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Exhibit 10.5
STANDARD BILATERAL POWER SALES AGREEMENT
THIS STANDARD POWER PURCHASE AND SALE AGREEMENT (the "Agreement") is
made and entered into as of this 14th day of May, 1999 between AES Eastern
Energy, L.P., ("AES"), a Delaware limited partnership, having an office at 000
00xx Xxxxxx, Xxxxxxxxx, XX 00000, and NYSEG Solutions, Inc., ("NSI") a New York
Corporation, having an office at 0 Xxxxx Xx., Xxxxxxxxxx, XX 00000 (each, a
"Party", and collectively, the "Parties").
WITNESSETH:
WHEREAS, AES and NSI may, but shall not be obligated to, from time to
time enter into certain transactions for the purchase and sale of Power (as
defined below) or Other Services (as defined below); and
WHEREAS, neither AES nor NSI will be the end users of such Power or
Other Services; and
WHEREAS, AES and NSI are power marketers with authority to engage in
wholesale power transactions at market-based prices; and
WHEREAS, AES and NSI desire to set forth certain terms and conditions
applicable to any such Transaction (as defined below).
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and conditions herein contained, AES and NSI and AES hereby agree:
ARTICLE 1
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
definitions shall apply to this Agreement.
"AFFILIATE" means, with respect to any person, any other person (other
than an individual) that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person. For this purpose, "control" means the direct or indirect ownership
of fifty percent (50%) or more of the outstanding capital stock or other equity
interests having ordinary voting power.
"AUTHORIZED REPRESENTATIVES" shall have the meaning set forth in
Section 3.2 of this Agreement.
"BUSINESS DAY" means any day on which Federal Reserve member banks in
New York City are open for business; and a Business Day shall open at 8:00 a.m.,
and close at 5:00 p.m. Eastern Prevailing Time.
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"BUYER" means the Party to a Transaction hereunder who is obligated to
purchase and receive Power or Other Services during the Period of Delivery
specified for that Transaction.
"CONTRACT PRICE" means the price for the purchase and sale of Power or
Other Services agreed upon and set forth in a Transaction Agreement.
"CONTRACT QUANTITY" means the quantity of Power or Other Services that
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller as set
forth in a Transaction Agreement.
"COSTS" shall have the meaning set forth in Section 13.6 of this
Agreement.
"DEFAULT" shall have the meaning set forth in Section 13.4 of this
Agreement.
"DELIVERY POINT" means the location (points, areas, or zones) to which
Seller shall deliver and Buyer shall receive Power or Other Services as set
forth in a Transaction Agreement.
"FIRM" means, with respect to a Transaction, that the only excuse for
the failure to deliver Power or Other Services by Seller or the failure to
receive Power or Other Services by Buyer is Force Majeure, the other Party's
non-performance, or such other reason as set forth in a Transaction Agreement
for which a Party may interrupt delivery or receipt of Power or Other Services
without liability.
"FORCE MAJEURE" shall have the meaning set forth in Article 10 of this
Agreement.
"GAINS" shall have the meaning set forth in Section 13.6 of this
Agreement.
"INTEREST RATE" means the lesser of (i) Prime Rate plus two percent, or
(ii) the maximum lawful rate permitted by applicable law.
"LOSSES" shall have the meaning set forth in Section 13.6 of this
Agreement.
"NON-FIRM" means, with respect to a Transaction, that delivery or
receipt of Power or Other Services may be interrupted, without liability (except
as specified in Section 8.1), for any reason unless otherwise specified in a
Transaction Agreement and for reasons of Force Majeure as set forth in Article
10.
"OTHER SERVICES" means any generation-related ancillary services,
including but not limited to load following, VAR support, fuel supply
arrangements and emissions credits.
"PERIOD OF DELIVERY" means the duration of time during which Seller is
obligated to sell Power or Other Services to Buyer and Buyer is obligated to
purchase such Power or Other Services from Seller, such duration to be set forth
in a Transaction Agreement.
"POWER" means electric capacity and/or energy.
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"PRIME RATE" means for any date, the per annum rate of interest
announced from time to time by Citibank, N.A., as its "prime" rate for
commercial loans, effective for such date as established from time to time by
such bank.
"REGULATORY APPROVALS" means, for any Transaction, all state and
federal regulatory authorizations, consents, or approvals required as a
condition precedent for the Transaction to occur, whether or not specifically
set forth in any Transaction Agreement.
"SCHEDULE OR SCHEDULING" means communicating with and confirming that a
particular amount of Power or Other Services is to be delivered or received at
the Delivery Point and providing all information as may be necessary to cause
such delivery or receipt to occur.
"SELLER" means the Party to a Transaction hereunder who is obligated to
sell and deliver Power or Other Services during the Period of Delivery specified
for that Transaction.
"TAXES" shall have the meaning set forth in Article 11.
"TRANSACTION" means a particular, specifically agreed-upon purchase and
sale of Power or Other Services to be performed under this Agreement, as
documented pursuant to Article 3.
"TRANSACTION AGREEMENT" means a written agreement executed by the
Parties to form and effectuate a Transaction that shall be substantially in the
form of Exhibit A to this Agreement.
"TRANSMISSION PROVIDERS" means the entity or entities transmitting
energy on behalf of the Seller or Buyer to or from the Delivery Point in a
particular Transaction.
ARTICLE 2
TERM
This Agreement shall become effective upon the execution by both
Parties. It shall remain in effect until terminated by either Party upon thirty
(30) days prior written notice. In the event either Party wishes to terminate
this Agreement and sends such thirty (30) days notice, such termination shall
not become effective with respect to particular Transactions the Parties enter
into prior to the effective date of the termination unless and until such
Transactions are either terminated by mutual agreement of the Parties or such
Transactions expire in accordance with their terms.
