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Exhibit
10(a)
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BELLINGHAM EXECUTION AGREEMENT
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THIS BELLINGHAM EXECUTION AGREEMENT (the " Agreement
") is entered into as of August 19, 2004 (the " Contract
Date "), between Boston Edison Company (" BECo ")
and Commonwealth Electric Company (" CECo ") (BECo and CECo
each, a " Utility ", jointly, the " Utilities ") and
Northeast Energy Associates, A Limited Partnership, a Massachusetts
limited partnership (" NEA "). The Utilities and NEA
are sometimes referred to individually in this Agreement as a "
Party " and collectively as the " Parties
."
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RECITALS
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A. The Utilities and NEA are parties to certain Power Purchase
Agreements, as amended, and as set forth in Schedule A hereof
(individually, BECo A , BECo B ,
CECo 1 , CECo 2 , collectively, the "
Power Purchase Agreements ") pursuant to which the
Utilities purchase from NEA contract capacity and the associated
energy generated by NEA's Bellingham power generation facility (the
" Facility "). On October 17, 2003, Utilities
requested the submission of proposals regarding the transfer of
entitlements to certain power purchase agreements. In response, on
December 3, 2003, NEA proposed the restructuring of the Power
Purchase Agreements. The implementation of the agreement of the
Parties with respect to the Utilities' request for proposals and
NEA's proposal for the restructuring of the Power Purchase
Agreements is effectuated by the provisions of this Agreement,
including the Interim Amount Adjustments (as hereinafter defined),
and the Amended and Restated Power Purchase Agreements (as
hereinafter defined).
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B. In connection with a financing relating to the Facility and a
nominal 300 MW natural gas-fired electrical and steam generating
plant owned by North Jersey Energy Associates, A Limited
Partnership (" NJEA ") in the town of Sayreville, New
Jersey (the " Sayreville Facility "), ESI Tractebel
Funding Corp., a Delaware corporation (formerly IEC Funding
Corporation) (" ESI Funding ") issued its senior
secured securities (the " Senior Secured Notes ")
pursuant to that certain Trust Indenture, dated as of
November 15, 1994, among ESI Funding, NEA, NJEA and State
Street Bank and Trust Company, as trustee (the " Senior
Trustee "), as supplemented by that certain First
Supplemental Indenture dated as of November 15, 1994, and that
certain Second Supplemental Trust Indenture dated as of
January 14, 1998, (collectively, the " Senior
Indenture "). As part of the security for the Senior
Secured Notes, NEA collaterally assigned its right, title and
interest in and to the Power Purchase Agreements to the Senior
Trustee on behalf of the holders of the Senior Secured Notes (the "
Senior Note Holders "), and pledged all of the
revenues received under, and granted a priority perfected security
interest in, the Power Purchase Agreements to the Senior Trustee on
behalf of the holders of the Senior Note Holders pursuant to the
Senior Indenture and related security documents. The Senior Secured
Notes are also secured by NEA's interests in the Facility and its
related revenue-generating agreements.
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C. In connection with an additional financing to, among other
purposes, acquire and provide additional capital for the Facility
and the Sayreville Facility, ESI Tractebel Acquisition Corp., a
Delaware corporation (" ESI Acquisition, " and
together with ESI Funding, the " Issuers ") issued
its secured securities (the " Junior Secured Notes ")
pursuant to that certain Indenture, dated as of February 19,
1998, among ESI Acquisition, Northeast Energy, LP, a Delaware
limited partnership (" NELP ") and Northeast Energy,
LLC, a Delaware limited liability company (" NELLC ")
directly and wholly owned by NELP, and State Street Bank and Trust
Company, as trustee (the " Junior Trustee "), as
supplemented by that certain First Supplemental Indenture dated as
of February 19, 1998, (collectively, the " Junior
Indenture "). The Junior Secured Notes are payable by NELP
from distributions to it by NEA and NJEA.
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D. Simultaneously with the execution of this Agreement, the
Utilities and NEA have executed and delivered amended and restated
power purchase agreements (attached hereto as Schedule D and, as
amended by the New PPA Amendments (as hereinafter defined), if any,
collectively, the " Amended and Restated Power Purchase
Agreements ") to provide, among other things, that NEA will
sell and deliver and the Utilities will purchase and receive
certain energy and a stated amount of capacity from the Facility
and/or from sources other than the Facility. The Amended and
Restated Power Purchase Agreements, the agreements and documents
described in Section 2.2 hereof to which either or both of the
Utilities is a party and the other certificates, instruments and
documents to be delivered by the Utilities to consummate the
Transactions (as hereinafter defined) and perform its obligations
as contemplated hereby and thereby are collectively referred to as
the " NSTAR Documents ".
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E. NEA will collaterally assign all of its rights under the Amended
and Restated Power Purchase Agreements to the Senior Trustee on
behalf of the Senior Note Holders as collateral security for the
Senior Secured Notes pursuant to the " Assignment
Agreement ".
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F. On the Closing Date (as hereinafter defined): (1) the
Amended and Restated Power Purchase Agreements will become
effective in accordance with their terms, superceding the Power
Purchase Agreements and (2) the collateral assignment
contemplated by the Assignment Agreement will occur. The foregoing
(and any necessary transactions between NEA and the Utilities
incident to any of them) shall collectively be referred to herein
as the " Transactions ".
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G. The Closing Date will not occur until the Massachusetts
Department of Telecommunications and Energy (the "
MDTE ") has approved this Agreement, the Amended and
Restated Power Purchase Agreements, and the Transactions, in each
case, by a written decision (herein, the " MDTE Order
") that: (1) is reasonably acceptable in form and substance to
the Utilities and NEA; (2) is final and
non-appealable, unless such condition is waived in writing by the
Parties (the " Final Decision "); and
(3) includes the findings set forth in Schedule G hereof
(the " Required Findings "). The date on which the
MDTE Order containing the Required Findings becomes the Final
Decision is referred to herein as the " Final Order
Date ." The date on which the Utilities shall cause the
Petition (as hereinafter defined) to be filed with the MDTE is
referred to herein as the " Filing Date ".
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H. The Parties believe that the consummation of the Transactions on
the terms set forth herein and in the Execution Documents (as
hereinafter defined) is in their respective best
interests.
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NOW, THEREFORE, in consideration of the foregoing and of the
agreements contained herein, the Parties agree as
follows:
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ARTICLE 1
DEFINITIONS
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In addition to terms defined in the introductory paragraph to this
Agreement, the following terms shall have the meanings set forth
below:
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"
Adjusted Bid Price Amount " shall mean the Initial NEA Bid
Price Amount plus the Bid Date On-Peak Energy Cost, minus the
Calculation Date On-Peak Energy Cost. The Adjusted Bid Price Amount
will be calculated and agreed to by the Parties on the Calculation
Date.
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(i) Schedule 1 to this Agreement sets forth specific numerical
values used to calculate various components of the Bid Date On-Peak
Energy Cost and the Calculation Date On-Peak Energy Cost as well as
sample numerical values used to calculate a sample Bid Date On-Peak
Energy Cost and a sample Calculation Date On-Peak Energy Cost,
which sample values shall be replaced with actual values for the
Bid Date On-Peak Energy Cost and the Calculation Date On-Peak
Energy Cost as of the Calculation Date in order to calculate the
actual Adjusted Bid Price Amount, which shall be calculated and set
forth on Schedule 1.5. The Parties acknowledge and agree that
the mathematical operations (addition, subtraction, multiplication
and division) performed on the numerical values contained or to be
contained in Schedules 1 and 1.5 in order to calculate the
Adjusted Bid Price Amount are embedded as functions in a Microsoft
Excel spreadsheet, a copy of which has been provided to each
Party.
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(ii) It is the intent of the Parties that the provisions of this
Agreement shall be construed consistently with Schedules 1 and
1.5 and the sample calculations contained therein, and that
together such provisions and schedules shall embody the agreement
of the Parties with respect to the calculation of the Adjusted Bid
Price Amount.
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" Affiliate " shall mean, with respect to any Person, any
other Person that directly or indirectly through one or more
intermediaries' controls, is controlled by, or is under common
control with, such first Person. As used in this definition,
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
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"
Amended and Restated Power Purchase Agreements " shall have
the meaning set forth in the Recitals.
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"
Assignment Agreement " shall have the meaning set forth in
the Recitals.
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"
Audit " shall have the meaning set forth in
Section 5.2(c).
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" BECo A " shall have the meaning set forth in
Schedule A.
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"
BECo B " shall have the meaning set forth in
Schedule A.
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"
Bid Date Gas Price " shall mean, for any month during the
Term, the price of natural gas for such months as set forth in
Schedule 1.
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"
Bid Date On-Peak Energy Cost " shall mean the present value
of the monthly Bid Date On-Peak Energy Cost for each month in the
Term, which shall be calculated on the Calculation Date, pursuant
to which (a) for each month during the Term, the monthly Bid
Date On-Peak Energy Cost, expressed in dollars, will equal the
product of (i) the applicable monthly Bid Date Gas Price,
expressed in $/MMBtu, (ii) 8.6 MMBtu/MWh, and (iii) the
applicable aggregate monthly volume of On-Peak MWh as set forth in
Schedule 1 and (b) the present value of the monthly Bid Date
On-Peak Energy Cost will be discounted to April 1, 2004, at an
annual discount factor of 8.1%.
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"
Business Day " shall mean any day that is not a Saturday,
Sunday, or NERC Holiday.
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"
Calculation Date " shall mean the Business Day immediately
prior to the Closing Date.
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"
Calculation Date On-Peak Energy Cost " shall mean the
present value of the monthly Calculation Date On-Peak Energy Cost
for each month in the Term, which shall be calculated on the
Calculation Date, pursuant to which (a) for each month during
the Term, the monthly Calculation Date On-Peak Energy Cost,
expressed in dollars, will equal the product of (i) the
applicable monthly Forward NYMEX Gas Price, expressed in $/MMBtu,
(ii) 8.6 MMBtu/MWh, and (iii) the applicable aggregate
monthly volume of On-Peak MWh as set forth in Schedule 1 and
(b) the present value of the monthly Calculation Date On-Peak
Energy Cost will be discounted to April 1, 2004, at an annual
discount factor of 8.1%.
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" CECo 1 " shall have the meaning set forth in
Schedule A.
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"
CECo 2 " shall have the meaning set forth in
Schedule A.
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"
Closing Date " shall have the meaning set forth in
Section 2.2.
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"
Closing Date Amount " shall mean the sum of (a) through (g)
below. The amounts in (b) through (g) result from the calculations
described therein and performed on the Calculation Date for each
calendar month (or portion of a calendar month) during the Interim
Period:
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(a) $27,747,383.90, plus
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(b) the product of (i) the Net Delivered MWhs delivered from
the Facility in that month plus any Interim Period Make Up
Delivery, but in no event an energy quantity greater than the
aggregate of the Interim Period On-Peak Delivery Quantities and
Interim Period Off-Peak Delivery Quantities and (ii) the
Interim Period Support Payment Rate, plus
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(c) the product of (i) the Net Delivered MWhs delivered from
the Facility during On-Peak Hours at the applicable Interim Period
Delivery Points up to the Interim Period On-Peak Delivery
Quantities, and (ii) the Interim Period On-Peak Energy Price
at the applicable Interim Period Delivery Point, expressed as a
$/MWh, plus
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(d) the product of (i) the Net Delivered MWhs delivered from
the Facility during On-Peak Hours at the applicable Interim Period
Delivery Points in excess of the Interim Period On-Peak Delivery
Quantities and (ii) the applicable hourly DAM LMP Prices at
the applicable Interim Period Delivery Points, expressed as a
$/MWh, plus
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(e) the product of (i) the Net Delivered MWhs delivered from
the Facility during Off-Peak Hours at the applicable Interim Period
Delivery Points and (ii) the applicable hourly DAM LMP Prices
at the applicable Interim Period Delivery Points, plus
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(f) the product of (i) a price, expressed in dollars per
MW-month and determined in accordance with the procedure set forth
in Section 4.1(b) of the Amended and Restated Power Purchase
Agreements and (ii) the quantity of capacity, expressed in
units of MW, delivered under the Power Purchase Agreements during
such month, minus
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(g) any amounts actually paid by the Utilities to NEA under the
Power Purchase Agreements during such month;
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provided, that where applicable, a good faith estimate will be made
of the amounts under clauses (a) through (g), above, which amounts
will be adjusted in the next billing cycle to reflect actual
calculations performed promptly after the Contract Date in the case
of (a) above or after the Closing Date in the case of (b) through
(g) above. Prior to the Closing Date, the Utilities and NEA shall,
at the request of either Party, exchange sample calculations of the
Closing Date Amount.
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"
Closing Payment " shall have the meaning set forth in
Section 5.5.
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"
Consent to Collateral Assignment " shall have the meaning
set forth in Section 2.2(b)(iii).
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"
Contract Date " shall have the meaning set forth in the
Preamble.
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"
DAM LMP Prices " in any hour for any node in NEPOOL shall
mean the LMP prices resulting from the Day-Ahead Energy
Market.
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"
Day-Ahead Energy Market " or " DAM " shall have the
meaning as set forth in that certain Manual for Definitions and
Abbreviations prepared by ISO, as may be amended from time to
time.
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"
Data " shall have the meaning set forth in
Section 5.4(b).
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"
Deadline " shall mean March 31,
2005.
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"
Effective Time " shall mean 11:59 PM EPT on the Closing
Date.
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"
EPT " shall mean either Eastern Standard Time or Eastern
Daylight Savings Time, as in effect from time to time.
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"
ESI Acquisition " shall have the meaning set forth in the
Recitals.
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"
ESI Funding " shall have the meaning set forth in the
Recitals.
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"
Execution Documents " shall mean, collectively, this
Agreement, together with the Schedules hereto, the Amended and
Restated Power Purchase Agreements, that certain Stipulation of
Agreement of Non-Disclosure of Confidential or Protected
Information entered into between the Parties, and any amendments to
any of these documents made after the Contract Date.
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"
Existing Prices " shall mean the prices for energy and
capacity set forth in the Power Purchase Agreements, as
applicable.
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"
Facility " shall have the meaning set forth in the
Recitals.
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"
FERC " shall mean the United States Federal Energy
Regulatory Commission and shall include its successors.
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"
Filing Date " shall have the meaning set forth in the
Recitals.
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"
Final Decision " shall have the meaning set forth in the
Recitals.
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"
Final Order Date " shall have the meaning set forth in the
Recitals.
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"
Forward NYMEX Gas Price " shall mean, for any month during
the Term, the forward price for natural gas delivered to the Henry
Hub for such month as posted by NYMEX as of the close of trading on
the trading day immediately preceding the Calculation Date. With
respect to any calendar month during the Term for which no such
price is posted by NYMEX, the Forward NYMEX Gas Price will be such
price posted by NYMEX for the same calendar month of the latest
year for which such a forward price is posted by NYMEX.
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"
Gas Transactions " shall mean natural gas wholesale
transactions.
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"
Initial NEA Bid Price Amount " shall mean negative
$12,566,453.
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"
Interim Amount Adjustments " shall mean the Closing Date
Amount paid pursuant to Section 5.4.
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"
Interim Period " shall mean the period commencing with the
hour ending 0100 EPT on the day immediately following the Contract
Date and ending on, and including, the earlier of (a) the
Closing Date and (b) the Deadline.
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"
Interim Period Delivery Points " shall mean the delivery
points for the delivery of energy by NEA to the Utilities during
the Interim Period, which shall be the same delivery points as the
delivery points under the applicable Power Purchase Agreement, as
shown on attached Schedule 5.3 hereto.
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"
Interim Period Delivery Rate " shall mean the hourly rates
during each month of the Interim Period at which NEA is projected
to deliver energy to the Utilities at each of the Interim Period
Delivery Points, expressed in MW and as set forth on
Schedule 5.3.
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"
Interim Period Make Up Delivery " shall have the meaning set
forth in Section 5.4(a).
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"
Interim Period Off-Peak Delivery Quantities " shall mean the
monthly aggregate quantities of Off-Peak Hours energy that NEA is
projected to deliver to the Utilities at each of the Interim Period
Delivery Points during the Interim Period, expressed in MWh and as
set forth on Schedule 5.3.
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"
Interim Period On-Peak Delivery Quantities " shall mean the
monthly aggregate quantities of On-Peak Hours energy that NEA is
projected to deliver to the Utilities at each of the Interim Period
Delivery Points during the Interim Period, expressed in MWh and as
set forth on Schedule 5.3.
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"
Interim Period On-Peak Energy Price " shall mean, during the
Interim Period, a monthly scheduled price the Utilities will pay
NEA for energy delivered from the Facility during On-Peak Hours at
each of the Interim Period Delivery Points, expressed in $/MWh and
as set forth on Schedule 5.3.
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"
Interim Period Support Payment Rate " shall mean, during the
Interim Period, a scheduled dollar amount the Utilities will pay
NEA for delivered energy in each month at each of the Interim
Delivery Points, expressed in $/MWh and as set forth on
Schedule 5.3.
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"
ISO " shall mean ISO New England, Inc., or its
successors.
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"
Issuers " shall have the meaning set forth in the
Recitals.
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"
Junior Indenture " shall have the meaning set forth in the
Recitals.
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"
Junior Secured Notes " shall have the meaning set forth in
the Recitals.
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"
Junior Trustee " shall have the meaning set forth in the
Recitals.
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"
LMP " shall mean, for any ISO nodal point for any hour on
any day, the "Day Ahead LMP" or "Real Time LMP" ($/MWh) at such ISO
nodal point calculated in accordance with Section 2 of Market
Rule 1, as reported on the ISO website at www.iso-ne.com on
the "Data & Reports" page, "Hourly Markets Data" subpage and
"Selectable Hourly LMP Data" category, for such nodal point on such
date and time. If such price should ever cease to be published,
then the LMP shall be a regularly published comparable substitute
price, as agreed to by the Parties in writing.
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"
Material Adverse Change " shall mean an event, matter or
circumstance (including any omission to act) arising after the
Contract Date (but not an event, matter or circumstance which is
reasonably likely to arise as of the date hereof) that has a
detrimental economic impact of $10,000,000 or more to the party
claiming such event, including, without limitation, a change in
applicable law or in the interpretation of any applicable law by
any court of competent jurisdiction or any other governmental
entity, including, without limitation, a change in tax law or a
change to the Public Utility Regulatory Policies Act of 1978, as
amended, or a change in applicable accounting standards. A Materiel
Adverse Change shall not include: (a) any act or omission
expressly contemplated by this Agreement, (b) the execution or
announcement of this Agreement or compliance with the terms hereof,
or (c) any payment of the Interim Amount Adjustments or the
Adjusted Bid Price Amount.
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"
MDTE " shall have the meaning set forth in the
Recitals.
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"
MDTE Order " shall have the meaning set forth in the
Recitals.
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"
Mutual Release " shall have the meaning set forth in
Section 2.2(b)(iv).
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"
NEA Documents " shall mean, collectively, the agreements and
documents described in Section 2.2 hereof to which NEA is a
party (including, without limitation, the Amended and Restated
Power Purchase Agreements) and the other certificates, instruments
and documents to be delivered by NEA to consummate the Transactions
and perform its obligations as contemplated hereby and
thereby.
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"
NELP " shall have the meaning set forth in the
Recitals.
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"
NELLC " shall have the meaning set forth in the
Recitals.
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"
Net Delivered MWhs " shall mean, in any hour at any Interim
Period Delivery Point during the Interim Period, the applicable net
generation from the Facility allocated to the Power Purchase
Agreements as follows: the gross generation from the Facility as
reported by the Utilities to the ISO (and to NEA as Data pursuant
to Section 5.4) shall be allocated to the Power Purchase
Agreements according to the following percentages: BECO A -
46.5517%, BECO B - 28.9655%, CECo 1 - 8.6207% and
CECo 2 - 7.2414%, with each such allocated amount then
multiplied by the following applicable percentage: BECO A -
99.9711%, BECO B - 100%, CECo 1 - 99% and CECo 2 -
99%.
