Certain Additional Agreements. (a) At least 60 days prior to the Closing Date, Purchaser shall advise Sellers whether transitional services will be required by Purchaser from and after the Closing Date and which such services will be required. In such event, Sellers and Purchaser shall negotiate in good faith the schedules of services to be provided, the length of time for such services (which shall in no event exceed 90 days) and the rates at which such services will be provided to Purchaser, which rates will be at fair market value. Any transition services agreement entered into pursuant to this Section 5.21 is referred to as the "Transition Services Agreement". The execution of a Transition Services Agreement shall not be a condition to the Closing for any party. (b) Sellers and Purchaser shall negotiate in good faith an Easement and Facilities Agreement (the "Easement and Facilities Agreement") containing the terms set forth on Exhibit C. The parties will use good faith efforts to finalize the Easement and Facilities Agreement at least 60 days prior to the Closing Date and otherwise in form and substance mutually satisfactory to the parties. (c) Sellers and Purchaser shall negotiate in good faith a Blackstart Agreement (the "Blackstart Agreement") containing the terms set forth on Exhibit B. The parties will use good faith efforts to finalize the Blackstart Agreement at least 60 days prior to the Closing Date and otherwise in form and substance mutually satisfactory to the parties. (d) Seller and Purchaser shall negotiate in good faith an Interconnection Agreement (the "Interconnection Agreement") that is neutral with respect to the interests of the parties and complies with the regulations of PJM and FERC prior to the later of January 10, 2004 or the date that is 10 days before the date of effectiveness of the FERC rulemaking on standardization of Generator Interconnection Agreements and Procedures (FERC Docket No. PM-021). If the parties fail to reach the agreement described in the preceding sentence, they shall execute the PJM Standard Interconnection Agreement filed as Attachment O to the PJM Tariff as the same may exist as of the Closing.
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc /Il/)
Certain Additional Agreements. (a) At least 60 days prior to the Closing Date, Purchaser shall advise Sellers Seller whether transitional services will be required by Purchaser from and after the Closing Date and which such services will be required. In such event, Sellers Seller and Purchaser shall negotiate in good faith the schedules of services to be provided, the length of time for such services (which shall in no event exceed 90 days) and the rates at which such services will be provided to Purchaser, which rates will be at fair market value. Any transition services agreement entered into pursuant to this Section 5.21 is referred to as the "“Transition Services Agreement"”. The Notwithstanding anything to the contrary in this Agreement, the execution of a Transition Services Agreement shall not be a condition to the Closing for any party. Dynegy, the IPC Companies and Purchaser will cooperate during the period prior to Closing to minimize, to the extent reasonably practicable, the need for the IPC Companies to rely on transitional services after the Closing.
(b) Sellers Dynegy shall cause DMG (and any applicable Affiliate of DMG that owns or has rights to real property subject to such Agreement) to execute an Easement and Facilities Agreement (the “Easement and Facilities Agreement”), as grantor, granting valid, enforceable and insurable easement in recordable form over the real property Generation Assets to IPC, and including the terms set forth on Exhibit E. Dynegy and Purchaser shall negotiate in good faith an Easement and Facilities Agreement (the "Easement and Facilities Agreement") containing the terms set forth on Exhibit C. The parties will use good faith efforts to finalize the Easement and Facilities Agreement at least 60 within 30 days prior to after the Closing Date date hereof and otherwise in form and substance mutually satisfactory to the parties. Prior to the Closing (and, if applicable, subsequent to the Closing), the Dynegy Parties shall use good faith, reasonable efforts (including causing DMG or any other Affiliate of DMG that owns or has rights to the Generation Assets) to request and obtain an agreement (each, a “Subordination Agreement”), in recordable form and otherwise in customary form, from each mortgagee (which term, as used in this Section 5.21(b), shall include the grantee or beneficiary under a deed of trust) holding a mortgage (which term as used herein shall include a deed of trust) encumbering the Generation Assets, which Subordination Agreement shall provide for subordination of such mortgage to the Easement and Facilities Agreement. The proposed form of Subordination Agreement provided by Dynegy (or its Affiliate) to each mortgagee, and any modifications to such form, shall be subject to the approval of Dynegy and Purchaser (which approval shall not be unreasonably withheld or delayed). Dynegy shall keep Purchaser advised of the status of material responses from or communications with such mortgagees (and provide copies of drafts of the Subordination Agreement sent to or by any such mortgagee or its counsel). Dynegy shall promptly (i) make available to Purchaser copies of any mortgages encumbering the Generation Assets, (ii) provide Purchaser with a copy of any executed Subordination Agreement obtained from a mortgagee, (iii) cause any such executed Subordination Agreement to be recorded in the applicable local real estate recording office, and (iv) provide Purchaser with evidence of such recordation; provided, however, that any legal fees of the mortgagees and the cost of title endorsements required by the mortgagees related to the Subordination Agreement shall be shared equally by Purchaser and the Dynegy Parties Prior to the date that Dynegy shall have obtained an executed Subordination Agreement from a mortgagee (or in the event that any mortgagee refuses to execute a Subordination Agreement following good faith, reasonable efforts by the Dynegy Parties to obtain one), Dynegy shall give Purchaser prompt written notice of any acceleration of the applicable mortgage and any action subsequent thereto by such mortgagee to enforce the mortgage. Notwithstanding anything to the contrary set forth herein, the receipt of an executed Subordination Agreement from any mortgagee shall not be a condition to Purchaser’s obligation to close hereunder. This Section 5.21(b) shall survive the Closing. Notwithstanding the foregoing, nothing contained in this Section 5.21(b) shall require any of the Dynegy Parties or their Affiliates to take, or refrain from taking, any action that could reasonably constitute a breach or default under the terms of any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for borrowed money, or to require any of the Dynegy Parties or their Affiliates to pay any fees (other than its share of the legal fees of the mortgagees and the cost of title endorsements required by the mortgagees as provided above in this Section) to any trustee, issuer, holder, lender, secured party or other Person under any such mortgage, indenture or instrument, or commence any solicitation in order to carry out or meet the obligations in this Section.