ARTICLE 3
TRANSACTION PROCEDURES
SECTION 3.1 TRANSACTION AGREEMENTS. During the term of this Agreement,
the Parties may notify each other that Power or Other Services are available for
purchase or sale. Each Transaction shall be effectuated and evidenced (i) by a
written Transaction Agreement or (ii) in a telephone conversation between the
Parties whereby an offer and acceptance shall constitute the agreement ("Oral
Agreement") of the Parties; provided, however, each Party may stipulate by prior
notice to the other Party that any
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particular contemplated Transaction shall be effectuated and formed only by
means of procedure (i) above. The specific terms to be established by the
Parties for each Transaction shall include the Buyer and Seller, the Period of
Delivery, the Contract Price, the Delivery Point, the Contract Quantity, whether
the Transaction is Firm or Non-Firm and such other terms as the Parties shall
agree upon Seller shall deliver to Buyer a Transaction Agreement by facsimile
within one (1) Business Day after the Parties reach an Oral Agreement. If Seller
does not supply the Transaction Agreement within such time, Buyer may deliver to
Seller a Transaction Agreement by facsimile within two (2) Business Days after
the Oral Agreement. If the receiving Party disagrees with the rates, terms and
conditions in the Transaction Agreement, the receiving Party shall notify the
sending Party of the specific points of disagreement by facsimile within two (2)
Business Days after receipt of such Transaction Agreement. Failure of the
receiving Party to respond in writing within two (2) Business Days of receipt of
the Transaction Agreement shall constitute the receiving Party's acceptance of
the rates, terms and conditions as set forth in the Transaction Agreement. The
Parties shall resolve any conflict between this Agreement and a Transaction
Agreement in favor of the Transaction Agreement, and between a Transaction
Agreement and an Oral Agreement in favor of the Oral Agreement. If the Parties
have elected to use the procedure in (i) above to effectuate a Transaction, the
failure of the Parties to provide a Transaction Agreement shall invalidate the
Transaction agreed to by the Parties. If the Parties have elected to use the
procedure (ii) above to effectuate a Transaction, the failure of the Parties to
provide a Transaction Agreement shall not invalidate the Transaction agreed to
by the Parties. The Parties agree not to contest or assert any defense to the
validity or enforceability of Oral Agreements entered into in accordance with
this Agreement under laws relating to whether certain agreements are to be in
writing or signed by the Party to be thereby bound. Each Party consents to the
recording of its Authorized Representatives' telephone conversations without any
further notice. All recordings may be introduced into evidence and used to prove
the terms and conditions of a Transaction between the Parties; provided,
however, that each Party reserves the right to object to such introduction on
the grounds of relevance and materiality.
SECTION 3.2 AUTHORIZED REPRESENTATIVES. Each Party shall, in accordance
with Section 14.3, designate in writing to the other Party the persons
authorized to Schedule and to agree to Transactions on behalf of such Party
("Authorized Representatives"). Provided that written notice is provided in
accordance with Section 14.3, each Party may change its designation of
Authorized Representatives.
SECTION 3.3 NOTICE OF INTERRUPTION OF TRANSACTIONS. In the event that
either Buyer or Seller desires to interrupt a Transaction, they shall provide
notice in accordance with the procedures set forth in the applicable Transaction
Agreement, or, absent such procedures, in accordance with Section 8.1.
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ARTICLE 4
DELIVERY POINTS, PARTY OBLIGATIONS AND RELIABILITY GUIDELINES
SECTION 4.1 DELIVERY POINTS. Seller shall deliver and Buyer shall
receive Power or Other Services at the Delivery Point(s) set forth in the
appropriate Transaction Agreement.
SECTION 4.2 SELLER'S AND BUYER'S OBLIGATIONS. Seller shall be
responsible for any costs or charges imposed on or associated with the delivery
of the Contract Quantity, including control area services, inadvertent energy
flows, transmission losses and loss charges, and emission allowances relating to
the transmission of the Contract Quantity up to the Delivery Point. Buyer shall
be responsible for any costs or charges imposed on or associated with the
receipt of the Contract Quantity, including control area services, inadvertent
energy flows, transmission losses and loss charges, and emission allowances,
relating to the transmission of the Contract Quantity from the Delivery Point.
SECTION 4.3 RELIABILITY GUIDELINES. Each Party agrees to adhere to
accepted electric industry practice and, without limiting the foregoing, to the
applicable operating policies, criteria and/or guidelines of the North American
Electric Reliability Council ("NERC") and any regional or sub regional
requirements.
SECTION 4.4 TRANSMISSION ARRANGEMENTS. Seller shall arrange and be
responsible for transmission service to the Delivery Point and shall Schedule or
arrange for Scheduling services with its Transmission Providers to deliver the
Power to the Delivery Point. Buyer shall arrange and be responsible for
transmission services from the Delivery Point and shall Schedule or arrange for
Scheduling services with its Transmission Providers to receive the Power at the
Delivery Point.
ARTICLE 5
PRICE
Buyer agrees to pay Seller the Contract Price for Power and/or Other
Services delivered as set forth in a Transaction Agreement.
ARTICLE 6
BILLING AND PAYMENT
SECTION 6.1 BILLING. Unless the Parties agree otherwise, all
Transactions hereunder shall be accounted for on the basis of hourly quantities
delivered. The accounting period for Transactions hereunder shall be one
calendar month. For each Transaction, Seller shall render to Buyer for each
calendar month during which purchases and sales of Power or Other Services are
made, a statement setting forth as appropriate the total quantity of Power
delivered, the Other Services rendered and the amounts due to Seller from Buyer
as a result thereof. Such statement shall be rendered no later than the 15th day
of each calendar month following the calendar month in which purchases and sales
of Power or Other Services are made.
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SECTION 6.2 PAYMENT. Buyer shall, by the later of (i) the 20th day of
each calendar month or (ii) ten days after receipt of Seller's statement (by
regular mail, facsimile or other acceptable means pursuant to Section 14.3), or
if such day is not a Business Day, the immediately preceding Business Day,
render to Seller by wire transfer or other acceptable method, the amount due
Seller for all Power delivered or Other Services rendered during the preceding
month. Payment shall be made to the payment address or by wire transfer to
Seller's bank provided for in Section 14.3. If Buyer fails to make such payment
when due, Buyer shall pay Seller a late charge on the unpaid balance that shall
accrue on each calendar day from the due date at the Interest Rate. If Buyer, in
good faith, disputes any part of any statement, Buyer shall provide a written
explanation 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 disputed by
Buyer is determined to be due to Seller, it shall be paid within ten (10) days
of such determination, along with interest accrued from the original date due at
the Interest Rate until the date paid. If full payment on the undisputed amount
(including any late charges) is not received within five (5) Business Days after
receipt of written notice of non-payment, Seller shall have the right to suspend
this Agreement and terminate all outstanding Transactions. Buyer's right to
challenge the accuracy of a xxxx is limited to twelve (12) months from the date
that the xxxx is rendered. Upon the resolution of any disputed amount, any
amount to be refunded shall be promptly paid (but in any event, within ten (10)
days of the resolution of the dispute) after such determination with interest
calculated at the Interest Rate from the date of payment to the date the refund
payment is transmitted.