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"
NEPOOL " shall mean the New England Power Pool, or its
successor.
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"
NERC " shall mean the North American Electric Reliability
Council, or its successor.
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" NERC Holiday " shall mean New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day,
and any other day declared a holiday by NERC.
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"
New PPA Amendments " shall mean any amendments to the
Amended and Restated Power Purchase Agreements which are entered
into after the Contract Date and before the Closing Date, which
such amendments shall not impair the validity or effectiveness of
the Final Decision.
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"
NJEA " shall have the meaning set forth in the
Recitals.
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"
NSTAR " shall mean NSTAR Electric & Gas
Corporation.
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"
NSTAR Documents " shall have the meaning set forth in the
Recitals.
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"
NYMEX " shall mean the New York Mercantile
Exchange.
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"
Off-Peak Hours " shall mean all hours that are not On-Peak
Hours.
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"
On-Peak Hours " shall mean, on any Business Day, the sixteen
(16)-hour period beginning at the hour ending 0800 EPT and ending
with the end of the hour ending 2300 EPT.
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"
Petition " shall have the meaning set forth in
Section 5.2(a).
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"
Power Purchase Agreements " shall have the meaning set forth
in the Recitals.
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"
Real-Time Energy Market " or " RTM " shall have the
meaning as set forth in that certain Manual for Definitions and
Abbreviations prepared by ISO, as may be amended from time to
time.
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"
RTM LMP Prices " in any hour for any node in NEPOOL shall
mean the LMP prices resulting from the Real-Time Energy
Market.
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"
Required Finding " shall have the
meaning set forth in the Recitals.
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"
Sayreville Facility " shall have the meaning set forth in
the Recitals.
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"
Senior Indenture " shall have the meaning set forth in the
Recitals.
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"
Senior Note Holders " shall have the meaning set forth in
the Recitals.
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"
Senior Secured Notes " shall have the meaning set forth in
the Recitals.
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"
Senior Trustee " shall have the meaning set forth in the
Recitals.
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"
Term " shall mean the period from and including the first
day of the month immediately following the month in which the
Closing Date occurs through and including September 30,
2016.
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"
Transactions " shall have the meaning set forth in the
Recitals.
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ARTICLE 2
TRANSACTION DELIVERABLES
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2.1. Amended and Restated Power Purchase Agreements
.
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(a) On the Closing Date each Party shall deliver a certificate
stating that all of the applicable conditions precedent set forth
herein and in the Amended and Restated Power Purchase Agreements
have been satisfied or waived by the Party entitled to the benefit
thereof and that the "Effective Date" under the Amended and
Restated Power Purchase Agreements and the New PPA Amendments has
occurred. The Amended and Restated Power Purchase Agreements shall,
among other things, provide: (i) that NEA will sell and
deliver, and the Utilities will purchase and receive, certain
energy and capacity from the Facility and/or from sources other
than the Facility and (ii) that the Utilities shall purchase
and receive such energy and capacity for the "Energy Payment" and
at the "Capacity Price" specified therein.
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(b) Subject to the terms and conditions set forth herein
(including, without limitation, the satisfaction or waiver of the
applicable conditions precedent set forth in Article 6 hereof), on
the Closing Date, the Utilities and NEA agree to commence
performance under the Amended and Restated Power Purchase
Agreements and any New PPA Amendments in accordance with their
terms and cause to be executed and delivered such other instruments
and documents as are contemplated hereby and thereby.
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2.2 Closing .
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(a) Closing Date and Effective Time . Unless this Agreement
is earlier terminated pursuant to the terms hereof, the
Transactions shall be consummated at a closing to be held at
approximately 10:00 a.m. EPT, at a location to be agreed upon
by the Parties, on or as soon as reasonably practicable after the
date that the conditions described in Article 6 hereof have been
satisfied or waived by the Party entitled to the benefit thereof
(the "Closing Date"), provided that the Closing Date shall not be
earlier than January 2, 2005.
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(b) Deliverables by the Utilities . On the Closing Date and
subject to the terms and conditions set forth herein, the Utilities
(as appropriate) shall deliver, or cause to be delivered, to NEA or
its designee:
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(i) the closing certificate described in the first sentence of
Section 2.1(a) hereof;
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(ii) any New PPA Amendments duly executed by the appropriate
Utility ;
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(iii) the Affirmation of Consent to Collateral Assignment (
"Consent to Collateral Assignment" ) between the appropriate
Utility and the Senior Trustee (on behalf of the Senior Note
Holders), in form and substance reasonably acceptable to the
Utility, NEA and the Senior Trustee, the form of which is attached
hereto as Schedule 2.2(b)(iii), duly executed by the Utility,
in which the Utility consents to the collateral assignment by NEA
of the Amended and Restated Power Purchase Agreements to the Senior
Trustee (on behalf of the Senior Note Holders) contemplated by the
Assignment Agreement and provides certain rights and benefits to
the Senior Trustee on behalf of the Senior Note Holders with
respect to the Amended and Restated Power Purchase
Agreements;
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(iv) the Mutual Release between the appropriate Utility and NEA
duly executed by the Utility which provides for a mutual release
between the Utility and NEA of all of their respective obligations
and liabilities under the Power Purchase Agreement arising prior to
the Effective Time (the "Mutual Release" ) the form of which
is attached as Schedule 2.2(b)(iv);
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(v) a certificate, executed by a duly authorized representative of
the Utility (as appropriate), stating that the representations and
warranties of the Utilities set forth in this Agreement and the
Amended and Restated Power Purchase Agreements are true and correct
as of the Closing Date; and
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(vi) such other instruments and documents executed or provided by
the appropriate Utility as may reasonably be required by NEA, the
Senior Trustee or their respective legal counsel to evidence the
consummation of the Transactions, including, without limitation,
those items to be delivered by the Utilities pursuant to
Article 6 hereof.
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(c) Deliverables by NEA. On the Closing Date and subject to
the terms and conditions set forth herein, NEA shall deliver, or
cause to be delivered, to the Utilities or their
designee:
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(i) the closing certificate described in the first sentence of
Section 2.1(a) hereof;
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(ii) any New PPA Amendments duly executed by NEA
;
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(iii) the Mutual Release between the appropriate Utility and NEA
duly executed by NEA;
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(iv) a certificate, executed by a duly authorized representative of
NEA, stating that the representations and warranties of NEA set
forth in this Agreement and the Amended and Restated Power Purchase
Agreements are true and correct as of the Closing Date;
and
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(v) such other instruments and documents executed or provided by
NEA as may reasonably be required by the Utilities to evidence the
consummation of the Transactions, including, without limitation,
those items to be delivered by NEA pursuant to Article 6
hereof.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE UTILITIES
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Each Utility represents and warrants to NEA as of the Contract Date
and as of the Closing Date (except in the event such representation
or warranty by its terms is made only as of a certain date) as
follows:
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3.1. Authority .
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The Utility is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of
Massachusetts and has all requisite corporate power and authority
to enter into and be bound by the terms of this Agreement and,
subject to the satisfaction or waiver by the Utility of the
conditions set forth in Section 6.1 hereof, the NSTAR
Documents. The execution and delivery of, and the performance by
the Utility of its obligations under, this Agreement have been duly
and validly authorized by all necessary corporate action of the
Utility. This Agreement has been duly and validly executed and
delivered by the Utility and constitutes a valid and binding
obligation of the Utility, enforceable against the Utility in
accordance with its terms, except as such enforceability may be
limited by law or principles of equity. On the Closing Date and
subject to the satisfaction or waiver by the Utility of the
conditions set forth in Section 6.1 hereof, the NSTAR
Documents, when executed and delivered by the Utility in accordance
with this Agreement, shall constitute the valid and binding
obligations of the Utility enforceable against the Utility in
accordance with their respective terms, except as such
enforceability may be limited by law or principles of
equity.
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3.2 No Conflicts .
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Subject to the satisfaction or waiver by the Utility of the
conditions set forth in Section 6.1 hereof, neither the
execution and delivery of this Agreement and the NSTAR Documents by
the Utility, nor the consummation or performance of the
Transactions by the Utility, will (a) violate or conflict with
any provisions of the Utility's articles of organization or bylaws,
(b) violate, conflict with or result in the breach or
termination of any material agreement or instrument to which the
Utility is a party or (c) violate or conflict with (or require
any filing, consent, or similar action under) any law, rule,
regulation, judgment, order, injunction, decree or award that
applies to or binds the Utility or its property.
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3.3 Litigation .
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There is no action, claim, demand, suit, proceeding, arbitration,
grievance, citation, summons, subpoena, inquiry or investigation of
any nature, civil, criminal, regulatory or otherwise, in law or in
equity, pending or, to the knowledge of the Utility, threatened
against or relating to the Utility or the Transactions which could
reasonably be expected to (a) have a material adverse effect
on the Transactions or (b) prevent the performance by the
Utility of its obligations under the NSTAR Documents.
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3.4 No Additional Conditions .
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Except for the satisfaction of the conditions specifically
identified in this Agreement (which may be waived by the applicable
Utility), there are no other conditions precedent to (a) the
Utility's execution, delivery or performance of this Agreement and
the NSTAR Documents or (b) the Utility's implementation of the
Transactions.
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3.5 No Brokers .
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Except as set forth on Schedule 3.5 hereto, no finder, broker
or agent has been employed, appointed or authorized to act on
behalf of the Utility in connection with the
Transactions.
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3.6 No Assignment; Amendment .
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BECo and CECo are the sole owners of all right, title and interest
of the power purchaser in, to and under the Power Purchase
Agreements and have not assigned or otherwise transferred their
rights or obligations under the Power Purchase Agreements to any
third party. As of the Closing Date no amendment or modification of
the Power Purchase Agreements is effective, except as identified in
Schedule A hereof. As of the Closing Date no further amendment
or modification of the Power Purchase Agreements will be effective
or pending nor shall the Utility have assigned or otherwise
transferred its rights or obligations under the Power Purchase
Agreements, except pursuant to the Amended and Restated Power
Purchase Agreements and the New PPA Amendments, if any.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NEA
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NEA represents and warrants to the Utilities as of the Contract
Date and as of the Closing Date (except in the event such
representation or warranty by its terms is made only as of a
certain date) as follows:
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4.1 Authority .
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NEA is a limited partnership validly formed and validly existing
under the laws of the Commonwealth of Massachusetts and has all
requisite partnership power and authority to be bound by the terms
of this Agreement and, subject to the satisfaction or waiver by NEA
of the conditions set forth in Section 6.2 hereof, the NEA
Documents. The execution and delivery of, and the performance by
NEA of its obligations under, this Agreement have been duly and
validly authorized by all necessary partnership action of NEA. This
Agreement has been duly and validly executed and delivered by NEA
and constitutes a valid and binding obligation of NEA, enforceable
against NEA in accordance with its terms, except as such
enforceability may be limited by law or principles of equity. On
the Closing Date and subject to the satisfaction or waiver by NEA
of the conditions set forth in Section 6.2 hereof, the NEA
Documents, when executed and delivered by NEA in accordance with
this Agreement, shall constitute the valid and binding obligations
of NEA enforceable against it in accordance with their respective
terms, except as such enforceability may be limited by law or
principles of equity.
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4.2 No Conflicts .
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Subject to the satisfaction or waiver by NEA of the conditions set
forth in Section 6.2 hereof, neither the execution and
delivery of this Agreement and the NEA Documents by NEA, nor the
consummation or performance of the Transactions by NEA, will
(a) violate or conflict with any provisions of NEA's formation
or governance documents, (b) violate, conflict with or result
in the breach or termination of any material agreement or
instrument to which NEA is a party or (c) violate or conflict
with (or require any filing, consent, or similar action under) any
law, rule, regulation, judgment, order, injunction, decree or award
that applies to or binds NEA or its property.
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4.3 Litigation .
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There is no action, claim, demand, suit, proceeding, arbitration,
grievance, citation, summons, subpoena, inquiry or investigation of
any nature, civil, criminal, regulatory or otherwise, in law or in
equity, pending or, to the knowledge of NEA, threatened against or
relating to NEA or the Transactions which could reasonably be
expected to (a) have a material adverse effect on the
Transactions or (b) prevent the performance by NEA of its
obligations under the NEA Documents.
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4.4 No Additional Conditions .
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Except for the satisfaction of the conditions specifically
identified in this Agreement (which may be waived by NEA), there
are no other conditions precedent to (a) NEA's
execution, delivery or
performance of this Agreement and the NEA Documents or
(b) NEA's implementation of the Transactions.
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4.5 No Brokers.
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Except as set forth in Schedule 4.5, no finder, broker or
agent has been employed, appointed or authorized to act on behalf
of NEA in connection with the Transactions.
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ARTICLE 5
COVENANTS
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5.1 Satisfaction of Conditions .
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The Parties agree to cooperate in good faith and to take all
commercially reasonable actions and devote resources reasonably
necessary to comply with their obligations under this
Article 5 and to obtain satisfaction of the conditions set
forth in Article 6 hereof as soon as reasonably practicable,
including using diligent efforts to secure the execution and
delivery of the agreements and other instruments to be executed and
delivered pursuant to Article 2 and Article 6 hereof.
Each Party entitled to the benefit of conditions set forth in
Article 6 hereof shall have the right to waive such
conditions.
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5.2 MDTE Approval .
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(a) At any time after the Contract Date and no later than
forty-five (45) days after NEA provides the Utilities with notice
of waiver or satisfaction of the condition set forth in
Section 6.2 (k) hereof, the Utilities shall file, or cause to
be filed, an initial petition (a "Petition" ) with the MDTE
requesting that the MDTE cause the Final Order Date to occur as
soon as reasonably practicable, but in no event later than
January 1, 2005. As and to the extent permitted by applicable
law, the applicable Utility and NEA intend that certain provisions
of this Agreement and related documents shall be "Confidential
Information" and the applicable Utility and NEA shall seek
confidential treatment by the MDTE of all confidential materials
included in such Petition, or otherwise provided to the MDTE in
support of the Petition. Prior to the Filing Date, the applicable
Utility and NEA will reasonably cooperate with respect to
identifying their respective confidential material in such
agreements and related documents for which the Utility shall seek
confidential treatment and any other materials to be submitted to
the MDTE in support of the Petition. Upon filing of the Petition
with the MDTE, the Parties will support the Petition and the data
contained therein and shall use commercially reasonable efforts to
obtain the Final Decision; provided that if the Final Order Date
has not occurred by January 1, 2005, the Parties shall
continue to use diligent efforts to secure the Final Decision,
subject to their respective rights of termination under
Section 7.1 hereof.
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(b) Each party shall promptly provide to the other (whether in
writing or orally) any information relating to any material event
or development relating to the MDTE review and approval process
referenced in Section 5.2(a) above. In addition, each Party
shall respond promptly and fully to any reasonable inquiries that a
requesting Party may make at any other time relating to such
process.
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(c) From the Contract Date through the Closing Date, neither Party
shall enter into Gas Transactions outside of its ordinary course of
business where such transactions are designed to manipulate the
Adjusted Bid Price Amount. If a Party has cause to believe that
such Gas Transactions have been executed by the other Party, the
first Party may request an audit of the other Party's records (an "
Audit "). The Audit shall be conducted by a nationally
recognized accounting firm reasonably acceptable to the audited
Party and shall be confined to relevant Gas Transactions executed
thirty (30) days prior to the Calculation Date. The Party
requesting the Audit shall bear all costs of the Audit; provided,
however, if the Audit reveals that there is a reasonable basis to
conclude that the audited Party, acting outside of its ordinary
course of business, has manipulated the Adjusted Bid Price Amount,
then the auditor shall recalculate the Adjusted Bid Price Amount
and the audited Party will pay the difference between the Adjusted
Bid Price Amount originally paid and the corrected amount, plus the
cost of the Audit. To the extent the audited Party disputes the
Audit's findings, the audited Party may submit the dispute to the
dispute resolution process set forth at Article 10 of the Amended
and Restated Power Purchase Agreements.
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5.3 Status Pending Closing.
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(a) Continued Effectiveness. The Power Purchase Agreements
will remain in force and effect during the Interim Period and
nothing herein shall constitute or be considered as an amendment or
modification to the Power Purchase Agreements.
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(b) Facility Scheduling . NEA shall continue to use the
Facility to satisfy all capacity and energy obligations under the
Power Purchase Agreements during the Interim Period. The Utilities
will schedule NEA's energy deliveries on a day-ahead basis at the
Interim Period Delivery Points according to the market rules,
manuals and procedures adopted by ISO and/or the
members of NEPOOL. In addition, the
bidding, scheduling and operation of the Facility during the
Interim Period shall be conducted in the same manner and on the
same basis as was conducted during the period preceding the
Contract Date, and shall be based on information customarily and
routinely provided by NEA to the Utilities.
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(c) Energy and Capacity Pricing . During the Interim Period,
NEA will deliver energy and capacity from the Facility and the
Utilities will purchase and receive such energy and capacity from
the Facility. Energy generated by the Facility, and capacity
attributable to the Facility, will be delivered by NEA to the
Utilities at the Interim Period Delivery Points and will be
purchased by the Utilities at the Existing Prices and paid for by
the Utilities in accordance with the terms of the Power Purchase
Agreements.
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(d) Termination of Interim Period . Upon the earlier to
occur of (i) the Closing Date or (ii) the Deadline, the
Interim Period shall terminate and the provisions set forth in
Sections 5.3 and 5.4 shall have no effect and will become
void. If the Closing Date occurs prior to the Deadline, then from
and after the termination of the Interim Period the Amended and
Restated Power Purchase Agreements will govern the relationship
between the Parties. If the Deadline occurs prior to the Closing
Date, then from and after the termination of the Interim Period the
terms and conditions of the Power Purchase Agreements will continue
to govern the relationship between the Parties.
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5.4 Deliveries of Energy Outside of the Power Purchase
Agreements During the Interim Period.
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(a) Interim Period Make Up Delivery . For any hour that the
Facility is not capable of generating energy in a quantity
sufficient for NEA to deliver energy at the Interim Period On-Peak
Delivery Quantities and Interim Period Off-Peak Delivery
Quantities, NEA, or a third party acting on behalf of NEA, shall
deliver at the Interim Period Delivery Points, electric energy in a
quantity equal to the difference between the Net Delivered MWhs
delivered from the Facility and the sum of the Interim Period
On-Peak Delivery Quantities and Interim Period Off-Peak Delivery
Quantities (" Interim Period Make Up Delivery "). An Interim
Period Make Up Delivery will not be subject to a loss adjustment
factor.
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(b) Interim Period Facility Meter Data. During the Interim
Period, the Utilities will use commercially reasonable efforts to
provide NEA with the prior day's hourly net generator values in ISO
upload format applicable to the Facility (" Data ") by no
later than 1:00 PM EPT on the next NSTAR regular working day.
NEA will schedule an Interim Period Make Up Delivery pursuant to
Manual 28, Section 9.1.1 in the RTM upon receipt of such Data.
Any errors will be corrected in the RTM pursuant to Manual 28,
Section 9.1.1. In the event that a Utility fails to confirm a
scheduled Interim Period Make Up Delivery in accordance with NEPOOL
scheduling procedures for the RTM, then the Interim Period Make Up
Delivery scheduled by NEA (whether or not confirmed by the Utility)
plus the Net Delivered MWhs delivered by the Facility during the
relevant period will be deemed to be the relevant Interim Period
On-Peak Delivery Quantities and Interim Period Off-Peak Delivery
Quantities.
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(c) Interim Period Pricing . Energy delivered by or on
behalf of NEA and received by the Utilities pursuant to an Interim
Period Make Up Delivery will be purchased and sold at the RTM LMP
Prices at the applicable Interim Period Delivery Points. Interim
Period Make Up energy will be paid for by the Utilities directly to
NEA or directly to the party providing energy on behalf of NEA
within twenty (20) days of the receipt by the applicable Utility of
an invoice for such energy.
