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EXHIBIT 10.25
TRANSITION POWER PURCHASE AGREEMENT
(DUNKIRK - CALL OPTION - PRE-ISO, PRE INVESTMENT GRADE)
This Transition Power Purchase Agreement (the "Agreement") is entered
into as of this 11th day of June, 1999 between Niagara Mohawk Power Corporation
("Niagara Mohawk"), a New York corporation, and Dunkirk Power LLC, a Delaware
limited liability company ("Producer") (each individually a "Party", or
collectively the "Parties").
WHEREAS in November 1997 and on March 6,1998 Niagara Mohawk filed its
Plan for Divestiture of its Non-Nuclear Electric Generating Facilities (the
"Plan") with the New York State Public Service Commission;
WHEREAS on May 6, 1998 the New York State Public Service Commission
approved the Plan subject to certain conditions;
WHEREAS Niagara Mohawk has conducted a Non-Nuclear Generation
Divestiture Auction ("Auction") to divest itself of its non-nuclear electrical
generating facilities, including its ▇▇▇▇▇▇▇ and Dunkirk generating facilities;
WHEREAS Producer or its affiliate has entered into an agreement ("Asset
Sales Agreement, or ASA") to acquire certain facilities from Niagara Mohawk,
facilities, including its Dunkirk generating facility;
WHEREAS Producer, entered into a certain interconnection agreement with
Niagara Mohawk in April, 1999 for the interconnection of the Dunkirk facility;
and
WHEREAS pursuant to the ASA, Niagara Mohawk and Producer agreed to
enter into Transition Power Purchase Agreements pursuant to which; for a certain
period of time, Niagara Mohawk is to purchase from Producer certain quantities
of electricity generated by the facility.
NOW THEREFORE, in consideration of the mutual representations,
covenants and agreements set forth herein, and intending to be legally bound
hereby, the Parties agree as follows:
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ARTICLE 1.
DEFINITIONS
Whenever used in this Agreement with initial capitalization, the
following terms shall have the meanings specified or referred to in this Article
1.
"Agreement" means this Transition Power Purchase Agreement (Dunkirk
- Call Option - Pre-ISO, Pre Investment Grade) dated as of the Closing Date,
between Niagara Mohawk Power Corporation and Producer including all attached
schedules.
"Asset Sales Agreement" or "ASA" means the Asset Sales Agreement dated
as of December 23, 1998, between Niagara Mohawk Power Corporation and NRG
Energy, Inc.
"Business Day" means any day other than Saturday, Sunday and any day
which is a legal holiday or a day on which banking institutions in New York City
are authorized by law or other governmental action to close; and a Business Day
shall open at 8:00 a.m. and close at 5:00 p.m. Eastern Standard (or Daylight)
time.
"Closing" means the closing of the transactions contemplated by the
ASA.
"Closing Date" means the date and time at which the Closing actually
occurs.
"Decline Quantity Cap" means the Maximum Capacity set forth in Schedule
A times the hours that make up the previous six Scheduled Quantity Months
(adjusted for leap year) times the Equivalent Forced Outage Rate ("EFOR") set
forth in Schedule A. The declined quantity shall be calculated on a rolling
Interval basis during the previous six-Scheduled Quantity Months (for example,
hour ending 1400 on February 15, last year through hour ending 1300 February 15,
this year including all of the Scheduled Quantity Months). Furthermore, it is
understood that on the Closing Date, it shall be deemed that the previous
six-Scheduled Quantity Months have an EFOR as listed in Schedule A.
"Delivery Point" means the point at which the interconnection facility
is connected to the transmission system as is indicated on a one-line diagram
included as part of Exhibit A of the Interconnection Agreement.
"Effective Date" means the Closing Date, as such term is defined in the
Asset Sales Agreement between Niagara Mohawk and NRG Energy Inc.
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"Energy Management System" means the computer system Niagara Mohawk
utilizes to control the operations of the bulk power system in the Company's
control area.
"Force Majeure" means (with respect to Firm Transactions) an event not
anticipated as of the Effective Date which is not within the reasonable control
of the Party claiming Force Majeure (the "Claiming Party"), and which, by the
exercise, of reasonable due diligence, the Claiming Party, is unable to overcome
or avoid or cause to be avoided. Force Majeure includes, but is not restricted
to: acts of God; fire; civil disturbance; labor dispute; labor or material
shortage; sabotage; action or restraint by court order to public or governmental
authority (so long as the Claiming Party has not applied for or assisted in the
application for, and has opposed where and to the extent reasonable, such
government action); provided, however, that an event of Force Majeure shall not
include (i) the loss of Niagara Mohawk's power markets; (ii) Niagara Mohawk's
inability economically to use or resell Power purchased hereunder, (iii) the
loss or failure of Producer's Power supply; and (iv) Producer's ability to sell
Power to a market at a more advantageous price. A party's year 2000 computer
compliance failure shall not constitute Force Majeure.
