EXHIBIT 10.8.37
PERMANENT TRANSPORTATION CONTRACT
ASSIGNMENT AGREEMENT - FULL
THIS AGREEMENT made effective as of the 1st day of August, 2001.
BETWEEN:
SITHE/INDEPENDENCE POWER PARTNERS L.P., a Limited Partnership governed pursuant
to the laws of the United States having an office in the City of New York, in
the State of New York (hereinafter referred to as the "Assignor")
OF THE FIRST PART
- and -
ENRON NORTH AMERICA CORP., a Company governed pursuant to the laws of the United
States having an office in the City of Houston, in the State of Texas
(hereinafter referred to as the "Assignee")
OF THE SECOND PART
- and -
TRANSCANADA PIPELINES LIMITED, a body corporate governed pursuant to the laws of
Canada having an office in the City of Calgary, in the Province of Alberta
(hereinafter referred to as the "TransCanada")
OF THE THIRD PART
WITNESSES THAT:
WHEREAS TransCanada and Assignor are parties to a firm transportation
service contract to the Chippawa Delivery Point dated as of March 9, 1994
identified in TransCanada's records as Contract No. 5025 for a quantity of
41,491 GJ per day, (such agreement together with any and all amendments thereto
being hereinafter called the "Contract"); and
WHEREAS Assignor wishes to assign, set over, transfer and convey all of the
Assignor's interest in, to and under the Contract (the "Assigned Interest") to
Assignee, and all of the rights and obligations of the Assignor under the
Contract as they relate to the Assigned Interest;
AND WHEREAS TransCanada has agreed to consent to the assignment to the
Assignee of the Assigned Interest subject to the terms and conditions of this
Agreement.
NOW THEREFORE in consideration of the mutual covenants and premises herein
contained, and the payment of One Dollar ($1.00) by each party to the other
parties, receipt and sufficiency of which is acknowledged, the parties agree as
follows:
1. The Assignor hereby assigns, transfers, sets over and conveys to the
Assignee, effective as of the 1st day of August, 2001 (the "Effective
Date") the Assigned Interest and all of the Assignor's rights and
obligations in, to, and under the Contract, insofar as they relate to the
Assigned Interest, TO HAVE AND TO HOLD the same unto Assignee for its sole
use and benefit absolutely from and after the Effective Date hereof.
PERMANENT FULL ASSIGNMENT
2. The Assignee hereby accepts the assignment herein provided and covenants
and agrees with the Assignor and TransCanada that the Assignee shall at all
times, from and after the Effective Date, be bound by, observe and perform
all of the duties and obligations on the part of the Assignor under the
Contract, insofar as they relate to the Assigned Interest, accruing or
arising on and after the Effective Date hereof as if it had been originally
named as Shipper under the Contract to the extent of the Assigned Interest.
3. Subject to paragraphs 5 and 6 hereof, TransCanada, by its execution hereof,
hereby consents to the assignment herein provided and agrees that from and
after the Effective Date the Assignee shall be entitled to hold and enforce
all the benefits, rights and privileges of the Assignor under the Contract,
insofar as they relate to the Assigned Interest, as if it had been
originally named as shipper under the Contract.
4. Subject to paragraphs 5 and 6 hereof, the Assignor is hereby released, as
and from the Effective Date, from its obligations under the Contract,
provided that nothing herein shall release the Assignor from any of its
obligations under the Contract arising or attributable to the period prior
to the Effective Date.
5. Notwithstanding any other provision contained in the Agreement, the parties
agree that this assignment shall be subject to and conditional upon the
following:
(a) If requested by TransCanada, the Assignee shall provide to
TransCanada, prior to the Effective Date, financial assurance in
accordance with Section XXIII of the General Terms and Conditions set
forth in TransCanada's Transportation Tariff, on terms satisfactory to
TransCanada; and
(b) TransCanada and the Assignee shall execute, prior to the Effective
Date, a firm transportation service contract; (the "Assignee's
Contract") wherein TransCanada provides to the Assignee firm
transportation service in a quantity equal to 41,491 GJ (the "Contract
Demand") and for the term commencing the Effective Date and continuing
to and including the 31st day of October, 2015 (the "Term").
