EXHIBIT 10(A)(30) AMENDED AND RESTATED POWER SALES AGREEMENTPower Purchase Agreement |
|
|
You are currently viewing: This Power Purchase Agreement involves
AQUILA INC | Aquila Energy Marketing Corporation | UtiliCorp United Inc | Elwood Energy II, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
EXHIBIT 10(a)(30)
i
ii
APPENDICES Appendix A Design Limits and
Other Dispatch Restrictions iii AMENDED AND RESTATED THIS AMENDED AND RESTATED POWER SALES AGREEMENT (including Appendices, this "Agreement") dated as of June 30, 2000, is entered into between Aquila Energy Marketing Corporation ("Aquila"), and UtiliCorp United Inc. ("UCU") (Aquila and UCU referred to herein collectively as "Buyer"), and Elwood Energy II, LLC, a Delaware limited liability company ("Seller"); Buyer and Seller are sometimes referred to herein individually as a "Party" and collectively as the "Parties"); W I T N E S S E T H: WHEREAS, Seller owns and operates an electric generating facility in Elwood, Illinois and is engaged in the generation and sale of Electric Energy, Capacity and associated Ancillary Services; and WHEREAS, Seller is building the Facility which will be located at the Elwood Station; and WHEREAS, Seller anticipates the Commercial Operations Date of Units 5 and 6 of the Facility will occur on or prior to June 1, 2001; and WHEREAS, Seller and Buyer previously executed a Power Sales Agreement (the "Original Agreement") dated as of June 30, 2000 whereby Buyer shall receive and purchase, and Seller shall deliver and sell the Electric Energy, Capacity and associated Ancillary Services from Units 5 and 6 of the Facility and Replacement Power, pursuant to this Agreement; and WHEREAS, the Parties now desire to revise the Original Agreement such that this Amended and Restated Agreement supersede the Original Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set forth, the Parties hereto agree as follows: 1. Definitions and Interpretation. 1.1 Definitions. As used in this Agreement, the terms set forth below in this Section 1 shall have the respective meanings so set forth. "ASME" means the American Society of Mechanical Engineers. "Actual Heat Rate" for any period shall be the Heat Rate which is determined based upon actual performance of the Facility and the Elwood III Units during such period and calculated by the quotient of the aggregate gas energy consumption in Btus for Units 5 and 6 (not including gas consumed to generate Test Energy, incremental gas consumed (at a Heat Rate above the Net Heat Rate) to generate Incremental Energy to the extent used to offset what would otherwise be a Forced Derating, or gas consumed during Failed Starts), and the Elwood III Units as measured by the Station Fuel Meter divided by the Electric Energy output (in kWh) produced by the same Units and the Elwood III Units during the identical period as measured by the Revenue Meter. "Affected Party" has the meaning set forth in Section 19.1. "Affiliate" means, when used with respect to any Person, any Person controlling, controlled by or under common control with such Person. For the purposes of this definition, the term "controlling" (and, with correlative meanings, the terms "controlled by" and "under common control with") shall mean the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or agency or otherwise. "Aggregate Delay LD Cap" means $24,567,500, less any Delay Book Out Charges paid by Seller. "Ancillary Services" has the meaning set forth in Section 9. "Availability Adjustment" has the meaning set forth in Section 7.1.3. "Available" means a state in which the Facility is capable of providing full service, whether or not it is actually in operation or in service. "Average Summer Partial Peak Availability" means the Equivalent Availability during Partial Peak Hours averaged over all months of a given Summer Period, calculated as: 1 - [(sum total of FOH + EFDH)/(sum total of Partial Peak period hours)]. "Average Summer Super Peak Availability" means the Equivalent Availability during Super Peak Hours averaged over all months of a given Summer Period, calculated as: 1 - [(sum total of FOH + EFDH)/(sum total of Super Peak period hours)]. "Bankruptcy" means any case, action or proceeding under any bankruptcy, reorganization, debt arrangement, insolvency or receivership law or any dissolution or liquidation proceeding commenced by or against a Person and, if such case, action or proceeding is not commenced by such Person, such case or proceeding shall be consented to or acquiesced in by such Person or shall result in an order for relief or shall remain undismissed for 90 days. "Bankruptcy Event" means with respect to a Party, an assignment by such Party for the benefit of creditors or the filing of a case in Bankruptcy or any proceeding under any other insolvency law under which such Party is debtor in bankruptcy. "Base Fuel Charge" means the Fuel Index plus either 10 cents/MMBTU or 15 cents/MMBTU, as applicable under Section 7.2.5.1 or Section 7.2.5.2. "Btu" means British thermal unit. "Business Day" means each weekday (Monday through Friday) excluding NERC Holidays. "Buyer Event of Default" has the meaning specified in Section 13.2. "Cap Date" has the meaning specified in Section 3.3.5. "Capacity" means the capability measured in kW of Seller to produce Electric Energy at the Facility or deliver Replacement Power to the Point of Delivery or the Replacement Power Delivery Point, as applicable. "Capacity Bonus" has the meaning set forth in Section 7.1.4. "Capacity Charge" has the meaning set forth in Section 7.1. "Capacity Rate" has the meaning set forth in Section 7.1.2 "Capacity Rate Reduction Amount" has the meaning set forth in Section 3.3.6. "Cap Date" has the meaning set forth in Section 3.3.5. "Change in Law" means, after the Effective Date, the enactment, adoption, promulgation, modification or repeal or a material modification or change in the administrative or judicial application by any Governmental Agency of any applicable Requirement of Law. "ComEd" means Commonwealth Edison Company or its successors and assigns. "ComEd/Elwood Switchyard" means that switchyard that provides interconnection services to the Facility as identified Appendix J. "Commercial Operations" means that a Unit or the Facility shall have achieved all of the conditions specified in Section 3.2. 2 "Commercial Operations Date" means the day on which a Unit or the Facility achieves Commercial Operations. "Commercial Operations Delay Period" is the period of time, if any, between the Target COD and the Commercial Operations Date. "Commission" or "Commissioning" as applicable, means the test and start up process leading up to Commercial Operations. "Compressor Wash" has the meaning set forth in Section 6.5. "Confidential Information" has the meaning specified in Section 17. "Contract Year" means (i) for the first Contract Year, the period commencing on June 1, 2001 and ending on the December 31 occurring immediately thereafter, and (ii) for all other Contract Years (other than the final Contract Year), the calendar year, except that the final Contract Year shall be the period from the first day of the calendar year (during which the Term will expire) through the expiration of the Term. "Cover Period" means a period during which the Seller is permitted pursuant to this Agreement to deliver or cause to be delivered Replacement Power or Substitute Power to Buyer. Such periods shall include only the following: (i) any time during Commercial Operations Delay Period; (ii) a Forced Outage or a Forced Derating; (iii) a period that could reasonably be likely to result in a Forced Outage or Forced Derating, as a result of which Seller determines, in accordance with Prudent Industry Practices, that safety concerns, potential equipment breakdowns or Unit vibration alarms require the Units to be made unavailable for a period of time necessary to diagnose and remedy such operational problems; or (iv) a Force Majeure Period. "Day Ahead Schedule" means Buyer's hour by hour Dispatch schedule for the next calendar day or days, as applicable, as provided to Seller pursuant to Section 4.3.2.1. "Default Rate" means (a) the one-month "LIBOR" as published from time to time in the "Money Rates" section of The Wall Street Journal, plus (b) 4.5% (450 basis points) per annum. "Degradation Curves" means the combustion turbine degradation curve(s) as represented by General Electric Bulletin No. 519HA772, Rev. A, dated February 9, 1995. "Delay Book Out Charge" has the meaning specified in Section 3.3.2 "Delay Election" has the meaning specified in Section 3.3.1 "Delay LDs" has the meaning specified in Section 3.3.3. "Design Limits" means the operating specifications listed in Appendix A . "Diagnostic Period" has the meaning specified in Section 4.5.3. 3 "Differential Transmission Adjustment" means the difference between the cost to Buyer to have Replacement Power delivered from the Replacement Power Delivery Point to Buyer's ultimate customer and the cost Buyer would have incurred to transmit such power from the Point of Delivery to such customer. Such amount may be a negative or positive number and shall be determined in accordance with Section 7.2.4.3. "Dispatch" means Buyer's rights to schedule the designated Electric Energy output of the Facility pursuant to Section 4.3 or to schedule the delivery of Replacement Power pursuant to Section 4.7. "Dispatch Notification" means that Buyer has notified Seller by telephone conversation of Buyer's Dispatch order in accordance with Appendix C. "Dispatcher" means Buyer's authorized representative for Dispatch under this Agreement. "DLD Escrow" has the meaning set forth in Section 3.3.5. "Dominion" means Dominion Energy, Inc., a Virginia corporation. "Downgrade Event" means (i) with respect to a Buyer or Seller Guarantor whose long term unsecured indebtedness is rated by one or both of Standard & Poor's or Moody's, a downgrade in such ratings such that both fall below Investment Grade, and (ii) with respect to a Seller Guarantor that is not rated, a value below $600,000,000 in owner's equity or a ratio of total liabilities to total assets for Dominion that exceeds 72%. "EPC Contractor" means the party under contract to Seller to design, engineer, procure, and construct the Facility. "Effective Date" means the date of this Agreement. "Electric Energy" means all electric energy output from the Facility (net of Facility station service and auxiliaries for the Units and the Elwood III Units) delivered to Buyer by Seller from and after the Commercial Operations Date in accordance with the terms of this Agreement. "Elwood Station" means the multi-unit power generation station that includes the Facility and other units, located in Elwood, Illinois owned by Seller and its Affiliates. "Elwood III Units" means Units 7 and 8 at Elwood Station. "Emergency Condition" means a condition or situation which (i) in the sole judgment of the Interconnected Utility presents an imminent physical threat of danger to life, or significant threat to health or property (including in the ComEd/Elwood Switchyard), (ii) in the sole judgment of the Interconnected Utility could cause a significant