SECTION 6.3 AUDIT. Each Party (and its representatives) has the right,
at its sole expense, to examine the records of the other Party during normal
business hours to the extent reasonably necessary to verify the accuracy of any
statement, charge, or computation to Buyer pursuant to this Agreement. If any
such examination reveals any inaccuracy in any statement, the necessary
adjustments in such statement and the payments made pursuant to such inaccurate
statement shall be adjusted; provided, however, that such adjustments shall be
made prior to the lapse of one calendar year following the date on which the
inaccurately was discovered. This Section 6.3 shall survive any termination of
this Agreement for a period of two (2) years from the date on which the last
statement is rendered pursuant to this Agreement.
SECTION 6.4 NETTING. In the event that both Parties are required to pay
an amount to the other Party in the same month under a provision of this
Agreement, then such amounts shall be aggregated and the Parties shall discharge
their obligations to pay through netting, in which case the Party, if any, owing
the greater aggregate amount shall pay to the other Party the difference between
the amounts owed. Each Party reserves all rights, setoffs, counterclaims and
other remedies and defenses which such Party has or may be entitled to arising
from or out of this Agreement. All Transactions and the obligations to make
payment in connection therewith or under this Agreement may be offset against
each other, set off, or recouped therefrom.
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ARTICLE 7
TITLE
Title to Power delivered hereunder, and risk of loss, shall transfer
from Seller to Buyer at the Delivery Point. Title to Other Services shall
transfer as set forth in the applicable Transaction Agreement. Seller warrants
that it will deliver to Buyer the Contract Quantity free and clear of all liens,
claims and encumbrances.
ARTICLE 8
LIABILITY AND INDEMNIFICATION
SECTION 8.1 NON-FIRM TRANSACTIONS. In the event and to the extent the
Transaction is a Non-firm Transaction, neither Party shall be liable in damages
or otherwise to the other for an interruption of the delivery or receipt of
Power for any reason unless otherwise specified in the Transaction Agreement,
except and to the extent a Party fails to give to the other Party prompt notice
("Interruption Notice") of interruption except that a Party must first give
Interruption Notice by telephone. Either Party may, at its sole discretion and
without liability (except for failure to provide Interruption Notice within the
time specified for such notice in the Transaction Agreement) or, absent such
specified time in the Transaction Agreement, within sufficient time for the
non-interrupting Party to notify the Transmission Providers of the schedule
change without incurring any penalties or charges, interrupt in whole or in
part, the delivery or receipt of Power at any time for any reason unless
otherwise specified in the Transaction Agreement, provided that such
Interruption Notice shall be given to the other Party, and that no such
interruption shall be retroactive to any time prior to giving such Interruption
Notice. In the event the interrupting Party fails to provide a prompt
Interruption Notice, the interrupting Party shall be liable only for direct
actual damages resulting from the failure to promptly notify and shall only be
liable in the event the non-interrupting Party has exercised all reasonable
efforts to minimize and avoid such damages. The Parties hereby agree that such
actual direct damages shall equal any penalties or charges imposed on the
non-interrupting Party by the Transmission Providers as a result of the
interrupting Party's failure to provide the non-interrupting Party with prompt
Interruption Notice, and that such damages shall be the sole and exclusive
remedy of such event. Both Parties hereby stipulate that such liquidated damages
are reasonable in light of the anticipated harm and the difficulty of estimation
of calculation of actual direct damages and each Party hereby waives the right
to contest such damages as an unreasonable penalty. In the event the Transaction
Agreement specifies reasons under which a Party may interrupt a Non-firm
Transaction and a Party interrupts such Non-Firm Transaction for reasons other
than those specified, the interrupting Party shall be liable only for direct
actual damages computed in the same manner as damages for the interruption of
Firm Transactions prior to Interruption Notice.
SECTION 8.2 FIRM TRANSACTIONS. With respect to the unexcused failure to
deliver or receive Power, in whole or in part, under a Firm Transaction: (i) if
Seller fails to deliver the Power, Seller shall pay Buyer, on the date payment
would otherwise be due to Seller, an amount for each unit of such deficiency
equal to the positive difference, if any, between (1) the price at which Buyer,
acting in a commercially
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reasonable manner, purchases comparable supplies of such Power at a commercially
reasonable price in the market at the Delivery Point specified in that Firm
Transaction or, absent a purchase, the market price for such quantity at the
Delivery Point as determined by Buyer in a commercially reasonable manner, and
(2) the price ("Contract Price") for such Power the Parties agreed to under the
Firm Transaction, plus any incremental transmission costs, penalties or charges
incurred by Buyer; and (ii) if Buyer fails to accept Power, Buyer shall pay
Seller an amount for each unit of such deficiency equal to the positive
difference, if any, between (3) the Contract Price, and (4) the price at which
Seller, acting in a commercially reasonable manner, sells comparable supplies of
Power at a commercially reasonable price in the market at the Delivery Point
specified in that Firm Transaction or, absent a sale, the market price for such
quantity at the Delivery Point as determined by Seller in a commercially
reasonable manner, reduced by any incremental transmission costs, penalties or
charges incurred by Seller.
SECTION 8.3 LIABILITY IN CONNECTION WITH OTHER TRANSACTIONS. The
foregoing liquidated damages provisions in Section 8.2 shall not apply to any
Transactions other than Firm Transactions, except as provided in Section 8.1 of
this Agreement.
SECTION 8.4 DEMAND FOR LIQUIDATED DAMAGES PAYMENT OBLIGATION. As a
condition precedent for the payment by either Party of liquidated damages as set
forth in this Article 8, the Party demanding liquidated damages shall send
written notice to the non-performing Party setting forth the basis and
calculation as set forth above of the amount of such liquidated damages. Such
written notice for the payment of liquidated damages shall be made in accordance
with the schedule set forth in Section 6.1, and payment shall be made in
accordance with the schedule set forth in Section 6.2. In the event that either
Buyer or Seller fails to pay to the other Party when due liquidated damages set
forth in this Article 8, the aggrieved Party shall have (i) the right to suspend
performance under this Agreement until such liquidated damages plus interest
computed in accordance with Section 6.2 are paid, and/or (ii) exercise any
remedy available at law or in equity to enforce payment of such amounts.
