Exhibit 10.6
FUEL SUPPLY AND MANAGEMENT AGREEMENT
between
▇▇▇▇▇▇ ENERGY LLC
▇▇▇▇▇▇ ENERGY II, LLC
ELWOOD ENERGY III, LLC
and
CINERGY MARKETING & TRADING, LLC
dated as of May 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................................... 2
ARTICLE II TERM AND DESIGNATED REPRESENTATIVES................................................. 6
2.1 Term................................................................................ 6
2.2 Designated Representatives.......................................................... 7
ARTICLE III RESPONSIBILITIES OF FUEL MANAGER................................................... 7
3.1 Supply and Delivery of Gas.......................................................... 7
3.2 Contract Management and Administration.............................................. 7
3.3 Quality of Gas...................................................................... 8
3.4 Compliance.......................................................................... 8
3.5 Metering............................................................................ 8
3.6 Sale of Power to ▇▇▇▇▇▇............................................................. 8
ARTICLE IV RESPONSIBILITIES OF ▇▇▇▇▇▇.......................................................... 9
4.1 On-Site Gas Handling Equipment...................................................... 9
4.2 Notice of Facility Operations....................................................... 9
4.3 Loaned Gas Balance.................................................................. 9
4.4 Operation of the Facility........................................................... 9
4.5 Status of T&B Agreement............................................................. 10
ARTICLE V PAYMENTS RELATED TO GAS.............................................................. 10
5.1 Payments by ▇▇▇▇▇▇.................................................................. 10
5.2 Payments by Fuel Manager............................................................ 11
ARTICLE VI OFFSET RIGHTS....................................................................... 12
6.1 Offset Rights....................................................................... 12
ARTICLE VII ▇▇▇▇▇▇▇▇ AND PAYMENT............................................................... 13
7.1 Information from Nicor Gas.......................................................... 13
7.2 Invoices by Fuel Manager............................................................ 13
7.3 Records............................................................................. 13
7.4 Interest............................................................................ 13
7.5 Billing Disputes.................................................................... 13
7.6 Days/Business Days.................................................................. 14
ARTICLE VIII AGENCY............................................................................ 14
8.1 Grant of Agency..................................................................... 14
8.2 Limitations on Agency............................................................... 15
8.3 No Transfer......................................................................... 15
8.4 Obligations of Agent................................................................ 15
8.5 Notice of Agency.................................................................... 15
ARTICLE IX ADDITIONAL COVENANTS................................................................ 15
9.1 Assignment.......................................................................... 15
9.2 Taxes on Gas........................................................................ 17
9.3 Fuel Manager Guaranty............................................................... 18
9.4 ▇▇▇▇▇▇ Guaranties................................................................... 18
ARTICLE X DEFAULT AND TERMINATION.............................................................. 18
10.1 Termination of Agency............................................................... 18
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10.2 Termination upon Enforcement Action................................................. 18
10.3 Fuel Manager Default................................................................ 18
10.4 ▇▇▇▇▇▇ Default...................................................................... 20
10.5 Release of Obligations.............................................................. 20
ARTICLE XI INDEMNITY........................................................................... 21
11.1 Fuel Manager Indemnity.............................................................. 21
11.2 ▇▇▇▇▇▇ Indemnity.................................................................... 21
11.3 Survival............................................................................ 22
ARTICLE XII LIMITATION OF LIABILITY............................................................ 22
12.1 Limitation of Liability............................................................. 22
ARTICLE XIII REPRESENTATIONS AND WARRANTIES.................................................... 23
13.1 By Fuel Manager..................................................................... 23
13.2 By ▇▇▇▇▇▇........................................................................... 23
ARTICLE XIV FORCE MAJEURE...................................................................... 24
14.1 Force Majeure Generally............................................................. 24
14.2 Definition of Force Majeure......................................................... 25
14.3 Exclusions from Force Majeure....................................................... 26
14.4 Extended Force Majeure.............................................................. 26
ARTICLE XV MISCELLANEOUS....................................................................... 26
15.1 Notices............................................................................. 26
15.2 Governing Law....................................................................... 27
15.3 Copies.............................................................................. 28
15.4 Non Waiver.......................................................................... 28
15.5 Headings............................................................................ 28
15.6 Binding Effect...................................................................... 28
15.7 Severability; Merger................................................................ 28
15.8 Confidentiality..................................................................... 28
15.9 Disagreements....................................................................... 29
15.10 Survival............................................................................ 29
15.11 Counterparts........................................................................ 29
Exhibits:
Exhibit A Communications Protocol
Exhibit B Fuel Manager Guaranty
Exhibit C-1 ▇▇▇▇▇▇ Guaranty (Dominion Energy, Inc.)
Exhibit C-2 ▇▇▇▇▇▇ Guaranty (Peoples Energy Corporation)
ii
FUEL SUPPLY AND MANAGEMENT AGREEMENT
This AGREEMENT is made as of May 1, 2001 between ▇▇▇▇▇▇ ENERGY LLC, ELWOOD
ENERGY II, LLC and ▇▇▇▇▇▇ ENERGY III, LLC, all of which are Delaware limited
liability companies, (collectively "Elwood"), and CINERGY MARKETING & TRADING,
LLC, a Delaware limited liability company ("Cinergy" or "Fuel Manager"). Elwood
and Cinergy are sometimes referred to herein individually as a "party" or
collectively as the "parties."
RECITALS
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▇. ▇▇▇▇▇▇ Energy LLC is the developer of, and owns and operates, a
nominally 600 MW gas-fired power generation facility in Elwood, Illinois.
▇▇▇▇▇▇ Energy II, LLC and ▇▇▇▇▇▇ Energy III, LLC are in the process of
developing and constructing additional generation facilities on the existing
site of ▇▇▇▇▇▇ Energy LLC. Upon the completion of this construction in the
spring of 2001, ▇▇▇▇▇▇ Energy II, LLC and ▇▇▇▇▇▇ Energy III, LLC will own and
operate 300 MW and 450 MW of gas-fired power generation, respectively.
Collectively, Elwood will own and operate 1350 MW of gas-fired power generation
in Elwood, Illinois (the "Facility"). The Facility is comprised of nine (9) GE
7FA simple cycle combustion turbines of which Units 1 through 4 are owned and
operated by ▇▇▇▇▇▇ Energy LLC, Units 5 and 6 are owned and operated by ▇▇▇▇▇▇
Energy II, LLC and Units 7 through 9 are owned and operated by ▇▇▇▇▇▇ Energy
III, LLC.
▇. ▇▇▇▇▇▇ has agreed to sell during the Term of this Agreement, the
capacity, energy and ancillary services from Units 1 through 4 and ▇▇▇▇ ▇ to
Exelon Generation Company, LLC and from Units 5 through 8 to Aquila Energy
Marketing Corporation and Utilicorp United, Inc.
C. In connection with securing Gas for the Facility, Elwood has entered
into a Gas Transportation and Balancing Agreement dated as of May 1, 2001, with
Northern Illinois Gas Company d/b/a Nicor Gas Company ("Nicor Gas" or "Nicor")
(the "Nicor T&B Agreement") under which Nicor Gas will provide transportation,
balancing and storage services for quantities of Gas (as defined herein)
delivered to Nicor Gas or The Peoples Gas Light and Coke Company ("Peoples Gas")
for the account of ▇▇▇▇▇▇ via the interstate pipeline facilities of Northern
Border Pipeline Company ("NBPL") , Alliance Pipeline Company ("APL") and Natural
Gas Pipeline Company of America ("NGPL") and will redeliver such quantities to
▇▇▇▇▇▇ at the Facility or into storage.
D. Subject to the terms and conditions of this Agreement, Fuel Manager
has agreed to serve as Fuel Manager by taking on the exclusive rights and
obligation to procure, schedule and deliver to Nicor and/or Peoples Gas volumes
sufficient to meet Elwood's requirements for Gas at the Facility, including the
management and administration of the Nicor T&B Agreement and any other
agreements of ▇▇▇▇▇▇ specified herein.
1
ARTICLE I
DEFINITIONS
Whenever capitalized terms appear in this Agreement, they shall have the
meanings set forth below:
"Affiliate" when used with respect to any Person, means any Person
controlling, controlled by or under common control with such Person. For the
purposes of this definition, the term "controlling" (and, with correlative
meanings, the terms "controlled by" and "under common control with") shall mean
the possession of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or agency or otherwise.
"Agent" has the meaning set forth in Section 8.1(a).
"APL" means Alliance Pipeline Company
"Btu" means British Thermal Unit, as calculated in the NBPL FERC Gas
Tariff.
"Business Day" means any day that is not a Saturday, Sunday or any Federal
Reserve Bank holiday.
"Central Clock Time" means the prevailing time (i.e., Standard Time or
Daylight Savings Time) on any given day in the Central Time zone.
"Cinergy's Forecast Burn" shall be the estimate of Facility Consumption of
Gas for the next Gas Day given by Cinergy to Nicor in accordance with Exhibit A,
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which shall be deemed to be the Forecast Burn described in the Nicor T&B
Agreement except on Special Days as provided in Exhibit A.
---------
"Communications Protocol" has the meaning set forth in Section 4.2.
"Confidential Information" has the meaning set forth in Section 15.8.
"Creditor" has the meaning set forth in Exhibit B.
---------
"Critical Day" has the meaning ascribed to it in the Nicor T&B Agreement.
"Debtor" has the meaning set forth in Exhibit B.
---------
"Default Rate" means a rate of interest equal to the lower of (i) the then
effective prime rate of interest published under "Money Rate" by the Wall Street
Journal, plus two per cent (2%) per annum or (ii) the maximum applicable lawful
interest rate.
"Deferred Special Day Volumes" has the meaning set forth in Section 5.1(c).
