct 200 $3.00
YEAR 4: Nov 200 $3.00
Dec 200 $3.00
2004 Jan 200 $3.00
Feb 200 $3.00
Mar 200 $3.00
Apr 200 $3.00
May 200 $3.00
June 200 $3.00
July 200 $3.00
Aug 200 $3.00
Sep 200 $3.00
Oct 200 $3.00
-----------------------------------------------------------
* Also applicable to any Month prior to March 2001 if the closing occurs
prior to March 2001.
4
SCHEDULE 3.2(A)
SUPPLIER'S INSTALLED CAPACITY PLAN FOR THE FIRST CONTRACT YEAR
Supplier plans to supply Central ▇▇▇▇▇▇'▇ requirements under this Agreement from
the Danskammer and Roseton facilities. When the facilities are unavailable or
unable to meet Central ▇▇▇▇▇▇'▇ requirements, Supplier will provide the required
services by either procuring them from the New York power pool or by providing
them directly from Dynegy Marketing and Trade's portfolio of energy and energy
related services.
5
SCHEDULE 4.1
ANCILLARY SERVICES
-------------------------------------------------
AMOUNT $/MW
(MW PER PER HOUR
HOUR)
-------------------------------------------------
2001*: 10 Min Spinning Res 25 4.90
30 Min Spinning Res 25 4.90
Regulation 25 4.90
2002: 10 Min Spinning Res 25 4.90
30 Min Spinning Res 25 4.90
Regulation 25 4.90
2003: 10 Min Spinning Res 25 4.90
30 Min Spinning Res 25 4.90
Regulation 25 4.90
2004: 10 Min Spinning Res 25 4.90
30 Min Spinning Res 25 4.90
Regulation 25 4.90
-------------------------------------------------
* Also applicable to year 2000 if closing occurs before year 2001.
6
SCHEDULE 5.1(A)
FIXED ENERGY ADDITIONAL ENERGY
YEAR 1: YEAR 1: MAXIMUM
MONTH DEMAND LOAD PRICE MONTH DEMAND LOAD PRICE
(MW) FACTOR ($/MWH) (MW) FACTOR ($/MWH)
2001 Mar* 250 100% $28.00 2001 Mar* 50 66% $35.00
Apr 250 100% $28.00 Apr 50 66% $35.00
May 250 100% $28.00 May 50 66% $35.00
June 250 100% $28.00 June 250 60% $35.00
July 250 100% $28.00 July 260 60% $35.00
Aug 250 100% $28.00 Aug 260 60% $35.00
Sep 250 100% $28.00 Sep 150 66% $35.00
Oct 250 100% $28.00 Oct 50 66% $35.00
Nov 250 100% $28.00 Nov 100 66% $35.00
Dec 250 100% $28.00 Dec 150 66% $35.00
2002 Jan 250 100% $28.00 2002 Jan 150 66% $35.00
Feb 250 100% $28.00 Feb 100 66% $35.00
Mar 250 100% $28.00 Mar 50 66% $35.00
Apr 250 100% $28.00 Apr 50 66% $35.00
YEAR 2: May 150 100% $28.00 YEAR 2: May 25 66% $35.00
June 150 100% $28.00 June 175 60% $35.00
July 150 100% $28.00 July 200 60% $35.00
Aug 150 100% $28.00 Aug 200 60% $35.00
Sep 150 100% $28.00 Sep 75 66% $35.00
Oct 150 100% $28.00 Oct 25 66% $35.00
Nov 150 100% $28.00 Nov 50 66% $35.00
Dec 150 100% $28.00 Dec 75 66% $35.00
2003 Jan 150 100% $28.00 2003 Jan 75 66% $35.00
Feb 150 100% $28.00 Feb 50 66% $35.00
Mar 150 100% $28.00 Mar 25 66% $35.00
Apr 150 100% $28.00 Apr 25 66% $35.00
YEAR 3: May 100 100% $28.00 YEAR 3: May 25 66% $40.00
June 100 100% $28.00 June 65 60% $40.00
July 100 100% $28.00 July 75 60% $40.00
Aug 100 100% $28.00 Aug 75 60% $40.00
Sep 100 100% $28.00 Sep 40 66% $40.00
Oct 100 100% $28.00 Oct 25 66% $40.00
YEAR 4: Nov 100 100% $28.00 YEAR 4: Nov 50 66% $40.00
Dec 100 100% $28.00 Dec 75 66% $40.00
2004 Jan 100 100% $28.00 2004 Jan 75 66% $40.00
Feb 100 100% $28.00 Feb 50 66% $40.00
Mar 100 100% $28.00 Mar 25 66% $40.00
Apr 100 100% $28.00 Apr 25 66% $40.00
May 100 100% $28.00 May 25 66% $40.00
June 100 100% $28.00 June 65 60% $40.00
July 100 100% $28.00 July 75 60% $40.00
Aug 100 100% $28.00 Aug 75 60% $40.00
Sep 100 100% $28.00 Sep 40 66% $40.00
Oct 100 100% $28.00 Oct 25 66% $40.00
-----------------------------------------------------------------------------------------------
* Also applicable to any Month prior to March 2001 if the closing occurs
prior to March 2001.
7