(c) Sellers Seller shall cause IPC to allow the AmerGen Power Supply Agreement to expire in accordance with its terms as of December 31, 2004. Seller shall cause IPC to enter into one or more agreements for the purchase of 700 MW of firm capacity and Purchaser shall negotiate in good faith a Blackstart Agreement energy during calendar years 2005 and 2006 (the "Blackstart Agreement"“Base Energy Contracts”) containing for which any necessary regulatory approvals shall have been obtained. In particular, the terms set forth on Exhibit B. The parties Base Energy Contracts will use good faith have the following characteristics:
(i) the aggregate amount of firm capacity and energy guaranteed to IPC under the Base Energy Contracts shall be (1) 400 MW provided 24-hours per day, each day of the year, and (2) 300 MW provided between 6 a.m. and 10 p.m. (prevailing time in Decatur, Illinois) each Business Day (as such term is defined in the PPA), and shall satisfy MAIN Guides and MISO capacity resource requirements for obtaining network integration transmission service under the applicable OATT and for accreditation by the applicable NERC regional reliability council or successor organizations;
(ii) IPC shall make all reasonable efforts to finalize obtain financial transmission rights associated with the Blackstart Agreement energy provided under the Base Energy Contracts, including but not limited to nominating the transmission of such energy to the IPC system in the MISO process for financial transmission right allocation, and, further, IPC shall not sell, divest, transfer or otherwise dispose of such rights;
(iii) the Base Energy Contracts shall have a term of January 1, 2005 through December 31, 2006;
(iv) the Base Energy Contracts shall have been solicited through an independently administered competitive bidding process in which at least 60 days one party unaffiliated with Dynegy submitted an offer, and IPC shall have obtained the prior written consent of Purchaser (which shall not be unreasonably withheld) with respect to the Closing Date choice of the independent administrator, whose fees and otherwise in form and substance mutually satisfactory expenses shall be reimbursed by Purchaser within five Business Days of IPC’s request;
(v) the Base Energy Contracts shall have been awarded to the partiesbidder submitting the most favorable bid to IPC, taking into account price, credit worthiness, certainty of performance and other customary and commercially reasonable criteria; and
(vi) the Base Energy Contracts shall provide for the payment of actual or liquidated damages in the event of any failure to deliver the capacity or energy as specified in clause (i) above.
(d) Seller Dynegy shall, and shall cause each Dynegy Subsidiary (other than any IPC Company) to execute and deliver to the counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. Purchaser shall negotiate in good faith an Interconnection Agreement (the "Interconnection Agreement") that is neutral with respect cause IPC to execute and deliver to the interests counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. The parties specifically agree that the provisions contained in Section 11.16 are applicable to the obligations provided for in this Section 5.21(d).
(e) The parties shall agree to such changes to the Blackstart Agreement and the Easement and Facilities Agreement as may be required by any Governmental Authority in order to obtain all necessary Final Orders for the completion of the parties transactions contemplated hereby.
(f) None of the Dynegy Parties will, and complies Seller will cause IPC not to, enter into any consent decree or other settlement with regard to Clean Air Act Litigation (as defined in Section 5.18) for which IPC has direct or contingent responsibility unless such consent decree or other settlement contains a release of IPC, in form and substance reasonably acceptable to Purchaser, from all such responsibility; provided, however, notwithstanding any other provision of this Agreement to the regulations contrary (including Section 9.3), that such release shall not be required in the case of PJM and FERC any consent decree or other settlement relating to the Xxxxxxx Litigation if (1) the amount of liability for which IPC has direct or contingent liability is not greater than, in the case of a consent decree or other settlement entered into prior to the later Closing, $100,000,000 or, in the case of January 10a consent decree or other settlement entered into following the Closing, 2004 or the date that is 10 days before amount of Escrow Funds held as of the date of effectiveness such consent decree or other settlement under the Escrow Agreement and (2) any performance required of IPC, directly or contingently, under such consent decree or other settlement is required to be completed by December 31, 2010. Prior to the Closing, Seller shall not permit IPC to enter into any consent decree or other settlement with regard to Clean Air Act Litigation that provides for IPC liability unless DMG has joint and several liability with IPC.