SECTION 8.5 NO PENALTY; EXCLUSIVE REMEDY. Both Parties hereby stipulate
that the payments set forth in this Article are not penalties and that such
payments are reasonable in light of the anticipated harm and the difficulty of
estimating or calculating actual damages and each Party hereby waives the right
to contest such damages as an unreasonable penalty. The remedies set forth in
this Article 8 shall be the sole and exclusive remedy of any aggrieved Party for
the failure of the other Party to deliver or receive the Contract Quantity and
all other damages and remedies are waived.
SECTION 8.6 LIMITATION OF LIABILITY. Unless expressly provided herein,
neither Party shall be liable for consequential, incidental, punitive,
exemplary, or indirect damages, lost profit, cost of capital, loss of goodwill,
or business interruption damages, whether in contract, equity or tort, or
otherwise.
SECTION 8.7 INDEMNIFICATION. Each Party agrees to defend, indemnify and
save harmless the other Party and its affiliates, partners,
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officers, directors, agents, subcontractors, assigns, vendors, representatives
or employees, from and against any and all claims (including claims involving
parallel, loop, inadvertent or unauthorized power flows), demands, liabilities,
judgments, costs, expenses (including without limitation, reasonable attorneys'
fees, experts' fees, and disbursements incurred by a Party in any action or
proceeding between the Parties, or between a Party and any third party, or
otherwise) suits, actions for damage by reason of bodily injury, death or damage
to property caused by the performance or non-performance of the other Party, or
its affiliates, partners, officers, directors, agents, subcontractors, vendors,
representatives or employees under this Agreement, except to the extent caused
by any act of negligence or willful misconduct by the indemnified Party or its
affiliates, partners, officers, directors, agents, subcontractors, vendors or
employees. Each Party shall be solely responsible for and shall bear all of the
costs of claims by its employees, contractors, or agents arising under, and
covered by, any workers' compensation law.
SECTION 8.8 DUTY TO MITIGATE. The Provisions dealing with damages are
subject to a duty to mitigate. Each Party agrees that it has a duty to mitigate
damages and covenants that it will use commercially reasonable efforts
(including, but not limited to, the Party's self-generation) to minimize any
damages it may incur as a result of the other Party's performance or
non-performance of a Transaction.
SECTION 8.9 INSURANCE. Each Party shall maintain, at its expense, such
insurance coverage and such evidence thereof, or evidence of self-insurance, as
is reasonably satisfactory to the other Party.
SECTION 8.10 SURVIVAL. This Article 8 shall survive the termination of
this Agreement.
ARTICLE 9
ASSIGNMENT AND SUCCESSION
Neither Party shall assign this Agreement, a Transaction or a
Transaction Agreement, without the prior written consent of the other Party,
which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, either Party may assign this Agreement to an Affiliate without the
need for consent from the non-assigning Party; provided, however, that the
assigning Party shall remain liable for Transactions entered into prior to the
effective date of that assignment.
ARTICLE 10
FORCE MAJEURE
SECTION 10.1 DEFINITION. Neither Party shall be considered to be in
default in the performance of any obligations under this Agreement when a
failure of performance shall be due to an event of Force Majeure. The term
"Force Majeure" shall mean events that are beyond the control of the Party
affected, including, without limitation: flood, earthquake, tornado, storm,
fire, civil disobedience, labor disputes, labor or material shortage, sabotage,
which by the exercise of due diligence such Party could not reasonably have been
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expected to avoid and which by exercise of due diligence it has been unable to
overcome. No Party shall be relieved of its obligation to perform if such
failure is due to causes arising out of its own negligence or due to removable
or remediable causes which it fails to remove or remedy within a reasonable time
period or for nonpayment of any amount or amounts due hereunder. Either Party
rendered unable to fulfill any of its obligations under this Agreement by reason
of an event of Force Majeure shall give prompt written notice of such fact to
the other Party, but no later than five (5) days after the occurrence of the
Force Majeure event, and shall exercise due diligence to remove such inability
with all reasonable dispatch. If such Force Majeure event continues for a period
of thirty (30) days or more, then the Party not claiming a Force Majeure event
may terminate the affected Transaction upon five (5) days prior written notice
to the other Party.
SECTION 10.2 EXCLUSIONS. Neither (a) the loss of Buyer's markets or
Buyer's inability to use or resell Power hereunder, nor (b) the loss or failure
of Seller's supply, or Seller's ability to sell Power hereunder to a market at a
more advantageous price, will constitute a Force Majeure event. Interruption by
a Transmission Provider shall not be deemed to be an event of Force Majeure
unless (a) the Party contracting with such Transmission Provider shall have made
arrangements with such Transmission Provider for the firm transmission, as
defined under the Transmission Provider's tariff, of the Contract Quantity to be
delivered or received at the Delivery Point, (b) the interruption is due to an
event of force majeure as defined by the Transmission Provider's tariff, and (c)
the Party interrupted is unable, through commercially reasonable efforts, to
secure alternative transmission service for purposes of delivering or receiving
the Contract Quantity at the Delivery Point; provided, however, that solely for
purposes of section (b), interruptions of transmission service directed or
initiated by a pool, independent system operator, reliability council or such
other entity exercising control over the Transmission Provider's system shall
not be deemed a recognized event of force majeure under the Transmission
Provider's tariff.
ARTICLE 11
TAXES
Seller shall pay or cause to be paid, all taxes, fees, levies,
penalties, licenses or charges imposed by any government authority ("Taxes")
prior to the delivery of Power to Buyer at the Delivery Point(s). Buyer shall
pay or cause to be paid, all Taxes imposed upon and after delivery at the
Delivery Point(s). In the event Seller is required to remit or pay Taxes which
are Buyer's responsibility, Buyer shall promptly reimburse Seller for such
Taxes. If Buyer is required to remit or pay Taxes which are Seller's
responsibility hereunder, Buyer may deduct the amount of any such Taxes from the
sums due to Seller hereunder. Each Party shall indemnify, defend and hold
harmless the other Party from any liability against the indemnifying Party's
taxes. Buyer will provide Seller with applicable exemption certificates. Each
Party shall use reasonable efforts to administer this Agreement and implement
the provisions in accordance with the intent to minimize Taxes.
