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Exhibit 10.5
ASSET SALES AGREEMENT
BY AND BETWEEN
NIAGARA MOHAWK POWER CORPORATION AND
ERIE BOULEVARD HYDROPOWER, L.P.
Dated as of December 2, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Definitions ....................................................... -1-
ARTICLE II
PURCHASE AND SALE
2.1. The Sale .......................................................... -11-
2.2. Excluded Assets ................................................... -11-
2.3. Assumed Obligations ............................................... -12-
2.4. Excluded Liabilities .............................................. -14-
ARTICLE III
PURCHASE PRICE
3.1. Purchase Price .................................................... -18-
3.2. Purchase Price Adjustment ......................................... -18-
3.3. Allocation of Purchase Price ...................................... -20-
3.4. Proration ......................................................... -20-
ARTICLE IV
THE CLOSING
4.1. Time and Place of Closing ......................................... -21-
4.2. Payment of Purchase Price ......................................... -22-
4.3. Deliveries by the Seller .......................................... -22-
4.4. Deliveries by the Buyer ........................................... -23-
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
5.1. Organization; Qualification ....................................... -24-
5.2. Authority Relative to this Agreement .............................. -24-
5.3. Consents and Approvals; No Violation .............................. -25-
5.4. Reports ........................................................... -26-
5.5. Company Reports; Financial Statements ............................. -26-
5.6. Undisclosed Liabilities ........................................... -27-
5.7. Absence of Certain Changes or Events .............................. -27-
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5.8. Title and Related Matters ......................................... -28-
5.9. Leases ............................................................ -28-
5.10. Insurance ......................................................... -28-
5.11. Environmental Matters ............................................. -28-
5.12. Labor Matters ..................................................... -30-
5.13. ERISA; Employee Benefit Plans ..................................... -30-
5.14. Real Estate ....................................................... -31-
5.15. Condemnation ...................................................... -31-
5.16. Certain Contracts and Arrangements ................................ -32-
5.17. Legal Proceedings, etc. ........................................... -32-
5.18. Permits ........................................................... -32-
5.19. Regulation as a Utility ........................................... -33-
5.20. Tax Matters ....................................................... -33-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER
6.1. Organization ...................................................... -34-
6.2. Authority Relative to this Agreement .............................. -34-
6.3. Consents and Approvals; No Violation .............................. -34-
6.4. Availability of Funds ............................................. -35-
ARTICLE VII
COVENANTS OF THE PARTIES
7.1. Conduct of Business Relating to the Purchased
Asset ............................................................. -36-
7.2. Access to Information ............................................. -38-
7.3. Expenses .......................................................... -41-
7.4. Further Assurances ................................................ -41-
7.5. Public Statements ................................................. -42-
7.6. Consents and Approvals ............................................ -43-
7.7. Fees and Commissions .............................................. -44-
7.8. Tax Matters ....................................................... -44-
7.9. Supplements to Schedules .......................................... -46-
7.10. Employees ......................................................... -46-
7.11. Risk of Loss ...................................................... -51-
7.12. Tax Clearance Certificates ........................................ -52-
7.13. NYSERDA Compliance ................................................ -52-
7.14. Remote Terminal Units ............................................. -52-
7.15. Access to Sites ................................................... -52-
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ARTICLE VIII
CONDITIONS
8.1. Conditions to Each Party's Obligations to Effect the
Transaction ........................................................ -55-
8.2. Conditions to Obligations of the Buyer ............................. -56-
8.3. Conditions to Obligations of the Seller ............................ -58-
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification ................................................... -60-
9.2. Defense of Claims ................................................. -62-
9.3. Tax Contest ....................................................... -64-
ARTICLE X
TERMINATION AND ABANDONMENT
10.1. Termination ....................................................... -65-
10.2. Procedure and Effect of Termination ............................... -67-
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Amendment and Modification ........................................ -67-
11.2. Waiver of Compliance; Consents .................................... -67-
11.3. No Survival ....................................................... -68-
11.4. Notices ........................................................... -68-
11.5. Assignment ........................................................ -69-
11.6. Governing Law ..................................................... -70-
11.7. Counterparts ...................................................... -70-
11.8. Interpretation .................................................... -70-
11.9. Schedules and Exhibits ............................................ -70-
11.10. Entire Agreement .................................................. -70-
11.11. Bulk Sales or Transfer Laws ....................................... -71-
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ASSET SALES AGREEMENT
ASSET SALES AGREEMENT, dated as of December 2, 1998, (this
"Agreement") by and between Niagara Mohawk Power Corporation, a New York
corporation (the "Seller"), and Erie Boulevard Hydropower, L.P., a Delaware
limited partnership (the "Buyer").
WHEREAS, the Buyer desires to purchase, and the Seller desires to
sell, the Hydroelectric Assets (as defined herein, the "Purchased Assets") upon
the terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements hereinafter set forth, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. (a) As used in this Agreement, the following terms
have the meanings specified in this Section 1.1(a). For capitalized terms used
in this subsection (a) but not defined herein, see subsection (b).
(1) "Affiliate" has the meaning set forth in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act.
(2) "Ancillary Agreements" means the Site Agreement, the Transition
Power Agreement, the Interconnection Agreement, the Bennetts Bridge Agreement,
the Niagara Mohawk Service Classification Tariff and the Transition Operation
Services Agreement.
(3) [Intentionally left blank].
(4) "Bennetts Bridge Agreement" means the Nine Mile Point One
Emergency Power Supply Agreement, to be dated as of the Closing Date, between
the Buyer and the Seller, substantially in the form of Exhibit A hereto.
(5) "Xxxx of Sale" means the Xxxx of Sale to be delivered at the
Closing with respect to the Purchased
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Assets which constitute personal property and which are to be transferred at
such Closing, substantially in the form of Exhibit B hereto.
(6) "Business Day" shall mean any day other than Saturday, Sunday
and any day which is a legal holiday or a day on which banking institutions in
New York City are authorized by law or other governmental action to close.
(7) "Buyer Representatives" means the Buyer's accountants,
employees, counsel, environmental consultants, financial advisors and other
authorized representatives.
(8) "Capital Expenditures" means (i) those capital expenditures
which are identified on Schedule 7.1 and (ii) those anticipated environmental
remediation costs identified on Schedule 7.1.
(9) "Casualty" means any damage to or destruction of all or any
portion of the Purchased Assets occurring for any reason, including as a result
of fire (including fire caused by lightning), wind, hail, ice, snow, hurricane,
tornado, freezing, earthquake, earth movement or flood.
(10) "CERCLA" means the Federal Comprehensive Environmental
Response, Compensation and Liability Act and any amendment thereto.
(11) "COBRA" means the Consolidated Omnibus Reconciliation Act of
1985, as amended.
(12) "Code" means the Internal Revenue Code of 1986, as amended.
(13) "Collective Bargaining Agreement" means the Collective
Bargaining Agreement, dated as of April 15, 1996, between the Seller and Local
97 of the International Brotherhood of Electrical Workers ("IBEW").
(14) "Confidentiality Agreement" means the Confidentiality
Agreement, dated March 23, 1998, between the Seller and Orion Power Holdings,
Inc.
(15) "Easements" means, with respect to the Real Estate, the
reservations of easements to be included in the deeds of conveyance with respect
to such assets and easements for the benefit of third parties.
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(16) "Encumbrances" means any mortgages, pledges, liens, security
interests, conditional and installment sale agreements, easements, licenses,
title imperfections, encumbrances or restrictions.
(17) "Environmental Laws" means all Federal, state, local and
foreign laws, regulations, rules, ordinances, codes, decrees, judgments,
directives, or judicial or administrative orders, and all common law, which
relate to pollution or protection of the environment, natural resources
(including, without limitation, ambient air, surface water, groundwater, land,
surface and subsurface strata) or human health and safety, including, without
limitation, laws which relate to Releases or threatened Releases of Hazardous
Substances or otherwise relate to the manufacture, processing, distribution,
use, treatment, storage, Release, transport or handling of Hazardous Substances.
(18) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(19) "Estimated Adjustment Amount" means the Seller's good faith
reasonable estimate of an Adjustment Amount for the Closing, which estimate
shall be provided to the Buyer no later than five Business Days before the
Closing.
(20) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(21) "Federal Power Act" means the Federal Power Act of 1935.
(22) "FERC" means the Federal Energy Regulatory Commission.
(23) "FIRPTA Affidavit" means the Foreign Investment in Real
Property Tax Act Certification and Affidavit substantially in the form of
Exhibit C hereto.
(24) "Good Industry Practice" shall mean any of the practices,
methods and acts engaged in or approved by a significant portion of the electric
utility industry during the relevant time period, or any of the practices,
methods and acts which, in the exercise of reasonable judgment in light of the
facts known at the time the decision was made,
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could have been expected to accomplish the desired result at the lowest
reasonable cost consistent with good business practices, reliability, safety and
expedition. Good 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 region and
consistently adhered to by the Seller. Good Industry Practice shall include, but
not limited to North American Electric Reliability Council Criteria &
Guidelines, Northeast Power Coordinating Council Criteria & Guidelines, New York
State Reliability Council if any, and New York Power Pool criteria, rules and
standards, as they may be amended from time to time including the rules,
guidelines and criteria of any successor organization to the foregoing entities.
(25) "Governmental Entity" means any governmental or regulatory
authority, agency, commission, body or other governmental entity, other than the
Internal Revenue Service or the New York Department of Taxation and Finance.
(26) "Hazardous Substances" means any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "restricted hazardous materials,"
"extremely hazardous substances," "toxic substances," "contaminants,"
"petroleum" or "pollutants" or words of similar meaning or substance found in
any Environmental Law, exposure to which is prohibited, limited, regulated or
otherwise governed by such Environmental Law.
(27) "Holding Company Act" means the Public Utility Holding Company
Act of 1935, as amended.
(28) "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
(29) "Hydroelectric Assets" means, subject to the Easements and
Section 2.2, all of the right, title and interest in, to and under the real and
personal property, tangible and intangible, of the Seller and constituting the
hydroelectric sites and associated dams and reservoirs listed on Schedule
1.1(a)(26) as part of the Hydroelectric Assets or used principally for
generation purposes in connection with such dams and reservoirs and which are
located within or beyond the applicable FERC project license
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boundary, including, but not limited to, the following assets owned by the
Seller:
(i) the real estate (including all buildings, structures and other
improvements thereon) described on Schedule 5.14 as associated with the
Hydroelectric Assets (the "Hydroelectric Real Property");
(ii) all inventories of supplies, materials and critical spares
located on or in transit to the Hydroelectric Real Property on the Closing
Date, and all warranties against manufacturers or vendors relating
thereto, to the extent that such warranties are freely transferable;
(iii) the machinery, equipment, vehicles, furniture and other
personal property located on the Hydroelectric Real Property on the
Closing Date, including, without limitation, the items of personal
property included in Schedule 1.1(a)(26) as being associated with the
Hydroelectric Assets, and all warranties against manufacturers or vendors
relating thereto, to the extent that such warranties are freely
transferable;
(iv) the contracts, leases and other agreements of the Seller, the
liabilities under which are being assumed by the Buyer pursuant to Section
2.3;
(v) the Transferring Employee Records;
(vi) all books, operating records, operating, safety and maintenance
manuals, engineering design plans, blueprints and as-built plans,
specifications, procedures and similar items in the Seller's possession
relating specifically to the aforementioned assets other than books of
account; and
(vii) those vehicles which are leased and not owned by the Seller as
to which the Buyer elects to pay the Vehicle Amount pursuant to Section
3.1(b).
(30) "Income Tax" means any federal, state, local or foreign Tax (a)
based upon, measured by or calculated with respect to net income, profits or
receipts (including, without limitation, capital gains Taxes and minimum Taxes)
or (b) based upon, measured by or calculated with respect to
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multiple bases (including, without limitation, corporate franchise taxes) if one
or more of the bases on which such Tax may be based, measured by or calculated
with respect to, is described in clause (a), in each case together with any
interest, penalties, or additions to such Tax.
(31) "Indenture" means the Mortgage Trust Indenture, dated as of
October 1, 0000 xxxxxxx Xxxxxxx Xxx Xxxx Power Corporation and The Marine
Midland Trust Company of New York, as amended, modified and supplemented from
time to time.
(32) "Independent Accounting Firm" means an independent accounting
firm of national reputation mutually appointed by the Seller and the Buyer.
(33) "Instrument of Assumption" means the Instrument of Assumption
substantially in the form of Exhibit D hereto relating to the assumption by the
Buyer of the liabilities and obligations of the Seller.
(34) "Interconnection Agreement" means the Interconnection
Agreement, to be dated as of the Closing Date, between the Seller and the Buyer
substantially in the form of Exhibit E hereto.
(35) "IRS" means the United States Internal Revenue Service.
(36) "Laws" means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, judgment, order, injunction, decree, arbitration
award, agency requirement, license or permit of any Governmental Entity.
(37) "Maintenance Expenditures" means those maintenance expenditures
which are identified on Schedule 7.1.
(38) "Maintenance and Capital Expenditures Amount" means the
aggregate amount of all funds actually expended (net of insurance recoveries)
on, or for which liabilities were accrued in accordance with generally accepted
accounting principles applied on a consistent basis (provided the Seller
actually pays such accrued liabilities) with respect to Maintenance Expenditures
and Capital Expenditures by the Seller, if any, during the period beginning
January 1, 1999 and ending on the Closing Date
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(other than the Schaghticoke Pipeline Expenditures), but only to the extent that
such amounts do not exceed the amounts scheduled therefor on Schedule 7.1.
(39) "Material Adverse Effect" means any change or changes in, or
effect on, the Purchased Assets that is, or in the aggregate are, materially
adverse to the business, assets, operations or conditions (financial or
otherwise) of the Purchased Assets, taken as a whole, other than (i) any change
or effect resulting from changes in the international, national, regional or
local wholesale or retail markets for electric power, (ii) any change or effect
resulting from changes in the international, national, regional or local markets
for any fuel used at the Purchased Assets, (iii) any change in waterflow caused
by drought or other acts of God with respect to the Hydroelectric Assets, (iv)
any change or effect resulting from changes in the North American, national,
regional or local electric transmission systems, (v) any materially adverse
change in or effect on the Purchased Assets which is cured (including by the
payment of money) by the Seller before the Termination Date, and (vi) any
materially adverse change resulting from employees related to the Purchased
Assets electing not to continue such employment.
(40) "Permitted Encumbrances" means (i) the Easements, (ii) those
exceptions to title to the Purchased Assets listed in Schedule 5.8, (iii) all
exceptions, restrictions, easements, charges, rights of way and monetary
encumbrances which are set forth in an applicable FERC project license, except
for such encumbrances which secure indebtedness, (iv) with respect to any date
before the Closing Date, Encumbrances created by the Indenture which are
released at or prior to the Closing, (v) statutory liens for current Taxes or
assessments not yet due or delinquent or the validity of which is being
contested in good faith by appropriate proceedings, (vi) mechanics', carriers',
workers', repairers' and other similar liens arising or incurred in the ordinary
course of business relating to obligations as to which there is no default on
the part of the Seller or the validity of which are being contested in good
faith by appropriate proceedings which do not, individually or in the aggregate,
materially and adversely affect the normal use and operation of any material
portion of the Purchased Assets, (vii) zoning, entitlement, conservation
restriction and other land use and environmental regulations by governmental
authorities, and
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(viii) such other liens, imperfections in or failure of title, charges,
easements, leases, licenses, restrictions, encumbrances, encroachments and
defects which do not materially interfere with the present use of the Purchased
Assets and neither secure indebtedness, nor individually or in the aggregate,
materially and adversely affect the normal use and operation of the
hydroelectric generating facilities located at any of the sites included in the
Purchased Assets.
(41) "Person" means an individual, a partnership, a limited
liability company, a joint venture, a corporation, a trust, an unincorporated
organization and a governmental entity or a department or agency thereof.
(42) "PSC" means the New York Public Service Commission.
(43) "Release" means a release, spill, leak, discharge, disposal of,
pumping, pouring, emitting, emptying, injecting, leaching, dumping or otherwise
allowing to escape into or through the environment.
(44) "Schaghticoke Pipeline Expenditures" means the aggregate amount
of all funds actually expended by the Seller on, or for which liabilities were
accrued by the Seller in accordance with generally accepted accounting
principles applied on a consistent basis (provided the Seller actually pays such
accrued liabilities) with respect to, the Schaghticoke Pipeline replacement or
repair from and after the date of this Agreement and prior to the Closing Date.
(45) "SEC" means the Securities and Exchange Commission.
(46) "Securities Act" means the Securities Act of 1933, as amended.
(47) "Site Agreement" means the Site Agreement, to be dated as of
the Closing Date, between the Seller and the Buyer, substantially in the form of
Exhibit F.
(48) "Subsidiary" when used in reference to any other Person means
any entity of which outstanding securities having ordinary voting power to elect
a majority of the Board of Directors or other Persons performing similar
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functions of such entity are owned directly or indirectly by such other Person.
(49) "Taxes" means all taxes, charges, fees, levies, penalties or
other assessments imposed by any United States federal, state or local or
foreign taxing authority, including, but not limited to, income, excise,
property, sales, transfer, franchise, payroll, withholding, social security or
other taxes, including any interest, penalties or additions attributable
thereto.
(50) "Tax Return" means any return, report, information return or
other document (including any related or supporting information) required to be
filed with any authority with respect to Taxes.
(51) "Transferring Employee Records" means all personnel files
related to the Seller's personnel who will become employees of the Buyer to the
extent such files pertain to (i) skill and development training and resumes,
(ii) seniority histories, (iii) salary and benefit information, (iv)
Occupational Safety and Health Administration medical reports, (v) active
medical restriction forms, (vi) results of background checks and (vii) records
of disciplinary action taken, provided that no files shall be delivered in
violation of the Collective Bargaining Agreement.
(52) "Transition Operation Services Agreement" means the Transition
Operation Services Agreement between Buyer and Seller to be entered into as of
the Closing Date, in form to be agreed upon by Buyer and Seller in good faith
prior to the Closing Date, with a term coextensive with that of the Transition
Power Agreement, which shall be terminable by the Buyer at any time upon thirty
days' written notice, and providing for the Seller to provide energy management
services, which shall not include financial or accounting services, for a fee of
$50,000 a month.
(53) "Transition Power Agreement" means the Power Purchase
Agreement, to be dated on the Closing Date, between the Buyer and the Seller,
substantially in the form attached as Exhibit G.
(54) "WARN Act" means the Federal Worker Adjustment Retraining and
Notification Act of 1988.
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(b) Each of the following terms has the meaning specified in the
Section set forth opposite such term:
Term Section
---- -------
Adjustment Amount 3.2(a)
Adjustment Statement 3.2(a)
Assumed Obligations 2.3(b)
Audit Date 5.5
Benefit Plans 5.13(a)
Buyer Employee 7.10(a)
Buyer Required Regulatory Approvals 6.3(b)
Closing 4.1
Closing Date 4.1
Contracts 5.16(a)
Direct Claim 9.2(c)
Environmental Permits 5.11(a)
ERISA Affiliate 5.13(a)
Estimated Purchase Price 4.2
Excluded Assets 2.2
Excluded Liabilities 2.4
Final Order 8.1(c)
Indemnifiable Loss 9.1(a)
Indemnifying Party 9.1(d)
Indemnitee 9.1(c)
Independent Appraiser 3.3
Inventory Adjustment Amount 3.2(a)
Non-Union Employee 7.10(c)
Observers 7.1(c)
Permits 5.18
Purchased Assets Recitals
Purchase Price 3.1
Replacement Welfare Plans 7.10(d)
Seller Required Regulatory Approvals 5.3(b)
Seller's Agreement 7.4(c)
SPE Amount 3.1
Tax Audit 9.3(a)
Termination Date 10.1(b)
Third Party Claim 9.2(a)
Transfer Taxes 7.8(a)
Vehicle Amount 3.1
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ARTICLE II
PURCHASE AND SALE
2.1. The Sale. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, at the Closing the Seller will sell,
assign, convey, transfer and deliver to the Buyer, and the Buyer will purchase
and acquire from the Seller, free and clear of all Encumbrances (except for
Permitted Encumbrances) the Purchased Assets.
2.2. Excluded Assets. Notwithstanding any provision herein to the
contrary, the Purchased Assets shall not include the following assets of the
Seller (herein referred to as the "Excluded Assets"):
(a) all cash, cash equivalents, bank deposits, accounts receivable,
and any income, sales, payroll or other tax receivables;
(b) certificates of deposit, shares of stock, securities, bonds,
debentures, evidences of indebtedness, interests in joint ventures,
partnerships, limited liability companies and other entities;
(c) the name "Niagara Mohawk" and any related or similar trade
names, trademarks, service marks or logos;
(d) the transmission, distribution, substation and communication
facilities and related support equipment described or referred to in Schedule
2.2(d) or described or referred to as an "Excluded Asset" or an asset of
"Seller" in the "Separation Document" (as defined in the Site Agreement) or any
document or exhibit referred to or incorporated by reference in the Separation
Document or which are otherwise indicated in any such document as remaining with
the Seller or any of its Affiliates after the Closing;
(e) any refund or credit (provided, however, with respect to real
estate Taxes only to the extent provided in Section 7.16) (i) of Taxes paid or
required to be reimbursed by the Seller prior to the Closing Date in respect of
the Purchased Assets, whether such refund is received as a payment or as a
credit against Taxes payable or (ii) arising under any power purchase agreement
that is subject to cost
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of service regulation and relating to a period before the Closing Date; and
(f) all personnel records, other than Transferring Employee Records,
or other records (other than those described in the definition of Hydroelectric
Assets).
2.3. Assumed Obligations. (a) On the Closing Date, the Buyer shall
deliver to the Seller the Instruments of Assumption pursuant to which the Buyer
shall assume and agree to discharge all of the liabilities and obligations of
the Seller, direct or indirect, known or unknown, absolute or contingent, which
relate to the Purchased Assets, other than Excluded Liabilities, in accordance
with the respective terms and subject to the respective conditions thereof,
including, without limitation, the following liabilities and obligations:
(i) all liabilities and obligations of the Seller under (a)
contractual obligations of the Seller relating to the Purchased Assets
which survive following the Closing, which are transferable, which were
entered into in the ordinary course of business and which are not,
individually or in the aggregate, material to the Purchased Assets and
which do not provide for annual payments of more than $100,000
individually or $500,000 in the aggregate or which are listed on Schedule
5.16(a), (b) the contracts, leases and other agreements entered into by
the Seller with respect to the Purchased Assets after the date hereof
consistent with the terms of this Agreement and (c) liabilities for fuel
and stores in transit; except in each case, to the extent such liabilities
and obligations, but for a breach thereunder by the Seller, would have
been paid, performed or otherwise discharged on or prior to the Closing
Date or to the extent the same arise out of any such breach;
(ii) all liabilities and obligations associated with the Purchased
Assets in respect of Taxes for which the Buyer is liable pursuant to
Sections 3.4 or 7.8;
(iii) all liabilities and obligations with respect to the employees
of Buyer employed at the Purchased Assets after the Closing Date for which
the Buyer is responsible pursuant to Section 7.10 and the terms of the
Collective Bargaining Agreement;
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(iv) any liability, obligation or responsibility under or related to
former, current or future Environmental Laws, whether such liability or
obligation or responsibility is known or unknown, contingent or accrued,
arising as a result of or in connection with (a) any violation or alleged
violation of Environmental Law on or after the Closing Date, with respect
to the ownership or operation of the Purchased Assets; (b) loss of life,
injury to persons or property or damage to natural resources, caused (or
allegedly caused) by the presence or Release of Hazardous Substances at,
on, in, under, adjacent to or migrating from the Purchased Assets on or
after the Closing Date, including, but not limited to, Hazardous
Substances contained in building materials at the Purchased Assets or in
the soil, surface, water, sediments, groundwater, landfill cells, or in
other environmental media at or adjacent to the Purchased Assets; (c) loss
of life, injury to persons or property or damage to natural resources
caused (or allegedly caused) by the off-site disposal, storage,
transportation, discharge, Release, recycling, or the arrangement for such
activities, of Hazardous Substances on or after the Closing Date, in
connection with the ownership or operation of the Purchased Assets; (d)
the investigation, monitoring, containment and/or remediation (whether or
not such investigation or remediation commenced before the Closing Date or
commences after the Closing Date) of Hazardous Substances that are present
or have been Released either prior to or on or after the Closing Date at,
on, in, under, adjacent to or migrating from the Purchased Assets,
including, but not limited to, Hazardous Substances contained in building
materials at the Purchased Assets or in the soil, surface water,
sediments, groundwater, landfill cells, or in other environmental media at
or adjacent to the Purchased Assets and (e) the investigation and/or
remediation of Hazardous Substances that are disposed, stored,
transported, discharged, Released, recycled, or the arrangement of such
activities, on or after the Closing Date, in connection with the ownership
or operation of the Purchased Assets, at any off-site location; provided,
as to all of the above, that nothing set forth in this subsection 2.3(a)
shall require the Buyer to assume any liabilities that are expressly
excluded in Section 2.4;
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(v) all liabilities incurred by the Seller with respect to
Maintenance Expenditures and Capital Expenditures associated with the
Purchased Assets but only to the extent such liabilities were included in
the Maintenance and Capital Expenditures Amount;
(vi) any Taxes on the ownership, sale, operation or use of the
Purchased Assets on or after the Closing Date; except for any Income Taxes
attributable to income or gain (including proceeds representing the
Purchase Price or proceeds of other asset sales) of the Seller; and
(vii) all obligations of the Seller with respect to the operation
and ownership of the Purchased Assets pursuant to the agreements described
in Section 7.13.
(b) All of the foregoing liabilities and obligations to be assumed
by the Buyer under Section 2.3(a) (excluding any Excluded Liabilities) are
referred to herein as the "Assumed Obligations." It is understood and agreed
that nothing in this Section 2.3 shall constitute a waiver or release of any
claims arising out of the contractual relationships between the Seller and the
Buyer.
2.4. Excluded Liabilities. The Buyer shall not assume or be
obligated to pay, perform or otherwise discharge the following liabilities or
obligations:
(i) any liabilities or obligations of the Seller in respect of any
Excluded Assets or other assets which are not Purchased Assets;
(ii) any liabilities or obligations in respect of Taxes attributable
to purchased Assets for taxable periods ending on or before the Closing
Date, except for Taxes for which the Buyer is liable pursuant to Section
3.4 or Section 7.8;
(iii) any liabilities, obligations, or responsibilities under or
related to former, current or future Environmental Laws or the common law,
whether such liability or obligation is known or unknown, contingent or
accrued, arising as a result of or in connection with (a) any violation or
alleged violation of Environmental Law prior to the Closing Date with
respect to the ownership or operation of the Purchased
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Assets (other than liabilities, obligations and responsibilities assumed
by Buyer pursuant to clause (d) of Section 2.3(a)(iv) of this Agreement,
which the parties agreed do not include any fines or penalties imposed by
a Governmental Entity with respect to a violation or alleged violation
which occurred prior to the Closing Date); (b) loss of life, injury to
persons or property or damage to natural resources (whether or not such
loss, injury or damage arose or was made manifest before the Closing Date
or arises or becomes manifest after the Closing Date), caused (or
allegedly caused) by the presence or Release of Hazardous Substances at,
on, in, under, adjacent to or migrating from the Purchased Assets prior to
the Closing Date, including, but not limited to, Hazardous Substances
contained in building materials at the Purchased Assets or in the soil,
surface, water, sediments, groundwater, landfill cells, or in other
environmental media at or adjacent to the Purchased Assets; (c) the
matters described in Schedule 5.11 (Environmental Matters); or (d) the
disposal, storage, transportation, discharge, Release, recycling, or the
arrangement for such activities, by the Seller, of Hazardous Substances
that were generated at the Purchased Assets, at any off-site location,
where the disposal, storage, transportation, discharge, Release, recycling
or the arrangement for such activities at said off-site location occurred
prior to the Closing Date, provided that for purposes of this Section 2.4,
"off-site location" does not include any location to which Hazardous
Substances disposed of or Released at the Purchased Assets have migrated;
(iv) except as provided in Section 16.3 of the Site Agreement, any
liabilities, obligations or responsibilities relating to (a) the property,
equipment or machinery within the switchyards for which the Seller will
retain either a fee interest or an Easement, (b) the transmission lines
delineated in the Easements, (c) any Seller's operations on, or usage of,
the Easements, including, without limitation, liabilities, obligations or
responsibilities arising as a result of or in connection with (1) any
Environmental Law and (2) loss of life, injury to persons or property or
damage to natural resources, except to the extent caused by Buyer, or (d)
obligations under Consent Order #A5-0334-95-08 for the Queensbury
Hazardous Waste Site.
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(v) any liabilities or obligations relating to any personal injury,
discrimination, wrongful discharge, unfair labor practice or similar claim
or cause of action filed against the Seller or pending before any court or
administrative agency on the Closing Date, with respect to liabilities
principally relating to the purchased Assets (including, without
limitation, all claims and cases of action set forth in Schedule 2.4);
(vi) any payment obligations of the Seller for goods delivered or
services rendered prior to the Closing;
(vii) any liabilities or obligations imposed upon, assumed or
retained by the Seller pursuant to the Site Agreement or any other
Ancillary Agreement;
(viii) any liabilities, obligations or responsibilities relating to
any Benefit Plan or any "employee pension benefit plan" (as defined in
Section 3(2) of ERISA) maintained by the Seller or any trade or business
(whether or not incorporated) which is under common control as a single
employer, with the Seller under Section 414(b), (c), (m) or (o) of the
Code ("ERISA Affiliate"), including any multiemployer plan, maintained by
or contributed to by the Seller or any ERISA Affiliate, or as to which the
Seller or any ERISA Affiliate is obligated to contribute to, at any time,
including any such liability (A) to the Pension Benefit Guaranty
Corporation under Title IV of ERISA; (B) relating to a multiemployer plan;
(C) with respect to non-compliance with the notice and benefit
continuation requirements of COBRA; (D) with respect to any noncompliance
with ERISA or any other applicable laws; or (E) with respect to any suit,
proceeding or claim which is brought against the Buyer, any Benefit Plan,
ERISA Affiliate Plan, any fiduciary or former fiduciary of any such
Benefit Plan or ERISA Affiliate Plan; and
(ix) any liabilities or obligations resulting from the Seller's
gross negligence or wilful misconduct, other than any liability assumed by
the Buyer under Section 2.3(a)(v) (provided that the exclusion of
liabilities and obligations resulting from Seller's gross negligence under
this Section 2.4(ix) shall not be deemed to impose any responsibility upon
Seller for the condition of the Purchased Assets at Closing);
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(x) any fines or penalties imposed by a governmental agency
resulting from (A) an investigation or proceeding pending on or prior to
the Closing Date or (B) illegal acts, willful misconduct or gross
negligence of the Seller prior to the Closing Date;
(xi) any liabilities, obligations or responsibilities relating to
the employment or termination of employment, including a constructive
termination, by the Seller of any individual (including, but not limited
to, any employee of the Seller) attributable to any actions or inactions
by the Seller prior to the Closing Date other than such actions or
inactions taken at the direction of the Buyer;
(xii) any liabilities relating to the litigation with respect to the
Mechanicville facility listed on Schedule 5.17 hereto; and
(xii) all liabilities or obligations of the Seller for (A)
maintenance expenditures and capital expenditures associated with the
Purchased Assets to the extent that such liabilities are not included in
the Maintenance and Capital Expenditures Amount, and (B) Schaghticoke
Pipeline Expenditures.
All such liabilities and obligations not being assumed pursuant to
Section 2.4 are herein called the "Excluded Liabilities." Buyer shall use best
reasonable efforts to provide Seller with prompt written notice of any
correspondence, communications, claims or information that it receives which, to
its knowledge, relates directly or indirectly to the Excluded Liabilities. Such
notice shall be provided to the following, consistent with Section 11.4 of this
Agreement:
Manager, Risk Management
Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
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ARTICLE III
PURCHASE PRICE
3.1. Purchase Price. The purchase price for the Purchased Assets
(the "Purchase Price") shall be an amount equal to the sum of (a) $425,000,000,
(b) the Vehicle Amount (as hereinafter defined) and (c) the Adjustment Amount
less, if the Schaghticoke Pipeline has not been restored to the operational
capability described in Schedule 1.1(a)(26) as of the Closing Date, the
difference of $7 million less the Schaghticoke Pipeline Expenditures (but only
if the difference is a positive number) (the "SPE Amount"). The Vehicle Amount
shall be the cost required to buy out the leases of all vehicles which the Buyer
elects to purchase which are presently leased by the Company for use with the
Purchased Assets, which shall be determined as set forth on Schedule 3.1(c) (as
appropriately completed prior to the Closing).
3.2. Purchase Price Adjustment. (a) Within 60 days after the
Closing, the Seller shall prepare and deliver to the Buyer statements (each, an
"Adjustment Statement") which reflects (i) the amount (whether positive or
negative) equal to the difference of (A) the net book value, as reflected on the
books of the Seller as of the Closing Date of all fuel inventory (FERC account
no. 151) and stores inventory (FERC account no. 154) and owned vehicles used at
or in connection with the Purchased Assets minus (B) $1,300,000 (the "Inventory
Adjustment Amount"), (ii) the Maintenance and Capital Expenditures Amount
applicable to the Purchased Assets and (iii) the employee transition credit for
any employees who did not become employees of the Buyer as calculated pursuant
to Schedule 3.2, which amount shall not exceed $2,800,000 (the "ETC
Adjustment"). The sum of the Inventory Adjustment Amount, the Maintenance and
Capital Expenditures Amount and the ETC Adjustment is referred to as the
"Adjustment Amount." Each Adjustment Statement shall be prepared using the same
generally accepted accounting principles, policies and methods as the Seller has
historically used in connection with the calculation of the items reflected on
such Adjustment. The Buyer agrees to cooperate with the Seller in connection
with the preparation of each Adjustment Statement and related information, and
shall provide to the Seller such books, records and information as may be
reasonably requested from time to time.
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(b) The Buyer may dispute an Inventory Adjustment Amount, a
Maintenance and Capital Expenditures Amount or the ETC Adjustment; provided,
however, that the Buyer shall notify the Seller in writing of the disputed
amount, and the basis of such dispute, within ten (10) Business Days of the
Buyer's receipt of the applicable Adjustment Statement. In the event of a
dispute with respect to any part of any Adjustment Amount, the Buyer and the
Seller shall attempt to reconcile their differences. If the Buyer and the Seller
are unable to reach a resolution of such differences within 30 days of receipt
of the Buyer's written notice of dispute to the Seller, the Buyer and the Seller
shall submit the amounts remaining in dispute for determination and resolution
to the Independent Accounting Firm, which shall be instructed to determine and
report to the parties, within 30 days after such submission, upon such remaining
disputed amounts, and such report shall be final, binding and conclusive on the
parties hereto with respect to the amounts disputed. The fees and disbursements
of the Independent Accounting Firm shall be allocated between the Buyer and the
Seller so that the Buyer's share of such fees and disbursements shall be in the
same proportion that the aggregate amount of such remaining disputed amounts so
submitted by the Buyer to the Independent Accounting Firm that is unsuccessfully
disputed by the Buyer (as finally determined by the Independent Accounting Firm)
bears to the total amount of such remaining disputed amounts so submitted by the
Buyer to the Independent Accounting Firm.
(c) Within ten (10) Business Days after the Buyer's receipt of an
Adjustment Statement, the Buyer shall pay all undisputed amounts, and if there
is a dispute with respect to any amount on such Adjustment Statement, within
five (5) Business Days after the final determination of any amounts on such
Adjustment Statement, the Buyer shall pay to the Seller an amount equal to the
disputed Adjustment Amount as finally determined pursuant to subsection (b) to
be payable with respect to such Adjustment Statement. All Adjustment Statement
payments shall be less the Estimated Adjustment Amount; provided, however, that
if such amount shall be less than zero then the Seller will pay to the Buyer the
amount by which such amount is less than zero. Any amount paid under this
Section 3.2(c) shall be paid with interest for the period commencing on the
Closing Date through the date of payment, calculated at the base rate of
Citibank N.A. in effect on the Closing Date, and in cash by
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federal or other wire transfer of immediately available funds.
3.3. Allocation of Purchase Price. The Buyer and the Seller shall
use their good faith best efforts to agree upon an allocation among the
Purchased Assets of the sum of the portion of the Purchase Price set forth in
subsection 3.1(a) consistent with Section 1060 of the Code and the Treasury
Regulations thereunder within 180 days of the date of this Agreement but in no
event less than 30 days prior to the Closing. Any post closing adjustments with
respect to the Purchase Price for purchase price allocation purposes, including,
but not limited to, the final determination of the amount of the Assumed
Obligations, the Vehicle Amount and the Adjustment Amount shall be jointly made
and agreed to within sixty (60) days following the Closing in a manner
consistent with the allocation determined pursuant to this Section 3.3. Each of
the Buyer and the Seller agree to file Internal Revenue Service Form 8594, and
all federal, state, local and foreign Tax Returns, in accordance with such
agreed allocation. Each of the Buyer and the Seller shall report the
transactions contemplated by the Agreement for Tax purposes in a manner
consistent with the allocation determined pursuant to this Section 3.3. Each of
the Buyer and the Seller agrees to provide the other promptly with any other
information reasonably required to complete Form 8594. Each of the Buyer and the
Seller shall notify the other in the event of an examination, audit or other
proceeding regarding the agreed upon allocation of the Purchase Price.
3.4. Proration. (a) The Buyer and the Seller agree that all of the
items normally prorated, including those listed below, relating to the business
and operation of the Purchased Assets will be prorated as of the Closing Date,
with the Seller liable to the extent such items relate to any time period
through the Closing Date, and the Buyer liable to the extent such items relate
to periods subsequent to the Closing Date:
(i) except as provided in Section 7.8(a) or 7.16, personal property,
real property, occupancy, severage, and water Taxes, assessments and other
similar charges, if any, on or with respect to the business and operation
of the Purchased Assets and with respect to a taxable period that begins
before but does not end on the Closing Date shall be (1) prorated to the
extent such Tax is measured by time to the Seller based on the
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number of days in such taxable period, up to and including the Closing
Date, and to the Buyer based on the number of days in such taxable period
after the Closing Date, and (2) to the extent such Tax is measured by
income, receipts or pertains to the business and operation of the
Purchased Assets, allocated between Buyer and Seller based on a closing of
the books on the Closing Date with respect to the business and operation
of the Purchased Assets.
(ii) sewer rents and charges for water, telephone, electricity and
other utilities; and
(iii) rent under any leases of real or personal property included in
the Purchased Assets, including the leases described in Schedule 5.9.
(b) In connection with the prorations referred to in (a) above, in
the event that actual figures are not available at the Closing Date, the
proration shall be based upon the actual Taxes or fees for the preceding year
(or appropriate period) for which actual Taxes or fees are available and such
Taxes or fees shall be reprorated upon request of either the Seller, on the one
hand, or the Buyer, on the other hand, made within sixty (60) days of the date
that the actual amounts become available. Recoveries from tax certiorari
proceedings shall be reduced by all costs and expenses, including attorneys'
fees, prior to proration. The Buyer shall cooperate with the Seller in the
prosecution of tax certiorari proceedings which have not been completed by the
Closing Date. The Seller and the Buyer agree to furnish each other with such
documents and other records as may be reasonably requested in order to confirm
all adjustment and proration calculations made pursuant to this Section 3.4.
ARTICLE IV
THE CLOSING
4.1. Time and Place of Closing. Upon the terms and subject to the
satisfaction of the conditions contained in Article VIII of this Agreement, the
closing of the sale of the Purchased Assets contemplated by this Agreement (the
"Closing") will take place at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
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10:00 A.M. (local time) on such date as the parties may agree which date is not
later than the later to occur of (i) June 30, 1999 and (ii) thirty (30) Business
Days following the date on which all of the conditions contained in Article VIII
have been satisfied or waived; or at such other place or time as the parties may
agree. The date and time at which the Closing actually occurs is hereinafter
referred to as the "Closing Date."
4.2. Payment of Purchase Price. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, in consideration of
the aforesaid sale, assignment, conveyance, transfer and delivery of the
Purchased Assets, the Buyer will assume the Assumed Obligations and will pay or
cause to be paid to the Seller at the Closing an amount in the aggregate (the
"Estimated Purchase Price") in United States dollars equal to the sum of (i)
$425,000,000, (ii) the Vehicle Amount, (iii) the Estimated Adjustment Amount for
the Closing less the SPE Amount (if any), by wire transfer of immediately
available funds or by such other means as are agreed upon by the Seller and the
Buyer.
4.3. Deliveries by the Seller. At the Closing, the Seller will
deliver the following to the Buyer:
(a) The Xxxx of Sale, duly executed by the Seller;
(b) All consents, waivers or approvals obtained by the Seller with
respect to the purchased Assets, the transfer of any Transferable Permit related
to the Purchased Assets, or the consummation of the transactions connected to
the sale of the Purchased Assets, contemplated by this Agreement, to the extent
specifically required hereunder;
(c) An opinion of counsel and certificate (as contemplated by
Section 8.2) with respect to the Purchased Assets;
(d) One or more bargain and sale deeds with lien covenants conveying
the Real Estate related to the Purchased Assets, subject to the applicable
Easements and Exceptions, duly executed and acknowledged by the Seller and in
recordable form along with TP-584 Forms and Equalization and Transfer Reports,
in the form attached hereto as Exhibit 4.3(d);
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(e) A FIRPTA Affidavit executed by the Seller;
(f) All such other instruments of assignment or conveyance as shall,
in the reasonable opinion of the Buyer and its counsel, be necessary to transfer
to the Buyer the Purchased Assets, in accordance with this Agreement and where
necessary or desirable, in recordable form; and
(g) The Ancillary Agreements, duly executed by Seller, and such
other agreements, documents, instruments and writings as are required to be
delivered by the Seller at or prior to the Closing Date pursuant to this
Agreement or otherwise required in connection herewith.