(g) No later than June 30, 2004, IPC shall file with ICC revised gas service tariffs proposing a general increase in base rates for gas service. IPC shall retain (subject to the consent of Purchaser, such consent not be unreasonably withheld) qualified consultants, and, if it desires, outside counsel, to assist in the preparation and prosecution of the FERC rulemaking filing. At Closing, Purchaser shall pay to Seller an amount equal to the amounts paid or to be paid by IPC for the work of such qualified consultants and outside counsel on standardization of Generator Interconnection Agreements the filing through Closing.
(h) Dynegy agrees to cause DMG and Procedures (FERC Docket No. PM-021). If IPC to provide cooperation to Purchaser as reasonably requested by Purchaser in any effort to obtain insurance policies providing coverage for Clean Air Act Litigation liabilities, to the parties fail to reach the agreement described extent such cooperation would not result in the preceding sentenceloss of a legal privilege or protection for Dynegy, they DMG and IPC, or the actual or potential loss, compromise, or limitation of any defense, claim, position or strategy. All information obtained by Purchaser as a result of such cooperation shall execute the PJM Standard Interconnection Agreement filed as Attachment O be subject to the PJM Tariff as the same may exist as of the Closingany joint defense agreement entered into by Dynegy and Purchaser. Purchaser will reimburse Dynegy for out-of-pocket costs and expenses incurred by DMG and/or IPC in providing such cooperation to Purchaser.
Appears in 1 contract
Certain Additional Agreements. (a) At least 60 days prior to the Closing Date, Purchaser shall advise Sellers Seller whether transitional services will be required by Purchaser from and after the Closing Date and which such services will be required. In such event, Sellers Seller and Purchaser shall negotiate in good faith the schedules of services to be provided, the length of time for such services (which shall in no event exceed 90 days) and the rates at which such services will be provided to Purchaser, which rates will be at fair market value. Any transition services agreement entered into pursuant to this Section 5.21 is referred to as the "Transition Services Agreement". The Notwithstanding anything to the contrary in this Agreement, the execution of a Transition Services Agreement shall not be a condition to the Closing for any party. Dynegy, the IPC Companies and Purchaser will cooperate during the period prior to Closing to minimize, to the extent reasonably practicable, the need for the IPC Companies to rely on transitional services after the Closing.
(b) Sellers Dynegy shall cause DMG (and Purchaser shall negotiate in good faith any applicable Affiliate of DMG that owns or has rights to real property subject to such Agreement) to execute an Easement and Facilities Agreement (the "Easement and Facilities Agreement") containing ), as grantor, granting valid, enforceable and insurable easement in recordable form over the real property Generation Assets to IPC, and including the terms set forth on Exhibit C. The parties will use E. Dynegy and Purchaser shall negotiate in good faith efforts to finalize the Easement and Facilities Agreement at least 60 within 30 days prior to after the Closing Date date hereof and otherwise in form and substance mutually satisfactory to the parties. Prior to the Closing (and, if applicable, subsequent to the Closing), the Dynegy Parties shall use good faith, reasonable efforts (including causing DMG or any other Affiliate of DMG that owns or has rights to the Generation Assets) to request and obtain an agreement (each, a "Subordination Agreement"), in recordable form and otherwise in customary form, from each mortgagee (which term, as used in this Section 5.21(b), shall include the grantee or beneficiary under a deed of trust) holding a mortgage (which term as used herein shall include a deed of trust) encumbering the Generation Assets, which Subordination Agreement shall provide for subordination of such mortgage to the Easement and Facilities Agreement. The proposed form of Subordination Agreement provided by Dynegy (or its Affiliate) to each mortgagee, and any modifications to such form, shall be subject to the approval of Dynegy and Purchaser (which approval shall not be unreasonably withheld or delayed). Dynegy shall keep Purchaser advised of the status of material responses from or communications with such mortgagees (and provide copies of drafts of the Subordination Agreement sent to or by any such mortgagee or its counsel). Dynegy shall promptly (i) make available to Purchaser copies of any mortgages encumbering the Generation Assets, (ii) provide Purchaser with a copy of any executed Subordination Agreement obtained from a mortgagee, (iii) cause any such executed Subordination Agreement to be recorded in the applicable local real estate recording office, and (iv) provide Purchaser with evidence of such recordation; provided, however, that any legal fees of the mortgagees and the cost of title endorsements required by the mortgagees related to the Subordination Agreement shall be shared equally by Purchaser and the Dynegy Parties Prior to the date that Dynegy shall have obtained an executed Subordination Agreement from a mortgagee (or in the event that any mortgagee refuses to execute a Subordination Agreement following good faith, reasonable efforts by the Dynegy Parties to obtain one), Dynegy shall give Purchaser prompt written notice of any acceleration of the applicable mortgage and any action subsequent thereto by such mortgagee to enforce the mortgage. Notwithstanding anything to the contrary set forth herein, the receipt of an executed Subordination Agreement from any mortgagee shall not be a condition to Purchaser's obligation to close hereunder. This Section 5.21(b) shall survive the Closing. Notwithstanding the foregoing, nothing contained in this Section 5.21(b) shall require any of the Dynegy Parties or their Affiliates to take, or refrain from taking, any action that could reasonably constitute a breach or default under the terms of any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for borrowed money, or to require any of the Dynegy Parties or their Affiliates to pay any fees (other than its share of the legal fees of the mortgagees and the cost of title endorsements required by the mortgagees as provided above in this Section) to any trustee, issuer, holder, lender, secured party or other Person under any such mortgage, indenture or instrument, or commence any solicitation in order to carry out or meet the obligations in this Section.
