Exhibit 10.3
An asterisk ([*]) indicates that confidential information has been omitted
and filed separately with the Securities and Exchange Commission as part of a
Confidential Treatment Request.
================================================================================
POWER PURCHASE AGREEMENT
DATED AUGUST 24, 1999
BY AND BETWEEN
TENASKA GEORGIA PARTNERS, L.P.
AND
PECO ENERGY COMPANY
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Parties........................................................1
Section 1.02 Other Definitions..............................................1
ARTICLE II
ROLES; FACILITIES, EQUIPMENT AND EASEMENTS
Section 2.01 Roles.........................................................14
Section 2.02 Plant Description.............................................15
Section 2.03 Inspections and Documents.....................................16
Section 2.04 Fuel Oil Measurement..........................................17
ARTICLE III
EFFECTIVENESS AND TERMINATION
Section 3.01 Effectiveness.................................................17
Section 3.02 Termination of Agreement......................................18
Section 3.03 Termination Option; Plant Financing...........................18
Section 3.04 Termination Option; Commercial Operation......................18
Section 3.05 Termination Option - Following Event of Default...............19
Section 3.06 Termination Option; Shortened Operating Term..................20
Section 3.07 Termination due to Inadequate Availability....................21
ARTICLE IV
COMMERCIAL OPERATION OF PLANT
Section 4.01 Commercial Operation..........................................21
Section 4.02 Liquidated Damages for Failure to Achieve Commercial Operation21
ARTICLE V
CONTRACT CAPACITY AND TESTS
Section 5.01 Annual Testing Procedure to Establish Contract Capacity.......22
Section 5.02 Establishment of Contract Capacity............................23
Section 5.03 Tests other than Capacity Tests...............................24
ARTICLE VI
OPERATION OF THE PLANT
Section 6.01 Peak Availability Periods.....................................24
Section 6.02 Required Generating Unit Availability.........................25
Section 6.03 Notification of Unit Availability by Tenaska..................25
Section 6.04 Notification of Generating Unit Call by PECO..................25
Section 6.05 Plant Maintenance.............................................26
Section 6.06 Startup Power.................................................27
Section 6.07 Delivery of Fuel..............................................28
Section 6.08 Oil-Fired Operation Availability Requirements.................28
Section 6.09 Energy Requests...............................................29
Section 6.10 Delivery of Power.............................................32
Section 6.11 Replacement Energy............................................33
Section 6.12 Dispatch......................................................34
Section 6.13 Automatic Generation Control..................................34
Section 6.14 Estimated Fuel Efficiency.....................................35
Section 6.15 Unit Starts...................................................35
ARTICLE VII
AVAILABILITY DETERMINATIONS
Section 7.01 Determination of Hourly Availability Inputs...................36
Section 7.02 Computation of Availability Percentages.......................39
Section 7.03 Availability Standards........................................39
ARTICLE VIII
PAYMENTS
Section 8.01 Monthly Payments..............................................39
ii
Section 8.02 Reservation Payments..........................................39
Section 8.03 Energy Payments...............................................40
Section 8.04 Start Charges.................................................41
Section 8.05 Standby Mode Charge...........................................41
Section 8.06 Start up Power Cost...........................................41
Section 8.07 Availability Incentive Payment................................41
Section 8.08 Availability Adjustments......................................42
Section 8.09 Payment of Availability Adjustment Amounts....................42
Section 8.10 Efficiency Adjustment.........................................44
Section 8.11 Fuel Tax Payments.............................................44
Section 8.12 Replacement Energy Payment....................................46
ARTICLE IX
BILLING AND PAYMENT
Section 9.01 Confirmation of Amounts Owed..................................46
Section 9.02 Monthly Statement.............................................47
Section 9.03 Availability Adjustment Statements............................48
Section 9.04 Corrections and Disputes......................................48
Section 9.05 Interest on Past Due Amounts..................................49
Section 9.06 Regulation....................................................49
ARTICLE X
[RESERVED]................................50
ARTICLE XI
RECORDS
Section 11.01 Records.......................................................50
ARTICLE XII
ASSIGNMENT
Section 12.01 Assignment....................................................50
iii
ARTICLE XIII
INDEMNITIES
Section 13.01 Indemnification...............................................51
Section 13.02 Release by Tenaska............................................51
Section 13.03 Release by PECO...............................................52
ARTICLE XIV
DEFAULT
Section 14.01 Events of Default.............................................52
Section 14.02 Notices for Defaults and Force Majeure Events.................54
Section 14.03 Default Cure Rights and Timeframes............................55
ARTICLE XV
[[RESERVED]]................................56
ARTICLE XVI
CONFIDENTIALITY
Section 16.01 Scope.........................................................56
Section 16.02 Exceptions....................................................56
Section 16.03 Schedules of Energy or Gas....................................57
ARTICLE XVII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES
Section 17.01 Tenaska's Representations and Warranties......................57
Section 17.02 PECO's Representations and Warranties.........................57
Section 17.03 Covenants of Tenaska..........................................58
Section 17.04 Covenants of PECO.............................................59
Section 17.05 Covenants of PECO and Tenaska.................................59
iv
ARTICLE XVIII
MISCELLANEOUS
Section 18.01 Limitation on Punitive and Consequential Damages..............60
Section 18.02 Notices.......................................................60
Section 18.03 No Rights of Third Parties....................................61
Section 18.04 Subject to Applicable Laws....................................61
Section 18.05 No Partnership................................................61
Section 18.06 Amendment.....................................................61
Section 18.07 No Waiver.....................................................61
Section 18.08 Captions......................................................61
Section 18.09 Complete Agreement............................................61
Section 18.10 Currency of Account...........................................61
Section 18.11 Choice of Laws................................................62
Section 18.12 Severability..................................................62
Section 18.13 Arbitration...................................................62
Section 18.14 Exhibits......................................................63
v
TABLE OF EXHIBITS
Annex A Acceptable Guarantors
Annex A-1 Form of Letter of Credit
Exhibit A Drawing Certificate
Exhibit B Consent to Reduction of Letter of Credit
Exhibit C Consent to Termination of Letter of Credit
Annex A-2 Form of Guaranty
Exhibit 1.01 Fuel Specifications
Exhibit 2.01 Designated Contractors
Exhibit 3.06 Letter of Credit
Exhibit 5.01 Performance Test Guidelines and Procedures
Exhibit 8.02 Monthly Reservation Payments
Exhibit 8.03 Energy Payments
Exhibit 17.03(d) Insurance
Exhibit 17.04(a)-1 &-2 Consent and Opinion
vi
Execution Copy
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "Agreement") dated August 24, 1999
("Contract Date"), is entered into by and between TENASKA GEORGIA PARTNERS,
L.P., a Delaware limited partnership (hereinafter called "Tenaska"), and PECO
ENERGY COMPANY, a Pennsylvania corporation (hereinafter called "PECO").
In consideration of the promises herein made, and intending to be
legally bound, Tenaska agrees to deliver and sell to PECO, and PECO agrees to
take and purchase from Tenaska, electric capacity and energy, subject to the
terms and conditions contained herein, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 PARTIES. As used herein, the term "Party" or "Parties"
means Tenaska, PECO and their respective permitted successors and assigns.
Section 1.02 OTHER DEFINITIONS. Capitalized terms used herein have the
respective meanings, for all purposes in this Agreement, set forth below:
"ACCEPTABLE CREDIT SUPPORT" shall mean (a) one or more letters of
credit substantially in the form of Annex A-1 issued by one or more domestic or
foreign banks whose long term debt is rated at the Financial Closing Date at
least BBB+ or the equivalent by Standard & Poor's or Xxxxx'x or any successor
Ratings Organization (PROVIDED THAT if Acceptable Credit Support is issued prior
to the Financial Closing Date, then for the period prior to the Financial
Closing Date such Acceptable Credit Support may be issued by The First National
Bank of Omaha PROVIDED THAT its long term debt is rated on the date of issuance
of the letter of credit no lower than BBB- or the equivalent) or (b) a guaranty
or several guaranties substantially in the form of Annex A-2 issued by parties
identified in Annex A or by other creditworthy parties reasonably satisfactory
to PECO.
"ACCRUED AVAILABILITY ADJUSTMENT" shall have the meaning set forth in
Section 8.09.
"ACCRUED AVAILABILITY ADJUSTMENT STATEMENT" shall mean the statement
showing the Accrued Availability Adjustment and Availability Incentive Payment,
if any, provided in accordance with Section 9.03.
"AFFILIATE" means, when used with reference to a specified Person or
entity, any other Person or entity that directly, or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
the specified Person or entity. For purposes of the foregoing, "control",
"controlled" and "under common control" with respect to any Person or entity
means the possession, directly or indirectly, or the power to direct or cause
the direction of
the management and policies of such Person or entity, whether through the
ownership of voting securities or partnership interests, by contract or
otherwise.
"AGC" shall mean equipment at the Plant site necessary to enable a
transmission control area operator to adjust the Plant's output automatically
from the control area's system control center.
"AGREEMENT" shall have the meaning given it in the introductory
paragraph of this Agreement.
"AIR PERMIT" shall mean Air Quality Permit No. 4911-149-0004-P-01-0
issued by the Georgia Department of Natural Resources, with an effective date of
December 18, 1998, a copy of which Tenaska has provided to PECO, as amended by
Amendment No. 4911-149-0004-P-01-1, dated April 21, 1999 and as further amended
from time to time.
"ANNUAL AVAILABILITY ADJUSTMENT" shall mean for a Contract Year the
amount, if any, owed by Tenaska to PECO, calculated under Section 8.08, if the
Annual Availability Percentage for such Contract Year is less than 97%.
"ANNUAL AVAILABILITY ADJUSTMENT STATEMENT" shall mean the statement
showing the Annual Availability Adjustment provided in accordance with Section
9.03.
"ANNUAL AVAILABILITY PERCENTAGE" shall have the meaning set forth in
Section 7.02(b).
"ANNUAL OUTPUT" shall have the meaning set forth in Section 7.02(b)(i).
"ANNUAL POTENTIAL" shall have the meaning set forth in Section 7.02
(b)(ii).
"APPLICABLE LAWS" shall mean all laws, ordinances, rules, regulations,
orders, interpretations, licenses, permits, judgments, decrees, injunctions,
writs and orders of any court, arbitrator, or governmental agency, body,
instrumentality or authority that are applicable to either or both of the
Parties, the Plant or the terms of this Agreement.
"AVAILABILITY ADJUSTMENTS" shall mean Summer Availability Adjustments
and Annual Availability Adjustments.
"AVAILABILITY INCENTIVE PAYMENT" shall have the meaning set forth in
Section 8.07.
"AVAILABILITY PERCENTAGES" shall mean the Summer Availability
Percentage and the Annual Availability Percentage.
"AVAILABILITY SCHEDULE" shall mean the information provided in writing
by Tenaska pursuant to Section 6.03 listing for each hour of the applicable Day
in Summer Months and Non-Summer Months (i) the number of Generating Units
available to deliver energy in accordance with Section 6.09, (ii) Tenaska's good
faith estimate of maximum available output from the Plant per Unit, and (iii)
the number of Generating Units available which are in Fuel Oil Capable Mode.
2
"BARREL" shall mean forty-two (42) gallons including any adjustments to
meet industry standards.
"BASE UNIT OUTPUT" shall mean a mode of Plant operation during which
(i) each Unit in operation during such hour is operated entirely on Natural Gas
for the entire hour, and (ii) each operating Unit generates energy for the
entire hour at an output equal to or greater than Unit Capacity for such
Contract Year less 5 MW.
"BTU" shall mean British Thermal Unit.
"CAPACITY TEST" shall mean the test(s) of the Plant's generating
capability as performed pursuant to Article V and EXHIBIT 5.01.
"CAPACITY TEST RESULT" shall have the meaning set forth in Section
5.01(e).
"COLD SHUTDOWN" shall mean, for any Unit, a situation in which the Unit
has been producing 0 MW of energy for 50 or more consecutive hours.
"COLD START" shall have the meaning set forth in Section
6.09(a)(ii)(A).
"COMMERCIAL OPERATION" of a Unit shall be deemed to be achieved at
00:01 hours on the Day next following the Day (i) such Unit has been declared to
have a generating capacity of at least 150 MW if such Unit is one of the Initial
Units or at least 146 MW if such Generating Unit is one of the Final Units, (ii)
the Unit shall be capable of producing energy through "firing" with Natural Gas,
(iii) interconnection of the Unit and the Primary Point of Delivery shall have
been achieved, (iv) sufficient Gas Supply Facilities and Interconnection
Facilities shall be in operation to accept Unit Capacity from that Unit
simultaneously with Unit Capacity from all other Units which have achieved
Commercial Operation and (v) Tenaska shall have delivered written notice to PECO
that such Unit is placed in commercial operation. Notwithstanding the foregoing,
no Unit shall be deemed to have achieved Commercial Operation prior to June 1 of
its Start Year.
"COMMUNICATIONS AND TELEMETRY EQUIPMENT" shall have the meaning set
forth in Section 2.02(a)(ix).
"COMPETITOR" shall mean any of the three Persons (together with any
Affiliates of such Persons at the time of designation) designated at any time by
PECO in accordance with Section 12.01(c).
"CONFIDENTIAL" shall mean that information or documents, including the
content or substance of such information or document (together with any document
or information which reflects upon such content or substance), shall not be
disclosed, discovered or distributed to any other Person, corporation or other
entity except pursuant to the valid order of an administrative or judicial
officer having jurisdiction, which order shall be opposed unless opposition with
respect thereto is waived by each of the Parties to this Agreement and except as
hereinafter provided.
"CONTRACT CAPACITY" shall mean the capacity of the Plant, expressed in
MWs, to be purchased by PECO under this Agreement, as determined in accordance
with Article V.
3
"CONTRACT YEAR" shall mean the period beginning on the Date of
Commercial Operation ending on the next May 31, each one-year period thereafter
during the Operating Term, and the period from the last June 1 during the
Operating Term until the last day of the Operating Term.
"CREDIT DOCUMENTS" shall mean the loan agreements, notes, indentures,
security agreements, interest rate hedging arrangements, and other documents
entered into by Tenaska or its Affiliates with the Financial Institutions or
entered into by the Financial Institutions relating to the financing or
refinancing of the Plant, as any of them may be amended, supplemented or
modified in whole or in part from time to time.
"CURRENT CONTRACT CAPACITY" shall mean with respect to any Contract
Year the Contract Capacity for such Contract Year as determined pursuant to the
testing procedure set forth in Section 5.01 and EXHIBIT 5.01 in which a Capacity
Test is conducted.
"DAILY CONFIRMATION LETTER" shall mean a letter delivered pursuant to
Section 9.01(a).
"DAILY GAS PRICE" shall be the amount in $/MMBtu equal to the daily
midpoint of the Daily Index Citation.
"DAILY INDEX CITATION" shall mean for a Day the citation labeled
"Transco, St. 85" as published by Gas Daily for such Day. If the Gas Daily index
for "Transco, St. 85" ceases to be published, such index shall be replaced by
such other comparable index mutually agreed upon by the Parties, or failing such
mutual agreement, by an index as determined by arbitration pursuant to Section
18.13. In the event that the Daily Index Citation is not published for the day
on which the Natural Gas is purchased, the published index citation for the
immediately preceding day for which an index citation is published shall be
used. For example, the gas price published on Monday for transactions on Friday
would be applicable for Saturday, Sunday and Monday.
"DATE OF COMMERCIAL OPERATION" shall mean the date not earlier than
June 1 of the Start Year of the Initial Units on which the Initial Units shall
have achieved Commercial Operation.
"DAY" shall mean a 24 consecutive hour period commencing at 00:01 hours
on a calendar day.
"DELAY TERMINATION DATE" means either Delay Termination Date for the
Initial Units or Delay Termination Date for the Final Units, as applicable.
"DELAY TERMINATION DATE FOR THE FINAL UNITS" shall mean the 365th
calendar day following the Scheduled Date of Commercial Operation for the Final
Units.