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ARTICLE 12
DISPUTE RESOLUTION PROCEDURE
SECTION 12.1 DISPUTE REPRESENTATIVE. Each Party shall designate one or
more dispute representative(s) (each, a "Dispute Representative") within 10 days
after a dispute arises who shall be authorized to act on its behalf with respect
to those matters contained herein which are the functions and responsibilities
of the Dispute Representative(s). Each Party shall give written notice to the
other Party of its designation. The Dispute Representatives shall have no
authority to modify any of the provisions of this Agreement.
SECTION 12.2 INTERNAL DISPUTE RESOLUTION PROCEDURES. Any controversy or
claim arising out of this Agreement or a Transaction Agreement shall be referred
to the Dispute Representative(s) for resolution on an informal basis as promptly
as practicable. In the event the Dispute Representatives are unable to resolve
the dispute within thirty (30) days, or such other period as the Parties may
agree upon, if mutually agreeable, such dispute may be submitted to arbitration
and resolved in accordance with the arbitration procedures set forth in Section
12.3. Absent a mutual agreement to submit the dispute to binding arbitration,
the Parties may pursue any remedy that may be available under this Agreement, or
at law or in equity.
SECTION 12.3 EXTERNAL DISPUTE RESOLUTION PROCEDURES. If the internal
dispute resolution process under Section 12.2 above is unsuccessful, such
dispute, if mutually agreeable, may be submitted to binding arbitration by one
arbitrator qualified by education, experience or training to render a decision
upon the issues in dispute and who has not previously been employed by either
Party, and does not have a direct or indirect interest in either Party or the
subject matter of the arbitration. Such arbitrator shall either be mutually
agreed by the Parties within 30 days after written notice from either Party
requesting arbitration, or failing agreement, the arbitration shall be conducted
by a panel of three arbitrators having the qualifications set forth in the
preceding sentence, one to be selected by each Party and the third arbitrator to
be selected by the two arbitrators selected by the Parties. Such arbitration
shall be held in New York City, New York. Each Party shall divide equally the
cost of the hearing, and each shall be responsible for his own expenses and
those of his counsel or other representative. The commercial arbitration rules
of the AAA shall apply to the extent they are consistent with the rules
specified above.
ARTICLE 13
CREDITWORTHINESS AND DEFAULT
SECTION 13.1 A Party will be considered creditworthy if (a) the Party's
long-term unsecured debt securities are, and remain, rated a minimum of BBB or
Baa2 by Standard & Poor's or Moody's, respectively, (b) the Party either prepays
for Power or (c) provides an irrevocable standby letter of credit issued by a
domestic or Canadian bank with a minimum A (Standard & Poor's), or A2 (Moody's)
long-term unsecured debt rating, for an amount equal to the sum of the charges
pursuant to Article 5 for the shorter of (i) the three (3) individual months
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when such charges would be greatest, or (ii) the term of the Transaction
Agreement, (d) the Party has, as determined by the other Party in its sole
discretion, a qualified long-term payment history, (e) the Party's parent
company, in a form satisfactory to the other Party, guarantees responsibility
for all financial obligations associated with the Transaction Agreement and such
parent company conforms to the minimum ratings specified above, or (f) the Party
otherwise demonstrates to the other Party's satisfaction that it is
creditworthy.
SECTION 13.2 Should a Party have reasonable grounds for insecurity
regarding the other Party's performance under this Agreement, the Party may
demand Adequate Assurance of Performance. "Adequate Assurance of Performance"
shall mean sufficient security in the form and for the term reasonably specified
by the Party demanding assurance, including, but not limited to:
(a) a security interest in an asset acceptable to the demanding Party;
(b) a performance bond or guarantee by a creditworthy entity;
(c) cash prepayment;
(d) a standby irrevocable letter of credit issued from a bank approved
by the demanding Party; or
(e) such other security in a form acceptable to the demanding Party.
SECTION 13.3 SECURITY REQUIREMENT. If at any time and from time to time
during the term of this Agreement (and notwithstanding whether an event of
Default has occurred or Early Termination Date declared as defined in Section
13.5) the Termination Payment, as determined in accordance with Section 13.5,
that would be owed by a Party in respect of all Transactions then outstanding
should exceed a previously posted amount of Adequate Assurance of Performance
(as defined in Section 13.2) less all outstanding debts, then upon receipt of
notice from the other Party, such Party shall deliver additional Adequate
Assurance of Performance for the difference between the amount of Adequate
Assurance of Performance required and the amount of Adequate Assurance of
Performance currently held.
SECTION 13.4 An event of default ("Default") shall occur in the event
either Party ("Defaulting Party") shall:
(i) fail to provide Adequate Assurance of Performance to the
Non-Defaulting Party within a period of five (5) Business Days
of a demand for such assurance;
(ii) make an assignment or any general arrangement for the benefit
of creditors;
(iii) default in a payment obligation to the other Party which is
not cured within five (5) Business Days after receipt of
written notice of such default provided by the Non-Defaulting
Party;
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(iv) file a petition or otherwise commence, authorize, or acquiesce
in the commencement of a proceeding or cause of action under
any bankruptcy or similar law for the protection of creditors,
or have such petition filed or proceeding commenced against it
and such petition or proceeding is not withdrawn or dismissed
within thirty (30) days after such filing or commencement;
(v) fail to perform any covenant set forth in this Agreement
(other than the events that are otherwise specifically covered
in this Section 13.4 as a separate Event of Default or its
obligations to deliver or receive Power a remedy for which is
provided in Section 8), and such failure is not excused by
Force Majeure or cured within five (5) Business Days after
written notice thereof to the Defaulting Party; or
(vi) fail to, or can no longer, demonstrate its creditworthiness
after five (5) Business Days notice of a demand to
demonstrate.
In the event of Default by one Party, the other Party ("Non Defaulting
Party") shall have the right to suspend performance of this Agreement and/or
terminate all future Transaction(s) thereunder, in addition to any and all other
remedies available hereunder or pursuant to law or in equity.
SECTION 13.5 If a Default occurs with respect to a Defaulting Party at
any time during the term of this Agreement the Non-Defaulting Party may, for so
long as the Default is continuing:
(i) establish a date ("Early Termination Date") on which all
Transactions shall terminate (the "Terminated Transactions");
and
(ii) withhold any payments due in respect to the Terminated
Transactions; provided, however, upon the occurrence of any
Default listed in Section 13.4 as it may apply to any Party,
all Transactions in respect thereof shall automatically
terminate, without notice, and without any other action by
either Party as if an Early Termination Date had been declared
immediately prior to such event.