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5.5 Closing Payment .
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(a) Payment Amount . The Closing Payment (equal to the sum
of the Closing Date Amount and the revised Adjusted Bid Price
Amount, as calculated pursuant to Section 5.5(b)), shall be
paid on the Closing Date. If the Closing Payment is a positive
amount, the Utilities shall cause NSTAR to make payment to NEA of
such amount. If the Closing Payment is a negative amount, NEA shall
pay NSTAR, on behalf of the Utilities, the absolute value of such
amount.
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(b) Revised Adjusted Bid Price Amount . For purposes of
calculating the Closing Payment components, the revised Adjusted
Bid Price Amount shall be determined as provided below:
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(i) If, on the Calculation Date, the Adjusted Bid Price Amount is
less than negative $27,566,453, then (A) NEA may elect to have
the revised Adjusted Bid Price Amount be the calculated Adjusted
Bid Price Amount, in which event the Closing Date will occur as
scheduled or (B) the Utilities may elect to have the revised
Adjusted Bid Price Amount be negative $27,566,453, in which event
the Closing Date will occur as scheduled.
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(ii) If, on the Calculation Date, the Adjusted Bid Price Amount is
greater than negative $27,566,453 and less than positive
$2,433,547, the revised Adjusted Bid Price Amount will be the
Adjusted Bid Price Amount.
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(iii) If, on the Calculation Date, the Adjusted Bid Price Amount is
greater than positive $2,433,547, then (A) the Utilities may
elect to have the revised Adjusted Bid Price Amount be the
calculated Adjusted Bid Price Amount, in which event the Closing
Date will occur as scheduled or (B) NEA may elect to have the
revised Adjusted Bid Price Amount equal $2,433,547, in which event
the Closing Date will occur as scheduled.
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(iv) For the avoidance of doubt, if on the Calculation Date, the
Adjusted Bid Price Amount equals zero, the revised Adjusted Bid
Price Amount will be zero.
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(v) If neither election as set forth in Section 5.5(b)(i)
above is made, then the Closing Date may be postponed as provided
in this Section 5.5(b)(v) and on each successive Business Day
the Parties will recalculate the Adjusted Bid Price Amount until
the earlier of: (A) the Business Day preceding the Deadline or
(B) the first date on which the Adjusted Bid Price Amount is
greater than or equal to an amount between negative $27,566,453 and
positive $2,433,547. None of the Parties shall have the obligation
to extend or permit extension of the Closing Date beyond the
Deadline. It is agreed that if the calculation described in clause
(B) does not occur on or before the Business Day preceding the
Deadline, then this Agreement will terminate on the Deadline. It is
further agreed that if such calculation does occur on or before the
Business Day preceding the Deadline, then the Closing Date will
occur on the Business Day immediately following the date of such
calculation, and the revised Adjusted Bid Price Amount will be
determined in accordance with Section 5.5(b)(ii).
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(vi) If neither election as set forth in Section 5.5(b)(iii)
above is made, then the Closing Date may be postponed as provided
in this Section 5.5(b)(vi) and on each successive Business Day
the Parties will recalculate the Adjusted Bid Price Amount until
the earlier of: (A the Business Day preceding the Deadline or
(B) the first date on which the Adjusted Bid Price Amount is
less than or equal to positive $2,433,547 (and not less than
negative $27,566,453). None of the Parties shall have the
obligation to extend or permit extension of the Closing Date beyond
the Deadline. It is agreed that if the calculation described in
clause (B) does not occur on or before the Business Day preceding
the Deadline, then this Agreement will terminate on the Deadline.
It is further agreed that if such calculation does occur on or
before the Business Day preceding the Deadline, then the Closing
Date will occur on the Business Day immediately following the date
of such calculation, and the revised Adjusted Bid Price Amount will
be determined in accordance with
Section 5.5(b)(ii).
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ARTICLE 6
CONDITIONS
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6.1 Conditions to the Obligations of the Utilities
.
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The Utility's obligation to effect the Transactions is subject to
the satisfaction at or before the Closing Date of the following
conditions (any of which the applicable Utility may
waive):
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(a) Representations and Warranties . All of the
representations and warranties of NEA herein shall be true and
correct in all respects as though made on and as of the Closing
Date (unless the incorrectness of such representations and
warranties does not have a material adverse effect on the Utility's
rights herein), and NEA shall have delivered the certificate
referred to in Section 2.2(c)(iv). NEA shall have performed,
or caused to be performed, all of the agreements and covenants to
be performed by NEA under this Agreement as of the Closing Date,
unless the non-performance of such agreements and covenants does
not have a Material Adverse Change on the Utility's rights
herein.
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(b) No Legal Restraint . The applicable Utility shall not be
subject to any order, decree, injunction, or other legal restraint
or prohibition of a court or agency of competent jurisdiction that
would enjoin, prohibit or interfere with the consummation of the
Transactions.
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(c) Documents . NEA shall have executed and delivered the
Amended and Restated Power Purchase Agreements and any New PPA
Amendments and the other NEA Documents, and all other documents
required to be executed and delivered by it pursuant to this
Agreement.
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(d) MDTE Final Decision . The MDTE Order containing the
Required Findings shall have become a Final Decision.
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(e) Litigation . There shall be no action, claim, demand,
suit, proceeding, arbitration, grievance, citation, summons,
subpoena, inquiry or investigation of any nature, civil, criminal
or regulatory, in law or in equity, by or before any governmental
authority with valid jurisdiction pending, or to the knowledge of
the Utility, threatened in writing against the Utility or against
or related to the Transactions which could reasonably be expected
to have a Material Adverse Change on the consummation of the
Transactions.
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(f) NEPOOL/ISO . As related to the Amended and Restated
Power Purchase Agreements, any and all necessary filings or notices
shall have been given or made with NEPOOL and/or ISO and any and
all approvals or authorizations concerning the Amended and Restated
Power Purchase Agreements shall have been received in a form
reasonably acceptable to the Utilities.
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(g) Accounting and Tax Treatment . Each Utility and each of their Affiliates
shall be entitled to accounting treatment and tax treatment
reasonably satisfactory to each of them relating to the
Transactions.
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6.2 Conditions to the Obligations of NEA
.
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NEA's obligation to effect the Transactions is subject to the
satisfaction at or before the Closing Date of the following
conditions (any of which NEA may waive):
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(a) Representations and Warranties . All of the
representations and warranties of the Utilities herein shall be
true and correct in all respects as though made on and as of the
Closing Date (unless the incorrectness of such representations and
warranties does not have a material adverse effect on NEA's rights
herein), and each Utility shall have delivered the certificate
referred to in Section 2.2(b)(v). Each Utility shall have
performed, or caused to be performed, all of the agreements and
covenants to be performed by the Utilities under this Agreement as
of the Closing Date, unless the non-performance of such agreements
and covenants does not cause a Material Adverse Change on NEA's
rights herein.
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(b) No Legal Restraint . NEA shall not be subject to any
order, decree, injunction, or other legal restraint or prohibition
of a court or agency of competent jurisdiction that would enjoin,
prohibit or interfere with the consummation of the
Transactions.
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(c) Documents . Each Utility shall have executed and
delivered any New PPA Amendments and the other NSTAR Documents, and
all other documents required to be executed and delivered by it
pursuant to this Agreement.
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(d) MDTE Final Decision . The MDTE Order containing the
Required Findings shall have become a Final Decision.
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(e) Litigation . There shall be no action, claim, demand,
suit, proceeding, arbitration, grievance, citation, summons,
subpoena, inquiry or investigation of any nature, civil, criminal
or regulatory, in law or in equity, by or before any governmental
authority with valid jurisdiction pending, or to the knowledge of
NEA, threatened in writing against NEA or against or related to the
Transactions which could reasonably be expected to have a Material
Adverse Change on the consummation of the Transactions.
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(g) Lender Approvals. NEA shall have obtained approvals,
certifications, rating confirmations and other arrangements
acceptable to NEA in its sole discretion (not to be arbitrarily
exercised) that will permit the amendment of the Power Purchase
Agreements, the execution of the Amended and Restated Power
Purchase Agreements and the consummation by NEA of its obligations
under the NEA Documents in order to consummate the Transactions, in
each case, in accordance with the requirements of the Senior
Indenture and the Junior Indenture. NEA shall have satisfied all
conditions or requirements necessary for the approvals,
certifications, rating confirmations and other arrangement
described in the preceding sentence to be effective.
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(h) Governmental Approvals . All necessary government
approvals and authorizations required for the effectiveness of this
Agreement and for the performance by NEA of its obligations under
this Agreement, specifically including final approvals of FERC
pursuant to Section 205 of the Federal Power Act and
authorization by FERC of "exempt wholesale generator" status, shall
have been received in a form reasonably acceptable to NEA, and such
approvals and authorizations shall no longer subject to
reconsideration or appeal.
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(i) NEPOOL/ ISO . Any and all necessary filings or notices
shall have been given or made with NEPOOL and/or ISO and any and
all approvals or authorizations concerning this Agreement and the
Amended and Restated Power Purchase Agreements shall have been
received in a form reasonably acceptable to NEA.
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(j) Accounting and Tax Treatment . NEA , its respective partners and
members and each of their Affiliates shall be
entitled to accounting treatment and tax treatment reasonably
satisfactory to each of them relating to the
Transactions.
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(k) Approvals . NEA shall have obtained all necessary
partnership approvals (including, without limitation, the approval
of the restructuring transactions by Suez-Tractebel S.A., the
indirect owner of a general partnership interest in NELP) for the
restructuring activities as described in the Recitals, including,
without limitation, the execution of all the Execution
Documents.
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ARTICLE 7
MISCELLANEOUS
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7.1 Termination .
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(a) This Agreement will terminate automatically, without liability
to either Party, if the Closing Date does not occur by the
Deadline.
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(b) In addition to the right of termination under
Sections 5.2(a), 5.4(b) and 7.1(a) hereof, this Agreement and
the Transactions may only be terminated prior to the Closing Date
as follows:
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(i) By both Utilities if a representation or warranty herein of NEA
is or becomes false or inaccurate in any material respect or if NEA
fails to comply in any material respect with one or more of its
covenants herein in a timely manner and, in either event, such
falsity, inaccuracy, or failure is not cured within thirty (30)
days of notice thereof and such failure to cure causes a Material
Adverse Change on a Utility's rights herein;
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(ii) By NEA if a representation or warranty herein of a Utility is
or becomes false or inaccurate in any material respect, or if a
Utility fails to comply in any material respect with one or more of
its covenants herein in a timely manner and, in either event, such
falsity, inaccuracy, or failure is not cured within thirty (30)
days of notice thereof and such failure to cure causes a Material
Adverse Change on NEA's rights herein;
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(iii) By NEA or both Utilities if consummation of the Transactions
shall violate any final order, decree, or judgment of any court or
governmental body having competent jurisdiction applicable to NEA
on the one hand or a Utility on the other hand;
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(iv) By NEA or both Utilities if the MDTE
Order containing the Required Findings has not become a Final
Decision in form and substance acceptable to each Party in its
reasonable discretion by January 1, 2005;
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(v) By a Party if at any time prior to the Closing Date such Party
is affected by a Material Adverse Change, the effect of which will
or is likely to continue after the Closing Date, has occurred and
is not cured at least five (5) days prior to the Closing Date;
or
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(vi) By the Utilities if Suez-Tractebel S.A. does not give the
approvals referred to in Section 6.2(k) by August 31,
2004.
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(c) Upon termination of this Agreement pursuant to
Sections 7.1(a) or 7.1(b) hereof, all rights and obligations
of the Parties under this Agreement (other than any rights and
obligations arising from the breach of this Agreement before
termination) shall terminate. Any right of termination under
Sections 7.1(b)(i) through (vi) shall be exercised by delivery
of a written notice of termination to the other Party within ten
(10) days after the right of termination arises, which with respect
to the right of termination under Sections 7.1(b)(i) and (ii)
hereof shall be the day following the cure periods referenced
therein, and with respect to Section 7.1(b)(iii) hereof shall
be within five (5) days of the date of discovery of the violation
referenced therein. If not so timely exercised, such right of
termination shall be deemed waived by the Party entitled thereto.
Upon any termination of this Agreement (other than the expiration
hereof upon the closing in accordance with Section 2.2
hereof), the Amended and Restated Power Purchase Agreements shall
automatically terminate and be of no further force and effect, and
none of the parties thereunder shall have any liability to each
other in respect of such termination or otherwise in connection
with any Execution Documents. Notwithstanding the foregoing, such a
termination shall not cause the Utilities, NEA or the Facility to
be in default under the Power Purchase Agreements.
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7.2 Amendment and Waiver .
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This Agreement may be amended, or its provisions and the effects
thereof waived only by a writing executed by both Parties, and no
subsequent conduct of any Party or course of dealings between the
Parties shall effect or be deemed to effect any such amendment or
waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. Except for
the failure to timely provide a notice of termination under
Section 7.1 hereof, the failure of either Party to enforce any
provision of this Agreement shall not be construed as a waiver of
or an acquiescence to such provision.
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7.3 Assignment .
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(a) This Agreement shall be binding upon and inure to the benefit
of the respective administrators, representatives, successors and
permitted assigns of the Parties.
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(b) Neither Party may assign, sell, transfer or in any other way
convey its rights, duties or obligations under this Agreement,
either in whole or in part, without the prior written consent of
the other Party (which consent shall not be unreasonably withheld
or delayed), except that (i) NEA may assign its interests in
this Agreement to the Senior Note Holders and the Senior Trustee as
collateral security without the consent of the Utilities; provided,
however, that in the case of any such assignment, NEA shall not be
released from any obligations under this Agreement and
(ii) any subsequent assignment of the rights and interests
under this Agreement and the Amended and Restated Power Purchase
Agreements by the holders of the Senior Secured Notes or the Senior
Trustee in accordance with the documents referenced in
Schedule 2.2(b)(iii); to any third party arising as a result
of a default hereunder or under the Senior Secured Notes may be
made without the Utilities' consent provided, however, that in the
case of any such subsequent assignment, NEA shall not be released
from any obligations under this Agreement.
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7.4 Notices .
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Any notice or communication given pursuant hereto shall be in
writing and (a) delivered personally (personally delivered
notices shall be deemed given upon written acknowledgment of
receipt after delivery to the address specified or upon refusal of
receipt); (b) mailed by registered or certified mail, postage
prepaid (mailed notices shall be deemed given on the actual date of
delivery, as set forth in the return receipt, or upon refusal of
receipt); or (c) delivered in full by telecopy (telecopied
notices shall be deemed given upon actual receipt), in either case
addressed or telecopied as follows or to such other addresses or
telecopy numbers as may hereafter be designated by either Party to
the other in writing:
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If to NEA:
Northeast Energy Associates, A Limited
Partnership
c/o Northeast Energy LP
c/o ESI Northeast Energy GP, Inc.
Its Administrative General Partner
700 Universe Blvd.
P.O. Box 14000
Juno Beach, FL 33408
Attention: Business Manager
Facsimile:
561-304-5161
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with a copy to:
Tractebel Power, Inc.
1990 Post Oak Blvd
Suite 1900
Houston, TX 77056
Attention: General Counsel
Facsimile: 713-636-1858
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If to the Utilities:
Boston Edison Company
One NSTAR Way, NE 220
Westwood, MA 02090-9230
Attention: Ellen K. Angley, Vice President,
Energy Supply and Transmission
Facsimile: (781) 441-8078
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and
Commonwealth Electric Company
One NSTAR Way, NE 220
Westwood, MA 02090-9230
Attention: Ellen K. Angley, Vice President,
Energy Supply and Transmission
Facsimile: (781) 441-8078
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with a copy to:
Legal Department
NSTAR Electric & Gas Corporation
800 Boylston Street
Boston, Ma 02109
Attention: T.N. Cronin, Assistant General Counsel
Facsimile: (617) 424-2733
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7.5 Entire Agreement.
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Upon the Effective Time, the Execution Documents shall constitute
the entire agreement between the Parties with respect to the
subject matter hereof. Upon the Effective Time, all prior or
contemporaneous agreements, proposals, understandings or
communications between or involving the Parties, whether oral or
written (other than that certain Stipulation of Agreement of
Non-Disclosure of Confidential or Protected Information) pertaining
to or made in connection with the Execution Documents are void,
shall have no binding force or effect, and are replaced in their
entirety by the Execution Documents. Except as otherwise
specifically provided in the Execution Documents, the Parties
thereto do not intend to create rights in, or grant remedies to,
any third party as a beneficiary of the Execution Documents or of
any duty, covenant, obligation or understanding established under
this Agreement or the other Execution Documents.
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7.6 Expenses .
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Each Party shall pay for its own fees and expenses incurred by it
in structuring, negotiating and consummating the Execution
Documents and the Transactions.
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7.7 Interpretation .
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This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against either of the
Parties. This Agreement shall be construed as if both Parties were
its author and each Party adopts the language of this Agreement as
if it were its own. Each term, clause and provision of this
Agreement is separate and independent, and should any term, clause
or provision of this Agreement be found to be invalid, the validity
of the remaining terms, clauses and provisions shall, to the
fullest extent feasible, not be affected thereby.
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7.8 Counterparts, Headings .
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The headings contained in
this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
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7.9 Governing Laws .
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This Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the Commonwealth of
Massachusetts. All disputes arising between the Parties concerning
the construction or enforcement of this Agreement that the Parties
are unable to settle between themselves shall be submitted to a
trial by judge. The Parties hereby waive any rights to a trial by
jury. All proceedings shall be held in Massachusetts.
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7.10 Damage Limitation .
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Notwithstanding anything in this Agreement to the contrary, in no
event shall any party be liable to one another hereunder for any
indirect, consequential, incidental, punitive or exemplary
damages.
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7.11 Further Assurances .
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The Parties acknowledge and agree that the Transactions are complex
and that it shall require the reasonable, good faith cooperation of
the Parties to implement the terms of this Agreement. If either
Party reasonably determines or is advised that any further
instruments, agreements or other matters are necessary or desirable
to carry out the terms of this Agreement or to consummate the
Transactions, the other Party shall do all things reasonably
necessary and appropriate to carry out the terms of this Agreement
and to execute and deliver all such instruments, agreements and to
otherwise address such matters, including, without limitation,
adjustments to Schedule 4.1(a) of both of the Amended and
Restated Power Purchase Agreements with BECo (the schedules in the
two agreements, collectively, the "BECo Support Payment Schedules")
and/or Schedule 4.1(a) of both of the Amended and Restated
Power Purchase Agreements with CECo (the schedules in the two
agreements, collectively, the "CECo Support Payment Schedules");
provided no adjustments will be made to the BECo Support Payment
Schedules or the CECo Support Payment Schedules without the written
agreement of the Parties.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS
WHEREOF, NEA and the Utilities have caused this Agreement to be
executed by their duly authorized officers or representatives, as
applicable, as of the date first above written.
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BOSTON EDISION COMPANY
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By:
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ELLEN K. ANGLEY
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Name: Ellen K.
Angley
Title: VP Energy Supply & Transmission
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COMMONWEALTH ELECTRIC COMPANY
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By:
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ELLEN K. ANGLEY
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Name: Ellen K.
Angley
Title: VP Energy Supply & Transmission
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NORTHEAST ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
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By:
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Northeast Energy LP
Its general partner
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By:
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ESI Northeast Energy GP Inc.
Its Administrative General Partner
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By:
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NATHAN E. HANSON
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Authorized
Representative
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Nathan E.