(c) Sellers Seller shall cause IPC to allow the AmerGen Power Supply Agreement to expire in accordance with its terms as of December 31, 2004. Seller shall cause IPC to enter into one or more agreements for the purchase of 700 MW of firm capacity and Purchaser shall negotiate in good faith a Blackstart Agreement energy during calendar years 2005 and 2006 (the "Blackstart AgreementBase Energy Contracts") containing for which any necessary regulatory approvals shall have been obtained. In particular, the terms set forth on Exhibit B. The parties Base Energy Contracts will use good faith have the following characteristics:
(i) the aggregate amount of firm capacity and energy guaranteed to IPC under the Base Energy Contracts shall be (1) 400 MW provided 24-hours per day, each day of the year, and (2) 300 MW provided between 6 a.m. and 10 p.m. (prevailing time in Decatur, Illinois) each Business Day (as such term is defined in the PPA), and shall satisfy MAIN Guides and MISO capacity resource requirements for obtaining network integration transmission service under the applicable OATT and for accreditation by the applicable NERC regional reliability council or successor organizations;
(ii) IPC shall make all reasonable efforts to finalize obtain financial transmission rights associated with the Blackstart Agreement energy provided under the Base Energy Contracts, including but not limited to nominating the transmission of such energy to the IPC system in the MISO process for financial transmission right allocation, and, further, IPC shall not sell, divest, transfer or otherwise dispose of such rights;
(iii) the Base Energy Contracts shall have a term of January 1, 2005 through December 31, 2006;
(iv) the Base Energy Contracts shall have been solicited through an independently administered competitive bidding process in which at least 60 days one party unaffiliated with Dynegy submitted an offer, and IPC shall have obtained the prior written consent of Purchaser (which shall not be unreasonably withheld) with respect to the Closing Date choice of the independent administrator, whose fees and otherwise in form and substance mutually satisfactory expenses shall be reimbursed by Purchaser within five Business Days of IPC's request;
(v) the Base Energy Contracts shall have been awarded to the partiesbidder submitting the most favorable bid to IPC, taking into account price, credit worthiness, certainty of performance and other customary and commercially reasonable criteria; and
(vi) the Base Energy Contracts shall provide for the payment of actual or liquidated damages in the event of any failure to deliver the capacity or energy as specified in clause (i) above.
(d) Seller Dynegy shall, and shall cause each Dynegy Subsidiary (other than any IPC Company) to execute and deliver to the counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. Purchaser shall negotiate in good faith an Interconnection Agreement (the "Interconnection Agreement") that is neutral with respect cause IPC to execute and deliver to the interests counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. The parties specifically agree that the provisions contained in Section 11.16 are applicable to the obligations provided for in this Section 5.21(d).
(e) The parties shall agree to such changes to the Blackstart Agreement and the Easement and Facilities Agreement as may be required by any Governmental Authority in order to obtain all necessary Final Orders for the completion of the parties transactions contemplated hereby.
(f) None of the Dynegy Parties will, and complies Seller will cause IPC not to, enter into any consent decree or other settlement with regard to Clean Air Act Litigation (as defined in Section 5.18) for which IPC has direct or contingent responsibility unless such consent decree or other settlement contains a release of IPC, in form and substance reasonably acceptable to Purchaser, from all such responsibility; provided, however, notwithstanding any other provision of this Agreement to the regulations contrary (including Section 9.3), that such release shall not be required in the case of PJM and FERC any consent decree or other settlement relating to the Xxxxxxx Litiga- tion if (1) the amount of liability for which IPC has direct or contingent liability is not greater than, in the case of a consent decree or other settlement entered into prior to the later Closing, $100,000,000 or, in the case of January 10a consent decree or other settlement entered into following the Closing, 2004 or the date that is 10 days before amount of Escrow Funds held as of the date of effectiveness such consent decree or other settlement under the Escrow Agreement and (2) any performance required of IPC, directly or contingently, under such consent decree or other settlement is required to be completed by December 31, 2010. Prior to the Closing, Seller shall not permit IPC to enter into any consent decree or other settlement with regard to Clean Air Act Litigation that provides for IPC liability unless DMG has joint and several liability with IPC.
(g) No later than June 30, 2004, IPC shall file with ICC revised gas service tariffs proposing a general increase in base rates for gas service. IPC shall retain (subject to the consent of Purchaser, such consent not be unreasonably withheld) qualified consultants, and, if it desires, outside counsel, to assist in the preparation and prosecution of the FERC rulemaking filing. At Closing, Purchaser shall pay to Seller an amount equal to the amounts paid or to be paid by IPC for the work of such qualified consultants and outside counsel on standardization of Generator Interconnection Agreements the filing through Closing.