2
"Deferred Special Day Volume Balance" means the quantity of Gas deferred
for storage under Section 5.1(c) at any point in time
"Delivery Point" means the facilities of Nicor that measure the Gas at the
Facility.
"Dispatch Schedule" means the hour-by-hour, Unit-by-Unit energy
requirements submitted to ▇▇▇▇▇▇ by Elwood's power customers by 9:00 a.m.
Central Clock Time on a calendar day prior to the calendar day on which energy
is to be delivered.
"Dth" means the quantity of heat energy that is one (1) MMBtu. "Dth/d"
shall refer to the number of Dth per day.
"Effective Degree Day" or "EDD" has the meaning associated to it in the
Nicor T&B Agreement.
"▇▇▇▇▇▇ Event of Default" has the meaning set forth in Section 10.4(a).
"▇▇▇▇▇▇ Forecast Burn" shall mean the estimate of Facility Consumption of
Gas for the next Gas Day given by ▇▇▇▇▇▇ to Cinergy in accordance with Exhibit
-------
A.
-
"▇▇▇▇▇▇ Forecast Variance" shall be the absolute daily difference between
the ▇▇▇▇▇▇ Forecast Burn and the actual consumption of the Facility.
"▇▇▇▇▇▇ Guarantor" means the Guarantor under an ▇▇▇▇▇▇ Guaranty.
"▇▇▇▇▇▇ Guaranty" and "▇▇▇▇▇▇ Guaranties" have the meanings set forth in
Section 9.4.
"Facility" has the meaning set forth in Recital A.
"Facility Consumption" means the actual amount of Gas consumed by the
Facility during a Gas Day, except as otherwise provided in Section 5.1(c).
"FERC" means the Federal Energy Regulatory Commission.
"FERC Gas Tariff" means the FERC-approved tariff, as it may be revised from
time-to-time, of the interstate pipeline on which Gas is being transported.
"Force Majeure" has the meaning set forth in Section 14.2(a) as to ▇▇▇▇▇▇
and has the meaning set forth in Section 14.2(b) as to Fuel Manager.
"Forfeited Gas" has the meaning set forth in Section 5.1(a).
"Fuel Manager Event of Default" has the meaning set forth in Section
10.3(a).
"Fuel Manager Guarantor" means the Guarantor under the Fuel Manager
Guaranty.
3
"Fuel Manager Guaranty" has the meaning set forth in Section 9.3.
"Fuel Manager T&B Charges" has the meaning set forth in Section 5.2.
"Fuel Specifications" means the specifications for Gas set forth in the
FERC approved tariff of the interstate pipeline on which the Gas is being
transported.
"Gas" means natural gas that conforms to the Fuel Specifications.
"Gas Daily Average Price" means the price equal to the "Midpoint" price per
MMBtu published in Gas Daily in the table entitled Daily Price Survey, under the
---------
entry for "Citygates, Chicago LDCs, large e-us" for the date of consumption at
the Facility (or the date on which the Gas is deemed to be sold to ▇▇▇▇▇▇ for
storage under Section 4.3). The Gas Daily Average Price for any day for which
the "Midpoint" price is not published shall be equal to the next published
"Midpoint" price for a subsequent day first published after such day of non-
publication.
"Gas Day" has the meaning ascribed to it in Nicor Gas' Schedule of Rates.
"Gas Inventory" means the quantity of Gas stored at a particular point in
time under the Nicor T&B Agreement.
"Guarantor" has the meaning, with respect to any Guaranty, set forth in
Exhibit B, Exhibit C-1 or Exhibit C-2, as applicable.
--------- ----------- -----------
"Guaranty" means Exhibit B, Exhibit C-1 or Exhibit C-2.
--------- ----------- -----------
"kWh" means kiloWatthour.
"Lenders" has the meaning set forth in Section 9.1.
"Loaned Gas Balance" has the meaning set forth in Section 4.3.
"Maximum Daily Quantity" or "MDQ" means the maximum quantity of Gas that
Fuel Manager shall be obligated to sell and deliver to ▇▇▇▇▇▇ for consumption at
the Facility on any Gas Day. The MDQ during the Summer Months is 362,400
MMBtu/d; of which 241,600 MMBtu/d is the Firm MDQ and 120,800 MMBtu/d is the
Non-Firm MDQ. The Firm MDQ during the Non-Summer Months is the lesser of
213,300 MMBtu/d or 88,875 MMBtu/d plus Fuel Manager's nominated volumes to flow
on any Gas Day (Next Day Flowing Gas per Exhibit A) plus any Requested
Authorized Use volumes. The Non-Firm MDQ on a Non-Summer Gas Day shall be Fuel
Manager's obligation, using reasonable efforts, to sell and deliver remaining
quantities above the Firm MDQ up to 426,600 MMBtu/d in total.
4
"Maximum Hourly Quantity" or "MHQ" means the maximum quantity of Gas that
▇▇▇▇▇▇ may consume at the Facility during any hour. The MHQ during the Summer
Months is 15,100 MMBtu/hour and the MHQ during the Non-Summer Months is 17,775
MMBtu/hour.
"MMBtu" means One Million British Thermal Units.
"MMDth" means One Million Dth.
"NBPL" means Northern Border Pipeline Company.
"NGPL" means Natural Gas Pipeline Company of America.
"Nicor Gas" or "Nicor" has the meaning set forth in Recital C.
"Nicor Gas Outage Condition" has the meaning set forth in Section 14.2(b).
"Nicor Gas' Schedule of Rates" has the meaning set forth in the Nicor T&B
Agreement.
"Nicor T&B Agreement" has the meaning set forth in Recital C.
"Non-Special Day" means any Gas Day that is not a Special Day.
"Non-Summer Months" means the months of October, November, December,
January, February, March, April and May.
"Peoples Gas" has the meaning set forth in Recital C.
"Peoples Gas T&B Agreement" means companion transportation and balancing
agreement between Nicor Gas and Peoples Gas which is used to support Nicor
services on behalf of ▇▇▇▇▇▇ herein.
"Person" means an individual or a corporation, partnership, joint venture,
limited liability company, association, joint stock company, trust,
unincorporated organization, entity, government or other political subdivision.
"Pipeline Outage Condition" has the meaning set forth in Section 14.2(b).
"Prudent Management Practices" means acts or practices undertaken by a
prudent fuel manager assigned with the task of purchasing and managing the
supply of gas and administering balancing and transportation arrangements to
meet the prescribed daily firm obligations of a competitive non-utility power
generating facility, which acts and practices in the case of Fuel Manager (or
Agent as the case may be) shall be undertaken in a manner consistent with this
Agreement, other contracts and agreements necessary for the operation of the
Facility, and the laws, rules and regulations which may apply to the ownership
and operation of the Facility.
5
"Purchase Agreement" means any contract, purchase order or other agreement
(other than the Nicor T&B Agreement) for the purchase, transportation or storage
of Gas for use or potential use, by ▇▇▇▇▇▇ at the Facility.
"Receipt Point" means each point of interconnection between the system of
Nicor or Peoples Gas and the system of NBPL, APL or NGPL.
"Representatives" has the meaning set forth in Section 15.8.
"Revised Dispatch Schedule" means the hour-by-hour, Unit-by-Unit energy
requirements submitted to ▇▇▇▇▇▇ by Elwood's power customers after 9:00 a.m.
Central Clock Time on a calendar day one (1) hour prior to delivery of energy
during Summer Months and three to five (3-5) hours prior to delivery of energy
during Non-Summer Months.
"Sellers" means, as applicable, suppliers of Gas and suppliers of
transportation and storage of Gas.
"Short Notice" has the meaning set forth in Section 4.2.
"Special Day" shall mean a Gas Day on which, for the entire Gas Day or any
part thereof, (a) Nicor had declared a Critical Day under the Nicor T&B
Agreement, (b) Nicor has forecasted that the Gas Day will be an Effective Degree
Day greater than or equal to 60 EDD, and an hourly delivery limitation has been
imposed by Nicor under the Nicor T&B Agreement, (c) storage withdrawal or
transportation service has been curtailed by Nicor under the Nicor T&B Agreement
or (d) Nicor has declared a force majeure under the Nicor T&B Agreement.
"Summer Months" means the months of June, July, August and September.
"Taxes" has the meaning set forth in Section 9.2.
"Term" has the meaning set forth in Section 2.1.
"Unit" means the nine (9) GE 7FA simple cycle combustion turbines
described in Recital A, any one of which is a "Unit."
"Updated Dispatch Schedule" has the meaning set forth in Exhibit A,
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Communications Protocol.
ARTICLE II
TERM AND DESIGNATED REPRESENTATIVES
2.1 Term.
The term of this Agreement (the "Term") shall begin as of May 1, 2001 and shall
expire on April 30, 2002, unless terminated in accordance with Article 10 or
extended by agreement of the parties hereto.
6
2.2 Designated Representatives.
Any communications between the parties regarding authorizations by ▇▇▇▇▇▇
required under this Agreement for actions to be taken by Fuel Manager shall be
made only by a designated representative of ▇▇▇▇▇▇ in accordance with the
Communications Protocol contained in Exhibit A to this Agreement.
---------
ARTICLE III
RESPONSIBILITIES OF FUEL MANAGER
3.1 Supply and Delivery of Gas.
(a) Subject to Section 10.3(c) of this Agreement, during the Term,
Fuel Manager, at its own cost and expense (except as set forth in Section
5.1), shall supply and arrange for the delivery of Gas in accordance with
Prudent Management Practices (as defined herein) to the Receipt Points for
redelivery by Nicor or its designee to the Facility, on a firm basis up to
the Firm MDQ and for the purchase price set forth in Section 5.1 hereof,
Elwood's full Gas requirements for consumption by the Facility, subject to
the limitations of the Nicor T&B Agreement; provided, however, that on a
-----------------
Special Day Fuel Manager will be obligated to deliver Gas only if Fuel
Manager and ▇▇▇▇▇▇ agree on a quantity (which may include an MHQ) and price
for Gas to be delivered to the Receipt Points. Except as provided in
Section 10.3(c), Fuel Manager shall be the sole supplier of Gas to the
Facility during the term of this Agreement. If ▇▇▇▇▇▇ requests Gas in
excess of the Firm MDQ, Fuel Manager's obligation to supply and arrange for
the delivery of such Non-Firm Gas shall be on a reasonable efforts basis
only for up to an additional daily quantity not to exceed the applicable
Non-Firm MDQ, without any penalty for Fuel Manager's failure to do so.