Hanson
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List of
Schedules
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Schedule A
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Power Purchase Agreements (including all amendments)
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Schedule D
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Executed Amended and Restated Power Purchase Agreements
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Schedule G
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Required Findings
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Schedule 1
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Adjusted Bid Price Amount: Sample Calculations
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Schedule 1.5
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Calculation Date Adjusted Bid Price Amount
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Schedule 2.2(b)(iii)
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Form of Callateral Assignment
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Schedule 2.2(b)(iv)
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Form of Mutual Release
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Schedule 3.5
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Utility Broker/Agent
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Schedule 4.5
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NEA Broker/Agent
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Schedule 5.3
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Interim Period Deliveries
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-
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Interim Period
Delivery Points
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-
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Interim Period
On-Peak Energy Price
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-
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Interim Period
On-Peak Delivery Quantities
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-
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Interim Period
Off-Peak Delivery Quantities
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-
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Interim Period
Delivery Rate
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-
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Interim Period
Support Payment Rate
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SCHEDULE A
POWER PURCHASE AGREEMENTS
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BECo A
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Power Purchase Agreement between NEA and BECo, dated April 1,
1986
First Amendment to Power Purchase Agreement, dated June 8,
1987
Second Amendment to Power Purchase Agreement, dated June 21,
1989
Third Amendment to Power Purchase Agreement, dated August 31,
1990
Letter from BECo to NEA, dated April 29, 1999
Protocol Agreement between NEA and BECo, dated February 28,
2003
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BECo B
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Power Purchase Agreement between NEA and BECo, dated
January 28, 1988
First Amendment to Power Purchase Agreement, dated June 21,
1989
Letter from BECo to NEA, dated April 29, 1999
Protocol Agreement between NEA and BECo, dated February 28,
2003
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CECo 1
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Power Sale Agreement between CECo and NEA, dated November 26,
1986
First Amendment to Power Sale Agreement, dated August 15,
1988
Second Amendment to Power Sale Agreement, dated January 1,
1989
Letter from CECo to NEA, dated July 9, 1993
Protocol Agreement between NEA and CECo, dated February 28,
2003
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CECo 2
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Power Sale Agreement between CECo and NEA, dated August 15,
1988
Amendment to Power Sale Agreement, dated January 1, 1989
Letter from CECo to NEA, dated July 9, 1993
Protocol Agreement between NEA and CECo, dated February 28,
2003
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SCHEDULE D
EXECUTED AMENDED AND RESTATED POWER PURCHASE
AGREEMENTS
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BECo A
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Amended and Restated Power Purchase Agreement between BECO and NEA,
dated as of August 19, 2004 (attached hereto).
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BECo B
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Amended and Restated Power Purchase Agreement between BECO and NEA,
dated as of August 19, 2004 (attached hereto).
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CECo 1
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Amended and Restated Power Purchase Agreement between CECo and NEA,
dated as of August 19, 2004 (attached hereto).
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CECo 2
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Amended and Restated Power Purchase Agreement between CECo and NEA,
dated as of August 19, 2004 (attached hereto).
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AMENDED AND RESTATED POWER
PURCHASE AGREEMENT
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THIS AMENDED AND RESTATED POWER PURCHASE AGREEMENT (the "
Agreement ") is entered into as of August 19,
2004 (the " Agreement Date "), by and between Boston
Edison Company, a Massachusetts corporation (" BECO
") and Northeast Energy Associates Limited Partnership, a
Massachusetts limited partnership (" NEA "). BECO and
NEA are individually referred to herein as a " Party
" and are collectively referred to herein as the "
Parties ".
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WHEREAS , NEA owns a nominal 300 MW natural gas-fired
electricity and steam generating plant located in Bellingham,
Massachusetts (the " Facility ");
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WHEREAS , BECO and NEA are parties to a
certain Power Purchase Agreement dated April 1, 1986, as
amended to date (the " Existing NEA A PPA "),
pursuant to which BECO purchases from NEA a portion of the
Facility's capacity and associated energy;
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WHEREAS , BECO and NEA desire to amend
and restate the Existing NEA A PPA as provided for herein;
and
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WHEREAS , such amendment and
restatement of the Existing NEA A PPA is consistent with
BECO's invitation, dated October 17, 2003, to submit proposals
regarding the transfer of entitlements to certain power purchase
agreements and NEA's response, dated December 3, 2003, related
to the restructuring of four (4) power purchase agreements
(including the Existing NEA A PPA) existing between NEA and
each of BECO and Commonwealth Electric Company ("CECO") (the four
(4) existing agreements, the " Existing Agreements ",
are set forth at Exhibit A).
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NOW, THEREFORE , in consideration of the
premises and of the mutual agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as
follows:
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1. DEFINITIONS
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In addition to terms defined in the recitals hereto, the following
terms shall have the meanings set forth below.
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" Affiliate " shall mean, with respect to any Person,
any other Person that directly or indirectly through one or more
intermediaries' controls, is controlled by, or is under common
control with, such first Person. As used in this definition,
"control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
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" Agreement " shall have the meaning set forth in the
first paragraph of this Agreement.
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" Agreement Date " shall have the meaning set forth
in the first paragraph of this Agreement.
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" Approved Capacity Buyer " shall mean any of the
Persons set forth on Schedule 4.1(c) hereto.
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" BECO Reorganization Event " shall mean (a) any
consolidation, merger or other form of combination of BECO with any
other Person, (b) the acquisition of a majority of the
outstanding shares of BECO by any Person or (c) the sale,
conveyance, lease, transfer or other disposition, in one
transaction or a series of related transactions, including without
limitation the transfer or "spin-off" of shares of a subsidiary
(collectively, a "Transfer"), affecting all or substantially all of
the assets of BECO existing on the Agreement Date or hereafter
acquired. For purposes of this definition, the transfer, sale or
other disposition of all or substantially all of the transmission
and/or distribution assets of BECO, will, in either case,
constitute a "BECO Reorganization Event."
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" BECO Termination Payment " shall mean, with respect
to this Agreement and NEA, an amount payable by BECO to NEA equal
to the sum of the Losses (including, without limitation, the
adverse financial impact, if any, of NEA being caused to forego its
ability to reduce the Energy Bank balance by performing its
obligations under this Agreement, but net of Gains) and Costs,
expressed in U.S. Dollars, which NEA incurs as a result of the
termination of this Agreement pursuant to Section 8.2(a)(i)
hereof. The BECO Termination Payment shall be net of any amounts
then owed to BECO in the Energy Bank.
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" Business Day " shall mean any day that is not a
Saturday, Sunday, or NERC Holiday.
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"
Capacity " shall mean "Unforced Capacity" as
presently defined in the NEPOOL Manual for Definitions and
Abbreviations (and, throughout the Term, any successor product
thereto).
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" Capacity Payment " with respect to any given time
period, shall mean the product of (a) the Capacity Price and
(b) Capacity Requirement, for such period.
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" Capacity Price " with respect to any month, shall
mean (a) the Negotiated Capacity Price or (b) in the
event that the Parties fail to agree upon a Negotiated Capacity
Price on or before the Contract UCAP Transfer Deadline, the price
for UCAP for such month established pursuant to the next UCAP
Monthly Supply Auction; provided, however, if no price for UCAP is
established in the next UCAP Monthly Supply Auction, the price to
be used is that established pursuant to the last UCAP Monthly
Supply Auction in which UCAP was transacted.
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" Capacity Receipt Shortfall " shall have the meaning
set forth in Section 3.8(c) hereof.
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"
Capacity Replacement Damages " shall have the meaning
ascribed thereto in Section 3.8(b) herein.
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"
Capacity Replacement Price " with respect to any
portion of the Capacity Requirement that NEA fails to deliver to
BECO hereunder, shall mean (a) the price at which BECO, acting
in a commercially reasonable manner, purchases Capacity in lieu of
such portion of the Capacity Requirement, plus transaction and
other administrative costs reasonably incurred by BECO in
purchasing such Capacity, or (b) to the extent BECO has not
purchased Capacity in lieu of such portion of the Capacity
Requirement, the market price for such portion of the Capacity
Requirement determined in a commercially reasonable
manner.
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" Capacity Requirement, " shall mean for the
applicable month, for so long as NEA is the owner of the Facility
during the Term hereof, the lesser of (a) 100 MW or
(b) 50% of the Capacity recognized by the ISO as attributable
to the Facility. Upon the sale, assignment or transfer by NEA of
its interest in the Facility during the Term hereof, Capacity
Requirement shall be fixed at the Capacity Requirement in effect on
the date immediately prior to such sale, assignment or
transfer.
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" Capacity Resale Damages " shall have the meaning
ascribed thereto in Section 3.8(c) herein.
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" Capacity Resale Price " with respect to any portion
of the Capacity Requirement that BECO fails to accept delivery from
NEA hereunder, shall mean (a) the price at which NEA, acting
in a commercially reasonable manner, re-sells Capacity in lieu of
such portion of the Capacity Requirement, less transaction and
other administrative costs reasonably incurred by NEA in selling
such Capacity or (b) to the extent NEA has not sold Capacity
in lieu of such portion of the Capacity Requirement, the market
price for such portion of the Capacity Requirement determined in a
commercially reasonable manner.
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" Capacity Supply Shortfall " shall have the meaning
set forth in Section 3.8(b) hereof.
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"
Change in Law or Market Structure " shall mean any of
the following events that has a material adverse economic effect on
one or both of the Parties: (a) the adoption, promulgation,
modification, repeal or reinterpretation by any Governmental Entity
of any Law which (or the effects of which) amends or conflicts with
the Laws established or in effect as of the Agreement Date,
(b) the adoption, promulgation, modification, repeal or
reinterpretation by ISO of the ISO Policies which (or the effect of
which) amends or conflicts with the ISO Policies established or in
effect as of the Agreement Date or (c) the adoption or
promulgation of a market structure that differs from the market
structure reflected in the ISO Policies established or in effect as
of the Agreement Date. For avoidance of doubt, a Change in Law or
Market Structure shall include any event described in clauses (a),
(b) or (c) above that results in BECO not being able to sell the
Contract Energy purchased hereunder at a price greater than or
equal to the Energy Payment prices (excluding the Support Payment)
paid to NEA hereunder.
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" Claiming Party " shall have the meaning set forth
in Section 9.2(b) hereof.
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" Contract Energy " shall have the meaning set forth
in Section 3.1 hereof.
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" Contract UCAP Transfer Deadline " with respect to
any month, shall mean 5 PM Eastern Prevailing Time on the
Business Day preceding the day by which final bids into the NEPOOL
ISO Supply Auction must be submitted to be considered timely under
the NEPOOL Practices and Market Rules and Procedures governing
suppliers' participation in the UCAP Monthly Supply
Auction.
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"
Costs " shall mean brokerage fees, commissions and
other similar third party transaction costs and expenses reasonably
incurred in terminating this Agreement; and all reasonable
attorneys' fees and expenses incurred in connection with the
termination of this Agreement.
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" Cover Damages " shall have the meaning set forth in
Section 3.6 hereof.
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" Credit Support " shall have the meaning set forth
in Section 8.2(a)(i)(B) hereof.
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" Day-Ahead Energy Market" or " DAM "
shall have the meaning as set forth in the NEPOOL Manual for
Definitions and Abbreviations.
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" Delivery Point " shall mean the Facility Bus;
provided, however, that (a) if a LMP is not established for a
node at the Facility Bus, or during periods of Force Majeure, NEA
may deliver Contract Energy to an alternate node within the ISO
control area that has a published LMP price and (b) NEA may
deliver to any other delivery point mutually agreed to by the
Parties.
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" Delivery Shortfall " shall have the meaning set
forth in Section 3.6 hereof.
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"
DTE " shall mean the Massachusetts Department of
Telecommunications and Energy or its successor state regulatory
agency.
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" Eastern Prevailing Time " shall mean either Eastern
Standard Time or Eastern Daylight Savings Time, as in effect from
time to time.
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" Effective Date " shall have the meaning set forth
in Section 2.1 hereof.
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" Energy Bank " shall mean that certain account
described in Article 9A of the Existing NEA PPA.
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" Energy Payment " shall have the meaning set forth
in Section 4.1(a)(i) hereof.
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" Event of Default " shall have the meaning set forth
in Section 8.1 hereof.
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" Existing Agreements " shall have the meaning set
forth in the Recitals.
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" Execution Agreement " shall mean the Execution
Agreement by and among NEA, Commonwealth Electric Company and BECO
dated as of August 19, 2004.
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" Existing NEA A PPA " shall have the meaning set
forth in the Recitals.
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" Facility " shall have the meaning set forth in the
Recitals.
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" Facility Bus " shall mean the point of
interconnection between the Facility and the NEPOOL transmission
system, which as of the Agreement Date is the UN.Bellinghm 13.2 NEA
bus.
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" FERC " shall mean the United States Federal Energy
Regulatory Commission, and shall include its successors.
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" Force Majeure " shall have the meaning set forth in
Section 9.1(a) hereof.
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"
Gains " shall mean an amount equal to the present
value, at an eight point one percent (8.1%) discount rate, of the
economic benefit, if any (exclusive of Costs) resulting from the
termination of this Agreement, determined in a commercially
reasonable manner.
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"
Governmental Entity " shall mean any federal, state
or local governmental agency, authority, department,
instrumentality or regulatory body, and any court or tribunal, with
jurisdiction over NEA, BECO or the Facility.
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" IBT Containers " shall have the meaning as set
forth in Section 3.3(a) hereof.
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" Indemnified Party " shall have the meaning set
forth in Section 12.1 hereof.
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" Indemnifying Party " shall have the meaning set
forth in Section 12.1 hereof.
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" Internal Bilateral Transaction " shall have the
meaning as set forth in the NEPOOL Manual for Definitions and
Abbreviations.
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" ISO" or ISO-NE " shall mean the ISO New England,
Inc., the independent system operator established in accordance
with the NEPOOL Agreement, or its successor.
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" ISO Policies " shall mean the Market Rules and
Procedures, NEPOOL Agreement, NEPOOL Manual for Definitions and
Abbreviations and NEPOOL Practices.
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" ISO Settlement Market System " shall have the
meaning as set forth in the NEPOOL Manual for Definitions and
Abbreviations.
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" ISO UCAP Transfer Deadline " with respect to any
month, shall mean the latest date upon which Capacity for that
month may be transferred under an Internal Bilateral Transaction in
accordance with ISO rules.
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" Late Payment Rate " shall have the meaning set
forth in Section 4.3 hereof.
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"
Law " shall mean all federal, state and local
statutes, regulations, rules, orders, executive orders, decrees,
policies, judicial decisions and notifications.
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" Lead Participant " shall have the meaning as
set forth in the NEPOOL Manual for Definitions and
Abbreviations.
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"
LMP " shall mean, for any ISO nodal point for any
hour on any day, the "Day Ahead LMP" or "Real Time LMP" ($/MWh) at
such ISO nodal point calculated in accordance with Section 2
of Market Rule 1, as reported on the ISO website at
www.iso-ne.com on the "Data & Reports" page, "Hourly Markets
Data" subpage and "Selectable Hourly LMP Data" category, for such
nodal point on such date and time. If such price should ever cease
to be published, then the LMP shall be a regularly published
comparable substitute price, as agreed to by the Parties in
writing.
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"
Losses " shall mean, with respect to any Party, an
amount equal to the present value, at an eight point one percent
(8.1%) discount rate, of the economic loss to it, if any (exclusive
of Costs), resulting from termination of this Agreement, determined
in a commercially reasonable manner.
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" Market Rules and Procedures " shall mean the Market
Rules , Manuals and
Procedures adopted by the ISO and/or
members of NEPOOL, as may be amended from
time to time, and as administered by the ISO to
govern the operation of the NEPOOL markets , and any applicable successor rules, manuals and
procedures.
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" Moody's " shall mean Moody's Investors Service,
Inc., and any successor thereto.
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|
" MW " shall mean a megawatt.
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" MWh " shall mean a megawatt-hour (one MWh shall
equal 1,000 kWh).
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"
NEA Termination Payment " shall mean, with respect to
this Agreement and BECO, an amount payable by NEA to BECO equal to
the Losses (net of Gains) and Costs, expressed in U.S. Dollars,
which BECO incurs as a result of the termination of this Agreement
pursuant to Section 8.2(a)(ii) hereof plus the balance then
due BECO under the Energy Bank.
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" Negotiated Capacity Price " shall mean the price
for Capacity as agreed to by the Parties pursuant to
Section 4.1(b) herein.
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"
NEPOOL " shall mean the New England Power Pool, or
its successor.
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"
NEPOOL Agreement " shall mean that certain Restated
New England Power Pool Agreement, as restated by an amendment dated
as of December 1, 1996, as amended and restated from time to
time, and any applicable successor agreement.
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"
NEPOOL ISO Supply Auction " shall mean the auction
currently defined as the "Supply Auction" in the Market Rules and
Procedures, or any successor to such auction.
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"
NEPOOL Manual for Definitions and Abbreviations "
shall mean that certain Manual for Definitions and Abbreviations
prepared by ISO-NE, as may be amended from time to time, and any
applicable successor manual.
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" NEPOOL Practices " shall mean the NEPOOL practices
and procedures for delivery and transmission of electricity and
capacity and capacity testing in effect from time to time and shall
include, without limitation, applicable requirements of the NEPOOL
Agreement, and any applicable successor practices and
procedures.
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" NERC Holiday " shall mean New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day, and any other day declared a holiday by NERC.
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"
Ownership Share " shall have the meaning as set forth
in the NEPOOL Manual for Definitions and Abbreviations.
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"
Party " and " Parties " shall have the
meaning set forth in the first paragraph of this
Agreement.
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" Performance Assurance " shall mean collateral in
the form of either cash, letter(s) of credit, or other security
acceptable to the requesting Party.
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" Person " shall mean an individual, partnership,
corporation, limited liability company, limited liability
partnership, limited partnership, association, trust,
unincorporated organization, or a government authority or agency or
political subdivision thereof.
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" PURPA " shall mean the Public Utility Regulatory
Policies Act of 1978, as amended.
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" QF " shall have the meaning set forth in
Section 6.3(a)(i) hereof.
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" Quote Period " shall have the meaning set forth in
Section 4.1(b) herein.
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" Real-Time Energy Market " or "
RTM " shall have the meaning as set forth in the NEPOOL
Manual for Definitions and Abbreviations.
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" Rejected Power " shall have the meaning set forth
in Section 3.7 hereof.
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" Replacement Power " shall mean electricity
purchased by BECO and delivered to the Delivery Point as
replacement for any Delivery Shortfall. Replacement Power shall not
include Contract Energy delivered to BECO on behalf of NEA pursuant
to Section 3.1 hereof.
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" Replacement Price " shall mean the lesser of
(a) the price at which BECO, acting in a commercially
reasonable manner, purchases Replacement Power, plus
(i) transaction and other administrative costs reasonably
incurred by BECO in purchasing such Replacement Power and
(ii) additional transmission charges, if any, reasonably
incurred by BECO to transmit Replacement Power to the Delivery
Point, or (b) the locational marginal pricing at the Delivery
Point for such Replacement Power; provided, however, that in no
event shall the Replacement Price include any penalties, ratcheted
demand or similar charges, nor shall BECO be required to utilize or
change its utilization of its owned or controlled assets or market
positions to minimize NEA's liability.
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" Resale Damages " shall have the meaning set forth
in Section 3.7 hereof.
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" Resale Price " shall mean the higher of
(a) the price at which NEA, acting in a commercially
reasonable manner, sells or is paid for Rejected Power, plus
transaction and other administrative costs reasonably incurred by
NEA in re-selling such Rejected Power; or (b) the LMP at the
Delivery Point for such Rejected Power; provided, however, that in
no event shall such price include any penalties, ratcheted demand
or similar charges, and further provided that in no event shall NEA
be required to utilize or change its utilization of the Facility or
its other assets or market positions in order to minimize BECO's
liability for Rejected Power.
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"
Schedule or Scheduling " shall mean the actions of
NEA or BECO and/or their designated representatives, including each
Party's Transmission Providers, if applicable, of notifying,
requesting and confirming to each other the quantity of Contract
Energy to be delivered on any given day or days (or in any given
hour or hours) during the Term at the Delivery Point.