(h) Dynegy agrees to cause DMG and Procedures (FERC Docket No. PM-021). If IPC to provide cooperation to Purchaser as reasonably requested by Purchaser in any effort to obtain insurance policies providing coverage for Clean Air Act Litigation liabilities, to the parties fail to reach the agreement described extent such cooperation would not result in the preceding sentenceloss of a legal privilege or protection for Dynegy, they DMG and IPC, or the actual or potential loss, compromise, or limitation of any defense, claim, position or strategy. All information obtained by Purchaser as a result of such cooperation shall execute the PJM Standard Interconnection Agreement filed as Attachment O be subject to the PJM Tariff as the same may exist as of the Closingany joint defense agreement entered into by Dynegy and Purchaser. Purchaser will reimburse Dynegy for out-of-pocket costs and expenses incurred by DMG and/or IPC in providing such cooperation to Purchaser.
Appears in 1 contract
Certain Additional Agreements. (a) At least 60 days prior to the Closing Date, Purchaser shall advise Sellers Seller whether transitional services will be required by Purchaser from and after the Closing Date and which such services will be required. In such event, Sellers Seller and Purchaser shall negotiate in good faith the schedules of services to be provided, the length of time for such services (which shall in no event exceed 90 days) and the rates at which such services will be provided to Purchaser, which rates will be at fair market value. Any transition services agreement entered en- tered into pursuant to this Section 5.21 is referred to as the "“Transition Services Agreement"”. The Notwithstanding anything to the contrary in this Agreement, the execution of a Transition Services Agreement shall not be a condition to the Closing for any party. Dynegy, the IPC Companies and Purchaser will cooperate during the period prior to Closing to minimize, to the extent reasonably practicable, the need for the IPC Companies to rely on transitional ser- vices after the Closing.
(b) Sellers Dynegy shall cause DMG (and any applicable Affiliate of DMG that owns or has rights to real property subject to such Agreement) to execute an Easement and Facilities Agreement (the “Easement and Facilities Agreement”), as grantor, granting valid, enforce- able and insurable easement in recordable form over the real property Generation Assets to IPC, and including the terms set forth on Exhibit E. Dynegy and Purchaser shall negotiate in good faith an Easement and Facilities Agreement (the "Easement and Facilities Agreement") containing the terms set forth on Exhibit C. The parties will use good faith efforts to finalize the Easement and Facilities Agreement at least 60 within 30 days prior to after the Closing Date date hereof and otherwise in form and substance mutually satisfactory to the parties. Prior to the Closing (and, if applicable, subsequent to the Closing), the Dynegy Parties shall use good faith, reasonable efforts (including causing DMG or any other Affiliate of DMG that owns or has rights to the Generation Assets) to request and obtain an agreement (each, a “Subordina- tion Agreement”), in recordable form and otherwise in customary form, from each mortgagee (which term, as used in this Section 5.21(b), shall include the grantee or beneficiary under a deed of trust) holding a mortgage (which term as used herein shall include a deed of trust) encumbering the Generation Assets, which Subordination Agreement shall provide for sub- ordination of such mortgage to the Easement and Facilities Agreement. The proposed form of Subordination Agreement provided by Dynegy (or its Affiliate) to each mortgagee, and any modifications to such form, shall be subject to the approval of Dynegy and Purchaser (which approval shall not be unreasonably withheld or delayed). Dynegy shall keep Pur- chaser advised of the status of material responses from or communications with such mort- gagees (and provide copies of drafts of the Subordination Agreement sent to or by any such mortgagee or its counsel). Dynegy shall promptly (i) make available to Purchaser copies of any mortgages encumbering the Generation Assets, (ii) provide Purchaser with a copy of any executed Subordination Agreement obtained from a mortgagee, (iii) cause any such executed Subordination Agreement to be recorded in the applicable local real estate recording office, and (iv) provide Purchaser with evidence of such recordation; provided, however, that any legal fees of the mortgagees and the cost of title endorsements required by the mortgagees related to the Subordination Agreement shall be shared equally by Purchaser and the Dynegy Parties Prior to the date that Dynegy shall have obtained an executed Subordination Agree- ment from a mortgagee (or in the event that any mortgagee refuses to execute a Subordina- tion Agreement following good faith, reasonable efforts by the Dynegy Parties to obtain one), Dynegy shall give Purchaser prompt written notice of any acceleration of the applicable mortgage and any action subsequent thereto by such mortgagee to enforce the mortgage. Notwithstanding anything to the contrary set forth herein, the receipt of an executed Subor- dination Agreement from any mortgagee shall not be a condition to Purchaser’s obligation to close hereunder. This Section 5.21(b) shall survive the Closing. Notwithstanding the fore- going, nothing contained in this Section 5.21(b) shall require any of the Dynegy Parties or their Affiliates to take, or refrain from taking, any action that could reasonably constitute a breach or default under the terms of any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for borrowed money, or to require any of the Dynegy Parties or their Affiliates to pay any fees (other than its share of the legal fees of the mortgagees and the cost of title endorsements required by the mortgagees as provided above in this Section) to any trustee, issuer, holder, lender, secured party or other Person under any such mortgage, indenture or instrument, or commence any solicitation in order to carry out or meet the obligations in this Section.