(b) Fuel Manager agrees that, during the term of the Nicor T&B
Agreement, all Gas scheduled for consumption by the Facility, and required
to be sold and delivered by Fuel Manager, must be (i) nominated on the
appropriate interstate pipeline's nomination system and to the Nicor Gas
Exchange nomination system, or such other electronic nomination system as
Nicor may implement from time-to-time, on a timely basis and within the
defined parameters of the Nicor T&B Agreement, (ii) met from the storage
capacity available by the Nicor T&B Agreement and Cinergy's management of
inventory therein, or (iii) purchased from Nicor as Requested Authorized
Use volumes or Unauthorized Use volumes, as applicable, under the Nicor T&B
Agreement.
(c) In discharging its responsibilities, Fuel Manager shall be
responsible for managing fuel supply volumes within the defined parameters
of the Nicor T&B Agreement and for the charges assessed by Nicor for
failure to do so, which are limited to those charges for which Fuel Manager
is responsible under Section 5.2.
3.2 Contract Management and Administration.
(a) Fuel Manager shall be responsible, using Prudent Management
Practices, twenty-four (24) hours a day, seven (7) days a week during the
Term, for all
7
communications, nominations, balancing and administration under the Nicor
T&B Agreement. In the event that Cinergy's performance under this Agreement
results in written notice from Nicor Gas that service may or will be
suspended under the Nicor T&B Agreement, ▇▇▇▇▇▇ reserves the right to
immediately suspend or terminate this Agreement if Fuel Manager does not
cure the conditions that caused such notice to issue in time to prevent any
such suspension or termination, and, in the event of termination, the
provisions of Section 10.5 shall apply.
(b) Fuel Manager will also report to ▇▇▇▇▇▇ on a weekly and monthly
basis relevant information regarding Fuel Manager's performance under this
Agreement, including without limitation the information set forth in
Section 3 of Exhibit A to this Agreement, in a format that can be stored
---------
and analyzed electronically in a manner and format acceptable to ▇▇▇▇▇▇,
such as in a spreadsheet.
3.3 Quality of Gas.
Fuel Manager covenants that all Gas provided hereunder by Fuel Manager shall be
merchantable natural gas, free of liens and encumbrances of any kind, and shall
comply with the Fuel Specifications.
3.4 Compliance.
Fuel Manager shall comply with all applicable state, federal and local laws,
rules, orders, ordinances and regulations, shall give all required notices and
procure and shall maintain all applicable governmental permits and licenses
necessary for its performance of this Agreement, and shall pay all charges and
fees in connection with obtaining the permits and licenses.
3.5 Metering.
For the purpose of measuring quantities of Gas delivered to the Facility, Gas
shall be metered and measured by Nicor Gas at its meters located at the
"Delivery Point" as defined in the Nicor T&B Agreement, and such meters shall be
tested and an adjustment to such measurements shall be made in accordance with
the specifications and standards set forth in Nicor Gas' Schedule of Rates. In
the event any such meter is not operating or is out of service, Gas delivered to
the Facility shall be measured for the purposes of this Agreement by using
reasonable proxies, such as the ▇▇▇▇▇▇ turbine meters for each Unit or the
electric revenue meters with a heat rate conversion factor of 10,900 Btu/kWh
(HHV) at 85 and 60% humidity, subject to adjustment for actual ambient
conditions and actual load factors of each Unit. Any such proxy must provide
the best available data in accordance with the mutual agreement of the parties.
3.6 Sale of Power to ▇▇▇▇▇▇.
Fuel Manager may offer to sell power to ▇▇▇▇▇▇ from time to time so that ▇▇▇▇▇▇
may forgo running the Facility and taking Gas hereunder. ▇▇▇▇▇▇ shall have no
obligation to accept such an offer or offers, and any acceptance thereof by
▇▇▇▇▇▇ shall be subject to the consent of Elwood's power customers. If ▇▇▇▇▇▇
accepts such offer, all obligations hereunder pertaining to Gas will be
suspended during the period of such sales.
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ARTICLE IV
RESPONSIBILITIES OF ▇▇▇▇▇▇
4.1 On-Site Gas Handling Equipment.
▇▇▇▇▇▇ shall operate and maintain the on-site equipment at the Facility for
receiving and handling Gas.
4.2 Notice of Facility Operations.
All sales of Gas to ▇▇▇▇▇▇, up to the MDQ each day, shall be on a "Short Notice"
basis, meaning that ▇▇▇▇▇▇ is required to use reasonable efforts to provide Fuel
Manager with notice regarding startups or shutdowns of the Facility and
estimated Gas requirements, all in accordance with Section 4 and the
Communications Protocol set forth in Exhibit A to this Agreement.
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4.3 Loaned Gas Balance.
▇▇▇▇▇▇ shall make available to Fuel Manager, at all times after May 31, 2001, a
gas balance of no less than 725,000 MMBtu ("Loaned Gas Balance"). The Loaned
Gas Balance is estimated to be 105,000 MMBtu on May 1, 2001, and ▇▇▇▇▇▇ will add
to the Loaned Gas Balance by purchasing an additional 20,000 MMBtu each day (or
such other daily amount required to achieve a Loaned Gas Balance of 725,000
MMBtu's on May 31, 2001, when purchased ratably over the month) from Fuel
Manager, during the period commencing on May 1, 2001, and continuing through May
31, 2001, (or on such other schedule as the Parties shall agree on) at the Gas
Daily Average Price plus four cents (4c), subject to Fuel Manager's discretion
as to when the volumes are actually placed into storage and subject to the
requirement that ▇▇▇▇▇▇ bear and pay all of Nicor's storage injection
Unaccounted-for Gas charges on the first quantities of Gas deemed to have been
injected into storage under the Nicor T&B Agreement during the term of this
Agreement up to a quantity equal to the difference between 725,000 MMBtu's of
Gas minus the Gas Inventory at the commencement of this Agreement. Fuel Manager
shall have the right to utilize the Loaned Gas Balance, subject to the terms of
the Nicor T&B Agreement, during the term hereof. If on the last day of the term
of this Agreement the Gas Inventory is less than 725,000 MMBtu's (the difference
being referred to herein as the "Storage Variance"), then Fuel Manager shall
either, at Elwood's option, deliver a quantity of Gas equal to the Storage
Variance to ▇▇▇▇▇▇ at the Receipt Point in equal daily deliveries during the
first month following the end of the term of this Agreement (currently, May 2002
unless the term is extended by mutual agreement) or financially settle with
respect thereto by Fuel Manager paying ▇▇▇▇▇▇ an amount equal to the product of
the Storage Variance times the price per MMBtu published by Intelligence Press,
Inc. in its NGI's Bidweek Survey, in the table entitled Spot Gas Prices, for the
month of May 2002 (or the first month after the term hereof), under the listing
for Midwest, Chicago Citygate.
4.4 Operation of the Facility.
In operating the Facility, ▇▇▇▇▇▇ shall follow the following standards:
9
(a) Once a Unit is started, it shall run for a minimum of four (4)
hours prior to shutting down, except that a Unit may be shut down sooner if
a mechanical problem occurs.
(b) Once a Unit is shut down, it shall remain off-line for a minimum
of two (2) hours.
(c) In the Summer Months, all nine (9) of the Units are available for
dispatch and will be started approximately one (1) hour after notice of the
Revised Dispatch Schedule is received by ▇▇▇▇▇▇.
(d) In the Non-Summer Months, (i) five (5) of the Units are available
for dispatch and will be started approximately three (3) hours after notice
of the Revised Dispatch Schedule is received by ▇▇▇▇▇▇ and (ii) four (4) of
the Units are available for dispatch during Peak Hours (6:00 a.m. - 10:00
p.m. Central Clock Time, Monday-Friday) and will be started in accordance
with the Dispatch Schedule established at 9:00 a.m. Central Clock Time on
the previous Gas Day, unless a Revised Dispatch Schedule is negotiated and
agreed to by ▇▇▇▇▇▇, Nicor and Fuel Manager.
4.5 Status of T&B Agreement.
▇▇▇▇▇▇ shall maintain the Nicor T&B Agreement in full force and effect during
the term of this Agreement. ▇▇▇▇▇▇ shall not agree to any changes to the Nicor
T&B Agreement with the explicit intent (or resulting effect) to alter the rights
or obligations of Fuel Manager, without Fuel Manager's express consent. If
changes are made to the Nicor T&B Agreement to address other good faith business
purposes without Fuel Manager's express consent and such changes result in a
reduction in Fuel Manager's rights as agent under the Nicor T&B Agreement, or
increase its obligations thereunder or under this Agreement, then Fuel Manager
shall have the right to either, at Fuel Manager's sole option, terminate this
Agreement or negotiate with ▇▇▇▇▇▇ a different pricing structure. ▇▇▇▇▇▇ will
consult with Fuel Manager prior to agreeing with Nicor to any changes in the
Nicor T&B Agreement which may reduce Fuel Manager's rights or increase its
obligations.