"DELAY TERMINATION DATE FOR THE INITIAL UNITS" shall mean the 365th
calendar day following the Scheduled Date of Commercial Operation for the
Initial Units.
"DELIVERED ENERGY" for a period of time shall mean the amount of energy
expressed in MWh (rounded to the nearest whole MWh, with .50 MWh's being rounded
to the next highest MWh) delivered to PECO at the applicable Points of Delivery
during such period pursuant to an Energy Request.
4
"DESIGNATED CONTRACTORS" shall mean any one or more of the Persons
detailed on EXHIBIT 2.01 and any one or more of the Affiliates of any such
Persons.
"DISPATCH CONTROL SYSTEMS" shall have the meaning set forth in Section
2.02(a)(viii).
"DUFF & XXXXXX" shall mean Duff & Xxxxxx Credit Rating Co.
"EASTERN INTERCONNECTION" shall mean the area known as the Eastern
Interconnected Grid currently consisting of the following National Electricity
Reliability Council Regions: NEPOOL, NYPP, MAAC, SERC, FRCC, ECAR, MAIN, XXXX
and SPP.
"EASTERN PREVAILING TIME" OR "EPT" shall mean Eastern Daylight Savings
Time when such time is applicable in Heard County, Georgia, and otherwise shall
mean Eastern Standard Time.
"EMERGENCY FUEL CURTAILMENT" shall mean the general prohibition by
Georgia or Federal regulatory or law enforcement authorities of delivery or
consumption of some or all Fuel to or by electricity generating stations in
Georgia (including the Plant) due to an emergency situation, including for
example a severe winter storm leading authorities to require Fuel to be used
only in hospitals or to heat residential homes.
"ENERGY DELIVERY TOLERANCE" shall mean, with respect to an hour, the
greater of 1% of the Energy Request or 2 MWhs.
"ENERGY PAYMENTS" shall mean the monthly energy payments payable
hereunder by PECO to Tenaska in accordance with Section 8.03 of this Agreement.
"ENERGY REQUEST" shall mean a request by PECO to Tenaska for energy,
including a request for 0 MW of energy, pursuant to Section 6.09.
"EXCESS RUN TIME PAYMENT" shall mean the payment calculated in
accordance with Section 8.03(b)(i) or (ii).
"FERC" shall mean the Federal Energy Regulatory Commission or any
successor agency.
"FINAL UNITS" shall have the meaning set forth in Section 4.01.
"FINANCIAL CLOSING DATE" shall mean the date on which binding
commitments to provide the Non-Recourse Financing for the construction of the
Plant are issued and effective, conditions on initial borrowings are satisfied,
and amounts become available for borrowing from the Financial Institutions or
the issuance of industrial development revenue bonds by The Development
Authority of Heard County the proceeds of which are guaranteed to be used in
substantial part for the construction of the Plant.
"FINANCIAL INSTITUTIONS" shall mean the Persons providing financing or
refinancing either directly or indirectly through the purchase of industrial
development bonds issued by The Development Authority of Heard County to Tenaska
or its Affiliates for a majority of the costs for the development, design,
construction and operation of the Plant and for the purchase of
5
equipment and supplies in connection with the Plant or those Persons, providing
Acceptable Credit Support or other lines or letters of credit.
"FITCH" shall mean Fitch Investors Service, Inc.
"FORCE MAJEURE" shall mean any cause beyond the control of the Party
affected, including, but not restricted to, failure or threat of failure of
facilities (but excluding such failures or threats of failures caused by
Tenaska's or the O&M Contractor's failure to comply with Prudent Utility
Practice), flood, earthquake, storm, fire, lightning, Acts of God, explosions,
transportation accidents, epidemic, war, acts of the public enemy, riot, civil
disturbance or disobedience, strike, lockout, work stoppage, or other industrial
disturbance or dispute whether or not determined to have arisen out of an unfair
labor practice of any Party, sabotage, restraint by court order or other public
authority, and action or nonaction by, or failure to obtain the necessary
authorizations or approvals from, any governmental agency or authority, which by
the exercise of due diligence such Party could not reasonably have been expected
to avoid. Nothing contained herein shall be construed so as to require a Party
to settle any strike, lockout, work stoppage, or other industrial disturbance or
dispute in which it may be involved. Late delivery of plant, machinery,
equipment, materials, spare parts and consumables for the Plant or a delay in
the performance of any of the affected Parties' contractors or suppliers shall
constitute Force Majeure if the existence of such circumstance is the result of
Force Majeure as described above. Force Majeure shall not include (a) changes in
market conditions, including but not limited to changes that affect the cost or
demand for electricity, Fuel, or Plant equipment, (b) lack of finances or (c) an
inability to accept power due to transmission constraints.
"FORCED OUTAGE" shall mean any circumstance including a Force Majeure
event which causes the amount of energy capable of being delivered to the
Primary Point of Delivery during an hour to be less than Contract Capacity for
reasons other than a Scheduled Outage.
"FUEL" shall mean Fuel Oil and Natural Gas.
"FUEL ADJUSTMENT PAYMENT" shall mean a payment pursuant to Section
8.10.
"FUEL CONTROL SYSTEMS" shall have the meaning set forth in Section
2.02(a)(vi).
"FUEL OIL" shall mean low sulfur No. 2 Fuel Oil that satisfies the
Colonial Pipeline Company Product Specifications for Fungible Low Sulfur Diesel
Fuel (GRADE 74) as set forth for Fuel Oil in Exhibit 1.01, and contains less
than 0.05 weight % sulfur, or if more restrictive, specifications for Fuel Oil
included in the Air Permit, as required by Applicable Law and contains no more
than .017 weight % fuel bound nitrogen.
"FUEL OIL CAPABLE MODE" shall mean a Unit that is available for
dispatch by PECO for firing on Fuel Oil within the Start times provided in this
Agreement.
"FUEL OIL DELIVERY PERMITS" shall mean all permits necessary for
delivery, transporting, handling or storing of such Fuel Oil to or at the Plant.
6
"FUEL OIL ENERGY RATE" shall mean for each Month in a Contract Year the
amount (in $/MWh) set forth in the column with heading "Fuel Oil Energy Rate"
opposite to such Contract Year in EXHIBIT 8.03.
"FUEL OIL INVENTORY" shall mean the amount, in Barrels, of Fuel Oil in
the Fuel Oil Storage Tank.
"FUEL OIL STORAGE TANK" shall have the meaning set forth in Section
2.02 (a)(iv).
"FUEL OIL UNLOADING FACILITIES" shall have the meaning set forth in
Section 2.02(a)(v).
"FUEL OIL VALUE" shall have the meaning set forth in Section 8.11(d).
"FUEL TAX OBLIGATION" shall have the meaning set forth in Section
8.11(c).
"FUEL TAX PAYMENTS" shall mean payments made by PECO to Tenaska with
respect to taxes on Fuel delivered to or consumed at the Plant pursuant to
Section 8.11.
"FUEL TAX RATE" shall have the meaning set forth in Section 8.11.
"FULLY LOADED DAILY GAS PRICE" shall mean for any Day the sum of: (i)
the Daily Index Citation for such Day and (ii) $0.03 per MMBtu
"GAS DELIVERY POINT" shall mean the isolating flange immediately
downstream of the Transco meter at which the Gas Supply Facilities interconnect
with the Interstate Pipeline.
"GAS ENERGY RATE" shall mean for each Month in a Contract Year the
amount (in $/MWh) set forth in the column with heading "Gas Energy Rate"
opposite to such Contract Year in EXHIBIT 8.03.
"GAS SUPPLY FACILITIES" shall have the meaning set forth in Section
2.02(a)(iii).
"GAS VALUE" shall have the meaning set forth in Section 8.11(d).
"GENERATING UNIT" or "UNIT" shall mean a GE-7FA combustion turbine
generator utilizing dry low NOx combustors, with a nominal design net electric
generating capacity of approximately 150MW-160MW per turbine generator at an
ambient temperature of 94 degrees Fahrenheit dry bulb and 74 degrees Fahrenheit
wet bulb.
"GITS" shall mean Georgia Integrated Transmission System.
"HOLIDAY" shall mean any day (other than a Saturday or Sunday) on which
banks in Atlanta, Georgia, are not required or authorized to conduct the
business of banking.
"HOT SHUTDOWN" shall mean, for any Unit, a situation in which the Unit
has been producing 0 MW of energy for fewer than 50 consecutive hours.
"HOT START" shall have the meaning set forth in Section 6.09(a)(ii)(B).
7
"HOURLY ENERGY REQUEST" shall mean the integrated amount of energy (in
MWh) to be delivered to PECO in an hour pursuant to all Energy Requests
submitted prior to or during such hour in compliance with Section 6.09(d) which
can, according to the Generating Unit and Plant performance requirements set
forth in Section 6.09(a), be met by the Plant during such hour.
"HOURLY OUTPUT" shall have the meaning set forth in Section 7.01.
"HOURLY POTENTIAL" shall have the meaning set forth in Section 7.01.
"IMMEDIATELY FOLLOWING CONTRACT YEAR" shall mean with respect to any
Day the Contract Year commencing on June 1st next following such Day.
"INITIAL UNITS" shall have the meaning set forth in Section 4.01.
"INTERCONNECTION AGREEMENT" shall mean the agreement dated July [ ],
1999 between Tenaska and the Local Utility, providing for the construction and
operation of Interconnection Facilities necessary for the delivery of energy to
PECO pursuant to this Agreement at the Primary Point of Delivery.
"INTERCONNECTION FACILITIES" shall mean the facilities including the
Power Metering Equipment constructed or modified pursuant to the Interconnection
Agreement or as otherwise necessary during the Operating Term, sufficient to (i)
deliver the maximum amount of energy capable of being produced by the Plant at
an ambient temperature at the Plant of 20(degree)F dry bulb, but no less than
1,100 MW, to the Primary Point of Delivery and (ii) allow changes in the amounts
of energy delivered through the Primary Point of Delivery as PECO may request
pursuant to Section 6.09.
"INTERSTATE PIPELINE" shall mean the gas pipeline currently owned by
Transcontinental Gas Pipe Line Corporation, the closest part of which pipeline
is located approximately one (1) mile south of the Plant.
"LOCAL UTILITY" shall mean Georgia Transmission Corporation or any
successor, assign, owner or operator of the electric transmission facilities to
which the Interconnection Facilities are or will be connected.
"METERING EQUIPMENT" shall mean the Natural Gas Metering Facilities and
the Power Metering Equipment.
"MINIMUM LOAD" has the meaning set forth in Section 6.09(a)(v).
"MMBTU" shall mean million Btu.
"MMCF" shall mean million cubic feet.
"MONTH" shall mean the period starting on the Date of Commercial
Operation and ending at 00:00 hours on the last day of the same calendar month
and each calendar month thereafter during the Operating Term.
8
"MONTHLY STATEMENT" shall mean the statement to be delivered by Tenaska
each Month to PECO in accordance with Section 9.02.
"MOODY'S" shall mean Xxxxx'x Investor Services, Inc.
"MW" shall mean megawatt.
"MWH" shall mean megawatt-hour.
"NATURAL GAS" shall mean gaseous fuel that complies with the quality
specification set forth in the applicable tariff of the Interstate Pipeline,
delivered to the Natural Gas Metering Facilities at a pressure which is the
lower of (i) 550 psig or (ii) the minimum gas pressure at the Generating Unit
inlet control valve module recommended by the manufacturer to operate a
Generating Unit, as may be modified from time to time, plus 90 psig.
"NATURAL GAS METERING FACILITIES" shall mean the Natural Gas
measurement station and related facilities, including chromatograph, capable of
providing real-time information on the volume of gas flowing through the Natural
Gas Metering Facilities, and the BTU content of such gas, and as further
provided for pursuant to the FERC-approved General Terms and Conditions for
service on the Interstate Pipeline.
"NATURAL GAS OPERATION" shall mean the Plant's production of energy by
combustion of Natural Gas.
"NET REVENUE" shall mean the amounts actually paid to Tenaska by third
parties for capacity and energy minus (i) all charges that would have applied
under this Agreement to the generation of energy sold to such third party,
including Start Charges and Energy Payments, (ii) the Fully Loaded Daily Gas
Price with respect to all Fuel paid for by Tenaska consumed in producing such
energy, (iii) all transmission charges paid by Tenaska.
"NON-CONFORMING ENERGY REQUEST" has the meaning set forth in Section
6.09(e).
"NON-INSURABLE FORCE MAJEURE" shall mean any events or conditions of
Force Majeure against which at the time in question business interruption
insurance is not customarily obtained by independent power companies with gas
fired power production facilities in the U.S. and shall include without
limitation such Force Majeure events as war, riot, civil disturbance, strikes,
epidemic or regulatory curtailment of Fuel transportation to or usage in the
Plant. The Parties recognize that during the term of this Agreement the types
and amounts of insurance maintained by independent power companies may change,
such that Force Majeure events that are not customarily insured against at
present may become customarily insured against in the future, and Force Majeure
events that are customarily insured against at present may not be customarily
insured against in the future.
"NON-RECOURSE FINANCING" shall mean the completion of project financing
of the costs of the Plant, without recourse to Tenaska's owners and Affiliates,
other than for equity contribution commitments of Tenaska not exceeding 30% (or
such higher percentage as may be acceptable to Tenaska) of estimated capital
costs.
9
"NON-SUMMER MONTHS" shall mean Shoulder Months and Winter Months.
"NON-SUMMER OUTPUT" shall have the meaning set forth in Section
7.02(b)(i).
"NON-SUMMER PEAK HOUR" shall mean with respect to a Unit each of the
one hour periods during the Non-Summer Months in which (i) PECO makes an Energy
Request for at least the Minimum Load, or (ii) such Unit is on the Unit Call
Schedule.
"NON-SUMMER POTENTIAL" shall have the meaning set forth in Section
7.02(b)(ii).
"O&M CONTRACTOR" shall mean the operation and maintenance contractor,
if any, retained by Tenaska to operate the Plant.
"OFF PEAK DISPATCHABLE HOUR" shall have the meaning set forth in
Sections 6.02(d) and (e).
"OIL-FIRED OPERATION" shall mean the Plant's production of capacity and
energy by firing Fuel Oil.
"ON-PEAK ENERGY PRICE" shall mean, for a Day, the arithmetic average of
the entries for "Daily Price Indexes On- Peak" (measured in $/MWh) corresponding
to the price citations corresponding to the regional labels of "SERC," "Into
TVA," "Into Entergy," and "Florida-Georgia Border", as published in DAILY PRICE
REPORT, a XxXxxx-Xxxx publication, PROVIDED THAT if such publication or any of
such citations, shall cease to be currently available the parties shall endeavor
in good faith to select an alternative publication or alternate citations, as
the case may be, and failing such an agreed selection the alternative
publication or alternative citations will be determined by arbitration pursuant
to Section 18.13 or such other publication mutually agreed in writing by the
Parties.
"OPERATING TERM" shall mean the period commencing on the Date of
Commercial Operation and ending on the 29th anniversary thereof, unless earlier
terminated as provided in Section 3.02.
"PEAK AVAILABILITY OPTION #1" shall have the meaning set forth in
Section 6.01(a)(i).
"PEAK AVAILABILITY OPTION #2" shall have the meaning set forth in
Section 6.01(a)(ii).
"PEAK DAYS AVAILABILITY" shall mean a measurement of the Plant's
availability during the five highest-priced Days of the Summer Months of each
Contract Year, as calculated pursuant to Section 8.07(b)(ii).
"PERSONS" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political
subdivision thereof.
"PLANT" shall mean the facilities described in Section 2.02.
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"POINT OF DELIVERY" shall mean the Primary Point of Delivery, or such
other point of delivery as may be applicable pursuant to Section 6.11; and
"Points of Delivery" shall mean the Primary Point of Delivery and such other
points of delivery. Such point shall be located on a tract of land contained in
lots 236 and 237 of the Third Land District of Heard County, Georgia.