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" S&P " shall mean Standard & Poor's Ratings
Group, a division of McGraw Hill, Inc., and any successor
thereto.
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" Support Payment " shall have the meaning set forth
in Section 4.1(a)(i) hereof.
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" Term " shall have the meaning set forth in
Section 2.2 hereof.
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" Third-Party Quote " with respect to any Capacity
Requirement, shall mean a firm offer by an Approved Capacity Buyer
to purchase Capacity from BECO in a volume and for a time period
equal to such Capacity Requirement.
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"
Transmission Provider " shall mean (a) ISO, its
respective successor or Affiliates; (b) NEPOOL; (c) BECO;
or (d) such other third parties from whom transmission
services are necessary for NEA to fulfill its performance
obligations to BECO hereunder.
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"
UCAP " shall have the meaning as set forth in the
NEPOOL Manual for Definitions and Abbreviations.
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" UCAP Monthly Supply Auction " shall mean the
auction currently defined as the "UCAP Monthly Auction" in the
NEPOOL Manual for Definitions and Abbreviations, or any successor
to such auction that establishes a price for UCAP or its successor
product.
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2. EFFECTIVE DATE; CONDITIONS; TERM
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2.1 Effective Date . The " Effective
Date " of this Agreement shall be the Closing Date as
established under the Execution Agreement.
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2.2 Term .
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(a) The " Term " of this Agreement shall mean the period
from and including 11:59 p.m. (Eastern Prevailing Time) on the
Effective Date through and including 11:59 p.m. (Eastern
Prevailing Time) on September 15, 2016, unless this Agreement
is sooner terminated in accordance with the provisions
hereof.
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(b) At the expiration of the Term, the Parties shall no longer be
bound by the terms and provisions hereof (including, without
limitation, any payment obligation hereunder), except (i) to
the extent necessary to provide invoices and make payments or
refunds with respect to Contract Energy or Capacity delivered prior
to such expiration or termination, (ii) to the extent
necessary to enforce the rights and the obligations of the Parties
arising under this Agreement before such expiration or termination
and (iii) the obligations of the Parties hereunder with
respect to confidentiality and indemnification shall survive the
expiration or termination of this Agreement and shall continue for
a period of two (2) calendar years following such expiration or
termination.
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3. DELIVERY OF CONTRACT ENERGY AND CAPACITY
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3.1 Obligation to Sell and Purchase Contract Energy
. During
each hour of the Term, NEA shall sell and deliver at the Delivery
Point, and BECO shall purchase and receive at the Delivery Point,
electricity in the amounts set forth in Section 3.3 and
otherwise in accordance with the terms and conditions of this
Agreement (" Contract Energy "). NEA shall be permitted to
satisfy its obligation to deliver Contract Energy from any source
of supply available to NEA. Contract Energy delivered to BECO by
NEA or on behalf of NEA by NEA's suppliers, designees or any other
Person engaged by NEA to deliver Contract Energy shall be deemed
delivered by NEA hereunder and NEA shall be solely responsible for
any costs payable to its suppliers for such delivery. The
aforementioned obligations for NEA to sell and deliver the Energy
and for BECO to purchase and receive the Energy shall be firm and
subject to adjustment only to reflect performance interruptions
excused by this Agreement.
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3.2 Characteristics . Contract Energy delivered by
NEA to BECO at the Delivery Point shall be in the form of three
(3)-phase, sixty (60) hertz, alternating current and otherwise in
the form required by Market Rules and Procedures.
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3.3 Scheduling .
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(a) NEA shall Schedule deliveries of Contract Energy delivered
hereunder with ISO in equal hourly quantities in accordance with
all NEPOOL Practices and Market Rules and Procedures applicable
thereto as set forth in Schedule 3.3. Furthermore, Contract
Energy will be sold and delivered for purchase by BECO in the form
of Internal Bilateral Transactions (" IBTs ") and NEA will
use commercially reasonable efforts to transfer Contract Energy in
the DAM; provided, however, that if such transfer cannot be made in
the DAM, the Contract Energy shall be transferred in the RTM. All
Contract Energy will be delivered to a specific node and not a
zone. NEA will submit IBT Containers, as defined below, and notify
BECO that the IBT Containers have been submitted into the ISO
Settlement Market System.
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Subject to the satisfaction of NEA's obligations in this
Section 3.3, BECO will confirm the IBT Container in the ISO
Settlement Market System. For purposes of this Agreement, " IBT
Container " shall mean the form of electronic contract
submittal, as implemented in the ISO Settlement Market System
effective March 1, 2003 as amended from time to time, that
requires BECO to confirm the general parameters of the IBT. IBTs
shall be submitted and confirmed for the longest term permitted by
the ISO. NEA shall be responsible for any inaccuracies in any
schedules and shall correct such schedules upon notification by
BECO; provided, however, BECO shall cooperate with NEA in
connection with any such Scheduling and bidding and in complying
with all NEPOOL Practices and shall promptly provide information
reasonably requested by NEA for the purpose of assisting NEA with
its Scheduling obligations hereunder. Notwithstanding the agreement
to Schedule all Contract Energy in the DAM, the Energy Payment made
by BECO to NEA shall be as calculated pursuant to
Section 4.1(a) hereof.
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(b) The Parties agree to use commercially reasonable efforts to
comply with all applicable ISO Policies in connection with the
Scheduling and delivery of Contract Energy hereunder. For
administrative convenience, the Parties agree that all Contract
Energy deliveries and receipts made pursuant to this Agreement and
any other power purchase agreement between the Parties may be
provided for in a single Schedule. Penalties or similar charges
assessed by a Transmission Provider and caused by a Party's
noncompliance with the Scheduling obligations set forth in this
Section 3.3 shall be the responsibility of the Party whose
action or inaction caused the penalty.
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3.4 Lead Participant; Ownership Share . NEA, or any entity
so identified by NEA, shall be the Lead Participant of the Facility
and BECO shall use commercially reasonable efforts to transfer such
designation to NEA or the entity so identified by NEA. BECO shall
use commercially reasonable efforts to transfer to NEA, or any
entity so identified by NEA, the Ownership Share now held by BECO
relating to the Facility.
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3.5 Sales for Resale . All Contract Energy delivered
by NEA to BECO hereunder shall be sales for resale, with BECO
reselling such Contract Energy. BECO shall provide NEA with any
certificates reasonably requested by NEA to evidence that the
deliveries of Contract Energy hereunder are sales for resale.
Nothing in this Agreement shall be construed to prohibit or
restrict such resale by BECO.
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3.6 Failure of NEA to Deliver Scheduled Contract Energy; Cover
Damages .
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Subject to Section 8.1(g) hereof, in the event NEA fails to
deliver Contract Energy it is obligated to deliver hereunder and
such failure is not excused under the terms of this Agreement (such
undelivered Contract Energy to be referred to herein as the "
Delivery Shortfall "), then NEA shall pay BECO, on the date
payment would otherwise be due in respect of the month in which the
failure occurred, an amount for such Delivery Shortfall equal to
the Cover Damages. " Cover Damages " means an amount equal
to (i) the amount, if any, by which (A) the Replacement
Price ($/MWh) multiplied by the quantity (in MWh) of the Delivery
Shortfall, exceeds (B) the Energy Payment that would have been
paid pursuant to Section 4.1 hereof had the Delivery Shortfall
been delivered, plus (ii) any applicable penalties assessed by
NEPOOL, ISO-NE or any other party against BECO as a direct result
of NEA's failure to deliver such Contract Energy; provided,
however, BECO shall use commercially reasonable efforts to purchase
replacement power or otherwise mitigate such damages, penalties and
related costs and charges wherever possible pursuant to applicable
NEPOOL, ISO-NE or any other party's tariffs and operating
procedures then in effect. Except as otherwise provided in
Section 8.1(g) and 8.2 hereof, the damages provided in this
Section 3.6 shall be the sole and exclusive remedy of BECO for
any failure of NEA to deliver Contract Energy that it is obligated
to deliver hereunder. The invoice for the amount payable pursuant
to this Section 3.6 shall include a written statement
explaining in reasonable detail the calculation of such
amount.
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3.7 Failure by BECO to Accept Delivery of Contract Energy;
Resale Damages . If BECO fails to accept all or
part of the Contract Energy it is obligated to accept hereunder and
such failure to accept is not excused under the terms of this
Agreement (such Contract Energy is referred to herein as "
Rejected Power "), then BECO shall pay NEA, on the date
payment would otherwise be due in respect of the month in which the
failure occurred, an amount for such Rejected Power equal to the
Resale Damages. " Resale Damages " means an amount equal to
(a) the amount, if any, by which (i) the Energy Payment
that would have been paid pursuant to Section 4.1(a) hereof
for such Rejected Power, had it been accepted, exceeds
(ii) the Resale Price ($/MWh) multiplied by the quantity (in
MWh) of Rejected Power resold by NEA, plus (b) any applicable
penalties assessed by NEPOOL, ISO-NE or any other party against NEA
as a direct result of BECO's failure to accept such Contract
Energy; provided, however, NEA shall use commercially reasonable
efforts to sell such Rejected Power or otherwise mitigate such
damages, penalties and related costs and charges wherever possible
pursuant to applicable NEPOOL, ISO-NE or any other party's tariffs
and operating procedures then in effect. Except as otherwise
provided in Section 8.1(h) and 8.2 hereof, the damages
provided in this Section 3.7 shall be the sole and exclusive
remedy of NEA for any failure of BECO to accept delivery of
Contract Energy that it is obligated to accept hereunder. The
invoice for the amount payable pursuant to this Section 3.7
shall include a written statement explaining in reasonable detail
the calculation of such amount.
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3.8 Obligation to Sell and Purchase Capacity Requirements
.
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(a) During the Term, NEA shall sell to BECO and BECO shall purchase
from NEA the Capacity Requirement. In the event there is no longer
a market for Capacity in New England, NEA shall not be obligated to
sell and BECO shall not be obligated to purchase the Capacity
Requirement.
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(i) For so long as NEA is the owner of the Facility, NEA shall be
permitted to satisfy its obligation to deliver the Capacity
Requirement only from the Facility. In the event that NEA sells,
assigns or transfers its interests in the Facility, NEA shall be
permitted to satisfy its obligation to deliver the Capacity
Requirement from any source of supply available to NEA. Nothing in
this Agreement shall be construed to restrict or bar NEA from any
sale, assignment or transfer of its interests in the
Facility.
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(ii) The Parties acknowledge that as of the Agreement Date, the
Market Rules and Procedures do not impose any locational
requirement with respect to Capacity. In the event that, at any
time during the Term, the Market Rules and Procedures do impose a
zonal, nodal or other geographic locational requirement, the
Capacity Requirement will be fulfilled for the zone, node or other
geographic area in which the Facility is located.
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(b) If NEA fails to provide BECO with all or part of the Capacity
Requirement it is required to provide pursuant to Section 3.8
(a) hereof (a " Capacity Supply Shortfall ") and such
failure is not excused under the terms of this Agreement, then the
Capacity Replacement Damages associated with such Capacity Supply
Shortfall shall be deducted from amounts payable by BECO hereunder
for the next succeeding month or paid by NEA to BECO, at BECO's
election. " Capacity Replacement Damages ," with respect to
any portion of the Capacity Requirement that NEA fails to deliver
to BECO hereunder, means an amount equal to: (i) the amount,
if any, by which the Capacity Replacement Price exceeds the
Capacity Price, multiplied by the Capacity Supply Shortfall, plus
(ii) any penalties assessed by NEPOOL, ISO-NE or any other party
against BECO as a direct result of NEA's failure to deliver the
Capacity Requirement in accordance with Section 3.8(a) hereof.
Subject to Section 8.1(g) hereof, the damages provided in this
Section 3.8(b) shall be the sole and exclusive remedy of BECO
for any failure of NEA to deliver the Capacity Requirement
hereunder. With respect to any calendar month during the Term, NEA
will be deemed to have failed to deliver the Capacity Requirement
for such calendar month if it has not scheduled a bilateral
transfer of the Capacity Requirement (or otherwise effected
delivery in accordance with applicable Market Rules and Procedures
as in effect at any time during the Term) on or before the Contract
UCAP Transfer Deadline.
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(c) If BECO fails to accept delivery of all or part of the Capacity
Requirement it is required to purchase pursuant to
Section 3.8(a) hereof (a " Capacity Receipt Shortfall
"), and such failure is not excused under the terms of this
Agreement, then the Capacity Resale Damages associated with such
Capacity Receipt Shortfall shall be payable by BECO on the date
payment would otherwise be due in respect of the month in which the
failure occurred. " Capacity Resale Damages ," with respect
to any portion of the Capacity Requirement that BECO fails to
accept delivery of from NEA hereunder, means an amount equal to:
(i) the amount, if any, by which the Capacity Price exceeds
the Capacity Resale Price, multiplied by the Capacity Receipt
Shortfall, plus (ii) any penalties assessed by NEPOOL, ISO-NE
or any other party against NEA as a direct result of BECO's failure
to accept delivery of the Capacity Requirement in accordance with
Section 3.8(a) hereof. Subject to Section 8.1(h) hereof,
the damages provided in this Section 3.8(c) shall be the sole
and exclusive remedy of NEA for any failure of BECO to accept
delivery of the Capacity Requirement hereunder and there shall be
no adjustment of the Energy Payment or Support Payment as a result
of BECO's failure to accept delivery of such Capacity Requirement.
With respect to any calendar month during the Term, BECO will be
deemed to have failed to accept delivery of the Capacity
Requirement for such calendar month if it has not confirmed a
schedule (or an equivalent commitment instrument) entered by NEA
for bilateral transfer of the Capacity Requirement (or otherwise
effected acceptance of delivery in accordance with applicable
Market Rules and Procedures as in effect at any time during the
Term) on or before the Contract UCAP Transfer Deadline.
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3.9 Delivery Point .
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(a) All Contract Energy shall be delivered hereunder by NEA to BECO
at the Delivery Point.
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(b) Except as provided for in Section 3.3(b) herein, NEA shall
be responsible for all transmission and distribution charges,
including applicable ancillary service charges, line losses,
congestion charges and other NEPOOL or applicable system costs or
charges associated with transmission incurred, in each case, in
connection with the delivery of Contract Energy to the Delivery
Point.
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(c) Except as provided for in Section 3.3(b) herein, BECO
shall be responsible for all transmission charges, ancillary
services charges, line losses, congestion charges and other NEPOOL
or applicable system costs or charges associated with transmission,
incurred, in each case, in connection with the transmission of
Contract Energy delivered under this Agreement from and after the
Delivery Point.
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4. PAYMENTS FOR CONTRACT ENERGY AND CAPACITY
REQUIREMENTS
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4.1 Payment for Contract Energy and Capacity
Requirements.
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(a) All Contract Energy delivered to BECO under this Agreement
shall be purchased by BECO for an amount calculated pursuant to
this Section 4.1(a).
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(i) Beginning on the Effective Date and continuing for the Term,
BECO shall pay NEA a monthly energy payment (the " Energy
Payment ") equal to the sum of: (A) the product of
(I) the Contract Energy (in MWhs) delivered to BECO hereunder
during each hour during such month that cleared in the DAM and
(II) the hourly DAM LMP Price for such hour at the Delivery
Point for MWhs that cleared in the DAM for such month, plus
(B) the product of (I) the Contract Energy (in MWhs)
delivered to BECO hereunder during each hour during such month that
cleared in the RTM and (II) the hourly RTM LMP Price for such
hour at the Delivery Point for MWhs that cleared in the RTM for
such month, plus (C) a support payment (the " Support
Payment ") equal to the product of (I) the lesser of: the
total Contract Energy (in MWhs) delivered to BECO hereunder during
such month or the MWh quantity for the applicable month, as set
forth in Schedule 4.1(a), and (II) the $/MWh price (the "
Monthly Support Payment Price ") for the applicable month,
as set forth in Schedule 4.1(a). Notwithstanding anything in
this Agreement to the contrary, no exercise by NEA of its right
under Section 8.2 to reduce Contract Energy delivered to BECO
as a result of BECO's failure to timely pay for such Contract
Energy shall have the effect of reducing the Support Payment as
calculated pursuant to this Section.
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(ii) BECO's sole payment obligation, including without limitation
any Support Payment obligation, with respect to Contract Energy is
limited to the payment of the Energy Payment for Contract Energy
delivered in accordance with the terms of this Agreement by or on
behalf of NEA to the Delivery Point.
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(b) All Capacity delivered to BECO under this Agreement shall be
purchased by BECO at the Capacity Price. BECO's sole payment
obligation with respect to Capacity is limited to the payment of
the Capacity Payment for the Capacity Requirement actually provided
to BECO in accordance with the terms of this Agreement by or on
behalf of NEA. The Parties will negotiate in good faith and in a
commercially reasonable manner towards agreement upon a negotiated
price for Capacity (the " Negotiated Capacity Price ") for
each month of the Term in accordance with the terms and provisions
of this Section 4.1(b). At any time during the Term, NEA may
request BECO to provide it with an indicative quote for the
Capacity Requirement for one month or any period of months (the "
Quote Period ") as set forth in such request. Within six (6)
Business Days after BECO's receipt of such request, BECO will
provide NEA with an indicative quote for a purchase price of such
Capacity Requirement for the Quote Period which BECO in its
commercially reasonable judgment believes reflects the fair market
value for such Capacity Requirement. Within one Business Day after
its receipt of such indicative quote, NEA will inform BECO as to
whether NEA accepts or rejects the indicative quote.
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(i) In the event that NEA accepts the indicative quote, the pricing
reflected in such indicative quote will be established as the
Negotiated Capacity Price for such Capacity Requirement unless BECO
notifies NEA, within one Business Day after NEA's acceptance, that
BECO retracts the indicative quote. BECO may retract the indicative
quote only in the event that BECO, in its commercially reasonable
judgment, believes that the fair market value of the Capacity
Requirement has materially declined since BECO delivered the
indicative quote to NEA. In the event that BECO retracts the
indicative quote, NEA may, at its election, (A) provide
Third-Party Quotes to BECO for the applicable Capacity Requirement,
provided that NEA does so within two (2) Business Days after BECO's
retraction of the indicative quote (and, in which event, the
procedures set forth in Section 4.1(b)(ii) will be followed to
determine the Negotiated Capacity Price), or (B) request a new
indicative quote from BECO (which request may be for the same or a
different period), in which event the negotiation process set forth
in this Section 4.1(b) will be repeated with respect to such
request.
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(ii) In the event that NEA rejects such indicative quote, NEA may,
at its election, provide one or more Third-Party Quotes to BECO for
the Capacity Requirement, provided that NEA does so within two (2)
Business Days after NEA's rejection of the indicative quote. In the
event that NEA so delivers one or more Third-Party Quotes to BECO,
BECO will, within one Business Day after delivery of the
Third-Party Quotes, either (A) agree to establish any one of
the Third-Party Quotes as the Negotiated Capacity Price or
(B) sell Capacity (in an amount equal to the Capacity
Requirement and for the Quote Period) to any of the Approved
Capacity Buyers cited in the Third-Party Quotes at a different
price, in which case such different price will be established as
the Negotiated Capacity Price. Notwithstanding the foregoing, if,
by the close of business on the Business Day immediately following
NEA's delivery of Third-Party Quotes, BECO, after making
commercially reasonable efforts, is able to neither consummate a
transaction as described in clause (B) of the immediately preceding
sentence, nor confirm to its reasonable satisfaction the validity
and firmness of at least one of the Third Party Quotes, then no
Negotiated Capacity Price will be deemed to have been established
for the applicable Capacity Requirement. In such event (or in the
event that NEA does not deliver any Third-Party Quotes to BECO
within two (2) Business Days after its rejection of the indicative
quote), NEA may request a new indicative quote from BECO (which
request may be for the same or a different period), in which event
the negotiation process set forth in this Section 4.1(b) will
be repeated with respect to such request.