ARTICLE V
PAYMENTS RELATED TO GAS
5.1 Payments by ▇▇▇▇▇▇.
(a) For any Non-Special Day, ▇▇▇▇▇▇ shall pay to Fuel Manager for
Facility Consumption and quantities forfeited to Nicor under Section 7 of
the Nicor T&B Agreement ("Forfeited Gas") at a price per MMBtu equal to the
Gas Daily Average Price plus four cents (4c). ▇▇▇▇▇▇ shall have no
obligation to pay Fuel Manager for any Gas during any month except Facility
Consumption, Forfeited Gas, purchases during May, 2001 to fill the Loaned
Gas Balance, and Deferred Special Day Volumes described in Section 5.1(c).
Such payments shall be made in accordance with Section 7.2 for the
applicable month.
10
(b) ▇▇▇▇▇▇ shall pay to Fuel Manager five cents (5c) per MMBtu for
the ▇▇▇▇▇▇ Forecast Variance for each Gas Day, up to a 241,600 MMBtu/d
variance during the Summer Months and up to a 67,400 MMBtu/d variance
during the Non-Summer Months. Such payments shall be made in accordance
with Section 7.2 for the applicable month.
(c) For any Special Day, ▇▇▇▇▇▇ shall pay Fuel Manager, at a price
negotiated by the parties, for all volumes delivered by Fuel Manager
pursuant to the mutual agreement of the Parties under Section 3.1(a) for
such Special Day, whether such volumes are consumed at the Facility on such
Special Day or are deferred and injected into storage under the Nicor T&B
Agreement ("Deferred Special Day Volumes"). Up to 20,000 MMBtu/d of
Deferred Special Day Volumes will be withdrawn and delivered to the
Facility as the "first Gas through the meter" and at no additional cost to
▇▇▇▇▇▇, on immediately succeeding Non-Special Days until the Deferred
Special Day Volume Balance is reduced to zero. For the purposes of Section
5.1(a), Deferred Special Day Volumes shall be excluded from Facility
Consumption on Non-Special Days on which they are consumed.
(d) ▇▇▇▇▇▇ shall pay to Nicor Gas when due all fees and charges,
including taxes and surcharges, due under the Nicor T&B Agreement, subject
to Fuel Manager's obligation to reimburse ▇▇▇▇▇▇ for some of such charges
as provided in Section 5.2.
(e) As compensation for its performance of the duties and obligations
set forth in Section 3.2, ▇▇▇▇▇▇ shall pay Fuel Manager the sum of Sixty-
Five Thousand Dollars ($65,000) per month for each of the Summer Months and
Ten Thousand Dollars ($10,000) per month for each of the Non-Summer Months.
(f) If and when any amount is received, as either an actual payment
or a credit, by ▇▇▇▇▇▇ from Nicor under Section 10 (reduction of MMDN
rights) of the Nicor T&B Agreement with respect to any Month during the
term hereof, ▇▇▇▇▇▇ shall pay such amounts to Fuel Manager, which shall be
due and payable with the next payment otherwise due hereunder. Fuel Manager
also shall receive the benefit of the limitation on application of Nicor's
Unaccounted-for Gas percentage contained in Section 9 of the Nicor T&B
Agreement.
5.2 Payments by Fuel Manager.
(a) Fuel Manager shall reimburse ▇▇▇▇▇▇ in accordance with Section
7.2 for the billed charges under the following sections of the Nicor T&B
Agreement to the extent that (i) such charges are incurred with respect to
Non-Special Days, (ii) ▇▇▇▇▇▇ has provided notices and information in
accordance with the Communications Protocol, (iii) such charges are not the
result of Elwood's failure to operate the Facility as provided in Section
4.4, (iv) such charges are not the result of total quantities consumed at
the Facility having exceeded the Firm MDQ and (v) ▇▇▇▇▇▇ has not declared
an event of Force Majeure or a Unit has not "tripped" (as that term is used
in Exhibit A):
---------
11
(A) Forecast Variance Charges (Section 4(e) of the Nicor T&B
Agreement) attributable to the portion of the variance up to 241,600
MMBtu/d in the Summer Months or 67,400 MMBtu/d in the Non-Summer Months;
(B) Delivery Variance Charges (Section 4(c) of the Nicor T&B
Agreement) except to the extent such charges are attributable to volumes in
excess of the Firm MDQ;
(C) Storage Inventory Overrun Charges or Excess Storage Charges but
only those assessed because the highest daily quantity in storage is in
excess of 951,500 MMBtu's (Sections 4(f) and 4(g) of the Nicor T&B
Agreement); and
(D) Charges for Requested Authorized Use and Unauthorized Use
(Sections 4(i) and (j) of the Nicor T&B Agreement).
Items (A), (B), (C) and (D) are collectively referred to herein as the
"Fuel Manager's T&B Charges." The Fuel Manager's T&B Charges may be (i)
applied by ▇▇▇▇▇▇ as a credit to Fuel Manager's invoices, effectively
netting Fuel Manager's T&B Charges against the amounts owed Fuel Manager
under this Agreement or (ii) invoiced by ▇▇▇▇▇▇ directly to Fuel Manager
thereby requiring Fuel Manager to remit such funds to ▇▇▇▇▇▇ upon
presentation of an invoice. Fuel Manager shall be responsible for Nicor's
Unaccounted-for Gas charges with respect to storage injections except the
Unaccounted-for Gas charges associated with any injections of Deferred
Special Day Volumes described in Section 5.1(c) and except the Unaccounted-
for Gas charges to be borne by ▇▇▇▇▇▇ pursuant to Section 4.3. On Special
Days, Fuel Manager will not be responsible for Fuel Manager's T&B Charges
except where the parties have agreed on a price and volume pursuant to
Section 3.1(a) and to the extent that Fuel Manager's T&B Charges are
incurred as a direct result of Fuel Manager failing to deliver to the
Receipt Point on such Special Day the quantity of Gas agreed to by the
Parties except to the extent such failure to deliver is caused by an event
of Force Majeure that occurs after the Parties have agreed to a quantity
and price for such Special Day under Section 3.1(a); provided, however,
--------------------
that Fuel Manager shall in no event be responsible on a Special Day for the
Fuel Manager T&B Charges described in (D) above.
(b) Fuel Manager shall pay when due to a Seller or reimburse ▇▇▇▇▇▇
if a Seller directly invoices ▇▇▇▇▇▇, all charges under any Purchase
Agreements entered into by Fuel Manager on its own account or as Agent.
ARTICLE VI
OFFSET RIGHTS
6.1 Offset Rights.
If either party fails to pay any charges as required under this Agreement, the
other party shall have the right, in addition to any other remedies provided
herein or under law, to set-off such amounts against any payments owed by it to
such party.
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ARTICLE VII
▇▇▇▇▇▇▇▇ AND PAYMENT
7.1 Information from Nicor Gas.
To the extent ▇▇▇▇▇▇ receives from Nicor Gas information regarding actual
consumption or account data, ▇▇▇▇▇▇ will forward such information to Fuel
Manager and insure that Fuel Manager has joint access to any real time data
links containing such information.
7.2 Invoices by Fuel Manager.
Within twenty (20) days after the end of each month during the Term of this
Agreement for which services are rendered hereunder, Fuel Manager shall prepare
and deliver to ▇▇▇▇▇▇ a statement in reasonable detail setting forth the
calculation of the amounts payable by ▇▇▇▇▇▇ to Fuel Manager, with respect to
the month in question and any offsets for payments due from ▇▇▇▇▇▇ to Fuel
Manager pursuant to Section 5.1. Fuel Manager may send this invoice to ▇▇▇▇▇▇
via facsimile or email. ▇▇▇▇▇▇ shall pay all such invoiced amounts by wire
transfer or automated clearinghouse by the later of (i) ten (10) days after
receipt of such invoice or (ii) 25 days after the end of such month, to the
account specified by Fuel Manager.
7.3 Records.
Each party shall keep complete and accurate records appropriate for proper
administration of this Agreement. All such records shall be maintained for a
minimum of three (3) years after the creation of such records and for any
additional length of time required by a governmental authority or the Nicor T&B
Agreement or any other agreement entered into in connection with this Agreement.
Each party shall have the right, upon seven (7) days notice to the other, to
audit the books and records of the other party relating to this Agreement with
respect to the calculation of any amounts due hereunder.
7.4 Interest.
If a party fails to pay when due any amounts payable by it under this Agreement
(excluding, however, any payments properly set-off by such party against amounts
due from it hereunder), or if, as a result of an audit by the other party or the
resolution of any dispute as to amounts payable by a party hereunder, it is
determined that a party has underpaid amounts due from it hereunder, then the
unpaid amounts shall bear interest at the Default Rate from the date such
payments were due until the date such payments are paid.
7.5 Billing Disputes.
(a) If a party in good faith disputes an amount claimed to be due and
payable hereunder by the other party, it may withhold payment of the amount
under protest pending resolution of the dispute in accordance with
subsection (b) of this section.
(b) In the event that a party, by timely notice to the other party,
questions or contests the correctness of any charge or payment claimed to
be due by the notified party, the notified party shall promptly review the
questioned charge or payment and shall
13
respond to the contesting party, within fifteen (15) Business Days
following receipt of such notice, with a statement of the amount of any
error and the amount of any reimbursement that the contesting party is
entitled to receive in respect of such alleged error. Any disputes not
resolved within fifteen (15) Business Days after receipt of such responding
statement shall be resolved in accordance with Section 15.9 of this
Agreement. Upon determination of the correct amount of any reimbursement,
such amount shall be promptly paid by the owing party.
(c) Payments withheld under subsection (a), but ultimately paid under
subsection (b), shall include interest at the Default Rate from the date
the original payment was due until the date such withheld payments together
with interest is made.
7.6 Days/Business Days.
In the event any action called for in this Article 7 is due on a day that is not
a Business Day, it shall be due on the next succeeding day that is a Business
Day.