"POWER METERING EQUIPMENT" shall mean the meters and measuring
equipment at the Points of Delivery to measure energy delivered by Tenaska to
PECO.
"PRIMARY POINT OF DELIVERY" shall mean the point at which the Plant
synchronously interconnects, through the Interconnection Facilities, with the
GITS at a point along the 500kV transmission line extending between the Xxxxxxx
and Xxxxxxx substations of the GITS.
"PRUDENT UTILITY PRACTICE" shall mean any of the practices, methods and
acts engaged in or approved by a significant portion of the independent power
industry from time to time or any of the practices, methods and acts which, in
the exercise of reasonable judgment in light of the facts known (or which should
have been known) at the time the decision was made, would have been expected to
accomplish the desired results at the lowest reasonable cost consistent with
good business practices, taking into account (without limitation) such factors
as reliability, safety and expedition. Prudent 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 a spectrum of possible practices, methods or acts
having due regard for, among other things, manufacturers' warranties and other
contractual obligations, the requirements or guidance of governmental agencies
of competent jurisdiction, requirements of insurers, and the requirements of
this Agreement.
"RATINGS ORGANIZATION" shall mean Standard & Poor's, Xxxxx'x, Fitch or
Duff & Xxxxxx, or if any such organization ceases to be a "nationally recognized
statistical rating organization" as defined by the United States Securities and
Exchange Commission for purposes of Rule 436(g)(2) under the Securities Act of
1933, a substitute organization meeting such definition and mutually agreed upon
by the Parties, or failing such mutual agreement, a substitute organization
meeting such definition and determined by arbitration pursuant to Section 18.13.
"RELIABILITY COUNCIL" shall mean the Southeastern Electric Reliability
Council, or similar or successor organization.
"REPLACEMENT ACCEPTABLE CREDIT SUPPORT" shall mean, following the
drawing upon an Acceptable Credit Support, the restoration of the full amount
drawn within the available amount to be drawn.
"REPLACEMENT ENERGY" shall have the meaning set forth in Section
6.11(a).
"REPLACEMENT ENERGY COST" shall have the meaning set forth in Section
8.12.
"REQUESTED ENERGY" for a given period shall mean the amount of energy
(in MWh) requested by PECO in accordance with this Agreement during such period.
"REQUIRED POTENTIAL" shall have the meaning set forth in Section 7.01.
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"RESERVATION PAYMENTS" shall mean the monthly reservation payments
payable hereunder by PECO to Tenaska in accordance with Articles VIII and IX of
this Agreement.
"RESERVATION RATE" shall mean, for each Month in a Contract Year, the
amount (in $/kw- month) set forth in the column with the heading "Reservation
Rate" opposite to such Contract Year in EXHIBIT 8.02.
"SCHEDULED DATE OF COMMERCIAL OPERATION" shall mean either the
Scheduled Date of Commercial Operation for the Initial Units or the Scheduled
Date of Commercial Operation for the Final Units, as applicable.
"SCHEDULED DATE OF COMMERCIAL OPERATION FOR THE FINAL UNITS" shall mean
June 1, 2002.
"SCHEDULED DATE OF COMMERCIAL OPERATION FOR THE INITIAL UNITS" shall
mean June 1, 2001.
"SCHEDULED OUTAGES" shall mean planned outages or reductions in
availability or output in order to perform maintenance in accordance with
manufacturers' recommendations and Prudent Utility Practices scheduled pursuant
to Section 6.05(a).
"SHOULDER MONTHS" shall mean October, November, March, April and May.
"SHUTDOWN" shall mean the process of moving a Unit from a Minimum Load
to a zero energy output.
"SPONSOR" shall mean Tenaska, Inc. and its partners in Tenaska or any
other Affiliate of any such Person.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings Service, a
division of McGraw Hill Incorporated.
"STANDBY MODE" shall mean the status of a Unit when it is kept ready
while not generating energy.
"START" shall mean the commencement of firing of a Generating Unit in
response to an Energy Request.
"START CHARGE" shall have the meaning set forth in Section 8.04.
"START YEAR" shall mean (i) for the Initial Units calendar year 2001
and (ii) for the Final Units calendar year 2002.
"SUMMER AVAILABILITY ADJUSTMENT" shall mean for a Contract Year the
amount, if any, owed by Tenaska to PECO, calculated under Section 8.08(b).
"SUMMER AVAILABILITY PERCENTAGE" shall have the meaning set forth in
Section 7.02.
"SUMMER MONTHS" shall mean June, July, August and September.
"SUMMER MONTHS BASE HEAT RATE" shall have the meaning set forth in
Section 8.10.
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"SUMMER OUTPUT" shall have the meaning set forth in Section 7.02(a)(i).
"SUMMER PEAK HOUR" shall mean each of the one hour periods during the
Summer Months of each Contract Year as such peak availability periods are
specified from time to time by PECO pursuant to Section 6.01.
"SUMMER POTENTIAL" shall have the meaning set forth in Section 7.02.
"TAX STATUTE" shall mean Title 48, Chapter 8 of the Official Code of
Georgia Annotated as amended from time to time.
"TIER 1 AVAILABILITY ADJUSTMENT" shall have the meaning set forth in
Section 8.08.
"TIER 1 AVAILABILITY FACTOR" shall have the meaning set forth in
Section 8.08.
"TIER 2 AVAILABILITY ADJUSTMENT" shall have the meaning set forth in
Section 8.08.
"TIER 2 AVAILABILITY FACTOR" shall have the meaning set forth in
Section 8.08.
"TRANSCO" shall mean Transcontinental Gas Pipe Line Corporation.
"UNIT CALL SCHEDULE" shall mean with respect to a Unit the schedule
detailing the hours of the following Day in which the Unit is requested to be
available in accordance with the dispatch principles set forth in Section 6.11
and detailing during which hours, if any, during the following Day such Unit is
to be in a Standby Mode.
"UNIT CAPACITY" shall mean for the first Contract Year the greater of
(i) Contract Capacity divided by the number of Generating Units that have
achieved Commercial Operation or (ii) 150 MW, and for each Contract Year
thereafter the greater of (i) Contract Capacity divided by six (6) or (ii) 146
MW.
"UNIT HOUR" shall mean each one hour period during which a Generating
Unit produces energy pursuant to an Energy Request, regardless of the level of
dispatch of such energy. For the purposes of calculating Unit Hours, each
continuous period of time during which a Generating Unit produces energy
pursuant to an Energy Request, regardless of the level of dispatch of such
energy, shall be rounded to the nearest tenth of an hour.
"WATER FACILITIES" shall have the meaning set forth in Section
2.02(a)(vii).
"WINTER MONTHS" shall mean December, January, and February.
ARTICLE II
ROLES; FACILITIES, EQUIPMENT AND EASEMENTS
Section 2.01 ROLES.(a) Subject to the terms of this Agreement, Tenaska
shall, at its sole cost and expense, and either directly or through one or more
Designated Contractors, or through other contractors that are not Competitors,
design, engineer, finance, construct, operate,
13
lease, own or otherwise contractually control use of the Plant. Tenaska shall,
at its sole cost and expense, and either directly or through one or more
Designated Contractors or through other contractors that are not Competitors,
design, engineer, finance, and arrange for ownership, construction, and
operation of Interconnection Facilities.
(b) Tenaska shall enter into and maintain the Interconnection
Agreement. Tenaska shall be solely responsible for the cost of the
Interconnection Facilities. PECO shall be solely responsible for (i) arranging
transmission of Delivered Energy from the Primary Point of Delivery to PECO's
customers, and (ii) compensating transmission providers for the cost of such
transmission service, including the scope and cost of upgrades to such
transmission provider's system which the transmission provider determines to be
necessary to provide transmission service from the Primary Point of Delivery.
(c) Tenaska shall obtain or shall cause to be obtained all
environmental or regulatory permits or allowances necessary to design,
construct, operate, and maintain the Plant in accordance with this Agreement,
including but not limited to, the Air Permit and shall keep all such permits and
allowances in full force and effect. Tenaska's obligation to secure permits
shall include any permits necessary for Tenaska to own and operate the Fuel Oil
Storage Tank and the Fuel Oil Unloading Facilities; provided, however, that PECO
shall obtain Fuel Oil Delivery Permits, or contract with third-parties with Fuel
Oil Delivery Permits, necessary to deliver Fuel Oil to the Plant.
(d) Except as Tenaska may otherwise elect if Tenaska is selling energy
to other parties pursuant to Section 6.10(b), PECO shall be the exclusive
recipient of all capacity, energy, and ancillary products or services available
from the Plant during the Operating Term except any ancillary services that are
required to be furnished by Tenaska as a requirement of the Interconnection
Agreement or by order of a regulatory body with jurisdictional authority over
the Local Utility, an independent system operator or similar entity having
control of the transmission system at the Point of Delivery. Tenaska shall not
sell energy or capacity from an Initial Unit to a third party between June, 1,
2001 and such Unit achieving Commercial Operation, or from a Final Unit between
June 1, 2002 and such Unit achieving Commercial Operation, in each case except
for bona fide testing purposes.
(e) PECO shall obtain and supply all Fuel to be used to generate
electricity during the Operating Term.
(f) Tenaska shall be responsible for preparing and filing tax returns
for taxes on Fuel purchased for or consumed at the Plant and for paying and
remitting all such taxes as may be imposed by the State of Georgia and shown due
on such returns, PROVIDED THAT PECO shall prepare and file such returns if
required to do so by the Tax Statute and the regulations thereunder. The
preparation and filing of such returns by PECO shall not alter the allocation of
responsibility for taxes as between the parties or the sharing of the benefits
and burdens of increases and decreases in taxes, in each case in accordance with
Section 8.11
(g) Tenaska shall enter into an agreement with the Interstate Pipeline
prior to Financial Closing for the design, construction, installation, of the
Natural Gas Metering Facilities, which shall be located at the point of
interconnection between the Interstate Pipeline
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and the Plant's Gas Supply Facilities. Tenaska shall be solely responsible for
compensating the Interstate Pipeline for any and all costs of such design,
construction, and installation, as agreed by Tenaska and the Interstate
Pipeline. As PECO's sole obligation for the design, construction and
installation of the Natural Gas Metering Facilities, PECO shall pay Tenaska, at
the time of PECO's payment for the first Month of Commercial Operation of the
Initial Units, pursuant to Section 9.02 herein, an amount equal to 56% of the
total amount that Tenaska is required to pay Transco with respect to the
installation of the Natural Gas Metering Facilities, PROVIDED THAT such payment
by PECO to Tenaska shall not exceed $784,000.
Section 2.02 PLANT DESCRIPTION. (a) The Plant shall be located at
Xxxxxx Xxxxx Xxxx (xxx xxxx xxxxx xx Xxxxxxx 00) near the Town of Franklin, on a
tract of land contained in lots 236 and 237 of the Third Land District in Heard
County, Georgia and shall include:
(i) Six Generating Units, of which at least three Generating
Units shall achieve Commercial Operation during the first Contract
Year, and all six of which Generating Units shall be in Commercial
Operation on the first day of the second Contract Year.
(ii) Interconnection Facilities.
(iii) "Gas Supply Facilities," which shall mean a lateral
pipeline and related equipment necessary to transport an amount of
Natural Gas from the Gas Delivery Point to the Generating Units in
quantities sufficient to operate the Plant at Contract Capacity.
(iv) "Fuel Oil Storage Tank," which shall mean a storage tank
capable of providing 160,000 usable Barrels of Fuel Oil storage
capacity, being an amount of Fuel Oil sufficient for Oil-Fired
Operation at Contract Capacity for 16 hours of each day for five (5)
consecutive Days.
(v) "Fuel Oil Unloading Facilities," which shall mean
facilities and equipment capable of unloading trucks with loads of
7,000 gallons or more each at an aggregate rate of 41,600 gallons of
Fuel Oil each hour with each truck unloading station equipped with a
meter to measure Fuel Oil received by Tenaska.
(vi) "Fuel Control Systems," which shall mean equipment and
controls enabling the Plant to switch from Natural Gas to Oil-Fired
Operation, or from Oil-Fired Operation to Natural Gas, subject to the
requirements of Section 6.09(a)(vi).
(vii) "Water Facilities," which shall mean water supply,
storage, treatment and regeneration facilities enabling Oil-Fired
Operation at Contract Capacity for 16 hours of each day for two periods
each of five consecutive days within a two (2) week period. The five
consecutive day periods shall be separated by a minimum of two twenty
four hour days.
(viii) "Dispatch Control Systems," which shall mean
information and control systems at the Plant enabling the Plant to (i)
receive AGC signals from two control areas in the Eastern
Interconnection, (ii) to provide AGC, with the amounts of
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AGC provided subject to Section 6.13(c), and (iii) follow load signals
provided by control areas to the Plant.
(ix) "Communications and Telemetry Equipment," which shall
mean one remote terminal unit (RTU) on a separate communication circuit
from the Plant control room to PECO providing instantaneous MW and
megavolt-ampere reactive (MVAR), hourly MWh readings, ambient
temperature conditions, bus voltage, switchyard and generator breaker
positions, Fuel Oil Storage Tank level (in Barrels) and such other
information relating to the Plant's condition as the Parties may agree.
(x) A physical layout which allows for subsequent installation
of up to five emergency blackstart diesel generators capable of
starting a Generating Unit without electric power service taken from
the transmission grid. Tenaska and PECO will work in good faith to seek
mutual agreement upon financial and operating arrangements under which
such generators could be installed and operated.
Section 2.03 INSPECTIONS AND DOCUMENTS. (a) To the extent allowed under
the Interconnection Agreement, PECO shall have the right to inspect and test the
Power Metering Equipment during business hours in the Operating Term. PECO shall
have the right to monitor performance of the Plant through Communications and
Telemetry Equipment throughout the Operating Term. To the extent allowed under
the Interconnection Agreement, Tenaska shall inspect and test the Power Metering
Equipment upon its installation and at least once every year thereafter and at
any other reasonable time upon the request of PECO, PROVIDED THAT PECO shall pay
for any costs of additional tests of the Power Metering Equipment if PECO
requires more than one test during a Contract Year. If the Power Metering
Equipment is found by PECO or by Tenaska to be not within the standards
established by the latest revision of Standard C12.1 Code for Electricity
Metering of the American National Standards Institute, Incorporated, Tenaska
will cause the Power Metering Equipment to be repaired or replaced at its sole
cost and expense. If the Power Metering Equipment is found by PECO or by Tenaska
to be not within the accuracy standards established in such standard, an
adjustment shall be made correcting all measurements made by the inaccurate
portion of the Power Metering Equipment for:
(i) the actual period during which inaccurate measurements
were made, if such period can be determined, or, if not,
(ii) the period immediately preceding the test of the Power
Metering Equipment equal to one-half (1/2) the time from the date of
the last previous test of the Metering Equipment, PROVIDED THAT the
period covered ------------- by any such correction shall not exceed
six (6) calendar months.
(b) Tenaska shall give PECO reasonable advance notice of any such
tests, and PECO shall have the right to observe the test and to conduct its own
tests to verify Tenaska's procedures and results.
(c) Tenaska shall make available to PECO copies of any manufacturers'
performance specifications, warranties, guarantees, standards and any other
documents
16
pertaining to the operation of the Plant or its major component parts that PECO
reasonably requests in writing with reasonable specificity.
(d) Tenaska and PECO shall each have the right to receive signals from
the metering and related facilities, and each Party shall provide the other
Party access to records and metering information associated with delivery of
Natural Gas to the Plant through the Natural Gas Metering Facilities, including
providing PECO with real-time telemetry information on the volume of gas flowing
through the Natural Gas Metering Facilities, and the BTU content of such gas.
Each Party shall provide the other Party with the same abilities to inspect the
Natural Gas Metering Facilities or verify the Natural Gas Metering Facilities'
accuracy that either Party receives pursuant to its agreements with the
Interstate Pipeline relating to interconnection, construction and operation of
the Natural Gas Metering Facilities or relating to transportation of Natural Gas
on the Interstate Pipeline to the Plant.