4.4. Deliveries by the Buyer. At the Closing, the Buyer will deliver
the following to the Seller:
(a) The Estimated Purchase Price and any amounts payable under
Section 3.4 by wire transfer of immediately available funds or such other means
as are agreed upon by the Seller and the Buyer;
(b) Opinions of counsel and certificates (as contemplated by Section
8.3) with respect to the Purchased Assets;
(c) The Instruments of Assumption with respect to the Assumed
Obligations, duly executed by the Buyer;
(d) All such other instruments of assumption as shall, in the
reasonable opinion of the Seller and its counsel, be necessary for the Buyer to
assume the Assumed Obligations related to the Purchased Assets in accordance
with this Agreement;
(e) All tax certificates applicable to the transfers contemplated by
this Agreement, including, without limitation, direct pay permits and tax
exemption certificates; and
(f) The Ancillary Agreements, duly executed by Buyer, and such other
agreements, documents, instruments and writings as are required to be delivered
by the Buyer at or prior to the Closing Date pursuant to this Agreement or
otherwise required in connection herewith.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows (all such
representations and warranties, other than in Sections 5.1, 5.2, 5.3, 5.4 and
5.5, being made to the best knowledge of the Seller after reasonable inquiry or
investigation).
5.1. Organization: Qualification. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has all requisite corporate power and authority to own, lease, and
operate its properties and to carry on its business as is now being conducted.
The Seller has heretofore delivered to the Buyer complete and correct copies of
its Certificate of Incorporation and Bylaws as currently in effect.
5.2. Authority Relative to this Agreement. The Seller has full
corporate power and authority to execute and deliver this Agreement and the
Ancillary Agreements and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Ancillary
Agreements and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by the Board of Directors of the
Seller and no other corporate proceedings on the part of the Seller are
necessary to authorize this Agreement or the Ancillary Agreements or to
consummate the transactions contemplated hereby and thereby. This Agreement and
the Ancillary Agreements have been duly and validly executed and delivered by
the Seller, and, assuming that this Agreement and the Ancillary Agreements
constitute valid and binding agreements of the Buyer, subject to the receipt of
the Seller Required Regulatory Approvals (as defined in Section 5.3) and the
Buyer Required Regulatory Approvals, constitute valid and binding agreements of
the Seller, enforceable against the Seller in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (the "Bankruptcy and Equity
Exception").
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5.3. Consents and Approvals; No Violation. (a) Other than obtaining
the Seller Required Regulatory Approvals and the Buyer Required Regulatory
Approvals, neither the execution and delivery of this Agreement and the
Ancillary Agreements by the Seller nor the sale by the Seller of the Purchased
Assets pursuant to this Agreement or performance under the Ancillary Agreements
will (i) conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws of the Seller, (ii) require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, except (x) where the failure to obtain
such consent, approval, authorization or permit, or to make such filing or
notification, would not, individually or in the aggregate, create a Material
Adverse Effect or (y) for those requirements which become applicable to the
Seller as a result of the specific regulatory status of the Buyer (or any of its
Affiliates) or as a result of any other facts that specifically relate to the
business or activities in which the Buyer (or any of its Affiliates) is or
proposes to be engaged; (iii) result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which the Seller is a party or by which the Seller,
or any of the Purchased Assets may be bound, except for such defaults (or rights
of termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained or which, in the aggregate, would not, individually
or in the aggregate, create a Material Adverse Effect; or (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Seller, or any of its assets, which violation, individually or in the aggregate,
would create a Material Adverse Effect.
(b) Except for (i) any required approvals under the Federal Power
Act, (ii) any required approvals from the PSC, (iii) the approval, if required,
of the SEC pursuant to the Holding Company Act and (iv) the filings by the
Seller and the Buyer required by the HSR Act and the expiration or earlier
termination of all waiting periods under the HSR Act, and (v) the approval, if
required, of the Nuclear Regulatory Commission (the "NRC") (the filings and
approvals referred to in clauses (i) through (v) are collectively referred to as
the "Seller Required Regulatory Approvals"), no declaration, filing or
registration with, or notice to,
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or authorization, consent or approval of any governmental or regulatory body or
authority is necessary for the consummation by the Seller of the transactions
contemplated hereby or by the Ancillary Agreements, other than such
declarations, filings, registrations, notices, authorizations, consents or
approvals which, if not obtained or made, will not, individually or in the
aggregate, create a Material Adverse Effect.
5.4. Reports. Since January 1, 1994, the Seller has filed or caused
to be filed with the SEC, the PSC and the FERC, as the case may be, all material
forms, statements, reports and documents (including all exhibits, amendments and
supplements thereto) required to be filed by them with respect to the business
and operations of the Seller as it relates to the Purchased Assets under each of
the Securities Act, the Exchange Act, New York public utility laws, the Federal
Power Act, the Holding Company Act and the respective rules and regulations
thereunder, all of which complied in all material respects with all applicable
requirements of the appropriate act and the rules and regulations thereunder in
effect on the date each such report was filed, and there are no material
misstatements or omissions in respect of such reports.
5.5. Company Reports; Financial Statements. The Seller has delivered
to the Buyer each registration statement, report, proxy statement or information
statement prepared by it since December 31, 1997 (the "Audit Date"), including
(i) the Company's Annual Report on Form 10-K for the year ended December 31,
1997, (ii) the Company's Quarterly Reports on Form 1O-Q for the periods ended
March 31, 1998 and June 30, 1998 and (iii) the Company's Reports on Form 8-K
dated February 18, 1998, June 30, 1998, July 2, 1998 and September 30, 1998,
each in the form (including exhibits, annexes and any amendments thereto) filed
with the SEC (collectively, including any such reports filed subsequent to the
date hereof and any amended reports, the "Company Reports"). As of their
respective dates (or, if amended, as of the date of such amendment), insofar as
the Company Reports relate to the Purchased Assets, the Company Reports did not,
and any Company Reports filed with the SEC subsequent to the date hereof will
not, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made, not misleading.
With
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respect to the financial information relating to the Purchased Assets, each of
the consolidated balance sheets included in or incorporated by reference into
the Company Reports (including any related notes and schedules) fairly presents,
or will fairly present, the consolidated financial position of the Company and
its subsidiaries as of its date and each of the consolidated statements of
income and of changes in financial position included in or incorporated by
reference into the Company Reports (including any related notes and schedules)
fairly presents, or will fairly present, the results of operations, retained
earnings and changes in financial position, as the case may be, of the Company
and its subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to notes and normal year-end audit adjustments that will
not be material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein.
5.6. Undisclosed Liabilities. Except as set forth in the Company
Reports, the Seller has no liability or obligation relating to the business or
operations of the Purchased Assets, secured or unsecured (whether absolute,
accrued, contingent or otherwise, and whether due or to become due), of a nature
required by generally accepted accounting principles as they have been
consistently applied by the Seller to be reflected in a corporate balance sheet
or disclosed in the notes thereto, which are not accrued or reserved against in
the Company Reports or disclosed in the notes thereto in accordance with
generally accepted accounting principles, except those which were incurred after
the date of the Company Reports.
5.7. Absence of Certain Changes or Events. Except (i) as set forth
in Schedule 5.7, or in the Company Reports, and (ii) as otherwise contemplated
by this Agreement, since June 30, 1998 there has not been: (a) any Material
Adverse Effect; (b) any damage, destruction or casualty loss, whether covered by
insurance or not, which, individually or in the aggregate, created a Material
Adverse Effect; (c) any entry into any agreement, commitment or transaction
(including, without limitation, any borrowing, capital expenditure or capital
financing) by the Seller, which is material to the business or operations of the
Purchased Assets; or (d) any change by the Seller, with respect to the Purchased
Assets, in accounting methods,
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principles or practices except as required or permitted by generally accepted
accounting principles.
5.8. Title and Related Matters. Except as set forth in Schedule 5.8
and except for Permitted Encumbrances, Seller holds an insurable fee simple
title to the Hydroelectric Real Property, free and clear of all Encumbrances.
Insurable fee simple title is that which is insurable under an ALTA Owner's
Policy (10-17-92) with New York Endorsement Modifications. Except as set forth
in Schedule 5.8 and except for Permitted Encumbrances, the Seller has good and
valid title to the other Purchased Assets which it purports to own that are
reflected in the Company Reports (other than those which have been disposed of
since the date thereof in the ordinary course of business), free and clear of
all Encumbrances.
5.9. Leases. There are no real property leases under which the
Seller is a lessee or lessor and which (x) are to be transferred and assigned to
the Buyer on the Closing Date and (y) (i) provide for annual payments of more
than $500,000 in the aggregate or $100,000 individually or (ii) are material to
the business, operations or financial condition of the Purchased Assets.
5.10. Insurance. Except as set forth in Schedule 5.10, all material
policies of fire, liability, worker's compensation and other forms of insurance
owned or held by the Seller and insuring the Purchased Assets are in full force
and effect, subject to the terms of each policy, all premiums with respect
thereto covering all periods up to and including the date as of which this
representation is being made have been paid (other than retroactive premiums
which may be payable with respect to comprehensive general liability and
worker's compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which was not
replaced on substantially similar terms prior to the date of such cancellation.
Except as described in Schedule 5.10, as of the date of this Agreement, the
Seller has not been refused any insurance with respect to the Purchased Assets
nor has such coverage been limited by any insurance carrier to which the Seller
has applied for any such insurance or with which it has carried insurance during
the last twelve months.
5.11. Environmental Matters. Except as disclosed in Schedule 5.11 or
in the Company Reports:
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(a) The Seller holds and has held, has complied with and is in
compliance with, all permits, license and governmental authorizations
("Environmental Permits") required for the Seller to conduct the business and
operations of the Purchased Assets under applicable Environmental Laws, and the
Seller otherwise has complied and is in compliance with applicable Environmental
Laws with respect to the business and operations of the Purchased Assets, except
for such failures to hold or comply with required Environmental Permits, or such
failures to be in compliance with applicable Environmental Laws, which,
individually or in the aggregate, are not reasonably likely to create a Material
Adverse Effect;
(b) The Seller has not received any written request for information,
or been notified that it is a potentially responsible party, under or that it
may have incurred liability under, or is allegedly in violation of, any
Environmental Law with respect to any on-site location, except for such
liability under such laws as would not be reasonably likely to, individually or
in the aggregate, create a Material Adverse Effect;
(c) The Seller has not entered into or agreed to any consent decree
or order, and is not subject to any outstanding judgment, decree, or judicial
order relating to compliance with any Environmental Law or to investigation or
cleanup of Hazardous Substances under any Environmental Law, except for such
consent decree or order, judgment, decree or judicial order that would not be
reasonably likely to, individually or in the aggregate, create a Material
Adverse Effect; and
(d) Except as set forth on Schedule 5.11, there has been no Release
of Hazardous Substances at, on, in, under, adjacent to or migrating from the
Purchased Assets that has given or would be reasonably likely to give rise to
any liabilities under Environmental Law, except for such liability under such
laws as would not be reasonably likely to, individually or in the aggregate,
create a Material Adverse Effect.
The representations and warranties made in this Section 5.11 and in
Section 5.18(b) are the Seller's exclusive representations and warranties
relating to environmental matters.
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5.12. Labor Matters. The Seller has previously delivered to the
Buyer a copy of the Collective Bargaining Agreement which is the only collective
bargaining agreement which relates to the business or operations of the
Purchased Assets. With respect to the business or operations of the Purchased
Assets, except to the extent set forth in Schedule 5.12 and except for such
matters as will not, individually or in the aggregate, create a Material Adverse
Effect (a) the Seller is in compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours; (b) the Seller has not received written notice of any unfair
labor practice complaint against the Seller pending before the National Labor
Relations Board; (c) there is no labor strike, slowdown or stoppage actually
pending or threatened against or affecting the Seller; (d) the Seller has not
received notice that any representation petition respecting the employees of the
Seller has been filed with the National Labor Relations Board; (e) no
arbitration proceeding arising out of or under the Collective Bargaining
Agreement is pending against the Seller and (f) the Seller has not experienced
any primary work stoppage in the past five years.
5.13. ERISA; Employee Benefit Plans. (a) All "employee benefit
plans", within the meaning of Section 3(3) of ERISA, covering employees employed
at the Purchased Assets ("Employees") (collectively, the "Benefit Plans") are
listed on Schedule 5.13. True and complete copies of all Benefit Plans and all
amendments thereto have been provided or made available to Buyer.
(b) All Benefit Plans are in substantial compliance with ERISA.
Seller has not engaged in a transaction with respect to any Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
could subject Seller to a tax or penalty imposed by either Section 4975 of the
Code or Section 502(i) of ERISA in an amount which would be material.
(c) No liability under Subtitle C or D of Title IV of ERISA has been
or is expected to be incurred by Seller with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by it, or the single-employer plan of
any entity which is considered one employer with Seller under Section 4001 of
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ERISA or Section 414 of the Code (an "ERISA Affiliate"). Seller has not incurred
and does not expect to incur any withdrawal liability with respect to a
multiemployer plan under Subtitle E of Title IV of ERISA. No notice of a
"reportable event", within the meaning of Section 4043 of ERISA, for which the
30-day reporting requirement has not been waived, has been required to be filed
for any Benefit Plan subject to Title IV of ERISA or by any ERISA Affiliate
within the 12-month period ending on the date hereof.
(d) Neither any Benefit Plan nor any single-employer plan of an
ERISA Affiliate has an "accumulated funding deficiency", within the meaning of
Section 412 of the Code or Section 302 of ERISA (whether or not waived), and no
ERISA Affiliate has an outstanding funding waiver. Seller has not provided, nor
is it required to provide, security to any Benefit Plan or to any
single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the
Code.
5.14. Real Estate. Schedule 5.14 contains a schedule of title
documents identifying the Hydroelectric Real Property. The Hydroelectric Real
Property is encumbered by the lien of a mortgage held by Bankers Trust Company,
as successor trustee under the Indenture which will be released or discharged at
the Closing. Schedule 5.14 also reflects that the Seller will be EXCEPTING AND
RESERVING to Seller fee simple title and/or a permanent easement over parcels of
land on which the transmission, distribution, substation and communication
facilities and related support equipment described or referred to in Section
2.2(d) are located, together with access to those facilities, and those fee
simple titles and easements identified as being reserved to Seller in the deed
or in Exhibit "A" to be annexed to the deed, together with access to those
parcels.
5.15. Condemnation. Except for the action with respect to the
Mechanicville facility, neither the whole nor any part of the Real Estate or any
other real property or rights leased, used or occupied by the Seller in
connection with the ownership or operation of the Purchased Assets is subject to
any pending suit for condemnation or other taking by any public authority or any
other Person, and no such condemnation or other taking has been threatened.
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5.16. Certain Contracts and Arrangements. (a) Except for (i)
contracts, agreements, personal property leases, commitments, understandings or
instruments which will expire prior to the Closing Date, and (ii) the Collective
Bargaining Agreement and (iii) the contracts or agreements listed in Schedule
5.16(a), the Seller is not a party to any contract, agreement, personal property
lease, commitment, understanding or instrument which (x) provides for annual
payments of more than $100,000 individually (or, together with all other such
contracts, agreements, personal property leases, commitments, understandings and
instruments, $500,000) or (y) is material to the business or operations of the
Purchased Assets.
(b) If the Site Agreement and Interconnection Agreement were in full
force and effect between Seller's generation business and the Seller's
transmission business on the date of this Agreement, (i) the Seller's generation
business would be in material compliance with the terms thereof, and (ii) except
as provided in the Interconnection Agreement, there is no event or condition
that would enable or require the Seller's transmission business to (x) notify
the Seller's generation business of the necessity of an addition to or
modification of the Interconnection Facilities, as defined in Section 1.10 of
the Interconnection Agreement, (y) operate and/or purchase from the Seller's
generation business any of the equipment or facilities specified in Section 20.0
of the Site Agreement, or (z) discontinue Interconnection Service as provided
for in the Interconnection Agreement.
5.17. Legal Proceedings, etc. Except as set forth in Schedule 5.17
or in the Company Reports, there are no claims, actions, proceedings or
investigations pending or threatened against or relating to the Seller before
any court, governmental or regulatory authority or body acting in an
adjudicative capacity, which, if adversely determined, individually or in the
aggregate, would create a Material Adverse Effect. Except as set forth in
Schedule 5.17 or in the Company Reports, the Seller is not subject to any
outstanding judgment, rule, order, writ, injunction or decree of any court,
governmental or regulatory authority which, individually or in the aggregate,
would create a Material Adverse Effect.
5.18. Permits. (a) The Seller has or will have by the Closing Date
all permits, subdivision approvals,
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variances, licenses, franchises and other governmental authorizations, consents
and approvals, other than with respect to Environmental Laws, necessary to
operate the business of the Purchased Assets as presently conducted
(collectively, "Permits"), except where the failure to have such Permits would
not, individually or in the aggregate, create a Material Adverse Effect. The
Seller has not received any written notification that it is in violation of any
of such Permits, or any law, statute, order, rule, regulation, ordinance or
judgment of any governmental or regulatory body or authority applicable to it,
except for notifications of violations which would not, individually or in the
aggregate, create a Material Adverse Effect. The Seller is in compliance with
all Permits, laws, statutes, orders, rules, regulations, ordinances, or
judgments of any governmental or regulatory body or authority applicable to it,
except for violations which, individually or in the aggregate, do not create a
Material Adverse Effect.
(b) Schedule 5.18(b) sets forth all material Permits and
Environmental Permits.
5.19. Regulation as a Utility. The Seller is a public utility
company within the meaning of the Holding Company Act. The Seller is not subject
to regulation as a public utility or public service company (or similar
designation) by the United States, any state of the United States, any foreign
country or any municipality or any political subdivision of the foregoing.
5.20. Tax Matters. With respect to the Purchased Assets and trades
or businesses associated with the Purchased Assets (i) all Tax Returns required
to be filed, other than those Tax Returns the failure of which to file would not
create a Material Adverse Effect, have been filed, and (ii) all material Taxes
shown to be due on such Tax Returns have been paid in full.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN
THIS ARTICLE V, THE PURCHASED ASSETS ARE BEING SOLD AND TRANSFERRED "AS IS,
WHERE IS," AND THE SELLER IS NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING SUCH PURCHASED
ASSETS, INCLUDING, IN PARTICULAR, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR
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PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows (all such
representations and warranties, except those regarding the Buyer, being made to
the best knowledge of the Buyer after reasonable inquiry or investigation)
6.1. Organization. The Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite partnership power and authority to own, lease and
operate its properties and to carry on its business as is now being conducted.
The Buyer has heretofore delivered to the Seller complete and correct copies of
its Certificate of Limited Partnership and Limited partnership Agreement (or
other similar governing documents), as currently in effect.
6.2. Authority Relative to this Agreement. The Buyer has full
partnership power and authority to execute and deliver this Agreement and the
Ancillary Agreements and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Ancillary
Agreements and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary partnership
action and no other partnership proceedings on the part of the Buyer are
necessary to authorize this Agreement and the Ancillary Agreements or to
consummate the transaction contemplated hereby or thereby. This Agreement and
the Ancillary Agreements have been duly and validly executed and delivered by
the Buyer, and assuming that this Agreement and the Ancillary Agreements
constitute valid and binding agreements of the Seller, this Agreement and the
Ancillary Agreements, subject to the receipt of the Buyer Required Regulatory
Approvals and the Seller Required Regulatory Approvals, constitute valid and
binding agreements of the Buyer, enforceable against the Buyer in accordance
with their terms, subject to the Bankruptcy and Equity Exception.
6.3. Consents and Approvals; No Violation. (a) Other than obtaining
the Buyer Required Regulatory
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Approvals and the Seller Required Regulatory Approvals, neither the execution
and delivery of this Agreement and the Ancillary Agreements by the Buyer nor
the purchase by the Buyer of the Purchased Assets pursuant to this Agreement or
performance under the Ancillary Agreements will (i) conflict with or result in
any breach of any provision of the Certificate of Limited Partnership or Limited
Partnership Agreement (or other similar governing documents) of the Buyer, (ii)
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, (iii) result in a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, agreement, lease or other instrument or obligation to which the Buyer
or any of its subsidiaries is a party or by which any of their respective assets
may be bound, except for such defaults (or rights of termination, cancellation
or acceleration) as to which requisite waivers or consents have been obtained.
(b) Except for (i) qualification of the Buyer as an exempt wholesale
generator under the Energy Policy Act of 1992, without restriction, including no
restriction on sales to Affiliates, (ii) authorization to sell power under
Section 205 of the FPA, including (Al authorizations required to implement sales
under the Ancillary Agreements, and (B) market-based rate approval, (iii)
approval under Section 203 of the FPA to transfer contracts and other
jurisdictional assets, (iv) approval by FERC under Part I of the FPA of the
transfer of FERC project licenses related to, and necessary to operate, the
Hydroelectric Assets as currently operated, (v) any necessary PSC approvals,
(vi) the filings by the Buyer and the Seller required by the HSR Act and (vii)
approval by FERC of the Interconnection Agreement and the Transition Power
Agreement and other Ancillary Agreements filed with the FERC (the filings and
approvals referred to in clauses (i) through (vii) are collectively referred to
as the "Buyer Required Regulatory Approvals"), no declaration, filing or
registration with, or notice to, or authorization, consent or approval of any
governmental or regulatory body or authority is necessary for the consummation
by the Buyer of the transactions contemplated hereby or by the Ancillary
Agreements.
6.4. Availability of Funds. At the Closing the Buyer will have
sufficient funds to pay the Purchase Price.
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ARTICLE VII
COVENANTS OF THE PARTIES
7.1. Conduct of Business Relating to the Purchased Assets. (a)
Except as described in Schedule 7.1, during the period from the date of this
Agreement to the Closing Date, the Seller will operate the Purchased Assets and
related businesses in the usual, regular and ordinary course consistent with
Good Industry Practice and shall use all commercially reasonable efforts to
preserve intact the purchased Assets and the businesses related thereto, and
endeavor to preserve the goodwill and relationships with customers, suppliers
and others having business dealings with them. Without limiting the generality
of the foregoing, and, except as contemplated in this Agreement or as described
in Schedule 7.1, prior to the Closing Date, without the prior written consent of
the Buyer, the Seller will not with respect to the Purchased Assets:
(i) (x) except for (1) Permitted Encumbrances and (2) indebtedness
constituting Excluded Liabilities that does not create an Encumbrance on
the purchased Assets, create, incur, assume or suffer to exist any
indebtedness for borrowed money (including obligations in respect of
capital leases); or (y) assume, guarantee, endorse or otherwise become
directly liable or responsible (whether directly or indirectly,
contingently or otherwise) for the obligations of any Person;
(ii) make any material change in the levels of fuel inventory and
stores inventory or the numbers of owned or leased vehicles customarily
maintained by the Seller with respect to the Purchased Assets, other than
consistent with Good Industry Practice;
(iii) sell, lease (as lessor), transfer or otherwise dispose of, any
of the Purchased Assets, other than assets used, consumed or replaced in
the ordinary course of business consistent with Good Industry Practice,
including the practice of harvesting timber;
(iv) terminate, extend or otherwise amend any real property lease to
the extent any such extension or amendment would require the lease to be
disclosed pursuant to Section 5.9;
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(v) execute, enter into, terminate or otherwise amend (x) any of the
Permits, other than routine renewals or non-material modifications or
amendments or (y) any other agreement, order, decree or judgment relating
to the current or any new permit;
(vi) enter into any power sales commitments having a term that
extends beyond June 30, 1999 or such other date that the parties mutually
agree to be the date on which the Closing is expected to occur;
(vii) with respect to the Purchased Assets and related businesses,
(x) amend or cancel any liability or casualty insurance policies related
thereto, (y) compromise, settle, withdraw, release or xxxxx any claims
made or accruing thereunder or (z) fail to maintain by self insurance or
with financially responsible insurance companies insurance in such amounts
and against such risks and losses as was in place as of the date of this
Agreement for such assets and businesses;
(viii) enter into any commitment or contract for goods or services
not addressed in clauses (i) through (vii) above that will be delivered or
provided after June 30, 1999 or such other date that the parties mutually
agree to be the date on which the Closing is expected to occur, in an
amount greater than $100,000 individually or $500,000 in the aggregate for
all such commitments and contracts:
(ix) enter into any written or oral contract, agreement, commitment
or arrangement with respect to any of the transactions set forth in the
foregoing paragraphs (i) through (viii).
(b) Notwithstanding anything in Section 7.1(a) to the contrary, the
Seller may, in its sole discretion, make (i) Maintenance Expenditures and
Capital Expenditures consistent with the timing (as to the year incurred) and
amount of such expenditures as set forth in Schedule 7.1, (ii) at the Seller's
expense, such other maintenance and capital expenditures as the Seller deems
necessary and (iii) Schaghticoke Pipeline Expenditures, provided that all such
expenditures, and the work related thereto, shall be effected in accordance with
Good Industry Practice.
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(c) Between the date of this Agreement and the Closing Date, at the
sole responsibility and expense of the Buyer, the Seller will permit designated
employees or representatives ("Observers") of the Buyer to observe all
operations of the Seller that relate to the Purchased Assets and related
businesses, and such observation shall be permitted on a cooperative basis in
the presence of personnel of the Seller during normal business hours of the
Seller; provided, however, that such Observers and their actions shall not
unreasonably interfere with the operation of the Seller's business. The Buyer's
Observers may recommend or suggest actions be taken or not be taken by the
Seller; provided, however, that the Seller will be under no obligation to follow
any such recommendations or suggestions and the Seller shall be entitled,
subject to this Agreement, to conduct its business in accordance with its own
judgment and discretion. The Buyer's Observers shall have no power to bind or
make agreements on behalf of the Seller, to conduct discussions with or make
representations to third parties on behalf of the Seller, or to issue
instructions to or direct or exercise authority over the Seller or any of the
Seller's officers, employees, advisors or agents.
7.2. Access to Information. (a) Between the date of this Agreement
and the Closing Date, the Seller will, during ordinary business hours and upon
reasonable notice (i) give the Buyer and the Buyer Representatives reasonable
access to all books, records, plants, offices and other facilities and
properties constituting the Purchased Assets to which the Buyer is not denied
access by law; (ii) permit the Buyer to make such reasonable inspections thereof
as the Buyer may reasonably request; (iii) furnish the Buyer with such financial
and operating data and other information with respect to the Purchased Assets as
the Buyer may from time to time reasonably request, provided, however, that the
Seller will not be required to create special reports or perform any studies;
(iv) furnish the Buyer a copy of each material report, schedule or other
document filed or received by it with respect to the Purchased Assets with or
from the SEC, PSC or FERC; provided, however, that (A) any such investigation
shall be conducted in such manner as not to interfere with the operation of the
Purchased Assets, (B) the Seller shall not be required to take any action which
would constitute a waiver of the attorney-client privilege and (C) the Seller
need not supply the Buyer with any information which the Seller is under a legal
obligation not to supply. Notwithstanding anything in this Section 7.2 to
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the contrary, (i) the Seller will only furnish or provide such access to
Transferring Employee Records and personnel and medical records as is required
by law, legal process or subpoena and (ii) the Buyer shall not have the right to
perform or conduct any environmental sampling or testing at, in, on, or
underneath the Purchased Assets.
(b) All information furnished to or obtained by the Buyer and the
Buyer Representatives pursuant to this Section 7.2 or the Ancillary Agreements
shall be subject to the provisions of the Confidentiality Agreement and shall be
treated as "Proprietary Information" (as defined in the Confidentiality
Agreement).
(c) For a period of six years after the Closing Date, each party and
their representatives shall have reasonable access to all of the books and
records of the Purchased Assets, including all Transferring Employee Records, in
the possession of the other party to the extent that such access may reasonably
be required by such party. Such access shall be afforded by the party or parties
in possession of such books and records upon receipt of reasonable advance
notice and during normal business hours. The party or parties exercising this
right of access shall be solely responsible for any costs or expenses incurred
by it or them pursuant to this Section 7.2(c). If the party or parties in
possession of such books and records shall desire to dispose of any such books
and records upon or prior to the expiration of such six-year period, such party
or parties shall, prior to such disposition, give the other party or parties a
reasonable opportunity at such other party's or parties' expense, to segregate
and remove such books and records as such other party or parties may select.
During such six-year period, the Seller and its representatives and the
respondent parties and their representatives in the real property tax litigation
listed on Schedule 2.2(h) shall have physical access during normal business
hours to the Purchased Assets to the extent such access may reasonably be
required in connection with that litigation.
(d) The Seller agrees not to release any Person (other than the
Buyer) from any confidentiality agreement now existing with respect to the
Purchased Assets, or waive or amend any provision thereof.
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(e) Notwithstanding the terms of the Confidentiality Agreement and
Section 7.2(b) above, the parties agree that prior to the Closing the Buyer may,
if reasonably necessary, reveal or disclose Proprietary Information to any other
Persons in order to obtain financing, and for purposes of risk management of or
with respect to the Purchased Assets, and to such Persons with whom the Buyer
expects it may have business dealings regarding the Purchased Assets from and
after the Closing Date, and, to the extent that Seller consents, which consent
shall not be unreasonably withheld, existing and potential customers and
suppliers.
(f) Except as required by law, unless otherwise agreed to in writing
by the Buyer, for a period commencing on the Closing Date and terminating three
years after such date the Seller shall keep all Proprietary Information
confidential and (i) shall not disclose or reveal any Proprietary Information to
any Person other than "Seller's Representatives" (as defined below) who are
actively and directly participating in the transactions contemplated hereby or
who otherwise need to know the Proprietary Information for such purpose and
shall cause those Persons to observe the terms of this Section 7.2(f) and (ii)
shall not use Proprietary Information for any purpose other than consistent with
the terms of this Agreement. The Seller shall continue to hold all Proprietary
Information according to the same internal procedures and with the same degree
of care regarding its secrecy and confidentiality as currently applicable
thereto. The Seller shall notify the Buyer of any unauthorized disclosure to
third parties that it discovers, and shall endeavor to prevent any further such
disclosures. The Seller shall be responsible for any breach of the terms of this
Section 7.2(f) by the Seller or the Seller's Representatives.
After the Closing Date, in the event that the Seller is requested
pursuant to, or required by, applicable law or regulation or by legal process to
disclose any Proprietary Information, or any other information concerning the
Purchased Assets, or the transactions contemplated hereby, the Seller shall
provide the Buyer with prompt notice of such request or requirement in order to
enable the Buyer to seek an appropriate protective order or other remedy, to
consult with the Seller with respect to taking steps to resist or narrow the
scope of such request or legal process, or to waive compliance, in whole or in
part, with the terms of this Section 7.2(f). The Seller agrees not to
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oppose any action by the Buyer to obtain a protective order or other appropriate
remedy after the Closing Date. In the event that no such protective order or
other remedy is obtained, or that the Buyer waives compliance with the terms of
this Section 7.2(f), the Seller shall furnish only that portion of the
Proprietary Information which the Seller is advised by counsel is legally
required. In any such event the Seller shall use its reasonable best efforts to
ensure that all Proprietary Information and other information that is so
disclosed will be accorded confidential treatment.
7.3. Expenses. Except to the extent specifically provided herein,
whether or not the transactions contemplated hereby are consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such costs and
expenses. Any title insurance obtained by the Buyer shall be at the Buyer's sole
expense.
7.4. Further Assurances. (a) Subject to the terms and conditions of
this Agreement, each of the parties hereto will use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the sale of the Purchased Assets pursuant to this
Agreement, including without limitation using its best efforts to ensure
satisfaction of the conditions precedent to each party's obligations hereunder.
Notwithstanding anything in the previous sentence to the contrary, the Seller
and the Buyer shall use commercially reasonable efforts to obtain all Permits
and Environmental Permits necessary for the Buyer to operate the Purchased
Assets. Neither of the parties hereto will, without prior written consent of the
other party, take or fail to take any action, which would reasonably be expected
to prevent or materially impede, interfere with or delay the transactions
contemplated by this Agreement. From time to time after the date hereof, without
further consideration, the Seller will, at its own expense, execute and deliver
such documents to the Buyer as the Buyer may reasonably request in order to vest
more effectively in the Buyer the Seller's title to the Purchased Assets subject
to Permitted Encumbrances and Schedule 5.8. From time to time after the date
hereof, the Buyer will, at its own expense, execute and deliver such documents
to the Seller as the Seller may reasonably request in order to consummate more
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effectively the sale of the Purchased Assets pursuant to this Agreement.
(b) In the event that any Purchased Asset shall not have been
conveyed to the Buyer at the Closing, the Seller shall use its best efforts to
convey such asset to the Buyer as promptly as is practicable after the Closing.
In the event that any Easement necessary or desirable for the Seller's ongoing
operations shall not have been retained by the Seller after the Closing, the
Buyer shall use its best efforts to grant such Easement to the Seller as
promptly as is practicable after the Closing; provided that the same does not
materially interfere with Buyer's use of the property or materially adversely
affect the value of such property.
(c) To the extent that the Seller's rights under any contract,
agreement, lease or license included in the Purchased Assets (each, a "Seller's
Agreement") may not be assigned without the consent of another Person and such
consent has not been obtained, this Agreement shall not constitute an agreement
to assign the same if an attempted assignment would constitute a breach thereof
or be unlawful, and the Seller, at its expense, shall use all commercially
reasonable efforts to obtain any such required consent(s) as promptly as
possible. The Seller and the Buyer agree that if any consent to an assignment of
any Seller's Agreement shall not be obtained or if any attempted assignment
would be ineffective or would impair the Buyer's rights and obligations under
the Seller's Agreement in question so that the Buyer would not in effect acquire
the benefit of all such rights and obligations, the Seller, to the maximum
extent permitted by law and such Seller's Agreement, shall after the Closing,
appoint the Buyer to be the Seller's representative and agent with respect to
such Seller's Agreement, and the Seller shall, to the maximum extent permitted
by law and such Seller's Agreement, enter into such reasonable arrangements with
the Buyer as are necessary to provide the Buyer with the benefits and
obligations of such Seller's Agreement. The Seller and the Buyer shall cooperate
and shall each use their commercially reasonable efforts after the Closing to
obtain an assignment of such Seller's Agreement to the Buyer.
7.5. Public Statements. The parties shall consult with each other
prior to issuing any public announcement, statement or other disclosure with
respect to
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this Agreement or the transactions contemplated hereby and shall not issue any
such public announcement, statement or other disclosure prior to such
consultation, except as may be required by law and except that the parties may
make public announcements, statements or other disclosures with respect to this
Agreement and the transactions contemplated hereby to the extent and under the
circumstances in which the parties are expressly permitted by the
Confidentiality Agreement to make disclosures of "Proprietary Information" (as
defined in the Confidentiality Agreement).
7.6. Consents and Approvals. (a) The Seller and the Buyer shall each
file or cause to be filed with the Federal Trade Commission and the United
States Department of Justice any notifications required to be filed under the
HSR Act and the rules and regulations promulgated thereunder with respect to the
transactions contemplated hereby. The parties shall consult with each other as
to the appropriate time of filing such notifications and shall use their best
efforts to make such filings at the agreed upon time, to respond promptly to any
requests for additional information made by either of such agencies, and to
cause the waiting periods under the HSR Act to terminate or expire at the
earliest possible date after the date of filing.
(b) The Seller and the Buyer shall cooperate with each other and (i)
promptly prepare and file all necessary documentation, (ii) effect all necessary
applications, notices, petitions and filings and execute all agreements and
documents, (iii) use all commercially reasonable efforts to obtain all necessary
consents, approvals and authorizations of all governmental bodies and (iv) use
all commercially reasonable efforts to obtain all necessary consents, approvals
and authorizations of all other parties, in the case of each of the foregoing
clauses (i), (ii), (iii) and (iv), necessary or advisable to consummate the
transactions contemplated by this Agreement (including, without limitation, the
Seller Required Regulatory Approvals and the Buyer Required Regulatory
Approvals) or required by the terms of any note, bond, mortgage, indenture, deed
of trust, license, franchise, permit, concession, contract, lease or other
instrument to which the Seller or the Buyer is a party or by which either of
them is bound. Each of the Seller and the Buyer shall have the right to review
in advance all characterizations of the information relating to the transactions
contemplated by this Agreement which appear
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in any filing made in connection with the transactions contemplated hereby.
(c) The Seller and the Buyer shall cooperate with each other and
promptly prepare and file notifications with, and request tax clearances from,
state and local taxing authorities in jurisdictions in which a portion of the
Purchase Price may be required to be withheld or in which the Buyer would
otherwise be liable for any Tax liabilities of the Seller pursuant to such state
and local Tax law.
7.7. Fees and Commissions. The Seller and the Buyer each represent
and warrant to the other that, except for Xxxxxxx Xxxxx & Co. and Xxxxxxxxx
Lufkin & Xxxxxxxx Securities Corporation, which are acting for and at the
expense of the Seller, no broker, finder or other Person is entitled to any
brokerage fees, commissions or finder's fees in connection with the transaction
contemplated hereby by reason of any action taken by the party making such
representation.
7.8. Tax Matters. (a) Other than the New York Real Estate Transfer
Tax (the "New York Tax"), which is the Seller's obligation, the Buyer shall be
solely liable for and shall pay all applicable sales, transfer, use, stamp,
conveyance, value added, recording, excise, New York Petroleum Business Tax and
other similar Taxes, if any, together with all recording or filing fees,
notarial fees and other similar costs of Closing, that may be imposed upon, or
payable, collectible or incurred in connection with the transfer of the
Purchased Assets to the Buyer or otherwise as a result of the transfer of the
Purchased Assets ("Transfer Taxes"). The Buyer shall release, indemnify and hold
harmless Seller with respect to all Transfer Taxes, other than the New York Tax.
The Buyer, at its own expense, will file, to the extent required by applicable
law, all necessary Tax Returns and other documentation with respect to all such
Transfer Taxes, and if required by applicable law, the Seller will join in the
execution of any such Tax Returns or other documentation.
(b) With respect to Taxes to be prorated in accordance with Section
3.4 of this Agreement only, the Buyer shall prepare and timely file all Tax
Returns required to be filed after the Closing with respect to the Purchased
Assets, if any, and shall duly and timely pay all such Taxes shown to be due on
such Tax Returns. The Buyer's prepara-
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tion of any such Tax Returns shall be subject to the Seller's approval, which
approval shall not be unreasonably withheld. The Buyer shall make such Tax
Returns available for the Seller's review and approval not later than fifteen
(15) Business Days prior to the due date for filing such Tax Return. Within ten
(10) Business Days after receipt of such Tax Return, the Seller shall pay to the
Buyer its proportionate share of the amount shown as due on such Tax Return
determined in accordance with Section 3.4 of this Agreement.
(c) Each of the Buyer and the Seller shall provide the other with
such assistance as may reasonably be requested by the other party in connection
with the preparation of any Tax Return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings relating to
liability for Taxes, and each will retain and provide the requesting party with
any records or information that may be relevant to such return, audit, or
examination, proceedings or determination. Any information obtained pursuant to
this Section 7.8(c) or pursuant to any other Section hereof providing for the
sharing of information or review of any Tax Return or other schedule relating to
Taxes shall be kept confidential by the parties hereto.
(d) The Buyer shall remit to the Seller any refund or credit of
Taxes with respect to the Purchased Assets to the extent such Taxes are
attributable to any taxable period, or portion thereof, ending on or before the
Closing Date.
(e) The Buyer shall pay to the Seller at Closing the portion of any
Taxes previously paid by the Seller with respect to the Purchased Assets to the
extent such Taxes are, pursuant to Section 3.4, properly allocable to a taxable
period, or portion thereof, beginning after the Closing Date.
(f) The Buyer shall prepare and timely file all real property tax
administrative and judicial proceedings which must be filed pursuant to any
existing settlement agreements or those which are negotiated with respect to the
litigation on Schedule 2.2(h). The Seller will provide all reasonable and
necessary assistance in preparing such filings.
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(g) The provisions of this Section 7.8 are subject to Section 7.16
with respect to real property Taxes.
7.9. Supplements to Schedules. Prior to the Closing Date, the Seller
and the Buyer shall supplement or amend the Schedules required by Section 2.4,
Article V and Article VI, as the case may be, with respect to any matter
relating to the Purchased Assets, hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedules. No supplement or amendment of any Schedule
made pursuant to this Section shall be deemed to cure any breach of any
representation or warranty made in this Agreement unless the parties agree
thereto in writing.
7.10. Employees. (a) The Buyer and the Seller agree that the Buyer
shall be a successor within the meaning of the Collective Bargaining Agreement.
The Buyer agrees to offer employment to employees of the Seller's workforce
employed at, or whose work responsibilities involve principally the operation
of, the Purchased Assets (approximately 54 management and 145 bargaining unit
employees). Each person who becomes employed by the Buyer pursuant to this
Section 7.10 shall be referred to herein as a "Buyer Employee." The employment
of employees who are represented by Local No. 97 of the IBEW shall continue in
accordance with the Collective Bargaining Agreement.
(b) The Seller has made available to the Buyer the Collective
Bargaining Agreement. With respect to Buyer Employees who are included in the
collective bargaining unit covered by the Collective Bargaining Agreement ("IBEW
Employees"), on the Closing Date, the Buyer will assume the Collective
Bargaining Agreement as it relates to such Buyer Employees employed at the
purchased Assets and shall agree and become party to and bound by the terms and
conditions of the Collective Bargaining Agreement.
(c) For the period commencing on the Closing Date and ending 12
months thereafter, and except as otherwise provided in Section 7.10(i) or as the
Buyer and any Buyer Employee may otherwise agree, the Buyer shall provide all
Buyer Employees who are not IBEW Employees ("Non-Union Employees") with total
compensation (including, without limitation, base pay, authorized overtime,
bonuses, and benefits contained in the employee benefit plans, programs and
fringe benefit arrangements (excluding education
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reimbursement)) which is, in the aggregate, at least equivalent in value to the
Non-Union Employee's total compensation, which shall be based upon (x) such
employee's existing individual base pay, (y) authorized overtime, if applicable,
and (z) an average bonus and benefit component for such employee's salary plan
level, as consistently applied by the Seller, apportioned according to such
employee's base pay. The Buyer shall also pay reasonable relocation costs with
respect to any Non-Union Employees who shall relocate at the Buyer's request.