"Interconnection Agreement" means a separate Interconnection Agreement
between Niagara Mohawk Power Corporation and Dunkirk Power LLC.
"Interest Rate" means, for any date, the prime rate of Citibank as may
from time to time be published in The Wall Street Journal under "Money Rates".
"New York Independent System Operator" or "NYISO" means an organization
formed in accordance with orders of the Federal Energy Regulatory Commission to
administer the operation of the transmission system of New York State, to
provide equal access to the bulk power-transmission system and to maintain the
reliability of the transmission system of New York State.
"New York Power Pool" or "NYPP" means an organization established by
agreement ("the New York Power Pool Agreement") made as of July 21, 1966, and
amended as of July 16, 1991, by and among Central ▇▇▇▇▇▇ Gas & Electric
Corporation, Consolidated Edison Company of New York, Inc., Long Island Lighting
Company, New York State Electric & Gas Corporation, Niagara Mohawk Power
Corporation, Orange and Rockland Utilities, Inc., Rochester Gas and Electric
Corporation, and the Power Authority of the State of New York.
"Power" means electric capacity as measured in MW or KW and/or energy
as measured in MWh or KWh. Energy purchased hereunder will include
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applicable reserves (operating capacity), unless the Parties expressly agree
otherwise.
"Price" means the price to be paid per unit as specified by Niagara
Mohawk to Producer for the purchase of Power, including the energy price, demand
charges, and any other charges pursuant to Article 2.
"Quantity" means that quantity of Power that Producer is required to
make available or sell and deliver, or cause to be delivered, to Niagara Mohawk,
and that Niagara Mohawk agrees to purchase and receive, or cause to be received,
from Producer pursuant to Article 3.
"Replacement Price" means, prior to the commencement of the NYISO,
Niagara Mohawk's weighted average purchases and sales in the NYPP for each hour
as found in the Niagara Mohawk's Energy Management System log line 6033-19, and
on or after the commencement of the NYISO, the real time locational based market
price ("LBMP") paid to Producers for energy for each hour, at the Unit's bus bar
or the region in which the Unit's bus bar is located, specified and published by
the NYISO.
"Scheduled Quantity Month" means any calendar month in which a Call
Quantity is pre-scheduled pursuant to Schedule D; specifically the calendar
months of June, July, August, December, January, February, and the month of
March during the year 1999, and 2000 for ▇▇▇▇▇▇▇, but excluding the month of
December during the year 2002 for Dunkirk.
"Scheduling" or "Schedule" means the acts of Producer, Niagara Mohawk
and/or their designated representatives, of notifying, requesting and confirming
to each other the quantity and type of Power to be delivered on a given hour,
day or days at a specified Delivery Point.
"Settlement Date" means the last day of each calendar month during the
Term of this Agreement.
"Settlement Period" means with respect to each Settlement Date the
period from (but excluding) the immediately preceding Settlement Date (or, in
the case of the first Settlement Date, from and including the Effective Date) to
(and including) such Settlement Date (or, in the case of the last Settlement
Date, to and including the end of the Term of this Agreement).
"Transmission Providers" means the entity or entities transmitting or
transporting the Power on behalf of Producer or Niagara Mohawk from the Delivery
Point.
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ARTICLE 2.
TRANSACTIONS
2.1. Term of Agreement. The term of this Agreement will begin upon the Closing
Date of the ASA (the Effective Date) and will terminate upon the earlier of (i)
the fourth anniversary of the Closing Date, or (ii) last day of the month in
which the later of (i) the NYISO goes into operation, or (ii) Niagara Mohawk's
senior notes of the series having the longest maturity then outstanding have
been rated investment grade by (a) S&P and ▇▇▇▇▇'▇ or (b) S&P or ▇▇▇▇▇'▇ and at
least one other rating agency.