Section 2.04 FUEL OIL MEASUREMENT. Tenaska will include with each
Monthly Statement delivered pursuant to Section 9.02(a), a report of Fuel Oil
consumed during the Month for which the Monthly Statement is being provided. The
quantity of Fuel Oil consumed will be calculated by:
(i) Subtracting the quantity of Fuel Oil in Barrels in the
Fuel Oil Storage Tank on the last day of the Month from
(ii) the quantity of Fuel Oil in Barrels in the Fuel Oil
Storage Tank at 00:01 hours of the first Day of the Month, plus
(iii) any deliveries of Fuel Oil made to the Fuel Oil Storage
Tank during such Month as reflected by the delivery invoice provided by
the Fuel Oil transporter. Tenaska shall provide PECO promptly, but in
no event later than three (3) business days, after receiving delivery
of Fuel Oil, with a copy of the delivery invoice received by Tenaska at
the time Tenaska accepted such Fuel Oil delivery. The quantity of Fuel
Oil in the Fuel Oil Storage Tank on the last day of the month shall be
the quantity used for the quantity at the beginning of the next
following month.
ARTICLE III
EFFECTIVENESS AND TERMINATION
Section 3.01 EFFECTIVENESS. This Agreement shall become effective upon
execution and delivery hereof by both Parties, PROVIDED THAT Article VI and
Article VIII shall not be effective until Tenaska receives FERC approval to sell
capacity and energy to PECO pursuant to this Agreement.
Section 3.02 TERMINATION OF AGREEMENT. This Agreement shall continue in
effect until the earliest of the following dates: (a) the date the Agreement is
terminated by mutual agreement of the Parties, (b) the date the Agreement is
terminated in accordance with Sections 3.03 through 3.07 hereof or (c) the 29th
anniversary of the Date of Commercial Operation.
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Section 3.03 TERMINATION OPTION; PLANT FINANCING. Following execution
of this Agreement, Tenaska shall endeavor in good faith to obtain Non-Recourse
Financing for the Plant. Tenaska may terminate this Agreement including all
obligations hereunder by written notice to PECO beginning on January 1, 2000 and
continuing for the following 120 days if, (a)(i) Financial Closing Date has not
occurred as of the date of such notice, (ii) PECO's senior unsecured debt has
been downgraded below BBB (or its equivalent) by (A) either Standard & Poor's or
Moody's and (B) one other Rating Organization (the withdrawal of a rating being
treated as a downgrading for this purpose) and (iii) PECO has not agreed in
writing to provide on the Financial Closing Date either (A) such credit support
as may be reasonably necessary to obtain Non-Recourse Financing on terms at
least as favorable as could have been obtained if PECO's rating had not been
downgraded, PROVIDED THAT any undertaking required from Tenaska in connection
with such credit support shall be on terms satisfactory to Tenaska in its sole
discretion, or (B) cash financing, on terms satisfactory to Tenaska in its sole
discretion, for the Plant in lieu of the amount of Non-Recourse Financing sought
by Tenaska from Financial Institutions or (b)(i) PECO has refused to agree to a
reasonable request by prospective Financial Institutions to a change (from the
form set forth in Exhibit 17.04(a)-1) in the consent to assignment of this
Agreement as security for the Non-Recourse Financing and (ii) the Financial
Closing Date has not occurred as of the date of such notice, PROVIDED THAT if
Tenaska terminates this Agreement pursuant to Section 3.03(b), Tenaska shall pay
to PECO, at the time of termination, an amount determined by Tenaska to
compensate PECO for commitments made by PECO between the date of this Agreement
and the date on which Tenaska terminates this Agreement pursuant to this Section
3.03.
Section 3.04 TERMINATION OPTION; COMMERCIAL OPERATION. (a) If all of
the Initial Units have not achieved Commercial Operation by the Delay
Termination Date for the Initial Units, PECO may at any time thereafter until
all of the Initial Units have achieved Commercial Operation terminate its
obligations with respect to the Initial Units by providing fifteen (15) days
prior written notice of termination to Tenaska. If all of the Initial Units
shall not have achieved Commercial Operation by such 15th day, then on said day
all rights and obligations of the parties under this Agreement with respect to
all of the Initial Units shall terminate (including, but not limited to rights
or obligations under Article VIII) and from and after such date the Initial
Units will not constitute a part of the "Plant" for purposes of this Agreement.
Payment obligations that arise with respect to the Initial Units prior to the
date of termination shall not terminate. If PECO terminates its obligations with
respect to the Initial Units and the Final Units have not achieved Commercial
Operation, Tenaska will have the right to terminate this Agreement at any time
thereafter up until the time at which the Final Units achieve Commercial
Operation by providing PECO with fifteen (15) days prior written notice of such
termination.
(b) If any of the Final Units have not achieved Commercial Operation by
the Delay Termination Date for the Final Units, PECO may, at any time thereafter
until the Final Units have achieved Commercial Operation, terminate its
obligations with respect to the Final Units by providing fifteen (15) days prior
written notice of termination to Tenaska on such date if they have not achieved
Commercial Operation. Such obligations will then terminate unless all Final
Units achieve Commercial Operation by the end of such fifteen (15) day notice
period.
(c) The Delay Termination Date for the Initial Units and the Delay
Termination Date for the Final Units are subject to adjustment for an event of
Force Majeure as
18
provided in section 14.02(d), PROVIDED THAT (i) notwithstanding section
14.02(d), no adjustment shall be made to the Delay Termination Date for the
Initial Units associated with an event of Force Majeure which commences after
the Scheduled Date of Commercial Operation for the Initial Units, and (ii) the
maximum aggregate adjustment to a Delay Termination Date for purposes of Section
3.04(a) and Section 3.04(b) shall be, in each case, twelve months unless at the
end of such twelve-month adjustment at least two-thirds of the Units required to
achieve Commercial Operation by the end of such period are in Commercial
Operation, in which case the maximum aggregate period of adjustment for each of
Section 3.04(a) and 3.04(b) shall be an additional six months to enable Tenaska
to achieve Commercial Operation of the Unit which is required to be in, but has
not achieved, Commercial Operation.
(d) If an event of Force Majeure commences after the Scheduled Date of
Commercial Operation for the Final Units and extends for more than 12 months,
then, for purposes of calculating Reservation Payments and Energy Payments
pursuant to Article VIII, the initial Contract Year for the Final Units shall be
Contract Year 2 set forth on Exhibit 8.02 regardless of when the Final Units
actually enter Commercial Operation and the Operating Term of the Final Units
shall terminate on the last day of the Operating Term of the Initial Units.
Section 3.05 TERMINATION OPTION - FOLLOWING EVENT OF DEFAULT. (a)
Should any event of default described in Article XIV not be cured by the
defaulting Party within the period, if any, set forth in Section 14.01 or
Section 14.03, or if any Party should wrongfully repudiate this Agreement and
fail to withdraw such repudiation within five (5) Days of receipt of notice from
the other Party requesting such withdrawal, then the other Party (the
"Terminating Party") may immediately terminate this Agreement without further
notice. In addition, the Parties may recover claims as follows:
(i) PECO, if the Terminating Party, shall be entitled to
recover (A) any accrued liquidated damages owed to it under Section
4.02 as the exclusive remedy for claims based on Failure to Achieve
Commercial Operation, (B) any accrued Availability Adjustments owed to
it under Section 8.08 through the date of termination as the exclusive
recourse for not achieving the availability standards specified in
Section 7.03 (without limiting the applicability of Section 3.07), (C)
any other accrued amounts owed to it under the Agreement at the time of
termination, and (D) with respect to any other claims arising from the
breach, repudiation or resulting termination of this Agreement, all
direct damages and amounts as may be recoverable at law or in equity
under Applicable Law, including but not limited to (and whether or not
classified as direct damages under Applicable Law) (1) the cost of
cover for replacement capacity and replacement energy obtained to
replace Contract Capacity and energy that would otherwise have been
made available to PECO under this Agreement from the date of
termination through the remainder of the scheduled Operating Term, less
the amount of Reservation Payments and Energy Payments and other
payments that would otherwise have been due hereunder, in each case
discounted to present value at the same appropriate discount rate and
(2) obligations, liabilities and costs that were incurred as a result
of, or in a reasonable effort to mitigate damages resulting from,
Tenaska's breach or repudiation or the resulting termination of this
Agreement, but excluding any obligations, liabilities or costs to
PECO's customers based on PECO's failure to supply capacity or energy,
PROVIDED THAT nothing herein shall prevent Tenaska from asserting any
19
counterclaims or offsets arising from any duty to mitigate that may be
available at law or in equity;
(ii) Tenaska, if the Terminating Party, shall be entitled to
recover (A) any accrued amounts owed to it under the Agreement at the
time of termination, and (B) with respect to any other claims resulting
from the breach, repudiation or resulting termination of this
Agreement, all direct damages and amounts as may be recoverable at law
or in equity under Applicable Law, including but not limited to (and
whether or not classified as direct damages under Applicable Law) (1)
Reservation Payments that PECO would otherwise have been liable to make
to Tenaska from the date of termination through the remainder of the
scheduled Operating Term, discounted to present value at an appropriate
discount rate and (2) obligations, liabilities and costs to third party
contractors providing engineering, procurement, construction,
operations or maintenance services or associated supplies that were
incurred as a result of, or in a reasonable effort to mitigate damages
resulting from, PECO's breach or repudiation or the resulting
termination of this Agreement, PROVIDED THAT nothing herein shall
prevent PECO from asserting, subject to the limitation expressed in
Section 3.05(a)(i) herein, any counterclaims or offsets arising from
any duty to mitigate that may be available at law or in equity;
Notwithstanding the foregoing, in the event that one Party fails to cure an
event of default under Article XIV within the period, if any, set forth in
Section 14.01 or Section 14.03, or if a Party wrongfully repudiates this
Agreement, the other Party is not in any way obligated to terminate this
Agreement but may instead assert its claims and rights at law or in equity under
this Agreement and under Applicable Law.
(b) PECO will not terminate this Agreement pursuant to a default by
Tenaska until it first provides written notice of such default to the Financial
Institutions and affords the Financial Institutions an opportunity to cure
pursuant to Section 14.03. Tenaska will not terminate the Agreement pursuant to
a default by PECO until it first provides written notice of such default to PECO
pursuant to Section 14.02 and affords PECO an opportunity to cure pursuant to
Section 14.03.
Section 3.06 TERMINATION OPTION; SHORTENED OPERATING TERM. PECO may
terminate this Agreement effective on the 20th anniversary of the Date of
Commercial Operation PROVIDED THAT PECO shall have provided Tenaska at least one
year's prior written notice of termination and shall have delivered to Tenaska
by not later than the 30th day prior to the 20th anniversary of the Date of
Commercial Operation a letter of credit in the amount of $175,000,000
substantially in the form of Exhibit 3.06 hereto issued by a bank that meets the
credit standard on the date of issuance of clause (a) for a bank issuing a
letter of credit on the Financial Closing Date of the definition of "Acceptable
Credit Support". Upon the effective date of termination of this Agreement
pursuant to this Section 3.06, PECO shall pay Tenaska the sum of $175,000,000.
Section 3.07 TERMINATION DUE TO INADEQUATE AVAILABLITY. PECO may
terminate this Agreement upon sixty (60) days prior written notice to Tenaska if
(i) the Summer Availability Percentage for any Contract Year, determined in
accordance with Section 7.02, is less than 67% for two consecutive Contract
Years and (ii) the Capacity Test Result of the December 1 Capacity
20
Test (after giving effect to any permitted retests) conducted during such second
Contract Year pursuant to Section 5.01 is less than 550 MW. PECO's rights under
this Section 3.07 shall not be limited, impaired, or affected in any way by a
Force Majeure event which renders Tenaska wholly or in part unable to perform
any of its obligations under this Agreement.
ARTICLE IV
COMMERCIAL OPERATION OF PLANT
Section 4.01 COMMERCIAL OPERATION. Tenaska shall schedule three (3)
Generating Units to achieve Commercial Operation on June 1, 2001 (the "Initial
Units"), and shall schedule three (3) additional Generating Units to achieve
Commercial Operation on June 1, 2002 (the "Final Units") such that the total
number of Units to be in Commercial Operation on June 1, 2002 is six (6).
Section 4.02. LIQUIDATED DAMAGES FOR FAILURE TO ACHIEVE COMMERCIAL
OPERATION. (a) If any Generating Unit does not achieve Commercial Operation on
June 1 of its Start Year (herein "Failure to Achieve Commercial Operation"),
Tenaska shall pay PECO the following amounts as liquidated damages as its
exclusive damages remedy which have been agreed upon as a reasonable
pre-estimate of the probable loss to be suffered by PECO on account thereof,
(and not as a penalty) for each such Generating Unit that has not achieved
Commercial Operation:
(i) $25,000 for each day Commercial Operation of such
Generating Unit is delayed from its Scheduled Date of Commercial
Operation through its Scheduled Date of Commercial Operation plus 15
days;
(ii) $50,000 for each day Commercial Operation of such
Generating Unit is delayed from and including its Scheduled Date of
Commercial Operation plus 15 days through its Scheduled Date of
Commercial Operation plus 30 days; and
(iii) $66,667 for each day Commercial Operation of such
Generating Unit is delayed after its Scheduled Date of Commercial
Operation plus 30 days;
(b) The aggregate amount of liquidated damages payable by Tenaska to
PECO pursuant to Section 4.02(a) shall not exceed $8,000,000 per Generating Unit
and $25,000,000 in the aggregate. Any liquidated damages which arise pursuant to
this Section 4.02(b) shall be paid by Tenaska to PECO by wire transfer on the
15th day of the month following the month which includes the day of delay which
gives rise to such liquidated damages.
(c) For the purposes of illustration only, if two (2) Generating Units
achieve Commercial Operation on the date which is the Scheduled Date of
Commercial Operation for such Units plus 15 days, two (2) Generating Units
achieve Commercial Operation on the date which is the Scheduled Date of
Commercial Operation for such Units plus 30 days; and two (2) Generating Units
achieve Commercial Operation on the date which is the Scheduled Date of
Commercial Operation for such Units plus 44 days; the total amount of liquidated
damages payable by Tenaska to PECO pursuant to Section 4.02(a) shall be
$6,833,342 (($25,000/day x 6
21
Generating Units x 14 days) + ($50,000/day x 4 Generating Units x 15 days) +
($66,667/day x 2 Generating Units x 13 days)).
(d) The June 1 date set forth in Section 4.02(a) is not subject to
adjustment by either Party, except if an event of Non-Insurable Force Majeure
occurs, such date is subject to adjustment in the same manner as provided in
Section 14.02(d) for a Force Majeure event, subject to a maximum adjustment of
12 months, after which the provisions of Section 4.02(a) shall apply.
(e) PECO's right to receive liquidated damages or exercise its
termination right under Article III shall not be affected or impaired by any
Generating Unit subsequently being able to achieve Commercial Operation. PECO's
right to receive any liquidated damages that accrued prior to termination shall
not be affected or impaired by either Party's exercise of its termination rights
under Article III.
ARTICLE V
CONTRACT CAPACITY AND TESTS
Section 5.01 ANNUAL TESTING PROCEDURE TO ESTABLISH CONTRACT CAPACITY.
(a) Not later than the Scheduled Date of Commercial Operation for the Initial
Units, Tenaska shall provide PECO with its written declaration of Contract
Capacity for the first Contract Year, and no capacity test will be required for
such declaration. During each Contract Year except the last Contract Year,
following the Summer Months but not later than each December 1st thereafter,
Tenaska shall conduct a Capacity Test (the "December 1 Capacity Test") of all
Units in Commercial Operation in accordance with EXHIBIT 5.01. Upon conclusion
of each such Capacity Test, Tenaska shall declare Contract Capacity for the
Immediately Following Contract Year in accordance with the parameters of Section
5.02 and such declaration shall apply to any Unit that achieves Commercial
Operation as of the first day of the Immediately Following Contract Year.