6. The parties acknowledge and agree that this Agreement shall be null and
void and that the assignment herein provided shall be of no force or effect
unless the conditions contained in paragraph 5 hereof have been fulfilled
on or before the Effective Date.
7. The parties acknowledge and agree that upon execution of the Assignee's
Contract and upon receipt by TransCanada of financial assurances from the
Assignee (if so requested by TransCanada pursuant to paragraph 5(a) hereof)
the Contract and all rights and obligations of the Assignor under the
Contract shall terminate and be at an end as and from the Effective Date
and the Assignee's Contract shall be the sole surviving document governing
the Assigned Interest from and after the Effective Date.
8. Notwithstanding paragraph 2 and subject to paragraphs 5 and 6 hereof, the
parties acknowledge and agree that the Assignee shall be responsible for
all gas imbalances associated with the Contract, as the same may be
determined by TransCanada in its sole discretion and regardless of whether
such gas imbalances were incurred before, on or after the Effective Date,
and as and from the Effective Date the Assignor shall have no rights or
obligations in respect of any such gas imbalances.
PERMANENT FULL ASSIGNMENT
9. For the purposes of Section 6.1 of the Contract, the Assignee's address
shall be:
(i) Mailing address: 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx
00000
(ii) Delivery address: same as above
(iii) Nominations: Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
(iv) Invoices: Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
(v) Other matters: Attention: Xxxxx Xxx Xxxxxx
Telecopy: (000) 000-0000
10. This Agreement and the rights and obligations of the parties hereunder are
subject to all valid and applicable present and future laws, rules,
regulations, and orders of any regulatory or legislative authority having
jurisdiction or control over TransCanada's Transportation Tariff (including
without limitation the FT Toll Schedule and the General Terms and
Conditions set forth in such Tariff).
11. This Agreement shall be construed in accordance with and governed by the
laws of the Province of Alberta and the laws of Canada applicable therein.
12. This Agreement may be executed in as many counterparts as deemed necessary
and when so executed shall have the same effect as if all parties had
executed the same document. Each party executing a counterpart of this
Agreement shall deliver one copy of such counterpart to the other parties.
This Agreement may be delivered by electronic facsimile transmission and
each copy of this Agreement so delivered shall be deemed to be an
originally executed copy for all purposes.
13. All terms and words herein capitalized and not otherwise defined in this
Agreement shall have the meanings ascribed thereto in the FT Toll Schedule,
the List of Tolls and the General Terms and Conditions of TransCanada's
Transportation Tariff as amended from time to time by the National Energy
Board.
14. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
PERMANENT FULL ASSIGNMENT
15. Each of the parties hereto, by the execution and delivery of this
Agreement, irrevocably and unconditionally, with respect an any matter or
thing arising out of this Agreement or the Contract, attorns and submits
to, and accepts the jurisdiction of, the courts of the Province of Alberta.
IN WITNESS WHEREOF THE DULY AUTHORIZED PARTIES HERETO HAVE PROPERLY
EXECUTED THIS Agreement all as and from the date first above written.
SITHE/INDEPENDENCE POWER PARTNERS L.P. ENRON NORTH AMERICA CORP.
per: /s/ Xxxxxx X. Xxxxxxxxx per: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------- ------------------------------
name: Xxxxxx X. Xxxxxxxxx name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------------- ------------------------------
title:Senior Vice President title:Managing Director
------------------------------- ------------------------------
per: /s/ Xxxxxx X. Xxxxxxx per: /s/ L. Xxx Xxxxxx
------------------------------- ------------------------------
name: Xxxxxx X. Xxxxxxx name: L. Xxx Xxxxxx
------------------------------- ------------------------------
title:Vice President and Treasurer title:Vice President
------------------------------- ------------------------------
TRANSCANADA PIPELINES LIMITED
-----------------------------------
per: /s/ Iain DRM XxxXxx Contract Approval
-------------------------------
-----------------------------------
name: Iain DRM XxxXxx Customer Service Leader
-------------------------------
------------------------- ---------
title:Manager, Sales Customer Representative
-------------------------------
------------------------- ---------
Legal Review PROFORMA
APPROVED
------------------------- ---------
per: /s/ Xxxxxx Xxxxxx
-------------------------------
name: Xxxxxx Xxxxxx
-------------------------------
title:Sales Representative
-------------------------------