ARTICLE VIII
AGENCY
8.1 Grant of Agency.
(a) ▇▇▇▇▇▇ hereby appoints Fuel Manager (in such capacity, Fuel
Manager being referred to hereinafter as "Agent"), to act on its behalf and
for its benefit solely for the following purposes and subject to the
limitations set forth in Section 8.2 below:
(i) To take such actions as are specified in writing by ▇▇▇▇▇▇
(except to the extent such actions are in violation of law) except for
physical or financial transactions regarding Gas supply, which actions
may be specified by ▇▇▇▇▇▇ orally, with confirmation in writing before
such actions are taken;
(ii) To make payment of all charges in accordance with Section
5.2 of this Agreement;
(iii) To act on Elwood's behalf and for Elwood's benefit in
managing and administering the Nicor T&B Agreement, including
submitting nominations to Nicor Gas and to NBPL, APL and NGPL.
(b) The parties hereby agree, regardless of any contrary provisions
of this Agreement, that the appointment of the Fuel Manager as Agent, and
any agency created hereby, shall be subject to the limitations set forth in
Section 8.2 and shall terminate automatically as and when set forth in this
Agreement. All rights exercised by Agent shall be exercised in a manner
consistent with applicable law, Fuel Manager's obligations under this
Agreement (including as Agent) and Elwood's obligations under the Nicor T&B
Agreement.
14
8.2 Limitations on Agency. Notwithstanding the terms of Section 8.1 or any
other contrary terms of this Agreement, Fuel Manager as Agent shall not, and is
not granted the authority to, without the prior written consent of ▇▇▇▇▇▇:
(a) Enter into any agreements on behalf of or in the name of ▇▇▇▇▇▇,
except as set forth in Section 8.1;
(b) Enter into any physical or financial hedging or speculative
transactions on behalf of or in the name of ▇▇▇▇▇▇;
(c) Agree to any amendment or modification to, or waive any right
under, any provision in the Nicor T&B Agreement or other agreements to
which ▇▇▇▇▇▇ is a party (either directly or via Agency);
(d) Enter into any agreement or any amendment, supplement or
modification of any agreement, in any manner inconsistent or in violation
of applicable law, this Agreement or the Nicor T&B Agreement.
8.3 No Transfer.
▇▇▇▇▇▇ and Agent expressly agree that the creation of an agency as described in
this Agreement does not in any way constitute a pledge, transfer or assignment
to Agent of any right of ▇▇▇▇▇▇ in, under and to the Nicor T&B Agreement, any
Purchase Agreement or other agreements of ▇▇▇▇▇▇ or any good or service
purchased or provided for therein.
8.4 Obligations of Agent. Agent shall comply with all requirements of the
Nicor T&B Agreement and all other agreements applicable to the purchase, sale,
transportation, storage, injection and withdrawal of Gas including, without
limitation, the timely remittance of payments to Sellers in accordance with the
terms and conditions of such agreements referred to in Section 5.2 of this
Agreement. Agent shall pay, from its own funds, all its expenses and costs
incurred in the course of performing Agent's duties and obligations hereunder.
8.5 Notice of Agency. ▇▇▇▇▇▇ and Agent shall notify Nicor Gas, Peoples
Gas, and existing and future Sellers as applicable, of the foregoing Agency
promptly upon the effective date of this Agreement and, immediately upon
expiration of the Term or upon earlier termination, shall notify the applicable
entities that such Agency has been terminated. Notice to Sellers of the
existence of the Agency shall state that either ▇▇▇▇▇▇ or Fuel Manager, acting
alone, may give notice to Sellers terminating the Agency.
ARTICLE IX
ADDITIONAL COVENANTS
9.1 Assignment.
(a) Except as provided in this Section 9.1, neither party shall
assign, pledge or otherwise transfer this Agreement or any right or
obligation under this Agreement without first obtaining the other party's
written consent, which consent shall not be
15
unreasonably withheld or delayed. Except as specifically provided for in
this Section 9.1, any assignment or transfer of this Agreement or any
rights, duties or interests hereunder by any party without the written
consent of the other party shall be void and of no force or effect.
(b) So long as no material event of default with respect to ▇▇▇▇▇▇
has occurred and is continuing, ▇▇▇▇▇▇ shall be permitted to assign or
otherwise transfer this Agreement in whole by operation of law or
otherwise, with prior written notice to Fuel Manager but without Fuel
Manager's consent, (i) to ▇▇▇▇▇▇ Marketing, LLC, (ii) any Affiliate of
Dominion Energy, Inc. (50% indirect owner of ▇▇▇▇▇▇) or any Affiliate of
Peoples Energy Resources Corp. (50% indirect owner of ▇▇▇▇▇▇) or (iii) to
any assignee succeeding to the ownership of the Facility; provided,
--------
however, that any proposed assignee hereunder is determined by Fuel
-------
Manager, in its reasonable discretion, to be creditworthy. Upon the
assumption by any such permitted assignee of Elwood's rights, duties and
obligations hereunder, ▇▇▇▇▇▇ shall be released and discharged from any
future obligation hereunder but not any past obligation.
(c) So long as no material event of default with respect to Fuel
Manager has occurred and is continuing, Fuel Manager shall be permitted to
assign or otherwise transfer this Agreement in whole by operation of law or
otherwise, with prior written notice to ▇▇▇▇▇▇ but without Elwood's
consent, to any Affiliate of Fuel Manager; provided, however, that any
-------- -------
proposed assignee hereunder is determined by ▇▇▇▇▇▇, in its reasonable
discretion, to be creditworthy and to be at least as well qualified to
fulfill the obligations of Fuel Manager under this Agreement. Upon the
assumption by any such permitted assignee of Fuel Manager's rights, duties
and obligations hereunder, Fuel Manager shall be released and discharged
from any future obligation hereunder but not any past obligation.
(d) Fuel Manager hereby consents to Elwood's assignment of this
Agreement to any and all Lenders (as defined below) or the granting to any
or all Lenders of a lien or security interest in any right, title or
interest in part or all of the Facility or any or all of Elwood's rights
under this Agreement for the purpose of the financing or refinancing of the
Facility. In order to facilitate the obtaining of financing or refinancing
of the Facility without Fuel Manager's consent, Fuel Manager shall
cooperate with ▇▇▇▇▇▇ and execute consents, agreements or similar documents
with respect to the assignment hereof to any Lender as customary for
comparable transactions in connection with the financing or refinancing of
the Facility; provided, however, that such assignment shall recognize and
-------- -------
shall not impair or otherwise adversely affect Fuel Manager's rights under
this Agreement. Fuel Manager recognizes that such consent may grant
certain rights to such Lenders, which shall be fully developed and
described in said consent documents, including that (i) this Agreement
shall not be amended or terminated (except for termination pursuant to the
terms of this Agreement) without the consent of Lenders; (ii) without
extending the cure period set forth in this Agreement, Lenders shall be
given notice of, and the same opportunity to cure, any ▇▇▇▇▇▇ breach or
default of this Agreement, provided that notwithstanding the foregoing
Lender(s) may have in addition to the cure periods set forth herein an
additional thirty (30) days from the expiration of such cure period to cure
any breach or default of this Agreement; (iii) if a Lender
16
forecloses, takes a deed in lieu or otherwise exercises its remedies
pursuant to any security documents, that Fuel Manager shall, at Lender's
request, continue to perform all of its obligations hereunder, and Lender
or its nominee may perform in the place of ▇▇▇▇▇▇, and may assign this
Agreement to another party in place of ▇▇▇▇▇▇ (provided either (A) such
proposed assignee is creditworthy in the reasonable discretion of Fuel
Manager, or (B) Fuel Manager consents to the assignment to such proposed
assignee, which consent shall not be unreasonably withheld or delayed), and
enforce all of Elwood's rights hereunder; (iv) that Lender(s) shall have no
liability under this Agreement except during the period of such Lender(s)'
ownership and/or operation of the Facility and any defaults from payment
existing immediately prior to such period; (v) that Fuel Manager shall
accept performance in accordance with this Agreement by Lender(s) or its
(their) nominee; and (vi) that Fuel Manager shall make representations and
warranties to Lender(s) as Lender(s) may reasonably request, including, but
not limited to, (A) Fuel Manager's corporate existence, (B) Fuel Manager's
corporate authority to execute, deliver and perform this Agreement, (C) the
binding nature of this Agreement on Fuel Manager, (D) receipt of such
regulatory approvals by Fuel Manager as required by law with respect to its
performance under this Agreement, and (E) whether any defaults by ▇▇▇▇▇▇
are known by Fuel Manager then to exist under this Agreement and shall upon
request of ▇▇▇▇▇▇ cause Fuel Manager's counsel to issue an opinion to
▇▇▇▇▇▇ and any Lender affirming in customary form the representations of
Fuel Manager in this Section 9.1 and in Section 13.1.
(e) As used in this Agreement, the term "Lender(s)" means (i) any
individual, governmental authority, corporation, limited liability company,
partnership, limited partnership, trust, association or other entity
("Person") that from time to time enters into loans with ▇▇▇▇▇▇, its
successors or permitted assigns for the financing or refinancing of the
Facility or any part thereof or which are secured by the Facility
(including a sale-leaseback transaction), (ii) the holders of indebtedness
evidencing any such loans, or (iii) any Person acting on behalf of such
lender(s) to whom any lenders' rights under such loans have been
transferred, any trustee on behalf of any such lenders, and any Person
subrogated to the rights of such lenders.
9.2 Taxes on Gas. Fuel Manager shall pay, or shall cause to be paid, all
taxes, fees, levies, penalties, licenses or charges imposed by any governmental
authority ("Taxes") on or with respect to the Gas prior to the Receipt Point.