disruption on or significant damage to the Interconnected Utility's System (or any material portion thereof) or the transmission system of a third party (or any material portion thereof), (iii) in the reasonable judgment of Seller presents an imminent physical threat of danger to life, or significant threat to health or property (including in the ComEd/Elwood Switchyard) or (iv) in the reasonable judgment of Seller could cause significant damage to the Facility (or any material portion thereof). "Energy Charge" has the meaning set forth in Section 7.2. "Energy Rate" means, individually or collectively, as the context requires, the Replacement Power Energy Rate, the Incremental Energy Rate, the Facility Electric Energy Rate, or the Test Energy Rate. 4 "Equivalent Availability" has the meaning set forth in Appendix E. "Equivalent Forced Derated Hours" or "EFDH" has the meaning set forth in Appendix E. "Escrow Agreement" has the meaning specified in Section 3.3.5. "Extension Term" has the meaning set forth in Section 2.1. "Facility" means the natural gas fueled electric generation plant consisting of two GE Frame 7 FA combustion turbines designated as Units 5 and 6, together with appurtenant facilities, and having a total net output estimated to be approximately 303,560 kWs located at the Elwood Station. "Facility Electric Energy Rate" has the meaning set forth in Section 7.2. "Failed Start" means an attempted start up of a Unit whereby Seller initiates the Start Up Sequence but does not achieve a Start Up. "FERC" means the Federal Energy Regulatory Commission. "Final Commercial Operations Date" means June 1, 2002, as such date may be extended pursuant to Section 19, in which case such date shall be extended by the period during which a Force Majeure Event impairs or precludes the performance by a Party of its obligations hereunder, but in no event beyond June 1, 2003. "First Outage Notice" has the meaning set forth in Section 4.5.1. "Force Majeure Event" has the meaning set forth in Section 19.1. "Force Majeure Period" means any period during which a Force Majeure Event affecting Seller occurs that precludes wholly or in part the capability of the Facility to deliver Electric Energy and Capacity as required hereunder. "Forced Derating" has the meaning set forth in Appendix E . "Forced Outage" has the meaning set forth in Appendix E . "Forced Outage Hours" or "FOH" has the meaning set forth in Appendix E . "Four Month Date" has the meaning set forth in Section 3.3.6. "Fuel Charge" means the Base Fuel Charge plus the applicable surcharge, if any, imposed pursuant to Section 7.2.5.3. "Fuel Index" means the index as published in Gas Daily —"Midpoint, Chicago-LDCs, Large e-us"—for the day of Energy delivery to Buyer. If this index ceases to be published the Parties shall select a mutually agreeable substitute index designed to track the market price of gas in the Chicago area for large end users for next day service. "Fuel Metering Point "means the Station Fuel Meter identified in Appendix J. "GDP-IPD" means the Gross Domestic Product—Implicit Price Deflator as published in the National Income and Product Account by the U.S. Department of Commerce. "Government Agency" means any federal, state, local, territorial or municipal government, governmental department, commission, board, bureau, agency, instrumentality, judicial or administrative body (or any agency, instrumentality or political subdivision thereof) having jurisdiction over the Buyer, Seller, the Facility, or the Interconnected Utility. 5 "Governmental Approval" means any authorization, consent, approval, license, ruling, permit, exemption, filing, variance, order, judgment, decree, publication, notice to, declarations of or with or regulation by or with any Government Agency relating to the acquisition, ownership, occupation, construction, Commissioning, operation or maintenance of the Units and the Facility or to the execution, delivery or performance of this Agreement. "Gross Margin" shall mean the reasonable documented actual sales proceeds at Prevailing Market Prices for energy and/or capacity, less Transaction Costs, less (i) the Facility Electric Energy Rate or (ii) in the case of Incremental Energy, $100/MWh. "Guaranteed Availability" means the Guaranteed Non-Summer On Peak Availability, the Guaranteed Summer Partial Peak Availability or the Guaranteed Summer Super Peak Availability for the applicable period. "Guaranteed Heat Rate" means 10,787 Btu/kWh (HHV), new and clean at Reference Conditions. "Guaranteed Non-Summer On Peak Availability" shall be equal to 97%. "Guaranteed Ramp Rate" has the meaning set forth in Appendix A . "Guaranteed Start-Up Time" has the meaning set forth in Appendix A . "Guaranteed Summer Partial Peak Availability" shall be equal to 97%. "Guaranteed Summer Super Peak Availability" shall be equal to 97%. "Heat Rate" means the efficiency expressed as the amount of Btus of natural gas consumed to generate a kwh of electric energy. "Heat Rate Credits" has the meaning set forth in Section 7.3.2. "ISO" or "Independent System Operator" means any Person, other than ComEd, that becomes responsible as system operator for the Interconnected Utility System. "Imbalance Charge" means a charge for oversupply or undersupply of Electric Energy incurred pursuant to Schedule 4 of ComEd's Open Access Transmission Tariff or the Interconnection Agreement. "Incremental Energy" has the meaning set forth in Section 4.4. "Incremental Energy Rate" has the meaning set forth in Section 7.2. "Individual Fuel Meter" means the meter located as indicated in Appendix J, measuring gas consumption of an individual Unit or similar meters on the Elwood III Units. "Initial Net Heat Rate" means the Net Heat Rate as tested in the final performance testing for each Unit under the contract with the EPC Contractor averaged over the Units and the Elwood III Units with evaporative coolers in service as corrected to Reference Conditions in accordance with Appendix B. "Initial Term" has the meaning set forth in Section 2.1. "Interconnection Facilities" means the interconnection facilities that will connect the Facility with the Interconnected Utility System, as more fully described in the Interconnection Agreement. "Interconnected Utility" means ComEd or its successors and assigns; such assigns may include an ISO or any other entity operating a control area that includes the Interconnected Utility System. 6 "Interconnected Utility System" means the electric transmission and distribution system owned by ComEd and its Affiliates, or their successors and assigns; such assigns may include assignment of operations to an ISO which shall then mean that Interconnected Utility System operated by such ISO. "Interconnection Agreement" means the Interconnection Agreement to be agreed to and executed between the Interconnected Utility and Seller with respect to the Facility. "Interconnection Facilities" means the interconnection facilities that will connect the Facility with the Interconnected Utility System, as more fully described in the Interconnection Agreement. "Investment Grade" means a rating on the long term unsecured indebtedness of an entity of at least Baa3 from Moody's or at least BBB- from Standard & Poor's. "kW" means kiloWatt "KWh" means kiloWatthour. "Lenders" means with respect to the Seller (i) any person or entity that, from time to time, has made loans to the Seller, its permitted successors or permitted assigns for the financing or refinancing of the Facility or the marketing of the Electric Energy, Capacity or Ancillary Services of the Facility or which are secured by the Facility, (ii) any holder of indebtedness of the Seller, (iii) any person or entity acting on behalf of such holder(s) to which any holders' rights under financing documents have been transferred, any trustee or agent on behalf of any such holders, or (iv) any Person who purchases the Facility in connection with a sale-leaseback or other lease arrangement in which the Seller is the lessee of the Facility pursuant to a net lease. "Liabilities" has the meaning set forth in Section 15. "MMBtu" means million Btus. "MW" means megaWatt. "MWh" means megaWatthour. "MAIN" means the Mid-America Interconnected Network, or its successors. "Monthly Adjustment Factor" means, with respect to the calculation of the Availability Adjustment, 18% for the month of June, 32% for the month of July and 32% for the month of August. "Moody's" means Moody's Investors Service, or its successor. "NERC" means the North American Electric Reliability Council, or its successor. "NERC Holidays" means New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day, and other holidays observed by NERC. "Net Dependable Capacity" means the net aggregate generating capacity measured in kWs of both Units of the Facility, based upon demonstrated output (net of station service and auxiliaries for the Units and the Elwood III Units) achieved during capacity testing of the Facility pursuant to Section 8.1 and Appendix B , adjusted by the Degradation Curves and to Reference Conditions; provided, however, that prior to the Commercial Operations Date, the Net Dependable Capacity of the Facility shall be deemed to be 303,560 kW, at Reference Conditions. 7 If one Unit achieves Commercial Operations prior to the other Unit, then for the period when only one Unit is in Commercial Operations, Net Dependable Capacity for all purposes other than calculation of Capacity Charges shall mean the net dependable capacity of such Unit. "Net Heat Rate" means the Heat Rate established by periodic testing of the Units and the Elwood III units as corrected with the Degradation Curve to Reference Conditions pursuant to Appendix B. "Nicor" means Northern Illinois Gas Company, or its successors. "Non-Billable Generation" has the meaning specified in Section 5.1 and shall be calculated in accordance with Appendix O. "Non-Summer On Peak Hours" means during the Non-Summer Period, the hour ending 0700 Central Time through the hour ending 2200 Central Time, Monday through Friday, excluding NERC holidays. "Non-Summer Period" means September 1 through May 31. "OEM" means the original equipment supplier. "On Peak Hours" means (i) during the Summer Period, the hour ending 0700 Central Time through the hour ending 2200 Central Time, Monday through Saturday, excluding NERC Holidays and (ii) during the Non-Summer Period, the hour ending 0700 Central Time through the hour ending 2200 Central Time, Monday through Friday, excluding NERC Holidays. "Outage Book Out Charge" has the meaning set forth in Section 4.5.1. "Outage Election" means Seller's election during any Cover Period either to provide Replacement Power or cause to be provided Substitute Power in accordance with Section 4.7.3. "Partial Peak Hours" means, during the Summer Period, the hour ending 0700 through the hour ending 1100 and the hour ending 2000 through the hour ending 2200, Central Time, Monday through Saturday, excluding NERC holidays. "Pecorp" means Peoples Energy Corporation, an Illinois corporation. "Period Hours" or "PH" has the meaning set forth in Appendix E. "Permitted Assignee" means a Person having at least