(b) If Tenaska declares a level of Contract Capacity which (i) conforms
to the parameters of Section 5.02 but (ii) exceeds the most recent Capacity Test
Result, PECO shall have the right to request a Capacity Test during the
immediately following May 15th through May 31st period. If the Capacity Test
Result from such a Capacity Test is less than the Contract Capacity declared by
Tenaska (excluding for this purpose the Unit Capacity of any Unit that has not
yet achieved Commercial Operation), Contract Capacity for the Immediately
Following Contract Year shall equal the most recent Capacity Test Result.
Tenaska shall conduct additional tests of Plant capacity as requested by PECO to
meet Reliability Council requirements, but such tests shall not be used to
adjust Contract Capacity. PECO shall deliver all Fuel and accept all energy
required to conduct all Capacity Tests.
(c) Tenaska shall give PECO ten (10) days prior written notice of the
performance of any Capacity Test (except that no notice shall be required in the
case of any retest that commences the same day as the original test ended and
only 24 hours notice shall be required in the case of a retest that occurs
within three days of a prior test). PECO shall have the right to observe the
Capacity Test. PECO shall request and accept energy sufficient to allow, during
the Capacity Test, a test of the Plant's maximum capability. Energy delivered to
PECO
22
during such tests will be treated as Delivered Energy and paid for by PECO as
such under this Agreement. Any applicable adjustment of Capacity Test results
provided for in EXHIBIT 5.01 shall be determined in accordance with manufacturer
specifications of Plant performance using the methodologies provided in EXHIBIT
5.01.
(d) If the output of the Plant is adversely affected by an equipment
failure or malfunction at the time a Capacity Test is scheduled to take place or
during a Capacity Test, Tenaska has the right to reschedule the Capacity Test
after such failure or malfunction has been remedied, PROVIDED THAT until the
rescheduled Capacity Test is completed, the Contract Capacity for the prior or
current Contract Year will remain in effect. If PECO in good faith questions the
accuracy or reliability of any Capacity Test, it shall so notify Tenaska, and if
Tenaska and PECO are unable to resolve the question, Tenaska shall promptly
schedule a second test. If after such second test, PECO continues to question
the accuracy or reliability of such test, the determination of Contract Capacity
shall be settled by arbitration pursuant to Section 18.13. The Contract Capacity
as determined by Tenaska will be effective until the dispute is settled by the
arbitration, subject to retroactive adjustment if a different level of Contract
Capacity is determined through arbitration.
(e) "Capacity Test Result" shall mean, the result of a Capacity Test
conducted in accordance with EXHIBIT 5.01.
Section 5.02 ESTABLISHMENT OF CONTRACT CAPACITY. (a) Contract Capacity
declared by Tenaska for the first Contract Year shall be not less than the
product of (i) 150 MW and (ii) the number of Generating Units that have achieved
Commercial Operation.
(b) Contract Capacity declared by Tenaska for the second Contract Year
shall be not less than 875 MW and not more than 950 MW, based on six Units
having achieved Commercial Operation, with such minimum and maximum Contract
Capacity to be reduced pro rata for any period during which less than six Units
have achieved Commercial Operation. Upon an additional Unit achieving Commercial
Operation during a Contract Year, Contract Capacity shall increase for the
remainder of such Contract Year by declared capacity of such Unit in accordance
with Section 5.01, or if no such declaration was made in accordance with Section
5.01, then by the applicable Unit Capacity
(c) Contract Capacity declared by Tenaska for Contract Years after the
second Contract Year shall be in accordance with the following:
(i) Contract Capacity declared by Tenaska shall be (A) not
less than 875 MW, and (B) within 50 MW (plus or minus) of the Current
Contract Capacity based on six Units having achieved Commercial
Operation, with such minimum and maximum Contract Capacity to be
reduced pro rata for any period during which less than six Units have
achieved Commercial Operation. Upon an additional Unit achieving
Commercial Operation during a Contract Year, Contract Capacity shall
increase for the remainder of such Contract Year by declared capacity
of such Unit in accordance with Section 5.01, or if no such declaration
was made in accordance with Section 5.01, then by the applicable Unit
Capacity. Tenaska may not sell energy or capacity from additional Units
to third
23
parties prior to such Units achieving Commercial Operation except for
bona fide testing purposes.
(ii) If the Capacity Test Result is more than 50 MW above the
Current Contract Capacity, Contract Capacity declared by Tenaska in the
Immediately Following Contract Year shall be no less than the Current
Contract Capacity and no more than the Current Contract Capacity plus
50 MW.
(iii) If the Capacity Test Result is more than 50 MW below the
Current Contract Capacity, Contract Capacity declared by Tenaska for
the Immediately Following Contract Year shall be no less than the
greater of (A) 875 MW and (B) the Current Contract Capacity minus 50
MW.
(iv) If the Capacity Test Result is less than 875 MW, the
Contract Capacity declared by Tenaska for the Immediately Following
Contract Year shall be 875 MW.
Section 5.03 TESTS OTHER THAN CAPACITY TESTS. The Parties shall
cooperate in good faith in all reasonable respects in order to schedule and
undertake emission compliance tests, or such other tests including preventative
maintenance activities, as Tenaska may perform from time to time PROVIDED THAT
such tests, other than regulatorily-ordered emission compliance tests, which
would reduce the availability of Generating Units from the level specified in
the Availability Schedule for such Day, or which would occur during an hour in
which PECO has submitted an Energy Request to receive 90% or more of the output
available from the Plant, shall not commence without PECO's prior consent. PECO
shall not be required to incur any economic loss or cost or to purchase any
energy produced as a result of such testing or preventative maintenance
activities. Tenaska shall, if so required by PECO, pay the net loss incurred by
PECO on any such energy so produced during such tests or preventative
maintenance activities.
ARTICLE VI
OPERATION OF THE PLANT
Section 6.01 PEAK AVAILABLITY PERIODS. (a) On or before April 15 of the
Start Year for the Initial Units and on or before April 15 each year during the
Operating Term, PECO shall by providing fifteen (15) Days written notice to
Tenaska elect one of the following options during Summer Months:
(i) Peak Availability Option #1: PECO shall be entitled to
request in such notice of election, energy for sixteen (16) hours of
each Day; the specific hours of each Day to be identified in the notice
of election of Peak Availability Option #1 PROVIDED THAT such specified
hours may be varied by up to two hours earlier or later on the Unit
Call Schedule on a permanent or temporary basis by PECO pursuant to
Section 6.04; or
(ii) Peak Availability Option #2: PECO shall be entitled to
request in such notice of election, energy (A) for twenty (20) hours on
each Monday through Friday, and (B) for sixteen (16) hours on each
Saturday and Sunday; the specific hours of each Day to
24
be identified in the notice of election of Peak Availability Option #2
PROVIDED THAT such specified hours may be varied by up to two hours
earlier or later on the Unit Call Schedule on a permanent or temporary
basis by PECO pursuant to Section 6.04.
(b) If PECO elects Peak Availability Option # 1 PECO shall be required
to place Units on the Unit Call Schedule from the Plant during Non-Summer Months
for a minimum of the lesser of (i) 2091 Unit Hours, or (ii)(B) the number of
Unit Hours during Non-Summer Months allowed pursuant to the Air Permit.
Section 6.02 REQUIRED GENERATING UNIT AVAILABLITY. Tenaska shall make
Generating Units available for dispatch by PECO as follows:
(a) During the Summer Peak Hours of the Summer Months, Tenaska shall
make all Generating Units in Commercial Operation available for dispatch by
PECO.
(b) During the Non-Summer Peak Hours in the Shoulder Months, Tenaska
shall make four (4) Generating Units available for dispatch by PECO, unless only
the Initial Units or the Final Units have achieved Commercial Operation in which
case Tenaska shall make two (2) Generating Units available.
(c) During Non-Summer Peak Hours of Winter Months of each Contract
Year, Tenaska shall make all Generating Units in Commercial Operation available
for dispatch by PECO.
Section 6.03 NOTIFICATION OF UNIT AVAILABLITY BY TENASKA. Tenaska shall
provide PECO with an Availability Schedule as follows:
(a) The Availability Schedule for each Saturday, Sunday, and Monday
during the Operating Term shall be provided by Tenaska to PECO by 12:00 noon EPT
on the immediately preceding Thursday.
(b) For each Holiday during the Operating Term, Tenaska will provide
the Availability Schedule for the Holiday and the immediately following Day by
12:00 noon EPT two week Days prior to the Holiday.
(c) For all other Days during the Operating Term, the Availability
Schedule shall be provided by 12:00 noon EPT two Days prior to the relevant Day.
Section 6.04 NOTIFICATION OF GENERATING UNIT CALL BY PECO. PECO shall
provide Tenaska with a Unit Call Schedule for each Generating Unit for each Day
during the Operating Term by 12:00 noon EPT of the preceding Day.
(a) PECO will place all Units in Commercial Operation on the Unit Call
Schedule for each Summer Peak Hour of each Contract Year.
(b) During each Day of the Winter Months of each Contract Year, PECO
may place up to all Generating Units in Commercial Operation on the Unit Call
Schedule for the immediately following Day. Each Generating Unit specified by
PECO on the Unit Call
25
Schedule pursuant to this section will, be included in availability
calculations, pursuant to Section 7.01.
(c) During each Day of the Shoulder Months, PECO may place up to four
(4) Generating Units in Commercial Operation on the Unit Call Schedule for the
immediately following day, unless Commercial Operation of either Initial or
Final Units has not occurred, in which case PECO may place up to two (2)
Generating Units on the Unit Call Schedule for the immediately following Day.
Each Generating Unit specified by PECO on the Unit Call Schedule pursuant to
this section will, be included in availability calculations pursuant to Article
VII.
(d) During each Day of the Non-Summer Months, PECO may designate
Generating Units to be in Standby Mode, PROVIDED THAT unless otherwise agreed by
the Parties, the combined number of Units placed on the Unit Call Schedule by
PECO or placed in Standby Mode shall not exceed four (4) in the Shoulder Months.
During Non-Summer Months, PECO shall pay to Tenaska a standby charge of $10 for
each hour or part thereof with respect to each Generating Unit designated by
PECO to be in Standby Mode for the period from 00:01 hours of the Day for which
the Unit Call Schedule is submitted until the earlier of (i) 00:00 hours of such
Day or (ii) submittal of an Energy Request requiring output from Generating
Unit(s) in Standby Mode, ("Standby Mode Charge"). If PECO requests energy from a
Generating Unit in Standby Mode, such Requested Energy will be included in
availability calculations pursuant to Section 7.01.
Section 6.05 PLANT MAINTENANCE. (a) On or before March 1st of each
Contract Year, PECO shall provide Tenaska with an estimate of the range of
potential Plant dispatch and potential Starts during the Immediately Following
Contract Year, although this notification shall not be binding on PECO to
dispatch energy from the Plant within the estimated range, or to incur Starts
within the estimated range. On or before April 1st of each Contract Year,
Tenaska shall provide PECO with a plan for Scheduled Outages for the next five
(5) Contract Years. The Scheduled Outages for the Immediately Following Contract
Year shall be binding on Tenaska and may not be changed unless approved in
writing by PECO, such approval not to be unreasonably withheld or delayed. The
Scheduled Outages for the last four Contract Years in this notification shall be
estimates only and shall not be binding on Tenaska.
(b) Except as otherwise approved in writing by PECO, Tenaska shall
complete or shall cause the completion of all scheduled maintenance for each
major item of equipment constituting a part of the Plant between March 15th and
May 15th or between October 1st and November 30th each year during the Operating
Term; PROVIDED, HOWEVER, that twice during the Operating Term Tenaska may by
written request to PECO at least one year in advance, which request shall not be
unreasonably denied, complete or shall cause the completion all scheduled
maintenance for each major item of equipment constituting a part of the Plant
between March 1st and May 31st or between October 1st and November 30th.
(c) Tenaska may shift the start date of a Scheduled Outage by up to
seven days, or extend a Scheduled Outage by up to seven days, by providing PECO
with written notice forty-five (45) days before the earlier of (A) the original
Scheduled Outage start date or (B) the new Scheduled Outage start date, PROVIDED
THAT the last Day of the new Scheduled Outage does not
26
occur after May 15th (or May 31st if an extended maintenance period under
Section 6.05(b) has been approved), if the Scheduled Outage began in March,
April or May of a Contract Year, or after November 30th, if the Scheduled Outage
began in October or November of a Contract Year. Written notice will include (i)
the new dates and duration of the Scheduled Outage, and (ii) the reason for the
change in dates.
(d) If a Scheduled Outage extends beyond May 15th (or May 31st if an
extended maintenance period under Section 6.05(b) has been approved), and the
Scheduled Outage began in March, April or May of a Contract Year, or if a
Scheduled Outage extends beyond November 30th and the Scheduled Outage began in
October or November of a Contract Year, additional time beyond such dates will
be treated as a Forced Outage for the purpose of calculating the Availability
Percentages unless in response to a written request from Tenaska, PECO states
that it would not have dispatched such Units during the extension. Tenaska shall
not be entitled to require any supporting documentation from PECO if PECO is
unwilling to provide such a statement. Tenaska shall provide updates to PECO
during each Scheduled Outage, as requested by PECO, regarding progress on
completion of maintenance tasks and a projected completion time and date.
(e) Coincident with Tenaska's submission to PECO of the first plan for
Scheduled Outage, Tenaska shall provide PECO with the long-term preventive
maintenance program for each major item of equipment constituting a part of the
Plant. Such program shall reflect planned outages for inspection, repair,
maintenance and overhaul and will be based, at least in part, on manufacturers'
recommendations and may be altered from time to time by reason of later
manufacturer's releases pertaining to major items of equipment of the Plant and
Plant operating experience.
Section 6.06 STARTUP POWER. (a) At any time the Plant is being started
from a zero output condition, PECO shall arrange for the delivery to the Plant
of capacity and energy sufficient to start simultaneously the number of
Generating Units, up to three Generating Units, required to meet the Energy
Request for the hour immediately following the hour in which startup occurs.
When one or more Generating Units are producing energy, the Plant shall supply
energy to start additional Generating Units.
(b) Tenaska shall reimburse PECO for any payments made by PECO to third
parties for power to start-up a single Generating Unit in excess of the cost of
procuring 10 MW of capacity and 2 MWh of energy or a total of 30 MW of capacity
and 6 MWh of energy to start-up three Generating Units simultaneously.
(c) If startup power required by a Generating Unit exceeds the amounts
provided in Section 6.06(a), PECO will provide Tenaska with copies of tariffs
under which PECO procures startup power, for the purpose of verifying cost
reimbursement owed by Tenaska to PECO under Section 8.06.
Section 6.07 DELIVERY OF FUEL. (a) PECO shall be solely responsible for
procuring Natural Gas and Fuel Oil in sufficient quantities and at rates of
delivery sufficient to meet the Plant's Fuel requirements as it may be operated
and tested in accordance with this Agreement,
27
such Fuel to conform to (A) the specifications set forth in EXHIBIT 1.01
attached to this Agreement and (B) any requirements of Applicable Laws.
(b) PECO shall be solely responsible for transporting all Natural Gas
to be fired at the Plant during the Operating Term to the Gas Delivery Point and
shall be solely responsible for maintaining all Fuel Oil Delivery Permits.
Tenaska shall take title to all Natural Gas at the Gas Delivery Point. Tenaska
shall be solely responsible for transporting, handling, using, and disposing of
such Natural Gas after it is delivered to Tenaska at the Gas Delivery Point.