2.2. Compensation. For each month during the term, Niagara Mohawk shall pay
Producer one-twelfth of the Call Fee - Stage 1 as set forth in Schedule C. In
addition to the foregoing, if Niagara Mohawk has exercised the Call Option (as
defined in Article 3.1), for a given hour, Niagara Mohawk shall pay Producer the
sum of (A) the product of the hourly Call Quantity multiplied by the Fixed Price
("Pc") as set forth in Schedule C for such hour plus (B) the aggregate Call
Fee-Stage 2 as set forth in Schedule C for each such hour, provided that (x) a
warm start Call Fee - Stage 2 shall apply and a cold start Call Fee shall not
apply with respect to an hour if the respective Unit has been off-line for the
preceding 1 hour, but was on-line during any time in the preceding 10 hours, and
(y) a cold start Call Fee - Stage 2 shall apply, and a warm start Call Fee -
Stage 2 shall not apply, if the Unit has been off-line for the preceding 10
hours. Notwithstanding the provision of (x) and (y), a Call Fee - Stage 2 shall
not apply if the Unit was on-line in the preceding hour.
2.3. Compensation Adjustment. Compensation as provided by Article 2.2 shall be
offset by Niagara Mohawk's Replacement Power Price less the Fixed Price ("Pc")
(as set forth in Schedule C) multiplied by the quantity of electricity not
delivered in excess of the EFOR targets under Article 3.1. Specifically, in the
event the Call Option is exercised and Producer declines and/or fails to deliver
and such decline and/or failure of non-delivery quantities exceeds the Decline
Quantity Cap, then this Compensation Adjustment shall be made.
2.4. Delivery. Producer will make all of the capacity, energy, and ancillary
services of the Units available to Niagara Mohawk at the Delivery Point.
2.5. Installed Capacity. Niagara Mohawk shall retain the right to claim the
Capacity, and Producer must provide such Capacity, for Niagara Mohawk's capacity
requirements to the NYPP or the NYISO up to the Maximum Capacity set forth in
Schedule A. In the event the Producer is unable to provide Capacity acceptable
to the NYPP or NYISO in the amount claimed by Niagara Mohawk from its
(Producer's) own sources, the Producer must procure the Capacity from the market
and provide it to Niagara Mohawk at no cost to Niagara Mohawk. In
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the event the Producer fails to provide such Capacity, Producer shall be charged
a penalty equivalent to the greater of (i) the penalty rate assessed by the NYPP
or NYISO, or (ii) the capacity rate component of Niagara Mohawk's Service
Classification Number 6 Tariff.
ARTICLE 3.
NIAGARA MOHAWK'S CALL OPTION
3.1 Scheduling and Commitment. Schedule D shall be deemed to be the Call
Quantity. Niagara Mohawk shall have the right ("the Call Option") to require
Producer to commit, schedule, and generate electrical output by the Units up to
the Call Quantity Cap as set forth in Schedule B not to exceed the Maximum
Capacity in Schedule A for any hour. Notwithstanding the foregoing, Producer
shall retain the right to refuse a portion of a Call Quantity for a Unit if the
Unit is unavailable or derated sufficiently to be unable to fulfill a portion of
the Call Quantity. Any such refusal with respect to a Call Quantity, for each
Settlement Period, shall be limited to the Decline Quantity Cap. In the event
the Decline Quantity Cap is reached during a Settlement Period, Producer shall
compensate Niagara Mohawk in accordance with Article 2.3. Producer shall
immediately notify Niagara Mohawk of any such refusal, the reason for such
refusal and the Call Quantity refused. At the request of Niagara Mohawk,
Producer shall provide evidence Of such Unit unavailability or derate. Any Call
Option exercised by Niagara Mohawk which is refused by Producer in accordance
herewith shall be deemed not to have been exercised.
For any exercised Call Option refused by Producer, Niagara Mohawk shall have the
right to make up such quantities.
3.2 Exercise of Call Option. Niagara Mohawk may exercise the Call Option with
respect to any Interval by delivery of an exercise notice to Producer (which may
be delivered orally, including by telephone). Any such notice shall specify the
relevant Interval and Call Quantity (in MWh), and shall be given prior Friday at
5:00 PM (EST) for the following week.
If any notice is delivered orally, Niagara Mohawk will execute and deliver a
written confirmation confirming the substance of that notice within two Business
Days of that notice. Failure to provide that written confirmation will not
affect the validity of that oral notice.