(d) As of the Closing Date, all Non-Union Employees shall cease to
participate in the employee welfare benefit plans (as such term is defined in
ERISA) maintained or sponsored by the Seller or its Affiliates (the "Prior
Welfare Plans") and shall, if applicable, commence to participate in welfare
benefit plans of the Buyer or its Affiliates (the "Replacement Welfare Plans").
The Buyer shall (i) waive all limitations as to pre-existing condition
exclusions and waiting periods with respect to Non-Union Employees under the
Replacement Welfare Plans, other than, but only to the extent of, limitations or
waiting periods that were in effect with respect to such employees under the
Prior Welfare Plans and that have not been satisfied as of the Closing Date, and
(ii) provide each Non-Union Employee with credit for any co-payments and
deductibles paid prior to the Closing Date in satisfying any deductible or
out-of-pocket requirements under the Replacement Welfare Plans (on a pro-rata
basis in the event of a difference in plan years).
(e) Non-Union Employees shall be given credit for all service with
the Seller and its Affiliates under all employee benefit plans, programs, and
fringe benefit plans, programs, and fringe benefit arrangements of the Buyer
("Buyer Benefit Plans") in which they become participants. The service credit
given is for purposes of eligibility, vesting and service related level of
benefits, but not benefit accrual (except as provided in the following
sentence). Except as otherwise provided in Section 7.10(i), for purposes of
benefit accrual, Non-Union Employees shall be given credit for all service with
the Seller and its Affiliates under all Buyer Benefit Plans, but the ultimate
benefits provided under the Buyer Benefit Plans may be offset by the
corresponding benefits previously provided by the Seller or benefit plans of the
Seller, or by the corresponding benefits accrued under the benefit plans of
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the Seller or otherwise committed to be provided by the Seller in the future.
(f) To the extent allowable by law, the Buyer shall take any and all
necessary action to cause the trustee of a defined contribution plan of the
Buyer or one of its Affiliates, if requested to do so by a Non-Union Employee,
to accept a direct "rollover" of all or a portion of said employee's
distribution (excluding securities) from the Seller's Represented and
Non-Represented Employees Savings Fund Plans or the defined benefit Pension
Plan.
(g) In addition to the Buyer's obligations with respect to the
Employee Transition Cost set forth in Section 4.2, the Buyer shall pay to each
Non-Union Employee whose employment is terminated by the Buyer or one of its
Affiliates within eighteen months of the Closing Date a severance benefit
package equivalent to that which would have been provided to such individual
upon such termination by the Seller under the Niagara Mohawk Power Corporation
Involuntary Severance Plan as in effect on the Closing Date had such individual
remained continuously employed by the Seller or its Affiliates and had been
eligible for, and entitled to benefits under, such plan on the date of such
termination.
(h) The Buyer and the Seller do not anticipate the issuance of any
notices pursuant to the WARN Act. Notwithstanding the foregoing, the Seller
agrees to timely perform and discharge all requirements under the WARN Act and
under applicable state and local laws and regulations for the notification of
its employees arising from the sale of the purchased Assets to the Buyer up to
and including the Closing Date for those employees who will become Buyer
Employees effective as of the Closing Date. After the Closing Date, the Buyer
shall be responsible for performing and discharging all requirements under the
WARN Act and under applicable state and local laws and regulations for the
notification of its employees with respect to the Purchased Assets.
(i) Effective as of the Closing Date, the Buyer shall cause to be
established a defined benefit pension plan for the benefit of the Buyer
Employees (the "Buyer's Defined Benefit Plan"). The Buyer's Defined Benefit Plan
shall have the same terms as the Niagara Mohawk Pension Plan as of the Closing
Date, and the Buyer agrees to maintain such terms
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for Non-Union Employees for a period of at least seven (7) years after the
Closing Date (provided, however, that if changes in the law require any such
terms to be modified, the Buyer may change such terms to the extent necessary to
comply with such laws). The Buyer Employees shall be given credit in the Buyer's
Defined Benefit Plan for all service with and compensation from the Seller and
its Affiliates as if it were service with and compensation from the Buyer for
purposes of determining eligibility for benefits, the amount of any benefits or
benefit accruals, vesting, and service related levels of benefits under the
Buyer's Defined Benefit Plan.
In connection with the foregoing, the following actions shall be
taken as of the Closing Date:
(i) At the time specified in subparagraph (iv) below, the Seller
shall cause to be transferred to the Buyer's Defined Benefit Plan assets
equal to the Projected Benefit Obligation ("PBO"), as determined in
accordance with the 1999 actuarial assumptions as set forth in the 1998
year-end disclosure of the Seller under Financial Accounting Standards
Board Statement 87 (the "Assumptions"), attributable to the Buyer
Employees as of the Closing Date, together with interest at an annual rate
that is equivalent to the discount rate set forth in the Assumptions for
the period from the Closing Date to the date of the actual transfer of
assets and adjusted for benefit payments under the Niagara Mohawk Pension
Plan made pursuant to subparagraph (v) below; provided, however, that if
the Seller is unable to transfer an amount equal to the PBO, then: (A) the
Seller shall transfer an amount equal to the accumulated benefit
obligation ("ABO"), whether or not vested, as determined in accordance
with the Assumptions, and which is attributable to the Buyer Employees as
of the Closing Date; and (B) the Seller shall pay to the Buyer in cash the
amount of the difference between the PBO and the ABO. The transfer of
either the PBO or ABO amount under this subparagraph (i) shall be made in
accordance with Section 414(l) of the Code and Treasury Regulation
Section 1.414(1)-i.
(ii) The PBO and the ABO shall be calculated in accordance with
Assumptions, and using an annual interest rate credit of 5.2%.
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(iii) All assets transferred under subparagraph (i) shall be
transferred in cash, or in marketable securities that are reasonably
acceptable to the Buyer.
(iv) Within 45 days after the Closing Date, the Seller shall file or
cause to be filed any Forms 5310-A that may be required to be submitted to
the IRS in connection with the transfer described in subparagraph (i). The
transfer described in subparagraph (i) shall be made as soon as
practicable following the determination of the amount described in
subparagraph (i), but in no event prior to the thirtieth (30th) day
following the filing of such Forms 5310-A with the IRS or, in the event
that the IRS, the Pension Benefit Guaranty Corporation ("PBGC") or any
other Governmental Entity raises any objections to the transfer, the date
as of which the IRS, the PBGC or other Governmental Entity withdraws such
objections or is satisfied that the terms of the transfer have been
modified to the extent necessary to meet such objections.
(v) Upon completion of the transfer under subparagraph (i), all
benefit payments from the Buyer's Defined Benefit Plan shall be the
responsibility of the Buyer. Pending completion of the transfer under
subparagraph (i), any benefits that are payable to the Buyer Employees
under the Buyer's Defined Benefit Plan shall be paid or continue to be
paid out of the Niagara Mohawk Pension Plan, and the amount to be
transferred under subparagraph (i) shall be reduced by the amount of such
payments. Pending the completion of such transfer, the Seller will
cooperate with the Buyer with respect to plan administration, including
the disbursement of benefits.
The Seller agrees that it shall use its reasonable best efforts to
accomplish the transfer of assets described in subparagraph (i) of this Section
7.10(i); provided, however, that if the Seller determines in good faith that it
is unable to make such a transfer, then, notwithstanding the language in this
Section 7.10(i), the Seller and the Buyer agree to negotiate a mutually
agreeable resolution of the defined benefits issues in this Section 7.10(i) that
provides the Buyer and the Seller the economic equivalent of Section 7.10(i)
above.
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7.11. Risk of Loss. (a) Except with respect to those contracts and
commitments entered into pursuant to Section 7.1(d) (iii), from the date hereof
through the Closing Date, all risk of loss or damage to the property included in
the Purchased Assets shall be borne by the Seller.
(b) If, before the Closing Date, all or any portion of the Purchased
Assets is taken by eminent domain or is the subject of a pending or (to the
knowledge of the Seller) contemplated taking which has not been consummated, the
Seller shall notify the Buyer promptly in writing of such fact. If the fair
market value of the Purchased Assets that are the subject of, or are adversely
affected by, such taking exceeds $1,000,000, (as estimated in good faith by the
Buyer based on the parties' allocation (or proposed allocation) of the Purchase
Price under Section 3.3) but such taking shall not result in a Material Adverse
Effect, the Buyer and the Seller shall agree on an appropriate adjustment to the
Purchase Price. If such taking would create a Material Adverse Effect, the Buyer
and the Seller shall negotiate in good faith to settle the loss resulting from
such taking (including, without limitation, by making a fair and equitable
adjustment to the Purchase Price) and, upon such settlement, consummate the
transaction contemplated by this Agreement pursuant to the terms of this
Agreement. If no such settlement is reached within sixty (60) days after the
Seller has notified the Buyer of such taking, the Buyer or the Seller may
terminate this Agreement pursuant to Section 10.1(f).
(c) If, before the Closing Date, all or any material portion of the
Purchased Assets is damaged or destroyed by fire or other Casualty, the Seller
shall notify the Buyer promptly in writing of such fact. If such damage or
destruction is reasonably estimated by Buyer to cost in excess of $1,000,000 to
repair or replace the Purchased Assets that are the subject of such Casualty but
such damage or destruction shall not result in a Material Adverse Effect, the
Buyer and the Seller shall agree on an appropriate adjustment to the Purchase
Price. If such damage or destruction would create a Material Adverse Effect and
the Seller has not notified the Buyer of its intention to cure such damage or
destruction within fifteen (15) days after its occurrence, the Buyer and the
Seller shall negotiate in good faith to settle the loss resulting from such
Casualty (including, without limitation, by making a
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fair and equitable adjustment to the Purchase Price) and, upon such settlement,
consummate the transactions contemplated by this Agreement pursuant to the terms
of this Agreement. If no such settlement is reached within sixty (60) days after
the Seller has notified the Buyer of such casualty, the Buyer or the Seller may
terminate this Agreement pursuant to Section 10.1(f).
7.12. Tax Clearance Certificates. The Buyer shall use reasonable
efforts to provide or obtain from any taxing authority any certificate, permit,
license, or other document necessary to mitigate, reduce or eliminate any Taxes
(including additions thereto or interest and penalties thereon) that otherwise
would be imposed with respect to the transactions contemplated in this
Agreement.
7.13. NYSERDA Compliance. Following the Closing, the Buyer agrees to
comply with the Seller's obligations with respect to the ownership and operation
of the Purchased Assets set forth in the participation agreements and tax
regulatory agreements listed on Schedule 7.13.
7.14. Remote Terminal Units. With respect to the remote terminal
units listed on Schedule 7.14 (the "RTUs"), the Seller shall continue to lease
such RTUs for the benefit of the Buyer for the life of the leases and the Buyer
shall promptly, but no later than 10 days after receipt of a statement from the
Seller, reimburse the Seller for all such lease payments. Upon the expiration of
such leases, all of the Seller's rights in such RTUs shall, without any further
payment, vest in the Buyer.
7.15. Access to Sites. The Seller's agents and representatives shall
be granted access to any property which contains any environmental Excluded
Liability during regular business hours upon prior notice, for purposes of
remediation and/or monitoring and inspection of such Excluded Liability,
provided that such access shall be limited to reasonable access upon reasonable
advance notice and shall be limited to such access as will not materially
interfere with the Buyer's conduct of its operations at such site.
7.16 Real Property Taxes. (a) Prior to Closing, Seller shall have
the right to control all real property tax litigation and administrative
proceedings
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relating to the Hydroelectric Real Property, including the matters listed on
Schedule 7.16. Buyer shall have the right (i) to require Seller to commence
litigation or administrative proceedings relating to real property Taxes for the
Hydroelectric Real Property at requested values determined by Buyer, (ii) to
receive reasonable advance notice of all proceedings and conferences relating
thereto and, to the extent not prohibited by the relevant taxing authority, to
observe all such conferences and proceedings, (iii) to receive copies of all
notices, determinations, and filings received by Seller in connection therewith
promptly after Seller's receipt thereof, (iv) to receive copies of pleadings,
filings and other submissions to be made by Seller not later than 5 Business
Days in advance of Seller's submission thereof, and (v) to consent to all
settlements or consent orders entered into by Seller with respect to real
property tax litigation and administrative proceedings relating to the
Hydroelectric Real Property, such consent not to be unreasonably withheld.
(b) From and after the Closing, Buyer shall have the right to assume
control of all real property tax litigation and administrative proceedings
relating to the Hydroelectric Real Property pending as of the Closing Date
(other than the Trenton Hydro litigation (Trenton, County of Oneida) and the
Xxxxxxx Hydro litigation (Xxxx, County of Herkiner), the control of which will
remain subject to Section 7.16(a) after the Closing Date), including the matters
listed on Schedule 7.16. With respect to any such litigation and administrative
proceedings, Seller shall have the right (i) to receive reasonable advance
notice of all proceedings and conferences relating thereto and, to the extent
not prohibited by the relevant taxing authority, to observe all such conferences
and proceedings, (ii) to receive copies of all notices, determinations, and
filings received by Buyer in connection therewith promptly after Buyer's receipt
thereof, (iii) to receive copies of pleadings, filings and other submissions to
be made by Buyer not later than five (5) Business Days in advance of Buyer's
submission thereof, and (iv) to consent to all settlements or consent orders
entered into by Buyer with respect to real property tax litigation and
administrative proceedings relating to the Hydroelectric Real Property, such
consent not to be unreasonably withheld.
(c) Seller shall cooperate with, and provide reasonable assistance
to, Buyer in connection with the
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conduct of all real property tax litigation and administrative proceedings
conducted after the Closing Date, including the right to use and consult with
personnel of Seller principally responsible for management of Seller's
relationships with the relevant real property taxing authorities and negotiation
and litigation and administrative proceedings with such authorities regarding
real property tax assessments.
(d) Seller shall have the right to retain all cash real property Tax
refunds and any interest thereon (collectively, "Tax Refunds") received prior to
the Closing Date (or, in the case of the Xxxxx Falls Hydro litigation (Xxxxxx,
County of Saratoga), Tax Refunds received in respect of any initial judgment
obtained prior to the Closing Date) in respect of real property Taxes paid with
respect to the Hydroelectric Real Property.
(e) Subject to Section 7.16(f) below, Buyer shall have the right to
receive and retain all cash Tax Refunds received after the Closing Date (whether
received by Buyer or Seller) in respect of, and all real property Tax savings
(including savings realized under pilot agreements or similar agreements)
realized after the Closing Date as a result of assessment reductions achieved
after the date of this Agreement in respect of real property Taxes paid or
assessed with respect to the Hydroelectric Real Property prior to the Closing
Date.
(f) Buyer will pay to Seller no less frequently than annually
twenty-five percent (25%) of (i) the amount of all cash Tax Refunds received
after the Closing Date and (ii) the amount of all real property Tax savings
realized by the Buyer after the Closing Date as a result of assessment
reductions achieved in respect of real property Taxes paid or assessed with
respect to the Hydroelectric Real Property prior to, at or after the Closing
Date (in each case, net of the reasonable expenses incurred by Buyer and Seller
in connection with the related litigation and settlement negotiations), but only
to the extent that the aggregate payments made by Buyer to Seller under this
Section 7.16(f) do not exceed $20,000,000.
7.17 Ownership Interest in Certain Facilities. The parties agree
that if on the Closing Date Seller is unable to convey a 100% ownership interest
in each of the Black River/Beebee Island facility (project no. 2538) and
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the Xxxxxx River/Feeder Xxx facility (project no. 2554) to Buyer, the parties
will in good faith negotiate an appropriate reduction to the Purchase Price.
ARTICLE VIII
CONDITIONS
8.1. Conditions to Each Party's Obligations to Effect the
Transaction. The respective obligations of each party to effect the sale of the
Purchased Assets shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions:
(a) The waiting period under the HSR Act applicable to the
consummation of the sale of the Purchased Assets contemplated hereby shall have
expired or been terminated;
(b) No preliminary or permanent injunction or other order or decree
by any federal or state court which prevents the consummation of the sale of the
Purchased Assets contemplated hereby shall have been issued and remain in effect
(each party agreeing to use reasonable best efforts to have any such injunction,
order or decree lifted) and no statute, rule or regulation shall have been
enacted by any State or Federal government or governmental agency in the United
States which prohibits the consummation of the sale of the Purchased Assets;
(c) All Federal, State and local government consents and approvals
required for the consummation of the sale of the Purchased Assets and the Seller
Required Regulatory Approvals and the Buyer Required Regulatory Approvals, shall
have been obtained or become Final Orders (a "Final Order" for all purposes of
this Agreement means a final order after all opportunities for rehearing are
exhausted (whether or not any appeal thereof is pending) that has not been
revised, stayed, enjoined, set aside, annulled or suspended, with respect to
which any required waiting period has expired; and as to which all conditions to
effectiveness prescribed therein or otherwise by law, regulation or order have
been satisfied) and such Final Orders shall not impose materially adverse terms
or conditions on either the Seller or the Buyer, provided that either such party
may only invoke the foregoing condition if
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the terms or conditions have such a material adverse effect on the benefits
expected to be derived from the consummation of the transactions contemplated
hereby that such party reasonably would not have been expected to enter into
this Agreement on the terms hereof if such terms or conditions had been known as
of the date hereof; and
(d) All consents and approvals for the consummation of the sale of
the Purchased Assets contemplated hereby required under the terms of any note,
bond, mortgage, indenture, contract or other agreement to which the Seller or
the Buyer, or any of their subsidiaries, is a party shall have been obtained,
other than those (i) which if not obtained, would not, in the aggregate, create
a Material Adverse Effect, or (ii) which are governed by Section 7.4(c).
8.2. Conditions to Obligations of the Buyer. The obligation of the
Buyer to effect the purchase of the Purchased Assets contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing Date of
the following additional conditions:
(a) There shall not have occurred and be continuing a Material
Adverse Effect;
(b) The Seller shall have performed and complied with in all
material respects the covenants and agreements contained in this Agreement that
are required to be performed and complied with by the Seller on or prior to the
Closing Date, and the representations and warranties of the Seller set forth in
this Agreement shall be true and correct as of the date of this Agreement and as
of the Closing Date as though made at and as of the Closing Date;
(c) There shall be no Encumbrances on the Purchased Assets by virtue
of the Indenture;
(d) The Buyer shall have received certificates from authorized
officers of the Seller, dated the Closing Date, to the effect that, to the best
of such officers' knowledge, the conditions set forth in Sections 8.2(a), (b)
and (c) have been satisfied;
(e) The Buyer shall have received opinions from Xxxxxxxx & Xxxxxxxx
and Xxxxxxx & Berlin, dated the Closing
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Date and satisfactory in form and substance to the Buyer and its counsel,
substantially to the effect that:
(1) The Seller is a corporation duly organized, existing and
in good standing under the laws of New York and the Seller has the
corporate power and authority to execute and deliver this Agreement and
the Ancillary Agreements and to consummate the transactions contemplated
hereby and thereby; and the execution and delivery of this Agreement and
such Ancillary Agreements and the consummation of the sale of the
Purchased Assets contemplated hereby have been duly authorized by all
requisite corporate action taken on the part of the Seller;
(2) This Agreement and the Ancillary Agreements have been duly
executed and delivered by the Seller and (assuming that the Seller
Required Regulatory Approvals and the Buyer Required Regulatory Approvals
are obtained) are valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their terms, (A) subject to the
Bankruptcy and Equity Exception and (B) except that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(3) The execution and delivery and performance of this
Agreement and the Ancillary Agreements by the Seller do not conflict with
the Certificate of Incorporation or Bylaws, as currently in effect, of the
Seller; and
(4) No declaration, filing or registration with, or notice to,
or authorization, consent or approval of any governmental authority is
necessary for the consummation by the Seller of the Closing other than (i)
the Seller Required Regulatory Approvals, all of such Seller Required
Regulatory Approvals hereunder having been obtained and being in full
force and effect with such terms and conditions as shall have been imposed
by any applicable governmental authority,
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and (ii) such declarations, filings, registrations, notices,
authorizations, consents or approvals which, if not obtained or made,
would not, in the aggregate create a Material Adverse Effect.
As to any matter contained in such opinions which involves the laws
of any jurisdiction other than the Federal laws of the United States or the laws
of the State of New York, such counsel may rely upon opinions of counsel
admitted in such other jurisdictions. Any opinions relied upon by such counsel
as aforesaid shall be delivered together with the opinion of such counsel. Such
opinions may expressly rely as to matters of fact upon certificates furnished by
the Seller and appropriate officers and directors of the Seller and by public
officials.
(f) The Buyer shall be reasonably satisfied that all material
Environmental Permits and material Permits will be transferred to the Buyer or
obtained by the Buyer on or before the Closing Date; and
(g) The Buyer shall have obtained title insurance policies for each
of the Hydroelectric Real Property sites, from a title insurance company or
companies reasonably acceptable to Buyer, issued on an ALTA Owner's Policy of
Title Insurance (10-17-92) with New York Endorsement Modifications, insuring
the property in the name of the Buyer, in the amount of the current fair market
value of the Hydroelectric Real Property and subject to only Permitted
Encumbrances.
8.3. Conditions to Obligations of the Seller. The obligation of the
Seller to effect the sale of the Purchased Assets contemplated by this Agreement
shall be subject to the fulfillment at or prior to the Closing Date of the
following additional conditions:
(a) The Buyer shall have performed in all material respects its
covenants and agreements contained in this Agreement which are required to be
performed on or prior to the Closing Date;
(b) The representations and warranties of the Buyer set forth in
this Agreement shall be true and correct as of the date of this Agreement and as
of the Closing Date as though made at and as of the Closing Date;
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(c) The Seller shall have received a certificate from an authorized
officer of the Buyer, dated the Closing Date, to the effect that, to the best of
such officer's knowledge, the conditions set forth in Sections 8.3(a) and (b)
have been satisfied;
(d) The Buyer shall have assumed, as set forth in Section 7.10, the
Collective Bargaining Agreement.
(e) The Seller shall have received an opinion from Xxxxxxxx & Xxxxx,
counsel for the Buyer, dated the Closing Date and satisfactory in form and
substance to the Seller and their counsel, substantially to the effect that:
(l) The Buyer is a limited partnership duly organized,
existing and in good standing under the laws of the State of Delaware and
has the partnership power and authority to execute and deliver this
Agreement and the Ancillary Agreements and to consummate the transactions
contemplated hereby and thereby; and the execution and delivery of this
Agreement and such Ancillary Agreements and the consummation of the sale
of the Purchased Assets contemplated hereby have been duly authorized by
all requisite partnership action taken on the part of the Buyer;
(2) This Agreement and the Ancillary Agreements have been duly
executed and delivered by the Buyer and (assuming that the Seller Required
Regulatory Approvals and the Buyer Required Regulatory Approvals are
obtained) are valid and binding obligations of the Buyer, enforceable
against the Buyer in accordance with their terms, (A) subject to the
Bankruptcy and Equity Exception and (B) except that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(3) The execution and delivery and performance of this
Agreement and the Ancillary Agreements by the Buyer does not conflict with
the Certificate of Limited Partnership or Limited
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Partnership Agreement, as currently in effect, of the Buyer; and
(4) No declaration, filing or registration with, or notice to,
or authorization, consent or approval of any governmental authority is
necessary for the consummation by the Buyer of the Closing other than the
Buyer Required Regulatory Approvals, all of such Buyer Required Regulatory
Approvals having been obtained and being in full force and effect with
such terms and conditions as shall have been imposed by any applicable
governmental authority.
As to any matter contained in such opinion which involves the laws
of any jurisdiction other than the federal laws of the United States, Delaware
and New York, such counsel may rely upon opinions of counsel admitted in such
other jurisdictions. Any opinions relied upon by such counsel as aforesaid shall
be delivered together with the opinion of such counsel. Such opinion may
expressly rely as to matters of facts upon certificates furnished by appropriate
officers and directors of the Buyer and its subsidiaries and by public
officials.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification. (a) The Seller will indemnify, defend and hold
harmless the Buyer from and against any and all claims, demands or suits (by any
Person), losses, liabilities, damages (including consequential or special
damages), obligations, payments, costs and expenses (including, without
limitation, the costs and expenses of any and all actions, suits, proceedings,
assessments, judgments, settlements and compromises relating thereto and
reasonable attorneys' fees and reasonable disbursements in connection therewith)
(each, an "Indemnifiable Loss"), asserted against or suffered by the Buyer
relating to, resulting from or arising out of (i) any breach by the Seller of
any covenant or agreement of the Seller contained in this Agreement or the
representations and warranties contained in Sections 5.1, 5.2 or 5.3 hereof,
(ii) the Excluded Liabilities, (iii) noncompliance by the Seller with any bulk
sales or transfer laws as provided in
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Section 11.11, or (iv) one-half of the costs in excess of $50,000 incurred
during the two years following the Closing Date in connection with the license
surrender and decommissioning of the hydroelectric generating and related assets
comprising the Stuyvesant Falls Project (No. 2696).
(b) The Buyer will indemnify, defend and hold harmless the Seller
from and against any and all Indemnifiable Losses asserted against or suffered
by the Seller relating to, resulting from or arising out of (i) any breach by
the Buyer of any covenant or agreement of the Buyer contained in this Agreement
or the representations and warranties contained in Sections 6.1, 6.2 and 6.3
hereof and (ii) the Assumed Obligations.
(c) Any Person entitled to receive indemnification under this
Agreement Can "Indemnitee") having a claim under these indemnification
provisions shall make a good faith effort to recover all losses, damages, costs
and expenses from insurers of such Indemnitee under applicable insurance
policies so as to reduce the amount of any Indemnifiable Loss hereunder. The
amount of any Indemnifiable Loss shall be reduced (i) to the extent that
Indemnitee receives any insurance proceeds with respect to an Indemnifiable Loss
and (ii) to take into account any net Tax benefit recognized by the Indemnitee
arising from the recognition of the Indemnifiable Loss and any payment actually
received with respect to an Indemnifiable Loss.
(d) The expiration, termination or extinguishment of any covenant or
agreement shall not affect the parties' obligations under this Section 9.1 if
the Indemnitee provided the Person required to provide indemnification under
this Agreement (the "Indemnifying Party") with proper notice of the claim or
event for which indemnification is sought prior to such expiration, termination
or extinguishment.
(e) The rights and remedies of the Seller and the Buyer under this
Article IX are exclusive and in lieu of any and all other rights and remedies
which the Seller and the Buyer may have under this Agreement or otherwise for
monetary relief with respect to (i) any breach or failure to perform any
covenant or agreement set forth in this Agreement or (ii) the Assumed
Obligations or the Excluded Liabilities, as the case may be.
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(f) The Buyer and the Seller each agree that notwithstanding any
provisions in this Agreement to the contrary, all parties to this Agreement
retain their remedies at law or in equity with respect to willful or intentional
breaches of this Agreement.
(g) Any indemnity payment under this Agreement shall be treated as
an adjustment to the Purchase Price for tax purposes.
9.2. Defense of Claims. (a) If any Indemnitee receives notice of the
assertion of any claim or of the commencement of any claim, action, or
proceeding made or brought by any Person who is not a party to this Agreement or
an Affiliate of a party to this Agreement (a "Third Party Claim") with respect
to which indemnification is to be sought from an Indemnifying Party, the
Indemnitee will give such Indemnifying party reasonably prompt written notice
thereof, but in any event not later than ten (10) calendar days after the
Indemnitee's receipt of notice of such Third Party Claim. Such notice shall
describe the nature of the Third Party Claim in reasonable detail and shall
indicate the estimated amount, if practicable, of the Indemnifiable Loss that
has been or may be sustained by the Indemnitee. The Indemnifying Party will have
the right to participate in or, by giving written notice to the Indemnitee, to
elect to assume the defense of any Third Party Claim at such Indemnifying
Party's own expense and by such Indemnifying Party's own counsel, and the
Indemnitee will cooperate in good faith in such defense at such Indemnitee's own
expense.
(b) If within ten (10) calendar days after an Indemnitee provides
written notice to the Indemnifying Party of any Third Party Claim the Indemnitee
receives written notice from the Indemnifying Party that such Indemnifying Party
has elected to assume the defense of such Third Party Claim as provided in the
last sentence of Section 9.2(a), the Indemnifying Party will not be liable for
any legal expenses subsequently incurred by the Indemnitee in connection with
the defense thereof; provided, however, that if the Indemnifying Party fails to
take reasonable steps necessary to defend diligently such Third Party Claim
within twenty (20) calendar days after receiving notice from the Indemnitee that
the Indemnitee believes the Indemnifying Party has failed to take such steps,
the Indemnitee may assume its own defense, and the Indemnifying Party will be
liable for all reasonable expenses thereof. Without the
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prior written consent of the Indemnitee, the Indemnifying Party will not enter
into any settlement of any Third Party Claim which would lead to liability or
create any financial or other obligation on the part of the Indemnitee for which
the Indemnitee is not entitled to indemnification hereunder. If a firm offer is
made to settle a Third Party claim without leading to liability or the creation
of a financial or other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder and the Indemnifying
Party desires to accept and agree to such offer, the Indemnifying Party will
give written notice to the Indemnitee to that effect. If the Indemnitee fails to
consent to such firm offer within ten (10) calendar days after its receipt of
such notice, the Indemnitee may continue to contest or defend such Third Party
Claim and, in such event, the maximum liability of the Indemnifying Party as to
such Third Party claim will be the amount of such settlement offer, plus
reasonable costs and expenses paid or incurred by the Indemnitee up to the date
of such notice.
(c) Any claim by an Indemnitee on account of an Indemnifiable Loss
which does not result from a Third Party Claim (a "Direct Claim") will be
asserted by giving the Indemnifying Party reasonably prompt written notice
thereof, stating the nature of such claim in reasonable detail and indicating
the estimated amount, if practicable, and the Indemnifying Party will have a
period of thirty (30) calendar days within which to respond to such Direct
Claim. If the Indemnifying Party does not respond within such thirty (30)
calendar day period, the Indemnifying Party will be deemed to have accepted such
claim. If the Indemnifying Party rejects such claim, the Indemnitee will be free
to seek enforcement of its rights to indemnification under this Agreement.
(d) If the amount of any Indemnifiable Loss, at any time subsequent
to the making of an indemnity payment in respect thereof, is reduced by
recovery, settlement or otherwise under or pursuant to any insurance coverage,
or pursuant to any claim, recovery, settlement or payment by or against any
other entity, the amount of such reduction, less any costs, expenses or premiums
incurred in connection therewith (together with interest thereon from the date
of payment thereof at the base rate then in effect of Citibank N.A., will
promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any
indemnity payment, the Indemnifying Party will, to the extent of such indemnity
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payment, be subrogated to all rights of the Indemnitee against any third party
in respect of the Indemnifiable Loss to which the indemnity payment relates;
provided, however, that (i) the Indemnifying Party will then be in compliance
with its obligations under this Agreement in respect of such Indemnifiable Loss
and (ii) until the Indemnitee recovers full payment of its Indemnifiable Loss,
any and all claims of the Indemnifying Party against any such third party on
account of said indemnity payment is hereby made expressly subordinated and
subject in right of payment to the Indemnitee's rights against such third party.
Without limiting the generality or effect of any other provision hereof, each
such Indemnitee and Indemnifying Party will duly execute upon request all
instruments reasonably necessary to evidence and perfect the above-described
subrogation and subordination rights, and otherwise cooperate in the prosecution
of such claims at the direction of the Indemnifying Party. Nothing in this
Section 9.2(d) shall be construed to require any party hereto to obtain or
maintain any insurance coverage.
(e) A failure to give timely notice as provided in this Section 9.2
will not affect the rights or obligations of any party hereunder except if, and
only to the extent that, as a result of such failure, the party which was
entitled to receive such notice was actually prejudiced as a result of such
failure.
9.3. Tax Contest. (a) The Buyer shall notify the Seller in writing
within thirty (30) days of receipt of written notice of any Federal or State
pending or threatened audits, adjustments or assessments (a "Tax Audit"), which
may affect the Seller's liability for Taxes. If the Buyer fails to give such
notice to the Seller, the Buyer shall not be entitled to indemnification for any
Taxes arising in connection with such Tax Audit if such failure to give notice
adversely affects the Seller's right to participate in the Tax Audit.
(b) (i) If such Tax Audit relates to any taxable period ending on or
before the Closing or for any Taxes for which the Seller is liable hereunder,
the Seller shall at its expense control the defense and settlement of such Tax
Audit; (ii) if such Tax Audit relates to any taxable period beginning after the
Closing for any Taxes, including without limitation Transfer Taxes as provided
in Section 7.8(a), for which the Buyer is liable in full hereunder, the Buyer
shall
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at its expense control the defense and settlement of such Tax Audit, provided
the Seller shall be entitled to participate in such Tax Audit at its expense in
such defense and to employ counsel of its choice at its expense; and (iii) if
such Tax Audit relates to a taxable period, or portion thereof, beginning before
and ending after the Closing and any Tax item cannot be identified as being a
liability of either party or cannot be separated from a Tax item for which the
other party is liable, the Seller shall control the defense and settlement of
the Tax Audit.
(c) The provisions of this Section 9.3 are subject to Section 7.16
with respect to real property Taxes.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1. Termination. (a) This Agreement may be terminated at any time
prior to the Closing Date by mutual written consent of the Seller and the Buyer.
(b) This Agreement may be terminated by the Seller or the Buyer if
the Closing contemplated hereby shall have not occurred on or before the first
anniversary of the date of this Agreement (the "Termination Date"); provided
that the right to terminate this Agreement under this Section 10.1(b)(i) shall
not be available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date; and provided, further, that if on the first
anniversary of the date of this Agreement the conditions to the Closing set
forth in Section 8.1(c) shall not have been fulfilled but all other conditions
to the Closing shall be fulfilled or shall be capable of being fulfilled, then
the Termination Date shall be the day which is twenty-one months from the date
of this Agreement.
(c) This Agreement may be terminated by the Seller or the Buyer if
(i) any governmental or regulatory body, the consent of which is a condition to
the obligations of the Seller and the Buyer to consummate the Closing shall have
determined not to grant its or their consent and all appeals of such
determination shall have been taken and have been unsuccessful, (ii) one or more
courts of competent,
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jurisdiction in the United States or any State shall have issued an order,
judgment or decree permanently restraining, enjoining or otherwise prohibiting
the Closing, and such order, judgment or decree shall have become final and
nonappealable or (iii) any statute, rule or regulation shall have been enacted
by any State or Federal government or governmental agency in the United States
which prohibits the consummation of the Closing.
(d) This Agreement may be terminated by the Buyer, if there has been
a material violation or breach by the Seller of any agreement, representation or
warranty contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of the Buyer to effect the Closing impossible and
such violation or breach has not been waived by the Buyer.
(e) This Agreement may be terminated by the Seller, if there has
been a material violation or breach by the Buyer of any agreement,
representation or warranty contained in this Agreement which has rendered the
satisfaction of any condition to the obligations of the Seller to effect the
Closing impossible and such violation or breach has not been waived by the
Seller.
(f) This Agreement may be terminated by the Seller or the Buyer in
accordance with the provisions of Section 7.11(b) or (c).
(g) This Agreement may be terminated by the Buyer if, at the time
all of the conditions contained in Article VIII have been satisfied or waived,
the Buyer after performing appropriate due diligence, does not in good faith
believe that the software, hardware, database and other similar or related items
of automated or computerized systems used by Seller in its operation of the
Purchased Assets will be Year 2000 Compliant by December 31, 1999, which failure
to be Year 2000 Compliant is reasonably likely to result in a Material Adverse
Effect. For purposes of this Agreement, an item is "Year 2000 Compliant" if it
will not malfunction, will not cease to function, will not generate incorrect
data, and will not produce incorrect results when processing, providing or
receiving (i) date-related data into and between the twentieth and twenty-first
centuries and (ii) date-related data in connection with any valid date in the
twentieth and twenty-first centuries.
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10.2. Procedure and Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions contemplated
hereby by either or both of the parties pursuant to Section 10.1, written notice
thereof shall forthwith be given by the terminating party to the other party and
this Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by any of the parties hereto. If this
Agreement is terminated as provided herein:
(a) Said termination shall be the sole remedy of the parties hereto
with respect to breaches of any agreement, representation or warranty contained
in this Agreement and none of the parties hereto nor any of their respective
trustees, directors, officers or Affiliates, as the case may be, shall have any
liability or further obligation to the other party or any of their respective
trustees, directors, officers or Affiliates, as the case may be, pursuant to
this Agreement, except in each case as stated in this Section 10.2 and in
Sections 7.2(b), 7.3 and 7.7.
(b) All filings, applications and other submissions made pursuant to
this Agreement, to the extent practicable, shall be withdrawn from the agency or
other Person to which they were made.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the Seller and the Buyer.
11.2. Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Notwithstanding anything in
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this Agreement to the contrary, the condition set forth in Section 8.3(d) cannot
be waived by the Seller without the consent of the IBEW.
11.3. No Survival. Subject to the provisions of Section 9.2, each
and every representation, warranty and covenant contained in this Agreement
(other than the covenants contained in Sections 3.2, 3.3, 3.4, and in Articles
VII, IX and XI (which covenants shall survive in accordance with their terms)
and other than the representations and warranties contained in Sections 5.1, 5.2
and 5.3 (which representations and warranties shall survive for eighteen months
from the Closing)) shall expire with, and be terminated and extinguished by the
consummation of the sale of the Purchased Assets and the transfer of the Assumed
Obligations pursuant to this Agreement and such representations, warranties and
covenants shall not survive the Closing Date; and none of the Seller, the Buyer
or any officer, director, trustee or Affiliate of any of them shall be under any
liability whatsoever with respect to any such representations, warranty or
covenant.
11.4. Notices. All notices and other communications hereunder shall
be in writing an shall be deemed given if delivered personally or by facsimile
transmission, telexed or mailed by overnight courier or registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice; provided that notices of a change of address shall be effective
only upon receipt thereof):
(a) If to the Seller, to:
Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (315)428
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
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Xxxxxxx & Berlin
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
(b) If to the Buyer, to:
c/o Orion Power Holdings, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 00xx Xxxxxx, X.X., Xxxxx #0000
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
11.5. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto, including by operation of law without the prior written consent of the
other party, nor is this Agreement intended to confer upon any other Person
except the parties hereto any rights or remedies hereunder; provided, however
that Employees may have claims under Sections 2.3(a)(iv) and 7.10.
Notwithstanding the foregoing, no provision of this Agreement shall create any
third party beneficiary rights in any employee or former employee of the Seller
(including any beneficiary or dependent thereof) in respect of continued
employment or resumed employment, and no provision of this Agreement shall
create any rights in any such Persons in respect of any benefits that may be
provided, directly or indirectly, under any employee benefit plan or arrangement
except as expressly provided for thereunder. Notwithstanding the foregoing, (i)
the Buyer may assign all of its rights and obligations hereunder to any of its
wholly owned Subsidiaries (direct or indirect) provided but no such assignment
will release the Buyer from any liabilities or obligations hereunder, (ii) the
Buyer or its permitted assignee may assign, transfer, pledge or otherwise
dispose of its rights and interests
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hereunder to a trustee or lending institution(s) for the purposes of financing
or refinancing, or by way of assignments, transfers, conveyances or dispositions
in lieu thereof; provided, however, that no such assignment or disposition shall
relieve or in any way discharge the Buyer or such assignee from the performance
of its duties and obligations under this Agreement and (iii) the Buyer or its
permitted assignee may assign its rights and obligations under the provisions of
this Agreement that relate to the employment, management and compensation of
Buyer Employees to any Person engaged by the Buyer or its permitted assignee to
operate the purchased Assets on its behalf and to employ, manage and compensate
Buyer Employees. The Seller agrees to execute and deliver such documents as may
be reasonably necessary to accomplish any such assignment, transfer, conveyance,
pledge or disposition of rights hereunder so long as the Seller's rights under
this Agreement are not thereby altered, amended, diminished or otherwise
impaired.
11.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable New York principles of
conflicts of law) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies, except where New York
law is preempted by federal law in which event federal law shall govern.
11.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.8. Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
11.9. Schedules and Exhibits. All Exhibits and Schedules referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
11.10. Entire Agreement. This Agreement, the Confidentiality
Agreement and the Ancillary Agreements including the Exhibits, Schedules,
documents, certificates
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and instruments referred to herein or therein, embody the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to herein or therein. It is expressly acknowledged and agreed that
there are no restrictions, promises, representations, warranties, covenants or
undertakings contained in any material made available to the Buyer pursuant to
the terms of the Confidentiality Agreement (including the Preliminary
Information Memorandum, dated April 1998, the Information Memorandum, dated May
1998, or the Request for Proposal, dated July 1998, previously made available to
the Buyer by the Seller, Xxxxxxx Xxxxx & Co. and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation). This Agreement supersedes all prior agreements and
understandings between the parties with respect to such transactions other than
the Confidentiality Agreement.
11.11. Bulk Sales or Transfer Laws. The Buyer acknowledges that the
Seller will not comply with the provision of any bulk sales or transfer laws
(other than ss. 1141(c) of the New York State Tax Law) of any jurisdiction in
connection with the transactions contemplated by this Agreement. The Buyer
hereby waives compliance by this Seller with the provisions of the bulk sales or
transfer laws of all applicable jurisdictions.
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this
agreement to be signed by their respective duly authorized representatives as of
the date first above written.
NIAGARA MOWHAWK POWER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: VP Financial Planning
ERIE BOULEVARD HYDROPOWER, L.P.
By Orion Power New York GP, Inc.,
Its General Partner
By:
------------------------------
Name:
Title:
77
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
agreement to be signed by their respective duly authorized representatives as of
the date first above written.
NIAGARA MOWHAWK POWER CORPORATION
By:
------------------------------
Name:
Title:
ERIE BOULEVARD HYDROPOWER, L.P.