(c) PECO shall be solely responsible for transporting to the Fuel Oil
Unloading Facilities by tanker trucks all Fuel Oil to be fired at the Plant
during the Operating Term. Tenaska shall take title to all Fuel Oil when
delivered to Tenaska at the Fuel Oil Unloading Facilities. Tenaska shall be
solely responsible for (i) unloading the Fuel Oil from such tanker trucks, (ii)
transporting, handling, using, managing, and storing of such Fuel Oil as soon as
it is delivered to Tenaska at the Fuel Oil Unloading Facilities, (iii) verifying
the quality of Fuel Oil delivered to the Plant, and (iv) ensuring that the Fuel
Oil Unloading Facilities are sufficient to enable Tenaska to unload Fuel at a
rate of 41,600 gallons of Fuel Oil each hour. If during any Contract Year PECO
fails to make sufficient Energy Requests for energy fired by Fuel Oil so that an
amount of Fuel Oil equal to at least 20% of the Fuel Oil Inventory at the
beginning of such Contract Year is consumed, PECO shall reimburse Tenaska for
all costs of maintaining the quality of the Fuel Oil Inventory so that it may be
burned in the Plant. Such costs may include but not be limited to the cost of
disposing of any degraded Fuel Oil, blending fresh Fuel Oil and the cost of
remedial chemical additives. PECO may request from Tenaska an estimate of cost
for blending and/or other applicable remediation techniques to restore Fuel Oil
which has degraded in quality as a result of failure to deplete 20% from
inventory in the current Contract Year on April 1st and receive such cost
estimates by April 15th, pursuant to which PECO shall inform Tenaska by May 1st
of its decision, if any, to burn additional Fuel Oil or pay for remediation.
(d) Tenaska shall provide PECO with telemetric indications of the Fuel
Oil Storage Tank level on a real time basis.
(e) PECO shall provide Tenaska with (i) estimated Fuel Oil deliveries
to the Plant by 12:00 noon EPT the Day preceding deliveries, and (ii) updated
delivery estimates during any day deliveries are reasonably anticipated. Tenaska
shall within the limitations of the Fuel Oil Storage Tank and the Fuel Oil
Unloading Facilities accept Fuel Oil deliveries at the Plant during all hours of
the Day.
Section 6.08 OIL-FIRED OPERATION AVAILABLITY REQUIREMENTS. For purposes
of calculating the Availability Percentages, an Energy Request that requests
that a Generating Unit be fired on Fuel Oil may, at Tenaska's option, be
disregarded unless such Generating Unit should have been in Fuel Oil Capable
Mode in accordance with Sections 6.08(a), (b), (c) and (d).
(a) Subject to Section 6.08(d), by no later than October 1st, PECO will
notify Tenaska of how many Generating Units will be operated in Fuel Oil Capable
Mode from November 1 through March 31 of each Contract Year. By no later than
March 15 in the Initial Units Start Year and by no later than each March 15
during the Operating Term, PECO will
28
notify Tenaska of how many Generating Units will be operated in Fuel Oil Capable
Mode from April 1 of that Contract Year through October 31 of the Immediately
Following Contract Year.
(b) Generating Units not designated by PECO to be operated in Fuel Oil
Capable Mode shall be returned to Fuel Oil Capable Mode by Tenaska within 48
hours after such notice by PECO.
(c) Fuel Oil may only be fired at the Plant at the express direction of
PECO, except (i) during the Shutdown of a Unit or Units which are in Fuel Oil
Capable Mode but are not being fired on Fuel Oil and (ii) as reasonably
necessary in connection with air emissions compliance testing. During (i) and
(ii) Tenaska may fire such Units on Fuel Oil; provided, however, that the
aggregate amount of Fuel Oil consumed by the Plant during such periods on a
rolling twelve-month basis shall not exceed 26,200 Barrels.
(d) Not more than one Unit shall be requested to be in Fuel Oil Capable
Mode from June 1 through December 1 of 2001.
Section 6.09 ENERGY REQUESTS. (a) Subject to Article VI, PECO shall
request energy from Generating Units which have achieved Commercial Operation by
providing Tenaska with an Energy Request, with the amount of energy which PECO
may request at any point in time to comply with the following Generating Unit
and Plant operating performance requirements:
(i) If a Generating Unit called pursuant to PECO's daily Unit
Call Schedule is producing zero MW, the Unit will have the capability
to dispatch from 0 MW and be delivering Unit Capacity on a continuous
basis as follows:
A. If the Generating Unit is in a Cold Shutdown and
is in Standby Mode, the Generating Unit shall be able to
deliver energy equivalent to Unit Capacity on a continuous
basis within 60 minutes (such a Start being a Cold Start, as
further defined below) of dispatch notification by PECO.
B. If the Generating Unit is in a Hot Shutdown and is
in Standby Mode, the Generating Unit shall be able to deliver
energy equivalent to Unit Capacity on a continuous basis
within 30 minutes (such a Start being a Hot Start, as further
defined below) of dispatch notification by PECO.
C. The Plant will be capable of starting no more than
three Units simultaneously.
D. No Energy Request shall require that more than
three Generating Units be in the first 15 minutes of their
respective Start durations at any moment in time.
E. PROVIDED THAT with respect to any Unit in Standby
Mode such Unit must have been in Standby Mode for at least
three (3) hours before such times apply or such lesser time as
the Parties may agree to being consistent with manufacturers'
recommendations and Prudent Utility Practice.
29
(ii) During the Summer Months and during any Day of the Winter
Months in which PECO calls all Generating Units in Commercial Operation
to be available, the Plant will have the capability to dispatch from 0
MW and be delivering Contract Capacity on a continuous basis as
follows:
A. If all Generating Units are in Cold Shutdown, the
Plant shall deliver energy equivalent to the Unit Capacity of
three Generating Units within 60 minutes of dispatch
notification by PECO. The Plant shall be able to deliver the
Unit Capacity of the remaining three Generating Units within
75 minutes of dispatch notification by PECO. For purposes of
illustration only, if Unit Capacity equals 150 MW and PECO
requests 900 MW of power, the Plant will be producing 450 MW
at the end of 60 minutes, and an additional 450 MW 15 minutes
later ("Cold Start"), PROVIDED THAT PECO provides Fuel and the
necessary startup capacity and energy pursuant to Section
6.06.
B. If all of Generating Units are in Hot Shutdown,
the Plant shall be able to deliver energy equivalent to the
Unit Capacity of three Generating Units within 30 minutes of
dispatch notification by PECO. The Plant shall be able to
deliver the Unit Capacity of the remaining three Generating
Units within 45 minutes of dispatch notification by PECO. For
purposes of illustration only, if Unit Capacity equals 150 MW,
and PECO requests 900 MW of power, the Plant shall be
producing 450 MW at the end of 30 minutes, and an additional
450 MW 15 minutes thereafter ("Hot Start"), PROVIDED THAT PECO
provides Fuel and the necessary startup capacity and energy
pursuant to Section 6.06.
C. If one or more of the Plant's Generating Units are
in Cold Shutdown and one or more Generating Units are in Hot
Shutdown, each respective Generating Unit shall have start-up
characteristics associated with such Generating Unit's
shutdown time. For purposes of illustration only, if four
units have been off-line for 25 hours and two units have been
off-line for 100 hours, and PECO requests Contract Capacity,
the Plant shall be able to deliver the Unit Capacity of three
units within 30 minutes, Unit Capacity of an additional unit
15 minutes later, and Unit Capacity of the remaining two units
30 minutes after the latter Unit, PROVIDED THAT PECO provides
Fuel and the necessary startup capacity and energy pursuant to
Section 6.06.
(iii) For each day during the Non-Summer Months, the startup
notification times described in paragraphs (i) and (ii) above shall
only apply (A) to the number of Generating Units called by PECO
pursuant to the Unit Call Schedule for that day and (B) the number of
Generating Units which PECO elects to place in Standby Mode. During the
Non-Summer Months, for each Generating Unit which PECO does not include
in the Unit Call Schedule or elect to place in Standby Mode, such
Generating Unit shall within three (3) hours after an Energy Request
requiring such Unit to deliver energy, subject to Section 6.05, be
capable of either a Hot Start or Cold Start, as applicable or such
lesser time as the Parties may agree to being consistent with
manufacturers' recommendations and Prudent Utility Practice.
30
(iv) When making an Energy Request which requires the Start of
a Unit, PECO will submit such Energy Request to Tenaska for 0 MW per
Unit to be Started for the first 30 minutes following the Start of
Units in Hot Shutdown, and PECO will submit an Energy Request for 0 MW
per Unit being Started for the 60 minutes following the Start of Units
in Cold Shutdown. PECO's Energy Request for the period immediately
following the end of the 30 minute or 60 minute timeframe, as
applicable, will be based on the Unit being, at that point in time, at
Minimum Load.
(v) The Minimum Load for a single Generating Unit will be 90
MW when fired by Natural Gas and 95 MW when fired by Fuel Oil.
(vi) Subject to Section 6.08, PECO may submit Energy Requests
requiring each Unit to be switched from Natural Gas Operation to
Oil-Fired Operation, at PECO's discretion PROVIDED THAT any such Energy
Request shall be consistent with the constraint that for each Unit at
Minimum Load to switch from Natural Gas Operation to Oil-Fired
Operation and achieve Minimum Load requires 15 minutes and produces 15
MWh and for each Unit at Minimum Load to switch from Oil-Fired
Operation to Natural Gas Operation and achieve Minimum Load requires 20
minutes and produces 17 MWh. . PECO may request a Fuel switch on one or
more Generating Units, up to the number of Generating Units on-line.
(vii) PECO will submit an Energy Request to Tenaska for any
hour during which a Unit or Units is being Shutdown which allows each
such Unit to produce an amount of energy at least equal to 60 MWh
during Shutdown of that Unit. Tenaska will satisfy all such Energy
Requests within the applicable time frame, but decreases in energy
during the time allowed need not be on a straight line or proportional
basis.
(viii) The Plant will be able to ramp energy output upwards to
an amount equal to the product of Unit Capacity multiplied by the
number of Generating Units on-line and downwards to an amount equal to
the product of Minimum Load multiplied by the number of Generating
Units on-line at a rate of 10 MW/minute multiplied by the number of
Generating Units on-line.
(ix) When operating between an amount equal to the product of
Minimum Load multiplied by the number of Generating Units on-line plus
5 MW and an amount equal to the product of Unit Capacity multiplied by
the number of Generating Units on-line minus 5 MW, the Plant will be
able to provide net AGC in the amount of 5 MW/minute multiplied by the
number of Generating Units on-line.
(b) Except for the portion of an Energy Request subject to AGC, each
Energy Request shall continue in force throughout the hour in which the Energy
Request is applicable until PECO communicates a modification to the Energy
Request via phone or telefax or until ordered to reduce or increase the
Requested Energy pursuant to the Interconnection Agreement with the Local
Utility, PROVIDED HOWEVER, that any such modification or order must provide
Tenaska with sufficient notice for the Plant to respond to such modification
within the Plant operating parameters provided in Sections 6.08 and 6.09 hereof.
If, for any hour, PECO does not submit an Energy Request, the Energy Request for
such hour shall be deemed to be 0 MW.
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PECO shall work on a good faith basis to inform the Plant operators of
anticipated hourly deviations from previously submitted Energy Requests. Tenaska
shall work on a good faith basis to inform PECO via phone or telefax of
anticipated deviations from the Availability Schedule previously provided to
PECO.
(c) PECO and Tenaska will work together prior to Commercial Operation
to develop reliable telephone dispatch procedures for intra-day scheduling which
will ensure that telephone dispatch notices are not given by or on behalf of
PECO without proper authorization. Tenaska is entitled to rely upon telephone
dispatch orders which it believes in good faith to have been properly authorized
by PECO, and any such telephone dispatch order shall constitute an Energy
Request.
(d) PECO will not request energy (1) for which it does not arrange for
transmission service, from the applicable Point of Delivery, (2) during any
Scheduled Outage, at a level greater than the capacity level designated by
Tenaska in the notice of such Scheduled Outage, (3) during any Generating Unit
start-up or Shutdown, at a level inconsistent with the applicable output for
such Unit as specified in Section 6.09(a)(iv) or Section 6.09(a)(vii), (4) at a
level below the Minimum Load as determined in accordance with Section
6.09(a)(v), Section 6.09(a)(vi), or Section 6.09(a)(ix) except for Energy
Requests for 0MW and Energy Requests during any Unit start up or Shutdown, or
(5) at a level greater than the Current Contract Capacity. AGC requests shall be
in accordance with Section 6.09(a)(ix).
(e) If PECO makes an Energy Request that is not in compliance with
criteria set forth in Sections 6.08 and 6.09 of this Agreement, (a
"Non-Conforming Energy Request"), Tenaska shall inform PECO promptly after it is
actually aware that an Energy Request is a Non-Conforming Energy Request, and
shall provide PECO with a specific change to the Non-Conforming Energy Request
which would allow it to be in compliance with Sections 6.08 and 6.09. Pending
receipt of a new Energy Request from PECO, Tenaska may in good faith deliver
energy up to the amount of Non-Conforming Energy Request (plus the Energy
Delivery Tolerance), but shall not be penalized in the availability calculation
or suffer any other penalty under this Agreement if, in attempting to comply
with the Non-Conforming Energy Request, Tenaska causes Delivered Energy to
exceed the Energy Request by more than the Energy Delivery Tolerance, or if
Delivered Energy is less than the Energy Request by more than the Energy
Delivery Tolerance. PECO's submission of an Energy Request which is a
Non-Conforming Energy Request, shall not be a material default by PECO.
Section 6.10 DELIVERY OF POWER. (a) Subject to the provisions of this
Section 6.10, Tenaska shall sell all of the Contract Capacity and sell and
deliver all of the energy generated by the Plant during the Operating Term, net
of that required for operation of the Plant, to PECO at the Point of Delivery,
and PECO shall accept and purchase from Tenaska Contract Capacity and Delivered
Energy; provided, however, PECO shall not be required to accept and purchase any
energy that is not delivered pursuant to an Energy Request or within the Energy
Delivery Tolerance of an Energy Request.
(b) Notwithstanding PECO's right to be the exclusive recipient of
capacity and energy for the Plant, at any time when an event of default by PECO
under Section 14.01(b)(i) of this Agreement has occurred and is continuing,
Tenaska may enter into (and then perform)
32
agreements with terms of up to thirty days to sell capacity and/or energy to
other parties, and with the Net Revenue from such sales credited against amounts
payable by PECO to Tenaska under this Agreement. Tenaska shall be excused from
responding to any Energy Request to the extent that it is not able to comply
therewith due to its permitted sales to third parties under this section, and
for purposes of calculating Availability Percentages shall be deemed to have
delivered Delivered Energy equal to Summer Potential or Non-Summer Potential, as
applicable, during such period. In such event, PECO shall use good faith efforts
not to block transmission of energy to such third parties.
(c) Tenaska shall not be required to generate power in violation of
Applicable Law or in contravention of Prudent Utility Practice, or at a level in
excess of that which PECO or the applicable Local Utility can prudently receive
as a result of any prohibition or limitation of PECO's or the applicable Local
Utility's ability to receive such power, whether as a result of Force Majeure or
otherwise.
Section 6.11 REPLACEMENT ENERGY. (a) If the Plant cannot fulfill an
Energy Request due to a Forced Outage, Tenaska shall have the right to request
PECO to accept and purchase capacity and energy from sources other than the
Plant and at Points of Delivery other than the Primary Point of Delivery
("Replacement Energy") with at least six hours prior notice, subject to clauses
(i) through (v) of this Section 6.11.
(i) Tenaska's proposal to deliver Replacement Energy shall
include the amount of energy to be delivered; the duration that
Replacement Energy will be provided, up to the duration of the Forced
Outage; the source of the Replacement Energy; a representation that the
Replacement Energy cannot be recalled by a third party and cannot be
claimed by a third party as being the energy component of a separate
capacity purchase arrangement. Unless otherwise mutually agreed to by
the Parties, Replacement Energy will be deemed to be Delivered Energy
as if it were delivered from the Plant under this Agreement.
(ii) PECO will be responsible for arranging transmission from
the Replacement Energy source to PECO's customer unless Tenaska offers
the use of transmission rights controlled by Tenaska which PECO agrees
to use, and which require Tenaska as transmission purchaser to provide
scheduling information to affected control area operators.