If an Early Termination Date has been designated, the Non-Defaulting
Party shall in good faith calculate its Gains, Losses and Costs resulting from
the termination of the Terminated Transactions. The Gains, Losses and Costs
shall be determined by comparing the value of the remaining term, Contract
Quantity and Contract Price under each Terminated Transaction had it not been
terminated to the equivalent quantities and relevant market prices for the
remaining term either quoted by a bona fide third-party offer or which are
reasonably expected to be available in the market under a replacement contract
for each Terminated Transaction. To ascertain the market prices of a replacement
contract, the Non-Defaulting Party may consider, among other valuations, any or
all of the settlement prices of NYMEX Power futures contracts, quotations from
leading dealers in energy swap contracts and other bona fide third party offers,
all adjusted for the length of the remaining term and differences in
transmission. The Non-Defaulting Party shall aggregate such Gains, Losses and
Costs with respect to all Transactions into a single net amount ("Termination
Payment") and notify the Defaulting Party. If the Non-Defaulting Party's
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aggregate Losses and Costs exceed its aggregate Gains, the Defaulting Party
shall, within five (5) Business Days of receipt of such notice, pay the
Termination Payment to the Non-Defaulting Party, which amounts shall bear
interest at the Interest Rate from the Early Termination Date until paid. It is
expressly agreed that a Party shall not be required to enter into replacement
transactions in order to determine the Termination Payment. If the
Non-Defaulting Party's aggregate Gains exceed its aggregate Losses and Costs, if
any, resulting from the termination of the Terminated Transactions, the amount
of the Termination Payment shall be zero. If the Defaulting Party disagrees with
the calculation of the Termination Payment, the dispute may be submitted to the
dispute resolution procedure of Article 12, and the resulting Termination
Payment shall be due and payable within three (3) Business Days after the
disputed amount is resolved, or seek any available remedies at law or equity.
SECTION 13.6 As used herein with respect to each Party; (i) "Costs"
shall mean, with respect to a Party, brokerage fees, commissions and other
similar transaction costs and expenses reasonably incurred by such Party either
in terminating any arrangement pursuant to which it has hedged its obligations
or entering into new arrangements which replace a Terminated Transaction, and
attorney's fees, if any, incurred in connection with enforcing its rights under
this Agreement; (ii) "Gains" shall mean, with respect to a Party, an amount
equal to the present value of the economic benefit (exclusive of Costs), if any,
to it resulting from the termination of its obligations with respect to a
Terminated Transaction, determined in a commercially reasonable manner; and
(iii) "Losses" shall mean, with respect to a Party, an amount equal to the
present value of the economic loss (exclusive of Costs), if any, to it resulting
from the termination of its obligations with respect to a Terminated
Transaction, determined in a commercially reasonable manner. In no event,
however, shall a Party's Gains, Losses or Costs include any penalties, ratcheted
demand or similar charges. At the time for payment of any amount due under this
Section 13.6, each Party shall pay to the other Party all additional amounts
payable by it pursuant to this Agreement, but all such amounts shall be netted
and aggregated with any Termination Payment payable hereunder.
SECTION 13.7 This Agreement shall be considered a "forward contract"
for purposes of the Bankruptcy Code.
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 REGULATORY. This Agreement and performance hereunder is
subject to all present and future valid and applicable laws, orders, statutes
and regulations. The rights of the Parties to perform the purchase and sale of
Power or Other Services shall not be effective until all Regulatory Approvals
have been obtained. If all Regulatory Approvals are not obtained prior to the
commencement of a Transaction, either Party may terminate such Transaction
without further obligation or liability to the other Party. Each Party shall use
reasonable efforts to acquire and maintain such approvals. Subject to the
Parties' rights and obligations under this Article 14, if any provision of this
Agreement, an associated Transaction or Transaction Agreement, or the
application of that provision to a Party, is held to be unenforceable, illegal,
or invalid by a court or agency of competent jurisdiction, the remainder
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of this Agreement, or the Transaction Agreement, as applicable, and the
application of such provision other than to the extent it is held unenforceable,
illegal, or invalid, will not be invalidated or affected thereby.
SECTION 14.2 AUTHORIZATION. Each Party represents to the other that it
has (or will have at the time of documentation of any Transaction and at the
time of delivery or receipt of Power or Other Services thereunder) all requisite
Regulatory Approvals and corporate authorizations necessary to consummate such
Transaction.
SECTION 14.3 NOTICES. Except as specifically provided otherwise, any
notice, request, demand, statement or payment provided for in this Agreement
shall be delivered by letter, facsimile or other documentary form. A notice sent
by facsimile transmission shall be deemed received by the close of the Business
Day on which such notice was transmitted or such earlier time as confirmed by
the receiving Party and notice by overnight mail or courier shall be deemed to
have been received two (2) Business Days after it was sent or such earlier time
as is confirmed by the receiving Party unless it confirms a prior verbal
communication, in which case any such notice shall be deemed received on the day
sent.
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IF TO NYSEG SOLUTIONS, INC.:
Notices & Correspondence: Payments & Invoices:
AES Eastern Energy, L.P. AES Eastern Energy, L.P.
0000 00xx Xxxxxx 0000 00xx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
ATT: Manager Energy Trading ATT: ____________________________
Phone: _______________________ Phone: __________________________
Fax: _________________________ Fax: ____________________________
Payments by Wire Transfer:
_______________________________
_______________________________
_______________________________
IF TO NYSEG SOLUTIONS, INC.
NOTICES & CORRESPONDENCE: PAYMENTS & INVOICES:
NYSEG Solution, Inc. NYSEG Solutions, Inc.
Number One South Jersey Plaza 0 Xxxxx Xxxxxx
Xxxxx 00 Xxxxxxxxxx, XX 00000
Xxxxxx, XX 00000 ATT: Xxx Xxxxx
ATT: Xxxxx X. XxXxxxx Phone: (000) 000-0000
Phone: (000) 000-0000 Ext. 4127 Fax: (000) 000-0000
Fax: (000) 000-0000
PAYMENTS BY WHITE TRANSFER:
M&T Bank
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
For Credit To: NYSEG Solutions Receivables
Phone: (000) 000-0000
ABA #: 000000000
ACCOUNT #: 00000000
From time to time either Party may change the foregoing addresses by
sending notice of such change in accordance with this Agreement.