By Orion Power New York GP, Inc.,
Its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: President
78
EXHIBIT A
NINE MILE POINT ONE
EMERGENCY POWER SUPPLY AGREEMENT
(Bennetts Bridge Hydro Development Facility)
This Nine Mile Point One Emergency Power Supply Agreement (the
"Agreement") is entered into as of this ______ day of __________, 1998 between
Niagara Mohawk Power Corporation ("Niagara Mohawk"). a New York corporation and
Erie Boulevard Hydropower, L.P. ("Buyer") a Delaware limited partnership (each
individually a "Party" and collectively the "Parties").
WITNESSETH:
WHEREAS, Niagara Mohawk and Buyer have entered into an Asset Sales
Agreement dated as of December 2, 1998. for the sale of certain of Niagara
Mohawk electric generating assets to Buyer including the Bennetts Bridge Hydro
Development facility:
WHEREAS, the Parties recognize and acknowledge that the Bennetts Bridge
Hydro Development facility is arranged to supply emergency power to Niagara
Mohawk's Nine Mile Point One Nuclear Generating Station ("NMP1") during a system
blackout condition:
WHEREAS. the Parties recognize and acknowledge that the Bennetts Bridge
Hydro Development's ability to provide backup emergency power to NMP1 during a
system blackout condition is described in the Final Safety Analysis Report
("FSAR") for NMP1 and requires a safety evaluation and/or NRC approval in
accordance with 10 C.F.R. xx.xx. 50.59 and 50.90 before that arrangement can be
altered in any way;
WHEREAS, Niagara Mohawk intends to retain ownership of and to continue to
operate NMP1; and
WHEREAS, the Parties desire and intend that the Bennetts Bridge Hydro
Development facility continue to provide supply emergency power to NMP1 during a
system blackout condition consistent with the NMP1 FSAR.
NOW THEREFORE, in consideration of the mutual representations, covenants
and agreements set forth herein, and intending to be legally bound hereby, the
Parties agree as follows:
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ARTICLE 1
DEFINITIONS
1.0 Whenever used in this Agreement with initial capitalization. the
following terms shall have the meanings specified or referred to in this Article
1.
1.0 "Asset Sales Agreement" or "ASA" shall mean the Asset Sales Agreement
dated aS of December 2, 1998, between Niagara Mohawk and Buyer.
1.2 "Closing(s)" shall have the meaning set forth in the ASA.
1.3 "Closing Date" shall have the meaning set forth in the ASA.
1.4 "Delivery Point" shall have the meaning set forth in the
Interconnection Agreement.
1.5 "Interconnection Agreement" shall mean the separate Interconnection
Agreement dated as of _________, 1998 between Niagara Mohawk and Buyer, as from
time to time amended or modified, pertaining the interconnection of the Bennetts
Bridge Hydro Development facility to Niagara Mohawk's transmission system.
1.6 "Force Majeure" shall mean those causes beyond the reasonable control
of the Party affected, which by reasonable diligence that Party is unable to
prevent, avoid, mitigate, or overcome, including the following: any act of God,
labor disturbance, act of public enemy, war, insurrection, riot, tire, storm or
flood, explosion, order, regulation or restriction imposed by governmental,
military or lawfully established civilian authorities, or any other cause of a
similar nature beyond a Party's reasonable control.
ARTICLE 2
TERM
2.0 The term of this Agreement shall begin upon the Closing Date of the
ASA and shall continue until the expiration of the Operating License for the
Nine Mile Point One Nuclear Generating Station or any extensions or renewals
thereof.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
3.1 Representations of Niagara Mohawk. Niagara Mohawk represents and
warrants to Buyer as follows:
3.1.1 Organization. Niagara Mohawk is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and Niagara Mohawk has the requisite corporate power and authority to carry on
its business as now being conducted;
3.1.2 Authority Relative to this Agreement. Niagara Mohawk has the
requisite power and authority to execute and deliver this Agreement and to carry
out the actions required of it by this Agreement. The execution and delivery of
this Agreement and the actions it contemplates have been duly and validly
authorized. The Agreement has been duly and validly executed and delivered by
Niagara Mohawk and constitutes a valid and binding Agreement of Niagara Mohawk;
3.1.3 Regulation Approval. Niagara Mohawk has obtained any and all
approvals of, and given a notice to, any public authority that are required
for Niagara Mohawk to execute and deliver this Agreement; and
3.1.4 Compliance With Law. Niagara Mohawk represents and warrants
that it is not in violation of any applicable law, statute, order, rule, or
regulation promulgated or judgment entered by any federal, state, or local
governmental authority, which violates, individually or in the aggregate, or
which would affect Niagara Mohawk's performance of its obligations under this
Agreement and that it will comply with all applicable laws, rules, regulations,
codes, and standards or all Federal, state, and local governmental agencies
having jurisdiction over Niagara Mohawk or the transactions under this
Agreement.
3.2 Representations of Buyer. Buyer represents and warrants to Niagara
Mohawk as follows:
3.2.1 Organization. Buyer is a limited partnership organized,
validly existing and in good standing under the laws of the State of Delaware
and Buyer has the requisite power and authority to carry on its business as now
being conducted:
3.1.2 Authority Relative to this Agreement. Buyer by its general
partner has the requisite power and authority to execute and deliver this
Agreement and to carry out the actions required of it by this Agreement. The
execution and delivery of this Agreement and the actions it
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contemplates have been duly and validly authorized. The Agreement has been duly
and validly executed and delivered by Buyer and constitutes a valid and binding
Agreement of Buyer.
3.1.3 Regulatory Approval. Buyer has obtained any and all approvals
of, and given any notice to, any public authority that are required for Buyer
to execute and deliver this Agreement; and
3.1.4 Compliance With Law. Buyer represents and warrants that it is
not in violation of any applicable law, statute, order, rule, or regulation
promulgated or judgment entered by any federal, state, or local governmental
authority, which violates, individually or in the aggregate, or which would
affect Buyer's performance of its obligations under this Agreement and that it
will comply with all applicable laws, rules, regulations, codes, and standards
or all Federal, state, and local governmental agencies having jurisdiction over
Buyer or the transactions under this Agreement.
ARTICLE 4
NMP1 EMERGENCY POWER SUPPORT
4.1 Except as otherwise provided in this Agreement and except in the case
of Force Majeure, Buyer agrees that at all times during the term of this
Agreement either Unit 3 or Unit 4 will be available following a system blackout
condition affecting NMP1 to supply power to the Delivery Point for the benefit
of NMP1, if needed.
ARTICLE 5
MAINTENANCE
5.1 Buyer shall give Niagara Mohawk at least thirty (30) days advance
written notice of any planned maintenance or inspection activity that would
remove either Unit 3 or Unit 4 from service. Such notice shall specify when
the unit will be removed from service and when it is expected to be returned to
service. Buyer shall immediately advise Niagara Mohawk of any changes in the
noticed maintenance or inspection schedule. In all other circumstances, Buyer
shall give Niagara Mohawk such advance notice as is reasonably possible of any
maintenance or inspection activity, emergency or otherwise, that will or is
reasonably expected to result in either Unit 3 or Unit 4 being removed from
service. Such notice shall specify when the unit will or is reasonably
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expected to be removed from service and when it is expected to be returned to
service. Buyer immediately advise Niagara Mohawk of any changes in the noticed
maintenance or inspection schedule.
5.2 Buyer shall make all reasonable efforts to plan, schedule and
implement its maintenance and inspection activities in a manner that does not
result in both Unit 3 and Unit 4 being removed from service at the same time.
ARTICLE 6
NEW CONSTRUCTION OR MODIFICATIONS
6.1 Buyer shall give Niagara Mohawk advance written notice of any plan to
construct new facilities or to alter any equipment, system or facility at tile
Bennetts Bridge Hydro Development facility and provide sufficient description
(including all drawings and specifications) of such plans so as to enable
Niagara Mohawk to reasonably determine whether the planned activity is likely to
impact the supply of emergency power to NMP1 during a system blackout condition.
6.2 Buyer acknowledges that any change to the Bennetts Bridge Hydro
Development facility that alters in any way the conditions described in the NMP
FSAR may require a safety evaluation and/or NRC approval in accordance with 10
C.F.R. xx.xx 50.59 and 50.90 prior to implementing any change or modification.
Buyer agrees that if Niagara Mohawk determines that such a safety evaluation
and/or NRC approval should be undertaken or is required, it will cooperate with
Niagara Mohawk in all respects with regard to the performance of any such safety
evaluation and/or NRC approval process. Any such safety evaluation shall be
performed at Niagara Mohawk's expense by Niagara Mohawk's Nuclear Engineering
Department or its designee. In addition, Niagara Mohawk will reimburse Buyer for
all reasonable costs incurred in complying with the safety evaluation and/or NRC
approval process.
6.3 Buyer agrees that it will not undertake any modification to or
operation of the facility with first obtaining Niagara Mohawk's determination
whether a safety evaluation and/or NRC approval is required in accordance with
10 C.F.R. xx.xx. 50.59 and/or 50.90. Buyer will accept Niagara Mohawk's
determination in this regard. Further, if as a result of a safety evaluation
and/or NRC approval in accordance with 10 C.F.R. xx.xx. 50.59 and/or 50.90 ii is
determined that it is necessary to
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modify the facility or its operation. Buyer will implement and such modification
and Niagara Mohawk shall reimburse Buyer for all reasonable costs incurred in so
doing.
ARTICLE 7
INSPECTIONS
7.1 Niagara Mohawk shall have the right, at its own expense. to inspect or
observe the maintenance activities, equipment tests. installation, construction,
or other modification of any equipment, systems or facilities at the Bennetts
Bridge Hydro Development facility which Niagara Mohawk reasonably determines
might affect the supply of emergency power to the Delivery Point for the benefit
of NMP1 during a system blackout condition.
7.2 If Niagara Mohawk identifies any deficiency or defect at the Bennetts
Bridge Hydro Development facility that it reasonably determines might affect the
supply of emergency power to the Delivery Point for the benefit of NMP1 during a
system blackout condition, upon receipt of notice of such deficiency or defect,
Buyer shall take all reasonable steps to immediately remedy such deficiency or
defect. If Buyer is unable or unwilling to make the corrections deemed necessary
by Niagara Mohawk to ensure the available of the supply of emergency power to
the Delivery Point for the benefit of NMP1 during a system blackout condition,
Niagara Mohawk shall have the right to make all such corrections. Buyer shall be
responsible for all costs incurred by Niagara Mohawk under these circumstances.
ARTICLE 8
REGULATORY COMPLIANCE
8.1 At Niagara Mohawk's expense, Buyer shall make available and provide to
Niagara Mohawk all such information and undertake all such inspections or tests
as Niagara Mohawk may reasonably request to meet all regulatory obligations with
respect to its ownership and/or operation of NMP1.
ARTICLE 9
COMPENSATION, BILLING AND PAYMENT
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9.1 Niagara Mohawk shall reimburse Buyer for the actual costs incurred in
providing the services set forth in this Agreement.
9.2 Buyer shall provide Niagara Mohawk with notice (each, a "Notice") of
any payments due for services in accordance with Section 9.1 above during the
preceding calendar month on or before the 5th day of the calendar month, unless
Buyer and Niagara Mohawk otherwise agree. Each Notice shall include a detailed
description of the services provides and the basis for the determination of the
payment due. Payments shall be due (each, a "Payment Date") on the later of (i)
the 25th day of the calendar month in which the Notice is given, or (ii) the
15th day after delivery by Buyer to Niagara Mohawk of such Notice. In the event
such 25th or 15th day is a Saturday, Sunday or legal holiday, the corresponding
payment shall be due on or before the first business day following such 25th or
15th day or legal holiday, as the case may be.
9.3 Niagara Mohawk shall have the right to audit the records of Buyer upon
which any Notice or payment obligation is based upon one days notice to Buyer.
If Niagara Mohawk, in good faith, disputes or questions any part of any Notice
or payment obligation, Niagara Mohawk shall provide a written explanation of the
basis for such dispute and the undisputed portion of the net payment
obligations set forth in such Notice shall be paid no later than the applicable
Payment Date. Any adjustment under this Section shall bear interest in the prime
rate for U.S. currency as published from time to time under "Money Rates" in The
Wall Street Journal, from and including the Payment Date and such underpayment
or overpayment was originally due but excluding the date on which such
underpayment or overpayment is finally settled or by the Parties hereto or
otherwise resolved.
ARTICLE 10
ASSIGNMENT OR CHANGE IN CORPORATE IDENTITY
10.1 This Agreement and all of the provisions hereof shall be binding upon
and insure to the benefit of the Parties hereto and their respective successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned without the
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prior written consent of the other Party hereto, including by operation of law,
such consent not to be unreasonably withheld.
10.2 No assignment or transfer of rights or obligations under this
Agreement by Buyer shall relieve Buyer from full liability and responsibility
for the performance thereof after any such transfer or assignment unless and
until the transferee or assignee shall agree in writing to assume the
obligations and duties of Buyer under this Agreement and Niagara Mohawk has
consented in writing to such assignment.
10.3 If Buyer terminates its existence as a limited partnership, whether
by merger, acquisition, sale, consolidation, or otherwise, or if all or
substantially all of such Party's assets are transferred to another person or
business entity without complying with Article 8.2 above, Niagara Mohawk shall
have the right, enforceable in a court of competent jurisdiction: (i) to enjoin
Buyer's successor from using the property in any manner that interferes with,
impedes, or restricts Niagara Mohawk's ability to rely on the Bennetts Bridge
Hydro Development to supply emergency power to NMP1 during a system blackout
condition, and (ii) to take control of the operation of the Bennetts Bridge
Hydro Development to ensure its ability to supply emergency power to NMPI during
a system blackout condition until such time as Niagara Mohawk is reasonably
assured that the entity that has succeeded to Buyer's interest in the Bennetts
Bridge Hydro Development is able to fulfill the rights and obligations under
this Agreement.
ARTICLE 11
LIMITATION OF LIABILITY
11.1 To the fullest extent permitted by law and notwithstanding any other
provision of this Agreement, neither Niagara Mohawk or Buyer, nor their
respective officers, directors, agents, employees, parent or affiliates,
successors or assigns, shall be liable to the other Party or its parent,
subsidiaries, affiliates, officers, directors, agents, employees, successors or
assigns, for claims, suits, actions, or causes of action for incidental,
punitive, special, indirect, multiple or consequential damages (including
attorney's fees or litigation costs) connected with or resulting from
performance or non-performance of this Agreement, or any actions undertaken in
connection with or related to this Agreement, including without limitation any
such damages which are based upon causes of action for breach of contract, tort
(including negligence and misrepresentation), breach of warranty,
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strict liability, or any other theory of recovery. The provisions of this
Article II shall apply regardless of fault and shall survive termination,
cancellation, suspension, completion or of this .Agreement.
11.2 Buyer's liability for breach of this Agreement is expressly limited
to the amounts paid by Niagara Mohawk under this Agreement.
11.3 (a) Notwithstanding anything in this Agreement to the contrary, Buyer
and Seller shall not be liable in damages or otherwise or responsible to the
other for its failure to carry out any of its obligations under this Agreement
if and only to the extent that they are unable to perform or are prevented from
performing by an event of Force Majeure.
(b) If a Party shall rely on the occurrence of a Force Majeure event
or condition as a basis for being excused from performance of its obligations
under this Agreement, then the party relying on the event or condition shall:
(i) provide prompt written notice of such Force Majeure event to the other Party
giving an estimate of its expected duration and the probable impact on the
performance of its obligations hereunder; (ii) exercise all reasonable efforts
to continue to perform its obligations under this Agreement; (iii) expeditiously
take action to correct or cure the event or condition excusing performance;
provided that settlement of strikes or other labor disputes will be completely
within the sole discretion of the Party affected by such strike or labor
dispute; (iv) exercise all reasonable efforts to mitigate or limit damages to
the other Party; and (v) provide prompt notice to the other Party of the
cessation of the event or conditions giving rise to its excuse from performance.
All performance obligations hereunder, shall be extended by a period equal to
the term of tile resultant delay.
ARTICLE 12
REMEDIES
12.1 Upon its determination that Buyer has failed to honor or otherwise
comply with any provision or obligation of this Agreement, without further
notice to Buyer. Niagara Mohawk shall have the right, enforceable in a court of
competent jurisdiction: (i) to specific performance of the provision or
obligation; (ii) to enjoin Buyer's successor from using the property in any
manner that interferes with, impedes, or restricts Niagara Mohawk's ability to
rely on the Bennetts Bridge Hydro
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Development to supply emergency power to NMP1 during a system blackout
condition; or (iii) without any liability to Buyer of any sort, to take control
of the operation of the Bennetts Bridge Hydro Development to ensure its
ability to supply emergency power to NMPI during a System blackout condition
until such time as Niagara Mohawk is reasonably assured that Buyer is able and
wil1ing to honor and perform its obligations under this Agreement.
ARTICLE 13
MISCELLANEOUS
13.1 Governing Law and Jurisdiction. This Agreement and the rights and
duties of the Parties hereunder shall be governed by and construed, enforced and
performed in accordance with laws of the State of New York, without regard to
principles of conflicts of law. Any law suit arising under this Agreement shall
be instituted in the Federal or State courts of New York located in the City of
Syracuse and each party hereby irrevocably submits to the in personam
jurisdiction of such courts. Each Party herein waives its respective right to a
jury trial with respect to any litigation arising under or in connection with
this Agreement.
13.2 Notices. All notices shall be in writing and shall be given (and will
be deemed to have been duly given of so given) by hand delivery, cable, telecopy
(confirmed in writing) or telex, or by mail (registered or certified, postage
prepaid) to the respective Parties as follows:
For Niagara Mohawk:
For Buyer:
13.3 General. This Agreement as well as the ASA constitutes the entire
Agreement between the Parties as to the subject matter contemplated by this
Agreement. The Agreement shall be considered for all purposes as prepared
through the joint efforts of the Parties and shall not be
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88
construed against one Party or the other as a result of the preparation,
substitution, submission or other event of negotiation, drafting or execution
hereof. No amendment or modification of this Agreement shall be enforceable
unless reduced to writing and executed by both Parties. No waiver by a Party of
any default by the other Party shall be construed as a waiver of any other
default. Any provision declared or rendered unlawful by any applicable court of
law or regulatory agency or deemed unlawful because of a statutory change shall
not otherwise affect the remaining lawful obligations that arise under this
Agreement. The headings used herein are for convenience and reference purposes
only.
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IN WITNESS WHEREOF, Niagara Mohawk and Buyer have caused this Agreement to
be signed by the respective duly authorized officers as of the date first above
written.
Erie Boulevard Hydropower, L.P. Niagara Mohawk Power Corporation
By:__________________________________ By:________________________________
Name:________________________________ Name:______________________________
Title:_______________________________ Title:_____________________________
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EXHIBIT B
FORM OF
XXXX OF SALE
THIS XXXX OF SALE, dated as of ____________, by and between Niagara
Mohawk Power Corporation, a New York corporation (the "Seller"), and Erie
Boulevard Hydropower, L.P., a Delaware limited partnership (the "Buyer").
WITNESSETH
WHEREAS, pursuant to that certain Asset Sales Agreement, dated as of
December 2, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Asset Sales Agreement"), by and between the Seller and the Buyer, the
Seller has agreed to sell, assign, convey, transfer and deliver all of its
right, title and interest in the Purchased Assets (as defined in the Asset Sales
Agreement) to the Buyer and the Buyer has agreed to purchase and acquire such
Purchased Assets from the Seller, all as more fully described in the Asset Sales
Agreement; and
WHEREAS, pursuant to the Asset Sales Agreement, the Seller and the
Buyer have agreed to enter into this Xxxx of Sale pursuant to which that part of
the Purchased Assets which constitutes personal property will be conveyed to the
Buyer.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms which are used but not defined
in this Xxxx of Sale shall have the meaning ascribed to such term in the Asset
Sales Agreement.
2. Assignment. Except as set forth in Section 3 below and subject to
the terms and conditions of the Asset Sales Agreement, the Seller does hereby
sell, assign, convey, transfer and deliver to the Buyer all of the Seller's
right, title and interest in and to all of the Purchased Assets which constitute
personal property.
3. Excluded Assets Not Assigned. Notwithstanding anything herein to
the contrary, the Excluded Assets are specifically excluded from the Purchased
Assets and shall be retained by the Seller at and following the Closing Date,
91
4. Appointment. The Seller hereby constitutes and appoint the Buyer,
and its successors and assigns, as the Seller's true and lawful attorney, with
full power of substitution, in the Seller's name and stead, by, on behalf of and
for the benefit of the Buyer, and its successors and assigns, to demand and
receive any and all of the Purchased Assets transferred hereunder and to give
receipts and releases for and in respect of the same, and any part thereof, and
from time to time to institute and prosecute, at the expense and for the benefit
of the Buyer, and its successors and assigns, any and all proceedings at law, in
equity or otherwise, which the Buyer, and its successors or assigns, may deem
proper for the collection or reduction to possession of any of the Purchased
Assets transferred hereunder or for the collection and enforcement of any claim
or right of any kind hereby sold, assigned, conveyed, transferred and delivered,
and to do all acts and things in relation to the Purchased Assets transferred
hereunder which the Buyer, and its successors or assigns, shall deem desirable.
5. No Third Party Beneficiaries. Nothing in this instrument, express
or implied, is intended or shall be construed to confer upon, or give to, any
person other than the Buyer any remedy or claim under or by reason of this
instrument or any agreements, terms, covenants or conditions hereof, and all the
agreements, terms, covenants and conditions in this instrument contained shall
be for the sole and exclusive benefit of the Buyer and its successors and
permitted assigns.
6. Binding Effect; Assignment. This Xxxx of Sale and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
7. Governing Law. This Xxxx of Sale shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws).
8. Construction. This Xxxx of Sale is delivered pursuant to and is
subject to the Asset Sales Agreement. In the event of any conflict between the
terms of the Asset Sales Agreement and the terms of this Xxxx of Sale,
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92
including those terms set forth in paragraph 6 hereof, the terms of the Asset
Sales Agreement shall prevail.
IN WITNESS WHEREOF, this Xxxx of Sale has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first above written.
NIAGARA MOHAWK POWER CORPORATION
By__________________________________
Name:
Title:
ERIE BOULEVARD HYDROPOWER, L.P.
By__________________________________
Name:
Title:
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93
EXHIBIT [ILLEGIBLE]
EIRPTA Affidavit
Section 1445 of the Internal Revenue code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding tax is not required
upon the disposition of U.S. real property interest by Niagara Mohawk Power
Corporation (the "Company"), the undersigned hereby certifies the following on
behalf of the Company:
1. The Company is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and the Income Tax Regulations);
2. The Company's U.S. employer identification number is
___________________; and
3. The Company's office address is: 000 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000.
The Company understands that this certification may be disclosed to
the Internal Revenue Service by a transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Company.
By: ________________________
Name:
Title:
94
FORM OF
INSTRUMENT OF ASSUMPTION
Instrument of Assumption made, executed and delivered on this day of
____________, by Erie Boulevard Hydropower, L.P., a Delaware limited partnership
(the "Buyer"), in favor of Niagara Mohawk Power Corporation, a New York
corporation, (the "Seller").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Sales Agreement, dated as of
December 2, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Asset Sales Agreement"), by and between the Seller and the Buyer, the
Seller is concurrently herewith selling, assigning, conveying, transferring and
delivering to the Buyer the Purchased Assets (as defined in the Asset Sales
Agreement); and
WHEREAS, in partial consideration therefor, the Asset Sales
Agreement requires that the Buyer assume and agree to pay, perform or discharge
or cause to be paid, performed or discharged certain liabilities and obligations
of the Seller;
NOW, THEREFORE, in consideration of these premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Buyer agrees as follows:
1. Capitalized terms which are used in this Instrument of Assumption
(including Appendix I hereto) but are not defined in this Instrument of
Assumption shall have the meaning ascribed to such terms in the Asset Sales
Agreement.
2. The Buyer hereby assumes and agrees to pay, perform or discharge
in accordance with their terms, to the extent not heretofore paid, performed or
discharged and subject to the limitations contained in this Instrument of
Assumption, the liabilities and obligations of the Sellers which are described
in Appendix I hereto (the "Assumed Liabilities").
3. It is understood and agreed that nothing in this Instrument of
Assumption or in Section 2.3 of the Asset
95
Sales Agreement shall constitute a waiver or release of any claims arising out
of the contractual relationships between the Seller and the Buyer.
4. The assumption by the Buyer of the Assumed Liabilities shall not
be construed to defeat, impair or limit in any way the rights, claims or
remedies of the Buyer under the Asset Sales Agreement.
5. Other than as specifically set forth in this Instrument of
Assumption or in Section 2.3 of the Asset Sales Agreement, the Buyer shall not
assume or be obligated to pay, perform or otherwise discharge any liability or
obligation of the Seller, direct or indirect, known or unknown, absolute or
contingent, other than the Assumed Liabilities, including, without limitation,
any liabilities or obligation in respect of any Excluded Assets.
6. This Instrument of Assumption shall be enforceable against the
successors and assigns of the Buyer and shall inure to the benefit of the
successors and assigns of the Seller.
7. This Instrument of Assumption shall be governed by and construed
in accordance with the laws of the State of New York (regardless of the laws
that might otnerwise govern under applicable principles of conflicts of laws).
8. This Instrument of Assumption is delivered pursuant to and is
subject to the Asset Sales Agreement. the event of any conflict between the
terms of the Asset Sales Agreement and the terms of this Instrument of
Assumption, the terms of the Asset Sales Agreement shall prevail.
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IN WITNESS WHEREOF, this Instrument of Assumption has been duly
executed and delivered by the duly authorized representatives of the Buyer as of
the date first written.
ERIE BOULEVARD HYDROPOWER, L.P.
By_________________________________
Name:
Title:
Attest:
_______________________
Name:
Title:
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APPENDIX I
TO INSTRUMENT OF ASSUMPTION
Obligations Assumed
All of the liabilities and obligations of Seller, direct or
indirect, known or unknown, absolute or contingent, which principally relate to
the Purchased Assets, other than Excluded Liabilities, in accordance with the
respective terms and subject to the respective conditions thereof, including,
without limitation, the following liabilities and obligations:
[insert paragraphs (I) through (vii) of
Section 2..3(a) of the Asset Sales Agreement]
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98
EXHIBIT E
INTERCONNECTION AGREEMENT
BETWEEN
NIAGARA MOHAWK POWER CORPORATION AND
ERIE BOULEVARD HYDROPOWER, L.P.
Date: September 25, 1998
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TABLE OF CONTENTS
DEFINITIONS ............................................................... 3
AGREEMENT TO INTERCONNECT ................................................. 5
REPRESENTATIONS AND WARRANTIES OF PARTIES ................................. 7
MODIFICATION TO THE INTERCONNECTION FACILITY .............................. 9
POWER DELIVERIES .......................................................... 11
INSURANCE PROVISIONS ...................................................... 13
COMPLIANCE WITH LAWS ...................................................... 15
COST PAYMENTS ............................................................. 16
NOTICES ................................................................... 19
TERM AND TERMINATION ...................................................... 20
FORCE MAJEURE ............................................................. 21
RELATIONSHIP OF THE PARTIES ............................................... 22
THIRD PARTY BENEFICIARY/ASSIGNMENT ........................................ 22
APPROVAL .................................................................. 24
WAIVER .................................................................... 24
AMENDMENT AND MODIFICATION ................................................ 25
GOVERNING LAW ............................................................. 26
DISPUTE RESOLUTION ........................................................ 26
SEVERABILITY .............................................................. 27
HEADINGS .................................................................. 27
INTEGRATION/MERGER/SURVIVABILITY .......................................... 27
COMPLIANCE WITH THE NERC .................................................. 27
COUNTERPARTS .............................................................. 29
Exhibit A ................................................................. 30
Exhibit B ................................................................. 31
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403 This INTERCONNECTION AGREEMENT (hereinafter referred to as the
"AGREEMENT") is made as of___________, 1998. between NIAGARA MOHAWK POWER
CORPORATION (hereinafter referred to as "NIAGARA MOHAWK") and ERIE BOULEVARD
HYDROPOWER, L.P., a ________, (hereinafter referred to as the "PRODUCER").
WHEREAS, PRODUCER'S ability to deliver and sell ELECTRICITY to NIAGARA
MOHAWK and/or other purchasers from the PRODUCTION FACILITY is contingent on the
PRODUCTION FACILITY remaining interconnected to the TRANSMISSION SYSTEM through
the INTERCONNECTION FACILITY.
NOW THEREFORE, in consideration of the mutual obligations and undertakings
set forth herein, the parties to this AGREEMENT covenant and agree as follows:
ARTICLE I
DEFINITIONS
The terms listed below shall have the following meanings when used in this
INTERCONNECTION AGREEMENT.
1.1 This AGREEMENT shall become effective as of the date first above written
(the "EFFECTIVE DATE").
1.2 "INTERCONNECTION POINT" is the point at which the PRODUCTION FACILITY is
connected to the INTERCONNECTION FACILITY as indicated on a one-line
diagram included as part of Exhibit A.
1.3 "DELIVERY POINT" is the point at which the INTERCONNECTION FACILITY is
connected to the TRANSMISSION SYSTEM as indicated on a one-line diagram
included as part of Exhibit A.
1.4 "ELECTRICITY" shall mean electric capacity and/or energy produced by the
PRODUCTION FACILITY.
1.5 "FERC" shall mean the Federal Energy Regulatory Commission or successor
organization.
1.6 "GOOD UTILITY PRACTICE" shall mean any of the practices, methods and acts
engaged in or approved by a significant portion of the electric utility
industry during the relevant time period, or any of the practices, methods
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 the lowest reasonable cost consistent
with good business practices, reliability, safety and expedition. Good
Utility
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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 region and
consistently adhered to by the Company. GOOD UTILITY PRACTICE shall
include, but not be limited to North American Electric Reliability Council
("NERC") Criteria & Guidelines, Northeast Power Coordinating Council
("NPCC") Criteria & Guidelines, New York State Reliability Council
("NYSRC") if any, and New York Power Pool ("NYPP") criteria, rules and
standards, as they may be amended from time to time including the rules,
guidelines and criteria of any successor organization to the foregoing
entities.
1.7 "HAZARDOUS SUBSTANCE(S)" shall mean those substances, materials, products
or wastes which are classified as hazardous or toxic under any applicable
federal, state or local law, or any regulations promulgated thereunder,
effective the date of execution of this AGREEMENT, and the presence of
which requires redemption, removal or cleanup under this AGREEMENT.
1.8 "INTERCONNECTION FACILITY" shall include all those facilities and NIAGARA
MOHAWK PROPERTIES on which such facilities are located between the
INTERCONNECTION POINT and the DELIVERY POINT, necessary to effect the
transfer of ELECTRICITY, produced at the PRODUCTION FACILITY into NIAGARA
MOHAWK'S TRANSMISSION SYSTEM, including those facilities identified in
more particularity in Exhibit A to this AGREEMENT.
1.9 "NIAGARA MOHAWK PROPERTIES" shall mean those parcels of real property
and/or easements that NIAGARA MOHAWK uses for its transmission facilities
upon which portions of the INTERCONNECTION FACILITY have been constructed,
which parcels of real property and/or easements and facilities are
described in more particularity in Exhibit A hereto.
1.10 "PRODUCTION FACILITY" shall mean PRODUCER'S ELECTRICITY generating
facility with a maximum output of______ MW located in the Town of
_____________ County of, New York.
1.11 "TRANSMISSION SYSTEM" shall mean NIAGARA MOHAWK'S TRANSMISSION SYSTEM,
including any modifications subsequent to the date of this AGREEMENT.
1.12 "ELECTRIC SYSTEM BULLETIN No. 756" shall mean NIAGARA MOHAWK'S Electric
System Bulletin 756, dated December, 1997, and all subsequent revisions,
as it may be amended from time to time.
1.13 "INDEPENDENT SYSTEM OPERATOR" ("ISO") shall mean an organization formed in
accordance with FERC order (s) to administer the operation of the
transmission
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system, provide equal access to the transmission system of New York State,
and to maintain system reliability.
1.14 "ISLANDING" shall mean the separation of PRODUCER'S generation from
NIAGARA MOHAWK'S electric system while continuing to serve NIAGARA
MOHAWK'S isolated load.
1.1.5 "ELECTRIC SYSTEM EMERGENCY" shall mean an emergency condition defined by
criteria established by NPCC, NYSFC, the NYPP, or the New York ISO, or any
of their successors.
ARTICLE II
AGREEMENT TO INTERCONNECT
DESCRIPTION OF INTERCONNECTION FACILITY
2.1 NIAGARA MOHAWK and PRODUCER agree to remain interconnected in accordance
with the terms agreed to herein.
2.2 NIAGARA MOHAWK and PRODUCER shall be interconnected by means of the
INTERCONNECTION FACILITY, which NIAGARA MOHAWK shall operate, own and
maintain, at the PRODUCER's expense.
2.3 The PRODUCTION FACILITY shall include all facilities and equipment on the
PRODUCER's side of the INTERCONNECTION POINT as indicated on Exhibit A.
PRODUCER agrees that the installation of the electrical equipment and the
operation of the PRODUCTION FACILITY must meet or exceed the requirements
of NIAGARA MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756. Notwithstanding the
foregoing, NIAGARA MOHAWK acknowledges and agrees to the following
limitations for the existing PRODUCTION FACILITY as it pertains to NIAGARA
MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756:
2.3.1 If at the date of this AGREEMENT the PRODUCTION FACILITY does not
conform to NIAGARA MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756, but
was built in accordance with GOOD UTILITY PRACTICE and does not
present any adverse impact on NIAGARA MOHAWK'S TRANSMISSION SYSTEM
as determined by NIAGARA MOHAWK, then it is not the intent of this
AGREEMENT to cause the PRODUCER'S PRODUCTION FACILITY to immediately
upgrade to full compliance with ELECTRIC SYSTEM BULLETIN No. 756.
Any upgrades required to protect NIAGARA MOHAWK'S TRANSMISSION
SYSTEM from adverse impacts will be listed in Exhibit B [to be
provided] and must be completed within ninety (90) days of signing
this AGREEMENT unless otherwise mutually agreed upon by both
parties.
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2.3.2 The parties agree that it is the intent of this AGREEMENT to require
the PRODUCER'S PRODUCTION FACILITY to conform to ELECTRIC SYSTEM
BULLETIN No. 756 and therefore, agree that as additions,
modifications and replacements to PRODUCER'S PRODUCTION FACILITY are
implemented, the additions, modifications and replacements will
conform to ELECTRIC SYSTEM BULLETIN No. 756. If the PRODUCER
upgrades the system protection or upgrades technology employed at
the PRODUCTION FACILITY (for example, but not limited to,
repowering), at NIAGARA MOHAWK'S reasonable discretion exercised
consistent with GOOD UTILITY PRACTICE, the PRODUCER'S entire
PRODUCTION FACILITY will be brought into full compliance with the
requirements of ELECTRIC SYSTEM BULLETIN No. 756, at that time.
2.3.3 If PRODUCER relies on NIAGARA MOHAWK'S system protection equipment
and practices for protection of PRODUCTION FACILITY equipment,
PRODUCER agrees to indemnify, defend, and save NIAGARA MOHAWK, its
agents and employees, harmless from, and against any loss, damage,
liability (civil or criminal), cost, suit, charge, expense
(including reasonable attorneys fees) or cause of action, whether
conditionally certain or otherwise, arising from any damage to the
PRODUCTION FACILITY resulting from such reliance, as long as NIAGARA
MOHAWK maintains and performs such system protection equipment and
practices consistent with GOOD UTILITY PRACTICE.
2.3.4 NIAGARA MOHAWK reserves the right to operate the first means of
disconnect on the PRODUCER'S side of the INTERCONNECTION POINT.
2.3.5 NIAGARA MOHAWK reserves the right, and PRODUCER will maintain at no
cost to NIAGARA MOHAWK, the ability to transmit power to NIAGARA
MOHAWK'S existing customers that are interconnected as of December
2, 1998 whose electric services are supplied directly off the
PRODUCTION FACILITY'S bus without first going through the
INTERCONNECTION FACILITY.
2.3.6 Upon implementation of an ISO, if NIAGARA MOHAWK is given the option
whether to administer any requirement, rule or regulation of the ISO
or a requirement of Electric System Xxxxxxxx Xx. 000, XXXXXXX XXXXXX
may do so at its sole discretion.
2.4 PRODUCER recognizes that neither this AGREEMENT nor the PRODUCER'S
financial support of the INTERCONNECTION FACILITIES confers upon it any
right to transmit electricity over NIAGARA MOHAWK'S TRANSMISSION SYSTEM
other than through the INTERCONNECTION FACILITIES.
2.5 NIAGARA MOHAWK shall use due diligence, in accordance with GOOD UTILITY
PRACTICE, to operate and maintain the INTERCONNECTION FACILITIES and to
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have them available for the transmission of electricity. NIAGARA MOHAWK
shall consult with PRODUCER regarding the timing of scheduled maintenance
of the INTERCONNECTION FACILITY, which might reasonably be expected to
affect PRODUCER'S PRODUCTION FACILITY. NIAGARA MOHAWK shall, to the extent
practicable, schedule any maintenance to coincide with PRODUCER'S
scheduled outage. NIAGARA MOHAWK does not, however, guarantee or warrant
uninterrupted availability of the INTERCONNECTION FACILITIES or
TRANSMISSION SYSTEM. Curtailment of deliveries over the INTERCONNECTION
FACILITIES or TRANSMISSION SYSTEM shall be governed by the transmission
agreement or agreements between NIAGARA MOHAWK and the PRODUCER.
2.6 PRODUCER hereby grants NIAGARA MOHAWK all necessary rights of way,
easements, and licenses as NIAGARA MOHAWK may require to install, operate,
maintain, replace and remove NIAGARA MOHAWK'S facilities, including
adequate and continuing rights of access to PRODUCER'S property for any
purpose reasonably related to this AGREEMENT. PRODUCER hereby agrees to
execute such grants, deeds, licenses, instruments or other documents as
NIAGARA MOHAWK may require to enable it to record such rights of way,
easements and licenses.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 PRODUCER is a corporation duly organized and validly existing under the
laws of the State of _______. PRODUCER is qualified to do business under
the laws of the State of New York, is in good standing under the laws of
the State of New York, has the power and authority to own its properties,
to carry on its business as now being conducted, and to enter into this
AGREEMENT and the transactions contemplated herein and perform and carry
out all covenants and obligations on its part to be performed under and
pursuant to this AGREEMENT, and is duly authorized to execute and deliver
"this AGREEMENT" and consummate the transactions contemplated herein.
3.2 PRODUCER is not prohibited from entering into this AGREEMENT and
discharging and performing all covenants and obligations on its part to be
performed under and pursuant to this AGREEMENT. The execution and delivery
of this AGREEMENT, the consummation of the transactions contemplated
herein and the fulfillment of and compliance with the provisions of this
AGREEMENT will not conflict with or constitute a breach of or a default
under any of the terms, conditions or provisions of any law, rule or
regulation, any order, judgment, writ, injunction, decree, determination,
award or other instrument or legal requirement of any court or other
agency of government, the agreement of limited partnership of PRODUCER or
any contractual limitation, corporate restriction or outstanding trust
indenture, deed of trust, mortgage, loan agreement, lease, other evidence
of indebtedness or any other agreement or instrument to which PRODUCER is
a party or by which it or any of its property is bound and will not result
in
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a breach of or a default under any of the foregoing. This AGREEMENT is the
legal, valid and binding obligation of PRODUCER enforceable in accordance
with its terms, except as limited by applicable reorganization,
insolvency, liquidation, readjustment of debt, moratorium, or other
similar laws affecting the enforcement of rights of creditors generally as
such laws may be applied in the event of a reorganization, insolvency.
liquidation, readjustment of debtor other similar proceeding of or
moratorium applicable to PRODUCER and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law.)
3.3 NIAGARA MOHAWK is a corporation duly organized, validly existing and
qualified to do business under the laws of the State of New York, is in
good standing under its certificate of incorporation and the laws of the
State of New York, has the corporate authority to own its properties, to
carry on its business as now being conducted, and to enter into this
AGREEMENT and the transactions contemplated herein and perform and carry
out all covenants and obligations on its part to be performed under and
pursuant to this AGREEMENT, and is duly authorized to execute and deliver
this AGREEMENT and consummate the transactions contemplated herein.
3,4 NIAGARA MOHAWK is not prohibited from entering into this AGREEMENT and
discharging and performing all covenants and obligations on its part to be
performed under and pursuant to this AGREEMENT pending review and
acceptance of the terms of this AGREEMENT by the FERC or successor
organization. The execution and delivery of this AGREEMENT and upon its
acceptance for filing by the FERC, the consummation of the transactions
contemplated herein and the fulfillment of and compliance with the
provisions of this AGREEMENT will not conflict with or constitute a breach
of or a default under any of the terms, conditions or provisions of any
law, rule or regulation, any order, judgment, writ, injunction, decree,
determination, award or other instrument or legal requirement of any court
or other agency of government, the certificate of incorporation or bylaws
of NIAGARA MOHAWK or any contractual limitation, corporate restriction or
outstanding trust indenture, deed of trust, mortgage, loan agreement,
lease, other evidence of indebtedness or any other agreement or instrument
to which NIAGARA MOHAWK is a party or by which it or any of its property
is bound and will not result in a breach of or a default under any of the
foregoing. This AGREEMENT is the legal, valid and binding obligation of
NIAGARA MOHAWK upon its acceptance for filing by the FERC becomes
enforceable in accordance with its terms, except as limited by later order
of the FERC, applicable reorganization, insolvency, liquidation,
readjustment of debt, moratorium, or other similar laws affecting the
enforcement of rights of creditors generally as such laws may be applied
in the event of a reorganization, insolvency, liquidation, readjustment of
debt or other similar proceeding of or moratorium applicable to PRODUCER
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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ARTICLE IV
MODIFICATION TO THE INTERCONNECTION FACILITY
4.1 NIAGARA MOHAWK shall retain the discretion to determine whether, when, and
in what manner replacements or upgrades to the INTERCONNECTION FACILITIES
shall be installed. NIAGARA MOHAWK shall exercise that discretion in
accordance with GOOD UTILITY PRACTICE. Any such replacements or upgrades
that are installed shall be deemed to be INTERCONNECTION FACILITIES for
purposes of this AGREEMENT.