(c) Sellers Seller shall cause IPC to allow the AmerGen Power Supply Agreement to expire in accordance with its terms as of December 31, 2004. Seller shall cause IPC to enter into one or more agreements for the purchase of 700 MW of firm capacity and Purchaser shall negotiate in good faith a Blackstart Agreement energy during cal- endar years 2005 and 2006 (the "Blackstart Agreement"“Base Energy Contracts”) containing for which any necessary regula- tory approvals shall have been obtained. In particular, the terms set forth on Exhibit B. The parties Base Energy Contracts will use good faith have the following characteristics:
(i) the aggregate amount of firm capacity and energy guaranteed to IPC under the Base Energy Contracts shall be (1) 400 MW provided 24-hours per day, each day of the year, and (2) 300 MW provided between 6 a.m. and 10 p.m. (prevailing time in Decatur, Illinois) each Business Day (as such term is defined in the PPA), and shall satisfy MAIN Guides and MISO capacity resource requirements for obtaining network integration transmission service under the applicable OATT and for accreditation by the applicable NERC regional reliability council or suc- cessor organizations;
(ii) IPC shall make all reasonable efforts to finalize obtain financial transmission rights associated with the Blackstart Agreement energy provided under the Base Energy Contracts, including but not limited to nominating the transmission of such energy to the IPC system in the MISO process for financial transmission right allocation, and, further, IPC shall not sell, divest, transfer or otherwise dispose of such rights;
(iii) the Base Energy Contracts shall have a term of January 1, 2005 through De- cember 31, 2006;
(iv) the Base Energy Contracts shall have been solicited through an independ- ently administered competitive bidding process in which at least 60 days one party unaf- filiated with Dynegy submitted an offer, and IPC shall have obtained the prior written consent of Purchaser (which shall not be unreasonably withheld) with re- spect to the Closing Date choice of the independent administrator, whose fees and otherwise in form and substance mutually satisfactory expenses shall be reimbursed by Purchaser within five Business Days of IPC’s request;
(v) the Base Energy Contracts shall have been awarded to the partiesbidder submitting the most favorable bid to IPC, taking into account price, credit worthiness, cer- tainty of performance and other customary and commercially reasonable criteria; and
(vi) the Base Energy Contracts shall provide for the payment of actual or liqui- dated damages in the event of any failure to deliver the capacity or energy as specified in clause (i) above.
(d) Seller Dynegy shall, and shall cause each Dynegy Subsidiary (other than any IPC Com- pany) to execute and deliver to the counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. Purchaser shall negotiate in good faith an Interconnection Agreement (the "Interconnection Agreement") that is neutral with respect cause IPC to execute and deliver to the interests counterparties thereto immediately following the Closing counter- parts of each Ancillary Agreement to which it is a party. The parties specifically agree that the provisions contained in Section 11.16 are applicable to the obligations provided for in this Section 5.21(d).
(e) The parties shall agree to such changes to the Blackstart Agreement and the Ease- ment and Facilities Agreement as may be required by any Governmental Authority in order to obtain all necessary Final Orders for the completion of the parties transactions contemplated hereby.
(f) None of the Dynegy Parties will, and complies Seller will cause IPC not to, enter into any consent decree or other settlement with regard to Clean Air Act Litigation (as defined in Section 5.18) for which IPC has direct or contingent responsibility unless such consent xx- xxxx or other settlement contains a release of IPC, in form and substance reasonably accept- able to Purchaser, from all such responsibility; provided, however, notwithstanding any other provision of this Agreement to the regulations contrary (including Section 9.3), that such release shall not be required in the case of PJM and FERC any consent decree or other settlement relating to the Xxxxxxx Litigation if (1) the amount of liability for which IPC has direct or contingent liability is not greater than, in the case of a consent decree or other settlement entered into prior to the later Closing, $100,000,000 or, in the case of January 10a consent decree or other settlement entered into following the Closing, 2004 or the date that is 10 days before amount of Escrow Funds held as of the date of effectiveness such consent xx- xxxx or other settlement under the Escrow Agreement and (2) any performance required of IPC, directly or contingently, under such consent decree or other settlement is required to be completed by December 31, 2010. Prior to the Closing, Seller shall not permit IPC to enter into any consent decree or other settlement with regard to Clean Air Act Litigation that pro- vides for IPC liability unless DMG has joint and several liability with IPC.
(g) No later than June 30, 2004, IPC shall file with ICC revised gas service tariffs proposing a general increase in base rates for gas service. IPC shall retain (subject to the con- sent of Purchaser, such consent not be unreasonably withheld) qualified consultants, and, if it desires, outside counsel, to assist in the preparation and prosecution of the FERC rulemaking filing. At Closing, Purchaser shall pay to Seller an amount equal to the amounts paid or to be paid by IPC for the work of such qualified consultants and outside counsel on standardization of Generator Interconnection Agreements the filing through Closing.