(iii) PECO may decline to receive Replacement Energy by
providing two hours prior notice to Tenaska, and Tenaska will not
receive credit under the calculation of Availability Percentages (A) if
PECO's customer or an affected control area operator is unwilling to,
and is not required to, accept a source change pursuant to the
agreement between PECO and such customer or such control area operator;
(B) if necessary scheduling and documentary notifications for the
schedule change cannot reasonably be completed in a timely manner; (C)
if the amount of the Replacement Energy is less than 50 MW; or (D) if
delivery of Replacement Energy to PECO's customers uses a less reliable
transmission delivery path than the transmission of energy from the
Plant and Tenaska has not agreed to compensate PECO for transmission
interruptions which PECO would not have incurred for energy deliveries
from the Plant. PECO may also decline to
33
receive Replacement Energy by providing as much prior notice as is
practicable, (which in any event shall not be less than 2 hours) to
Tenaska if PECO determines that Replacement Energy is less economic
than another source of energy available to PECO. If PECO declines to
receive Replacement Energy for economic reasons, Tenaska will receive
credit under the calculation of Availability Percentages in an amount
equal to the amount of Replacement Energy offered by Tenaska to PECO.
(iv) PECO may terminate receipt of Replacement Energy from a
particular source during a Month if such deliveries are interrupted
during such Month and PECO determines in good faith that the source of
generation or transmission of such Replacement Energy is not as
reliable as alternate energy sources that PECO would use as a
replacement for energy deliveries from the Plant.
(v) PECO shall pay Tenaska for Replacement Energy pursuant to
Section 8.12.
(b) Any sales of capacity or energy from the Plant that are above
Contract Capacity shall be at prices and on terms mutually agreed between the
Parties, PROVIDED THAT if the Parties do not agree on terms for such sales,
Tenaska may not sell such capacity or energy to itself, to its Affiliates or to
third parties.
Section 6.12 DISPATCH. (a) Unless otherwise directed by PECO pursuant
to Section 6.12(b), Tenaska shall dispatch available Generating Units to respond
to Energy Requests on a substantially proportional basis, such that if PECO
requests 850 MW, and six (6) Generating Units are available, Tenaska shall
dispatch all six Generating Units at approximately 142 MW each. Notwithstanding
the foregoing, Tenaska may choose to dispatch the Generating Units in a
different manner, PROVIDED THAT Tenaska shall still be required to deliver the
amount of energy specified in PECO's Energy Request with any deviation from such
Energy Request to be addressed pursuant to Section 7.01, and Tenaska shall be
limited to the Start Charges that would have applied if Tenaska did dispatch the
Generating Units in the manner contemplated by this Section 6.12(a).
(b) PECO shall have the right to direct Tenaska to dispatch Generating
Units individually from time to time (but without having the right to designate
which specific Unit is to be started) and all Generating Units that are not
dispatched individually shall be dispatched on a proportional basis to respond
to any Energy Requests. Notwithstanding the foregoing, Tenaska may choose to
dispatch the Generating Units other than as directed by PECO above, PROVIDED
THAT Tenaska shall then be held to the Availability Percentage calculations, and
shall be limited to the Start Charges that would have applied if Tenaska had
dispatched the Generating Units in the manner contemplated by this Section
6.12(b).
Section 6.13 AUTOMATIC GENERATION CONTROL. (a) At least six (6) months
prior to the Scheduled Date of Commercial Operation for the Initial Units, PECO
will designate two applicable control areas from which AGC signals will be
received.
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(b) If PECO wishes to add control areas from which Tenaska will accept
receipt of AGC signals, PECO will provide at least six months notice of such
additional control areas and pay the reasonable costs, if any, associated with
such additions.
(c) If PECO wishes to change a control area from which Tenaska will
accept AGC signals, PECO will provide at least six months notice of such change.
Tenaska will accommodate up to eight such changes during the Operating Term at
no charge if the changed control area communicates with the Plant control system
via a dedicated telephone line(s). If a PECO-selected control area requires
another type of communication link (e.g. microwave, fiber optic or power line
carrier) or if PECO requests more than eight control area changes during the
Operating Term, PECO will pay the costs associated with the other type of
communication link or associated with changes in excess of eight during the
Operating Term.
(d) The integrated net effect of AGC during an hour will be treated as
an Energy Request and subject to all limitations that otherwise apply to Energy
Requests except for notice procedures.
Section 6.14 ESTIMATED FUEL EFFICIENCY. Tenaska shall notify PECO
whenever Tenaska expects the actual heat rate to deviate significantly from the
normal heat rate over one or more following Days as a result of an equipment
failure, malfunction or repair, with such notice to be provided to PECO as
promptly as possible, but in no event later than two hours after the equipment
malfunction, failure or repair in question.
Section 6.15 UNIT STARTS. (a) Subject to this Section 6.15, PECO will
incur a Start or Starts for each Energy Request which requires a Generating Unit
not currently on-line to be started-up to meet the Energy Request. In no event
will the number of Starts incurred by PECO for an Energy Request exceed the
number of Starts provided in the following:
[GRAPHIC OMITTED]
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(b) PECO will not incur a Start for a Generating Unit which trips
within four (4) hours after a Start provided that the Energy Request requiring
such Start exceeds four (4) consecutive hours.
(c) PECO may incur one less Start for an Energy Request than provided
in Section 6.09(a) if ambient conditions at the time of the Energy Request allow
each Unit to produce a sufficient amount of energy in excess of Unit Capacity
for the operating Generating Units to satisfy such Energy Request without
starting an additional Generating Unit.
(d) Notwithstanding anything contained herein to the contrary, PECO
shall not be liable to Tenaska for Starts that would not have occurred but for
Tenaska's failure to operate the Plant in accordance with the provisions of this
Agreement and Prudent Utility Practice.
(e) Energy Requests that require a Start or Shutdown for a Generating
Unit will become effective at the quarter hour point immediately following
Tenaska's receipt of such request. For example if PECO issues an Energy Request
at 20 minutes past the top of an hour which requires the Start of a Generating
Unit, Tenaska will implement the Start of the Generating Unit at 30 minutes past
the hour.
(f) If Tenaska is delivering Replacement Energy, Start Charges shall be
payable by PECO as if the Delivered Energy were sourced from the Plant.
(g) In the case of short term increases and decreases in Energy
Requests, PECO shall have the right to request that Tenaska not make a Start (or
that it not stop such Generating Unit, as the case may be), and Tenaska shall
comply with such request if it is reasonably able to do so, having due regard
for manufacturers' warranties and other contractual obligations, the
requirements or guidance of governmental agencies of competent jurisdiction, and
requirements of insurers, and if PECO undertakes to pay any incremental Fuel
costs of operating in a less efficient mode during such short term period. If a
response to AGC signal(s) would require a Shutdown or a Start of an additional
Unit, Tenaska shall use good faith efforts to contact PECO to determine whether
PECO desires the additional Unit to be Shutdown or started or wishes to override
such signal and not Shutdown or Start the Unit. Pending a response from PECO,
the Energy Request shall be deemed to be reduced or increased, as the case may
be, to the Energy Request that can be in effect without resulting in a Start or
a Shutdown, as the case may be.
ARTICLE VII
AVAILABILITY DETERMINATIONS
Section 7.01 DETERMINATION OF HOURLY AVAILABLITY INPUTS. The Parties
shall calculate Availability Percentages by determining inputs on an hourly
basis pursuant to this Section 7.01.
(a) For each Contract Year, Required Potential shall be an amount of
energy (in MWh) which shall equal (i) during each Summer Peak Hour, Contract
Capacity, and (ii) during each Non-Summer Peak Hour, the product of (A) Unit
Capacity in that Contract Year and (B) the number of Generating Units on the
Unit Call Schedule for such hour.
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(b) For each hour of each Contract Year, the inputs to availability
calculations shall be Hourly Output and Hourly Potential. These amounts (each in
MWh) shall be determined for each hour by categorizing such hour into one of the
following categories:
(i) If (A) Delivered Energy during such hour varies above or
below the Hourly Energy Request by more than the Energy Delivery
Tolerance and (B) the Plant delivers 0 MWh to the Primary Point of
Delivery during the immediately preceding hour, Hourly Output shall
equal Delivered Energy and Hourly Potential shall equal the Hourly
Energy Request.
(ii) If (A) Delivered Energy for such hour varies above or
below the Hourly Energy Request by an amount equal to or less than the
Energy Delivery Tolerance and (B) the Plant produced 0 MWh during the
immediately preceding hour, Hourly Output and Hourly Potential shall
both equal Required Potential.
(iii) If (A) Delivered Energy for such hour varies above or
below the Hourly Energy Request by more than the Energy Delivery
Tolerance and (B) the Plant is reduced to 0 MW during such hour
pursuant to an Energy Request, Hourly Output shall equal Delivered
Energy and Hourly Potential shall equal the Hourly Energy Request for
such hour.
(iv) If (A) Delivered Energy for such hour varies above or
below the Hourly Energy Request by less than the Energy Delivery
Tolerance and (B) the Plant is reduced to 0 MW during such hour
pursuant to an Energy Request, Hourly Output and Hourly Potential shall
both equal the Hourly Energy Request for such hour.
(v) If (A) Delivered Energy for such hour varies above or
below the Hourly Energy Request by more than the Energy Delivery
Tolerance and (B) the Plant produced more than 0 MWh during the
immediately preceding hour, Hourly Output shall equal Delivered Energy
and Hourly Potential shall equal Required Potential.
(vi) If (A) Delivered Energy for such hour varies above or
below the Hourly Energy Request by an amount equal to or less than the
Energy Delivery Tolerance, and (B) the Plant produced more than 0 MWh
during the immediately preceding hour, Hourly Output and Hourly
Potential shall equal Required Potential.
(vii) If (A) the Hourly Energy Request for an hour is 0 MW but
(B) Delivered Energy is equal to or greater than 1 MWh, Hourly Output
shall be 0 MWh and Hourly Potential shall equal Required Potential.
(viii) If (A) the Hourly Energy Request for an hour is 0 MW
and (B) Delivered Energy is 0 MWh, Hourly Output and Hourly Potential
shall equal Required Potential.
(ix) If (A) the Hourly Energy Request for an hour is greater
than 0 MWh but (B) the ability to deliver or consume Fuel to or at the
Plant is prohibited due to an Emergency Fuel Curtailment, Hourly Output
and Hourly Potential shall equal Delivered
37
Energy. If 0 MWh of energy can be delivered due to an Emergency Fuel
Curtailment, the hour will not be included in calculating Availability
Percentages pursuant to Section 7.02.
(x) If for a Contract Year PECO elects Peak Availability
Option #1 and then requests less than the number of Unit Hours of
energy that it is entitled to request from Units required to be on the
Unit Call Schedule pursuant to Section 6.01(b) during Non-Summer Months
of such Contract Year ("Maximum Available Energy Hours"), the
difference between the Maximum Available Energy Hours (expressed in
MWhs) and the number of actual MWhs requested by PECO in such
Non-Summer Peak Hours of the Non-Summer Months shall be credited to
Tenaska at full Contract Capacity for the purpose of calculating the
Annual Availability Adjustment.
(c) If PECO submits a Non-Conforming Energy Request and PECO does not
amend such Non-Conforming Energy Request pursuant to a notification by Tenaska
under Section 6.09(e), the Plant's performance during such hour shall be
considered to be within the parameters of Section 7.01(b)(vi), and Hourly Output
and Hourly Potential for such hour shall equal Required Potential.
(d) If the Plant is starting up from 0 MW output and PECO fails to
deliver energy necessary to start Generating Units pursuant to Section 6.06,
Delivered Energy shall equal PECO's Energy Request for such portion of the hour
until startup power is delivered. If the Plant is starting up from 0 MW output
and Tenaska is unable to accept delivery of startup power at the Plant,
Delivered Energy shall equal 0 MW for such portion of the hour until startup
power is received.
(e) For any hour in which the Plant is not able to fulfill an Energy
Request as a result of PECO's failure, for reasons of Force Majeure or
otherwise, to deliver Natural Gas at the Gas Delivery Point in sufficient
quantities and at a sufficient pressure to meet the Plant's requirements as it
may be operated in accordance with this Agreement and (i) PECO elects not to
fire Fuel Oil at the Plant if Natural Gas supplies are insufficient or
interrupted, or (ii) PECO fails, for reasons of Force Majeure or otherwise, to
timely procure Fuel Oil or deliver Fuel Oil in sufficient quantities and at a
sufficient rate to meet the Plant's requirements as it may be operated in
accordance with this Agreement, Delivered Energy during such hour will be deemed
to be equal to Requested Energy for the purposes of calculating the Availability
Percentages, unless such Generating Unit incurred a Forced Outage prior to
interruption of Fuel deliveries and would not be available if the Fuel were
available.
(f) For any hour in which the Plant is (i) not able to fulfill an
Energy Request due to a curtailment or reduction of transmission from the
Primary Point of Delivery by an entity directly operating or controlling the
transmission facilities (including the Xxxxxxx-Xxxxxxx 500kV transmission line)
interconnected with the Interconnection Facilities at the Primary Point of
Delivery, and (ii) such curtailment or reduction is not due to Tenaska's failure
to operate and maintain or to cause the operation and maintenance of the Plant
in accordance with either the Interconnection Agreement, this Agreement, or
Prudent Utility Practice, then Tenaska will be credited in the calculation of
Delivered Energy under this Section 7.01 for the curtailment or reduction;
provided, however, that the amount of such credit shall not exceed the lesser of
(A) the product of (1) Unit Capacity and (2) the number of Units on the
Availability Schedule for
38
such hour or (B) Delivered Energy during the hour preceding the curtailment or
reduction if Delivered Energy during such hour was lower than the Hourly Energy
Request less the Energy Delivery Tolerance unless, in the case of a transmission
curtailment or reduction that extends beyond the end of the day in which such
curtailment or reduction begins, the condition that resulted in such shortfall
in Delivered Energy has been remedied.
Section 7.02 COMPUTATION OF AVAILABILITY PERCENTAGES. (a) Summer
Availability Percentage shall be calculated at the end of the Summer Months of
each Contract Year and shall equal the quotient of Summer Output divided by
Summer Potential.
(i) Summer Output shall equal the sum of Hourly Output for all
Summer Peak Hours.
(ii) Summer Potential shall equal the sum of Hourly Potential
for all Summer Peak Hours.
(b) Annual Availability Percentage shall be calculated at the end of
each Contract Year and shall equal the quotient of (i) Annual Output divided by
(ii) Annual Potential.
(i) Annual Output shall equal the sum of Summer Output and
Non-Summer Output. For each Contract Year, Non-Summer Output shall
equal the sum of Hourly Output for all Non-Summer Peak Hours.
(ii) Annual Potential shall equal the sum of Summer Potential
and Non-Summer Potential. Non-Summer Potential shall equal the sum of
Hourly Potential for all Non-Summer Peak Hours.
Section 7.03 AVAILABILITY STANDARDS. Tenaska shall endeavor in good
faith to cause the Plant to achieve a Summer Availability Percentage of at least
97% during the Summer Months of each Contract Year, and an Annual Availability
Percentage of at least 97% during all Months of each Contract Year.
(a) PECO shall compensate Tenaska for achieving Summer Availability
Percentage in excess of 97% as provided in Section 8.07.
(b) Tenaska shall compensate PECO for failing to achieve a Summer
Availability Percentage and/or an Annual Availability Percentage of 97% as
provided in Section 8.08.
ARTICLE VIII
PAYMENTS
Section 8.01 MONTHLY PAYMENTS. PECO shall pay Tenaska monthly for
capacity and energy in accordance with the provisions of this Article VIII.