3.3 Ancillary Service. Niagara Mohawk may request and, subject to unit
availability, Producer must commit Unit(s) to be utilized for ancillary services
to the NYPP or NYISO or Niagara Mohawk. Niagara Mohawk may utilize the full
operating capacity available from the units it commits for its contribution to
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operating capacity and reserve obligations to the NYPP or NYISO, subject to unit
availability as determined by Producer in its sale discretion. Niagara Mohawk
shall have the right during the term of the Agreement to commit, schedule, and
designate for dispatch (if the Unit is capable of receiving base points from the
NYPP or NYISO) any and all of the Units. Niagara Mohawk shall have the right to
require Unit(s) be available for economic dispatch for purposes of providing
ancillary services to the NYPP or NYISO and may rely on Unit(s) to provide
voltage support, load following, regulation, reserves, and other similar
ancillary services. Changes in the quantity that result from this Article 3.3
shall apply to the Call Quantity.
3.4 Scheduling and Commitment Limitations. Call Quantities shall be subject to
the following limitations: (i) no individual Unit Call Quantity nomination
schedule can change by more than its response rate (set forth in Schedule A
hereto); and (ii) Minimum Capacity and Minimum Down Time (set forth in Schedule
A hereto), must be adhered to in the nomination of Call Quantities (e.g. to
adhere to the Minimum Down Time, if a Call Quantity is scheduled to zero, the
Call Quantity cannot exceed zero again until the Minimum Down Time is met.
ARTICLE 4.
PAYMENT
4.1 Payment. Producer shall provide Niagara Mohawk with an invoice setting forth
the quantity of power which was delivered to Niagara Mohawk during the preceding
calendar month, the total amount due from Niagara Mohawk, and any applicable
supporting documentation. Niagara Mohawk shall remit the amount due by wire
transfer, or as otherwise agreed, pursuant to Producer's invoice instructions,
on the later of fifteen days from receipt of Producer's invoice or the
twenty-fifth (25th) day of the calendar month in which the invoice is rendered.
4.2 Overdue Payments. Overdue payment shall accrue interest at the Interest Rate
from, and including, the due date to, but excluding, the date of payment.
4.3 Billing Dispute. If Niagara Mohawk, in good faith, disputes an invoice,
then Niagara Mohawk shall immediately notify Producer of the basis for the
dispute and pay the portion of such statement conceded to be correct no later
than the due date. If any amount withheld under dispute by Niagara Mohawk is
ultimately determined (under the terms herein) to be due to Producer, then the
disputed amount shall be paid within one (1) day of such determination along
with interest accrued at the Interest Rate until the date paid. Inadvertent
overpayments shall be returned by Producer upon request or deducted by Producer
from subsequent payments, with interest accrued at the Interest Rate until the
date paid or deducted.
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ARTICLE 5.
FORCE MAJEURE
5.1 Performance Excused. If either Party is rendered unable by an event of Force
Majeure to carry out, in whole or part, its obligations under the Agreement,
then, for only the pendency of such Force Majeure, the Party affected by the
event (other than the obligation to make payments then due or becoming due with
respect to performance which occurred prior to the event) shall be temporarily
relieved of its obligations insofar as they are affected by Force Majeure but
for no longer period. The Party affected by an event of Force Majeure shall
provide the other Party with written notice setting forth the full details
thereof within two (2) business days after the occurrence of such event and
shall take all reasonable measures to mitigate or minimize the effects of such
event of Force Majeure; provided, however, that this provision shall not require
Producer to deliver, or Niagara Mohawk to receive, Power at points other than
the Delivery Point.
ARTICLE 6.
TITLE TRANSFER; LIABILITY
6.1 Title and Risk of Loss. Title to and risk of loss related to the Quantity
shall transfer from Producer to Niagara Mohawk at the Delivery Point. Producer
warrants that it will deliver to Niagara Mohawk the Quantity free and clear of
all liens, claims and encumbrances arising prior to the Delivery Point.
6.2 Indemnity. Each Party shall indemnify, defend and hold harmless the other
Party from any Claims arising from any act or incident occurring during the
period when control and title to Power is vested, as between the Parties as
provided in Article 6.1, in the indemnifying Party. "Claims" means all third
party claims or actions, threatened or filed and, whether groundless, false or
fraudulent, that directly or indirectly relate to the subject matter of an
indemnity, and the resulting losses, damages, expenses, reasonable attorneys'
fees and court costs, whether incurred by settlement or otherwise, and whether
such claims or actions are threatened or filed prior to or after the termination
of this Agreement.
6.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages
and covenants and that it will use commercially reasonable efforts to minimize
any damages it may incur as a result of the other Party's performance or
non-performance of this Agreement.
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ARTICLE 7.