▇▇▇▇▇▇ shall pay or cause to be paid all Taxes on or with respect to the Gas at
or after the Receipt Point. If a party is required to remit or pay Taxes that
are the other party's responsibility hereunder, the party responsible for such
Taxes shall promptly reimburse the other party for such Taxes. Any party
entitled to an exemption from any such taxes or charges shall furnish the other
party any necessary documentation thereof; provided, however, that exemption of
-----------------
interstate sourced supplies from application of the Illinois Gas Revenue Tax is
assumed by the parties, and Fuel Manager agrees not to ▇▇▇▇ ▇▇▇▇▇▇ for such
taxes until such time as Fuel Manager is required by the taxing authority having
jurisdiction, after exhaustion of all appeals and other remedies available to
▇▇▇▇▇▇, to pay the Illinois Gas Revenue Tax. Each party shall use reasonable
efforts to notify the other party of any legal or administrative proceeding
which could modify the State's application of the Illinois Gas Revenue Tax to
the goods provided and services rendered under this Agreement.
17
9.3 Fuel Manager Guaranty. Fuel Manager shall deliver to ▇▇▇▇▇▇, at the
time this Agreement is executed, the Fuel Manager Guaranty in the form attached
hereto as Exhibit B, executed by Cinergy Corp., as Guarantor.
---------
9.4 ▇▇▇▇▇▇ Guaranties. ▇▇▇▇▇▇ shall deliver to Fuel Manager, at the time
this Agreement is executed, the parent guaranties in the form of Exhibit C-1 and
-----------
Exhibit C-2 (each of which, an "▇▇▇▇▇▇ Guaranty" and collectively, "▇▇▇▇▇▇
-----------
Guaranties").
ARTICLE X
DEFAULT AND TERMINATION
10.1 Termination of Agency. If this Agreement is terminated with or without
cause, then from and upon Agent's receipt of notice of such termination as
provided in Section 15.1, the Agency granted to Fuel Manager under this
Agreement shall immediately cease, and Fuel Manager will no longer act or be
entitled to act as Elwood's Agent under the Nicor T&B Agreements or the Purchase
Agreements, or any other agreement, or to hold itself out as Elwood's Agent
thereafter.
10.2 Termination upon Enforcement Action. This Agreement has been
structured to comply fully with any applicable federal or state law, or any
regulations issued thereunder. However, if the FERC or any other federal or
state agency or authority asserts, rules or determines that any of the terms of
this Agreement or the conduct of the parties hereunder or in connection with the
transactions contemplated hereunder, are in violation of the terms of the
Natural Gas Act or any other federal or state law, or any regulations issued
thereunder, or the terms of any applicable FERC Gas Tariff, then either party
shall have the right to terminate this Agreement upon the first to occur of the
date required by applicable law or thirty (30) days after notice given to the
other party. In the event of such termination, all costs associated with
unwinding or terminating Purchase Agreements shall be borne equally by the
parties.
10.3 Fuel Manager Default.
(a) Each of the following shall constitute a "Fuel Manager Event of
Default":
(i) Fuel Manager shall default in the performance of any of
its covenants or obligations under this Agreement (other than those
specified in Section 10.3(a)(iv), which shall be exclusively governed
by that Section, and other than a Gas delivery obligation which shall
be exclusively governed by Section 10.3(c)) and shall fail to cure
such default within five (5) days after receiving written notice from
▇▇▇▇▇▇;
(ii) Default occurs under the Fuel Manager Guaranty;
(iii) Liquidation (not as defined in this Agreement),
dissolution, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment or other similar proceeding affecting the status,
composition, identity, existence, assets or obligations of Fuel
Manager or Fuel Manager Guarantor, or the disaffirmance or
18
termination of any of Fuel Manager's or Fuel Manager Guarantor's
covenants or obligations under this Agreement, or the Fuel Manager
Guaranty, as applicable, in or as a result of any such proceeding;
(iv) Fuel Manager shall fail to make any payment when due or
cure such failure within the lesser of ten (10) days or such time
period as would result in loss of Gas supply or delivery to ▇▇▇▇▇▇ if
not cured within such period; and
(v) Any representation or warranty made by Fuel Manager or
Fuel Manager Guarantor herein, or in the Fuel Manager Guaranty, as
applicable, should prove to be materially untrue or breached as of the
date the Term of this Agreement commences.
(b) Upon the occurrence of a Fuel Manager Event of Default other than
an Event of Default that is subject to Section 10.3(c), ▇▇▇▇▇▇ shall have
the right to do any or all of the following: (i) cure such default and seek
reimbursement of any costs incurred by ▇▇▇▇▇▇ in effecting such cure, or
offset such costs against any amounts thereafter payable by ▇▇▇▇▇▇ to Fuel
Manager under this Agreement; (ii) terminate this Agreement as of the date
specified in such termination notice; provided, however, that Fuel Manager
-------- -------
shall remain fully responsible and liable for performance of its
obligations that arose prior to such termination date; or (iii) exercise
all other rights and remedies available at law or in equity. ▇▇▇▇▇▇ shall
provide notice to Fuel Manager of Elwood's intent to exercise its rights
under the previous sentence, but Elwood's exercise of such rights shall in
no way be conditioned upon the provision of such notice to Fuel Manager.
In the event of any termination of this Agreement pursuant to this Section
10.3(b), Fuel Manager shall not be entitled to unwind any agreements
entered into pursuant to this Agreement without the consent of ▇▇▇▇▇▇.
(c) Notwithstanding the foregoing, and the notice and cure periods
provided for above, if Fuel Manager defaults in the performance of any of
its obligations to deliver the Firm MDQ on any Non-Special Day or the
quantity of Gas agreed upon by the Parties for a Special Day under Section
3.1(a) and such default prevents ▇▇▇▇▇▇, or in Elwood's sole judgment is
reasonably likely to prevent ▇▇▇▇▇▇, from meeting its obligations to
deliver power to its power customers, then ▇▇▇▇▇▇ shall have the right, as
its sole remedy therefor, to procure replacement Gas for the Facility from
Sellers or other sources on commercially reasonable terms and conditions
and may utilize the Nicor T&B Agreement and the Gas Inventory (▇▇▇▇▇▇ shall
still be obligated to pay Fuel Manager for any of the Gas Inventory taken
by ▇▇▇▇▇▇ in accordance with Section 5.1) to effectuate delivery of such
Gas. Fuel Manager shall reimburse ▇▇▇▇▇▇ for any reasonable incremental
costs incurred by ▇▇▇▇▇▇ in purchasing such replacement Gas and related
services (including without limitation charges under the Nicor T&B
Agreement covered by Section 5.2) within fifteen (15) days after demand
therefor, together with interest thereon at the Default Rate and accrued
from the date of such purchase until the date reimbursement is made. If
Fuel Manager fails to reimburse ▇▇▇▇▇▇ for such costs within such fifteen
(15) day period, then, in addition to all other rights, ▇▇▇▇▇▇ shall be
entitled to offset such costs (including interest) against any amounts
thereafter payable by ▇▇▇▇▇▇ to Fuel Manager under this Agreement.
19
10.4 ▇▇▇▇▇▇ Default.
(a) Each of the following shall constitute an "▇▇▇▇▇▇ Event of
Default":
(i) If Elwood shall default in the performance of any of its
obligations under this Agreement and ▇▇▇▇▇▇ shall fail to cure such
default within five (5) days after receiving written notice from Fuel
Manager.
(ii) Default occurs under either of the ▇▇▇▇▇▇ Guaranties;
(iii) Liquidation (not as defined in this Agreement),
dissolution, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment or other similar proceeding affecting the status,
composition, identity, existence, assets or obligations of ▇▇▇▇▇▇ or
an ▇▇▇▇▇▇ Guarantor, or the disaffirmance or termination of any of
Elwood's or an ▇▇▇▇▇▇ Guarantor's covenants or obligations under this
Agreement or an Elwood Guaranty in or as a result of any such
proceeding.; and
(iv) Any representation or warranty made by ▇▇▇▇▇▇ or an Elwood
Guarantor herein, or in the ▇▇▇▇▇▇ Guaranties, as applicable, should
prove to be materially untrue or breached as of the date this Term of
this Agreement commences.
(b) Upon the occurrence of an ▇▇▇▇▇▇ Event of Default, Fuel Manager
shall have the right, upon seven (7) days notice to ▇▇▇▇▇▇, to do any or
all of the following: (i) terminate this Agreement; (ii) terminate the
Agency granted to Fuel Manager pursuant to Section 8.1 hereof; and (iii)
exercise all other rights and remedies available at law or in equity
including, without limitation the right to recover from ▇▇▇▇▇▇ any future
amounts due under Section 5.1(e) for any future months remaining in the
term as if this Agreement had not been terminated pursuant to this Section.
If Fuel Manager terminates this Agreement pursuant to clause (i) above,
then Fuel Manager shall use its reasonable efforts to minimize the costs
associated with unwinding Purchase Agreements; provided, however, that Fuel
-------- -------
Manager shall not, without the consent of ▇▇▇▇▇▇, unwind or terminate any
such Purchase Agreements entered into by Fuel Manager pursuant to Article 8
with respect to which Elwood has financial exposure. In addition, in the
event of such termination, Elwood shall reimburse Fuel Manager for all
costs incurred by Fuel Manager to unwind any and all agreements entered
into by Fuel Manager pursuant to Article 8.
10.5 Release of Obligations.
Notwithstanding anything herein to the contrary, in the event either party
terminates this Agreement pursuant to this Article X or any other provisions of
this Agreement, the parties shall be released from all of their future
obligations hereunder except any obligation (i) to make payments due hereunder
with respect to the period prior to the effective date of the termination, (ii)
if and as applicable, to pay damages with respect to a Fuel Manager Event of
Default or ▇▇▇▇▇▇ Event of Default, to the extent such damages are expressly
permitted as a remedy in
20
addition to the right to terminate, (iii) to indemnify the other party under
Article XI, and (iv) of Fuel Manager under the last sentence of Section 4.3.