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(c) If, despite their good faith efforts, the Parties are not able
to agree upon a Negotiated Capacity price prior to the Contract
UCAP Transfer Deadline then the Capacity Requirement shall be
purchased by BECO from NEA on a bilateral basis and the Capacity
Price paid by BECO to NEA shall be the settlement price set at the
UCAP Monthly Supply Auction.
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4.2 Payment and Netting .
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(a)
Billing Period . Unless otherwise specifically agreed upon
by the Parties, the calendar month shall be the standard period for
all payments under this Agreement (other than Termination
Payments). On or before the third (3 rd ) day following
the end of each month, NEA will render to BECO an invoice for the
Energy Payment and Capacity Payment obligations incurred hereunder
during the preceding month.
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(b)
Timeliness of Payment . BECO shall use its reasonable
efforts to pay all NEA invoices under this Agreement on the
fifteenth (15th) day after receipt of the invoice; provided,
however, unless otherwise agreed by the Parties, all invoices under
this Agreement shall be due and payable in accordance with each
Party's invoice instructions on or before the later of thirty (30)
days following the receipt of such invoice or, if such day is not a
Business Day, then on the next Business Day. Each Party will make
payments by electronic funds transfer, or by other mutually
agreeable method(s), to the account designated by the other Party.
Any amounts not paid by the due date will be deemed delinquent and
will accrue interest at the Late Payment Rate, such interest to be
calculated from and including the due date to but excluding the
date the delinquent amount is paid in full.
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(c)
Disputes and Adjustments of Invoices . A Party may, in good
faith, dispute the correctness of any invoice or any adjustment to
an invoice, rendered under this Agreement or adjust any invoice for
any arithmetic or computational error within twelve (12) months of
the date the invoice, or adjustment to an invoice, was rendered. In
the event an invoice or portion thereof, or any other claim or
adjustment arising hereunder, is disputed, payment of the
undisputed portion of the invoice shall be required to be made when
due, with notice of the objection given to the other Party. Any
invoice dispute or invoice adjustment shall be in writing and shall
state the basis for the dispute or adjustment. Payment of the
disputed amount shall not be required until the dispute is
resolved. Upon resolution of the dispute, any required payment
shall be made within two (2) Business Days of such resolution along
with interest accrued at the Late Payment Rate from and including
the due date but excluding the date paid. Inadvertent overpayments
shall be reimbursed or deducted by the Party receiving such
overpayment from subsequent payments, with interest accrued at the
Late Payment Rate from and including the date of such overpayment
to but excluding the date repaid or deducted by the Party receiving
such overpayment, as directed by the other party. Any dispute with
respect to an invoice is waived unless the other Party is notified
in accordance with this Section 4.2 within twelve (12) months
after the invoice is rendered or any specific adjustment to the
invoice is made. If an invoice is not rendered within twelve (12)
months after the close of the month during which performance
occurred, the right to payment for such performance is
waived.
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(d) Netting of Payments . The Parties hereby agree that they
shall discharge mutual debts and payment obligations due and owing
to each other under this Agreement on the same date through
netting, in which case all amounts owed by each Party to the other
Party for the purchase and sale of Contract Energy during the
monthly billing period under this Agreement, including any related
damages calculated pursuant to this Agreement, interest, and
payments or credits, shall be netted so that only the excess amount
remaining due shall be paid by the Party who owes it. If no mutual
debts or payment obligations exist and only one Party owes a debt
or obligation to the other during the monthly billing period, such
Party shall pay such sum in full when due. The Parties agree to
provide each other with reasonable detail of such net payment or
net payment request.
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4.3 Interest on Late Payment . If a payment is not received
when due under this Agreement, the delinquent Party shall pay to
the other Party interest on such unpaid amount which shall accrue
from the due date until the date upon which payment in full is made
at the prime lending rate as may from time to time be published in
The Wall Street Journal under "Money Rates" on such day (or if not
published on such day on the most recent preceding day on which
published) (the " Late Payment Rate ").
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5. ENERGY BANK
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The Parties acknowledge that in order to enhance the economic
viability of the Facility, the Existing NEA A PPA provided an
Energy Bank for the purpose of tracking the difference between the
Floor Price Amount paid by BECO to NEA and an Energy Bank Amount
calculated each month by BECO (as such terms are defined in the
Existing NEA A PPA). A positive balance in the Energy Bank
represented a debt owed by NEA to BECO. The Energy Bank also
provided a methodology whereby positive balances will be reduced
and the Energy Bank would be paid off over time and eliminated. It
is hereby agreed by the Parties that the provisions in the Existing
NEA A PPA related to the Energy Bank, including, without
limitation, Articles 9A and 9B (such Articles 9A and 9B
are reproduced and attached hereto as Schedule 5(a)) be
incorporated herein by reference; provided, the Parties agree that
the amortization schedule attached hereto at Schedule 5(b)
reflects accurately the current Energy Bank balance and the monthly
amount by which such balance is being reduced. Such amortization
schedule shall be adjusted to reflect the Energy Bank balance as of
the Effective Date to reflect deliveries under the Existing
NEA A PPA for the period from the Agreement Date through and
including the Effective Date.
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6. REPRESENTATIONS, WARRANTIES, COVENANTS AND
ACKNOWLEDMENTS
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6.1 Representations and Warranties of BECO .
BECO hereby
represents and warrants to NEA as of the Effective Date as
follows:
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(a) Organization and Good Standing; Power and Authority .
BECO is a corporation duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts.
BECO has all requisite power and authority to execute, deliver, and
perform its obligations under this Agreement.
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(b) Due Authorization; No Conflicts . The execution and
delivery by BECO of this Agreement, and the performance by BECO of
its obligations hereunder, have been duly authorized by all
necessary actions on the part of BECO and do not and, under
existing facts and law, will not: (i) contravene its restated
certificate of incorporation or any other governing documents;
(ii) conflict with, result in a breach of, or constitute a
default under any note, bond, mortgage, indenture, deed of trust,
license, contract or other agreement to which it is a party or by
which any of its properties may be bound or affected;
(iii) assuming receipt of the requisite regulatory approvals,
violate any order, writ, injunction, decree, judgment, award,
statute, law, rule, regulation or ordinance of any Governmental
Entity or agency applicable to it or any of its properties; or
(iv) result in the creation of any lien, charge or encumbrance
upon any of its properties pursuant to any of the
foregoing.
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(c) Binding Agreement . This Agreement has been duly
executed and delivered on behalf of BECO and, assuming the due
execution hereof and performance hereunder by NEA, constitutes a
legal, valid and binding obligation of BECO, enforceable against it
in accordance with its terms, except as such enforceability may be
limited by law or principles of equity.
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(d) No Proceedings . There are no actions, suits or other
proceedings, at law or in equity, by or before any Governmental
Entity or agency or any other body pending or, to the best of its
knowledge, threatened against or affecting BECO or any of its
properties (including, without limitation, this Agreement) which
relate in any manner to this Agreement or any transaction
contemplated hereby, or which BECO reasonably expects to lead to a
material adverse effect on (i) the validity or enforceability
of this Agreement or (ii) BECO's ability to perform its
obligations under this Agreement.
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(e) Consents and Approvals . The execution, delivery and
performance by BECO of its obligations under this Agreement does
not and, under existing facts and law, will not, require any
approval, consent, permit, license or other authorization of, or
filing or registration with, or any other action by, any Person
which has not been duly obtained, made or taken, and all such
approvals, consents, permits, licenses, authorizations, filings,
registrations and actions are in full force and effect, final and
non-appealable.
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(f) Negotiations . The terms and provisions of this
Agreement are the result of arm's length and good faith
negotiations on the part of BECO.
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6.2 Representations and Warranties of NEA . NEA hereby
represents and warrants to BECO as of the Effective Date as
follows:
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(a) Organization and Good Standing; Power and Authority .
NEA is a limited partnership, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts. NEA has all
requisite power and authority to execute, deliver, and perform its
obligations under this Agreement.
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(b) Due Authorization; No Conflicts . The execution and
delivery by NEA of this Agreement, and the performance by NEA of
its obligations hereunder, have been duly authorized by all
necessary actions on the part of NEA and do not and, under existing
facts and law, will not: (i) contravene any of its governing
documents; (ii) conflict with, result in a breach of, or
constitute a default under any note, bond, mortgage, indenture,
deed of trust, license, contract or other agreement to which it is
a party or by which any of its properties may be bound or affected;
(iii) assuming receipt of the requisite regulatory approvals,
violate any order, writ, injunction, decree, judgment, award,
statute, law, rule, regulation or ordinance of any Governmental
Entity or agency applicable to it or any of its properties; or
(iv) result in the creation of any lien, charge or encumbrance
upon any of its properties pursuant to any of the
foregoing.
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(c) Binding Agreement . This Agreement has been duly
executed and delivered on behalf of NEA and, assuming the due
execution hereof and performance hereunder by NEA, constitutes a
legal, valid and binding obligation of NEA, enforceable against it
in accordance with its terms, except as such enforceability may be
limited by law or principles of equity.
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(d) No Proceedings . There are no actions, suits or other
proceedings, at law or in equity, by or before any Governmental
Entity or agency or any other body pending or, to the best of its
knowledge, threatened against or affecting NEA or any of its
properties (including, without limitation, this Agreement) which
relate in any manner to this Agreement or any transaction
contemplated hereby, or which NEA reasonably expects to lead to a
material adverse effect on (i) the validity or enforceability
of this Agreement or (ii) NEA's ability to perform its
obligations under this Agreement.
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(e) Consents and Approvals . The execution, delivery and
performance by NEA of its obligations under this Agreement does not
and, under existing facts and law, will not, require any approval,
consent, permit, license or other authorization of, or filing or
registration with, or any other action by, any Person which has not
been duly obtained, made or taken, and all such approvals,
consents, permits, licenses, authorizations, filings, registrations
and actions are in full force and effect, final and
non-appealable.
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(f) Negotiations . The terms and provisions of this
Agreement are the result of arm's length and good faith
negotiations on the part of NEA.
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(g) Other Agreements . NEA has not entered into any
(i) agreements for the sale of energy or capacity other than
(A) the Existing Agreements and (B) that certain Power
Purchase Agreement between NEA and Montaup Electric Company dated
October 17, 1986 (the "Montaup PPA"), and (ii) amendment
or modification of the Montaup PPA other than as set forth in
Schedule 6.2(g).
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6.3 PURPA Acknowledgements .
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(a) The Parties acknowledge and agree that:
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(i) Under the Existing NEA A PPA, NEA was entitled to all rights
afforded to a "qualifying facility" (as defined in 18 C.F.R.
Part 292) (" QF ") under applicable law, including, but
not limited to, PURPA, for as long as the Facility maintained its
status as a QF, and
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(ii) The consideration for NEA's agreement to amend and restate the
Existing NEA A PPA and to waive its rights under PURPA, as
provided in Section 6.3(c) below, is the execution and
delivery of this Agreement by BECO.
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(b) It is the express intent of the Parties that this Agreement
shall be deemed a successor to, replacement of and substitute for
the Existing NEA A PPA, which is being amended and restated in its entirety as of the Effective Date.
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(c) As of the Effective Date, NEA forever relinquishes and waives
any rights it may have or may have in the future under PURPA or any
federal or state regulation, act or order implementing PURPA, to
require BECO or any of its affiliates to purchase electricity and
or capacity generated at the Facility. NEA shall cause any third
party successor to NEA's rights and interest in the Facility to
agree to be bound by the foregoing waiver. NEA shall indemnify,
defend and hold BECO and its partners, shareholders, members,
directors, officers, employees and agents harmless from and against
all liabilities, damages, losses, penalties, claims, demands, suits
and proceedings of any nature whatsoever suffered or incurred by
BECO arising out of any failure by NEA to comply with the waiver of
PURPA rights set forth in this
Section 6.3 (c).
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(d) As of the Effective Date and continuing
throughout the Term, each Party hereby irrevocably waives its right
to seek or support, and agrees not to seek or support, in any way,
including, but not limited to, seeking or supporting through
application, complaint, petition, motion, filing before any
Governmental Entity (including, without
limitation, DTE and FERC ), rule, regulation or statute:
(i) reconsideration by DTE of its approval of this Agreement;
(ii) modification or invalidation of this Agreement or any
term or condition contained herein (including,
without limitation, any pricing provision herein) ; or (iii) disallowance or impairment, in whole
or in part, of BECO's right to fully and timely recover from its
customers its costs of purchasing electricity and capacity pursuant
to this Agreement.
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(e) Nothing contained herein shall be deemed or construed as (i)
a waiver by either Party of any right
to challenge any attempt by DTE , FERC or any
other Governmental Entity to disallow
rate recovery or modify, amend or supplement this
Agreement or (ii) an acknowledgment
by any such Party that DTE , FERC or any other
Governmental Entity would have such
authority if it so attempted.
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(f) As of the Effective Date, NEA's and
BECO's obligations under this Agreement are expressly not
conditioned on the maintenance of the QF status of the Facility
under PURPA, and this Agreement shall remain binding upon the
Parties without regard to whether the Facility or
any other source of power delivered to BECO under this
Agreement is, was or remains a QF.
Each Party shall
obtain and maintain all permits or licenses necessary for it to
perform its obligations under this Agreement.
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(g) The Parties acknowledge and agree that, to the extent this
Agreement is or becomes subject to review pursuant to the Federal
Power Act, the standard of review for any change or modification to
the pricing provisions of this Agreement proposed by any Person who
is not a party hereto or FERC acting sua sponte shall be the
"public interest" standard of review set forth in United Gas
Pipe Line Co. v. Mobile Gas Service Corp. ,
350 U.S. 332 (1956) and Federal Power Commission v.
Sierra Pacific Power Co. , 350 U.S. 348 (1956) (the
"Mobile-Sierra" doctrine).
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6.4
Release . The Parties agree to each release the other of all
obligations, liabilities and costs arising under the Existing
NEA A PPA as of the Effective Date, and to further release
each other regarding potential claims against one another and
related to differing interpretations of the Existing NEA A PPA
(the " PPA and Related Potential Claims "). Such claims
include, without limitation, the obligations to deliver, sell,
receive and purchase energy and capacity under the Existing
NEA A PPA, and disputes related to: (a) the payment for
Capacity and Associated Energy (as such terms are defined in the
Existing NEA A PPA) delivered by NEA and received by BECO in
excess of the Company's Entitlement (as such term is defined in the
Existing NEA A PPA); (b) the application of
Article 21, Other Terms to Third Parties, as set forth in the
Existing NEA A PPA; (c) the allocation of certain
congestion charges/credits imposed by the ISO; and (d) the
calculation of the Qualifying Facility Power Purchase Rate (as such
term is defined in the Existing NEA A PPA). The Parties agree
that it is in their mutual best interests to waive such PPA and
Related Potential Claims and to release each other from liability
thereunder. Therefore, as of the Effective Date, the Parties,
intending to be legally bound on behalf of themselves and their
past, present and future parents, subsidiaries, affiliates,
successors, predecessors, assigns, directors, officers, agents,
attorneys, insurers, employees, stockholders, members, partners and
representatives ABSOLUTELY, IRREVOCABLY, AND UNCONDITIONALLY, FULLY
AND FOREVER ACQUIT, RELEASE, AND DISCHARGE AND COVENANT NOT TO SUE
each other and any and all of their past, present and future
parents, subsidiaries, affiliates, successors, predecessors,
assigns, directors, officers, agents, attorneys, insurers,
employees, stockholders, members, partners and representatives,
from any and all claims, causes of action, demands, obligations,
charges, complaints, controversies, damages, liabilities, costs,
expenses, judgments, guarantees, agreements, or defaults of every
and any nature, relating to or arising out of the PPA and Related
Potential Claims, whether in law or equity and whether arising in
contract (including breach), tort or otherwise, and irrespective of
fault, negligence or strict liability, which a Party may have had,
or may now have, prior to the Effective Date.
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7. RESERVED
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8. BREACHES; REMEDIES
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8.1 Events of Default; Cure Rights . It shall constitute an event
of default (" Event of Default ") hereunder
if:
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(a) Representation or Warranty . Any representation or
warranty set forth herein is not accurate and complete in all
material respects as of the date made, unless such inaccuracy or
incompleteness is capable of cure by the payment of money and is
cured within thirty (30) days after written notice thereof is given
by the non-defaulting Party to the defaulting Party, or unless such
inaccuracy or incompleteness is not capable of cure by the payment
of money, but is otherwise capable of cure, and the Party in
default promptly begins and diligently and continuously pursues
such cure activity.
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(b) Payment Obligations . Any undisputed payment due and
payable hereunder is not made on the date due, and such failure
continues for more than five (5) Business Days after notice thereof
is given by the non-defaulting Party to the defaulting
Party.
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(c) Other Covenants . Subject to Sections 3.6, 3.7,
3.8, 8.1(g) and 8.1(h) hereof, a Party fails to perform, observe or
otherwise to comply with any obligation hereunder and such failure
continues for more than thirty (30) days after notice thereof is
given by the non-defaulting Party to the defaulting Party, or if
such default is not capable of cure within thirty (30) days, the
Party in default promptly begins such cure activity within such
thirty (30) day period and diligently and continuously pursues the
cure activity such that the failure is cured within ninety (90)
days after notice thereof is given by the non-defaulting Party to
the defaulting Party.
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(d) BECO Bankruptcy . BECO (i) is adjudged bankrupt or
files a petition in voluntary bankruptcy under any provision of any
bankruptcy law or consents to the filing of any bankruptcy or
reorganization petition against BECO under any such law, or
(without limiting the generality of the foregoing) files a petition
to reorganize BECO pursuant to 11 U.S.C. Subsection 101
or any similar statute applicable to BECO, as now or hereinafter in
effect, (ii) makes an assignment for the benefit of creditors,
or admits in writing an inability to pay its debts generally as
they become due, or consents to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of
BECO, or (iii) is subject to an order of a court of competent
jurisdiction appointing a receiver or liquidator or custodian or
trustee of BECO or of a major part of its property.
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(e) NEA Bankruptcy . NEA (i) is adjudged bankrupt or
files a petition in voluntary bankruptcy under any provision of any
bankruptcy law or consents to the filing of any bankruptcy or
reorganization petition against NEA under any such law, or (without
limiting the generality of the foregoing) files a petition to
reorganize NEA pursuant to 11 U.S.C. Subsection 101 or
any similar statute applicable to NEA, as now or hereinafter in
effect, (ii) makes an assignment for the benefit of creditors,
or admits in writing an inability to pay its debts generally as
they become due, or consents to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of
NEA, or (iii) is subject to an order of a court of competent
jurisdiction appointing a receiver or liquidator or custodian or
trustee of NEA or of a major part of its property.
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(f)
Consolidation . A Party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all of its
assets to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer, the resulting, surviving or
transferee entity fails to assume all the obligations of such Party
under this Agreement to which it or its predecessor was a
party.
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(g) Continuing Failure by NEA to Deliver Contract Energy or
Satisfy the Capacity Requirement . NEA (i) fails to
deliver and sell Contract Energy hereunder for a period of ten (10)
continuous days during the Term hereof and such failure is not
excused for reasons set forth in this Agreement and such failure
continues for more than five (5) days after written notice thereof
is given by BECO to NEA, or if such failure is not capable of cure
within five (5) days, NEA shall cure such failure as soon as
commercially practicable but not later than six (6) months after
notice thereof is given by BECO to NEA or (ii) fails to
satisfy the Capacity Requirement hereunder for a period of one (1)
calendar month during the Term hereof and such failure is not
excused for reasons set forth in this Agreement and such failure
continues for more than two (2) calendar months after written
notice thereof is given by BECO to NEA, or if such failure is not
capable of cure within two (2) calendar months, NEA shall cure such
failure as soon as commercially practicable but not later than six
(6) months after notice thereof is given by BECO to NEA; provided,
however, the foregoing shall not be construed to limit or otherwise
affect NEA's obligation to pay Cover Damages or Capacity
Replacement Damages for any day on which NEA fails to deliver
Contract Energy or satisfy the Capacity Requirement.