five (5) years experience in the operations and maintenance of electrical generation facilities similar to the Facility and having a level of creditworthiness equivalent to Seller and Seller Guarantors, which Person shall be reasonably acceptable to Buyer. "Person" means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization, entity, government or other political subdivision. "Per Unit Delay LD Cap" means $12,283,750, less any Delay Book Out Charges paid by Seller in respect of the applicable Unit. "Point of Delivery" means, for Electric Energy delivered from a Unit, the point of interconnection between the Facility and the Interconnected Utility System in the ComEd/Elwood Switchyard, as identified in Appendix J. 8 "Post COD Test Energy" means Test Energy generated on and after the Commercial Operations Date. "Pre COD Test Energy" means Test Energy generated before the Commercial Operations Date. "Prevailing Market Price" means the best price available to Buyer (i.e., highest price when Buyer markets Test Energy and Incremental Energy and lowest price when Buyer procures Substitute Power) actually obtained for energy or capacity (taking into account the type, reliability, and duration and other relevant attributes of such energy or capacity), which shall be obtained through commercially reasonable efforts, as evidenced, upon request of Seller, by documentation of such price, unless and until an index or other mechanism mutually acceptable to the Parties is created and agreed upon by the Parties to serve as the Prevailing Market Price. "Prudent Industry Practice" means any of the practices, methods, standards and acts required or approved by any ISO or engaged in or approved by a significant portion of the electric generation industry in the geographic region covered by MAIN during the relevant time period, or any of the practices, methods, standards and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. "Prudent Industry Practice" is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to be acceptable practices, methods or acts generally accepted in the geographic region covered by MAIN and which generally conform to operation and maintenance standards recommended by the OEM, the Design Limits, and Government Approvals. "Rating Category" means a letter category rating for long term unsecured indebtedness of an entity (e.g. Aaa, Aa, A, Baa, Ba, and so on in the case of Moody's and AAA, AA, A, BBB and so on in the case of Standard & Poor's), disregarding in each case any numerals or other modifiers appended to such rating. "Reference Conditions" means ambient atmospheric temperature of 95 degrees Fahrenheit (dry-bulb), 60% relative humidity, adjusted for elevation above mean sea level. "Reference Heat Rate" shall be determined for each hour using the turbine OEM's heat rate performance curves adjusted to site elevation, ambient conditions, load factor and Degradation Curves and as provided in Appendix F. "Replacement Power" (i) prior to the Commercial Operations Date, means electric Capacity and electric energy provided by Seller from time to time to Buyer from sources (including from other units at the Elwood Station) other than the Facility and (ii) after the Commercial Operations Date, means electric energy provided by Seller from time to time to Buyer from sources (including other units at the Elwood Station) other than the Facility. "Replacement Power Delivery Point" means the point where Replacement Power is delivered to Buyer, at a point or points that are acceptable to Buyer, such acceptance not to be unreasonably withheld or delayed, unless the Replacement Power Delivery Point shall be the same as the Point of Delivery, in which case it shall be deemed to be acceptable to Buyer. "Replacement Power Energy Rate" has the meaning set forth in Section 7.2.2 "Requested Load Delivery Time" means the designated time in Buyer's Dispatch schedule for a Unit to be generating at a specified level. 9 "Requirement of Law" means any applicable federal, state and local laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued or promulgated by any federal, state, local or other Governmental Agency (including those pertaining to electrical, building, zoning, environmental and occupational safety and health requirements). "Revenue Meter" means the meter which measures power flow into the main step up transformer of each Unit and similar meters on the Elwood III Units at a point after auxiliary loads are withdrawn from the bus. "Scheduled Maintenance Outage" means the time period during which a Unit or any portion of the Facility is removed from service to perform work on specific components based upon manufacturer's recommended schedules in accordance with Section 6.4. "Scheduling Fees" means the charge of Buyer to Seller for scheduling Test Energy and Incremental Energy, which shall equal $1.00 per MWh. "Second Outage Notice" has the meaning set forth in Section 4.5.3. "Seller Event of Default" has the meaning specified in Section 13.1. "Seller Guarantees" has the meaning specified in Section 18.1. "Seller Guarantor" means Dominion or Pecorp. "Site" means the real property on which the Units are located. "Size of Reduction" has the meaning set forth in Appendix E. "Standard & Poor's" means Standard & Poor's Rating Group a division of McGraw-Hill, Inc. or its successor. "Start Up" means the initiation of the Start Up Sequence followed by the applicable Unit's generating at least 60% of the Net Dependable Capacity. "Start Up Charge" has the meaning set forth in Section 7.4. "Start Up Sequence" means the normal sequence of events, beginning with the cranking process, in order to achieve Start Up. "Station Fuel Meter" means the Nicor fuel meter common to Units 5 and 6 and to the Elwood III Units. "Substitute Power" (i) prior to the Commercial Operations Date means electric energy and capacity (ii) after the Commercial Operations Date, electric energy, in each case obtained by Buyer at the direction of Seller in accordance with Section 4.7.3. "Substitute Power Cost Credit" is a credit adjustment to Buyer for its reasonable costs to acquire Substitute Power at the direction of Seller and as calculated in accordance with Section 7.2.4.3. "Summer Average Availability" means the Equivalent Availability for all Summer On Peak Hours in each month during the Summer Period of any given Contract Year, averaged over such three months. "Summer Period" means the period from June 1 through August 31 of each Contract Year. "Summer Off Peak Hours" means all hours in the Summer Period other than On Peak Hours. "Summer On Peak Hours" means all Super Peak Hours and Partial Peak Hours. 10 "Super Peak Hours" means, during the Summer Period, the hour ending at 1200 Central Time and through the hour ending 1900 Central Time, Monday through Saturday, excluding NERC holidays. "Target COD" means June 1, 2001, as such date may be extended day-for-day due to Force Majeure Events as and to the extent permitted by Section 19 or for days covered by a Delay Book Out Charge pursuant to Section 3.3.3. "Term" has the meaning specified in Section 2.1. "Test Energy" means electricity generated during a test at a time when the tested Unit would not be Dispatched by Buyer to generate but for the running of the test. "Third Party Damages" has the meaning set forth in Section 4.7.4. "Threshold Heat Rate" is 10,759 Btu/KWh, new and clean at Reference Conditions. "Transaction Costs" means reasonable documented transaction costs associated with the sale and marketing of Electric Energy or Test Energy, as applicable, including and limited to transmission costs (or fees or charges imposed by a third party in lieu of or in addition to such transmission costs in accordance with common industry practice), transmission line losses, Scheduling Fees and ancillary service charges. "Unit" means either of the GE frame 7FA gas-fired turbine generator units of the Facility subject to Dispatch by Buyer under this Agreement, i.e., numbers five (5) and six (6). "Variable O&M Rate" means $1.00/MWh (as of June 1, 1999), and as adjusted on the anniversary of the first and each subsequent Contract Year by the annual change in the GDP-IPD. 1.2 Interpretation. In this Agreement, unless a clear contrary intention appears: 1.2.1 the singular number includes the plural number and vice versa; 1.2.2 reference to any Person includes such Person's successors and assigns but, in the case of a Party, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually; 1.2.3 reference to any gender includes each other gender; 1.2.4 reference to any agreement (including this Agreement), document, instrument or tariff means such agreement, document, instrument or tariff as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; 1.2.5 reference to any Requirement of Law means such Requirement of Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, including, if applicable, rules and regulations promulgated thereunder; 1.2.6 reference to any Section or Appendix means such Section of this Agreement or such Appendix to this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition; 1.2.7 "hereunder", "hereof", "hereto" and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof or thereof; 11 1.2.8 "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term; 1.2.9 relative to the determination of any period of time, "from" means "from and including", "to" means "to but excluding" and "through" means "through and including"; and 1.2.10 reference to time shall always refer to prevailing Central Time, i.e., standard time or daylight time as applicable in Elwood, Illinois. 1.2.11 wherever this Agreement speaks in terms of both Units (or the Facility), and the context of a provision requires application to only one Unit, then such provision and operative terms or amounts relating thereto shall be appropriately construed or prorated, as appropriate. 1.3 Legal Representation of Parties. This Agreement was negotiated by the Parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party shall not apply to any construction or interpretation hereof or thereof. 1.4 Titles and Headings. Section and Appendix titles and headings inthis Agreement are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement. 1.5 Order of Precedence. In the event of a conflict between any of the terms of this Agreement, the conflict shall be resolved by giving priority to the terms in the following order of precedence: (1) Sections 1-23, (2) Appendix E, (3) Appendix A, and (4) the remaining Appendices in the order in which they appear in this Agreement. 2. Term and Survival 2.1 Term. This Agreement shall have a term (the "Term") commencing on the Effective Date and ending on August 31, 2016 (the "Initial Term") unless otherwise extended or terminated in accordance with the provisions of this Agreement. The Buyer shall have the unilateral right to extend the Initial Term for a five (5) year period (or such other period as the Parties mutually agree) (the "Extension Term") provided the Buyer notifies Seller in writing by September 1, 2014 of its desire to so extend. 