SECTION 14.4 ENTIRETY. This Agreement, the exhibits hereto, and the
documentation of each Transaction hereunder constitute the entire
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agreement between the Parties hereto with respect to such Transaction. There are
no prior or contemporaneous agreements or representations affecting the same
subject matter other than those herein expressed. This Agreement may only be
amended in writing and such amendment shall become effective when executed by
the Authorized Representatives.
SECTION 14.5 GOVERNING LAW. Including any counterclaims and cross
claims asserted in such action, this Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the laws of such state requiring the application of the laws to another
state. The Parties consent that any legal action or proceeding arising under or
relating to this Agreement, or any Transaction Agreement entered into pursuant
to this Agreement, shall be brought in any court of the State of New York. The
Parties irrevocably waive any objection that it may now or in the future have to
the State of New York as a proper and exclusive forum for any legal action or
proceeding arising under or relating to this Agreement, or Transaction Agreement
entered into pursuant to this Agreement.
SECTION 14.6 NON-WAIVER. No waiver by either Party hereto of any one or
more defaults by the other in the performance of any of the provisions of this
Agreement, or of a Transaction Agreement, shall be construed as a waiver of any
other default or defaults whether of a like kind of different nature.
SECTION 14.7 SEVERABILITY. Except as otherwise stated herein, any
provisions, article or section declared or rendered unlawful by a court of law
or regulatory agency with jurisdiction over the parties, or deemed unlawful
because of a statutory change, will not otherwise affect the remaining lawful
obligations that arise under this Agreement.
SECTION 14.8 HEADINGS. The headings herein are for convenience and
reference purposes only and shall in no way affect the meaning or interpretation
of the provisions of this Agreement.
SECTION 14.9 CONFIDENTIALITY. Neither Party shall disclose the terms of
any Transaction to a third party (other than such Party's and its Affiliates'
employees, lenders, counsel, accountants or consultants) except in order to
comply with any applicable law, order, regulation or exchange rule; provided,
however, that each Party shall notify the other Party of any proceeding of which
it is aware that may result in such disclosure and the Party subject to such
proceeding shall use reasonable efforts to prevent or limit the disclosure.
However, the foregoing shall not apply to the quarterly filing by a Party with
the Federal Energy Regulatory Commission of a summary of Transactions. The
provisions of this Agreement other than the terms of any Transactions are not
subject to this confidentiality obligation. The Parties shall be entitled to all
remedies available at law or in equity to enforce, or seek relief in connection
with, this confidentiality obligation; provided, however, that all monetary
damages shall be limited to actual direct damages and a breach of this Section
14.9 shall not give rise to the right to suspend or terminate any ongoing
Transaction. This Section 14.9 shall survive termination of this Agreement, or
any associated Transaction Agreement.
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SECTION 14.10 AGENCY. This Agreement shall not be intended, and shall
not be construed, to create any association, joint venture, agency relationship
or partnership between the Parties or to impose any such obligation or liability
upon either Party. Neither Party shall have any right, power or authority to
enter into any agreement or undertaking, for, or act on behalf of, or to act as
or be an agent or representative of, or otherwise bind, the other Party.
SECTION 14.11 CHANGES IN RATES, TERMS OR CONDITIONS. The rates, terms
and conditions in this Agreement or in any Transaction or Transaction Agreement
are not subject to change under Sections 205 or 206 of the Federal Power Act, as
either section may be amended or superseded, absent the mutual written agreement
of the Parties. It is the intent of this Article 14.11 that, to the maximum
extent permitted by law, the rates, terms, and conditions in this Agreement, or
in any Transaction or Transaction Agreement, shall not be subject to change,
regardless of whether such change is sought (a) by the Federal Energy Regulatory
Commission acting sua sponte on behalf of a Party or third party, (b) by a
Party, (c) by a third party, or (d) in any other manner.
SECTION 14.12 THIRD PARTIES. This Agreement, or any Transaction or
Transaction Agreement entered into pursuant to this Agreement, shall be intended
solely for the benefit of the Parties. Nothing in this Agreement shall be
construed to create any duty to, standard of care with reference to, or any
liability to, any person or entity not a party to this Agreement or related
Transaction Agreement.
SECTION 14.13 BINDING EFFECT. This Agreement, and any Transaction or
Transaction Agreement entered into pursuant to this Agreement, shall inure to
the benefit of, and be binding upon, the Parties and their respective successors
and permitted assigns.
SECTION 14.14 APPLICABLE TARIFFS. AES's sales of Power and/or Other
Services under this Agreement shall be pursuant to AES's FERC Electric Rate
Schedule, Original Volume No. 1 (Docket #ER99-1773-000), a copy of which is
attached hereto as Exhibit B. NSI's sales of Power and/or Other Services under
this Agreement shall be pursuant to NSI's FERC Electric Rate Schedule, Original
Volume 1 (Docket #ER99-971-000), a copy of which is attached hereto as Exhibit
C.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate originals to be effective as of the date and year first written above.
AES Eastern Energy, L.P. NYSEG Solutions, Inc.
By: By:
-------------------------- -------------------------------------
Name: Name:
-------------------------- -------------------------------------
Title: Title:
-------------------------- -------------------------------------
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EXHIBIT A
FORM OF TRANSACTION AGREEMENT
(DATE)
(COMPANY)
(STREET ADDRESS)
(CITY, STATE ZIP)
(Attn: ATTENTION)
RE: DESCRIPTOR Transaction
Dear ATTENTION:
Pursuant to our conversation, this document shall confirm the agreement
reached between AES Eastern Energy, L.P. ("AES") and NYSEG Solutions, Inc.
("NSI") regarding the Transaction set forth below. This Transaction shall be
governed by the STANDARD POWER PURCHASE AND SALE AGREEMENT between AES and NSI
dated ________________.
Seller:
Buyer:
Terms:
Quantity:
Price:
Nature of Power: (address firmness or availability guarantees here)
Delivery Point:
Scheduling:
Additional Terms Specific to Individual Transactions:
Other Conditions: THE TERMS OF THIS TRANSACTION ARE CONFIDENTIAL and
are not to be disclosed to any third party without
the prior written consent of the non-disclosing
Party; provided that the terms of this Transaction
may be disclosed to governmental agencies with
jurisdiction over this matter without prior consent.
In the event that such disclosure is required, the
disclosing Party will endeavor to obtain a protective
order to avoid or minimize any public disclosure of
the terms of this Transaction.