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(h) Continuing Failure by BECO to Accept Delivery of Contract
Energy or the Capacity Requirement . BECO fails to accept
delivery of Contract Energy or the Capacity Requirement hereunder
for a period of ten (10) continuous days during the Term hereof and
such failure is not excused for reasons set forth in this Agreement
and such failure continues for more than five (5) days after
written notice thereof is given by NEA to BECO, or if such failure
is not capable of cure within five (5) days, BECO promptly begins
such cure activity within such five (5) day period and diligently
and continuously pursues the cure activity such that the failure is
cured within thirty (30) days after notice thereof is given by BECO
to NEA; provided, however, the foregoing shall not be construed to
limit or otherwise affect BECO's obligation to pay Resale Damages
or Capacity Resale Damages for any day on which BECO fails to
accept Contract Energy or the Capacity Requirement.
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8.2 Remedies .
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(a) Declaration of an Early Termination Date and Calculation of
Termination Payments .
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(i) BECO Termination Payment .
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(A) If an Event of Default with respect to BECO shall have occurred
and be continuing, NEA shall have the right (I) to designate a
day on which this Agreement will terminate (the " BECO Early
Termination Date "), (II) withhold any payments due to
BECO under this Agreement and (III) suspend performance. NEA
shall calculate, in a commercially reasonable manner, a BECO
Termination Payment as of the BECO Early Termination Date. As soon
as practicable after termination, notice shall be given by NEA to
BECO of the amount of the BECO Termination Payment. The notice
shall include a written statement explaining in reasonable detail
the calculation of such amount. BECO shall make the BECO
Termination Payment within two (2) Business Days after such notice
is effective. If BECO disputes NEA's calculation of the BECO
Termination Payment, in whole or in part, BECO shall, within two
(2) Business Days of receipt of the calculation of the BECO
Termination Payment, provide to NEA a detailed written explanation
of the basis for such dispute; provided, however, BECO shall first
transfer Performance Assurance to NEA in an amount equal to the
BECO Termination Payment as calculated by NEA.
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(B) Notwithstanding the provisions of Section 8.2(a)(i)(A), if
on the first occasion that an Event of Default by BECO pursuant to
Section 8.1(b) shall have occurred and be continuing, and NEA
has exercised its rights under Section 8.2(a)(i)(A) to
designate a BECO Early Termination Date, which date shall be no
less than twenty (20) Business Days from the date NEA provides BECO
with the notice of default under Section 8.1(b), BECO may,
within twenty (20) Business Days of such notice, provide NEA with
any amounts then due, plus credit support in an amount equal to the
aggregate of the payments to be made by BECO pursuant to
Article 4 hereof for the subsequent three (3) month period, as
calculated in good faith by NEA (and disregarding any suspension of
performance by NEA under Section 8.2(a)(i)) (" Credit
Support ") in any of the following forms: (I) a letter of
credit with an initial term of at least six (6) months issued by a
bank or other financial institution reasonably acceptable to NEA,
which will allow NEA to draw on the letter of credit up to the full
amount upon a subsequent Event of Default by BECO, or
(II) such other credit support proposed by BECO that is
reasonably acceptable to NEA. If BECO makes such payments and
provides such Credit Support, then NEA's rights under
Section 8.2(a)(i) shall no longer be in effect and, if NEA has
suspended performance under Section 8.2(a)(i), NEA shall
recommence such performance.
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(C) In
the event of either (I) a subsequent Event of Default by BECO
pursuant to Section 8.1(b) and a failure by BECO to maintain
Credit Support as required under Section 8.2(a)(i)(B) or
(II) a failure by BECO to maintain Credit Support as required
under Section 8.2(a)(i)(B), NEA will have all rights as set
forth in Section 8.2(a)(i) .
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(D) BECO shall be relieved of the obligation to maintain such
Credit Support to the extent that each of the following shall have
occurred: (I) for at least six (6) months BECO shall have
provided and maintained the Credit Support in accordance with
Section 8.2(a)(i)(B) and there shall have been no drawdown by
NEA under such Credit Support on account of a subsequent Event of
Default by BECO; (II) BECO's senior secured Credit Rating, not
supported by third party credit enhancements, is at or above
BBB-/Stable Outlook from S&P and at or above Baa3, Stable
Outlook from Moody's (or in the event BECO does not have, or no
longer has, a senior secured credit rating, its issuer and/or long
term debt rating shall be referenced); and (III) no other
Event of Default has occurred and is continuing, including an event
of Default under Section 8.1(b).
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(ii)
NEA Termination Payment . If an Event of Default with
respect to NEA shall have occurred and be continuing, BECO shall
have the right (A) to designate a day on which this Agreement
will terminate (the " NEA Early Termination Date "),
(B) withhold any payments due to NEA under this Agreement and
(C) suspend performance. BECO shall calculate, in a
commercially reasonable manner, a NEA Termination Payment as of the
NEA Early Termination Date. As soon as practicable after
termination, notice shall be given by BECO to NEA of the amount of
the NEA Termination Payment. The notice shall include a written
statement explaining in reasonable detail the calculation of such
amount. NEA shall make the NEA Termination Payment within two (2)
Business Days after such notice is effective. If NEA disputes
BECO's calculation of the NEA Termination Payment, in whole or in
part, NEA shall, within two (2) Business Days of receipt of the
calculation of the NEA Termination Payment, provide to BECO a
detailed written explanation of the basis for such dispute;
provided, however, NEA shall first transfer Performance Assurance
to BECO in an amount equal to the NEA Termination Payment as
calculated by BECO.
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(b) Limitation of Remedies, Liability and Damages . EXCEPT
AS SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED
WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS
REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY
THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR
WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH
EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET
FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR
IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS
EXPRESSLY PROVIDED HEREIN, THE OBLIGOR'S LIABILITY SHALL BE LIMITED
TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE
THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT
LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED,
NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER
BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT,
UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE
PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE
MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED
THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO
THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT
OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE
REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER
CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR
LOSS.
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9. FORCE MAJEURE
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9.1 Force Majeure .
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(a) The term " Force Majeure " means an event or
circumstance which prevents one Party from performing its
obligations under this Agreement, which event or circumstance was
not anticipated as of the date this Agreement was agreed to, which
is not within the control of, or the result of the negligence of,
the Claiming Party or its agents, contractors, suppliers or
Affiliates, and which, by the exercise of due diligence, the
Claiming Party is unable to overcome or avoid or cause to be
avoided, including storms, floods, earthquakes, tornados, fires,
explosions, wars, riots or other civil disturbances, acts of war or
acts of a public enemy, strikes, lockout, work stoppage or other
industrial disturbances, labor or material shortage, and failure of
the plant or plant equipment resulting from such force majeure
events. Force Majeure shall not be based on (i) the loss of
BECO's markets; (ii) BECO's inability economically to use or
resell the Contract Energy purchased hereunder; (iii) the loss
or failure of NEA's supply; or (iv) NEA's ability to sell the
Contract Energy at a price greater than the amount provided for in
Section 4.1(a).
|
|
(b) Neither Party may raise a claim of Force Majeure based in whole
or in part on curtailment by a Transmission Provider unless (i)
such Party has contracted for firm transmission with a Transmission
Provider for the Contract Energy to be delivered to or received at
the Delivery Point and (ii) such curtailment is due to "force
majeure" or "uncontrollable force" or a similar term as defined
under the Transmission Provider's tariff; provided, however, that
existence of the foregoing factors shall not be sufficient to
conclusively or presumptively prove the existence of a Force
Majeure absent a showing of other facts and circumstances which in
the aggregate with such factors establish that a Force Majeure as
defined in Section 9.1(a) has occurred.
|
|
9.2 Notice and Excuse of Performance .
|
|
(a) Following a Force Majeure event, if either Party believes that
such event will, or is reasonably likely to, adversely affect the
performance of its obligations under this Agreement, then as early
as commercially practicable but in no event later than two (2)
Business Days after the initial occurrence of such event and for
contingency planning purposes, such Party shall provide preliminary
telephonic notice of the occurrence of a Force Majeure to the other
Party promptly followed by written notice on or before the tenth
(10th) Business Day after the initial occurrence of such event.
Such written notice shall specify the nature and, if known, cause
of the Force Majeure, its anticipated effect on the ability of such
Party to perform obligations under this Agreement and the estimated
duration of any interruption in service or other adverse effects
resulting from such Force Majeure and shall be updated or
supplemented as necessary to keep the other Party advised of the
effect and remedial measures being undertaken to overcome the Force
Majeure.
|
|
(b) To the extent either Party is prevented by Force Majeure from
carrying out, in whole or part, its obligations under this
Agreement and such Party (the " Claiming Party ") gives
notice and details of the Force Majeure to the other Party as soon
as practicable, then the Claiming Party shall be excused from the
performance of its obligations with respect to such obligations
(other than the obligation to make payments then due or becoming
due with respect to performance prior to the Force Majeure). The
Claiming Party shall remedy the Force Majeure with all reasonable
dispatch. The non-Claiming Party shall not be required to perform
its obligations to the Claiming Party corresponding to the
obligations of the Claiming Party excused by Force
Majeure.
|
|
10. DISPUTE RESOLUTION
|
|
In the event of any dispute, controversy or claim between the
Parties arising out of or relating to this Agreement (collectively,
a " Dispute "), the Parties shall attempt in the first
instance to resolve such Dispute through friendly consultations
between the Parties. If such consultations do not result in a
resolution of the Dispute within fifteen (15) Days after notice of
the Dispute has been delivered to either Party, then such Dispute
shall be referred to the senior management of the Parties for
resolution. If the Dispute has not been resolved within fifteen
(15) Days after such referral to the senior management of the
Parties, then either Party may pursue all of its remedies available
hereunder. The Parties agree to attempt to resolve all Disputes
promptly, equitably and in a good faith manner. In the event a
dispute hereunder is resolved pursuant to arbitration or judicial
proceedings, the Party whose position does not prevail in such
proceedings shall reimburse all of the other Party's third party
costs (including reasonable attorney's fees) incurred to prosecute
or defend (as the case may be) such proceedings.
|
|
11. CONFIDENTIALITY
|
|
11.1 Nondisclosure . BECO and NEA each agree not to disclose
to any Person and to keep confidential, and to cause and instruct
its Affiliates, officers, directors, employees, partners and
representatives not to disclose to any Person and to keep
confidential, any and all of the following non-public information
relating to the terms and provisions of this Agreement; any
financial, pricing or supply quantity information relating to the
Contract Energy to be supplied by NEA hereunder, the Facility or
NEA and any information that is clearly marked or identified as
"Confidential". Notwithstanding the foregoing, any such information
may be disclosed: (a) to the extent required by applicable
laws and regulations or by any subpoena or similar legal process of
any court or agency of federal, state or local government so long
as the receiving Party gives the non-disclosing Party written
notice at least three (3) Business Days prior to such disclosure,
if practicable; (b) to lenders and potential lenders to BECO
or to lenders to NEA or other Person(s) in connection with the
implementation of this Agreement and to financial advisors, rating
agencies, and any other Persons involved in the acquisition,
marketing or sale or placement of such debt; (c) to agents,
trustees, advisors and accountants of the Parties or their
Affiliates involved in the financings described in clause (b)
above, (d) to potential assignees of BECO or NEA or other
Persons in connection with such proposed assignment and to
financial advisors, rating agencies, and any other Persons involved
in the marketing, placement or rating of such assignment,
(e) to agents, trustees, advisors and accountants of the
Parties or their Affiliates or agents, trustees, advisors and
accountants of Persons involved in the potential assignment
described in clause (d) above or (f) to the extent the
non-disclosing Party shall have consented in writing prior to any
such disclosure.
|
|
11.2 Public Statements . No public statement,
press release or other voluntary publication regarding this
Agreement shall be made or issued without the prior consent of the
other Party, which consent shall not be unreasonably
withheld.
|
|
12. INDEMNIFICATION AND INDEMNIFICATION
PROCEDURES
|
|
12.1 Indemnification . Each Party (" Indemnifying
Party ") shall indemnify, defend and hold the other Party ("
Indemnified Party ") and its partners, shareholders,
partners, directors, officers, employees and agents (including, but
not limited to, Affiliates and contractors and their employees),
harmless from and against all liabilities, damages, losses,
penalties, claims, demands, suits and proceedings of any nature
whatsoever related to this Agreement suffered or incurred by such
Indemnified Party arising out of the Indemnifying Party's gross
negligence or willful misconduct (including, without limitation,
any breach of this Agreement resulting from gross negligence or
willful misconduct). In the event injury or damage results from the
joint or concurrent grossly negligent or willful misconduct of the
Parties, each Party shall be liable under this indemnification in
proportion to its relative degree of fault. Such duty to indemnify
shall not apply to any claims which arise or are first asserted
more than two (2) years after the termination of this Agreement.
Such indemnity shall not include or compensate for indirect,
punitive, exemplary, incidental or consequential damages incurred
by either Party.
|
|
12.2 Indemnification Procedures . Each Indemnified Party shall
promptly notify the Indemnifying Party of any claim in respect of
which the Indemnified Party is entitled to be indemnified under
this Article 12. Such notice shall be given as soon as is
reasonably practicable after the Indemnified Party becomes aware of
each claim; provided, however, that failure to give prompt notice
shall not adversely affect any claim for indemnification hereunder
except to the extent the Indemnifying Party's ability to contest
any claim by any third party is materially adversely affected. The
Indemnifying Party shall have the right, but not the obligation, at
its expense, to contest, defend, litigate and settle, and to
control the contest, defense, litigation and/or settlement of, any
claim by any third party alleged or asserted against any
Indemnified Party arising out of any matter in respect of which
such Indemnified Party is entitled to be indemnified hereunder. The
Indemnifying Party shall promptly notify such Indemnified Party of
its intention to exercise such right set forth in the immediately
preceding sentence and shall reimburse the Indemnified Party for
the reasonable costs and expenses paid or incurred by it prior to
the assumption of such contest, defense or litigation by the
Indemnifying Party. The Indemnifying Party shall have the right to
select legal counsel to defend a claim for which the Indemnified
Party is seeking indemnification pursuant to this
Section 12.2, subject to the consent of the Indemnified Party,
which shall not be unreasonably delayed or withheld. If the
Indemnifying Party exercises such right in accordance with the
provisions of this Article 12 and any Indemnified Party
notifies the Indemnifying Party that it desires to retain separate
counsel in order to participate in or proceed independently with
such contest, defense or litigation, such Indemnified Party may do
so at its own expense. If the Indemnifying Party fails to exercise
it rights set forth in the third sentence of this
Section 12.2, then the Indemnifying Party will reimburse the
Indemnified Party for its reasonable costs and expenses incurred in
connection with the contest, defense or litigation of such claim.
No Indemnified Party shall settle or compromise any claim in
respect of which the Indemnified Party is entitled to be
indemnified under this Article 12 without the prior written
consent of the Indemnifying Party; provided, however, that such
consent shall not be unreasonably withheld by the Indemnifying
Party.
|
|
13. ASSIGNMENT
|
|
13.1 Prohibition on Assignment . Except as provided in
Section 13.2 hereof, this Agreement may not be assigned by
either Party without the prior written consent of the other Party,
which may not be unreasonably withheld. Any attempted or purported
assignment of this Agreement that is not expressly permitted
pursuant to Section 13.2 hereof shall be null and void and
shall have no effect on or with respect to the rights and
obligations of the Parties hereunder.
|
|
13.2 Permitted Assignment .
|
|
(a) NEA shall have the right to assign all or any portion of its
rights or obligations under this Agreement without the consent of
BECO solely for financing purposes to existing and any future
lenders secured, in whole or in part, by interests in the Facility,
NEA's contractual rights, or NEA or Affiliates of NEA. Such
assignment to lenders shall not operate to relieve NEA of any duty
or obligation under this Agreement. In connection with the exercise
of remedies under the security documents relating to such
financing(s), the lender(s) or trustee(s) shall be entitled to
assign this Agreement to any third-party transferee designated by
such lender(s) or trustee(s), provided that BECO determines, in
BECO's reasonable discretion, that such proposed transferee or
assignee is qualified and capable to satisfy NEA's obligations
hereunder.
|
|
(b) BECO shall have the right to assign this Agreement in
connection with a BECO Reorganization Event to any assignee without
the consent of NEA so long as (i) the proposed assignee serves
load in NEPOOL and (ii) the proposed assignee's credit rating
as established by Moody's or S&P is equal to or better than
that of BECO at the time of the proposed assignment (provided, that
any such rating that is on "watch" for downgrading shall not
satisfy the credit rating criteria described in clause
(ii)).
|
|
(c) If either Party assigns this Agreement as provided in this
Section 13.2, then such Party shall cause to be delivered to
the other Party an assumption agreement (in form and substance
reasonably satisfactory to the non-assigning Party) of all of the
obligations of the assigning Party hereunder by such
assignee.
|
|
(d) An assignment of this Agreement pursuant to this
Section 13.2 shall not release or discharge the assignor from
its obligations hereunder unless the assignee executes a written
assumption agreement in accordance with Section 13.2(c)
hereof.
|
|
14. NOTICES
|
|
Any notice or communication given pursuant hereto shall be in
writing and (1) delivered personally (personally delivered
notices shall be deemed given upon written acknowledgment of
receipt after delivery to the address specified or upon refusal of
receipt); (2) mailed by registered or certified mail, postage
prepaid (mailed notices shall be deemed given on the actual date of
delivery, as set forth in the return receipt, or upon refusal of
receipt); (3) e-mailed (e-mailed notices shall be deemed given
upon actual receipt) or (4) delivered in full by telecopy
(telecopied notices shall be deemed given upon actual receipt), in
either case addressed or telecopied as follows or to such other
addresses or telecopy numbers as may hereafter be designed by
either Party to the other in writing:
|
|
If to BECO:
Boston Edison Company
One NSTAR Way, NE 220
Westwood, MA 02090-9230
Attention: Ellen K. Angley, Vice President, Energy Supply and
Transmission
Facsimile: (781) 441-8078
|
|
Copy to:
Legal Department
NSTAR Electric & Gas Corporation
800 Boylston Street
Boston, Ma 02109
Attention: T.N. Cronin, Assistant General
Counsel
Facsimile: (617) 424-2733
|
|
If to NEA:
Northeast Energy Associates, A Limited Partnership
c/o Northeast Energy LP
c/o ESI Northeast Energy GP, Inc.
Its Administrative General Partner
700 Universe Blvd.
P.O. Box 14000
Juno Beach, FL 33408
Attention: Business Manager
Facsimile: 561-304-5161
|
|
With a copy to:
Tractebel Power, Inc.