2.2 Survival. The provisions of Section 1 (Definitions and Interpretation), Section 6.7 (Records), Section 10 (Limitation of Liability and Exclusivity of Remedies), Section 11 (Disagreements), Section 13 (Default, Termination and Remedies), Section 15 (Indemnification), Section 17 (Confidentiality), Section 18 (Security), Section 22 (Miscellaneous), and Section 24 (Entire Agreement and Amendments) shall survive the termination of this Agreement. 2. Project Implementation and Achievement of Commercial Operations. 3.1 Development and Construction (w) Development. Seller shall (i) use all commercially reasonable efforts to develop, engineer, procure, construct, and Commission the Facility, (ii) achieve the Commercial Operations Date on or prior to the Target COD, and (iii) apply for and obtain all Governmental Approvals and all renewals thereof as are required for Seller to perform its obligations under this Agreement, including air emissions permits. 3.1.2 Construction. Seller shall complete, or cause the completion of, the design, construction, installation, and Commissioning of the Facility in a manner consistent with Prudent Industry Practices. 3.1.3 Status Report. Starting thirty (30) days after the Effective Date, Seller shall report to Buyer, each month, on the construction status, fuel supply and transportation status, and shall provide a report on Seller's progress toward achieving the milestone schedule included in 12 Appendix M. Such report shall, at a minimum, provide a schedule showing Facility permit status, items completed and to be completed, the expected Commercial Operations Date, and the estimated percentage of completion for the Facility. 3.2 Conditions to Commercial Operations. The occurrence of Commercial Operations of a single Unit or the Facility is contingent upon Seller providing evidence reasonably acceptable to Buyer of the satisfaction or occurrence of all of the following conditions: 3.2.1 Communications. The Facility (or single Unit as applicable) has demonstrated the reliability of any communications systems and equipment for communications with the Interconnected Utility's system control center required to be provided by Seller pursuant to this Agreement prior to the Commercial Operations Date. 3.2.2 Tests. Seller shall perform a heat rate and capacity testin accordance with Appendix B of a Unit or Units. In conjunction with such test each tested Unit shall operate continuously for a minimum of four (4) consecutive hours synchronized to the Interconnected Utility System at a level equal to at least 288 MW if for both Units and 144 MW if for one Unit, and each Unit has successfully completed five (5) consecutive Start Ups and shutdowns. 3.2.3 Security. Seller security arrangements meeting the requirements of Section 18.1 shall have been established. 3.2.4 Fuel Supply and Transportation. Seller shall have entered into fuel supply and transportation arrangements of a sufficient level of firmness so as to permit Buyer to Dispatch the Unit or Units in accordance with the terms of this Agreement. Seller shall be deemed to satisfy this condition if Seller has in place an agreement for balancing services similar in all material respects to the NICOR Transportation and Balancing Agreement for units 1-4 at the Elwood Station. Construction of pipeline facilities and improvements necessary for operation of the Facility has been completed. 3.2.5 Seller Certification. Seller has delivered a certificate stating that (1) the Unit has been completed in all material respects (excepting, e.g., punch list items that do not materially adversely affect the ability of the Unit or Units to operate in accordance with Prudent Industry Practice), (2) the Unit or Units has been designed and constructed and all conditions have been satisfied so as to permit Buyer to Dispatch the Unit or Units pursuant to the terms of the Agreement, and (3) that adequate levels of insurance coverage of the types and with the limits for electrical generation facilities similar to the Facility have been purchased by Seller that are usual and customary in accordance with Prudent Industry Practice. 3.2.6 Opinion of Counsel. An opinion of Seller's counsel has been rendered that all permits, licenses, approvals, and other Governmental Approvals required for the construction and operation of the Facility in accordance with this Agreement have been obtained. 3.2.7 Interconnection. The electrical interconnection of the Facility to the Interconnected Utility System has been completed in accordance with Prudent Industry Practice sufficient to permit Buyer to Dispatch the Unit or Units in accordance with this Agreement. 3.3 Late Commercial Operations Date. Seller anticipates that the Commercial Operations Date for each Unit will occur no later than the Target COD. 3.3.1 COD Delays. If the Commercial Operations Date for a Unit does not occur prior to 1000 Central Time on the Target COD and if Seller fails to deliver or cause to be delivered Replacement Power or Substitute Power in accordance with Section 4.7.3 or to agree to 13 Buyer's Delay Book Out Charge as described in Section 3.3.2, Seller shall be liable to Buyer for Delay LDs per Unit per day for the period of the delay. 3.3.2 Delay Book Out Charge. Seller may request that Buyer provide Seller a Delay Book Out Charge, which request shall be made by Seller no later than noon sixteen (16) Business Days prior to the Target COD, and by noon every seventh (7/th/) day thereafter, if necessary. Within twenty four (24) hours of Seller's request, Buyer shall provide Seller a quote in dollars at a mutually agreeable time for the first seven (7) days of the Commercial Operations Delay Period (a "Delay Book Out Charge"). Immediately upon Seller's receipt of the quoted Delay Book Out Charge, Seller shall notify Buyer as to whether Seller elects to pay Delay LDs, provide Replacement Power, request Buyer to procure Substitute Power or accept the Delay Book Out Charge (the "Delay Election"). Upon acceptance and payment of the Delay Book Out Charge by Seller, Seller shall be released from any liability for Delay LDs for the first seven (7) days of the Commercial Operations Delay Period and the Target COD shall be delayed by seven (7) days for all purposes other than initiation of Capacity Charges. Seller shall pay Buyer the Delay Book Out Charge within ten (10) days thereafter and may offset such amount against the Capacity Charges due for the period to which the Delay Book Out Charge applies, with such offset discharging Buyer's obligation to pay Capacity Charges to the extent so offset. Subsequent to the Delay Election, if Seller anticipates that the Commercial Operations Date will not occur by the Target COD, Seller may repeat the process for the Delay Election set forth above. If Seller rejects the Delay Book Out Charge, then Seller shall be liable for Delay LDs until the earlier to occur of (a) the time at which Seller begins to deliver or causes to be delivered Replacement Power, (b) the Commercial Operations Date, or (c) the first day of the seven (7) day period to which a subsequent Delay Book Out Charge applies. Any amounts paid by Seller for Delay Book Out Charges shall be deducted from both the Aggregate LD Cap and pro rata from the Per Unit LD Cap for the applicable Unit(s). To the extent that a Unit is capable of delivering and delivers any Electric Energy during a period covered by a Delay Book Out Charge, such Electric Energy shall be purchased by Buyer at a price equal to the Facility Electric Energy Rate plus 80% of the Gross Margin, if the Prevailing Market Price less Transaction Costs exceeds the Facility Electric Energy Rate. 3.3.3 Amounts of Delay LDs. Liquidated damages ("Delay LDs") shall accrue at the rate of $100,000 per Unit per day during June, $225,000 per Unit per day during July, $200,000 per Unit per day during August; and for all other months, the prorated daily portion of the applicable month's Capacity Charges per Unit per day, provided however, in no event shall Delay LDs (x) be assessed for the day on which the Commercial Operations Date occurs if it occurs prior to 10:00 a.m. on such day or (y) exceed Per Unit LD Cap, or the Aggregate LD Cap as applicable. Delay LDs shall be offset against Capacity Charges as they come due. 3.3.4 Interest on Deferred Amounts and Offsets. To the extent that accrued Delay LDs exceed the Capacity Charges that would have been paid currently if the Facility or a Unit had achieved Commercial Operations on the Target COD, such amounts shall accrue interest at the Default Rate until recovered by Buyer through offsets against Capacity Charges as they come due. 3.3.5 DLD Escrow. Notwithstanding the foregoing, if the Commercial Operations Date for one or both Units has not occurred on or before the date (the "Cap Date") that Seller has incurred an aggregate amount of Delay LDs equal to the Per Unit Delay LD Cap (in the case of one Unit) or the Aggregate Delay LD Cap (in the case of both Units), then Seller shall, within seven (7) Business Days after the Cap Date, establish and fund (in cash) an escrow with an A-rated bank (the "DLD Escrow") in an initial amount equal to the gross amount of accrued Delay LDs, plus interest accrued at the Default Rate less offsets of Capacity Charges 14 accrued as of the date the DLD Escrow is funded. If and to the extent Seller fails to establish and/or fully fund the DLD Escrow, the Buyer may draw on the Seller Guarantees for the amount of Delay LDs (plus interest accrued thereon at the Default Rate) not paid or placed in escrow as required by this Section 3.3.5. Upon the Commercial Operations Date, Seller shall be entitled to withdraw from the DLD Escrow an amount equal to the Capacity Charges that accrued from and after the date the DLD Escrow was funded up to and including the Commercial Operations Date. Seller may make subsequent withdrawals each month in an amount equal to such month's Capacity Charges that would be due from Buyer but for offsets pursuant to Section 3.3 until the principal balance in the DLD Escrow is zero. Upon the closing of the account by Seller, Seller shall pay to Buyer an amount equal to the interest that would have been earned on such account at the Default Rate of interest and any funds remaining in the account shall exclusively belong to Seller. At no time shall Buyer be entitled to receive the funds in the account. 