ARTICLE XI
INDEMNITY
11.1 Fuel Manager Indemnity.
(a) Without limiting Elwood's rights or remedies under Article
10, Fuel Manager agrees to indemnify, defend and hold ▇▇▇▇▇▇, its members,
officers, directors, employees and agents harmless from and against all
claims, demands, suits, losses, liabilities, penalties, actions and
expenses (including reasonable attorneys' fees and litigation costs) with
respect to claims by third parties arising out of, resulting from or caused
by:
(i) Claims associated with title to gas or liens
therein;
(ii) Balancing, storage, or transportation costs,
charges, penalties or fees resulting from Fuel Manager's sale of
Gas to Persons other than ▇▇▇▇▇▇;
(iii) Fines or penalties assessed by any governmental
authority on account of Fuel Manager's actions;
(iv) Claims arising out of or relating to Fuel Manager's
failure to comply with the requirements of Article 8 hereof;
(v) Claims arising out of or relating to Purchase
Agreements or other agreements entered into by Fuel Manager on its
own behalf or as Agent;
(vi) Claims arising out of or related to Taxes which Fuel
Manager is obligated to pay or cause to be paid under Section 9.2;
and
(vii) Any and all claims, demands, actions, losses,
liabilities, expenses (including reasonable legal fees and
expenses), suits and proceedings of any nature whatsoever for
personal injury, death or property damage to third parties caused
by the negligence or willful misconduct of the indemnifying Party
that arise out of or are in any manner connected with the
performance of this Agreement, except to the extent such injury or
damage is attributable to the gross negligence or willful
misconduct of, or breach of this Agreement by, the Party seeking
indemnification hereunder.
11.2 ▇▇▇▇▇▇ Indemnity.
(a) Without limiting Fuel Manager's rights or remedies under
Article 10, ▇▇▇▇▇▇ agrees to indemnify, defend and hold Fuel Manager, its
members, officers, directors, employees and agents harmless from and
against all claims, demands, suits, losses, liabilities, penalties, actions
and expenses (including reasonable attorneys' fees
21
and litigation costs) with respect to claims by third parties arising out
of, resulting from or caused by:
(i) Claims associated with the consumption of the Gas by
the Facility including any environmental claims;
(ii) Fines or penalties assessed by any governmental
authority on account of Elwood's actions;
(iii) Claims arising out of or relating to Elwood's
failure to comply with the requirements of Article 8 hereof;
(iv) Claims arising out of or relating to Purchase
Agreements or other agreements entered into by ▇▇▇▇▇▇ on its own
behalf;
(v) Claims arising out of or related to Taxes which
▇▇▇▇▇▇ is obligated to pay or cause to be paid under Section 9.2;
and
(vi) Any and all claims, demands, actions, losses,
liabilities, expenses (including reasonable legal fees and
expenses), suits and proceedings of any nature whatsoever for
personal injury, death or property damage to third parties caused
by the negligence or willful misconduct of the indemnifying Party
that arise out of or are in any manner connected with the
performance of this Agreement, except to the extent such injury or
damage is attributable to the gross negligence or willful
misconduct of, or breach of this Agreement by, the Party seeking
indemnification hereunder.
11.3 Survival.
The foregoing indemnity provisions shall survive expiration of the Term or
termination of this Agreement.
ARTICLE XII
LIMITATION OF LIABILITY
12.1 Limitation of Liability. IN NO EVENT OR UNDER ANY CIRCUMSTANCES
SHALL EITHER PARTY (INCLUDING SUCH PARTY'S MEMBERS AND THEIR RESPECTIVE
AFFILIATES AND SUCH PARTY'S AND ITS MEMBERS' AND SUCH AFFILIATES' RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE TO THE OTHER PARTY
(INCLUDING SUCH PARTY'S AFFILIATES AND SUCH PARTY'S AND SUCH AFFILIATE'S
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) FOR ANY SPECIAL,
INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES IN
THE NATURE OF LOST PROFITS, WHETHER SUCH LOSS IS BASED ON CONTRACT, WARRANTY OR
TORT (INCLUDING INTENTIONAL ACTS, ERRORS OR OMISSIONS, NEGLIGENCE, INDEMNITY,
STRICT LIABILITY OR OTHERWISE), EXCEPT TO THE EXTENT SUCH
22
TYPE OF DAMAGES ARE EXPRESSLY PROVIDED FOR HEREIN. A PARTY'S LIABILITY UNDER
THIS AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES, OR IF LIQUIDATED
DAMAGES ARE EXCLUSIVELY SPECIFIED HEREIN, TO SUCH LIQUIDATED DAMAGES, AND ALL
OTHER DAMAGES AT LAW OR IN EQUITY ARE WAIVED.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.1 By Fuel Manager. Fuel Manager hereby represents and warrants that:
(a) Fuel Manager is a limited liability company duly organized
and validly existing under the laws of Delaware and has the legal power and
authority to own its properties, to carry on its business as now being
conducted and to enter into this Agreement and carry out the transactions
contemplated hereby and perform and carry out all covenants and obligations
on its part to be performed under and pursuant to this Agreement.
(b) The execution, delivery and performance by Fuel Manager of
this Agreement have been duly authorized by all necessary company action,
and do not and will not require any consent or approval of Fuel Manager's
members or any third party (including any governmental authority) other
than that which has been obtained.
(c) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of
and compliance with the provisions of this Agreement do not and will not
conflict with or constitute a breach of or a default under, any of the
terms, conditions or provisions of any legal requirements, or any
organizational documents, agreement, deed of trust, mortgage loan
agreement, other evidence of indebtedness or any other agreement or
instrument to which Fuel Manager is a party or which it or any of its
property is bound, or result in a breach of or a default under any of the
foregoing.
(d) This Agreement constitutes the legal, valid and binding
obligation of Fuel Manager enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditor's rights generally or by general equitable principles, regardless
of whether such enforceability is considered in a proceeding in equity or
at law.
(e) There is no pending or, to the knowledge of Fuel Manager,
threatened action or proceeding affecting Fuel Manager before any
governmental agency that purports to affect the legality, validity or
enforceability of this Agreement.
13.2 By ▇▇▇▇▇▇.
Each of ▇▇▇▇▇▇ Energy LLC, ▇▇▇▇▇▇ Energy II, LLC and ▇▇▇▇▇▇ Energy III, LLC
hereby represents and warrants with respect to itself that:
23
(a) It is a Delaware limited liability company duly organized
and validly existing under the laws of the State of Delaware and has the
legal power and authority to own its properties, to carry on its business
as now being conducted and to enter into this Agreement and carry out the
transactions contemplated hereby and perform and carry out all covenants
and obligations on its part to be performed under and pursuant to this
Agreement.
(b) The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary company action and do
not and will not require any consent or approval of it's Management
Committee other than that which has been obtained.
(c) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of
and compliance with the provisions of this Agreement do not and will not
conflict with or constitute a breach of or a default under, any of the
terms, conditions or provisions of any legal requirements, or any
organizational documents, agreement, deed of trust, mortgage loan
agreement, other evidence of indebtedness or any other agreement or
instrument to which it is a party or which it or any of its property is
bound, or result in a breach of or a default under any of the foregoing.
(d) This Agreement constitutes the legal, valid and binding
obligation of it enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws relating to or affecting the enforcement of creditor's rights
generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) There is no pending or, to its knowledge, threatened action
or proceeding affecting ▇▇▇▇▇▇ before any governmental agency that purports
to affect the legality, validity or enforceability of this Agreement.
ARTICLE XIV
FORCE MAJEURE
14.1 Force Majeure Generally. Except with respect to payment
obligations due from one party to the other hereunder, neither party shall be
responsible or liable for its failure to perform any obligation hereunder, or be
deemed in breach hereof, to the extent such failure to perform is due to the
occurrence of an event of "Force Majeure," as that term is defined in Section
14.2 as applicable to such party, provided that:
(a) The non-performing party (i) gives the other party prompt
verbal notice of the occurrence and (ii) within forty-eight (48) hours of
the beginning of the occurrence or by 5:00 p.m. Central Clock Time on the
next Business Day after the beginning of the occurrence, whichever is the
later to occur, gives the other party written notice describing the
particulars of the occurrence;
24
(b) The suspension of performance is of no greater scope and of
no longer duration than is required by the Force Majeure;
(c) The non-performing party uses its reasonable efforts to
remedy its inability to perform;
(d) When the non-performing party is able to resume performance
of its obligations under this Agreement, that party shall give the other
party written notice to that effect; and
(e) The Force Majeure was not caused by or connected with any
negligent or intentional acts, errors, or omissions, or failure to comply
with any law, rule, regulation, order or ordinance by the party invoking
the Force Majeure.
14.2 Definition of Force Majeure.
(a) In the case of ▇▇▇▇▇▇, "Force Majeure" under this Agreement
means any delay in the performance of its obligations hereunder due solely
to circumstances beyond its reasonable control, and that could not have
been prevented by due diligence, of ▇▇▇▇▇▇, including without limitation:
acts of God; weather-related events affecting an entire geographic region;
strikes or other labor difficulties; war; riots; requirements, actions, or
failures to act on the part of governmental authorities or changes in the
law or applicable regulations subsequent to the date hereof preventing
performance; inability despite due diligence to obtain or renew required
licenses; accident; earthquake, sabotage; or fire.