(h) Dynegy agrees to cause DMG and Procedures (FERC Docket No. PM-021). If IPC to provide cooperation to Purchaser as rea- sonably requested by Purchaser in any effort to obtain insurance policies providing coverage for Clean Air Act Litigation liabilities, to the parties fail to reach the agreement described extent such cooperation would not result in the preceding sentenceloss of a legal privilege or protection for Dynegy, they DMG and IPC, or the actual or potential loss, compromise, or limitation of any defense, claim, position or strategy. All information ob- tained by Purchaser as a result of such cooperation shall execute the PJM Standard Interconnection Agreement filed as Attachment O be subject to the PJM Tariff as the same may exist as of the Closingany joint defense agreement entered into by Dynegy and Purchaser. Purchaser will reimburse Dynegy for out- of-pocket costs and expenses incurred by DMG and/or IPC in providing such cooperation to Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement
Certain Additional Agreements. (a) At least 60 days prior to the Closing Date, Purchaser shall advise Sellers Seller whether transitional services will be required by Purchaser from and after the Closing Date and which such services will be required. In such event, Sellers Seller and Purchaser shall negotiate in good faith the schedules of services to be provided, the length of time for such services (which shall in no event exceed 90 days) and the rates at which such services will be provided to Purchaser, which rates will be at fair market value. Any transition services agreement entered into pursuant to this Section 5.21 is referred to as the "Transition Services Agreement". The Notwithstanding anything to the contrary in this Agreement, the execution of a Transition Services Agreement shall not be a condition to the Closing for any party. Dynegy, the IPC Companies and Purchaser will cooperate during the period prior to Closing to minimize, to the extent reasonably practicable, the need for the IPC Companies to rely on transitional services after the Closing.
(b) Sellers Dynegy shall cause DMG (and Purchaser shall negotiate in good faith any applicable Affiliate of DMG that owns or has rights to real property subject to such Agreement) to execute an Easement and Facilities Agreement (the "Easement and Facilities Agreement") containing ), as grantor, granting valid, enforceable and insurable easement in recordable form over the real property Generation Assets to IPC, and including the terms set forth on Exhibit C. The parties will use E. Dynegy and Purchaser shall negotiate in good faith efforts to finalize the Easement and Facilities Agreement at least 60 within 30 days prior to after the Closing Date date hereof and otherwise in form and substance mutually satisfactory to the parties. Prior to the Closing (and, if applicable, subsequent to the Closing), the Dynegy Parties shall use good faith, reasonable efforts (including causing DMG or any other Affiliate of DMG that owns or has rights to the Generation Assets) to request and obtain an agreement (each, a "Subordination Agreement"), in recordable form and otherwise in customary form, from each mortgagee (which term, as used in this Section 5.21(b), shall include the grantee or beneficiary under a deed of trust) holding a mortgage (which term as used herein shall include a deed of trust) encumbering the Generation Assets, which Subordination Agreement shall provide for subordination of such mortgage to the Easement and Facilities Agreement. The proposed form of Subordination Agreement provided by Dynegy (or its Affiliate) to each mortgagee, and any modifications to such form, shall be subject to the approval of Dynegy and Purchaser (which approval shall not be unreasonably withheld or delayed). Dynegy shall keep Purchaser advised of the status of material responses from or communications with such mortgagees (and provide copies of drafts of the Subordination Agreement sent to or by any such mortgagee or its counsel). Dynegy shall promptly (i) make available to Purchaser copies of any mortgages encumbering the Generation Assets, (ii) provide Purchaser with a copy of any executed Subordination Agreement obtained from a mortgagee, (iii) cause any such executed Subordination Agreement to be recorded in the applicable local real estate recording office, and (iv) provide Purchaser with evidence of such recordation; provided, however, that any legal fees of the mortgagees and the cost of title endorsements required by the mortgagees related to the Subordination Agreement shall be shared equally by Purchaser and the Dynegy Parties Prior to the date that Dynegy shall have obtained an executed Subordination Agreement from a mortgagee (or in the event that any mortgagee refuses to execute a Subordination Agreement following good faith, reasonable efforts by the Dynegy Parties to obtain one), Dynegy shall give Purchaser prompt written notice of any acceleration of the applicable mortgage and any action subsequent thereto by such mortgagee to enforce the mortgage. Notwithstanding anything to the contrary set forth herein, the receipt of an executed Subordination Agreement from any mortgagee shall not be a condition to Purchaser's obligation to close hereunder. This Section 5.21(b) shall survive the Closing. Notwithstanding the foregoing, nothing contained in this Section 5.21(b) shall require any of the Dynegy Parties or their Affiliates to take, or refrain from taking, any action that could reasonably constitute a breach or default under the terms of any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for borrowed money, or to require any of the Dynegy Parties or their Affiliates to pay any fees (other than its share of the legal fees of the mortgagees and the cost of title endorsements required by the mortgagees as provided above in this Section) to any trustee, issuer, holder, lender, secured party or other Person under any such mortgage, indenture or instrument, or commence any solicitation in order to carry out or meet the obligations in this Section.