3.3.6 Extended COD Delays. If the Commercial Operations Date for a Unit has not occurred on or before the date that is 120 days after the Target COD (as extended day-for-day for a Force Majeure Event) (the "Four Month Date"), then the applicable Capacity Rate shall be reduced (the "Capacity Rate Reduction") by an amount equal to $.01 KW-month multiplied by a fraction, the numerator of which is the number of days from the Four Month Date to the Commercial Operations Date and the denominator of which is thirty (30) days. The Capacity Rate Reduction shall take effect beginning with the later to occur of (i) June 1 of the second Contract Year and (ii) the Commercial Operations Date, and continue for the remainder of the Term. 3.3.7 Termination for Extended Delay. Buyer may terminate this Agreement with regard to a Unit if the Commercial Operations Date for such Unit is not achieved by June 1, 2002, except to the extent such delay is caused by a Force Majeure Event, in which case such termination date shall be extended by the Force Majeure Period, but in no event beyond June 1, 2003 (provided, however, that Buyer may terminate this Agreement following a Force Majeure Period lasting twelve months or more, unless Seller closes on financing for the Facility by May 31, 2002). If this Agreement is terminated with regard to a Unit(s) pursuant to this Section 3.3.7 for failure to achieve the Commercial Operations Date by June 1, 2002, (i) Buyer's sole remedy for damages and Seller's sole liability for damages shall be for Buyer to offset Delay LDs against Capacity Charges accrued and not paid to Seller prior to termination and to receive the Default Rate of interest on Delay LDs accrued in excess of Capacity Charges due at any given time until such Delay LDs are received by Buyer through offsets against Capacity Charges and (ii) Seller shall have no obligation to pay Delay LDs accrued during any Commercial Operations Delay Period except as an offset against Capacity Charges due from Buyer. If this Agreement is terminated pursuant to this Section 3.3.7, neither Party shall have any liability to the other Party whatsoever (including liability for previously accrued Delay LDs or Capacity Charges, but excluding liability in respect of Delay Book Out Charges and interest accrued on the DLD Escrow at the Default Rate). 3.4 Commissioning and Test Power. Seller anticipates that prior to its Commercial Operations Date each Unit will require between 50-100 hours for Commissioning purposes during which Seller will generate Pre COD Test Energy. Buyer shall purchase all Pre COD Test Energy at Pre COD Test Energy Rates as provided in Section 7.2.4. Seller will provide a test schedule prior to each test, and Buyer will advise Seller its estimate of Prevailing Market Prices for Pre COD Test Energy prior to the scheduled start of the testing. Seller shall have no right to sell the Pre COD Test Energy to third parties. 15 4. Electric Energy Delivery, Dispatch and Forced Outages Delivery of Electric Energy. Subject to the terms and conditions of this Agreement, Seller shall sell, make available and deliver at the Point of Delivery and Buyer shall receive and purchase from Seller at the Point of Delivery, Electric Energy as Dispatched by Buyer. Consistent with the terms of this Agreement, Electric Energy shall be generated and delivered from the Facility and may include Incremental Energy. 4.1.1 Operation in Accordance with Buyer Dispatch. Buyer shall not be obligated to receive or purchase any Electric Energy from Seller except (a) such Electric Energy as is Dispatched by Buyer and (b) Test Energy. Seller shall not operate either Unit except in response to a Dispatch order from Buyer other than (i) for testing purposes prior to the Commercial Operations Date pursuant to Section 3.4, (ii) for testing purposes after the Commercial Operations Date scheduled in accordance with Section 8.1, or in connection with a Scheduled Maintenance Outage, Forced Derating or Forced Outage or to analyze performance of a Unit or its components; (iii) for Seller's rights to sell to third parties pursuant to Section 13.3.2 or (iv) pursuant to instructions from the Interconnected Utility in accordance with Section 6.6.2 and the Interconnection Agreement. Notwithstanding the above, when a Unit is operating, Seller or its Affiliates may consume electric energy from that Unit for Start-Up of the other Unit of the Facility or other units at the Elwood Station, subject to a credit for the value of such electric energy as set forth in Section 5.1. Seller shall not sell Electric Energy or Capacity to any Person other than (a) Buyer, (b) Interconnected Utility pursuant to the requirements of the Interconnection Agreement, or (c) third parties as permitted under Section 13.3.2. 4.1.2 Quality of Electric Energy. All Electric Energy shall be measured by the Revenue Meter and shall meet the specifications of the Interconnected Utility. In the event that electricity delivered by Seller hereunder fails to conform to the specifications of the Interconnected Utility, Seller shall (as soon as reasonably practicable after becoming aware thereof) notify Buyer of the same and of its best good faith estimate of the duration and extent of such failure to conform, and Seller shall attempt to cure such failure as soon as reasonably practicable thereafter. If Seller is unable to deliver electricity to Buyer in accordance with the terms of this Agreement due to such failure to conform to such specifications, such inability to deliver shall be considered a Forced Outage. 4.2 Point of Sale. The point where sale of Electric Energy and Replacement Power will take place and title to and risk of loss with respect to, such Electric Energy and Replacement Power shall transfer is at the Point of Delivery for Electric Energy and the Replacement Power Delivery Point for Replacement Power. Buyer shall be responsible for any transmission beyond the Point of Delivery or the Replacement Power Delivery Point, as applicable. 4.3 Dispatch Rights of Buyer. 4.3.1 Buyer Dispatch. Beginning on the earlier of the Commercial Operations Date and the Target COD and provided that Buyer complies with the mandatory notification obligations in Section 4.3.2, Buyer may Dispatch the delivery of Electric Energy and Replacement Power (if applicable) in accordance with the provisions set forth in this Agreement up to the total Net Dependable Capacity of the Units and may Dispatch Incremental Energy as provided in Section 4.4; provided, however , Buyer agrees that Seller may, at its sole discretion but also subject to Prudent Industry Practices, operate any combination of Units 5 and 6 (including overfiring of a Unit to compensate for what would otherwise be a Forced Derating on another Unit), or, during a Cover Period may deliver Replacement Power through other sources (including the Elwood III Units as permitted by the agreement between the owner of the Elwood III Units and the Buyer thereunder) or cause to be delivered Substitute Power to meet Buyer's Dispatch under this Agreement. Notwithstanding the above, except to the extent 16 Seller has notified Buyer that Seller has arranged for delivery of Replacement Power consistent with the terms of this Agreement, Seller shall be obligated to comply with any Dispatch order issued by Buyer except: (1) during any Scheduled Maintenance Outage or Compressor Wash or (2) to the extent that a Force Majeure Event causes a reduction in the level of the Facility's Available Capacity. Failures by Seller to comply with Buyer's Dispatch orders shall be subject to the provisions of Appendix E for calculation of the Equivalent Availability. 4.3.2 Dispatch Notifications 4.3.2.1 Day Ahead Schedule Notification. Buyer shall provide to Seller, by no later than 0900 Central Time each day, Buyer's schedule for Dispatch for each hour of the following day (such schedule, the "Day Ahead Schedule"). Buyer may subsequently alter its Dispatch schedule set forth in the Day Ahead Schedule in accordance with Section 4.3.2.3 during Summer Period On-Peak Hours and Section 4.3.2.4 for all other hours. 4.3.2.1 Facility Availability Notification. Seller shall, by noon Central Time each day, inform Buyer of the estimated Capacity (taking into account the effect of any expected deratings) that will be available to Buyer for the following three (3) days. These estimates shall not be binding upon Seller and Seller may subsequently alter its estimates. Seller shall advise Buyer of any changes in its estimated Capacity as soon as practicable. 4.3.2.3 Mandatory Notification Obligation—Summer On Peak Hours. Buyer must provide Seller its Dispatch request and such request must be confirmed by Seller's operator, for any Summer On Peak Hours a minimum of one hour and twenty five (25) minutes prior to the Requested Load Delivery Time of one or both Units, and if Buyer is also dispatching one or both of the Elwood III Units, one hour and thirty five (35) minutes prior to the Requested Load Delivery Time for all Units Dispatched (including Elwood III Units). Units will be started in accordance with the procedure described in Appendix A. Units will ramp to the requested Dispatch level in accordance with the provisions of Appendix A. Seller shall use reasonable commercial efforts to change Dispatch levels at the request of Buyer while a Unit is running. Buyer must provide one hour's notice, confirmed by Seller's operator, to stop Dispatch (reduce Electric Energy to zero) or to change a Dispatch order during the Summer On Peak Hours. Seller shall not be obligated to comply with any Dispatch order issued for generation during Summer On Peak Hours unless issued with the minimum notice required by this Section, but shall use commercially reasonable efforts to do so. Notwithstanding the above, however, any failure to comply with a noncomplying Dispatch order between the time of issuance of Buyer's Dispatch order and the expiration of the applicable mandatory notification period for such Dispatch order shall not be taken into account for calculation of the Availability Adjustment. For example, if Buyer's Dispatch order for one Unit was given 75 minutes prior to the Requested Load Delivery Time of 1200 and Seller delivers Electric Energy at the requested load by 1210 such delay beyond the Requested Load Delivery Time shall not be taken into account in calculation of an Availability Adjustment; however, deliveries after 1210 shall be taken into account for calculation of the Availability Adjustment. 4.3.2.4 Mandatory Notification Obligation—Non-Summer Period and Summer Off Peak Hours. Buyer must provide Seller its Day Ahead Schedule request for Dispatch for any Non-Summer Period and for all Summer Off Peak Hours in accordance with Section 4.3.2.1 above; provided, however, that (a) during the month of September, such Day Ahead Schedule shall not become binding until five (5) hours prior to the scheduled 17 time for a Dispatched Start Up. If Buyer requests to change the Day Ahead Schedule after 0900 on the day covered by such schedule (i.e. the day after the day of its issuance), and if the Unit is on turning gear, Buyer may provide as little as three hours notice prior to its changed Requested Load Delivery Time, with details of the changes to the schedule. Within thirty minutes of Seller's receipt of such notice, Seller shall quote the fee pursuant to Section 7.2.5 in which Seller shall provide Buyer with an expected time at which Seller can achieve the generation level requested by Buyer in its Dispatch order. For the Electric Energy to be delivered between the time of issuance of Buyer's Dispatch order and the expiration of the applicable mandatory notification period for such Dispatch order, Seller shall not be obligated to comply with any Dispatch order issued for generation during the Non-Summer Period or during Summer Off Peak Hours unless either (a) such notice was issued with the minimum notice required by this Section, or (b) Buyer accepts the surcharge above the Base Fuel Charge or a fixed change fee as applicable quoted by Seller pursuant to Section 7.2.5. Immediately upon receipt of Seller's quoted surcharge, Buyer shall either accept such surcharge or the Day Ahead Schedule will remain unchanged. If Buyer accepts such surcharge, Seller shall comply with the revised Dispatch schedule. Notwithstanding the above, however, Buyer must provide one hour's notice to stop Dispatch (reduce Electric Energy to zero). 