4.2 NIAGARA MOHAWK shall notify the PRODUCER if it determines that a
replacement or upgrade to any portion of the INTERCONNECTION FACILITIES is
necessary or advisable. If the replacement upgrade is necessitated by
actions taken by PRODUCER. the actual cost of designing, permitting,
installing and operating the replacement or upgrade shall be included in
the charges calculated in accordance with Article VIII. PRODUCER shall
also be responsible for all costs related to the PRODUCTION FACILITY, if
any, caused by said replacement and/or upgrade.
4.3 If PRODUCER plans any additions, modifications or replacements to the
PRODUCTION FACILITY which may effect the electrical interconnection
between the PRODUCTION FACILITY and the INTERCONNECTION FACILITY or
NIAGARA MOHAWK's TRANSMISSION SYSTEM, PRODUCER shall put forth its best
efforts to give NIAGARA MOHAWK not less than one (1) year prior written
notice thereof accompanied by appropriate plans, specifications,
information and operating instructions impacting NIAGARA MOHAWK'S electric
operations, of any such addition, modification or replacement. All such
additions, modifications or replacements shall meet NIAGARA MOHAWK'S
ELECTRIC SYSTEM XXXXXXXX Xx. 000, XXXX, XXXX, XXXX, NYSRC, or its
respective successors, the standards of GOOD UTILITY PRACTICE and shall be
subject to the approval of NIAGARA MOHAWK. which approval shall not
unreasonably be withheld.
4.4 PRODUCER shall be responsible for the costs of any modifications to the
INTERCONNECTION FACILITIES that arise from changes to the PRODUCTION
FACILITY in accordance with this AGREEMENT.
4.5 If, during the term of this AGREEMENT, NIAGARA MOHAWK determines that it
is necessary to relocate, rearrange, abandon, or retire its TRANSMISSION
SYSTEM, so that a change is required to a section of the INTERCONNECTION
FACILITY, NIAGARA MOHAWK shall put forth its best efforts to give the
PRODUCER no less than one (1) year's written notice of such relocation or
rearrangement and shall use all reasonable efforts to defer such
relocation or rearrangement until the INTERCONNECTION FACILITY can be
reconfigured so that service may continue without interruption.
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4.6 If NIAGARA MOHAWK is required or ordered by governmental authority to
relocate, rearrange, abandon, or retire its TRANSMISSION SYSTEM requiring
modification to the INTERCONNECTION FACILITY, NIAGARA MOHAWK shall
promptly so notify PRODUCER.
4.7 If relocation, rearrangement, abandonment, or retirement is required (as
referred to in paragraphs 4.5 and 4.6) due to an action taken by PRODUCER
or a governmental authority, NIAGARA MOHAWK shall perform or have
performed, at PRODUCER'S expense, the studies necessary to identify
modifications to the INTERCONNECTION FACILITY and shall inform the
PRODUCER of its estimate of the costs of the construction of the modified
INTERCONNECTION FACILITY, and PRODUCER shall at its option either (i)
reimburse NIAGARA MOHAWK for the actual costs of the construction of such
modification in accordance with Article VIII of this AGREEMENT: (ii)
construct, at its own expense, a new INTERCONNECTION FACILITY subject to
the terms of this AGREEMENT; or (iii) terminate this AGREEMENT, upon no
less than thirty (30) days written notice to NIAGARA MOHAWK. If
relocation, rearrangement, abandonment, or retirement is required due to
an action taken by NIAGARA MOHAWK or by a third party with the approval of
NIAGARA MOHAWK, NIAGARA MOHAWK shall be responsible for all costs to
modify the INTERCONNECTION FACILITY.
4.8 If the relocation, rearrangement, abandonment, or retirement is ordered or
required by governmental authority, NIAGARA MOHAWK shall endeavor to
obtain compensation on behalf of PRODUCER from such governmental authority
for its mutually agreed upon share of the costs of such relocation or
rearrangement, but in no event shall NIAGARA MOHAWK be responsible on its
own account for reimbursing PRODUCER for any costs associated with such
relocation or rearrangement.
4.9 If the PRODUCER elects to construct, at its own expense, a new section of
the INTERCONNECTION FACILITY subject to the terms of this AGREEMENT, then
the PRODUCER shall assign all rights, title and interest in such new
section of the INTERCONNECTION FACILITY to NIAGARA MOHAWK upon completion
of construction and shall execute all necessary documents to effectuate
transfer of ownership thereof to NIAGARA MOHAWK. PRODUCER shall obtain any
necessary permits, authorizations and rights-of-way for the new section of
the INTERCONNECTION FACILITY, in accordance with this AGREEMENT, the costs
thereof to be borne by the PRODUCER. Regardless of whether NIAGARA MOHAWK
or the PRODUCER constructs a new section of the INTERCONNECTION FACILITY,
NIAGARA MOHAWK shall own, operate and maintain, at PRODUCER's expense, any
such new section as part of the INTERCONNECTION FACILITY, and PRODUCER
shall reimburse NIAGARA MOHAWK for all costs of operating and maintenance
expenses for any new section of the INTERCONNECTION FACILITY in accordance
with Article VIII.
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4.10 PRODUCER acknowledges and agrees that NIAGARA MOHAWK reserves the rights
and ability to deliver ELECTRICITY to all customers. If, during the term
of this AGREEMENT, NIAGARA MOHAWK determines that it is necessary to
relocate or rearrange the INTERCONNECTION POINT, in order to permit
NIAGARA MOHAWK access or to deliver electricity to its customers or new
customers, so that a change is required to a section of the
INTERCONNECTION FACILITY, NIAGARA MOHAWK shall put forth its best efforts
to give the PRODUCER no less than one (1) year's written notice of such
relocation or rearrangement and shall use all reasonable efforts to defer
such relocation or rearrangement until the INTERCONNECTION FACILITY can be
reconfigured so that service to PRODUCER may continue without
interruption.
ARTICLE V
POWER DELIVERIES
5.1. METERING
5.1.1 NIAGARA MOHAWK shall, at PRODUCER'S expense, provide, own, and
maintain compatible metering equipment. PRODUCER shall provide
suitable space within its facilities for installation of the
metering equipment.
5.1.2 PRODUCER shall be responsible for providing all necessary
communication equipment and transmission mediums, such as telephone
lines and any necessary protection for such communication equipment
and shall furthermore be responsible for all communication required
by NIAGARA MOHAWK or NYPP or its successor.
5.1.3 All metering equipment installed pursuant to this AGREEMENT and
associated with the PRODUCTION FACILITY may be routinely tested by
NIAGARA MOHAWK, in accordance with applicable NIAGARA MOHAWK, NYPP,
NERC and GOOD UTILITY PRACTICE.
5.1.4 If, at any time, any metering equipment is found to be inaccurate by
more than the limits defined in 16 NYCRR Part 92 as may be amended
from time to time, NIAGARA MOHAWK shall cause such metering
equipment to be made accurate or replaced at PRODUCER'S expense.
Meter readings for the period of inaccuracy shall be adjusted so far
as the same can be reasonably ascertained; provided, however, no
adjustment prior to the beginning of the preceding month shall be
made except by agreement of the parties. 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 ELECTRICITY delivered from the
PRODUCTION FACILITY. If either party
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believes that there has been a meter failure or stoppage, it shall
immediately notify the other.
5.1.5 PRODUCER shall be responsible for purchasing and installing
software, hardware and/or other technology that may be required to
read billing meters.
5.2 LOSSES
5.2.1 If the metering equipment and the DELIVERY POINT are not at the same
location, the metering equipment shall record delivery of
electricity in a manner that accounts for losses occurring between
the metering point and the DELIVERY POINT. If the metering equipment
does not have the capability of accounting for said losses, then
either party may install metering equipment to account for said
losses or the meter readings shall be multiplied by _____ to account
for said losses between the metering point and the DELIVERY POINT.
The metering point, DELIVERY POINT, associated equipment and
distance between the metering point and the DELIVERY POINT shall be
specified in Exhibit A.
5.3. REACTIVE POWER SUPPORT
5.3.1. PRODUCER is required to provide reactive capability to regulate and
maintain system voltage at the DELIVERY POINT in conformance with
ELECTRIC SYSTEM BULLETIN No. 756. NIAGARA MOHAWK or NYPP or its
successor shall establish a scheduled range of voltages or reactive
power deliveries to be maintained by the generator.
5.4 OPERATING FREQUENCY
5.4.1 PRODUCER is responsible for the proper coordination of any applied
under/over frequency generator tripping as per 756, Appendix C,
Section II, A, 2.7. If the PRODUCTION FACILITY elects to employ
under frequency generator tripping protection, then the under
frequency relay set point MUST be on or below the under frequency
curve referred to in 756, Appendix C, Section IV, A., 3.0, Exhibit
C-1. Similarly, if the PRODUCTION FACILITY elects to employ over
frequency generator tripping protection, then the over frequency
relay set point MUST be on or above the over frequency curve
referred to in 756, Appendix C, Section IV, A., 3.0, Exhibit C-I. If
the PRODUCTION FACILITY decides that, after consultation with
NIAGARA MOHAWK, it cannot meet the under frequency tripping set
point limitation referred to in Exhibit C-1, then PRODUCER shall
agree to fund the cost incurred by NIAGARA MOHAWK to install and
maintain compensatory load shedding equipment required by the NYSRC.
If the PRODUCER decides that it cannot meet the over frequency
tripping set point
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limitation referred to in Exhibit C-1, PRODUCER shall consult with
NIAGARA MOHAWK and NIAGARA MOHAWK will notify PRODUCER of any
consequences associated with that decision.
5.5 OPERATING VOLTAGE
5.5.1 PRODUCER is expected to adhere to the operating voltage performance
referred to in 756 Appendix C, Section II, B, 2.2 and 756 Appendix
C, Section IV. B. PRODUCER is responsible for the proper
coordination of any applied under/over voltage generator tripping as
per 756, Appendix C, Section II, A., 2.7. If the PRODUCER elects to
employ over voltage or under voltage protection, then the over
voltage and under voltage relay settings shall be reviewed and
approved by NIAGARA MOHAWK.
5.6 ISLANDING
5.6.1 With reference to 756, Appendix C, Section II, A., 2.4 , during an
ELECTRIC SYSTEM EMERGENCY, NIAGARA MOHAWK reserves the right to
require. allow or prevent the ISLANDING of PRODUCER'S generation
depending upon the prevailing NIAGARA MOHAWK electrical system
operational needs at the time to the extent that PRODUCER'S
PRODUCTION FACILITY was capable of same just prior to the date of
this AGREEMENT.
5.7 PROTECTIVE DEVICE
5.7.1 PRODUCER shall cooperate with NIAGARA MOHAWK on protective device
settings and verification in accordance with 756, Appendix B,
Section II, C and 756, Appendix C, Section V, B.
ARTICLE VI
INSURANCE PROVISIONS
6.1 Upon the EFFECTIVE DATE of this AGREEMENT, the PRODUCER shall provide and
maintain at its own expense, insurance policies, intended to be primary,
issued by reputable insurance companies reasonably acceptable to NIAGARA
MOHAWK, which meet or exceed the requirements listed herein:
6.1.1 Workers Compensation and Employers Liability Insurance as required
by the State of New York. Coverage shall include the U.S.
Longshoremen's, and Harbor Workers Compensation Act and the Xxxxx
Act;
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6.1.2 Comprehensive General Liability (Including Contractual Liability),
covering all operations to be performed under this AGREEMENT, with
minimum limits of:
(i) Bodily Injury - $1,000,000/S1,000,000
Property Damage - $1,000,000/$ 1,000,000 OR
(ii) Combined Single Limit - $1,000,000
OR
(iii) Bodily Injury and Property Damage per Occurrence - $1,000,000
General Aggregate & Product Aggregate - $2,000,000 each
6.1.3 Umbrella Liability, coverage with a minimum limit of S 4,000,000.
6.2 NIAGARA MOHAWK shall be included as an additional insured for all
coverages in order to provide NIAGARA MOHAWK protection from liability
arising out of PRODUCER activities at the INTERCONNECTION FACILITY.
6.3 PRODUCER agrees to insure or cause to be insured, on its own side of the
DELIVERY POINT against loss or damage of the kinds usually insured against
by operators similarly situated, by means of policies issued by reputable
insurance companies acceptable to NIAGARA MOHAWK with uniform standard
coverage endorsement limited only as may be provided in the standard form
of extended coverage endorsement at that time in use in New York, in
amounts that are not less than the full insurable value of the
INTERCONNECTION FACILITY and with such deductible provision as are
customarily included by operators similarly situated. The term "full
insurable value", as used herein, shall mean the actual replacement value.
Alternatively, PRODUCER may insure or cause to be insured such property
under a blanket insurance policy or policies which cover not only such
property but other properties in the amount required by the previous
sentence.
6.4 In the event that PRODUCER uses subcontractors in connection with this
AGREEMENT, PRODUCER shall require all subcontractors provide the same
insurance coverages as indicated in paragraph 6.1.1, 6.1.2 and 6.1.3.
6.5 Upon the EFFECTIVE DATE of this AGREEMENT, PRODUCER shall promptly provide
NIAGARA MOHAWK with the original Owners Protective Liability policy and
(i) Certificate(s) of Insurance for all other coverages required herein at
the following address:
To: Niagara Mohawk Power Corporation
Attn: Risk Management, Bldg. C-1
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
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Such certificates, and any renewals or extensions thereof, shall provide
that at least thirty (30) days prior written notice shall be given to
NIAGARA MOHAWK in the event of any cancellation or diminution of coverage
and shall outline the amount of deductibles or self-insured retentions
which shall be for the account of PRODUCER. Such deductibles or
self-insured retentions shall not exceed $100,000 unless agreed to by
NIAGARA MOHAWK'S Risk Management Department.
6.6 If any insurance coverage is not secured, maintained or is canceled before
the completion of all services provided under this AGREEMENT, and PRODUCER
fails immediately to procure such insurance as specified, within ten (10)
days after written notice is given by NIAGARA MOHAWK of the need for such
insurance coverage, NIAGARA MOHAWK has the right to procure such insurance
and to deduct the cost thereof from any sum due the PRODUCER under this
contract or PRODUCER shall furnish NIAGARA MOHAWK'S Risk Management
Department with copies of any accidents report(s) sent to PRODUCER
insurance carriers covering accidents occurring in connection with or as a
result of the performance of the work under this AGREEMENT.
6.7 These requirements are in addition to any which may be required elsewhere
in the AGREEMENT. PRODUCER shall comply with any governmental and/or site
specific insurance requirements even if not stated herein.
6.8 PRODUCER shall notify NIAGARA MOHAWK'S Risk Management Department in
writing when coverages required herein have been reduced as a result of
claim payments, expenses, or both.
6.9 PRODUCER represents that it has full policy limits available and shall
notify NIAGARA MOHAWK'S Risk Management Department in writing when
coverages required herein have been reduced as a result of claim payments,
expenses, or both.
6.10 Nothing contained in these insurance requirements is to be construed as
limiting the extent of the PRODUCER'S responsibility for payment of
damages, or limiting, diminishing, or waiving contractor's obligation to
indemnify, defend and save harmless NIAGARA MOHAWK in accordance with this
AGREEMENT.
ARTICLE VII
COMPLIANCE WITH LAWS
7.1 PRODUCER agrees to comply in all material respects with all applicable
federal, state and local laws, ordinances, rules, regulations, permits,
licenses, approvals, certificates, and requirements thereunder in
connection with all its activities performed pursuant to this AGREEMENT,
including, but not limited to all design, environmental, regulatory,
engineering, construction, and property acquisition activities.
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7.2 PRODUCER agrees to indemnify, defend, and save NIAGARA MOHAWK, its agents
and employees, harmless from, and against any loss, damage, liability
(civil or criminal), cost, suit, charge, expense (including reasonable
attorneys fees) or cause of action, whether conditionally certain or
otherwise, arising from violations by PRODUCER of said laws, ordinances,
rules, regulations, permits, licenses, approvals, certificates and
requirements thereunder. PRODUCER agrees to bear fully all civil and
criminal penalties that may arise from its activities or from its
violations of or its failure to comply with the aforementioned laws and
requirements, whether such penalties are assessed against PRODUCER or
NIAGARA MOHAWK.
7.3 If PRODUCER observes that any requirement specified in this AGREEMENT is
at variance with any governing laws, ordinances, rules, regulations,
permits, licenses, approvals, certificates and requirements thereunder,
PRODUCER shall promptly notify NIAGARA MOHAWK in writing before incurring
any further liability, expense or obligation. NIAGARA MOHAWK and PRODUCER
shall in good faith attempt to reform this AGREEMENT to comply with the
aforementioned laws, ordinances, rules, regulations, permits, approvals,
or certificates. If NIAGARA MOHAWK and PRODUCER, are unable to do so,
either party may terminate this AGREEMENT.
ARTICLE VIII
COST PAYMENTS
8.1 NIAGARA MOHAWK shall invoice PRODUCER at the end of each calendar quarter
in an amount equal to NIAGARA MOHAWK'S actual costs and expenses for that
quarter for which NIAGARA MOHAWK is to be reimbursed under this AGREEMENT.
8.2 PRODUCER shall reimburse NIAGARA MOHAWK for PRODUCER'S share of all of the
following actual costs incurred, consistent with GOOD UTILITY PRACTICE, by
NIAGARA MOHAWK after the EFFECTIVE DATE with respect to the
INTERCONNECTION FACILITY and Interconnection upgrade facilities:
8.2.1 All NIAGARA MOHAWK costs and expenses associated with the
acquisition, ownership, operation, administration, inspection,
design review, engineering, surveying, project management and
coordination, testing of electrical equipment and installation of
EMS-RTU and metering equipment, construction, financing,
maintenance, environmental and regulatory permitting and licensing
of, taxes and transfer of title and interest to, the INTERCONNECTION
FACILITY, and any modified facility.
8.2.2 All NIAGARA MOHAWK costs and expenses in connection with
INTERCONNECTION STUDIES related to this INTERCONNECTION FACILITY.
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8.2.3 All NIAGARA MOHAWK costs and expenses of acquiring, owning,
designing, engineering, constructing, financing, taxes,
environmental permitting, and licensing, or any new or modified
facilities.
8.2.4 All legal fees and costs incurred by NIAGARA MOHAWK arising out of
its exercise of eminent domain powers.
8.2.5 Any capital costs associated with modification performed in
accordance with this AGREEMENT.
8.2.6 The PRODUCER shall reimburse NIAGARA MOHAWK for PRODUCER'S share of
any and all actual costs or expenses that are incurred consistent
with GOOD UTILITY PRACTICE by NIAGARA MOHAWK after the EFFECTIVE
DATE pursuant to this AGREEMENT for the operation, maintenance and
repair of the INTERCONNECTION FACILITY as follows:
8.2.6.1 Operation, maintenance and repair costs and expenses shall
include all actual costs and expenses associated with
operation, inspection, engineering and legal services,
contract administration, rights-of-way acquisition,
administrative and general, working capital (including
material adders, overhead charges, and transportation
charges), and allowed earnings and/or rates of return
approved by a regulatory body having jurisdiction, including
but not be limited to, the following:
(i) Power Delivery Inspections: Monthly substation
inspections by a traveling operator to inspect
substation equipment for physical indications of
potential problems. The inspection includes the
documentation of equipment status, gauge indications and
equipment loading. Includes substation security
inspections to prevent unauthorized entry. Documentation
of all such inspections to be provided to PRODUCER.
Switching: Periodic switching to remove or install
electrical equipment in service for scheduled work
activities or during emergency conditions for equipment
restoration activities. Disconnects: Maintenance
activities associated with disconnects based on work
request generated by a traveling operator or as part of
equipment maintenance requirements. Breakers: Preventive
and corrective maintenance conducted on high voltage
circuit breakers based on field observations, problems
or per established maintenance procedures intervals.
Relay PM: Preventive and corrective maintenance
conducted on relay related problems or per established
relay maintenance procedure intervals.
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(ii) Regional Control Center
EMS Switching: Administrative and support functions in
the corrective and preventive maintenance activities of
circuits and equipment conducted by Power Delivery and
T&D departments. Work activities include emergency
switching and restoration requirements, sequence of
switching instructions, directing switching activities,
xxxx-up procedures, and associated documentation.
(iii) Forestry
Stations: Includes substation yard herbicide program.
ROW Maintenance: Includes the ROW maintenance program
associated with substation and transmission circuits.
(iv) Transmission and Delivery
Operation and Maintenance: Corrective and maintenance of
transmission, sub-transmission and distribution
circuits. Operation and maintenance activities include
patrols, maintenance and repair activities of facilities
per established electric operating procedures.
8.2.7 Any and all federal, state or local taxes levied or assessed on
NIAGARA MOHAWK, with respect to the INTERCONNECTION FACILITY, or
payments made to NIAGARA MOHAWK by PRODUCER for services provided by
NIAGARA MOHAWK under this AGREEMENT including, but not limited to,
the following: transfer tax, property tax, federal income tax, New
York State taxes. If any form of tax, other than income or excess
profits tax, under any present or future federal, state or other law
different from or in addition to the taxes for which participation
in or payment by PRODUCER is provided herein or elsewhere in this
AGREEMENT, should be levied or assessed against or incurred by
NIAGARA MOHAWK with respect to any property, property right,
commodity, service, or other matter involved in, growing out of or
accruing from NIAGARA MOHAWK'S performance under this AGREEMENT,
which different or additional tax would not be required to be paid
by NIAGARA MOHAWK in the absence of this AGREEMENT and, with respect
to such different or additional tax, no obligation of PRODUCER to
participate or pay would have attached under the provisions of this
AGREEMENT elsewhere than in this paragraph, then in such event
PRODUCER shall fully reimburse NIAGARA MOHAWK for the full amount of
such different or additional tax paid by NIAGARA MOHAWK.
8.2.8 Increased Income Tax to NIAGARA MOHAWK Arising from PRODUCER'S
Payment or Reimbursement of Tax Under the Proceeding Provisions.
PRODUCER shall fully reimburse NIAGARA MOHAWK for any net actual
federal income tax or New York State tax ("Tax"), if any, arising
out of any
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payment or reimbursement of any tax by PRODUCER under this Article.
The amount reimbursed to NIAGARA MOHAWK under this paragraph shall
consist of(l) the initial amount of net actual Tax arising under
this paragraph (the "First Amount"); (2) the net actual Tax on the
First Amount (the "Second Amount"); (3) the net actual Tax on the
Second Amount (the "Third Amount"); and (4) the net actual Tax on
the Third Amount and on each succeeding amount until the final
amount is less than one dollar.
8.2.9 NIAGARA MOHAWK agrees to cooperate with PRODUCER in attempting to
minimize NIAGARA MOHAWK'S costs under this Article, provided
PRODUCER reimburses NIAGARA MOHAWK for all costs incurred by NIAGARA
MOHAWK in connection with such cooperation, including reasonable
attorneys fees, and provided further that PRODUCER shall indemnify,
defend, and save harmless NIAGARA MOHAWK its agents and employees,
against any and all penalties, judgments, fines civil or criminal,
or other costs that may be imposed by any governmental authority as
a result hereof.
8.3 PRODUCER agrees to pay all invoices within thirty (30) days from date of
the invoice. If any invoice remains unpaid thirty (30) days from the
invoice date, NIAGARA MOHAWK shall apply to the unpaid balance, and
PRODUCER shall pay, a finance charge at the rate of one and one-half
percent (1.5%) per month, but in no event more than the maximum allowed by
law.
8.4 In the event that NIAGARA MOHAWK is the purchaser of power from the
PRODUCTION FACILITY, any outstanding invoices which the PRODUCER has not
paid to NIAGARA MOHAWK shall be deducted from the payments due PRODUCER by
NIAGARA MOHAWK.
ARTICLE IX
NOTICES
9.1 All notices required or permitted under this AGREEMENT shall be in writing
and shall be personally delivered or sent by certified or registered first
class mail, postage prepaid, telex, facsimile transmission, or overnight
express mail or courier service addressed as follows:
To PRODUCER: To NIAGARA MOHAWK POWER
CORPORATION:
_______________________ MANAGER-TRANSMISSION
_______________________ & DELIVERY SERVICES
_______________________ NIAGARA MOHAWK POWER
_______________________ CORPORATION
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_______________________ 000 Xxxx Xxxxxxxxx Xxxx
_______________________ Xxxxxxxx, XX 00000
9.2 Either party may change its address for notices by notice to the other in
the manner provided above.
9.3 Notwithstanding paragraph 9.1, any notice hereunder, with respect to a
system emergency or other occurrence requiring prompt attention, may be
made by telephone provided that such notice is confirmed in writing
promptly thereafter.
9.4 These representatives as noted in paragraph 9.1 or their designees shall
be authorized to act on behalf of the parties, and their instructions,
requests, and decisions will be binding upon the parties as to all matters
pertaining to this AGREEMENT and the performance of the parties hereunder.
Only these representatives shall have the authority to commit funds or
make binding obligations on behalf of the parties. These representatives
shall be responsible for tracking work, costs, schedules and all other
matters related to this AGREEMENT, and to the performance of any third
parties.
9.5 NIAGARA MOHAWK shall give Buyer 24 hours advance notice before conducting
any inspection referenced in paragraph 8.2.6.2(i) above.
ARTICLE X
TERM AND TERMINATION
10.1 This AGREEMENT shall become effective as of the date first above written
(the "EFFECTIVE DATE"), subject to its approval or acceptance for filing
by the FERC, and shall continue in effect for thirty (30) years.
10.2 This AGREEMENT shall not merge with or be terminated or superseded by any
future agreement between the parties that does not specifically so
provide.
10.3 In the event PRODUCER abandons the PRODUCTION FACILITY; becomes insolvent;
or assigns or sublets this AGREEMENT in a manner inconsistent with this
AGREEMENT, or is violating any of the material conditions, terms,
obligations, or covenants of this AGREEMENT, or is not executing this
AGREEMENT in good faith, NIAGARA MOHAWK may terminate this AGREEMENT.
Before instituting proceedings before FERC to terminate the AGREEMENT,
NIAGARA MOHAWK must give PRODUCER written notice of the reasons for
termination. If within a period of thirty (30) days of such notice
PRODUCER cures the default or breach cited by NIAGARA MOHAWK in such
notice, to the reasonable satisfaction of NIAGARA MOHAWK, and shall have
complied with the provisions of this AGREEMENT, such notice shall become
null and void and of no effect.
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10.4 In the event of a billing dispute between NIAGARA MOHAWK and the PRODUCER.
NIAGARA MOHAWK will not apply to remove the INTERCONNECTION FACILITIES
from service or to terminate transmission service thereon as long as the
PRODUCER: (i) continues to make all payments not in dispute and (ii) pays
into an independent escrow account the portion of the invoice in dispute,
pending resolution of such dispute. If the PRODUCER fails to meet these
two requirements, then a default shall be deemed to exist, to which the
procedures set forth in this section for the removal of the
INTERCONNECTION FACILITIES from service shall apply.
10.5 Termination of this AGREEMENT shall not relieve PRODUCER of any of its
liabilities and obligations arising hereunder prior to the date
termination becomes effective, and NIAGARA MOHAWK may take whatever
judicial or administrative actions as appear necessary or desirable to
enforce its rights hereunder. The rights specified herein are not
exclusive and shall be in addition to all other remedies available to
NIAGARA MOHAWK, either at law or in equity, for default or breach of any
provision of this AGREEMENT.
10.6 PRODUCER shall be liable to NIAGARA MOHAWK for all costs, expenses,
liabilities and obligations, including reasonable attorneys' fees,
incurred by NIAGARA MOHAWK that result from or relate to the termination
of this AGREEMENT.
10.7 In the event of termination of this AGREEMENT in accordance with Article
X, NIAGARA MOHAWK will physically disconnect the PRODUCTION FACILITY from
the TRANSMISSION SYSTEM and at NIAGARA MOHAWK'S sole determination remove
any or all of NIAGARA MOHAWK'S INTERCONNECTION FACILITY equipment.
ARTICLE XI
FORCE MAJEURE
11.1 Neither party shall be considered to be in default or breach hereunder,
and shall be excused from performance hereunder, if and to the extent that
it shall be delayed in or prevented from performing or carrying out any
provisions of this AGREEMENT by reason of storm, flood, lightning strikes,
earthquake, fire, ice, snow, epidemic, war, invasion, riot, civil
disturbance, sabotage, explosion, insurrection, military or usurped power,
strikes, stoppage of labor, labor dispute, failure of contractors or
supplies of material, action of any court or governmental authority, or
any civil or military authority de facto or de jure, change in law, act of
God or the public enemy, or any other cause beyond either party's control,
including, without limitation, disconnection or limited operation of
NIAGARA MOHAWK'S electric system, unscheduled repairs or maintenance, fuel
or energy shortages, or equipment breakdown. A party's year 2000 computer
compliance failure shall not constitute force majeure.
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11.2 The party claiming force majeure shall use due diligence to resume
performance or the provision of service hereunder as soon as practicable.
11.3 Neither party shall be liable to the other party for or on account of any
loss, damage. injury or expense, including, but not limited to, special,
indirect and consequential damages, resulting from or arising out of such
delay or inability to perform.
ARTICLE XII
RELATIONSHIP OF THE PARTIES
12.1 Except as expressly provided in Article III, nothing contained in this
AGREEMENT shall be construed or deemed to cause, create, constitute, give
effect to, or otherwise recognize PRODUCER and NIAGARA MOHAWK to be
partners, joint venturers, employer and employee, principal agent, or any
other business association, with respect to any matter.
12.2 Except as expressly provided in Article III or unless otherwise agreed to
in writing signed by both parties, neither party shall have any authority
to create or assume in the other party's name or on its behalf any
obligation, express or implied or to act or purport to act as the other
party's agent or legal empowered representative for any purpose
whatsoever.
12.3 Neither party shall be liable to any third party in any way for any
engagement, obligation, commitment, contract, representation or for any
negligent act or omission to act of the other party, except as expressly
provided for herein.
12.4 The rights and obligations of the parties shall be limited to those
expressly set forth herein.
ARTICLE XIII
THIRD PARTY BENEFICIARY/ASSIGNMENT
13.1 No person or party shall have any rights or interests, direct or indirect,
in this AGREEMENT or the services or facilities to be provided hereunder,
or both, except the parties, their successors, and authorized assigns.
13.2 The parties specifically disclaim any intent to create any rights in any
person or party as a third-party beneficiary to this AGREEMENT or to the
services or facilities to be provided hereunder, or both.
13.3 PRODUCER may assign or collaterally assign this AGREEMENT to lenders, or
any financial institution participating in financing PRODUCER's
INTERCONNECTION FACILITY or property acquisition, or to any partnerships
created to operate PRODUCER's facilities, or to any other parties upon
prior written notification to NIAGARA MOHAWK.
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13.4 PRODUCER agrees to reimburse NIAGARA MOHAWK for costs and expenses
(including reasonable fees and expenses of NIAGARA MOHAWK'S counsel)
incurred in connection with NIAGARA MOHAWK'S review, execution and
delivery of instruments, agreements or documents necessary in connection
with the PRODUCER'S assignment, transfer, sale or other disposition of
this AGREEMENT or any interest in the INTERCONNECTION FACILITY.
13.5 Any assignment in violation of Article XIII shall be considered null and
void from its inception.
13.6 Any NIAGARA MOHAWK authorized assignment shall not relieve PRODUCER of the
responsibility of full compliance with the requirements of this AGREEMENT,
except in connection with the sale or disposition of the PRODUCTION
FACILITY or the merger of the PRODUCER.
13.7 PRODUCER shall not make any assignment unless and until its successor in
interest has agreed to undertake the obligations accepted by PRODUCER
herein, and has provided written assurances to NIAGARA MOHAWK of continued
performance and protection against liability upon assignment.
13.8 Assignment contrary to the provisions of this AGREEMENT shall make
PRODUCER the indemnitor of NIAGARA MOHAWK and its successors, against any
liabilities and costs, including attorneys fees as to which PRODUCER'S
transferee fails to indemnify, defend, and hold harmless NIAGARA MOHAWK,
its agents, employees and its successors, from and against any loss,
damage, liability (civil or criminal), cost, suit, charge, expense
(including reasonable attorneys fees) or cause of action, whether
unconditionally certain or otherwise, incurred by NIAGARA MOHAWK as a
result of said assignment or as a result of any dispute between PRODUCER
and its transferees, or between any subsequent transferees, that arises
from or relates to any assignment by PRODUCER.
13.9 This AGREEMENT shall bind and inure to the benefit of the parties to this
AGREEMENT, their successors and permitted assigns.
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ARTICLE XIV
APPROVAL
14.1 NIAGARA MOHAWK shall file this AGREEMENT with the appropriate regulatory
authorities. If such regulatory body substantially modifies the terms and
conditions of this AGREEMENT, either party shall have the right to
unilaterally terminate this AGREEMENT.
14.2 This AGREEMENT is entered into subject to authorization by, or
requirements of regulatory authorities having jurisdiction in respect to
this AGREEMENT.
14.3 Nothing contained in this AGREEMENT shall be construed as affecting in any
way the right of NIAGARA MOHAWK to unilaterally make application to the
FERC for a change in rates, terms and conditions under Section 205 of the
Federal Power Act and pursuant to the Commission's rules and regulations.
ARTICLE XV
WAIVER
15.1 No provision of this AGREEMENT may be waived except by mutual agreement of
the parties as expressed in writing and signed by both parties.
15.2 Any waiver that is not in writing and signed by both parties shall be null
and void from its inception.
15.3 No express waiver in any specific instance as provided in a required
writing shall be construed as a waiver of future instances unless
specifically so provided in the required writing.
15.4 No express waiver of any specific default shall be deemed a waiver of any
other default whether or not similar to the default waived, or a
continuing waiver of any other right or default by a party.
15.5 The failure of either party to insist in any one or more instances upon
the strict performance of any of the provisions of this AGREEMENT, or to
exercise any right herein, shall not be construed as a waiver or
relinquishment for the future of such strict performance of such provision
or the exercise of such right.
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ARTICLE XVI
AMENDMENT AND MODIFICATION
16.1 This AGREEMENT may be amended or modified only if the amendment or
modification is in writing and executed by both parties. Any amendment or
modification that is not in writing and signed by both parties shall be
null and void from its inception.
16.2 No express amendment or modification in any specific instance as provided
herein shall be construed as an amendment or modification of future
instances, unless specifically so provided in the required writing.
16.3 Nothing in this AGREEMENT shall be construed as affecting in any way the
ability of the PRODUCER to exercise its rights under the Federal Power Act
and pursuant to FERC's rules and regulations promulgated thereunder.
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ARTICLE XVII
GOVERNING LAW
17.1 This AGREEMENT and the rights and obligations of the parties to this
AGREEMENT shall be governed by and construed in accordance with the laws
of the State of New York.
17.2 PRODUCER and NIAGARA MOHAWK agree to submit to the jurisdiction of the
courts in the State of New York for the purposes of interpretation and
enforcement of this AGREEMENT.
17.3 PRODUCER and NIAGARA MOHAWK may waive personal service by manual delivery
and agree that service of process on PRODUCER and NIAGARA MOHAWK in any
action concerning or arising out of this AGREEMENT may be made by
registered or certified mail, return receipt requested, delivered to
PRODUCER and NIAGARA MOHAWK at its address set forth in the preamble
hereto.
ARTICLE XVIII
DISPUTE RESOLUTION
18.1 Any claim or dispute, which either Party may have against the other,
arising out of the AGREEMENT shall be submitted in writing to the other
Party not later than sixty (60) days after the circumstances which gave
rise to the claim or dispute have taken place. The submission of any claim
or dispute shall include a concise statement of the question or issue in
dispute, together with relevant facts and documentation to fully support
the claim.
18.2 If any such claim or dispute arises, the parties shall use their best
efforts to resolve the claim or dispute, initially through good faith
negotiations or upon the failure of such negotiations, through Alternative
Dispute Resolution ("ADR") techniques in accordance with the Model
Procedure for Mediation of Business Disputes as published by the Center
for Public Resources; however, either Party may terminate its
participation in ADR during any stage of ADR and proceed under paragraph
18.3.
18.3 If any claim or dispute arising hereunder is not resolved pursuant to
paragraph 18.2, either Party may, upon giving the other Party at least ten
(10) days prior written notice, initiate litigation to submit such claim
or dispute for decision by a court of competent jurisdiction.
18.4 Nothing in this Article XVIII shall restrict the rights of any party to
file a complaint with FERC under relevant provisions of the Federal Power
Act.
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ARTICLE XIX
SEVERABILITY
19.1 If any term of this AGREEMENT, or the interpretation or application of any
term or provision to any prior circumstance, is held to be unenforceable,
illegal, or invalid by any governmental agency or court of competent
jurisdiction, the remainder of this AGREEMENT, or the interpretation or
application of all other terms or provisions to persons or circumstances
other than those that are unenforceable, illegal, or invalid, shall not be
affected thereby and each term and provision shall be valid and be
enforced to the fullest extent permitted by law.
ARTICLE XX
HEADINGS
20.1 The headings in this AGREEMENT are included herein for convenience of
reference only and shall not constitute a part of this AGREEMENT for any
other purpose, or limit or be used as an aid in construing the provisions
of this AGREEMENT.
ARTICLE XXI
INTEGRATION/MERGER/SURVIVABILITY
21.1 This AGREEMENT sets forth the entire understanding and agreement of the
parties as to the subject matter of this AGREEMENT and merges and
supersedes all prior agreements, commitments, representations, writings
and discussions between the parties with respect to the INTERCONNECTION
FACILITY.
21.2 The obligations of the PRODUCER shall survive the completion, termination,
or abandonment of this AGREEMENT and of the PRODUCER'S facilities and
work.
ARTICLE XXII
COMPLIANCE WITH THE NERC
22.1 Both parties agree to comply with any existing or future criteria, guides,
and procedures established by the NERC or any successor organization to
ensure the continued reliability of North America's interconnected bulk
electric systems.
ARTICLE XXIII
CONFIDENTIALITY AND AUDIT RIGHTS
23.1 PRODUCER hereby represents and confirms to the NIAGARA MOHAWK that it has
or will take all necessary measures to assure that its deliveries of
electric power and/or services to the NIAGARA MOHAWK will not be
interrupted, delayed or otherwise adversely affected by the Year 2000
Problem. Furthermore, PRODUCER agrees to
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promptly notify the NIAGARA MOHAWK if it has reason to believe that the
deliveries of electric power and/or services to the NIAGARA MOHAWK will be
affected by the Year 2000 Problem.
23.2 Confidentiality. (a) The Parties shall hold in confidence, unless
compelled to disclose by judicial or administrative process or other
provisions of law, all documents and information furnished by the other
Party in connection with this Agreement, provided that any compelled
disclosure shall be subject to a protective order. Except to the extent
that such information or documents are (i) generally available to the
public other than as a result of a disclosure by the receiving Party, (ii)
available to the receiving Party on a non-confidential basis prior to
disclosure under this Agreement, or (iii) available to the receiving Party
on a non-confidential basis from a source other than the disclosing Party,
provided that such source is not known, and by reasonable effort could not
be known, to be bound by a confidentiality agreement or otherwise
prohibited from transmitting the information by a contractual, legal or
fiduciary obligation, the receiving Party shall not release or disclose
such information to any other person, except to its employees on a
need-to-know basis, in connection with this Agreement who have been
advised of the confidentiality provisions of this Section 23.1 and have
agreed in writing to comply with such provisions. In no event shall such
information be disclosed in violation of the requirements of FERC Order
889, any orders on rehearing and any successor thereto. The receiving
Party shall promptly notify the disclosing Party if it receives notice or
otherwise concludes that the production of any information subject to this
Section 23.1 is being sought under any provision of law.
(b) Any audit, as referred to in Section 23.2, shall be subject to the
confidentiality provisions of this Section 23.1.
(c) The Parties agree that monetary damages would be inadequate to
compensate a Party for the other Party's breach of its obligations under
Section 23.1. Accordingly, a Party shall be entitled to equitable relief,
by way of injunction or otherwise, if the other Party breaches or
threatens to breach its obligations under Section 23.1.
23.3 Audit Rights. Within two (2) years following a calendar year, during
normal business hours, the Parties shall have the right to audit each
other's accounts and records pertaining to transactions under this
Agreement during the calendar year at the offices where such accounts and
records are maintained; provided that appropriate notice shall have been
given prior to any audit, and provided that the audit shall be limited to
those portions of such accounts and records that relate to services
provided to the other Party under this Agreement for said calendar year.
The Party being audited will be entitled to review the audit report and
any supporting materials.
ARTICLE XXIV
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COUNTERPARTS
This Agreement may be executed in two or more counterparts. each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ERIE BOULEVARD HYDROPOWER, L.P. NIAGARA MOHAWK POWER
CORPORATION
By: ___________________________ By:________________________________
Title: ________________________ Title: Vice President, Marketing & Planning
Date: _________________________ Date: _______________________________
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Exhibit A
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Waterport Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Waterport Single Line Diagram. Drawing No. 711532
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, & 2 - The Interconnection Points are located at the jaw side
of disconnect switch 323. Buyer owns disconnect switch 323.
Generators 1, & 2 - Common Delivery Point at the connection to the 34.5 kV
Waterport station bus.
Interconnection Facilities are the overhead conductors, insulators,
connectors, and hardware, between the switch and the 34.5 kV bus. The
distance between the Interconnection and Delivery Points is approximately
20 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 12 kV side of transformer TB #2.
Transformer TB #2 and approximately 20 feet of 34.5 kV circuit separate
the Metering and Delivery Points
1 August 27, 1998
129
YALEVILLE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Yaleville Hydra Station Interconnection Diagram, Drawing No.
811474
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of disconnect
switch 218, Buyer owns disconnect switch 218
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the 23kV
Norfolk - Xxxxxxx No. 21 Line. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 23kV line. The
distance between the Interconnection and Delivery Point is approximately
( ) miles per phase, with a total of approximately ( ) miles of conductor
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located at the 2.4 kV
side of Transformer Bank no. 1 approximately ( ) miles of overhead
transmission separate the Metering and Delivery points.