1990 Post Oak Blvd
Suite 1900
Houston, TX 77056
Attention: General Counsel
Facsimile: 713-636-1858
|
|
15. WAIVER AND MODIFICATION
|
|
This Agreement may be amended and its provisions and the effects
thereof waived only by a writing executed by the Parties, and no
subsequent conduct of any Party or course of dealings between the
Parties shall effect or be deemed to effect any such amendment or
waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. The failure
of either Party to enforce any provision of this Agreement shall
not be construed as a waiver of or acquiescence in or to such
provision.
|
|
16. INTERPRETATION
|
|
16.1 Choice of Law . Interpretation and performance
of this Agreement shall be in accordance with, and shall be
controlled by, the laws of the Commonwealth of Massachusetts
(without regard to its principles of conflicts of law).
|
|
16.2 Headings . Article and Section headings
are for convenience only and shall not affect the interpretation of
this Agreement. References to articles, sections and appendices,
and schedules are, unless the context otherwise requires,
references to articles, sections, appendices, and schedules of this
Agreement. The words "hereof" and "hereunder" shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
|
|
17. COUNTERPARTS
|
|
Any number of counterparts of this Agreement may be executed, and
each shall have the same force and effect as an
original.
|
|
18. NO DUTY TO THIRD PARTIES
|
|
Except as provided in any consent to assignment of this Agreement,
nothing in this Agreement nor any action taken hereunder shall be
construed to create any duty, liability or standard of care to any
Person not a Party to this Agreement.
|
|
19. SEVERABILITY
|
|
If any term or provision of this Agreement or the interpretation or
application of any term or provision to any prior circumstance is
held to be unenforceable, illegal or invalid by a court or agency
of competent jurisdiction, the remainder of this Agreement and the
interpretation or application of all other terms or provisions to
Persons or circumstances other than those which are unenforceable,
illegal or invalid shall not be affected thereby, and each term and
provision shall be valid and be enforced to the fullest extent
permitted by law.
|
|
20. ENTIRE AGREEMENT
|
|
Upon the Effective Date, this Agreement, together with the
agreements executed or delivered on the Effective Date in
connection herewith, shall constitute the entire agreement and
understanding between the Parties hereto and shall supersede all
prior agreements including, without limitation, the Existing NEA A
PPA and understandings relating to the subject matter
hereof.
|
|
21. CHANGE IN LAW OR MARKET STRUCTURE
|
|
The Parties acknowledge that this Agreement is based on the Laws,
ISO Policies and market structure in effect as of the Agreement
Date. In the event of a Change in Law or Market Structure, the
Parties shall make such amendments to this Agreement as are
necessary to accommodate such Change in Law or Market Structure,
provided that any such amendments shall preserve the economic and
business arrangements embodied or referenced in this
Agreement.
|
|
IN WITNESS
WHEREOF, each of BECO and NEA has caused this Agreement to be duly
executed on its behalf as of the date first above
written.
|
|
Boston Edison Company
|
|
|
By:
|
ELLEN K. ANGLEY
|
|
|
|
|
|
|
Name:
Title:
|
Ellen K. Angley
VP Energy Supply & Transmission
|
|
|
|
|
|
|
|
|
NORTHEAST ENERGY ASSOCIATES,
A LIMITED PARTNERSHIP
|
|
|
By Northeast Energy LP
Its General Partner
|
|
|
By ESI Northeast Energy GP Inc.
Its Administrative General Partner
|
|
|
By:
|
NATHAN E. HANSON
|
|
|
|
|
|
|
|
Authorized
Representative
|
|
|
|
Nathan E.
Hanson
|
|
|
EXHIBIT
A
|
|
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
EXISTING AGREEMENT
|
|
NEA-A PPA between BECO and NEA executed on April 1, 1986, as
amended.
|
|
SCHEDULE 3.3
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
DELIVERY SCHEDULE FOR CONTRACT ENERGY
|
|
|
|
|
|
|
|
|
|
Month
|
MWh/h
|
|
|
|
|
|
|
January
|
150.0000
|
|
|
February
|
150.0000
|
|
|
March
|
140.0000
|
|
|
Apri
|
140.0000
|
|
|
May
|
100.0000
|
|
|
June
|
120.0000
|
|
|
July
|
130.0000
|
|
|
August
|
130.0000
|
|
|
September
|
130.0000
|
|
|
October
|
130.0000
|
|
|
Novembe
|
110.0000
|
|
|
December
|
140.0000
|
|
|
SCHEDULE 4.1(a)
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
|
|
Month
Ending
|
No. of
Days
|
MWh/hr
BECO A
|
MWhs
BECO A
|
Monthly Support
Payment Price
($/MWh)
BECO A
|
|
|
|
|
|
|
|
|
|
04/30/04
|
30
|
140.0000
|
100,800.0000
|
29.4643
|
|
|
05/31/04
|
31
|
100.0000
|
74,400.0000
|
39.9194
|
|
|
06/30/04
|
30
|
120.0000
|
86,400.0000
|
34.3750
|
|
|
07/31/04
|
31
|
130.0000
|
96,720.0000
|
30.7072
|
|
|
08/31/04
|
31
|
130.0000
|
96,720.0000
|
30.7072
|
|
|
09/30/04
|
30
|
130.0000
|
93,600.0000
|
31.7308
|
|
|
10/31/04
|
31
|
130.0000
|
96,720.0000
|
30.7072
|
|
|
11/30/04
|
30
|
110.0000
|
79,200.0000
|
37.5000
|
|
|
12/31/04
|
31
|
140.0000
|
104,160.0000
|
28.5138
|
|
|
01/31/05
|
31
|
150.0000
|
111,600.0000
|
19.2652
|
|
|
02/28/05
|
28
|
150.0000
|
100,800.0000
|
21.3294
|
|
|
03/31/05
|
31
|
140.0000
|
104,160.0000
|
20.6413
|
|
|
04/30/05
|
30
|
140.0000
|
100,800.0000
|
21.3294
|
|
|
05/31/05
|
31
|
100.0000
|
74,400.0000
|
28.8978
|
|
|
06/30/05
|
30
|
120.0000
|
86,400.0000
|
24.8843
|
|
|
07/31/05
|
31
|
130.0000
|
96,720.0000
|
22.2291
|
|
|
08/31/05
|
31
|
130.0000
|
96,720.0000
|
22.2291
|
|
|
09/30/05
|
30
|
130.0000
|
93,600.0000
|
22.9701
|
|
|
10/31/05
|
31
|
130.0000
|
96,720.0000
|
22.2291
|
|
|
11/30/05
|
30
|
110.0000
|
79,200.0000
|
27.1465
|
|
|
12/31/05
|
31
|
140.0000
|
104,160.0000
|
20.6413
|
|
|
01/31/06
|
31
|
150.0000
|
111,600.0000
|
20.4301
|
|
|
02/28/06
|
28
|
150.0000
|
100,800.0000
|
22.6190
|
|
|
03/31/06
|
31
|
140.0000
|
104,160.0000
|
21.8894
|
|
|
04/30/06
|
30
|
140.0000
|
100,800.0000
|
22.6190
|
|
|
05/31/06
|
31
|
100.0000
|
74,400.0000
|
30.6452
|
|
|
06/30/06
|
30
|
120.0000
|
86,400.0000
|
26.3889
|
|
|
07/31/06
|
31
|
130.0000
|
96,720.0000
|
23.5732
|
|
|
08/31/06
|
31
|
130.0000
|
96,720.0000
|
23.5732
|
|
|
09/30/06
|
30
|
130.0000
|
93,600.0000
|
24.3590
|
|
|
10/31/06
|
31
|
130.0000
|
96,720.0000
|
23.5732
|
|
|
11/30/06
|
30
|
110.0000
|
79,200.0000
|
28.7879
|
|
|
12/31/06
|
31
|
140.0000
|
104,160.0000
|
21.8894
|
|
|
01/31/07
|
31
|
150.0000
|
111,600.0000
|
21.6846
|
|
|
02/28/07
|
28
|
150.0000
|
100,800.0000
|
24.0079
|
|
|
03/31/07
|
31
|
140.0000
|
104,160.0000
|
23.2335
|
|
|
04/30/07
|
30
|
140.0000
|
100,800.0000
|
24.0079
|
|
|
05/31/07
|
31
|
100.0000
|
74,400.0000
|
32.5269
|
|
|
06/30/07
|
30
|
120.0000
|
86,400.0000
|
28.0093
|
|
|
07/31/07
|
31
|
130.0000
|
96,720.0000
|
25.0207
|
|
|
08/31/07
|
31
|
130.0000
|
96,720.0000
|
25.0207
|
|
|
09/30/07
|
30
|
130.0000
|
93,600.0000
|
25.8547
|
|
|
10/31/07
|
31
|
130.0000
|
96,720.0000
|
25.0207
|
|
|
11/30/07
|
30
|
110.0000
|
79,200.0000
|
30.5556
|
|
|
12/31/07
|
31
|
140.0000
|
104,160.0000
|
23.2335
|
|
|
01/31/08
|
31
|
150.0000
|
111,600.0000
|
18.8172
|
|
|
02/29/08
|
29
|
150.0000
|
104,400.0000
|
20.1149
|
|
|
03/31/08
|
31
|
140.0000
|
104,160.0000
|
20.1613
|
|
|
04/30/08
|
30
|
140.0000
|
100,800.0000
|
20.8333
|
|
|
05/31/08
|
31
|
100.0000
|
74,400.0000
|
28.2258
|
|
|
06/30/08
|
30
|
120.0000
|
86,400.0000
|
24.3056
|
|
|
Month
Ending
|
No. of
Days
|
MWh/hr
BECO A
|
MWhs
BECO A
|
Monthly Support
Payment Price
($/MWh)
BECO A
|
|
|
|
|
|
|
|
|
|
07/31/08
|
31
|
130.0000
|
96,720.0000
|
21.7122
|
|
|
08/31/08
|
31
|
130.0000
|
96,720.0000
|
21.7122
|
|
|
09/30/08
|
30
|
130.0000
|
93,600.0000
|
22.4359
|
|
|
10/31/08
|
31
|
130.0000
|
96,720.0000
|
21.7122
|
|
|
11/30/08
|
30
|
110.0000
|
79,200.0000
|
26.5152
|
|
|
12/31/08
|
31
|
140.0000
|
104,160.0000
|
20.1613
|
|
|
01/31/09
|
31
|
150.0000
|
111,600.0000
|
15.9498
|
|
|
02/28/09
|
28
|
150.0000
|
100,800.0000
|
17.6587
|
|
|
03/31/09
|
31
|
140.0000
|
104,160.0000
|
17.0891
|
|
|
04/30/09
|
30
|
140.0000
|
100,800.0000
|
17.6587
|
|
|
05/31/09
|
31
|
100.0000
|
74,400.0000
|
23.9247
|
|
|
06/30/09
|
30
|
120.0000
|
86,400.0000
|
20.6019
|
|
|
07/31/09
|
31
|
130.0000
|
96,720.0000
|
18.4036
|
|
|
08/31/09
|
31
|
130.0000
|
96,720.0000
|
18.4036
|
|
|
09/30/09
|
30
|
130.0000
|
93,600.0000
|
19.0171
|
|
|
10/31/09
|
31
|
130.0000
|
96,720.0000
|
18.4036
|
|
|
11/30/09
|
30
|
110.0000
|
79,200.0000
|
22.4747
|
|
|
12/31/09
|
31
|
140.0000
|
104,160.0000
|
17.0891
|
|
|
01/31/10
|
31
|
150.0000
|
111,600.0000
|
13.1720
|
|
|
02/28/10
|
28
|
150.0000
|
100,800.0000
|
14.5833
|
|
|
03/31/10
|
31
|
140.0000
|
104,160.0000
|
14.1129
|
|
|
04/30/10
|
30
|
140.0000
|
100,800.0000
|
14.5833
|
|
|
05/31/10
|
31
|
100.0000
|
74,400.0000
|
19.7581
|
|
|
06/30/10
|
30
|
120.0000
|
86,400.0000
|
17.0139
|
|
|
07/31/10
|
31
|
130.0000
|
96,720.0000
|
15.1985
|
|
|
08/31/10
|
31
|
130.0000
|
96,720.0000
|
15.1985
|
|
|
09/30/10
|
30
|
130.0000
|
93,600.0000
|
15.7051
|
|
|
10/31/10
|
31
|
130.0000
|
96,720.0000
|
15.1985
|
|
|
11/30/10
|
30
|
110.0000
|
79,200.0000
|
18.5606
|
|
|
12/31/10
|
31
|
140.0000
|
104,160.0000
|
14.1129
|
|
|
01/31/11
|
31
|
150.0000
|
111,600.0000
|
10.2151
|
|
|
02/28/11
|
28
|
150.0000
|
100,800.0000
|
11.3095
|
|
|
03/31/11
|
31
|
140.0000
|
104,160.0000
|
10.9447
|
|
|
04/30/11
|
30
|
140.0000
|
100,800.0000
|
11.3095
|
|
|
05/31/11
|
31
|
100.0000
|
74,400.0000
|
15.3226
|
|
|
06/30/11
|
30
|
120.0000
|
86,400.0000
|
13.1944
|
|
|
07/31/11
|
31
|
130.0000
|
96,720.0000
|
11.7866
|
|
|
08/31/11
|
31
|
130.0000
|
96,720.0000
|
11.7866
|
|
|
09/30/11
|
30
|
130.0000
|
93,600.0000
|
12.1795
|
|
|
10/31/11
|
31
|
130.0000
|
96,720.0000
|
11.7866
|
|
|
11/30/11
|
30
|
110.0000
|
79,200.0000
|
14.3939
|
|
|
12/31/11
|
31
|
140.0000
|
104,160.0000
|
10.9447
|
|
|
01/31/12
|
31
|
150.0000
|
111,600.0000
|
5.3763
|
|
|
02/29/12
|
29
|
150.0000
|
104,400.0000
|
5.7471
|
|
|
03/31/12
|
31
|
140.0000
|
104,160.0000
|
5.7604
|
|
|
04/30/12
|
30
|
140.0000
|
100,800.0000
|
5.9524
|
|
|
05/31/12
|
31
|
100.0000
|
74,400.0000
|
8.0645
|
|
|
06/30/12
|
30
|
120.0000
|
86,400.0000
|
6.9444
|
|
|
07/31/12
|
31
|
130.0000
|
96,720.0000
|
6.2035
|
|
|
08/31/12
|
31
|
130.0000
|
96,720.0000
|
6.2035
|
|
|
09/30/12
|
30
|
130.0000
|
93,600.0000
|
6.4103
|
|
|
Month
Ending
|
No. of
Days
|
MWh/hr
BECO A
|
MWhs
BECO A
|
Monthly Support
Payment Price
($/MWh)
BECO A
|
|
|
|
|
|
|
|
|
|
10/31/12
|
31
|
130.0000
|
96,720.0000
|
6.2035
|
|
|
11/30/12
|
30
|
110.0000
|
79,200.0000
|
7.5758
|
|
|
12/31/12
|
31
|
140.0000
|
104,160.0000
|
5.7604
|
|
|
01/31/13
|
31
|
150.0000
|
111,600.0000
|
1.6129
|
|
|
02/28/13
|
28
|
150.0000
|
100,800.0000
|
1.7857
|
|
|
03/31/13
|
31
|
140.0000
|
104,160.0000
|
1.7281
|
|
|
04/30/13
|
30
|
140.0000
|
100,800.0000
|
1.7857
|
|
|
05/31/13
|
31
|
100.0000
|
74,400.0000
|
2.4194
|
|
|
06/30/13
|
30
|
120.0000
|
86,400.0000
|
2.0833
|
|
|
07/31/13
|
31
|
130.0000
|
96,720.0000
|
1.8610
|
|
|
08/31/13
|
31
|
130.0000
|
96,720.0000
|
1.8610
|
|
|
09/30/13
|
30
|
130.0000
|
93,600.0000
|
1.9231
|
|
|
10/31/13
|
31
|
130.0000
|
96,720.0000
|
1.8610
|
|
|
11/30/13
|
30
|
110.0000
|
79,200.0000
|
2.2727
|
|
|
12/31/13
|
31
|
140.0000
|
104,160.0000
|
1.7281
|
|
|
01/31/14
|
31
|
150.0000
|
111,600.0000
|
1.8817
|
|
|
02/28/14
|
28
|
150.0000
|
100,800.0000
|
2.0833
|
|
|
03/31/14
|
31
|
140.0000
|
104,160.0000
|
2.0161
|
|
|
04/30/14
|
30
|
140.0000
|
100,800.0000
|
2.0833
|
|
|
05/31/14
|
31
|
100.0000
|
74,400.0000
|
2.8226
|
|
|
06/30/14
|
30
|
120.0000
|
86,400.0000
|
2.4306
|
|
|
07/31/14
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
08/31/14
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
09/30/14
|
30
|
130.0000
|
93,600.0000
|
2.2436
|
|
|
10/31/14
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
11/30/14
|
30
|
110.0000
|
79,200.0000
|
2.6515
|
|
|
12/31/14
|
31
|
140.0000
|
104,160.0000
|
2.0161
|
|
|
01/31/15
|
31
|
150.0000
|
111,600.0000
|
1.8817
|
|
|
02/28/15
|
28
|
150.0000
|
100,800.0000
|
2.0833
|
|
|
03/31/15
|
31
|
140.0000
|
104,160.0000
|
2.0161
|
|
|
04/30/15
|
30
|
140.0000
|
100,800.0000
|
2.0833
|
|
|
05/31/15
|
31
|
100.0000
|
74,400.0000
|
2.8226
|
|
|
06/30/15
|
30
|
120.0000
|
86,400.0000
|
2.4306
|
|
|
07/31/15
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
08/31/15
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
09/30/15
|
30
|
130.0000
|
93,600.0000
|
2.2436
|
|
|
10/31/15
|
31
|
130.0000
|
96,720.0000
|
2.1712
|
|
|
11/30/15
|
30
|
110.0000
|
79,200.0000
|
2.6515
|
|
|
12/31/15
|
31
|
140.0000
|
104,160.0000
|
2.0161
|
|
|
01/31/16
|
31
|
150.0000
|
111,600.0000
|
(3.4946
|
)
|
|
02/29/16
|
29
|
150.0000
|
104,400.0000
|
(3.7356
|
)
|
|
03/31/16
|
31
|
140.0000
|
104,160.0000
|
(3.7442
|
)
|
|
04/30/16
|
30
|
140.0000
|
100,800.0000
|
(3.8690
|
)
|
|
05/31/16
|
31
|
100.0000
|
74,400.0000
|
(5.2419
|
)
|
|
06/30/16
|
30
|
120.0000
|
86,400.0000
|
(4.5139
|
)
|
|
07/31/16
|
31
|
130.0000
|
96,720.0000
|
(4.0323
|
)
|
|
08/31/16
|
31
|
130.0000
|
96,720.0000
|
(4.0323
|
)
|
|
09/30/16
|
15
|
130.0000
|
46,800.0000
|
(4.1667
|
)
|
|
SCHEDULE 4.1(c)
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
LIST OF APPROVED CAPACITY BUYERS
|
|
Constellation Power Source, Inc.
J Aron & Company
Morgan Stanley Group Capital
PP&L Energy Plus, LLC
PSE&G Energy Resources & Trading, LLC
Select Energy, Inc.
Sempra Energy Trading Corp.
TransCanada Power Marketing Ltd.
|
|
SCHEDULE 5(a)
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
ENERGY BANK PROVISIONS
|
|
SCHEDULE 5(b)
to
AMENDED AND RESTATED
POWER PURCHASE AGREEMENT
|
|
ENERGY BANK BALANCE AND AMORTIZATION SCHEDULE
|
|
|
|
|
Days
|
MWh/hr
|
MWhs
|
Contractual
$/kWh
Difference
|
Prior Month
Ending Balance
|
Forecasted
Difference
|
Interest
Calculation
|
Current Month
Ending Balance
|
Monthly
Amortization
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Apr-04
|
30
|
144.5911
|
104,105.6
|
(0.03369
|
)
|
96,372,875.14
|
(3,507,317.66
|
)
|
873,783.95
|
93,739,341.43
|
2,633,533.71
|
|
May-04
|
31
|
42.6573
|
31,737.0
|
(0.03369
|
)
|
93,739,341.43
|
(1,069,219.53
|
)
|
849,906.49
|
93,520,028.39
|
219,313.04
|
|
Jun-04
|
30
|
131.6134
|
94,761.6
|
(0.03369
|
)
|
93,520,028,39
|
(3,192,518.30
|
)
|
847,918.04
|
91,175,428.13
|
2,344,600.26
|
|
Jul-04
|
31
|
128.3207
|
95,470.6
|
(0.03369
|
)
|
91,175,428.13
|
(3,216,404.51
|
|