4.3.2.5 Cancellation of Start Up. If Buyer requests Seller to cancel a scheduled Start Up with less than the applicable mandatory notification period (required pursuant to Section 4.3.2 remaining prior to the scheduled Start Up, Seller shall use reasonable commercial efforts to stop or modify its Start Up of the applicable Units and Buyer shall be obligated to pay all of Seller "s reasonable documented out of pocket costs incurred, if any (other than fuel related costs covered in Section 7.2.5) as a result of such cancellation. In addition, if Seller has begun the Start Up Sequence during Summer On Peak Hours or has put the Unit on turning gear during any other hours prior to receipt of Buyer's cancellation request, Buyer shall pay to Seller the Start Up Charge for such Unit. 4.3.2.6 Communications. The Parties have developed mutually acceptable procedures for communications between Seller's control room and Buyer's Dispatcher included herewith as Appendix C-Dispatch Communications Guidelines to this Agreement and the Parties shall develop mutually acceptable associated reporting forms for such communications to be appended to this Agreement as Appendix DReporting Forms. 4.3.2.7 Remote Monitoring. Seller shall furnish data communication ports on its control system(s), the Revenue Meters, and the Station Fuel Meter such that Buyer may remotely monitor (read only) selected meter and operating data for the Facility and the Elwood III Units. Buyer shall be responsible for all data communication equipment from the data communications port interface to the point of remote monitoring, including the cost of equipment purchase, installation, operations, maintenance and upkeep. Seller shall furnish or shall cause to be furnished in a timely fashion the necessary interface protocol requirements and specifications of its control system and metering equipment such that Buyer may specify its compatible equipment. Seller shall have the right and opportunity to review and approve the specification of the first interface and protective devices of the Buyer to assure that such devices are compatible with and shall not interfere with Seller's control system(s) and metering equipment, and such approval shall not be unreasonably withheld. The data to be sampled, transmitted, and monitored shall include everything that is essential to Buyer's Dispatch. Such data shall include, but may not be necessarily limited to, the meter outputs and process control system data points set forth in Appendix K, which Seller shall use commercially reasonable efforts to make available to 18 Buyer at Seller's data communications ports on its control system(s), the Revenue Meters, and the Station Fuel Meter. 4.4 Incremental Energy. The Facility may through limited over-firing of the Units, have a generation capability that is higher than Net Dependable Capacity of up to approximately five (5) MW per Unit higher than its Net Dependable Capacity. "Incremental Energy" means Electric Energy generated through limited over-firing of the Units (as installed as of the Commercial Operations Date). Buyer may Dispatch Incremental Energy if and to the extent available in an amount of up to 250 hours per Contract Year in accordance with this Section 4.4, if and to the extent that Seller is not generating Incremental Energy to offset a Forced Derating. Buyer shall not be obligated to purchase Incremental Energy at the Incremental Energy Rate to the extent generated by Seller to offset a Forced Derating. 4.5 Forced Outages 4.5.1 First Outage Notice. Seller must notify Buyer within fifteen (15) minutes (the "First Outage Notice") after discovering that a Unit(s) is (a) unable to deliver all or part of the Electric Energy required during a Dispatch schedule or (b) unavailable for future Dispatch schedules. In such notice Seller shall provide its best estimate of the duration of the Forced Outage or Forced Derating. Within fifteen (15) minutes (but not less than ten (10) minutes) of receipt of such notice, Buyer shall provide to Seller a quote, (such price, the "Outage Book Out Charge") for the remainder of the day of such notice. 4.5.2 Seller Election. Immediately upon receipt of Buyer's Outage Book Out Charge, Seller must elect at its sole option, to either: 4.5.2.1 provide Replacement Power on its own behalf as soon as commercially practicable but not later than beginning at the top of the next hour (unless commercial practices permit earlier delivery); or 4.5.2.2 accept Buyer's quoted Outage Book Out Charge; if Seller elects this option then Seller shall pay the quoted and accepted Outage Book Out Charge and upon such payment, Seller shall be released from any further obligation or liability (including Availability Adjustment) associated with the applicable Dispatch order for the remainder of the day covered by such Outage Book Out Charge. 4.5.2.3 Seller's election pursuant to Section 4.5.2 will remain in effect until the earliest to occur of (a) the expiration of Buyer's anticipated Dispatch schedule in effect for that day, (b) the end of the Forced Outage or Forced Derating, or (c) the end of the day of such notice. 4.5.3 Second Outage Notice. As soon as practicable, but by no later than two (2) hours after the start of the Forced Outage or Forced Derating (the "Second Outage Notice"), Seller must notify Buyer of (a) the cause of the Forced Outage or Forced Derating, if known, (b) the proposed corrective action, and (c) Seller's best estimate of the expected duration of the Forced Outage or Forced Derating period. Seller shall in such Second Outage Notice elect to either: 4.5.3.1 provide Replacement Power on its own behalf; or 4.5.3.2 request Buyer to procure Substitute Power in accordance with Section 4.7.3. 4.5.3.3 Seller's election under this Section 4.5.3 shall become effective beginning at 0001 on the next day, and will remain in effect until the earlier to occur of: (a) the end of the Forced Outage or Forced Derating or (b) 2300 on the third Business Day after the day on which the Forced Outage or Forced Derating began (the "Diagnostic Period"). 19 4.5.4 Consequences for Availability Adjustment. If Seller fails to timely notify Buyer if its election under Section 4.5.2, or its Outage Election or fails to deliver or cause to be delivered either Replacement Power or Substitute Power, such incident shall be included as a Forced Outage or Forced Derating (as applicable) for purposes of the calculation of the Availability Adjustment. 4.5.5 Incidents Longer than Diagnostic Period. If Seller determines that the incident is expected to extend beyond the Diagnostic Period, then, Seller shall (as soon as practicable but no later than the expiration of the Diagnostic Period) make an Outage Election applicable to the remainder of the incident. 4.5.6 Resumption of Delivery. 4.5.6.1 From the Facility. Seller may resume delivery of Electric Energy from the Unit(s) as soon as the Units can produce Electric Energy (if it can be scheduled by Buyer on such short notice). Otherwise, Seller's election under Sections 4.5.2, as applicable above shall take effect no sooner than the top of the next hour provided Seller notifies Buyer 45 minutes in advance of such delivery (for example, if the incident occurs at 0810, Seller's provision of Replacement Power may begin at 0900, avoiding Availability Adjustments as of 0900 but subject to an Availability Adjustment for the period between 0810 and 0900). Seller shall incur an Availability Adjustment only in the event that the incident meets the definition of Forced Outage or Forced Derating and Seller fails to deliver or cause to be delivered Replacement Power or Substitute Power. If Seller is able to resume delivery of Electric Energy before any Outage Election is made, Seller may do so immediately without waiting until the top of the next hour (if it can be scheduled by Buyer on such short notice). 4.5.6.2 When Substitute Power is Procured. If Seller is able to resume delivery of Electric Energy from the Unit(s) prior to the expiration of any arrangements (entered into based on Seller's instructions) where Buyer is procuring Substitute Power at Seller's direction in accordance with Section 4.7.3 then, at Seller's direction, Buyer shall use commercially reasonable efforts to liquidate or unwind the Substitute Power arrangements at Prevailing Market Prices and any gain or loss realized by Buyer will be for the Seller's own account. 4.5.6.3 During an Outage Book Out. If Seller is able to resume delivery of Electric Energy during a period for which Seller has paid or agreed to pay an Outage Book Out Charge, Seller may resume operation of the applicable Unit(s) or portions thereof and Buyer will market the Electric Energy and pay to Seller 50% of the Gross Margin associated with such transaction plus the Facility Electric Energy Rate, if the Prevailing Market Price less Transaction Costs exceeds the Facility Electric Energy Rate. 4.5.7 Minimization of Outages. Consistent with Prudent Industry Practices, Seller shall use reasonable efforts to avoid Forced Outages and Forced Deratings and to minimize the length of any Forced Outages and Forced Deratings. 4.5.8 Information Related to Outages. In addition to the foregoing, Seller shall provide to Buyer information relating to outages of Capacity at the Units which could affect Seller's ability to deliver Electric Energy from such Units. 4.6 Access to Facility. Seller authorizes Buyer and its authorized agents, employees and inspectors to have access to the Facility, upon reasonable prior notice (in light of the circumstances) and subject to the safety rules and regulations of Seller, solely for the purpose of reading, testing, and maintaining metering equipment, or examining, repairing or removing any of Buyer's property. 20 4.7 Delivery of Replacement Power and Substitute Power 4.7.1 Replacement Power. All Replacement Power must be delivered in accordance with the following: 4.7.1.1 Buyer shall issue Dispatch instructions to schedule Replacement Power not in excess of the Net Dependable Capacity for delivery at each hour, and Seller shall, at its expense, deliver or cause to be delivered, all scheduled Replacement Power to the Replacement Power Delivery Point. 4.7.1.1 Buyer shall pay Capacity Charges for all such scheduled and delivered Replacement Power in accordance with Section 7. 