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Please confirm that the terms stated herein accurately reflect the agreement
reached between AES and NSI by returning an executed copy of this Transaction
Agreement via facsimile to NYSEG SOLUTIONS, INC. at (000) 000-0000. Your
response should reflect the appropriate party in your organization who has the
authority to enter into the Transaction. Your failure to object to the terms
contained in this Transaction Agreement within two Business Days after receipt
shall result in your acceptance of the terms and conditions of this Transaction
Agreement. Terms used but not defined herein shall have the meanings ascribed to
them under the Standard Power Purchase And Sale Agreement.
ACCEPTED AND AGREED TO AS OF ____________day of ___________,19____
AES Eastern Energy, L.P. NYSEG Solutions, Inc.
By:__________________________ By: __________________________________
Name: Name:
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EXHIBIT B
AES EASTERN ENERGY, L.P.
RATE SCHEDULE FERC NO. 1
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EXHIBIT C
NYSEG SOLUTIONS, INC.
RATE SCHEDULE FERC NO. 1
1. Availability: NYSEG Solution, Inc. ("NSI") makes electric energy and/or
capacity, and other services, available under this Rate Schedule for
wholesale sales to purchasers with whom NSI has contracted.
2. Applicability: This Rate Schedule is applicable to all wholesale sales
of electric energy and/or capacity, and other services, by NSI not
otherwise subject to a particular rate schedule of NSI.
3. Rates: All sales shall be made at rates established by agreement
between the purchaser and NSI.
4. Reassignment: NSI may reassign transmission capacity that it has
reserved for its own use at a price not to exceed the highest of: (1)
the original transmission rate paid by NSI; (2) the applicable
transmission provider's maximum stated from firm transmission rate on
file at the time of the transmission reassignment; or (3) NSI's own
opportunity costs, capped at the applicable transmission provider's
cost of expansion at the time of the sale to the eligible customer. NSI
will not recover opportunity costs in connection with reassignments
without making a separate filing under Section 205 of the FPA. Except
for the price, the terms and conditions under which the reassignment is
made shall be the terms and conditions governing the original grant by
the transmission provider. Transmission capacity may only be reassigned
to a customer eligible to take service under the transmission
provider's open access transmission tariff or other transmission rate
schedules. NSI will report the name of the assignee in its quarterly
reports.
5. Other Terms and Conditions: All other terms and conditions of sale
shall be established by agreement between the purchaser and NSI.
6. Affiliate Sales Prohibited: NSI will not sell electric energy and/or
capacity to New York State Electric & Gas Corporation or any other NSI
affiliate that has captive customers absent a Section 205 filing with
the Commission, unless otherwise permitted by the Commission.
7. Effective Date: This Rate Schedule is effective on and after December
22, 1998.
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TRANSACTION AGREEMENT
May 6, 1999
NYSEG Solutions, Inc.
0 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
(Attn: Xxxx Xxxxxxxx)
RE: Supply of Power to NYSEG Solutions, Inc. in connection with the
Interconnection Agreement by and between New York Electric & Gas
Corporation ("NYSEG") and AES NY, L.L.C. dated as of August 3, 1998 (as
amended and assigned to AES Eastern Energy, L.P., the "Agreement")
Dear Xx. Xxxxxxxx:
Pursuant to our conversation, this document shall confirm the agreement
reached between AES Eastern Energy, L.P. ("AES") and NYSEG Solutions, Inc.
("Solutions") regarding the Transaction set forth below. This Transaction shall
be governed by the STANDARD POWER PURCHASE AND SALE AGREEMENT between AES and
Solutions dated May 14, 1999 (the "PPSA").
Seller: AES
Buyer: Solutions
Term: This Transaction Agreement shall be in effect for a term equal to the term
of the Agreement.
Contract Quantity: Power required by Solutions to provide Secondary System
Substation service power and power for Building Services to NYSEG as described
in Sections 3.9.1 and 3.9.2 of the Agreement for the Xxxxxxxx and Xxxxxxx
generating stations, but not the Hickling, Jennison, Xxxxxxxxx and Xxxxxx
generating stations, at the amounts specified in Schedule A to the Agreement.
Price: The Power delivered pursuant to this Transaction Agreement shall be
delivered at no cost.
Nature of Power: The Power shall be delivered on the same basis as that provided
from the plants immediately prior to the closing of the transactions
contemplated by the Asset Purchase Agreement between NYSEG, NGE Generation, Inc.
and AES NY, L.L.C. dated as of August 3, 1998.
Delivery Point: The Delivery Point shall be those points specified in Appendix F
of the Interconnection Implementation Agreement between NYSEG and AES dated as
of May 7, 1999 that are located at the Xxxxxxxx generating station, and at the
Xxxxxxx switchyard, delivery is provided at 69 kV to NYSEG bank transformer #4,
point of interconnection #3. In addition, the Delivery Point for power for
Building Services shall include those points at the Xxxxxxxx and
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Xxxxxxx generating stations at which the switch is closed so that NYSEG is able
to obtain Power necessary for lighting, heating, ventilation and exhaust.
Scheduling:
Additional Terms Specific to individual Transactions:
The liquidated damages provision of Article 8 of the
PPSA and Article 13 of the PPSA shall not apply to this Transaction Agreement.
Under no circumstances shall Solutions have any
liability to AES under this Transaction Agreement unless Solutions' action or
failure to act under this Transaction Agreement is the sole cause of AES's loss
of Exempt Wholesale Generator status under Section 32 of the Public Utility
Holding Company Act of 1935, as amended.
Other Conditions: THE TERMS OF THIS TRANSACTION ARE CONFIDENTIAL and
are not to be disclosed to any third party without
the prior written consent of the non-disclosing
Party; provided that the terms of this Transaction
may be disclosed to governmental agencies with
jurisdiction over this matter without prior consent.
In the event that such disclosure is required, the
disclosing Party will endeavor to obtain a protective
order to avoid or minimize any public disclosure of
the terms of this Transaction.
Please confirm that the terms stated herein accurately reflect the agreement
reached between AES and Solutions by returning an executed copy of this
Transaction Letter via facsimile to AES Eastern Energy, L.P. at (000) 000-0000.
Your response should reflect the appropriate party in your organization who has
the authority to enter into the Transaction.
ACCEPTED AND AGREED TO AS OF 14th day of May, 1999
AES Eastern Energy, L.P. NYSEG Solutions, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
Name: Name:
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