08/04/98
000
Xxxxxxx Xxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Trenton Falls Single Line Diagram, Drawing No. 811407
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 5, 6, & 7 - The Interconnection Points are at the jaw side of
disconnect switches 218 and 228. Buyer owns disconnect switches.
Xxxxxxxxxx 0, 0, & 0 - Xxxxxxxx Xxxxxx are the points of connection to the
Trenton Falls station 46 kV C & D bus. Interconnection Facilities are the
23 kV conductors, insulators, connectors, and hardware between the switch
and the bus. The distance between the Interconnection and Delivery Point
is approximately 5 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 13.2 kV side of transformer(s)
TB #1 and TB #2. Transformers TB #1 & TB #2, approximately 16 feet of 2500
MCM conductor, 18 feet of 795 MCM conductor, and 20 feet of 3 1/2 inch IPS
aluminum bus separate the Metering and Delivery Points.
August 7, 1998
131
Varick Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Varick Single Line Diagram. Drawing No. 811418
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 2, 3, 4 & 5 - The Interconnection Point are at the jaw side of
disconnect switches 18 and 32. Buyer owns disconnect switches 18 and 32.
Generators 2, 3, 4 & 5 - Common Delivery Point is the connection between
the 34.5 kV bus to the High Dam - Varick # 21 line. Interconnection
Facilities are the overhead conductors, insulators, support structures,
connectors, hardware, protection systems, control systems and surge
arresters between the switches. The distance between the Interconnection
and Delivery Point is approximately 35 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformers TB
#1 and TB #2. Transformer banks and approximately 50 feet of 34.5 kV
overhead conductor separate the Metering and Delivery Points.
August 7, 1998
132
TALCVILLE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Talcville Hydra Station Interconnection Diagram, Drawing No.
811462
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of disconnect
switch 218. Buyer owns disconnect switch 218
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the 23kV
Emeryville - Mine Rd. No. 23 Line. Interconnection Facilities are the
conductors, insulators, support structures foundations, connectors and
hardware between the respective disconnect switch and the 23kV line. The
distance between the Interconnection and Delivery Point is approximately
( ) miles per phase, with a total of approximately ( ) miles of conductor
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Net unit output metering is located at the 23 kV side
of Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
133
Taylorville Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Taylorville Since Line Diagram, Drawing No. 811446
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2, 3 & 4 - The Interconnection Point is at the jaw side of
disconnect switch 216. Buyer owns disconnect switch.
Generators 1, 2, 3 & 4 - Common Delivery Point is the point of connection
to the Taylorville station 23 kV bus. Interconnection Facilities are the
23 kV conductors, insulators, support structures, connectors, and hardware
between the switch and the bus. The distance between the Interconnection
and Delivery Point is approximately 20 Feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 240 feet of 23 kV overhead
conductor separate the Metering and Delivery Points.
August 7, 1998
134
Stuyvesant Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Stuyvesant Single Line Diagram, Drawing No. G-781-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator l - The Interconnection Point is at the jaw side of disconnect
switch 6188. Buyer owns disconnect switch 188.
Generator 1 - The Delivery Point is the connection where the mobile
substation tap is located in the 34.5 KV substation at Stuyvesant.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for generation needs to be added if the plant goes back
into service.
135
SUGAR ISLAND HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Sugar Island Hydro Station Interconnection Diagram, Drawing
No.811479
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV Xxxxxxxx - Xxxxxx No. 4 Line. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115kV line. The
distance between the Interconnection and Delivery Point is approximately
( ) miles per phase, with a total of approximately ( ) miles of conductor
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asses Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located at the 4.8 kV
side of Transformer Bank no. 1 approximately ( ) miles of overhead
transmission separate the Metering and Delivery points.
08/04/98
136
XXXXX HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxx Hydro Station Interconnection Diagram, Drawing No.
811494
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Generator 1 - Delivery Point is the respective connection to the 115 kV
switchyard bus at Colton Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Colton Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase.
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 12 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
137
Stewarts Bridge Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Stewarts Bridge Single Line Diagram, Drawing No.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
The Interconnection Point is at the jaw side of disconnect switch 988.
Buyer owns disconnect switch 988
The Delivery Point is the Xxxxx-Xxxx #9 line at tower 25.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for the generator will be located between R21 and the
13.2 KV connection point for the #6 Bank. Transformer Bank #1 and 1/8 mile of
115 KV circuit separate the metering and delivery points.
000
XXXXX XXXXXXX XXXXX PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the South Xxxxxxx Hydro Station Interconnection Diagram, Drawing
No. 811464
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0, 0 & 0 - Xxxxxxxxxxxxxxx Xxxxx is at the jaw side of fined
disconnect J225, Buyer owns fused disconnect J225
Xxxxxxxxx 0, 0, 0, & 0 - Xxxxxxxx Xxxxx is the respective connection to
the 34.5 kV switchyard bus at Colony Switching Station. Interconnection
Facilities are the conductors, insulators support structures, foundations
and hardware between connectors between the respective fused disconnect
and the 34.5 kV switchyard bus at Colony Switching Station. The distance
between the Interconnection and Delivery Point is approximately ( ) miles
per phase, with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Xxxxxxxxx 0, 0, 0 & 0 - Xxxxx unit output metering is located at the 2.4
kV side of Transformer Bank no. 1 approximately ( ) miles of overhead
transmission separate the Metering and Delivery points.
08/04/98
000
Xxxxx Xxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxx Falls Single Line Diagram, Drawing No.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxx Falls Unit #8 - The Interconnection Point is at the jaw side of
disconnect switch 6677. Buyer owns disconnect switch 6677
The Delivery Point is the Xxxxx Falls 77G Bus.
Xxxxx Falls Unit #9 - The Interconnection Point is the jaw side of
disconnect switch 6999. Buyer owns disconnect switch 6999.
The delivery point is the Xxxxx falls 99G Bus.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for the generator #9 will be located between switch 5922
and connection paint for the #12 Bank. Transformer bank #9, R69 and
approximately 20 feet of 115KV circuit separate the metering and the delivery
points.
Net unit metering for generator #8 is located between the 5666 and the
cable to the #6 bank. Approximately 150 feet of 6900V cable, transformer #6, and
20 feet of 115KV circuit separate the metering from the delivery points.
140
Soft Maple Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Soft Maple Single Line Diagram, Drawing No. 811445
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, & 2 - The Interconnection Points are located at the jaw side
of circuit switchers 18 and 28 in the Soft Maple transmission station.
Buyer owns circuit switchers 18 and 28.
Generators 1, & 2 - Delivery Points at the tie to the 115 kV Soft Maple
station bus. Interconnection Facilities sac the overhead conductors,
insulators, connectors, and hardware between the interconnect point and
delivery point. The distance between the Interconnection and Delivery
Points is approximately 26 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located the on the 6.9 k side of Soft Maple
Transformer TB #1 and TB #2. Two meters are utilized at this site. The
transformer bank(s) and approximately 65 feet of 115 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
000
XXXXX XXXXXX XXXXX PLANT
INTERCONNECTION AGREEMENT- Exhibit A
Refer to the South Colton Hydro Station Interconnection Diagram, Drawing
No. 811498
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Generator 1 - Delivery Point is the respective connection to the 115 kV
switchyard bus at Colton Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Colton Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase,
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 12 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
142
Sewalls Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Sewalls Single Line Diagram, Drawing No. 811435
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, & 2 - The Interconnection Point is at the jaw side of
disconnect switch 218. Buyer owns disconnect switch 218.
Generators 1, & 2 - Common Delivery Point is the connection so the 23 kV
bus. Interconnection Facilities are the overhead conductors, insulators,
connectors, and hardware between the interconnect point and the 23 kV
station bus. The distance between the Interconnection and Delivery Points
is approximately 7 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Access to Sewalls Island is via a ROW or Easement across Black Xxxxxxx
property. Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 25 feet of 23 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
143
Xxxxxxx Island Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxxx Island Hydro Single Line Diagram, Drawing No.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
The interconnection point is the jaw side of the disconnect switch 1788.
Buyer Xxxxx disconnect switch 1788. The delivery point is tower T511 on the
Xxxxx-Queesbury #17 line.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for the generator #2 and #3 will be located between the
#1 Bank and the station service tap from the 6777. The Net unit metering for
Generator #4 and #5 will be between the #2 Bank and the station service tap from
6799. Transformer Banks #1 and #2 and approximately 1/4 mile of 115KV circuit
separate the each metering point from the delivery point.
000
Xxxxxx Xxxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the School Street Single Line Diagram, Drawing No. D-7085-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - 4 - The Interconnection Point is at the jaw side of
disconnect switches 6177 and 6199. Buyer owns disconnect switches 6177 and 6199.
This is also the Interconnection Point for Green Island Hydro.
Generator 1 - 4 - The Delivery Point is the 77 Bus and 99 Bus in the 34.5
KV substation at School Sweet.
Generator 5 - The Interconnection Point is at the jaw side of disconnect
switches 6577 and 6599. Buyer owns disconnect switches 6577 and 6599.
Generator 5 - The Delivery Point is the 77 Bus and 99 Bus in the 34.5 KV
substation at School Street.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 13.2 KV bus on the generator
side of disconect switches 5166 and 5544. Transformer TB#1 and TB#5, breakers
R61 and R65, and disconnect switches 5166 and 5544 separate the Metering and
Delivery Points.
145
Schuylerville Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Schuylerville Single Line Diagram, Drawing No.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
The Interconnection Point for the Schuylerville facility is at the jaw
side of disconnect switch 6199. Buyer owns disconnect switch 6199
The Delivery Point is the Schuylerville substation 99 Bus.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for the generator #2 will be located between switch 5133
and #1 Bank. Approximately 75 feet of 4.8KV cable, Transformer bank #1 and
approximately 20 feet of 34.5KV circuit separate the metering and the delivery
points.
146
RAYMONDVILLE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Raymondville Hydro Station Interconnection Diagram, Drawing
No. 811478
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 13, Buyer owns disconnect switch 13
Generator 1 - Delivery Point is the respective connection to the 115kV
switchyard bus at Norfolk Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Norfolk Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase.
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.3 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
147
Schaghticoke Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Schaghticoke Single Line Diagram, Drawing No. C-17641-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - 4 - The Interconnection Point is at the jaw side of
disconnect switches 6277 and 6499. Buyer owns disconnect switches 6277 and 6499.
Generator 1 - 4 - The Delivery Point is the Mechanicville - Schaghticoke
No. 3 line (34.5 kV - 77 Bus) and the Mechanicville - Schaghticoke No. 7 line
(34.5 kV - 99 Bus).
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for Generators 1-4 will be located off the 34.5 kV
circuits on the generator side of disconnect switch 6211 and disconnect switch
6422. Disconnect switches 6211 and 6422 along with approximately 50 feet of
34.5KV circuit separate the metering points and the delivery points.
148
Prospect Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Prospect Single Line Diagram, Drawing No. 811406
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - The Interconnection Point is at the jaw side of disconnect
switch 218. Buyer owns disconnect switch 218.
Generator 1 - Delivery Point is the at the intersection of Prospect tap
and 46 kV Trenton-Prospect #23 line (where line goes to Xxxxxx).
Interconnection Facilities are the overhead conductor, insulators,
connectors, and hardware between the interconnection point and delivery
point. The distance between the Interconnection and Delivery Points is
3538 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 6.9 kV side of transformer TB
#1. Transformer TB #1 and approximately 3578 feet of 46 kV circuit
separate the Metering and Delivery Points.
1 August 7, 1998
149
RAINBOW HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Rainbow Hydro Station Interconnection Diagram, Drawing No.
811496
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Generator 1 - Delivery Point is the respective connection to the 115 kV
switchyard bus at Colton Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Colton Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase,
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 12 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
150
PARISHVILLE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Parishville Hydro Station Interconnection Diagram. Drawing
No. 811484
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 716, Buyer owns disconnect switch 716
Generator 1 - Delivery Point is the respective connection to the 2.4kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 2.4kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located between disconnect
switch 716 and the 2.4kV bus approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
151
XXXXXXXXXXX HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxxxxxxx Hydra Station Interconnection Diagram, Drawing
No. 811502
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxxxxxxxxx Xxxxx is at the jaw side of
disconnect switch 392. Buyer owns disconnect switch 392
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
46kV bus. Interconnection Facilities are the conductors, insulators,
support structures, foundations, connectors and hardware between the
respective disconnect switch and the 46kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.4 kV side of
Transformer Bank No. 2 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
Generator 2 & 3 - Gross unit output metering is located at the 600V side
of Transformer Bank No. 3 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
000
Xxxxxx Xxxxx Xxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Oswego Falls East Single Line Diagram, Drawing No. 811416
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Point is at the hinge side of
disconnect switch 000, Xxxxxx Xxxxx Xxxx substation. Buyer owns disconnect
switch 218.
Xxxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is at the Oswego Falls West
substation, 34.5 kV common tie to Eureka-Xxx St. #24. Interconnection
Facilities are the overhead conductor, insulators, support structures,
connectors, and hardware between the switch and the 34.5 kV tie. The
distance between the Interconnection and Delivery Points is approximately
10 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer XX
#0, Xxxxxx Xxxxx Xxxx substation. Transformer TB #1 and approximately 20
feet of 34.5 kV conductor separate the Metering and Delivery Points.
August 7, 1998
153
Oswego Falls West Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Oswego Falls West Single Line Diagram. Drawing No. 811416
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 3, 4 & 5 - The Interconnection Point is at the hinge side of
disconnect switch 218. Buyer owns disconnect switch 218.
Xxxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is at the Oswego Falls West
substation, 34.5 kV common tie to Eureka-Xxx St. #24. Interconnection
Facilities are the overhead conductor, insulators, support structures,
connectors, and hardware between the switch and the 34.5 kV tie. The
distance between the Interconnection and Delivery Points is approximately
10 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 20 feet of 34.5 kV conductor
separate the Metering and Delivery Points.
August 7, 1998
154
Oak Orchard Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Oak Orchard Single Line Diagram, Drawing No. 711601
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - The Interconnection Point is located at Pole #1 on 13.2 kV
feeder F7654 Buyer owns Pole #1 and all equipment form this point into the
plant.
Generator 1 - Common Delivery Point is located at Pole #1 on 13.2 kV
feeder F7654.
There are no Interconnection Facilities at this site.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 480 V side of transformer TB #1.
Transformer TB #1 and approximately 400 feet of 13.2 kV circuit separate
the Metering and Delivery Points.
1 AUGUST 7, 1998
155
OSWEGATCHIE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Oswegatchie Hydro Station Interconnection Diagram, Drawing
No. 811463 and South Xxxxxxx Hydro Station Interconnection Diagram,
Drawing No. 811464
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of disconnect
switch 613, Buyer owns disconnect switch 613
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the 34.5
kV switchyard bus at Colony Switching Station. Interconnection Facilities
are the conductors, insulators, support structures foundations and
hardware connectors between the respective disconnect switch and the 34. 5
kV switchyard bus at Colony Switching Station. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase,
with a total of approximately ( ) miles of conductor per phase
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1&2 - Gross unit output metering is located at the 2.4 kV side
of Transformer Bank no. 1 at South Xxxxxxx approximately ( ) miles of
overhead transmission separate the Metering and Delivery points.
08/04/98
156
NORFOLK HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Norfolk Hydro Station Interconnection Diagram, Drawing No.
811476
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Points are at the jaw side of disconnect
switches 18 & 28, Buyer owns disconnect switches 18 & 28
Generator 1 - Delivery Point is the respective connection to the 11 5kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 115kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase.
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.4 kV side of
Transformer Banks no. 1 and no. 2 approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
157
XXXXXXX HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxxx Hydro Station Interconnection Diagram. Drawing No.
811477
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 228. Buyer owns disconnect switch 228
Generator 1 - Delivery Point is the respective connection to the 23kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 23kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.4 kV side of
Transformer Bank No. 1 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
158
Minetto Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Minetto Single Line Diagram, Drawing No. 811420
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 2, 3, 4, 5 & 6 - The Interconnection Points are at the jaw side
of disconnect switch 87, the jaw side of disconnect switch 78, the jaw
side of disconnect switch 84 and the supply side of fused disconnect J141.
Buyer owns disconnect switches and fused disconnect and surge arresters.
Generators 2, 3, 4, 5 & 6 - Common Delivery Point is the connection to
Seneca Hills tap from the Minetto 34.4 kV feeder. Interconnection
Facilities are the overhead conductors, insulators, support structures,
connectors, hardware, protection systems, control systems, between the
switches and the tap point. The distance between the Interconnection and
Delivery Point is approximately 550 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 34.5 kV side of transformers TB
#1 and TB #2. Transformer banks and approximately 600 feet of 34.5 kV
overhead conductor separate the Metering and Delivery Points.
August 7, 1998
159
Xxxxxxx Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxxx Single Line Diagram, Drawing No. 811448
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - Interconnection Point is the jaw side of disconnect
switch 18 where the arrester lead meets the 115kv line. Buyer owns
disconnect switch 18 and 115kv arresters.
Generators 1 & 2 - Common Delivery Point is at the connection between the
Taylorville-Xxxxxxx 115 kV transmission circuit and Sunday Creek station
tie. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors, and hardware associated with the 115
kV feeder circuit Taylorville-Xxxxxxx #7 between the Delivery Point and
the Interface point. Xxxxxxx 98 kV MCOV surge and supports are owned by
the Buyer. The distance between the Interconnection and Delivery Point is
approximately 230 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Portions of the Interconnection Facilities are located on Niagara Mohawk
lands associated with the 115 kV transmission system and Sunday Creek
Station switchyard.
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for generators 1 & 2 is located at the 6600 V side of
transformer TB #1. Transformer TB #1, and approximately 235 feet of 115 KV
circuit separate the Metering and Delivery Points.
August 7, 1998
160
MACOMB HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Macomb Hydro Station Interconnection Diagram, Drawing No.
811487
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 203, Buyer owns disconnect switch 203
Generator 1 - Delivery Point is the respective connection to the 34.5 kV
Spencers Corners-Xxxxxx No. 26 Line. Interconnection Facilities are the
conductors, insulators, connectors support structures, foundations and
hardware between the respective disconnect switch and the 34.5 kV Line.
The distance between the Interconnection and Delivery Point is
approximately ( ) miles per phase, with a total of approximately ( ) miles
of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.4 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
161
Mechanicville Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Mechanicville Single Line Diagram, Drawing No. D-9657-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - 7 - The Interconnection Point is at the jaw side of
disconnect switches 6977 and 6899. Buyer owns disconnect switches 6977 and 6899.
Generator 1 - 7 - The Delivery Point is the 77 Bus and 99 Bus in the 34.5
KV substation at Mechanicville.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for generation is located off the 34.5 kV side of
transformer TB#8 and TB#9. The metering and delivery points are the same.
162
Kamargo Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Kamargo Single Line Diagram, Drawing No. 811432
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Point is at the jaw side of
disconnect switch 243. Buyer owns disconnect switch 243.
Generators 1, 2 & 3 - Common Delivery Point is the connection between the
23 kV Black River-Kamargo #24 line and the 23 kV transmission feed to
Leray. Interconnection Facilities are the overhead conductors, insulators,
connectors, and hardware between the switch and the 23 kV feed to Leray.
The distance between the Interconnection and Delivery Points is
approximately 310 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 330 feet of 23 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
163
Lighthouse Hill Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Lighthouse Hill Single Line Diagram, Drawing No.811492
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Points to the 115 kV grid are
located at the jaw side of motor operated disconnect 18, and the hinge
side of disconnects 28 and 48. Interconnection Points for the 12 kV "B"
bus are located at the jaw side of disconnect switch 458, at the jaw side
of load break switch 411 and at the jaw side of load break switch 441.
Interconnection Points for the 12 kV "A" bus are located at the hinge side
of disconnect switch 438.
Generators 1 & 2 - Delivery Points to the 115 kV grid are at the
connection point of the power leads from TB #1, TB #2 and TB #4 to the 115
kV line conductor. The Interconnection Facilities on the 115 kV side of
the station are the overhead conductors, insulators, connectors, hardware,
protection systems, and control systems between the switch and the 115 kV
line connection. The distance between the Interconnection and Delivery
Points is approximately 50 feet per phase. The Delivery Points to the 12
kV system are at the above defined Interconnection Points. The
Interconnection Point and Delivery Point are common for the 12 kV system
and as such there are no Interconnection Facilities on the 12 kV side of
the station. The distance between the Interconnection and Delivery Points
is approximately 0 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators locations are on 12 kV side of Lighthouse Hill
transformers TB #1, TB #2 and TB #4 and are on the 12 kV load side of
switches 413 and 443 for feeders #6141 and #6144. The Metering and
Delivery Points to the 115 kV grid, at transformer bank TB #1, TB #2 and
TB #4 feeds, are separated by the respective transformer and approximately
75 feet of 115 kV circuit. Each Metering and Delivery Point for the 12 kV
feeders are separated by approximately 14 feet of 12 kV circuit, a
regulator and a breaker.
August 7,1998
164
Inghams Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Inghams Single Line Diagram, Drawing No. 911020
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, & 2 - The Interconnection Points are located at the jaw side
of disconnect switches 6199 and 6177. Buyer owns disconnect switches 6177
and 6199 and all equipment on the generation side of these switches.
Generators 1, & 2- Common Delivery Point at the connection to the 46 kV
bus 77E and 99E. Interconnection Facilities are the overhead conductors,
insulators, connectors, and hardware between the interconnect point and
delivery point. The distance between the Interconnection and Delivery
Points is approximately 5 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 20 feet of 46 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
165
Johnsonville Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Johnsonville Single Line Diagram, Drawing No. H-1444-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - 2 - The Interconnection Point is at the jaw side of
disconnect switch 288. Buyer owns disconnect switch 288.
Generator 1 - 2 - The Delivery Point is the connection to the
Schaghticoke-Johnsonville No. 2 line (34.5KV).
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for Generators 1-2 is located off the 34.5 kV bus on the
generator side of disconnect switch 277. Circuit breaker R2 and disconnect
switch 277 separate the metering point and the delivery point.
166
HOGANSBURG HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Hogansburg Hydro Station Interconnection Diagram, Drawing No.
811483
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 613, Buyer owns disconnect switch 613
Generator 1 - Delivery Point is the respective connection to the 4.8 kV
Feeder 97771. Interconnection Facilities are the conductors, insulators,
connectors, support structures, foundations and hardware between the
respective disconnect switch and the 4.8 kV Feeder 97771. The distance
between the Interconnection and Delivery Point is approximately ( ) feet
per phase, with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Net unit output metering is located at the 4.8 kV side of
Transformer Bank no. 1 approximately ( ) feet separate the Metering and
Delivery points.
08/04/98
167
Hydraulic Race Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Hydraulic Race Single Line Diagram, Drawing No. 711498
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - The Interconnection Point is located at the cable splice
located in manhole 4R. Buyer owns manhole 4R and Seller owns cable splice.
Buyer owns cable from splice to station.
Generators 1 - Delivery Point at the 12 kV bus at Xxxxxxxx Xxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx, XX.
The Interconnection Facility is the 751 line from the Interconnection
Point, splice in Manhole #4R to the Delivery Point, Lockport Station 12 kV
bus. The Interconnection Facilities include cables, duct banks, manholes,
wire, poles, insulators, connectors, circuit breakers, relay protection
systems, and control systems. The distance between the Interconnection and
Delivery Points is approximately 1.8 miles per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generator is located on the blade side of switch 7.
Approximately 1.8 miles of 12 kV circuit separate the Metering and
Delivery Points.
August 27, 1998
168
High Falls Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the High Falls Single Line Diagram, Drawing No. 811447
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Point is at the bus connection
point of the power leads from TB #1.
Generators 1, 2 & 3 - Common Delivery Point is at the connection point of
the power leads from TB #1 to 23kV bus. The Interconnection Point and the
Delivery Points are common and as such there are no Interconnection
Facilities at this site. The distance between the Interconnection and
Delivery Points is approximately 0 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generation is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 10 feet of 23 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
169
XXXXXX HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxx Hydro Station Interconnection Diagram, Drawing No.
811473
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxxxxxxxxx Xxxxx is at the jaw side of
disconnect switch 18. Buyer owns disconnect switch 18
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV bus. Interconnection Facilities are the conductors, insulators,
connectors, support structures, foundations, and hardware between the
respective disconnect switch and the 115kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1, 2 & 3 - Gross unit output metering is located at the 4.8kV
side of Transformer Bank No. 1 approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
170
Herrings Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Herrings Single Line Diagram, Drawing No. 811434
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Points are located at the bus
connection point of the power leads from TB #1
Generators 1, 2 & 3 - Common Delivery Point is at the tie to the
connection point of the power leads from TB #1 to 23 kV bus. The
Interconnection Point and Delivery Point are common and as such there are
no Interconnection Facilities at this site. The distance between the
Interconnection and Delivery Points is approximately 0 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located the on the 2.4 kV side of Herrings
Transformer TB #1. The transformer bank and approximately 30 feet of 23 kV
circuit separate the Metering and Delivery Points.
August 7, 1998
171
HEUVELTON HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Heuvelton Hydro Station Interconnection Diagram, Drawing No.
811461
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of disconnect
switch 218, Buyer owns disconnect switch 218.
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the 23kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 23kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located at the 2.4kV side
of Transformer Bank No. 1 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
172
Green Island Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Green Island Single Line Diagram, Drawing No. D-16899-E
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - 4 - The Interconnection Point is at the jaw side of
disconnect switches 6177 and 6199 at School Street Hydro. Buyer owns disconnect
switches 6177 and 6199. The Interconnection Points are also the Interconnect
Points for School Street Hydro.
Generator 1 - 4 - The Delivery Point is the 77 Bus and 99 Bus in the 34.5
KV substation at School Street Hydro. The Delivery Points are also the Delivery
Points for School Street Hydro.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Net unit metering for generators is located off the 13.2 kV bus on the
Green Island Hydro side of R85 at Xxxxxx Xxxxxx Xxxxx. Xxxxxxxxxxx XX#0, X00,
X00, disconnect switches 5166, 6199, and 6177, and approximately 2 miles of 13.2
KV circuit separate the Metering and Delivery Points.
000
XXXXXXX XXXXX XXXXX PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Hannawa Falls Hydro Station Interconnection Diagram, Drawing
No. 811472
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of circuit
switcher R15, Buyer owns circuit switcher R15
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV Xxxxxxxx-Xxxxxx No. 5 Line. Interconnection Facilities are the
conductors, insulators, connectors, support structures, foundations and
hardware between the respective circuit switcher and the 115 kV Line. The
distance between the Interconnection and Delivery Point is approximately
( ) miles per phase, with a total of approximately ( ) miles of conductor
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located at the 4.8 kV
side of Transformer Bank no. 1 approximately ( ) miles of overhead
transmission separate the Metering and Delivery points.
08/04/98
000
Xxxxxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Glenwood Single Line Diagram, Drawing No. 711531
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Points are located at the hinge
side of disconnect switch 7239 in Xxxxxx substation. Buyer owns disconnect
switch 7239.
Generators 1, 2 & 3 - Common Delivery Point at the connection to the main
34.5 xX Xxxxxx station bus.
Interconnection Facilities are the overhead conductors, insulators,
connectors, hardware, protection systems, and control systems between the
switch and the 34.5 kV bus. The distance between the Interconnection and
Delivery Points is approximately 10 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located the on the 4.8 kV, Glenwood-Xxxxxx 309
Line. Transformer TB #1 and approximately 500 feet of 4.8 kV circuit
separate the Metering and Delivery Points.
1 August 7, 1998
175
Granby Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Granby Single Line Diagram, Drawing No. 811413
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Point is at the jaw side of
disconnect switch 243. Buyer owns disconnect switch 243.
Generators 1 & 2 Common Delivery Point is the point of connection to the
Xxx St. - Granby 24 circuit. Interconnection Facilities are the overhead
conductors, insulators, connectors, and hardware, between the switch and
the delivery point. The distance between the Interconnection and Delivery
Point is approximately 2 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators as located on the 4.16 kV side of transformer TB
#1. The transformer bank and approximately 50 feet of 34.5 kV overhead
conductor separate the Metering and Delivery Points.
August 7, 1998
176
FRANKLIN FALLS HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Franklin Hydro Station Interconnection Diagram, Drawing No.
811501
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is ax the jaw side of disconnect
switch 218, Buyer owns disconnect switch 218.
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the 46kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 46kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located at the 2.4kV side
of Transformer Bank No. 1 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
177
Xxxxxx Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxx Single Line Diagram, Drawing No. 811411
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Points are at the jaw side of
disconnect switch 218. Buyer owns disconnect switch 218.
Generators 1 & 2 - Common Delivery Point is the tap connection point to
the Granby-Eureka #21. Interconnection Facilities are the overhead
conductors, insulators, support structure, connectors, and hardware
between switch 218 and the delivery point. The distance between the
Interconnection and Delivery Point is approximately 5 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.3 kV side of transformer TB
#1. The transformer bank and approximately 50 feet of 34.5 kV conductor
separate the Metering and Delivery Points.
August 7, 1998
178
FIVE FALLS HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Five Falls Station Interconnection Diagram, Drawing No.
811497
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Generator 1 - Delivery Point is the respective connection to the 115 kV
switchyard bus at Colton Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Colton Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase,
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 12 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
179
Page 1
FLAT ROCK HYDRO PLANT
Refer to the Flat Rock Hydro Station Interconnection Diagram, Drawing No.
81146O
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 & 2 - Interconnection Point is at the jaw side of circuit
switcher 18, Buyer owns circuit switcher 00
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV bus. Interconnection Facilities are the conductors, insulators,
connectors, support structures, foundations and hardware between the
respective circuit switcher and the 115 kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 & 2 - Gross unit output metering is located as the 2.4 kV
side of Transformer Bank no. 1 approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
180
Ephratah Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Ephratah Single Line Diagram, Drawing No. 911018
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2, 3 & 4 - The Interconnection Point is at the jaw side of
disconnect switch 6499. Buyer owns disconnect switch 6499.
Generators 1, 2, 3 & 4 - Common Delivery Point is the connection to the 23
kV bus. Interconnection Facilities are the overhead conductors,
insulators, connectors, and hardware between the switch and the station
bus. The distance between the Interconnection and Delivery Points is
approximately 5 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#4. Transformer TB #4 and approximately 25 feet of 23 kV circuit separate
the Metering and Delivery Points.
August 7, 1998
000
Xxxxxx Xxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Feeder Dam Hydro Single Line Diagram, Drawing No.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
The interconnection point is the jaw side of the disconnect switch 1488.
Buyer Xxxxx disconnect switch 1488. The delivery paint is pole 89 on the
Xxxxxxxxxx-Xxxxx Xx. #00 line.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for the facility is located between the #2 Bank and the 5288.
Transformer Bank #2 and approximately 50 feet of 34.5kV circuit separate the
metering and the delivery points.
182
XX Xxxx Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the XX Xxxx Hydro Single Line Diagram, Drawing No. 91138
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
The interconnection point is the jaw side of the disconnect switches 1677
and the 6277. Buyer owns disconnect switches 1677 and 6277. The delivery point
is the XX Xxxx substation 77G bus.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for the #1 generator is located between the R51 and the #1 Bank
Metering for the #2 Generator is between the R52 and the #2 Bank. Transformer
Banks #1 and #2 and approximately 20 feet of 115KV circuit separate the metering
and the delivery points.
08/10/98
000
Xxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Slitter Single Line Diagram, Drawing No. 811444
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Point is at the jaw side of
disconnect switch 218. Buyer owns disconnect switch
Generators 1 & 2 - Common Delivery Point is the connection between to 23
kV Taylorville-Effley #24 transmission line and Xxxxx Tap. Interconnection
Facilities are the conductors, insulators, support structures, connectors,
and hardware between the switch interconnect point and the delivery point.
The distance between the Interconnection and Delivery Points is
approximately 2250 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Access to Xxxxx plant is provided by an easement across Xx Xxxx property.
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#1. Transformer TB #1 and approximately 2260 feet of 23 kV overhead
conductor separate the Metering and Delivery Points.
1 August 7, 1998
184
EEL XXXX HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Eel Xxxx Hydro Station Interconnection Diagram, Drawing No.
811474
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0, & 0 - Xxxxxxxxxxxxxxx Xxxxx is at the jaw side of
disconnect switch 218, Buyer owns disconnect switch 218
Xxxxxxxxx 0, 0, & 0 - Xxxxxxxx Xxxxx is the respective connection to the
23kV bus. Interconnection Facilities are the conductors, insulators,
support structures, foundations, connectors and hardware between the
respective disconnect switch and the 23kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING FONTS
Xxxxxxxxx 0, 0 & 0 - Xxx unit output metering is located at the 23 kV
side of Transformer Bank no. 1 approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
185
Effley Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Effley Single Line Diagram, Drawing No. 811443
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2, 3 & 4 - The interconnection point(s) for Effley
generation is at the jaw side of disconnect switch 218, Buyer owns
disconnect switch
Generators 1 through 4 - Delivery Point is the connection to the 23 kV
Taylorville - Effley #24 transmission line. Interconnection Facilities are
the conductors, insulators, support structure, connectors, and hardware
between the switch and the first transmission structure on the #24 line.
The distance between the Interconnection and Delivery Points approximately
250 feet per phase. Surge arresters will be owned by the buyer.
2. NIAGARA MOHAWK PROPERTIES
Access to Effley plant is by easement across Xxxx property. Refer to the
Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.3 kV side of TB #1 and
approximately 255 feet of overhead conductor separate the Metering and
Delivery Points.
August 7, 1998
186
Eagle Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Eagle Single Line Diagram, Drawing No. 811442
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 3, & 4 - The Interconnection Point is at the jaw side of
disconnect switch 28. Buyer owns disconnect switch.
Generators, 1, 2, 3 & 4 - Common Delivery Point is the connection between
the 115kv tap to Eagle and the 115kv Taylorville-Xxxxxxx #7 transmission
line. Interconnection Facilities are the conductors, insulators, support
structures, connectors, and hardware between the switch and the first
transmission structure on the #7 line. The distance between the
Interconnection and Delivery Points is approximately 120 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#2. Transformer TB #2 and approximately 140 feet of 115 kV overhead
conductor separate the Metering and Delivery Points.
1 August 7, 1998
187
EAST NORFOLK HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the East Norfolk Hydro Station Interconnection Diagram, Drawing
No. 811475
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 218, Buyer owns disconnect switch 218
Generator 1 - Delivery Point is the respective connection to the 23kV
bus. Interconnection Facilities are the conductors, insulators, support
structures, foundations, connectors and hardware between the respective
disconnect switch and the 23kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 2.4 kV side of
Transformer Bank no. 1 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
188
COLTON HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Colton Hydro Station Interconnection Diagram, Drawing No.
811471
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxxxxxxxxx Xxxxx is ax the jaw side of
disconnect switches 16 & 19, Buyer owns disconnect switches 16 & 19.
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV Transfer bus and 115kV "B" bus section. Interconnection Facilities
are the conductors, insulators, support structures, foundations,
connectors and hardware between the respective disconnect switches and the
115kV Transfer bus and 115kV "B" bus section. The distance between the
Interconnection and Delivery Point is approximately 70 feet per phase,
with a total of approximately 210 feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 13.2kV side of
Transformer Bank No. 1 approximately 150 feet of overhead transmission
separate the Metering and Delivery points.
Generator 2 - Gross unit output metering is located at the 13.2kV side of
Transformer Bank No. 2 approximately 150 feet of overhead transmission
separate the Metering and Delivery points.
Generator 3 - Gross unit output metering is located at the 13.2kV side of
Transformer Bank No. 3 approximately 150 feet of overhead transmission
separate the Metering and Delivery points.
8/04/98
189
Deferiet Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Deferiet Single Line Diagram, Drawing No. 811433
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Points are located at the jaw
side of disconnect switches 218 in the Deferiet station.
Generators 1, 2 & 3 - Delivery Points at the tie to the 23 kV Deferiet
station bus. Interconnection Facilities are the overhead conductors,
insulators, connectors, hardware, between the interface point and the
delivery point. The distance between the Interconnection and Delivery
Points is approximately 10 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located the on the 2.4 kV side of Deferiet
Transformer TB #1. The transformer bank and approximately 30 feet of 23 kV
circuit separate the Metering and Delivery Points.
August 7, 1998
190
BROWNS FALLS HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Browns Falls Hydro Station Interconnection Diagram, Drawing
No. 811457
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18.
Generator 2 - Interconnection Point is at the jaw side of disconnect
switch 28, Buyer owns disconnect switch 28.
Xxxxxxxxx 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
115kV bus. Interconnection Facilities are the conductors, insulators,
support structures, foundations, connectors and hardware between the
respective disconnect switch and the 115kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 6.6kV side of
Transformer Bank No. 1 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
Generator 2 - Gross unit output metering is located at the 6.6kv side of
Transformer Bank No. 2 approximately ( ) feet of overhead transmission
separate the Metering and Delivery points.
08/04/98
000
XXXXX XXXXX XXXXX PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Chasm Falls Hydro Station Interconnect Diagram, Drawing No.
811486
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxxxxxxxxx Xxxxx is at the jaw side of
disconnect switch 228, Buyer owns disconnect switch 228
Xxxxxxxxx 0, 0 & 0 - Xxxxxxxx Xxxxx is the respective connection to the
34.5kV bus. Interconnection Facilities are the conductors, insulators,
support structures, foundations, connectors and hardware between the
respective disconnect switch and the 34.5kV bus. The distance between the
Interconnection and Delivery Point is approximately ( ) feet per phase,
with a total of approximately ( ) feet of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1, 2 & 3 -- Gross unit output metering is located at the 2.4 kV
side of Transformer Bank No. 2 approximately ( ) feet of overhead
transmission separate the Metering and Delivery points.
08/04/98
192
Black River Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Black River Single Line Diagram, Drawing No. 811431
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - The Interconnection Point is at the line side of
fuse disconnect J245. Buyer owns fuse disconnect J245.
Generators 1, 2 & 3 - Common Delivery Point is the tie-in with
transmission switch X22K24, on the 23 kV Black River-Black River Hydro #22
line. Interconnection Facilities are the overhead conductors, insulators,
connectors, and hardware, between the fused disconnect and the 23 kV
transmission switch X22K24. The distance between the Interconnection and
Delivery Points is approximately 1100 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 2.4 kV side of transformer TB
#4. Transformer TB #4 and approximately 1125 feet of 23 kV circuit
separate the Metering and Delivery Points.
August 7, 1998
193
BLAKE HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Blake Hydro Station Interconnection Diagram, Drawing No.
811495
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 18, Buyer owns disconnect switch 18
Generator 1 - Delivery Point is the respective connection to the 115 kV
switchyard bus at Colton Substation. Interconnection Facilities are the
conductors, insulators, support structures, foundations, connectors and
hardware between the respective disconnect switch and the 115 kV
switchyard bus at Colton Substation. The distance between the
Interconnection and Delivery Point is approximately ( ) miles per phase,
with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 6.9 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
000
Xxxxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Belfort Single Line Diagram, Drawing No. 81144.
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2 & 3 - Interconnection Points is the jaw side of disconnect
switch 253, Buyer owns disconnect switch 253.
Generators 1, 2 & 3 - Common Delivery Point is the connection to the
Taylorville 23 kV bus. Interconnection Facilities are the conductors,
insulators, support structures, foundations, connectors, and hardware
associated with the 23 kV circuit, Xxxxxxx - Xxxxxxxxxxx Xx. 00 between
Belfort switch 253 and Taylorville switch 253, and Taylorville station
switches 251 and 253 and breaker R250; including all conductor, 23 kV bus,
insulators, support structures, foundations, protection systems, control
systems, power supply including cables associated with R250. The distance
between the Interconnection and Delivery Points is approximately 3300 feet
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators 1, 2 & 3 is located at the 2.4 kV side of
transformer TB #1. Transformer TB #1, Belfort switch 253, approximately
3325 feet of 23 kV circuit, Taylorville switches 251 and 253 and
Taylorville breaker R250 separate the Metering and Delivery Points.
1 August 7, 1998
000
Xxxxxxxx Xxxxxx Xxxxx Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Bennetts Bridge Single Line Diagram, Drawing No.811491
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1, 2, 3 & 4 - The Interconnection Points are located at
Lighthouse Hill station. Interconnection Points to the 115 kV grid are
located at the hinge side of motor operated disconnects 28 and 48 and the
jaw side of motor operated disconnect 18. (Field verify) Interconnection
Points for the 12 kV "B" bus are located at the jaw side of disconnect
switch 458, at the jaw side of load break switch 411 and at the jaw side
of load break switch 441. Interconnection Points for the 12 kV "A" bus are
located at the jaw side of disconnect switch 438.
Xxxxxxxxxx 0, 0, 0 & 0 - Xxxxxxxx Points are located at Lighthouse Hill
station. Delivery Points to the 115kV grid are at the connection point of
the power leads from Sw 18, 28 and 48 to the 115 kV bus conductor. The
Interconnection Facilities on the 115 kV side of the station are the
overhead conductors, insulators, connectors, hardware, protection systems,
and control systems between the switches and the 115 kV line connection.
The distance between the Interconnection and Delivery Points is
approximately 50 feet per phase. The Delivery Points to the 12 kV system
are at the above defined Interconnection Points. The Interconnection Point
and Delivery Point are common for the 12 kV system and as such there are
no Interconnection Facilities on the 12 kV side of the station. The
distance between the Interconnection and Delivery Points is approximately
0 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering is located at Lighthouse Hill station. Bennetts Bridge
incorporates three primary distribution lines on poles/towers to
Lighthouse Hill station. Metering for generators locations are on 12 kV
side of Lighthouse Hill transformers TB #1, TB #2 and TB #4 and are on the
12 kV load side of switches 413 and 443 for feeders #6141 and #6144. The
Metering and Delivery Points to the 115 kV grid, at transformer bank TB
#1, TB #2 and TB #4 feeds, are separated by the respective transformer and
approximately 75 feet of 11 kV circuit. Each Metering and Delivery Point
for the 12 kv feeders are separated by approximately 14 feet of 12 kV
circuit, a regulator and a breaker.