4.7.2 Pre-Commercial Operations Failure to Deliver. If Seller fails to deliver or fails to cause to be delivered all or any part of any Replacement Power or Substitute Power scheduled for delivery prior to the Commercial Operations Date, Seller shall pay to Buyer within ten (10) days of receipt of an invoice therefor an amount equal to Buyer's actual, reasonable documented direct damages incurred for the cost of cover as a result of such failure to deliver Replacement Power or Substitute Power. At the end of each month during the Commercial Operations Delay Period, Buyer shall invoice Seller for such cost of cover if any incurred during such month, and Seller shall pay such amount within ten (10) days of Buyer's invoice therefor, and if Seller fails to timely pay such amount, Buyer may draw on the Seller Guarantees for such amount. 4.7.3 Substitute Power. Any request by Seller that Buyer procure Substitute Power shall be in accordance with the following: 4.7.3.1 Seller shall request Buyer to obtain quotes for Substitute Power on Seller's behalf at Prevailing Market Prices, which instructions shall include information as to whether such Substitute Power shall be obtained on a block or hourly basis. 4.7.3.2 Buyer shall use commercially reasonable efforts to obtain such Substitute Power at Prevailing Market Prices. 4.7.3.3 Subject to Section 4.7.4 at the end of each month, in conjunction with regular billings, if Substitute Power arranged by Buyer is not delivered, Buyer shall pay or credit to Seller any cost of cover damages Buyer receives from the entity that is the source of such Substitute Power. 4.7.4 Post Commercial Operations Failure to Deliver. If there is a failure to deliver energy to Buyer under any Substitute Power or Replacement Power arrangement by the entity that is the source of such Replacement Power or Substitute Power, then for the period of the failure until the applicable Unit(s) are able to resume operation in accordance with Buyer's Dispatch Seller shall pay to Buyer the greater of (i) the cost of cover damages ("or market LDs") Seller actually receives from such entity under the Replacement Power arrangement (or the amounts received by Buyer for Substitute Power pursuant to Section 4.7.3.3, (in either case "Third Party Damages") or (ii) the amount of any Availability Adjustment due as a result of such failure, if any. 4.7.5 Characteristics of Replacement and Substitute Power. When Seller is delivering Replacement Power to Buyer, Seller shall be obligated to deliver the amount of energy (at no cost to Seller, except to the extent required to deliver Replacement Power to the Replacement Power Delivery Point) scheduled by Buyer, up to the level necessary to comply with Buyer's Dispatch order (taking into account Electric Energy still being delivered by Seller during a Forced Derating) along with associated Ancillary Services in accordance with Section 9. Seller shall make appropriate power purchase and transmission arrangements to the Replacement Power Delivery Point to provide energy to Buyer which is of the same level of firmness 21 (e.g. if unit contingent, an availability comparable to that of the Facility) or higher level of firmness (e.g., system firm, firm with liquidated damages, or as firm as utility native load) as the Net Dependable Capacity hereunder. Substitute Power procured by Buyer may be of a lower level of firmness. 4.8 Emergency Conditions. During an Emergency condition, Seller may increase, reduce, curtail or interrupt electrical generation at the Facility in accordance with Prudent Industry Practice or take other appropriate action in accordance with the applicable provisions of the Interconnection Agreement which in the reasonable judgment of the Interconnected Utility may be necessary to operate, maintain and protect the Interconnected Utility System or the transmission system of another Person during an Emergency Condition or in the reasonable judgment of Seller may be necessary to operate, maintain and protect the Facility during an Emergency Condition. 5. Metering; Billing; Payment 5.1 Metering Electricity. All Electric Energy delivered by Seller to Buyer from the Facility under this Agreement shall be metered by the Revenue Meters and the readings therefrom, including calculated transformer and transmission line losses between the Revenue Meters and the Point of Delivery, shall be made in accordance with Prudent Industry Practice consistently applied. All Replacement Power and Substitute Power delivered to Buyer from facilities inside the Interconnected Utility System, shall be metered by the Interconnected Utility. For all Replacement Power and Substitute Power from sources outside the Interconnected Utility System, the delivered amount shall be the amount scheduled as delivered to the Interconnected Utility System by the system delivering such Replacement Power or Substitute Power into the Interconnected Utility System. The Energy Charge for which Buyer will be billed for Electric Energy also will be net of an adjustment for the value of the amount of electricity consumed by other non-operating Units at the Facility (or the Elwood III Units) during the billing period ("Non-Billable Generation") to yield the "billable generation" for the billing period. To establish the value of kilowatt hours of electricity provided by the Facility and consumed by the Elwood III Units for a billing period, the total for each billing period of electricity consumed by each Unit or unit will be determined from the individual Unit or unit meter readings using the Facility's Revenue Meter(s) (for the Units) and similar meters for the Elwood III Units which will then be summed for (both) Units and the Elwood III Units. Samples of such calculations are set forth in Appendix G. 5.1.1 Fuel. Billings for the fuel component of the Energy Rate shall be based on the Actual Heat Rate and the total consumption of gas as measured by the total Station Fuel Meter as prorated to Units 5 and 6 and the Elwood III Units based upon the Individual Fuel Meters, except where Replacement Power and Substitute Power is applicable, in which case the fuel component of the Energy Rate shall be derived in accordance with Section 7.2. Billings for the Variable O&M Rate component of the Energy Charge shall be derived from Revenue Meter information or, in the event Section 5.1.4 below is applicable, the best available data. 5.1.2 Meter Testing. The Revenue Meters shall be tested by the Parties at least once each year at Seller's expense and at any other reasonable time upon request by either Party, at the requesting Party's expense; provided, however, Buyer shall have no obligation to pay for any such test if such test results in a recalibration of meters. Seller shall give Buyer at least fourteen (14) days notice of any testing of the Revenue Meters, Station Fuel Meters, and Individual Fuel Meters and Buyer shall have the right to be present during all testing and shall be furnished all testing results on a timely basis. 5.1.3 Inaccurate Meters. If testing of the Revenue Meters indicates that an inaccuracy of more than +/-.5% in measurement of Electric Energy has occurred, the affected Revenue Meter shall be recalibrated promptly to register accurately within the Revenue Meter 22 manufacturer stated tolerances. Each Party shall comply with any reasonable request of the other concerning the sealing of meters, the presence of a representative of the other Party when the seals are broken and the tests are made, and other matters affecting the accuracy of the measurement of Electric Energy. If either Party believes that there has been a meter failure or stoppage, it shall immediately notify the other Party. 5.1.4 Failed Meters. If, for any reason, any Revenue Meter is out of service or out of repair so that the amount of Electric Energy delivered cannot be ascertained or computed from the readings thereof, the Electric Energy delivered during the period of such outage shall be estimated and agreed upon by the Parties hereto upon the basis of the best data available, and any failure to agree shall be subject to resolution in accordance with Section 11. 5.1.5 Examination of Records. Each Party (and its representative(s)) has the right, at its sole expense, upon reasonable notice and during normal working hours, to have an independent third party examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any statement, charge or computation relating to the output of Electric Energy. If requested, a Party shall provide to the other Party statements evidencing the amounts of Electric Energy delivered at the Point of Delivery. 5.2 Adjustment for Inaccurate Meters. If a Revenue Meter fails to register, or if the measurement made by a Revenue Meter is found upon testing to be inaccurate by more than or less than one half of one percent (.5%), an adjustment shall be made correcting all measurements by the inaccurate or defective Revenue Meter for both the amount of the inaccuracy and the period of inaccuracy, in the following manner: 5.2.1 As may be agreed upon by the Parties, or 5.2.2 In the event that the Parties cannot agree on the amount of the adjustment necessary to correct the measurements made by any inaccurate or defective Revenue Meter, the Parties shall use Seller's backup metering, if installed, to determine the amount of such inaccuracy; provided, however , that Seller's backup metering has been tested and maintained in accordance with the provisions of this Section 5.2.2. In the event that Seller's backup metering also is found to be inaccurate by more than the allowable limits set forth in this Section 5.2.2, the Parties shall mutually agree to estimate the amount of the necessary adjustment on the basis of deliveries of Capacity and Electric Energy during periods of similar operating conditions when the Revenue Meter was registering accurately. 5.2.3 In the event that the Parties cannot agree on the actual period during which the Revenue Meter(s) made inaccurate measurements, the period during which the measurements are to be adjusted shall be the shorter of (i) the last one-half of the period from the last previous test of the Revenue Meter to the test that found the Revenue Meter to be defective or inaccurate, or (ii) the one hundred eighty (180) days immediately preceding the test that found the Revenue Meter to be defective or inaccurate. 5.2.4 To the extent that the adjustment period covers a period of deliveries for which payment has already been made by Buyer, Seller shall use the corrected measurements as determined in accordance with Sections 5.2.1, 5.2.2, or 5.2.3 hereof to recompute the amount due for the period of inaccuracy and shall subtract the previous payments by Buyer for this period from such recomputed amount. If the difference is a positive number, the difference shall be paid by Buyer to Seller; if the difference is a negative number, that difference shall be paid by Seller to Buyer in the form of an offset to payments due Seller by Buyer hereunder. Adjustment of such difference by the owing Party shall be made not later than thirty (30) days after the owing Party receives notice of the amount due, unless Buyer elects payment via an offset. 23 5.3 Billing. Within ten (10) days after the last day of each month during the Term, Seller shall render a statement to Buyer for the amounts due in respect of such month under Section 7, which statement shall contain reasonable detail showing the manner in which the applicable charges were determined. 