(c) Sellers Seller shall cause IPC to allow the AmerGen Power Supply Agreement to expire in accordance with its terms as of December 31, 2004. Seller shall cause IPC to enter into one or more agreements for the purchase of 700 MW of firm capacity and Purchaser shall negotiate in good faith a Blackstart Agreement energy during calendar years 2005 and 2006 (the "Blackstart AgreementBase Energy Contracts") containing for which any necessary regulatory approvals shall have been obtained. In particular, the terms set forth on Exhibit B. The parties Base Energy Contracts will use good faith have the following characteristics:
(i) the aggregate amount of firm capacity and energy guaranteed to IPC under the Base Energy Contracts shall be (1) 400 MW provided 24-hours per day, each day of the year, and (2) 300 MW provided between 6 a.m. and 10 p.m. (prevailing time in Decatur, Illinois) each Business Day (as such term is defined in the PPA), and shall satisfy MAIN Guides and MISO capacity resource requirements for obtaining network integration transmission service under the applicable OATT and for accreditation by the applicable NERC regional reliability council or successor organizations;
(ii) IPC shall make all reasonable efforts to finalize obtain financial transmission rights associated with the Blackstart Agreement energy provided under the Base Energy Contracts, including but not limited to nominating the transmission of such energy to the IPC system in the MISO process for financial transmission right allocation, and, further, IPC shall not sell, divest, transfer or otherwise dispose of such rights;
(iii) the Base Energy Contracts shall have a term of January 1, 2005 through December 31, 2006;
(iv) the Base Energy Contracts shall have been solicited through an independently administered competitive bidding process in which at least 60 days one party unaffiliated with Dynegy submitted an offer, and IPC shall have obtained the prior written consent of Purchaser (which shall not be unreasonably withheld) with respect to the Closing Date choice of the independent administrator, whose fees and otherwise in form and substance mutually satisfactory expenses shall be reimbursed by Purchaser within five Business Days of IPC's request;
(v) the Base Energy Contracts shall have been awarded to the partiesbidder submitting the most favorable bid to IPC, taking into account price, credit worthiness, certainty of performance and other customary and commercially reasonable criteria; and
(vi) the Base Energy Contracts shall provide for the payment of actual or liquidated damages in the event of any failure to deliver the capacity or energy as specified in clause (i) above.
(d) Seller Dynegy shall, and shall cause each Dynegy Subsidiary (other than any IPC Company) to execute and deliver to the counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. Purchaser shall negotiate in good faith an Interconnection Agreement (the "Interconnection Agreement") that is neutral with respect cause IPC to execute and deliver to the interests counterparties thereto immediately following the Closing counterparts of each Ancillary Agreement to which it is a party. The parties specifically agree that the provisions contained in Section 11.16 are applicable to the obligations provided for in this Section 5.21(d).
(e) The parties shall agree to such changes to the Blackstart Agreement and the Easement and Facilities Agreement as may be required by any Governmental Authority in order to obtain all necessary Final Orders for the completion of the parties transactions contemplated hereby.
(f) None of the Dynegy Parties will, and complies Seller will cause IPC not to, enter into any consent decree or other settlement with regard to Clean Air Act Litigation (as defined in Section 5.18) for which IPC has direct or contingent responsibility unless such consent decree or other settlement contains a release of IPC, in form and substance reasonably acceptable to Purchaser, from all such responsibility; provided, however, notwithstanding any other provision of this Agreement to the regulations contrary (including Section 9.3), that such release shall not be required in the case of PJM and FERC any consent decree or other settlement relating to the Baldwin Litigation if (1) the amount of liability for which IPC has dxxxxx xr contingent liability is not greater than, in the case of a consent decree or other settlement entered into prior to the later Closing, $100,000,000 or, in the case of January 10a consent decree or other settlement entered into following the Closing, 2004 or the date that is 10 days before amount of Escrow Funds held as of the date of effectiveness such consent decree or other settlement under the Escrow Agreement and (2) any performance required of IPC, directly or contingently, under such consent decree or other settlement is required to be completed by December 31, 2010. Prior to the Closing, Seller shall not permit IPC to enter into any consent decree or other settlement with regard to Clean Air Act Litigation that provides for IPC liability unless DMG has joint and several liability with IPC.
(g) No later than June 30, 2004, IPC shall file with ICC revised gas service tariffs proposing a general increase in base rates for gas service. IPC shall retain (subject to the consent of Purchaser, such consent not be unreasonably withheld) qualified consultants, and, if it desires, outside counsel, to assist in the preparation and prosecution of the FERC rulemaking filing. At Closing, Purchaser shall pay to Seller an amount equal to the amounts paid or to be paid by IPC for the work of such qualified consultants and outside counsel on standardization of Generator Interconnection Agreements the filing through Closing.
(h) Dynegy agrees to cause DMG and Procedures (FERC Docket No. PM-021). If IPC to provide cooperation to Purchaser as reasonably requested by Purchaser in any effort to obtain insurance policies providing coverage for Clean Air Act Litigation liabilities, to the parties fail to reach the agreement described extent such cooperation would not result in the preceding sentenceloss of a legal privilege or protection for Dynegy, they DMG and IPC, or the actual or potential loss, compromise, or limitation of any defense, claim, position or strategy. All information obtained by Purchaser as a result of such cooperation shall execute the PJM Standard Interconnection Agreement filed as Attachment O be subject to the PJM Tariff as the same may exist as of the Closingany joint defense agreement entered into by Dynegy and Purchaser. Purchaser will reimburse Dynegy for out-of-pocket costs and expenses incurred by DMG and/or IPC in providing such cooperation to Purchaser.
Appears in 1 contract