1 August 7, 1998
196
Xxxxxxxxx Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Xxxxxxxxx Single Line Diagram, Drawing No. 911011
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Point is at the jaw side of
disconnect switch 683. Buyer owns disconnect switch.
Generators 1 & 2 - Common Delivery Point is the connection to the 115 kV
Inghams-St. Johnsville #6 transmission line. Interconnection Facilities
are the overhead conductors, insulators, support structures, connectors,
and hardware between the switch and the first transmission structure on
the #6 line. The surge arresters will be owned by the Buyer. The distance
between the Interconnection and Delivery Points is approximately 450 feet
per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generators is located on the 6.9 kV side of transformer TB
#1. Transformer TB #2 and approximately 475 feet of 115 kV overhead
conductor separate the Metering and Delivery Points.
July 22, 1998
197
BeeBee Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Beebee Single Line Diagram, Drawing No. 81499
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The interconnection point(s) for Beebee Island
generation will be the substation side of breakers R915 and R925. R915
and R925 are located within the Seller's Mill Street substation metalclad
switchgear
Generators 1 & 2 - Delivery Point(s) are the connection to the 4.8 kV Bus
of the Seller's Mill Street station. Interconnection Facilities are the
copper bus between the respective breakers and the station bus. The
distance between the Interconnection and Delivery Points is approximately
5 feet per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for generator 1 is located on the unit #1, 4800 V feed to the
Mill Street station duct bank. Net unit metering for generator 2 is
located on the unit #2, 4800 V feed to the Mill Street station duct bank.
1 August 7, 1998
198
ALLENS FALLS HYDRO PLANT
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Miens Falls Hydro Station Interconnection Diagram, Drawing
No. 811481
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generator 1 - Interconnection Point is at the jaw side of disconnect
switch 13, Buyer owns disconnect switch 13
Generator 1 - Delivery Point is the respective connection to the 115 xX
Xxxxxx-Xxxxxx No. 3 Line. Interconnection Facilities are the conductors,
insulators, support structures, foundation connectors and hardware between
the respective disconnect switch and the 115 kV Line. The distance between
the Interconnection and Delivery Point is approximately ( ) miles per
phase. with a total of approximately ( ) miles of conductor per phase.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Asset Sales Agreement for property descriptions.
3. METERING POINTS
Generator 1 - Gross unit output metering is located at the 4.8 kV side of
Transformer Bank no. 1 approximately ( ) miles of overhead transmission
separate the Metering and Delivery points.
08/04/98
199
Baldwinsville Hydro Plant
INTERCONNECTION AGREEMENT - Exhibit A
Refer to the Baldwinsville Single Line Diagram, Drawing No. 811423
1. INTERCONNECTION AND DELIVERY POINTS, INTERCONNECTION FACILITIES
Generators 1 & 2 - The Interconnection Points are intersection of the
conductors at the jaw side of line disconnect switch X29-8 and X29-9.
Buyer owns disconnect switch X29-8 and X29-9.
Generators 1 & 2 - Delivery Points are at the jaw side of disconnect
switch X29-8 and X29-9. There are no Interconnection Facilities at this
site. LP. and D.P. are identical. Distance between Interconnection Point
and Delivery Point is approximately 0 feet.
2. NIAGARA MOHAWK PROPERTIES
Refer to the Assets Sales Agreement for property descriptions.
3. METERING POINTS
Metering for Baldwinsville Hydro generators is located on the 4.8 kV side
of transformer TB #1. Net unit metering for Seller's customer Seneca Hydro
will be installed on the 4.8 kV side of future installed GSU. The
Baldwinsville transformer bank and approximately 150 feet of 34.5 kV
conductor separate the Baldwinsville Metering and Delivery Points.
1
200
Exhibit B
31
201
ALLENS FALLS HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note: No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
202
Baldwinsville Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
ESB 756 metering for Seneca Hydro will be required.
Note: No metering or relay changes are anticipated for Baldwinsville Hydro
connection to Seller's transmission system and sale to the NYPP or NYISO,
as applicable. NYISO rules that are being developed, could affect metering
and relaying requirements.
1 August 7, 1998
203
Xxxxxxxxx Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 July 22, 1998
204
Beebee Island Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
205
Belfort Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules that are being developed, could affect metering or
relaying requirements.
1 August 7, 1998
000
Xxxxxxxx Xxxxxx Xxxxx
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
207
Black River Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
208
BLAKE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
XXXXXX XXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
XXXXX XXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
XXXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
212
DEFERIET HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
213
EAGLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
214
EAST NORFOLK HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
215
EEL XXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
216
Effley Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
217
XX XXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed could affect metering and relaying
requirements.
8/10/98
000
XXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
219
Ephratah Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
000
XXXXXX XXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed could affect metering and relaying
requirements.
ASSET SALES AGREEMENT
000
XXXX XXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
222
Page 2
FLAT ROCK HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
XXXXXXXX XXXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
224
Xxxxxx Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
No metering or relay changes are anticipated for connection to Seller's
transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
225
Glenwood Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
Buyer to install over and under frequency relays and over and under
voltage relays.
No metering or relay changes are anticipated for connection to Seller's
transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
226
Granhy Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
227
GREEN ISLAND HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1
228
HANNAWA FALLS HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
229
HERRINGS HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
230
HEUVELTON HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
Xxxx Xxxxx Xxxxx
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
232
XXXXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
233
HOGANSBURG HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
234
Hydraulic Race Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Buyer to install over and under voltage relays, over and under frequency
relays, 51V voltage restrained overcurrent relays and a 12 kV breaker with
overcurrent relays.
No additional metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
235
Inghams Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
236
JOHNSONVILLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
237
Kamargo Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
238
LIGHTHOUSE HILL HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
239
MACOMB HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
240
MECHANICVILLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
241
Minetto Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
242
Xxxxxxx Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
August 7, 1998
243
NORFOLK HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, are being developed, could affect metering or
relaying requirements.
244
XXXXXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
XXX XXXXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
Buyer to install over and under voltage relays.
No additional metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering or relaying
requirements.
1 August 7, 1998
246
OSWEGATCHIE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
000
Xxxxxx Xxxxx Xxxx Xxxxx
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
248
Oswego Falls West Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
249
PARISHVILLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
250
XXXXXXXXXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
251
Prospect Hydro
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
252
RAINBOW HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
1
253
RAYMONDVILLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relaying changes are anticipated for connection to
Seller's transmission system and sales to the NYPP or NYISO, as
applicable. NYISO rules, being developed, could affect metering or
relaying requirements.
254
SCAGHTICOKE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
000
XXXXXX XXXXXX HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying requirements.
256
SCHUYLERVILLE HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller' transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed could affect metering and relaying
requirements.
000
Xxxxxxx Xxxxx
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
258
XXXXXXX ISLAND HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller' transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying requirements.
259
Soft Maple Hydro
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
No metering or relay changes are anticipated for connection to Seller's
transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
000
XXXXX XXXXXX XXXXX
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note. No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules. being developed, could affect metering or relaying
requirements.
000
XXXXX XXXXXXX XXXXX
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note: No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
000
XXXXX XXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note; No metering or relay changes are anticipated for connection to
Seller' transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed could affect metering and relaying
requirements.
263
XXXXX HYDRO
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note: No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
000
XXXXXXXX XXXXXX XXXXX
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed could affect metering and relaying requirements
265
STUYVESANT HYDRO
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable. NYISO
rules that are being developed, could affect metering and relaying requirements.
266
SUGAR ISLAND HYDRO
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note: No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
267
TALCVILLE HYDRO
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note. No metering or relaying changes are anticipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
000
Xxxxxxxxxxx Xxxxx
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
269
Trenton Falls Hydro
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note:No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
270
Varick Hydro
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None.
Note: No metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
1 August 7, 1998
271
Waterport Hydro
--------------------------------------------------------------------------------
INTERCONNECTION AGREEMENT - EXHIBIT B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
Buyer to install a 34.5 kV circuit breaker or recloser with internal
battery, and overcurrent relays for overcurrent protection. Note: Fuse
protection will not coordinate with existing bus protection scheme. Bus
protection scheme must be modified for new circuit breaker.
No additional metering or relay changes are anticipated for connection to
Seller's transmission system and sale to the NYPP or NYISO, as applicable.
NYISO rules that are being developed, could affect metering and relaying
requirements.
000
XXXXXXXXX XXXXX
INTERCONNECTION AGREEMENT - Exhibit B
1. IMMEDIATE REQUIRED ESB 756 MODIFICATIONS
None
Note: No metering or relaying changes are antcipated for connection to
Sellers transmission system and sales to the NYPP or NYISO, as applicable.
NYISO rules, being developed, could affect metering or relaying
requirements.
273
EXHIBIT F
SITE AGREEMENT
By and Between
NIAGARA MOHAWK POWER CORPORATION
and
"Buyer"
Dated ________________, 1998
274
Table of Contents
Article Page
----------------------------------------------------------- ----
1. Definitions 2
2. Term and Delineation of Assets 5
3. Site Access 6
4. Maintenance 8
5. Equipment Testing 8
6. New Construction, Modifications or Alterations 9
7. Inspections 11
8. Transmission, Distribution and Telecommunication
Structures 11
9. Information Reporting and Investigations 12
10. Notice of Alarms or Problems 13
11. Local Services 14
12. Remote Terminal Units (RTUs) 15
13. Protection Relays 15
14. Emergency Procedures 16
15. Safety 16
16. Environmental Procedures 17
17. Audits 18
18. Cost Responsibilities and Billing Procedures 18
19. Documentation 19
20. Seller's Right to Operate 19
21. Damage to Equipment, Facilities and Property 20
22. Personal Injury, Indemnification 21
23. Insurance 22
24. Claims 23
25. Force Majeure 24
26. Governing Law, Disputes 25
27. Assignment/Change in Corporate Identity 25
28. Contractors and Subcontractors 26
29. Labor Relations 27
30. Independent Contractor Status 28
31. Limitation of Liability 28
275
Table of Contents
(cont'd.)
Article Page
----------------------------------------------------------- ----
32. Notices 28
33. Headings 29
34. Waiver 29
35. Counterparts 29
36. Severability 30
37. Amendment 30
38. Entire Agreement 30
Schedules
276
SITE AGREEMENT
This Site Agreement is entered into on _______________ (the "Agreement")
by and between Niagara Mohawk Power Corporation ("Seller") a New York
corporation with a principal place of business located at 000 Xxxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000, and Acquisition Corporation ("Buyer") a
_____________ corporation with a principal place of business located at
__________________ (individually each a "Party" and collectively the "Parties").
RECITALS
WHEREAS, Seller and Buyer have entered into an Asset Sales Agreement dated
, for the sale of certain of Seller's electric generating assets;
WHEREAS, Seller intends to continue to operate Seller's transmission and
distribution businesses from their present locations;
WHEREAS, in the Asset Sale Agreement, Seller has agreed to transfer to
Buyer certain designated real and personal properties, contracts, and licenses
constituting certain of Seller's electric generating assets and has retained
certain designated real and personal properties, contracts and licenses
associated with Seller's transmission and distribution businesses;
WHEREAS, Seller requires access to parts of the electric generating assets
acquired by Buyer and Buyer requires access to parts of the transmission and
distribution assets retained by Seller to conduct their respective businesses;
and
WHEREAS, the Parties wish to define the continuing responsibilities and
obligations that each has to the other with respect to access to, the use of,
and the services to be provided for and in respect to the property, assets and
facilities of the other.
NOW THEREFORE, in consideration of the mutual representations, covenants
and agreements set forth herein, and intending to be legally bound hereby, the
Parties agree as follows:
277
ARTICLE 1
DEFINITIONS
1.0 Wherever used in this Agreement with initial capitalization, the
following terms shall have the meanings specified or referred to in this Article
1. Any term with initial capitalization not defined herein, has the meaning set
forth in the ASA or the Interconnection Agreement.
1.1 "Asset Sales Agreement or "ASA" shall mean the Asset Sales Agreement
dated as of ________________ , 1998, between Niagara Mohawk Power Corporation
and Acquisition Corporation.
1.2 "Black Start Capability" shall mean the ability of a generating unit
or station to go from a shutdown condition to an operating condition and start
delivering power without assistance from the electric system.
1.3 "Closing(s)" shall have the meaning set forth in the ASA.
1.4 "Closing Date" shall have the meaning set forth in the ASA.
1.5 "Delivery Point" shall the meaning set forth in the ASA.
1.6 "Distribution System" shall mean Niagara Mohawk's distribution
equipment operated for delivery of electric energy to interconnected customers
unless otherwise noted.
1.7 "Easement" shall have the meaning set forth in the ASA.
1.8 "Electric System Bulletin No. 756" or "ESB756" shall mean Niagara
Mohawk Power Corporation's Electric System Bulletin 756, dated December 1997,
attached as Schedule B to this Agreement, as it may be amended or revised from
time to time.
1.9 "Energy Management System" or "EMS" shall mean Seller's computer based
system used primarily for the real time operation of Seller's existing power
generation, transmission and distribution facilities.
1.10 "Environmental Laws" shall have the meaning set forth in the ASA.
1.11 "Excluded Assets" shall have the meaning set forth in the ASA.
1.12 "FERC" shall mean the Federal Energy Regulatory Commission.
1.13 "Good Utility Practice" shall mean any of the practices, methods and
acts engaged in or approved by a significant portion of the electric industry
during the relevant time period, or any of the practices, methods 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
2
278
expected to accomplish the desired result at a reasonable cost consistent with
good business practices, reliability, safety and expedition. Good Utility
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 region and consistently adhered to by the
Seller. Good Utility Practice shall include, but not be limited to, North
American Electric Reliability Council ("NERC"), Northeast Power Coordinating
Council ("NPCC"), and New York Power Pool ("NYPP") or successor organizations
policies, criteria, guidelines, rules and standards, as they may be amended or
reused from time to time.
1.14 "Hazardous Substances" shall have the meaning set forth in the ASA.
1.15 "Interconnection Agreement" shall mean a separate Interconnection
Agreement(s) dated as of _____, 1998, between Niagara Mohawk Power Corporation
and Acquisition Corporation pertaining to the electric generating facilities
included in the Purchased Assets.
1.16 "Interconnection Facility" shall have the meaning set forth in the
Interconnection Agreement.
1.17 "Interconnection Point" shall have the meaning set forth in the
Interconnection Agreement.
1.18 "Maintain" shall mean construct, reconstruct, install, inspect,
repair, replace, operate, patrol, maintain, use, modernize, expand, upgrade,
modify or other similar activities.
1.19 "Metering Point" ("MP") shall mean the location on the power system
where electrical measurements (kWh, kW, KVAR, V, I, etc.) are determined for
reconciliation between parties. These quantities are either measured directly by
instrumentation installed at that point, or determined indirectly through the
application of compensation factors to measurements made by instrumentation
installed in proximity to the point
1.20 "NYPP" shall mean New York Power Pool or its successor.
1.21 "NYPP Tariff" shall mean the New York Power Pool's Open Access
Transmission Tariff as filed with FERC on _________________,or revised amended
from time to time.
1.22 "NERC" shall mean North American Electric Reliability Council.
1.23 "NPCC" shall mean Northeast Power Coordinating Council, a regional
reliability coordination body.
3
279
1.24 "Primary Systems" shall mean bulk power equipment such as
transformers, circuit breakers, rigid or strain bus and other equipment
operating at or above 600 volts.
1.25 "Purchased Assets" shall have the meaning set forth in the ASA.
1.26 "Qualified Personnel" shall mean individuals (i) who meet the
standards and requirements set forth at 29 C.F.R. ss. l910.269(a)(2) (1998), as
amended; and (ii) if performing switching, tagging or grounding of electrical
equipment, who are appropriately trained and meet the qualifications and
requirements to switch, tag and ground electrical equipment as set forth in
"Switching and Tagging Rules" attached as Schedule H to this Agreement and
"Testing and Grounding for the Protection of Employees" attached as Schedule I
to this Agreement.
1.27 "Release" shall have the meaning set forth in the ASA.
1.28 "Revenue Meters" shall mean all Kwh, Kvah, and Kvarh meters. pulse
isolation relays, pulse conversion relays, associated totalizing and Remote
Access Pulse Recorder (RAPR) equipment required to measure the transfer of
energy between the Parties.
1.29 "Right of Way Access" shall mean the existing gates, roadways, paths
or other means of access required to gain entry to the Transmission or
Distribution System assets located on or within the property or facilities of
the other Party.
1.30 "Routine Inspection and Maintenance" shall mean any inspection and/or
work required pursuant to Good Utility Practice on either Party's property or
facilities to ensure and maintain reliable substation, transmission, and
distribution operations.
1.31 "Secondary Systems" shall mean control or power circuits that operate
below 600 volts, ac or dc, including but not limited to any hardware, control or
protective devices, cables, conductor, electric raceways, secondary equipment
panels, transducers, batteries, chargers, and voltage and current transformers
where signals or energy may be used by Buyer and/or Seller.
1.32 "Separation Document" shall mean such documents or exhibits
delineated as such and which have been provided to and adopted by Buyer which
describe the Purchased Assets and Excluded Assets and define and identify the
ownership and dispatch points of demarcation of said assets.
1.33 "Service Point" shall mean the point of connection between the
facilities of Seller and the equipment of Buyer.
4
280
1.34 "Shared-Use Equipment" shall mean that equipment that Buyer and
Seller may jointly operate for the benefit of their respective operations as is
identified in Schedule A to this Agreement.
1.35 "Site" shall mean the location of all the plant equipment and real
property associated with each electric generating facility included in the
Purchased Assets.
1.36 "Spill Prevention Control and Countermeasure Plan" or "SPCC" shall
mean a plan developed in accordance with 40 C.F.R. Part 112 to be implemented
for onshore facilities that includes physical structures and other measures to
respond to and to prevent spills of oil or hazardous substances from reaching
navigable waters.
1.37 "Stormwater Management" shall mean physical structures and other
measures used to collect, store, treat, or dispose of water as a result of rain,
snow, or other precipitation, including snow melt runoff, surface runoff and
drainage.
1.38 "Stormwater Pollution Prevention Plan" or "SWPPP" shall mean a plan
developed in accordance with 40 C.F.R. Part 122 to be implemented to control and
monitor stormwater discharges associated with industrial or construction
activities.
1.39 "Switching and Tagging Rules" shall mean the document attached as
Schedule H to this Agreement and as may be amended from time to time.
1.40 "SPDES" shall mean State Pollutant Discharge Elimination Systems
permit.
1.41 "Testing and Grounding for the Protection of Employees" shall mean
the document attached as Schedule I to this Agreement and as may be amended from
time to time.
1.42 "Transmission System" shall mean Niagara Mohawk's transmission system
including any modifications subsequent to the date of this Agreement.
ARTICLE 2
TERM AND DELINEATION OF ASSETS
2.0 This Agreement shall become effective as of the Closing Date, and
shall continue in full force and effect for 40 years (the "Term"). Upon notice
by either Party at the end of the thirty-eighth (38) year of a desire to extend
this Agreement, the Parties shall negotiate in good faith to extend this
Agreement on mutually agreeable terms.
2.1 The points of demarcation between the Purchased Assets and the
Excluded Assets are the service points as set forth in Schedule A of this
Agreement.
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2.2 Seller shall own the grounding grid, ductbanks, cable raceway, and
drains within the boundaries of Seller's property. Buyer shall own the grounding
grid, ductbanks, cable raceway, and drains within the boundaries of Buyer's
property. For Seller's equipment located on Buyer's property, Seller shall own
the connection to Buyer's ground grid and drains. Seller shall own the cables
attached to Seller's equipment regardless of location. For Buyer's equipment
located on Seller's property, Buyer shall own the connection to Seller's ground
grid and drains. Buyer shall own the cables attached to Buyer's equipment
regardless of location. Both Buyer and Seller shall be responsible for ensuring
continuity the above items on and between their respective properties.
2.3 Seller shall own the fencing that immediately surrounds Seller's
property or equipment unless otherwise specified. Buyer shall own all other
fencing on the site. In the event that the parties share a common fencing
location, the Buyer shall own the fence and provide the Seller with all
necessary access to Seller's property and equipment.
2.4 The Parties agree to work cooperatively over time to supplement the
Separation Document, as necessary, and to take such other reasonable steps to
further clarify the delineation between the Purchased Assets and the Excluded
Assets.
ARTICLE 3
SITE ACCESS
3.0 The Parties acknowledge that each has granted permanent Easements to
the other to access, and maintain facilities, systems, and equipment located on
or in the property or the facilities of the other.
3.1 Each Party shall permit and provide access to all properties and
facilities as may be necessary to enable the other to maintain its respective
facilities, systems equipment, and property. Each Party shall provide or require
such access in a manner so as not to interfere with the ongoing business
operations, rights, and obligations of the other.
3.2 Consistent with Article 3.5 below, Seller shall have the right to
enter Buyer's property and facilities at any time with or without notice to
Buyer to Maintain Seller's facilities, systems, equipment, and property as
necessary. However, Seller will not have the right to access, operate, modify or
otherwise disturb facilities, systems or equipment owned by the Buyer unless
otherwise provided for in this Agreement.
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3.3 Consistent with Article 3.5 below, Buyer shall have the right to enter
Seller's property and facilities at any time with or without notice to Seller to
Maintain Buyer's facilities, systems, equipment and property as necessary.
However, Buyer will not have the right to access, operate, modify or otherwise
disturb facilities, systems or equipment owned by the Seller unless otherwise
provided for in this Agreement.
3.4 Each Party shall provide to the other all such keys, access codes, or
other access methods necessary to effectuate the rights of access contemplated
by this Article 3. Each Party shall limit access to energized areas the other's
facilities, systems, equipment and property to Qualified Personnel.
3.5 Seller shall conform to Buyer's reasonable site security and safety
procedures before Seller's personnel enter Buyer's property facilities or for
routine measurements, inspections, meter reads and other non-disruptive work
that does not require system or equipment outages. Buyer shall conform to
Seller's reasonable site security and safety procedures before Buyer's personnel
enter Seller's facilities or property for routine measurements, inspections,
meter reads and other non-disruptive work that does not require system or
equipment outages. Except as provided in Article 14, for work that will require
system or equipment outages or that is reasonably expected to impact the
security or normal operation of Seller's electric system or Buyer's electric
generation activities, the Party desiring to perform the work shall provide the
other Party verbal or electronic advance notice at least three (3) business days
in advance of the date such work is to commence. Seller shall provide such
notice to Buyer's shift supervisor (or equivalent). Buyer shall provide such
notice to Seller's dispatch personnel (or equivalent). The Parties shall use
their best efforts to schedule their work so as not to interfere with the
operations of the other Party.
3.6 Should either Party decide permanently to abandon the use of any
Easement or portion thereof, such Party shall give the other Party written
notice of such intent and shall cause a release of said Easement or any portion
thereof to be properly recorded.
3.7 The Parties may mutually agree to relocate any or all of the Easement
locations provided, however, that the Party requesting the relocation shall: (i)
pay all reasonable costs and expenses associated with the relocation; and, (ii)
execute or obtain in a form reasonably satisfactory to the other Party and
suitable for recording, all instruments necessary to establish the new Easement
location. Both Parties agree to use their best efforts to establish a mutually
agreeable location if requested by a Party.
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ARTICLE 4
MAINTENANCE
4.0 Except as provided elsewhere in this Agreement or in the
Interconnection Agreement, each Party shall Maintain its own property (including
removal of waste and trash), systems, facilities equipment and points of access
regardless of location.
4.1 Buyer shall be responsible for Routine Inspection and Maintenance of
all common use roadways and plant accesses in a safe and efficient manner and
pursuant to Good Utility Practice.
4.2 Seller shall provide Routine Inspection and Maintenance for Buyer as
set forth in Schedule F to this Agreement.
4.3 Buyer shall provide Routine Inspection and Maintenance for Seller's as
set forth in Schedule C to this Agreement.
4.4 If the Routine Inspection and Maintenance to be performed will result
in a modification of the facility system or equipment or the construction of a
new facility, the Party desiring to perform such Routine Inspection and
Maintenance shall provide the other Party with the notice and description of the
planned work and otherwise comply with the provisions of set forth in Article 6.
4.5 Where any ground grid, grounding, ductbanks, cable raceways, drains or
fences are jointly used, each Party is responsible for maintaining these jointly
used items that it owns for the mutual benefit of the parties. Both Parties will
share the cost of any improvements to such jointly used items initiated for the
benefit of both Parties on a pro rata basis.
ARTICLE 5
EQUIPMENT TESTING
5.0 Upon Seller's written request, Buyer shall, without cost to Seller,
test, calibrate, verify or validate the telemetering, data acquisition,
protective relay, fire protection, control equipment or systems, or other
equipment or software connected to or otherwise affecting the operation of
Seller's Transmission or Distribution System. Buyer shall conduct all such
tests, calibrations, verifications and validations in accordance with
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Good Utility Practice and ESB756 and shall promptly provide Seller with copies
of the results of any such test, calibration, verification or validation. If
Buyer is unable or unwilling to conduct any such test, calibration, verification
or validation requested by Seller, Seller shall have the right to take any and
all actions, consistent with Good Utility Practice, to protect and ensure the
safe and reliable operation of its Transmission and Distribution Systems
including disconnecting Buyer's facility, systems or equipment from those
systems.
5.1 This Article 5 shall not apply to the Interconnection Facility or such
equipment testing contemplated by Section 5.2 of the Interconnection Agreement.
ARTICLE 6
NEW CONSTRUCTION. MODIFICATIONS OR ALTERATIONS
6.0 Each Party shall use the best efforts to give the other Party at least
one (1) year's advance written notice of any plan to construct new facilities or
to modify or alter any facility, system or equipment that is the object of this
Agreement and to provide sufficient description (including all drawings and
specifications) of such plans as to enable the other Party to reasonably
determine whether the planned activity is likely to impact adversely its
operations. If the new construction, modification or alteration is the result of
a requirement or order of a government authority and one (1) year advance notice
cannot be given, and Party shall use its best effort to give the other Parties
such advance written notice as is reasonably possible.
6.1 If a Party reasonably determines that the new construction,
modification or alteration planned by of the other Party is likely adversely to
impact its operations, it shall, within sixty (60) days of receipt of notice
under Article 6.0, give the other Party written notice of and the basis for that
conclusion. Upon delivery and receipt of such notice, the Parties shall
negotiate in good faith to mitigate the identified likely adverse impact of any
planned new construction modification, or alteration.
6.2 The Parties acknowledge that it is the intent of this Agreement to
bring all facilities systems equipment, located and in use at the electric
generating station(s) to which this Agreement relates into full compliance, over
time, with ESB756. Accordingly, whenever a Party proceeds with a modification or
alteration to or new construction of any facilities systems equipment, it shall
implement such new construction modification, or alteration in full compliance
with ESB756. Seller shall have the right to review and accept or
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reject any such new construction modification, or alteration, or that might
reasonably be expected to affect its Transmission or Distribution System or the
Interconnection Facility.
6.3 Each Party shall, promptly upon completion of any new construction of
or modification or alteration to any facility, system, or equipment shared with
the other Party, provide the other Party with all appropriate documentation in
the form of written test records, operation and maintenance procedures, material
lists or descriptions and a duplicate set of the most current drawings of such
newly constructed, modified or altered facility, equipment or systems which
could reasonably be expected to affect the operations of the other Party, and
including for shared use equipment only, at a minimum, one or more of the
following, as applicable:
System One-Lines - Single page format drawings used for
dispatch and operation purposes.
One-Line Drawings - Prints which provide a higher level of
detail than system one-line drawings and
identify on a line basis current and
voltage transformer locations, protection
relay types, and meter and control
connections.
Three-Line Drawings - Prints which provide the
highest level of detail for the facilities
in a three-line format with specific
current and voltage transformer
connections, relay and meter terminations.
Schematic Drawings - Prints which provide
information on apparatus controls, switch
developments, etc.
Connection Wiring
Drawings - Prints which describe the physical layout,
relay, terminal block and device
locations, wiring and other construction
details.
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Other Physical Drawings - Prints which include
information on foundations, equipment,
layouts grounding, panel constructions,
etc.
6.4 This Article 6 shall not apply to the Interconnection Facility.
ARTICLE 7
INSPECTIONS
7.0 Each Party shall, at its own expense, have the right to inspect or
observe the maintenance activities, equipment tests, installation, construction,
or other modifications to the other Party's facilities, systems, or equipment
which might reasonably be expected to affect adversely the observing Party's
operations. The Party desiring to inspect or observe shall give the other Party
written notice of its desire to inspect or observe. When such notice is given,
the Parties shall coordinate their activities so as to reasonably accommodate
the noticing Party's right to inspect or observe.
7.1 If the inspecting/observing Party identifies any deficiency or defect
which might reasonably be expected to impact adversely the operations of the
inspecting/observing Party, said Party shall notify the other Party of the
deficiency or defect. Upon receipt of such a notice of deficiency or defect, the
Party owning the facility, system or equipment shall, in good faith, make any
corrections necessitated by Good Utility Practice. If a Party is unable or
unwilling to make such corrections, necessitated by Good Utility Practice, the
other Party shall have the right to take such measures, consistent with Good
Utility Practice, necessary to ensure that its own facilities, systems and
equipment are secure and safe.
7.2 This Article 7 shall not apply to the Interconnection Facility.
ARTICLE 8
TRANSMISSION. DISTRIBUTION AND TELECOMMUNICATION STRUCTURES
8.0 The Parties acknowledge that certain structures located at the site
(including those associated with transmission, distribution and
telecommunications activities) are essential both to Buyer's generation
operations and Seller's distribution and transmission operations. The Party
owning such structures shall Maintain them pursuant to Good Utility Practice.
The Parties shall,
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within ninety (90) days of the Closing, jointly undertake an initial inspection
of all such structures. After the initial inspection, the Parties shall
establish a mutually agreeable schedule for further regular inspections of such
structures.
8.1 The Party owning such transmission, distribution or telecommunication
structures shall prepare a written report summarizing each inspection and
describing any loose hardware, foundation problems, guy, shield or ground wire
deficiencies, corrosion or other observed defects. A copy of each such report
shall be provided promptly to the other Party. The Parry owning the structure
shall be responsible for correcting any noted deficiency, corrosion, or observed
defects within 12 months of the date of the inspection during which the
deficiency, corrosion or defect was identified or in such shorter time as may be
dictated by Good Utility Practice.
8.2 Each Party shall, after providing advance written notice to and
obtaining approval from the other Party, such approval not to be unreasonably
withheld, at its own expense, have the right to modify, add or upgrade
communication equipment including but not limited to antennae, wave guides and
cables on the other Party's transmission, distribution or telecommunication
structures, provided that said upgrades have no long term adverse impact upon
the other Party's operations and shall not require the other Party to incur any
costs, unless compensated.
8.3 This Article 8 shall not apply to the Interconnection Facility.
ARTICLE 9
INFORMATION REPORTING AND INVESTIGATIONS
9.0 The Parties agree that from time to xxxx Xxxxxx may request and Buyer
shall promptly provide accurate, complete, and reliable information needed by
Seller for the operation, maintenance, planning of its Transmission or
Distribution System. Such information may include, but may not be limited to,
metered values for MW, Mvar, voltage, current, amp, frequency, breaker status
indication, or any other information reasonably required by Seller for reliable
operation of its Transmission or Distribution System pursuant to Good Utility
Practice. Such information, reports or data shall be gathered for electronic
transmittal to Seller using the EMS where available.
9.1 Buyer shall cooperate with Seller in the investigation of any
disturbance or misoperation to the Transmission or Distribution System that may
occur. Buyer shall provide equipment, operational data (such as relay targets),
fault recorder data, and other such data as is
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needed to assist the Seller in determining the root cause of any such
disturbance or misoperation. Each Party shall be responsible for its own costs
related to any such investigation.
9.2 Notwithstanding anything to the contrary in this Agreement, any
obligation set forth in this Agreement for Buyer to provide information,
reports, or data to Seller shall be subject to the following limitations: (i)
such information, reports, or data shall be subject to the confidentiality
provisions of the ASA; (ii) Buyer shall be required to provide such information,
reports or data only to the extent Seller reasonably requires such information
to operate, maintain, or plan its Transmission or Distribution System pursuant
to Good Utility Practice and to verify conformance with ESB 756; and (iii)
Seller shall use any information provided by Buyer pursuant to this Agreement
only for the purposes of operating, maintaining and planning its Transmission or
Distribution System pursuant to Good Utility Practice.
9.3 If Buyer concludes that its obligation to provide any information,
report, or data requested by Seller is covered by any of the limitations set
forth in Article 9.2, Buyer shall promptly advise Seller in writing of that fact
and the basis for its conclusion. Buyer shall, nevertheless, provide Seller with
the requested information, report or data if Seller advises Buyer in writing
that such information, report or data: (i) comprises real time generating
information; (ii) is required as a result of, or to enable Seller in a timely
fashion, to respond to or prevent, any emergency condition; (iii) is required to
enable Seller in a timely fashion to maintain the safety and reliability of the
Transmission or Distribution System or to avoid endangering life or property; or
(iv) is otherwise required by Seller before a dispute between the Parties
regarding the appropriateness of Seller's request can be resolved in order for
Seller to operate, Maintain, or plan the Transmission or Distribution System
pursuant to Good Utility Practice. The Parties agree to cooperate in good faith
to expedite a mutually acceptable resolution of any dispute arising under this
Article.
ARTICLE 10
NOTICE OF ALARMS OR PROBLEMS
10.0 Buyer shall provide Seller with prompt notice of any alarms,
identified actual or potential problems, any safety issue or any other issue
that may have an immediate adverse effect on the Seller's facilities, system or
equipment located on or in Buyer's property or facility, the Interconnection
Facility as identified in the Interconnection Agreement or the switchyard
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immediately serving the Buyer's equipment. This notice shall be verbal and
provided immediately upon identification by the Buyer of such an event.
ARTICLE 11
LOCAL SERVICES
11.0 The Parties agree that, due to the integration of certain control
schemes, revenue metering applications, and communication networks, among other
things, it is cost effective to provide each other with certain local services
as set forth herein. The Parties shall use their best efforts to ensure that
such local services provided by one Party to the other Party shall be available
at all times and on the terms and conditions specified herein.
11.1 Each Party agrees to provide the other with such current, potential,
metering and contact outputs as are required for the operation of protection and
control systems as set forth on Schedule C and F to this Agreement.
11.2 Seller shall install, at Buyer's expense, revenue meters at all
Service Points.
11.3 Unless otherwise provided for in this Agreement, Buyer and Seller
shall agree upon an equitable allocation of charges for electric service for all
Shared Use Equipment. Seller shall provide to Buyer such other service as set
forth in Schedule F to this Agreement.
11.4 Buyer shall provide Seller with ac and dc service power in the
quantities, levels, and locations as exists prior to Closing and as set forth in
Schedule C to this Agreement.
11.5 Buyer shall provide Seller with heating, ventilation, air
conditioning, lighting, and other building services for relay, control and
communications room, offices, control houses or other related transmission or
distribution areas or spaces within Buyer's facilities set forth in Schedule C
to this Agreement.
11.6 Buyer shall provide Seller, at no cost to Seller, with uninterrupted,
dedicated cable connection and access for Seller's telecommunications equipment.
11.7 Buyer shall provide Seller, with such office, storage and building
spaces as set forth in Schedule C to this Agreement.
11.8 Buyer shall provide Seller and Maintain for Seller's benefit such
fire protection systems as exist at the Site at the time of Closing which are
required to protect Seller's assets located in Buyer's facilities, and water or
C02 systems, as applicable and in accordance with National Fire Protection
Association codes, up to Seller's property line or easement, whichever
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is closer to Seller's equipment and facilities. Such systems shall include, but
not be limited to all necessary control and supply equipment so as to perform
as a fully functional system.
11.9 Unless specified herein or otherwise agreed to, each of these
services will be provided on an actual cost basis. In each instance, Seller
shall have the right to audit Buyer's books and records to verify the cost
determination.
ARTICLE 12
REMOTE TERMINAL UNITS (RTUs)
12.0 Each Party shall make available to the other, at no cost, all data
from any on-Site RTU that the other Party requests.
12.1 The Parties agree when replacement of an on-Site RTU is required due
to technical obsolescence, catastrophic failure, or otherwise by mutual
agreement, that: (i) Buyer shall be responsible for all hardware and
installation costs for RTUs used solely for the operation of Buyer's facilities;
(ii) Buyer shall be responsible for RTU hardware and installation costs for RTUs
owned by Seller that are used for interconnection data telemetry to the Seller's
EMS pursuant to ESB 756; and, (iii) Seller shall be responsible for all RTU
hardware and installation costs for RTUs owned by Seller which are used solely
for the operation of Seller's Transmission or Distribution System. Separate RTUs
shall be installed at Buyer's expense for each Party's use under (i) and (ii)
above.
12.2 Each Party shall maintain their respective RTUs in good working
condition so as not to compromise the other Party's ability to obtain data
pursuant to Article 12.0 or to compromise the other Party's operational control
of its facilities, systems or equipment.
ARTICLE 13
PROTECTION RELAYS
13.0 On-Site protection relays required by E5B756 for over current, under
and over voltage, under and over frequency and other protection relays as may be
required by Seller shall be owned by the Buyer. If Seller reasonably determines
that a protection relay is needed and requests Buyer to install such a relay at
a location where one does not exist, Buyer shall do so promptly at its own cost.
Seller will provide Buyer with the required settings for all protection relays
and Buyer shall comply with the settings provided by Seller.
13.1 This Article 13 shall not apply to the Interconnection Facility.
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ARTICLE 14
EMERGENCY PROCEDURES
14.0 Seller shall provide Buyer with prompt verbal or electronic
notification of Transmission System or Distribution System emergencies which may
reasonably be expected to affect Buyer's immediate operation of its facilities.
[Note: Need to identify contact person.]
14.1 Buyer shall provide Seller with prompt verbal or electronic
notification of generation equipment emergencies which may reasonably be
expected to affect Seller's operations. [Note: Need to identify contact person.]
14.2 If, in the good faith judgment of a Party, an emergency endangers or
could endanger life or property, the Party recognizing the emergency shall take
such action as may be reasonable and necessary to prevent, avoid, or mitigate
injury, danger, or loss. If, however, the emergency involves electrical
equipment associated with the Transmission or Distribution System, Buyer shall
notify Seller's dispatch personnel (or equivalent) prior to performing any
switching operations.
ARTICLE 15
SAFETY
15.0 Each Party shall be solely responsible for and assume all liability
for the safety and supervision of its own employees, agents, representatives,
and subcontractors.
15.1 Each Party shall comply with the Switching and Tagging Rules and the
Testing and Grounding for Protection of Employees procedures at (i) all Primary
and Secondary System equipment interconnections or Service Points and on all of
Seller's facilities, systems, equipment and property to which Buyer or Seller
has access pursuant to this Agreement, and (ii) when operating the switch which
is the first means of disconnect on the Buyer's side of the Interconnection
Facility.
15.2 Buyer shall be responsible for all switching, tagging and grounding
of Buyer's facilities, systems, equipment, and property. Seller shall Maintain
and be responsible for all switching, tagging and grounding of Seller's
facilities, systems, equipment and property.
15.3 Each Party shall be responsible for and shall train, test, and
certify its own Qualified Personnel to perform relevant work under this
Agreement.
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ARTICLE 16
ENVIRONMENTAL PROCEDURES
16.0 Each Party shall provide the other Party with immediate verbal
notification and then follow up by written notification within 24 hours of
occurrence of any Release of Hazardous Substances or any type of remediation
activity.
16.1 If applicable, Buyer shall allow Seller to use at no cost existing
groundwater monitoring xxxxx located at the Site for conducting Seller's
remediation and monitoring of environmental conditions on Seller's property.
Buyer shall be responsible for the repair and maintenance of existing
groundwater monitoring xxxxx at the Site.
16.2 Seller will have the right to discharge at no cost stormwater runoff
from Seller's property across Buyer's property under the authority of the
Buyer's SPDES permit where such permits exist.
16.3 Each Party shall be responsible for the storage and off-site disposal
of all Hazardous Waste generated by the use, operation, maintenance, relocation
or removal of its equipment that are located on the property or at any facility
of the other Party.
16.4 Neither Party shall make changes to the site topography or accesses,
including but not limited to grading or drainage, that could reasonably be
expected to affect the other Party's facilities or common use drainage or
pollution controls systems, without the prior written consent of the other
Party, such consent not to be unreasonably withheld.
16.5 Buyer shall incorporate into its own emergency planning documents
including but not limited to SPCC and SWPPP plans, Hazardous Substances
contingency planning and emergency response contingencies relating to Seller's
facilities, systems and equipment which are located on Buyer's property or
within Buyer's facilities.
16.6 Neither Party shall knowingly take any actions which might reasonably
be expected to have an adverse environmental impact upon the operations of the
other Party without prior written notification and agreement between the
Parties.
16.7 Buyer shall grant to Seller an easement for drainage of stormwater
from land retained by Seller across Buyers' property. This easement shall
include the right to use Buyer's property (including trench drains, valves,
pipelines, xxxxx fields, oil water separator, wastewater treatment facility, and
other fixtures), equipment or portions of the Buyer's property, as applicable,
for drainage, discharge, retention, or percolation of stormwater runoff.
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16.8 Seller shall comply with the requirements of: (i) Buyer's SPCC plan
that applies to discharges from Seller's retained properties; and (ii) Buyer's
SPDES permit that applies to discharges from Seller's retained land.
ARTICLE 17
AUDITS
17.0 Upon written request, each Party shall have the right to audit the
other's accounts and records pertaining to transactions under this Agreement.
Any audit requested pursuant to this Article shall be conducted at a mutually
acceptable time at the offices where such accounts and records are maintained.
Any audit undertaken pursuant to this Article shall be limited to those portions
of such accounts and records of the audited Party that relate to services
provided to the auditing Party. Upon request, the auditing Party shall promptly
provide the audited Party with the audit report and all supporting materials. To
the extent that audited information includes information deemed confidential by
the audited Party, the auditing Party shall at its sole expense, retain an
independent auditor to perform the audit.