5.4 Payments. The amount due to Seller as shown on any monthly statement rendered by Seller pursuant to Section 5.3 shall be paid by Buyer by electronic wire transfer to an account specified by Seller within ten (10) days after the date such statement is received by Buyer. Any amount not paid by Buyer when due shall bear interest at the Default Rate from the date that the payment was due until the date payment by Buyer is made. 5.5 Offsets. Amounts due to Buyer as a result of late Commercial operations Date pursuant to Section 3.3 or amounts due to Buyer pursuant to Section 7 shall be offset against current and future payments due from Buyer with interest accrued daily at the Default Rate until fully offset or paid. 5.6 Billing Disputes. 5.6.1 If a Party questions or contests any amount claimed by the other Party to be due under Section 7, the Party obligated to pay shall pay the entire invoiced amount including the disputed portion (except obvious typographical or administrative errors). 5.6.2 In the event that either Party, by timely notice to the invoicing Party, questions or contests the correctness of any charge or payment claimed to be due by the invoicing Party, the invoicing Party shall promptly review the questioned charge or payment and shall notify the invoiced Party, within fifteen (15) Business Days following receipt by the invoicing Party of such notice, of the amount of any error and the amount of any reimbursement that the invoiced Party is entitled to receive in respect of such alleged error. Any disputes not resolved within fifteen (15) Business Days after the invoicing Party's receipt of notice from the invoiced Party shall be resolved in accordance with Section 11. Upon determination of the correct amount of any reimbursement, such amount shall be promptly paid by the invoicing Party to the invoiced Party. 5.6.3 Reimbursements made under this Section 5.6 shall include interest at the Default Rate from the date the original payment was made until the date of such reimbursement. 6. Operation and Maintenance of the Facility 6.1 Standard of Operation 6.1.1 Operation and Maintenance. Seller shall manage, control, operate and maintain the Facility in a manner consistent with Prudent Industry Practice, in accordance with (a) the practices, methods, acts, guidelines, standards and criteria of MAIN, NERC, the ISO and any successors to the functions thereof; (b) the requirements of the Interconnection Agreement; and (c) all applicable Requirements of Law and (d) permits taking into account Buyer's Dispatch rights under this Agreement. 24 6.1.2 Fuel Arrangements. Seller shall obtain and maintain fuel supply and transportation arrangements in a manner consistent with Prudent Industry Practice, taking into account Buyer's Dispatch rights under this Agreement. 6.1.3 Insurance. Seller shall obtain and maintain appropriate insurance coverages typical for plants similar to the Facility, in accordance with Prudent Industry Practice. 6.2 Permits and Licenses. Seller will obtain and maintain all certifications, permits, licenses and approvals necessary to operate and maintain the Facility and to perform its obligations under this Agreement during the Term. 6.3 Sole Remedy. Buyer's sole and exclusive remedy (other than specific performance) and Seller's sole and exclusive liability for breach of Section 6.1 shall be the Availability Adjustment and the termination rights provided in Section 13.4. 6.4 Scheduled Maintenance. No later than March 1, 2001, Seller shall submit to Buyer a proposed schedule of Scheduled Maintenance Outages scheduled by Seller for the following Contract Year for the Units, which schedule shall be updated by Seller by each March 31 and September 30 thereafter to cover the twelve month period following each such update; provided, however, that no Scheduled Maintenance Outage may be scheduled to cover the period from May 15 to September 15. Parameters within which Scheduled Maintenance Outages must be planned are included as Appendix I. If the OEM issues recommendations for changes to the parameters in Appendix I, the parties shall negotiate in good faith to revise Appendix I accordingly. Such schedule, and each supplement thereto, shall indicate the planned start and completion dates for each Scheduled Maintenance Outage during the period covered thereby and the amount of the Net Dependable Capacity of a Unit that will be affected. Within thirty (30) days of receipt of such schedule or any supplement thereto, Buyer may request reasonable modifications in the Scheduled Maintenance Outage schedule contained therein. Both parties agree to use reasonable efforts to develop a mutually acceptable final schedule for such Scheduled Maintenance Outages. If within six months prior to the scheduled start of a Scheduled Maintenance Outage, Buyer desires to change the scheduled start or duration of such Scheduled Maintenance Outage, Buyer shall notify Seller of Buyer's requested change and Seller shall use reasonable efforts to accommodate Buyer's requested change. Seller may propose compensation from Buyer to Seller for such change. Buyer shall then have the right to either direct such change and pay Seller such compensation, or withdraw the request for such change. At least one week prior to any Scheduled Maintenance Outage, Seller shall orally notify Buyer of the expected start date of such Scheduled Maintenance Outage, the amount of Capacity at the Units that will not be available to Buyer during such Scheduled Maintenance Outage, and the expected completion date of such Scheduled Maintenance Outage. Seller shall orally notify Buyer of any subsequent changes in such Capacity not available or any subsequent changes in the Scheduled Maintenance Outage completion date. As soon as practicable, all such oral notifications shall be confirmed in writing. Scheduled Maintenance Outages may be taken in any number of non-contiguous periods, subject to Buyer's approval, which shall not be unreasonably withheld or delayed. Subject to the foregoing, the duration, frequency and timing of Scheduled Maintenance Outages shall be based on OEM recommendations and the age and operation of the Units generally plus up to five (5) days per Unit on a semi-annual basis for Non-Summer Period balance of plant maintenance. 6.5 Compressor Wash. Buyer shall permit Seller to shut down each Unit (either at the same time or at different times) for a compressor wash, (the "Compressor Wash") at a mutually agreeable time that is not during On-Peak Hours, approximately once per month in the Summer Period. Such Compressor Wash requires that the Unit be off-line for an eighteen (18) hour cool down period prior to the start of such Compressor Wash. Seller agrees that at any time during such cool down period, Buyer may interrupt such cool down, Dispatch the Unit on-line and cause 25 Seller to reschedule the cool down and Compressor Wash for the next mutually agreeable time. Buyer agrees that once the actual Compressor Wash begins, the Compressor Wash must be completed without interruption and that Buyer cannot Dispatch the Unit on-line until such Compressor Wash is completed. 6.6 Operating Characteristics 6.6.1 Design Limits. The operating characteristics of the Facility shall be consistent with the Design Limits set forth in Appendix A unless otherwise mutually agreed by the Parties. Any such agreed upon change must be in writing, signed by both Parties. If the OEM provides written direction for operations that requires a change to the Design Limits, the Parties will negotiate in good faith to modify the Design Limits accordingly. 6.6.1 Interaction with Interconnected Utility System. Buyer understands that Seller may be required to increase, reduce, curtail or interrupt electrical generation at the Facility in accordance with Prudent Industry Practice or to take other appropriate action in accordance with the applicable provisions of the Interconnection Agreement which in the reasonable judgment of the Interconnected Utility may be necessary to operate, maintain and protect the Interconnected Utility System or the transmission system of another Person during an Emergency Condition or in the reasonable judgment of Seller may be necessary to operate, maintain and protect the Facility during an Emergency Condition. Any such curtailment shall be applied by Seller prorata across all units at the Elwood Station to the extent allowed by existing contracts (for electrical output from the Elwood Station) which terminate December 31, 2004 and in all cases shall be prorata for future power contracts. For purposes of calculating the Availability Adjustment, the Facility shall be considered Available during any such increase, reduction, curtailment, interruption or action, unless the order to increase, reduce, curtail, interrupt, or take other action with respect to generation at the Facility or the Emergency Condition is caused by a condition on Seller's side of the interconnection point between the Facility and the Interconnected Utility System. Buyer acknowledges that other conditions on the Interconnected Utility System (for example, transmission outages or interruptions) may impact Seller's ability to deliver Electric Energy into the Interconnected Utility System at the Point of Delivery. For purposes of calculating the Availability Adjustment, the Facility shall be considered Available during any time that the Facility would have been actually Available but for conditions (including, for example, transmission outages or interruptions) on the Interconnected Utility System. 6.7 Records. Each Party shall keep and maintain all records as may be necessary or useful in performing or verifying any calculations made pursuant to this Agreement, or in verifying such Party's performance hereunder. All such records shall be retained by each Party for at least six (6) calendar years following the calendar year in which such records were created. Each Party shall make such records available to the other Party for inspection and copying at the other Party's expense, upon reasonable notice during such Party's regular business hours. Each Party shall have the right, upon thirty days written notice prior to the end of an applicable six (6) calendar year period to request copies of such records. Each Party shall provide such copies, at the other Party's expense, within thirty (30) days of receipt of such notice or shall make such records available to the other Party in accordance with the foregoing provisions of this Section 6.7. 7. Compensation 7.1 Capacity Charge. For each month, commencing June 1, 2001 (as such date is extended for Force Majeure Events pursuant to Section 19) and each month thereafter during the Term, 26 Buyer shall owe Capacity Charges calculated pursuant to Section 7.1.1 (subject to offsets pursuant to Section 5.5). 7.1.1 Computation. The Capacity Charge for each month shall be equal to the product of (a) the applicable Capacity Rate for such month times (b) the Net Dependable Capacity for such month, minus the Availability Adjustment, when applicable. 7.1.2 Capacity Rates. The Capacity Rate during the Term shall be: (a) $7.90 per kW per month from June 1, 2001 to December 31, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