LAW
7.1 Governing Law and Jurisdiction. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Any lawsuits arising under this AGREEMENT shall
be instituted in the Federal or State courts of New York located in the City of
Syracuse and each Party hereby irrevocably submits to the in personam
jurisdiction of such courts. Each Party herein waives its respective right to a
jury trial with respect to any litigation arising under or in connection with
this Agreement or any Transaction.
ARTICLE 8.
MISCELLANEOUS
8.1 Assignment. Neither Party shall assign this Agreement or its rights
hereunder without the prior written consent of the other Party; provided,
however, either Party may, without the consent of the other Party (and without
relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber
or assign this Agreement or the accounts, revenues or proceeds hereof in
connection with any financing or other financial arrangements, (ii) transfer or
assign this Agreement to an affiliate of such Party which affiliate's
creditworthiness is not materially different than that of such Party, or (iii)
transfer or assign this Agreement to any person or entity succeeding to all or
substantially all of the assets of such Party; provided, however, that in each
such case, any such assignee shall agree in writing, to be bound by the terms
and conditions hereof and creditworthiness is not materially different than that
of such Party.
8.2 Notices. 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, as of confirmation), if delivered personally, if sent
by telecopy (which is confirmed) or if sent by overnight courier (providing
proof of delivery) to the Parties at the following addresses (or at such other
addresses for a Party as shall be specified by like Notice). Scheduling and
dispatching Notices can be given orally as outlined in Article 3.
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TO NIAGARA MOHAWK:
NOTICES & CORRESPONDENCE: SCHEDULING:
Niagara Mohawk Power Corporation (▇▇▇) ▇▇▇-▇▇▇▇
Supply Services - HCB#3 (315) 460-2425
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Fax - (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
DISPATCHERS:
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax - (▇▇▇) ▇▇▇-▇▇▇▇
INVOICES: CHECK PAYMENTS:
Niagara Mohawk Power Corporation Niagara Mohawk Power Corp.
Power Scheduling and Billing - HCB#3 Misc. Accounts Receivable C-3
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ PAYMENTS BY WIRE:
Citibank New York
Account #: ▇▇▇▇▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
Credit To: Niagara Mohawk Power
Corporation
TO PRODUCER:
NOTICES & CORRESPONDENCE: PAYMENTS:
Dunkirk Power LLC LaSalle National Bank, Chicago
1221 Nicollet Mail ABA #: 071 000 505
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Account #: 58 000 768 52
Attn: President Beneficiary: NRG Energy, Inc.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
INVOICES: SCHEDULING:
Attn: ▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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8.3. General. This Agreement (including the Schedules attached hereto)
constitutes the entire agreement between the Parties with respect to the subject
matter contemplated by this Agreement. The Agreement shall be considered for all
purposes as prepared through the joint efforts of the Parties and shall not be
construed against one Party or the other as a result of the preparation,
substitution, submission or other event of negotiation, drafting or execution
hereof. No amendment or modification to this Agreement shall be enforceable
unless reduced to writing and executed by both Parties. This Agreement shall not
impact any rights enforceable by any third party (other than a permitted
successor or assignee bound to this Agreement). No waiver by a Party of any
default by the other Party shall be construed as a waiver of any other default.
Any provision declared or rendered unlawful by any applicable court of law or
regulatory agency or deemed unlawful because of a statutory change will not
otherwise affect the remaining lawful obligations that arise under this
Agreement. The term "including" when used in this Agreement shall be by way of
example only and shall not be considered in any way to be in limitation. The
headings used herein are for convenience and reference purposes only. All
indemnity and audit rights shall survive the termination of this Agreement for
six years.
8.4. Audit. If requested, a Party shall provide to the other Party statements
evidencing the quantities of Power delivered at the Delivery Point. If any such
examination reveals any inaccuracy in any statement, the necessary adjustments
in such statement and the payments thereof will be made promptly and shall bear
interest calculated at the Interest Rate from the date the overpayment or
underpayment was made until paid; provided, however, that no adjustment for any
statement or payment will be made unless objection to the accuracy thereof was
made prior to the lapse of one (1) year from the rendition thereof.
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TRANSITION POWER PURCHASE AGREEMENT
(DUNKIRK - CALL OPTION -- PRO-ISO, PRE INVESTMENT GRADE)
The Parties have executed this Agreement in multiple counterparts to be
construed as one effective as of the Effective Date.
DUNKIRK POWER LLC NIAGRA MOHAWK POWER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Vice President
Date: 6/11/99 Electric Delivery
Date: 6/4/99
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