(b) In the case of Fuel Manager, "Force Majeure" under this
Agreement means only and is limited to declarations of force majeure by
Nicor Gas under the Nicor T&B Agreement, or by any of NBPL, APL, NGPL or
any pipeline upstream of such pipelines under its tariff or transportation
agreement, or by Peoples Gas under the Peoples Gas T&B Agreement, as the
term "force majeure" is defined and applied in those documents, or a
default by Nicor Gas under the Nicor T&B Agreement not due to Fuel
Manager's failure to fulfill its responsibilities under this Agreement, if
and only to the extent that such declaration(s) result(s) in a curtailment
of transportation or storage service that directly impact Fuel Manager's
ability to execute its responsibilities under this Agreement and are beyond
the reasonable control of, and could not have been prevented by the due
diligence of, Fuel Manager; provided, however, that if a declaration of
-------- -------
force majeure by any of NBPL, APL, NGPL is based on an outage of its
pipeline system upstream of its interconnection with the facilities of
Peoples Gas or Nicor Gas ("Pipeline Outage Condition") or if a declaration
of force majeure by Nicor Gas is based on an outage of its pipeline system
used to provide service to ▇▇▇▇▇▇ ("Nicor Gas Outage Condition") the
parties agree that such Pipeline Outage Condition or Nicor Gas Outage
Condition, as applicable, shall have the effect of converting Fuel
Manager's obligation to provide a firm gas supply into a reasonable efforts
obligation for the duration of the Pipeline Outage Condition or Nicor Gas
Outage Condition, as applicable, and Fuel Manager shall be entitled to
recover from ▇▇▇▇▇▇ (but only to the extent such costs have been approved
by ▇▇▇▇▇▇ in advance) Fuel Manager's costs relating to Fuel Manager's
25
performance during such Pipeline Outage Condition or Nicor Gas Outage
Condition, as applicable. Notwithstanding the foregoing, if Fuel Manager
uses its reasonable efforts to perform during a Pipeline Outage Condition
or Nicor Gas Outage Condition, as applicable and, despite Fuel Manager's
reasonable efforts and the exercise of Fuel Manager's due diligence, is
unable to provide firm gas supply pursuant to this Agreement due to such
Pipeline Outage Condition or Nicor Gas Outage Condition, as applicable,
then such event shall qualify as a "Force Majeure" for Fuel Manager under
this Agreement, subject to the other limitations on Force Majeure set forth
in this Section 13 of this Agreement. Notwithstanding the foregoing
provisions of this subsection (b), the Parties agree that if a declaration
of force majeure by Nicor Gas under the Nicor T&B Agreement results in the
occurrence of a Special Day, such Nicor Gas declaration will not excuse the
Parties' obligations to deliver and receive on such Special Day the
quantity of Gas subsequently agreed upon pursuant to Section 3.1(a), but
that such obligations may be excused by a subsequent declaration of force
majeure by Nicor Gas.
14.3 Exclusions from Force Majeure. Notwithstanding the foregoing, the
term Force Majeure does not include (i) changes in market conditions that affect
the cost of Gas or any alternate supplies of Gas or (ii) Gas supply or
transportation interruptions, except to the extent that Gas is unavailable
generally on the NBPL, APL, NGPL, Nicor Gas or Peoples Gas systems at any price.
14.4 Extended Force Majeure. In no event will any condition of Force
Majeure extend this Agreement beyond its stated Term. If any condition of Force
Majeure delays a party's performance for a time period greater than thirty (30)
days, the party not delayed by such Force Majeure may terminate this Agreement,
without further obligation; provided, however, that if the Force Majeure cannot
-------- -------
be overcome within such thirty (30) days with the exercise of reasonable
diligence, the party not delayed shall grant an additional reasonable period of
time in which to overcome such Force Majeure. In no event will such additional
reasonable period of time exceed three (3) months.
ARTICLE XV
MISCELLANEOUS
15.1 Notices. All notices, requests, demands or statements provided for
in this Agreement shall be in writing and shall be sent by registered or
certified mail, by nationally recognized air courier service or by telecopy (if
confirmed by hard copy delivery by overnight air express). All such notices
shall be deemed given when received; provided, however, if a party refuses
-------- -------
receipt of a notice, then such notice shall be deemed given when receipt is so
refused. Notices shall be sent to the following addresses:
26
Fuel Manager:
Cinergy Marketing & Trading, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administration
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cinergy Marketing & Trading, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-Marketing
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇:
▇▇▇▇▇▇ Energy LLC
c/o Dominion Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Manager
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Peoples Energy Resources Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Energy Commercial Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party shall have the right to change such notice address or add notice
parties, by a notice given as aforesaid.
15.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS. ▇▇▇▇▇▇ AND FUEL MANAGER EACH HEREBY
IRREVOCABLY SUBMITS FOR ITSELF AND IN RESPECT OF ITS PROPERTY TO THE ORIGINAL
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN HOUSTON, TEXAS WITH
REGARD TO ANY SUIT, CLAIM OR ACTION IN ANY WAY RELATED TO THE EXECUTION,
DELIVERY OR
27
PERFORMANCE OF THIS AGREEMENT, AND HEREBY IRREVOCABLY WAIVES ANY AND ALL
OBJECTIONS TO WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
SUITS, CLAIMS OR ACTIONS IN SUCH JURISDICTIONS, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS. THE PARTIES HERETO FURTHER AGREE THAT ANY AND ALL SUCH SUITS, CLAIMS
OR ACTIONS SHALL BE BROUGHT OR FILED EXCLUSIVELY IN SUCH COURTS AND NOWHERE
ELSE.
15.3 Copies. The parties shall provide copies to each other of any
filings they make to FERC or to any state or other federal regulatory agency
having jurisdiction if such filing relates to the subject of this Agreement.
15.4 Non Waiver. The failure of either party to insist in any one or
more instances upon strict performance of any provisions of this Agreement, or
to take advantage of any right hereunder shall not be construed as a waiver of
any such provisions or the relinquishment of any such right or any other right
hereunder.
15.5 Headings. The headings contained in this Agreement are used solely
for convenience and do not constitute a part of the Agreement between the
parties, nor should they be used to aid in the construction of the Agreement or
to limit meaning of any provision.
15.6 Binding Effect. This Agreement shall benefit and bind the parties
hereto and their permitted successors and assigns.
15.7 Severability; Merger. The various provisions and clauses of this
Agreement are severable, and the invalidity of any portion of this Agreement
shall not affect the validity of the remainder of the Agreement. This Agreement
constitutes the entire agreement and supersedes any prior agreements or
understandings, written or oral, between the parties with respect to the subject
matter hereof.
15.8 Confidentiality. Each party agrees that the terms of this
Agreement are confidential and that it will treat in confidence all documents,
materials and other information marked "Confidential" or "Proprietary" by the
disclosing Party ("Confidential Information") which it shall have obtained
during the course of the negotiations leading to, and its performance of, this
Agreement (whether obtained before or after the date of this Agreement).
Confidential Information shall not be communicated to any third party (other
than, in the case of ▇▇▇▇▇▇, to its Affiliates who have a need to know such
information, to its counsel, accountants, financial or tax advisors, or
insurance consultants, to prospective partners and other investors in ▇▇▇▇▇▇ and
their counsel, accountants, or financial or tax advisors, or in connection with
its financing or refinancing; and in the case of Fuel Manager, to its Affiliates
who have a need to know such information, or to its counsel, accountants,
financial advisors, tax advisors or insurance consultants (in each case such
parties hereafter referred to as "Representatives"). Each party hereby agrees to
be responsible for a breach of this provision by its Representatives. As used
herein, the term "Confidential Information" shall not include any information
which (i) is or becomes available to a party from a source other than the other
party, (ii) is or becomes available to the public other than as a result of
disclosure by the receiving party or its agents, (iii) is
28
required to be disclosed under applicable law or judicial, administrative or
regulatory process, but only to the extent it must be disclosed or (iv) was
previously known to the receiving party.
15.9 Disagreements.
(a) The parties shall attempt in good faith to resolve all
disputes promptly by negotiation, as follows. A party may give the other
party written notice of any dispute not resolved in the normal course of
business. Executives of both parties at levels at least one level above the
personnel who have previously been involved in the dispute shall meet at a
mutually acceptable time and place within ten (10) days after delivery of
such notice, and thereafter as often as they reasonably deem necessary, to
exchange relevant information and to attempt to resolve the dispute. If the
matter has not been resolved within thirty (30) days from the referral of
the dispute to senior executives, or if no meeting of senior executives has
taken place within fifteen (15) days after such referral, either party may
initiate legal action. If a party intends to be accompanied at a meeting by
an attorney, the other party shall be given at least three (3) Business
Days' notice of such intention and may also be accompanied by an attorney.
All negotiations pursuant to this clause are confidential.
(b) The Parties agree that no written statements of position or
offers of settlement made in the course of the negotiations described in
Section 15.9(a) above will be offered into evidence for any purpose in any
litigation or arbitration between the parties, nor will any such written
statements or offers of settlement be used in any manner against either
party in any such litigation or arbitration. Further, no such written
statements or offers of settlement shall constitute an admission or waiver
of rights by either party in connection with any such litigation or
arbitration. At the request of either party, any such written statements
and offers of settlement, and all copies thereof, shall be promptly
returned to the party providing the same.
(c) If a disagreement should arise on any matter which is not
resolved as provided in Section 15.9(a), then, pending the resolution of
the disagreement, Fuel Manager shall continue to perform in a manner
consistent with the applicable provisions of this Agreement and ▇▇▇▇▇▇
shall continue to pay all charges and perform all other obligations
required in accordance with the applicable provisions of this Agreement.
15.10 Survival. Any provisions hereof which relate to the period after
the termination of this Agreement shall survive the termination of this
Agreement.
15.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which shall
constitute one and the same document.
29
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
▇▇▇▇▇▇ ENERGY LLC CINERGY MARKETING & TRADING, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. Schomtz
-------------------------- ------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. Schomtz
------------------------ -----------------------------
Title: General Manager Title: Vice President
----------------------- ----------------------------
▇▇▇▇▇▇ ENERGY II, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: General Manager
-----------------------
▇▇▇▇▇▇ ENERGY III, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: General Manager
--------------------------
30