ARTICLE 18
COST RESPONSIBILITIES AND BILLING PROCEDURES
18.0 Each Party shall provide the other with an invoice for all payments
due for reimbursable services provided to the other Party under this Agreement
during the preceding calendar month on or before the 10th business day of the
calendar month. Unless services are provided on a lump sum basis, each invoice
shall describe the services performed or provided. Each invoice shall be paid
within thirty (30) days of the date of issuance. All payments shall be made in
U.S. dollars and in immediately available funds payable to the other Party, or
by wire transfer to a bank named by the invoicing Party. In the event that
payment is not received by the date due, that payment shall bear the interest at
the prime rate for U.S. currency as published from time to time under "Money
Rates" in The Wall Street Journal from and including the date on which payment
was due but excluding the date the payment is actually received. Payment of
invoices by either Party shall not relieve the paying Party from any
responsibilities or obligations it has under this Agreement; nor shall it
constitute a waiver of any claims arising hereunder.
18.1 If either Party in good faith, disputes any part of an invoice issued
by the other Party, the disputing Party shall immediately notify the other Party
and provide a written
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explanation of the basis for such dispute. The undisputed portion of the
invoiced amount shall be paid by the disputing Party by the due date of the
invoice. If any amount withheld under dispute is ultimately determined to be
due, it shall be paid within one (1) day of such determination with interest at
the prime rate for U.S. currency as published from time to time under "Money
Rates" in The Wall Street Journal, from and including the date any such
underpayment or overpayment was originally due but excluding the date on which
such underpayment or overpayment is paid. No payment obligation shall be subject
to this Article unless a notice of dispute is given with respect thereto within
30 days of the date payment of the invoice is due.
18.2 This Article 18 shall not apply to the Interconnection Facility.
ARTICLE 19
DOCUMENTATION
19.0 Each Party shall provide the other Party with all appropriate
documentation including but not limited to written test records, operation and
maintenance procedures, drawings, material lists, descriptions, or calibrations
whenever a Party makes an alteration, change, or modification to its property,
facilities, systems or equipment that could reasonably be expected to affect the
operations of the other Party.
19.1 This Article 19 shall not apply to the Interconnection Facility.
ARTICLE 20
SELLER'S RIGHT TO OPERATE
20.0 Seller shall have the right to operate Buyer's dc power systems,
components of protection and metering circuits, EMS equipment, secondary circuit
components, communication equipment, and building facilities, software,
documentation, and structural components associated with the foregoing, as are
necessary for Seller, in Seller's reasonable determination, to operate and/or
maintain its Transmission and Distribution Systems if: Buyer or Buyer's
assignee, successor, transferee or other entity legally responsible for Buyer's
obligations shall cease operations at the Site or fail to comply with any
material obligations or duties set forth in this Agreement, which cessation or
failure has or reasonably threatens to have a material adverse affect on the
operation of Seller's Transmission or Distribution System. Before Seller may
exercise its rights under this Article, Seller shall give Buyer or Buyer's
assignee, successor,
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transferee or other entity legally responsible for Buyer's obligations under
this Agreement written notice of Seller's intent to exercise its rights under
this Article. Such notice shall specify the actual or alleged failure of Buyer
or Buyer's assignee, successor, transferee's or other legally responsible entity
to comply with such obligations or duties. Seller shall then be entitled to
exercise its rights under this Article only if Buyer or Buyer's assignee,
successor transferee or other legally responsible entity fails remedy such
failure within (i) ten (10) days after the receipt of such notice, or (ii) such
longer period, not to exceed sixty (60) days after the receipt of such notice,
as is necessary to remedy the failure if the failure cannot be reasonably
remedied within ten (10) days and Buyer or Buyer's assignee, successor or
transferee commences action to remedy such failure within ten (10) days and
takes, or permits Seller to take, interim measures to minimize the adverse
impacts of the failure on the Transmission and/or Distribution System.
Notwithstanding the foregoing, if, in the Seller's judgment exercised pursuant
to Good Utility Practice, Seller concludes that the failure endangers life or
property or impair or create a significant risk to the safety, reliability,
stability, or integrity of the Transmission System or Distribution System, then,
consistent with Article 14, Seller may implement its rights under this Article
as necessary in its judgment to avert such condition.
ARTICLE 21
DAMAGE TO SYSTEMS, FACILITIES, EQUIPMENT AND PROPERTY
21.0 Each Party shall be responsible to the other for any physical damage
or destruction it causes to the facilities, systems, equipment or property, of
the other Party.
21.1 The Party causing physical damage to or destruction of shared use
cables, facilities, systems, or equipment or other shared use property shall be
responsible for all repair and/or replacement costs. If neither Party is
responsible for any such damage or destruction, all repair and/or replacement
costs shall be shared by both Parties on a pro rata basis based upon their usage
of said cables, facilities, systems, equipment or other shared use property.
21.2 Degradation to or routine replacement of shared use cables,
facilities, systems equipment or other shared use property at the Site shall be
evenly divided between the Parties for replacement or corrective costs up to
$25,000 per incident. Costs in excess of $25,000 per incident shall be shared
pro rated between the Parties based upon usage of such shared use cables,
facilities, systems, equipment or other shared use property.
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21.3 The obligations under this Article shall not be limited in any way by
any limitation on either Party's insurance.
ARTICLE 22
PERSONAL INJURY, INDEMNIFICATION
22.0 The obligations under this Article shall not be limited in any way by
any limitation on either Party's insurance.
22.1 To the fullest extent allowed by law, each Party shall indemnify,
defend, and save harmless the other party, its agents and employees, from and
against any loss, damage, liability, cost, suit, charge, expense, or cause of
action, whether unconditionally certain or otherwise, as they exist on the
effective date of this Agreement or arise at any time thereafter, (including but
not limited to fees and disbursements of counsel incurred by the indemnified
Party in any action or proceeding between the Party indemnifying and the
indemnified Party or between the indemnified Party and any third party or
otherwise) arising out of any damage or injury to its property or property of
third parties (including real property, personal property and environmental
damages), or persons, (including injuries resulting in death), directly or
indirectly caused by or arising out of or in any way connected with this
Agreement, or the work performed hereunder, or any facilities, systems,
equipment or property used by the other Party, its agents, employees,
contractors, and suppliers; provided however, each Party shall be liable for all
claims of the Party's own employees arising out of any provision of the Workers'
Compensation Law.
22.2 In the event that the claims, damages, losses, judgments, or
settlements are the result of the negligence of both Parties, each Party shall
be liable to the extent or degree of their respective negligence, as determined
by mutual agreement of both Parties, or in the absence thereof, as determined by
adjudication of comparative negligence.
22.3 The indemnifying Party shall take prompt action to defend and
indemnify the other Party against claims, actual or threatened, but in no event
later than notice by the indemnified Party to the indemnifying Party of the
service of a notice, summons, complaint, petition or other service of a process
against the indemnified Party alleging damage, injury, liability, or expenses
attributed in any way to this Agreement, the work, acts, fault, negligence,
equipment, materials, systems, facilities, personnel, or property of the
indemnifying Party, it's agents, employees, contractors or suppliers. The
indemnifying Party shall defend any such claim
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or threatened claim, including as applicable, engagement of legal counsel, to
respond to, defend, settle, or compromise any claim or threatened claim.
22.4 The indemnifying Party understands and agrees that it is responsible
for any and all costs and expenses incurred by indemnified Party to enforce this
indemnification provision.
22.5 The obligations set forth in this Article 22 shall survive completion
of any work, labor or services which is the subject matter of this Agreement and
shall survive the termination or expiration of this Agreement.
ARTICLE 23
INSURANCE
23.0 Each Party shall maintain at its own cost and expense, fire,
liability, worker's compensation, and other forms of insurance relating to their
property, facilities, systems, equipment in the manner, and amounts, and for the
durations set forth in Schedule L to this Agreement.
23.1 Each Party shall promptly provide the other Party with either a
Certificate of Insurance or Evidence of Insurance letter for all coverages as
set forth in Schedule L to this Agreement, at the following address:
For Niagara Mohawk Power Corporation:
Attn: Risk Management, Bldg. A-1
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
For Buyer:
Such certificates or letters, and any renewals or extensions thereof, shall
provide that at least ninety (90) days prior written notice shall be given to
the other Party in the event of any cancellation or diminution of coverage and
shall outline the amount of deductibles or self-insured retention which shall be
for the account of that Party. Any waiver of right of subrogation
responsibilities should be noted on the certificate.
23.2 Each Party shall be named as additional insureds on the general
liability insurance policies set forth in Schedule L to this Agreement as
regards liability under this Agreement; and each Party shall on behalf of
itself, its parents, affiliates, overseers, and assigns, waive its rights of
recovery against the other for any loss or damage covered by such policy.
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23.3 The failure of either Party to comply with the requirements of this
Article 23, or the complete or partial failure of an insurance carrier to
protect or indemnify fully the other Party, or the inadequacy of the insurance,
shall not in any way lessen or affect the obligations or liabilities of each
Party to the other.
23.4. In the event either Party uses contractors or sub-contractors in
connection with this Agreement, the using Party shall require all such
contractors and sub-contractors to provide the same insurance coverages as
required in Schedule L to this Agreement.
23.5 If any insurance coverage required in Schedule L to this Agreement is
not secured, maintained or is canceled before expiration of this Agreement, and
the Party obligated by this Agreement to obtain and/or to maintain such
insurance fails immediately to procure other insurance, the other Party has the
right to procure such insurance and to charge the cost thereof to Party failing
to obtain, maintain or replace such insurance.
23.6 Each Party shall furnish the other's Risk Management department with
copies of any accident or incident report(s) it receives from any insurance
carrier covering accidents or incidents occurring in connection with, as a
result of, or arising out of this Agreement.
23.7 Nothing contained in this Article 23 shall be construed as limiting
the extent of the either Party's responsibility for payment of damages resulting
from this Agreement, or limiting, diminishing, or waiving either Party's
obligation to indemnify, defend, and save harmless the other Party as provided
by this Agreement.
23.8 As set forth in Schedule L, each Party may elect to self-insure
specified portions of the insurance obligations set forth in Schedule L to this
Agreement provided such Party meets and complies with the requirements for
self-insurance set forth in Schedule L.
ARTICLE 24
CLAIMS
24.1 Buyer shall provide reasonable assistance and cooperation to Seller
in the investigation, processing and disposition of any and all claims, actions
and lawsuits, known or unknown, that relate to the Purchased Assets as of the
date of Closing. Such claims shall include claims arising out of actions or
activities occurring at the Purchased Assets prior to Closing, which have been
instituted against Seller within the applicable statue of limitations under New
York Law. Seller's assistance and cooperation shall include, but shall not be
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limited to, participation in pre-trial discovery, inspections, document
production, pre-trial testimony and testimony at trial.
ARTICLE 25
FORCE MAJEURE
25.0 Notwithstanding anything in this Agreement to the contrary, Buyer and
Seller shall not be liable in damages or otherwise or responsible to the other
for its failure to carry out any of its obligations under this Agreement if and
only to the extent that they are unable to so perform or are prevented from
performing by an event of force majeure. A Party's year 2000 computer compliance
failure shall not constitute force majeure.
25.1 The term "force majeure" as used herein, means those causes beyond
the reasonable control of the Party affected, which by the exercise of
reasonable diligence that Party is unable to prevent, avoid, mitigate, or
overcome, including the following: any act of God, labor disturbance, act of the
public enemy, war, insurrection, riot, fire, storm or flood, explosion, breakage
or accident to machinery or equipment, order, regulation or restriction imposed
by governmental military or lawfully established civilian authorities, or any
other cause of a similar nature beyond a Party's reasonable control.
25.2 If a Party shall rely on the occurrence of an event or condition
described above as a basis for being excused from performance of its obligations
under this Agreement, then the Party relying on the event or condition shall:
(i) provide prompt written notice of such force majeure event to the other Party
giving an estimation of its expected duration and the probable impact on the
performance of its obligations hereunder; (ii) exercise all reasonable efforts
to continue to perform its obligations under this Agreement, (iii) expeditiously
take action to correct or cure the event or condition excusing performance;
provided that settlement of strikes or other labor disputes will be completely
within the sole discretion of the Party affected by such strike or labor
dispute; (iv) exercise all reasonable efforts to mitigate or limit damages to
the other Party; and (v) provide prompt notice to the other Party of the
cessation of the event or condition giving rise to its excuse from performance.
All performance obligations hereunder, shall be extended by a period equal to
the term of the resultant delay.
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ARTICLE 26
GOVERNING LAW, DISPUTES
26.0 This Agreement and the rights, duties and obligations of the Parties
hereunder shall be governed by and construed, enforced and performed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law. Any law suits arising under this Agreement shall be
instituted in the Federal and State courts of New York located in the City of
Syracuse, County of Onondaga and each party hereby irrevocably submits to the in
personam jurisdiction of such courts. Each Party herein waives its respective
right to a jury trial with respect to any litigation between the Parties arising
under or in connection with this Agreement.
ARTICLE 27
ASSIGNMENT/CHANGE IN CORPORATE IDENTITY
27.0 This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the Parties hereto and their respective successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned without the prior written
consent of the other Party, said consent not to be unreasonably withheld. Any
assignment of this Agreement in violation of the foregoing shall be, at the
option of the non-assigning Party, void. Notwithstanding the foregoing, Buyer or
its permitted assignee may assign, transfer, pledge or otherwise dispose of its
right and interests hereunder to a trustee or lending institution (s) for the
purposes of financing or refinancing the Purchased Assets, including upon or
pursuant to the exercise of remedies under such financing or refinancing, or by
way of assignments, transfers, conveyances of dispositions in lieu thereof;
provided, however, that no such assignment or disposition shall relieve or in
any way discharge Buyer or such assignee from the performance of its duties and
obligations under this Agreement. Seller agrees to execute and deliver such
documents as may be reasonably necessary to accomplish any such assignment,
transfer, conveyance, pledge or disposition of rights hereunder for purposes of
the financing or refinancing of the Purchased Assets, so long as Seller's rights
under this Agreement are not thereby altered, amended, diminished or otherwise
impaired.
27.1 Except as set forth in this Article 27, no assignment or transfer of
rights or obligations under this Agreement by Buyer shall relieve Buyer from
full liability and financial responsibility for the performance thereof after
any such transfer or assignment unless and until
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the transferee or assignee shall agree in writing to assume the obligations and
duties of Buyer under this Agreement and Seller has consented in writing to such
assumption; said consent not to be unreasonably withheld.
27.2 Except as set forth in this Article 27, no assignment or transfer of
rights or obligations under this Agreement by Seller shall relieve Seller from
full liability and financial responsibility for the performance after any such
transfer or assignment unless and until the transferee or assignee shall agree
in writing to assume the obligations and duties of Seller under this Agreement
and Buyer has consented in writing to such assumption; said consent not to be
unreasonably withheld.
27.3 If either Party terminates its existence as a corporate entity, and
by merger, acquisition, sale, consolidation, or otherwise, or if all or
substantially all of such Party's assets are transferred to another person or
business entity without complying with this Article 27, the other Party shall
have the right, enforceable in a court of competent jurisdiction, to enjoin the
Party's successor from using the property in any manner that interferes with,
impedes, or restricts such other Party's ability to carry out its ongoing
business operations, rights, and obligations.
ARTICLE 28
CONTRACTORS AND SUBCONTRACTORS
28.0 Nothing in this Agreement shall prevent the Parties from utilizing
the services of contractors and subcontractors as they deem appropriate,
provided, however, the Parties agree that, where applicable, all said
subcontractors shall comply with the terms and conditions of this Agreement.
28.1 The creation of any subcontract relationship shall not relieve the
hiring Party of any of its obligations under this Agreement. Each Party shall be
fully responsible to the other Party for the acts and/or omissions of any
contractor or subcontractor it hires as if no contract or subcontract had been
made. Any obligation imposed by this Agreement upon the Parties, where
applicable, shall be equally binding upon and shall be construed as having
application to any contractor or subcontractor.
28.2 No contractor or subcontractor is intended to be or shall be deemed a
third-Party beneficiary of this Agreement.
28.3 To the fullest extent permitted by law, Buyer shall require its
contractor and subcontractors to indemnify and hold harmless and defend Seller,
its parent and affiliates and
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their officers, directors, employees, agents, and assigns from and against any
and all claims and/or liability for damage to property, injury to or death of
any person, including Seller's employees, Buyer's employees and their
affiliates' employees, or any other liability incurred by Seller or its parent
or affiliates including all expenses, legal or otherwise, to the extent caused,
by any act or omission, negligent or otherwise, by said contractor or
subcontractor and/or its officers, directors, employees, agents, and assigns
arising out of or connected with the operation of Seller's and its affiliates or
Buyer's and its affiliates' facilities, equipment, and property described in
this Agreement, regardless of whether caused in part by a Party indemnified
hereunder.
28.4 To the fullest extent permitted by law, Seller shall require its
contractors and subcontractors to indemnify and hold harmless and defend Buyer,
its parent and affiliates and their officers, directors, employees, agents, and
assigns from and against any and all claims and/or liability for damage to
property, injury to or death of any person, including Seller's employees,
Buyer's employees and their affiliates' employees, or any other liability
incurred by Buyer or its parent or affiliates including all expenses, legal or
otherwise, to the extent caused, by any act or omission, negligent or otherwise,
by said contractor or subcontractor and/or its officers, directors, employees,
agents, and assigns arising out of or connected with the operation of Seller's
and its affiliates or Buyer's and its affiliates' facilities, equipment, and
property described in this Agreement, regardless of whether caused in part by a
Party indemnified hereunder.
28.5 The obligations under this Article 27 shall not be limited in any way
by any limitation on any such contractor's or subcontractor's insurance.
ARTICLE 29
LABOR RELATIONS
29.0 Each Party agrees immediately to notify the other verbally and then
in writing, of any labor dispute or anticipated labor dispute which may
reasonably be expected to affect the operations of the other Party.
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ARTICLE 30
INDEPENDENT CONTRACTOR STATUS
30.0 Nothing in this Agreement shall be construed as creating any
relationship between Seller and Buyer other than that of independent
contractors.
ARTICLE 31
LIMITATION OF LIABILITY
31.0 To the fullest extent permitted by law and notwithstanding any other
provision of this Agreement, except for any third-party indemnity obligations
set forth in Article 22, neither Seller nor Buyer, nor their respective
officers, directors, agents, or employees, successors or assigns, shall be
liable to the other Party or its parent, subsidiaries, affiliates, officers,
directors, agents, employees, successors or assigns, for claims, suits, actions
or causes of action for incidental, punitive, special, indirect, multiple or
consequential damages (including attorney's fees or litigation costs) connected
with or resulting from performance or non-performance of this Agreement, or any
actions undertaken in connection with or related to this Agreement, including
without limitation any such damages which are based upon causes of action for
breach of contract, tort (including negligence and misrepresentation), breach of
warranty, strict liability, statute, operation of law, or any other theory of
recovery. The provisions of this Article 31 shall apply regardless of fault and
shall survive termination, cancellation, suspension, completion or expiration of
this Agreement.
31.1 The remedies set forth in this Agreement are the exclusive remedies
for the liabilities of each Party arising out of or in connection with this
Agreement.
ARTICLE 32
NOTICES
32.1 Unless otherwise provided in is Agreement, all notices, requests,
claims, demands and other communications hereunder shall be in writing and shall
be given (and will be deemed to have been duly given if so given) by hand
delivery, cable, telecopy (confirmed in writing) or telex, or by mail
(registered or certified, postage prepaid) to the respective Party as follows:
For Seller:
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Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention:
Facsimile: (315) _________
For Buyer:
[Address]
Facsimile:
or such other address as is furnished in writing by such Party. Unless otherwise
provided in this Agreement, notice is deemed to have been given as of the date
so mailed.
ARTICLE 33
HEADINGS
33.0 The descriptive headings of the Articles of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement.
ARTICLE 34
WAIVER
34.0 Except as otherwise provided in this Agreement, any failure of a
Party to comply with any obligation, covenant, agreement, or condition herein
may be waived by the Party entitled to the benefits thereof only by a written
instrument signed by the Party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement, or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
ARTICLE 35
COUNTERPARTS
35.0 This Agreement may be executed in two or more counterparts, all of
which will be considered one and the same Agreement and each of which will be
deemed an original.
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ARTICLE 36
SEVERABILITY
36.0 In the event that any of the provisions of this Agreement are held to
be unenforceable or invalid by any court of competent jurisdiction, the Parties
shall, to the extent possible, negotiate an equitable adjustment to the
provisions of this Agreement, with a view toward effecting the purpose of this
Agreement, and the validity and enforceability of the remaining provisions
hereof shall not be affected thereby.
ARTICLE 37
AMENDMENT
37.0 This Agreement may be amended, modified, or supplemented only by
written agreement of both Seller and Buyer.
ARTICLE 38
ENTIRE AGREEMENT
38.0 This Agreement and the Schedules attached thereto, constitute the
entire understanding between the Parties, and supersede any and all previous
understandings, oral or written, which pertain to the subject matter contained
herein or therein. If there is any conflict between this Agreement and either
the Interconnection Agreement or the ASA, both the Interconnection Agreement and
the ASA have precedence over this Agreement.
ARTICLE 39
CONFIDENTIALITY
39.0 [The parties will agree upon appropriate confidentiality language to
protect proprietary information of Buyer]
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be
signed by their respective duly authorized officers as of the date first above
written.
Acquisition Corporation Niagara Mohawk Power Corporation
By:________________________________ By: ____________________________________
Name:______________________________ Name:___________________________________
Tide: _____________________________ Title: _________________________________
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List of Schedules to be Attached
Schedule A Marked-up drawings and descriptions - points of interconnection.
Buyer's equipment located on Seller's property or easement. Seller's
equipment located on (in) Buyer's property. Storage space provided
by Buyer.
Schedule B ESB 756
Schedule C Buyer provided services.
Schedule D Deleted
Schedule E Deleted
Schedule F Seller provided services.
Schedule G Deleted
Schedule H Switching and Tagging Rules.
Schedule I Testing and Grounding for the Protection of Employees.
Schedule J Deleted
Schedule K Deleted
Schedule L Insurance Requirements.
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Schedules to Site Agreement located at tab 3.
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TRANSITION POWER PURCHASE AGREEMENT
(Hydro)
This Transition Power Purchase Agreement (the "Agreement) is entered into
as of this ______ day of_____________, 1999 between Niagara Mohawk Power
Corporation ("Niagara Mohawk"), a New York Corporation, and Erie Boulevard
Hydropower, L.P., a Delaware Limited Partnership ("Producer") (each individually
a "Party", or collectively the "Parties").
WHEREAS in November 1997 and on March 6, 1998 Niagara Mohawk filed its
Plan for Divestiture of its Non-Nuclear Electric Generating Facilities (the
"Plan") with the New York State Public Service Commission;
WHEREAS on May 6, 1998 the New York State Public Service Commission
approved the Plan subject to certain conditions;
WHEREAS Niagara Mohawk has conducted a Non-Nuclear Generation Divestiture
Auction ("Auction") to divest itself of its non-nuclear electrical generating
facilities, including seventy-two of its hydroelectric generating facilities;
WHEREAS Producer has entered into an agreement ("Asset Sales Agreement, or
ASA") to acquire certain facilities from Niagara Mohawk, consisting of the
hydroelectric generating facilities (the "Units") listed in the ASA;
WHEREAS Producer, will enter into an interconnection agreement with
NIAGARA MOHAWK on the Closing Date for the interconnection of the facilities
under this agreement; and
WHEREAS pursuant to the ASA Niagara Mohawk and Producer agreed to enter
into Transition Power Purchase Agreements pursuant to which, for a certain
period of time, Niagara Mohawk is to purchase from Producer certain quantities
of capacity and electricity generated by the Units;
NOW THEREFORE, in consideration of the mutual representations, covenants
and agreements set forth herein, and intending to be legally bound hereby, the
Parties agree as follows:
ARTICLE 1.
DEFINITIONS
Whenever used in this Agreement with initial capitalization, the following
terms shall have the meanings specified or referred to in this Article 1.
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"Agreement" shall mean this Transition Power Purchase Agreement dated as
of _______________, 1999, between Niagara Mohawk Power Corporation and Erie
Boulevard Hydropower, L.P. and all attached schedules.
"Asset Sales Agreement" or "ASA" shall mean the Asset Sales Agreement
dated as of December 2, 1998, between Niagara Mohawk Power Corporation and Erie
Boulevard Hydropower, L.P.
"Business Day" shall mean any day other than Saturday, Sunday and any day
which is a legal holiday or a day on which baking institutions in New York City
are authorized by law or other governmental action to close; and a Business Day
shall open at 8:00 a.m. and close at 5:00 p.m. Eastern Standard (or Daylight)
time.
"Calendar Quarter" shall include four time periods, each of the calendar
months of (i) January, February, and March, (ii) April, May, and June, (iii)
July, August, and September, (iv) October, November, and December.
"Closing" shall mean the closing of the transactions contemplated by the
ASA.
"Closing Date" shall mean the date and time at which the Closing actually
occurs.
"Delivery Point" shall mean the point at which the interconnection
facility is connected to the transmission system as is indicated on a one-line
diagram included as part of Exhibit A of the Interconnection Agreement, or, as
provided herein, the interconnection facility between Xxxx Street Generating
Station, L.P.'s electric generation facility in East Syracuse, New York and
Niagara Mohawk's transmission system.
"Force Majeure" means (with respect to Firm Transactions) an event not
anticipated as of the Effective Date which is not within the reasonable control
of the Party claiming Force Majeure (the "Claiming Party"), and which, by the
exercise of due diligence, the Claiming Party, is unable to overcome or avoid or
cause to be avoided, Force Majeure includes, but is not restricted to: acts of
God; fire; civil disturbance; labor dispute, labor or material shortage;
sabotage; action or restraint by court order to public or governmental authority
(so long as the Claiming Party has not applied for or assisted in the
application for, and has opposed where and to the extent reasonable, such
government action); provided, however, that an event of Force Majeure shall not
include (i) the loss of Niagara Mohawk's power markets; (ii) Niagara Mohawk's
inability economically to use or resell Power purchased hereunder, (iii) the
loss or failure of Producer's Power Supply; (iv) Producer's ability to sell
Power to a market at a more advantageous price. A party's year 2000 computer
compliance failure shall not constitute fore majeure.
"Good Utility Practice" shall mean any of the practices, methods and acts
engaged in or approved by a significant portion of the electric utility industry
during the relevant time period, or any of the practices, methods 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
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result at the lowest reasonable cost consistent with good business practices,
reliability, safety and expedition. Good Utility 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 region and consistently adhered to by Niagara Mohawk. Good Utility Practices
shall include, but not be limited to North American Electric Reliability Council
("NERC") Criteria & Guidelines, Northeast Power Coordinating Council ("NPCC")
Criteria & Guidelines, New York State Reliability Council ("NYSRC") if any, and
New York Power Pool ("NYPP") criteria, rules and standards, as they may be
amended from time to time including the rules, guidelines and criteria of any
successor organization to the foregoing entities.
"Interconnection Agreement" shall mean a separate Interconnection
Agreement dated as of the Closing Date between Niagara Mohawk Power Corporation
and Erie Boulevard Hydropower, L.P.
"Interest Rate" means, for any date, the interest equal to the prime rate
of Citibank as may from time to time be published in The Wall Street Journal
under "Money Rates".
"New York Independent System Operator" or NYISO" shall mean an
organization formed in accordance with orders of the Federal Energy Regulatory
Commission to administer the operation of the transmission system of New York
State, to provide equal access to the bulk power-transmission system and to
maintain the reliability of the transmission system of New York State.
"Power" means electric capacity as measured in MW or KW and/or energy as
measured in MWh or KWh. Energy purchased hereunder will include applicable
reserves (operating capacity), unless the Parties expressly agree otherwise.
"Price" means the price to be paid per unit as specified by Niagara Mohawk
to Producer for the purchase of Power, including the energy price, demand
charges, transmission charges and any other charges pursuant to Article 2.
"Quantity" means that quantity of Power that Producer agrees to make
available or sell and deliver, or cause to be delivered, to Niagara Mohawk, and
that Niagara Mohawk agrees to purchase and receive, or cause to be received,
from Producer pursuant to Article 3.
"Replacement Price" means the locational based marginal price as defined
by the NYISO for the load zone 'E' which includes Niagara Mohawk's Northern
Operating Region.
"Scheduling" or "Schedule" means the acts of Producer, Niagara Mohawk
and/or their designated representatives, including each Party's Transmission
Providers, if applicable, of notifying, requesting and confirming to each other
the quantity and type of Power to be delivered on a given hour, day or days at a
specified Delivery Point.
"Transmission Providers" means the entity or entities transmitting or
transporting the Power on behalf of Producer or Niagara Mohawk from the Delivery
Point.
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ARTICLE 2.
TRANSACTIONS
2.1. Term of Agreement. Term of Agreement will begin upon the Closing Date of
the ASA (the Effective Date) and will end on September 30, 2001.
2.2. Compensation. For each month during the term, Niagara Mohawk shall pay
Producer a Fixed Payment equal to one twelfth of the applicable Annual Fixed
Payment (as set forth in Schedule A), (one third of the applicable payment in
the first period set forth in Schedule A). For each Calendar Quarter during the
term, Niagara Mohawk shall pay Producer a Variable Payment calculated by
multiplying the applicable Variable Price (as set forth in Schedule A) by the
amount of energy delivered during the Calendar Quarter that is in excess of the
First Tier Quantity set forth in Schedule B for the applicable Calendar Quarter.
2.3 Compensation Adjustment. In the event Producer fails to deliver the First
Tier amount during any Calendar Quarter as set forth in Schedule B, Niagara
Mohawk shall reduce the Fixed Payment due by an amount of the product of (X) the
difference between the First Tier amount and the amount actually delivered (the
"Delivery Shortfall"), times (Y) the average Replacement Price for the
respective Calendar Quarter; provided, however Producer shall have the option
to supply the Delivery Shortfall from Xxxx Street Electric Generating Station,
L.P.'s electric generating facility in East Syracuse, New York, subject to the
limitations: (i) that on-peak deliveries in MWh are equal to off peak deliveries
in MWh, (iii) Niagara Mohawk is physically capable of receiving such energy and
(iii) Producer agrees to pay any incremental transmission and distribution costs
incurred by Niagara Mohawk as a result of such deliveries. Niagara Mohawk shall
have the right to schedule any such make-up deliveries by Producer. Niagara
Mohawk shall not be entitled to any other relief due to Producer's failure to
deliver the First Tier amount during any Calender Quarter.
In the event Producer does not use Good Utility Practice and fails to
provide energy and ancillary services to Niagara Mohawk relative to historic
capability and operation of the Units, per Article 3.2, the Producer shall pay
Niagara Mohawk the product of (X) the difference between the actual energy and
ancillary services delivered to Niagara Mohawk and what would have been
delivered based upon historic capability, times (Y) the Replacement Price.
Schedule C sets forth the historical energy production shape of the Units for
purposes of this Section 2.3.
Niagara Mohawk shall reimburse Producer for payments Producer incurs to
Niagara Mohawk for electric service under Niagara Mohawk's Service
Classification Tariff during hours in which Niagara Mohawk requests the Producer
to synchronize its generating Units without generating electricity ("Motor") to
provide voltage support. Producer shall provide such invoices to Niagara Mohawk
in accordance with Article 4.
2.4 Ancillary Service. Niagara Mohawk may request and Producer must commit
Unit(s) to be utilized for ancillary services to the NYISO. Producer may receive
ancillary service payments from the NYISO for such services, or for other
ancillary services it provides. Fixed Payments due from Niagara Mohawk to
Producer in accordance with paragraph 2.2 above shall be reduced by the
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amount of all payments Producer receives from the NYISO for such services during
the applicable month. At the request of Niagara Mohawk, Producer must supply
supporting documentation illustrating such payments. Niagara Mohawk shall have
the right to audit Producer's payments from the NYISO.
2.5 Sell-All. Producer will sell and Niagara Mohawk will purchase all of the
electric capacity and all associated energy output and ancillary services of the
hydro generating Units operated by Producer. Niagara Mohawk shall have the right
to claim the capacity.
2.6 Delivery Point. Producer will make all of the capacity, energy, and
ancillary services of the Units available to Niagara Mohawk at the Delivery
Point.
ARTICLE 3.
SCHEDULING
3.1 Scheduling. Niagara Mohawk shall have the right during the term of the
Agreement to commit, schedule, and designate for dispatch (if the Unit is
capable of receiving base points from the NYISO) any and all of the Units.
Niagara Mohawk shall have the right to require Unit(s) be available for economic
dispatch for purposes of providing ancillary services to the NYISO and may rely
on Unit(s) to provide voltage support, load following, regulation, reserves, and
other similar ancillary services.
3.2 Scheduling. Niagara Mohawk shall provide to Producer, its projection of
hourly energy prices at least 10 Business Hours prior to the time the day ahead
bids and schedule requests are due to the NYISO. Business Hours shall mean the
hours between 8:00 AM and 5:00 PM (EST) Monday through Friday. Producer shall be
obligated to schedule the hydro Units, consistent with historic usage, to
minimize to the extent possible (recognizing operating constraints), the power
costs, including ancillary services, of Niagara Mohawk. This shall be completed
on a timely basis, in accordance with Good Utility Practice such that Niagara
Mohawk shall have the schedule 4 Business Hours prior to the day ahead bids and
schedule requests to the NYISO. At the request of Niagara Mohawk, Producer must
provide documentation supporting the process used to assure Producer has
developed schedules, consistent with historical energy production shape to
minimize the production cost, including ancillary services, of Niagara Mohawk.
In the event Producer does not use Good Utility Practice and fails to provide
schedule consistent with historic usage, Niagara Mohawk shall be compensated in
accordance with Article 2.3.
3.3 Scheduling Updates. Niagara Mohawk and Producer shall update the schedule at
the request of NIAGARA MOHAWK to accommodate the "Balancing Market Evaluation
for the Real Time Market" described in the NYISO tariff filed with Federal
Energy Regulatory Commission.
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ARTICLE 4.
PAYMENT
4.1 Payment. Producer shall provide Niagara Mohawk with an invoice setting forth
the quantity of power which was delivered to Niagara Mohawk, (unless otherwise
specified for any applicable Transaction(s)), during the preceding month, the
total amount due from Niagara Mohawk including any applicable Variable Payment
and Compensation Adjustment, net of ancillary service payments received by
Producer from the NYISO, and any applicable supporting documentation. Niagara
Mohawk shall remit the amount due by wire transfer, or as otherwise agreed,
pursuant to Producer's invoice instructions, on the later of fifteen days from
receipt of Producer's invoice or the twenty-fifth (25th) day of the calendar
month in which the invoice is rendered.
4.2 Overdue Payments. Overdue payments shall accrue interest at the Interest
Rate from, and including, the due date to, but excluding, the date of payment.
4.3 Billing Dispute. If Niagara Mohawk, in good faith, disputes an invoice,
Niagara Mohawk shall immediately notify Producer of the Basis for the dispute
and pay the portion of such statement conceded to be correct no later than the
due date. If any amount withheld under dispute by Niagara Mohawk is ultimately
determined (under the terms herein) to be due to Producer, it shall be paid
within one (1) day of such determination along with interest accrued at the
Interest Rate until the date paid. Inadvertent overpayments shall be returned by
Producer upon request or deducted by Producer from subsequent payments, with
interest accrued at the Interest Rate until the date paid or deducted.
ARTICLE 5.
FORCE MAJEURE
5.1 Performance Excused. If either Party is rendered unable by an event of Force
Majeure to carry out, in whole or part, its obligations under the Agreement,
then, for only the pendency of such Force Majeure, the Party affected by the
event (other than the obligation to make payments then due or becoming due with
respect to performance which occurred prior to the event) shall be temporarily
relieved of its obligations insofar as they are affected by Force Majeure but
for no longer period. The Party affected by an event of Force Majeure shall
provide the other Party with written notice setting forth the full details
thereof within two (2) business days after the occurrence of such event and
shall take all reasonable measures to mitigate or minimize the effects of such
event of Force Majeure; provided, however, that this provision shall not require
Producer to deliver, or Niagara Mohawk to receive, Power at points other than
the Delivery Point.
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ARTICLE 6.
TITLE TRANSFER; LIABILITY
6.1 Title and Risk of Loss. Title to and risk of loss related to the Quantity
shall transfer from Producer to Niagara Mohawk at the Delivery Point. Producer
warrants that it will deliver to Niagara Mohawk the Quantity free and clear of
all liens, claims and encumbrances arising prior to the Delivery Point.
6.2 Indemnity. Each Party shall indemnify, defend and hold harmless the other
Party from any Claims arising from any act or incident occurring during the
period when control and title to Power is vested, as between the Parties as
provided in Article 7.1, in the indemnifying Party. "Claims" means all claims or
actions, threatened or filed and, whether groundless, false or fraudulent, that
directly or indirectly relate to the subject matter of an indemnity, and the
resulting losses, damages, expenses, attorneys' fees and court costs, whether
incurred by settlement or otherwise, and whether such claims or actions are
threatened or filed prior to or after the termination of this Agreement.
6.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages
and covenants and that it will use commercially reasonable efforts to minimize
any damages it may incur as a result of the other Party's performance or
non-performance of this Agreement.
ARTICLE 7.
LAW
7.1 Governing Law and Jurisdiction. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Except as provided in Article 9.2, any law suits
arising under this AGREEMENT shall be instituted in the Federal or State courts
of New York located in the City of Syracuse and each party hereby irrevocably
submits to the in personam jurisdiction of such courts. Each party herein waives
its respective right to a jury trial with respect to any litigation arising
under or in connection with this Agreement or any Transaction.
ARTICLE 8.
MISCELLANEOUS
8.1 Assignment. Neither Party shall assign this Agreement or its rights
hereunder without the prior written consent of the other Party; provided,
however, either Party may, without the consent of the other Party (and without
relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber
or assign this Agreement or the accounts, revenues or proceeds hereof in
connection with
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any financing or other financial arrangements, (ii) transfer or assign this
Agreement to an affiliate of such Party which affiliate's creditworthiness is
not materially different than that of such Party, or (iii) transfer or assign
this Agreement to any person or entity succeeding to all or substantially all of
the assets of such Party; provided, however, that in each such case, any such
assignee shall agree to in writing be bound by the terms and conditions hereof
and creditworthiness is not materially different than that of such Party.
8.2 Notices. Set for the in the:
to Niagara Mohawk:
NOTICES & CORRESPONDENCE SCHEDULING:
Niagara Mohawk Power Corporation (000) 000-0000
Supply Services - HCB#3 (315) 460-2425
000 Xxxx Xxxxxxxxx Xxxx Fax - (000) 000-0000
Xxxxxxxx, Xxx Xxxx 00000-0000
Phone: (000) 000-0000 DISPATCHERS:
Phone: (000) 000-0000 (000) 000-0000
Fax: (000) 000-0000 (000) 000-0000
Fax - (000) 000-0000
INVOICES:
Niagara Mohawk Power Corporation CHECK PAYMENTS:
Power Scheduling and Billing - HCB#3 Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx Misc. Accounts Receivable X-0
Xxxxxxxx, Xxx Xxxx 00000-0000 000 Xxxx Xxxxxxxxx Xxxx
Phone: (000)000-0000 Xxxxxxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
PAYMENTS BY WIRE:
Citibank New York
Account #: 00000000
ABA Routing #: 000000000
Credit To: Niagara Mohawk Power Corp.
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to Producer:
NOTICES & CORRESPONDENCE: PAYMENTS:
Erie Boulevard Hydropower, L.P ______________________________________
c/o Orion Power Holdings, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000 ______________________________________
Xxxxxxxxx, XX 00000
Attn: ______________________ ______________________________________
Fax: _______________________
Phone: 000-000-0000 ABA Routing # ________________________
INVOICES: Confirmation: ________________________
Attn:______________________________ Credit & Collections
(____)____ -_________________
Fax No.: (____)____ -____________
Phone No.: (____)____ -____________ SCHEDULING:
___________________________________ Attn:_________________________________
Fax No.: (____)____ -____________
Phone No.: (____)____ -____________
8.3 General. This Transition Power Agreement (including the Exhibit hereto) as
well as the ASA constitutes the entire Agreement between the Parties to the
subject matter contemplated by this Agreement. The Agreement shall be considered
for all purposes as prepared through the joint efforts of the Parties and shall
not be construed against one party or the other as a result of the preparation,
substitution, submission or other event of negotiation, drafting or execution
hereof. No amendment or modification to this Transition Power Agreement shall be
enforceable unless reduced to writing and executed by both Parties. This
Transition Power Agreement shall not impact any rights enforceable by any third
party (other than a permitted successor or assignee bound to this Agreement). No
waiver by a Party of any default by the other Party shall be construed as a
waiver of any other default. Any provision declared or rendered unlawful by any
applicable court of law or regulatory agency or deemed unlawful because of a
statutory change will not otherwise affect the remaining lawful obligations that
arise under this Agreement. The term "including" when used in this Agreement
shall be by way of example only and shall not be considered in any way to be in
limitation. The headings used herein are for convenience and reference purposes
only. All indemnity and audit rights shall survive the termination of this
Agreement for six years.
8.4 Audit. If requested, a Party shall provide to the other Party statements
evidencing the quantities of Power delivered at the Delivery Point. If any such
examination reveals any inaccuracy in any statement, the necessary adjustments
in such statement and the payments thereof will be made promptly and shall bear
interest calculated at the Interest Rate from the date the overpayment or
underpayment was made until paid; provided, however, that no adjustment for any
statement or
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payment will be made unless objection to the accuracy thereof was made prior to
the lapse of one (1) year from the rendition thereof.
The Parties have executed this Master Power Agreement in multiple
counterparts to be construed as one effective as of the Effective Date.
Erie Boulevard Hydropower, L.P. Niagara Mohawk Power Corporation
By:________________________________ By:_____________________________________
Name: Xxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer Title: Vice President Marketing and
Planning
Date:______________________________ Date:___________________________________
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