Section 8.02 RESERVATION PAYMENTS. PECO shall, during the Operating
Term, make monthly Reservation Payments to Tenaska in accordance with the
provisions of Section 9.02 of
39
this Agreement in an amount equal to the product of (i) the number of Generating
Units that have achieved Commercial Operation, (ii) Unit Capacity, (iii) the
Reservation Rate measured in dollars per kilowatt month applicable for such
Contract Year as set forth in EXHIBIT 8.02, and (iv) 1000. If any Generating
Unit achieves Commercial Operation on any Day after June 1 of the applicable
Start Year, the Reservation Payment with respect to such Unit for that Month
shall be prorated to reflect the number of days in such Month that the Unit is
in Commercial Operation.
Section 8.03 ENERGY PAYMENTS. (a) During the Operating Term, PECO shall
make Energy Payments to Tenaska in accordance with the provisions of Section
9.01 of this Agreement in an amount equal to the sum of the Fuel Oil Energy
Payment, the Natural Gas Energy Payment and the Replacement Energy Payment. If,
during any hour, both Fuel Oil and Natural Gas are combusted in any Unit, the
Fuel Oil Energy Rate shall be applied to such hour for such Unit if, Fuel Oil,
represents 50% or more of the Fuel (calculated on a Btu basis) so consumed by
the Unit; otherwise the Gas Energy Rate shall apply to such Unit for such hour.
(i) The Fuel Oil Energy Payment shall equal for each Month the
product of (i) the total amount of Delivered Energy received by PECO
during that month to the extent that such Delivered Energy was
generated by Generating Units fired by Fuel Oil and (ii) the Fuel Oil
Energy Rate applicable for that Contract Year, as set forth in EXHIBIT
8.03.
(ii) The Natural Gas Energy Payment shall equal for each Month
the product of (i) the total amount of Delivered Energy received by
PECO during that month to the extent that such Delivered Energy was
generated by Generating Units fired by Natural Gas or as Replacement
Energy and (ii) the Gas Energy Rate applicable for that Contract Year,
as set forth in EXHIBIT 8.03.
(b) The Replacement Energy Payment shall equal for each month the
aggregate Replacement Fuel Cost for all days in such month.
(i) An Excess Run Time Payment shall apply to each Unit which
pursuant to an Energy Request (A) delivers energy for longer than 16
consecutive hours immediately following the Start of such Unit, and (B)
is fired in whole or in part with Natural Gas during the whole period
following such Start. The Excess Run Time following each Unit Start
shall be the number of consecutive hours in excess of sixteen that such
Unit delivered energy before being Shutdown. The Excess Run Time
Payment under this Section 8.03(b)(i) shall equal the sum for all Units
of the product for each Unit of (i) the Delivered Energy produced
during each Excess Run Time and (ii) $2.00/MWh. For example, if an
Energy Request for 600 MWh begins at the hour ending 06:00 on a day and
remains unchanged until an Energy Request reduces the Units on-line to
0MW at hour 00:00 (midnight), the Excess Run Time would be 2 hours,
with 600 MWh of Delivered Energy during each hour, or 1200 MWh, times
$2.00/MWh. ends at hour 00:00 (midnight) for 600 MWh's, the Excess Run
Time would be 2 hours at 600 MWhs or 1200 MWhs times $2.00/MWh.
(ii) An Excess Run Time Payment shall apply to each Unit which
pursuant to an Energy Request (A) delivers energy for longer than 13
consecutive hours
40
immediately following the Start of such Unit, and (B) is fired only
with Fuel Oil during the period following such Start. The Excess Run
Time following each Unit Start shall be the number of consecutive hours
in excess of thirteen that such Unit delivered energy before being
Shutdown. The Excess Run Time Payment under this Section 8.03(b)(ii)
shall equal the sum for all Units of the product for each Unit of (i)
the Delivered Energy produced during each Excess Run Time and (ii)
$3.00/MWh. For example, if an Energy Request for 600 MWh begins at hour
ending 06:00 on a day and remains unchanged until an Energy Request
reduces the Units on-line to 0 MW at hour 00:00 (midnight), the Excess
Run Time would be 5 hours, with at 600 MWh of Delivered Energy during
each hour, or 3000 MWh, times $3.00/MWh.
(c) Except in the case of Replacement Energy, Energy Payments will not
include a charge for Fuel because Tenaska is not charged for such Fuel by PECO.
Section 8.04 START CHARGES. (a) During the Operating Term, PECO shall
pay Start Charges to Tenaska, in accordance with Section 9.01(a)(viii) herein,
in an amount equal to the product of (i) the number of Starts incurred by PECO
during the month pursuant to Section 6.15 and (ii) the Start Charges for the
Contract Year in which the month occurs, as set forth in this Section 8.04.
(b) PECO shall incur a Start Charge of $11,000 for each Start during
the first Contract Year, with such amount to escalate by 3% on the first Day of
each subsequent Contract Year.
Section 8.05 STANDBY MODE CHARGE. PECO shall, during the Operating
Term, pay monthly the Standby Mode Charge pursuant to Section 6.04(d) to Tenaska
in accordance with the provisions of Section 9.02.
Section 8.06 START UP POWER COST. Tenaska shall, during the Operating
Term, reimburse PECO in accordance with Section 6.06(b) as and when sums are due
under such Section.
Section 8.07 AVAILABILITY INCENTIVE PAYMENT. If the Summer Availability
Percentage exceeds 97%, PECO at the end of the Summer Months shall owe to
Tenaska (the "AVAILABILITY INCENTIVE PAYMENT"), to be determined as follows:
(a) PECO shall calculate and include in the Accrued Availability
Adjustment Statement of each Contract Year, (i) a list of the five (5) Days
during the immediately preceding Summer Period with the highest On-Peak Energy
Prices for such period, and (ii) the Plant's Peak Days Availability. The Peak
Days Availability shall equal (A) the sum of all Hourly Output results for the
Summer Peak Hours during the five highest-price Days divided by (B) the sum of
all Hourly Potential results for the Summer Peak Hours during such Days.
(b) If the Summer Availability Percentage exceeds 97% but the Peak Days
Availability is less than 99%, the Availability Incentive Payment shall equal
the product of (A) the positive difference between the Summer Availability
Percentage and 97% up to a maximum of 3%, (B) 100, and (C) $150,000.
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(c) If the Summer Availability Percentage exceeds 97% and the Peak Days
Availability is 99% or greater, the Availability Incentive Payment shall equal
the product (A) the positive difference between the Summer Availability
Percentage and 97% up to a maximum of 3%, (B) 100, and (C) $500,000.
Section 8.08 AVAILABILITY ADJUSTMENTS. (a) The Tier 1 Availability
Factor for each Contract Year shall equal the product of (i) 0.0334, (ii) the
average monthly Reservation Payment for that Contract Year, and (iii) 12. The
Tier 2 Availability Factor for each Contract Year shall equal the product of (i)
0.00432, (ii) the average monthly Reservation Payment for that Contract Year,
and (iii) 12. For example for purposes of calculating average monthly
Reservation Payment, if two Units (each with a Unit Capacity of 150 MW) achieve
Commercial Operation on June 1, 2001 and a third Unit (with a Unit Capacity of
150 MW) achieves Commercial Operation on July 15, 2001, the average monthly
Reservation Payment for purposes of this Section 8.08(a) would be: ((2 Units x
150 MW/unit x12 months x 1000 kW/MW x $3.50/kw-month) + ( 1 Unit x 150 MW/unit x
10.5 months x 1000kW/MW x $3.50/kw-month))/12 = $1,509,375.
(b) The Summer Availability Percentage shall be calculated at the end
of the Summer Months of each Contract Year. If the Summer Availability
Percentage is less than 87.0%, Tenaska shall owe PECO a Summer Availability
Adjustment equal to the product of (i) the positive difference between 97% and
the Summer Availability Percentage, (ii) 100, and (iii) the Tier 1 Availability
Factor in that Contract Year. Subject to Section 8.09 herein, Tenaska shall make
payment of such Summer Availability Adjustment by offsetting all amounts payable
by PECO to Tenaska during subsequent Months until the amount offset equals the
Summer Availability Adjustment but not to exceed the Tier 1 Availability
Adjustment.
(c) The Annual Availability Percentage shall be calculated at the end
of each Contract Year. If the Annual Availability Percentage is less than 97.0%
but greater than 76.9%, Tenaska shall owe PECO an Annual Availability Adjustment
equal to the product of (i) the positive difference between 97.0% and the Annual
Availability Percentage, (ii) 100, and (iii) the Tier 1 Availability Factor for
that Contract Year.
(d) If the Annual Availability Percentage is less than or equal to
76.9%, Tenaska shall owe PECO an Annual Availability Adjustment equal to the sum
of the Tier 1 Availability Adjustment and the Tier 2 Availability Adjustment.
(i) The Tier 1 Availability Adjustment shall equal the product
of (i) the Tier 1 Availability Factor for that Contract Year and (ii)
20.
(ii) The Tier 2 Availability Adjustment shall equal the
product of (a) the positive difference between 77.0 % and Annual
Availability, (b) 100, and (c) the Tier 2 Availability Factor for that
Contract Year.
(iii)The Annual Availability Adjustment for any Contract Year
shall not exceed the product of (i) the monthly Reservation Payment and
(ii) 12.
Section 8.09 PAYMENT OF AVAILABILITY ADJUSTMENT AMOUNTS. (a) At the end
of the Summer Months of each Contract Year, PECO shall calculate the "Accrued
Availability
42
Adjustment", which shall equal (i) at the end of the Summer Months of the first
Contract Year, the Summer Availability Adjustment, and (ii) for all other
Contract Years, the sum of Annual Availability Adjustments incurred by Tenaska
in prior Contract Years which have not been fully rebated to PECO, and any
Summer Availability Adjustment owed to PECO pursuant to Section 8.08 or.
(b) Tenaska shall make Availability Adjustment payments to PECO at the
end of the Summer Months of each Contract Year as follows:
(i) If the Accrued Availability Adjustment set forth in the
Accrued Availability Adjustment Statement is less than the available
amount of the Acceptable Credit Support provided by Tenaska in an
amount equal to the amounts detailed in Section 17.03(e)(i) and (ii),
Tenaska shall make payment of the Accrued Availability Adjustment by
offsetting all amounts payable by PECO to Tenaska during the
immediately following months until the amount offset equals the Accrued
Availability Adjustment.
(ii) If the Accrued Availability Adjustment set forth in the
Accrued Availability Adjustment Statement exceeds the available amount
of the Acceptable Credit Support, Tenaska shall pay to PECO an amount
equal to such excess over the available amount of the Acceptable Credit
Support by wire transfer in immediately available funds within twenty
(20) days of receiving such statement from PECO. Payment of the
remaining Accrued Availability Adjustment will be made by offsetting
all amounts payable by PECO to Tenaska during subsequent months, until
the amount of payments and offsets by Tenaska equals the Accrued
Availability Adjustment.
(c) The Parties shall make Availability Adjustment payments to each
other at the end of each Contract Year as follows:
(i) If the Summer Availability Adjustment exceeds the Annual
Availability Adjustment, and there is no Accrued Availability
Adjustment outstanding which has not been rebated to PECO, PECO shall
make payment of such difference to Tenaska by wire transfer in
immediately available funds within twenty (20) days of the end of a
Contract Year.
(ii) If the Annual Availability Adjustment exceeds the Summer
Availability Adjustment, Tenaska shall make payment to PECO of such
difference by offsetting all amounts payable by PECO to Tenaska during
succeeding months of the next Contract Year until the amount of such
offsets equals the Annual Availability Adjustment; provided, however,
that any Availability Adjustment payable to PECO at the end of the
Operating Term shall be paid by wire transfer in immediately available
funds within twenty (20) days of the end of such Operating Term.
(d) Failure by Tenaska to make timely payment pursuant to Section
8.09(b) or (c) will entitle PECO to draw upon the Acceptable Credit Support. If
Tenaska fails to make timely payment and PECO draws upon the Acceptable Credit
Support, Tenaska will be required
43
to post Replacement Acceptable Credit Support within fifteen (15) days. Failure
to post Replacement Acceptable Credit Support will be a monetary default by
Tenaska.
Section 8.10 EFFICIENCY ADJUSTMENT. (a) As both Parties' exclusive
recourse for the Plant achieving a worse than expected heat rate or a better
than expected heat rate, for each Contract Year in which the Plant is operated
during the Summer Months at Base Unit Output for at least 2000 Unit Hours, the
Parties will make a Fuel Adjustment Payment, to be calculated and paid as
follows:
(i) The Summer Months Base Heat Rate shall be expressed in MM
BTU/MWh and shall equal for all hours of Base Unit Output, the quotient
of (i) the total amount of Natural Gas consumed by the Plant during
such hours (as measured by the Metering Equipment and expressed in MM
BTU) divided by (ii) the total amount of Delivered Energy during such
hours (as measured by the Metering Equipment and expressed in MWh).
(ii) If the Summer Months Base Heat Rate is greater than 10.8
MM BTU/MWh and less than 11.3 MM BTU/MWh, neither Party shall owe the
other Party a Fuel Adjustment Payment for such Contract Year.
(iii) If the Summer Months Base Heat Rate is greater than 11.3
MM BTu/MWh, Tenaska shall make a Fuel Adjustment Payment to PECO in an
amount equal to the sum of the products for each Day in such Contract
Year of (A) the Daily Index Citation for such Day in $/MMBtu, times (B)
the positive difference between the Summer Months Base Heat Rate and
11.3 MM Btu/MWh times (C) the Delivered Energy during such Day.
(iv) If the Summer Months Base Heat Rate is less than 10.8 MM
BTu/MWh, PECO shall make a Fuel Adjustment Payment to Tenaska in an
amount equal to the sum of the products for each Day in such Contract
Year of (A) the Daily Index Citation for such Day in $/MMBtu, times (B)
the positive difference between 10.8 MM BTU/MWh and the Summer Months
Base Heat Rate, times (C) the Delivered Energy during such Day.
(b) Any amount payable for a Contract Year pursuant to this Section
8.10 shall be invoiced with the amounts due for the last month for such Contract
Year. Failure by Tenaska to make timely payment of a Fuel Adjustment Payment
pursuant to Section 8.10 will entitle PECO to draw upon the Acceptable Credit
Support. If Tenaska fails to make timely payment and PECO draws upon the
Acceptable Credit Support, Tenaska will be required to post Replacement
Acceptable Credit Support within fifteen (15) days. Failure to post Replacement
Acceptable Credit Support will be a monetary default by Tenaska.
Section 8.11 FUEL TAX PAYMENTS. (a) The Parties shall make payments to
each other with respect to taxes imposed by the State of Georgia (or any
political subdivision thereof) on Fuel delivered to or consumed by the Plant in
accordance with this Section 8.
(b) Payments by PECO to Tenaska under this Section 8.11 shall be made
on a monthly basis pursuant to Section 9.02. Payments by Tenaska to PECO under
this Section 8.11
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shall be made on a monthly basis by offsetting any other amounts owed by PECO to
Tenaska under this Article VIII.
(c) If Tenaska is responsible for preparing, filing, and paying taxes
on Fuel delivered to or consumed by the Plant in a Month, PECO shall make a Fuel
Tax Payment to Tenaska equal to PECO's Fuel Tax Obligation for such Month, as
determined pursuant to Section 8.11(d). If PECO is responsible for preparing,
filing, and paying taxes on Fuel delivered to or consumed by the Plant, Tenaska
shall reimburse PECO for the positive difference between (i) the total amount of
such taxes imposed by the State of Georgia (or any political subdivision
thereof) on Fuel delivered to or consumed by the Plant payable for such Month as
shown due on such tax returns and (ii) PECO's Fuel Tax Obligation for such
Month; PROVIDED HOWEVER, that if such difference is negative, PECO shall make a
Fuel Tax Payment to Tenaska equal to such negative difference.
(d) PECO's Fuel Tax Obligation shall equal, for each Month, the Fuel
Tax Rate times the sum of the Gas Value and the Fuel Oil Value for such Month.
(i) Fuel Tax Rate for a month shall equal the sum of (A) 6%
and (B) one-half the difference between (1) the tax rate applicable to
sales and/or use tax on Fuel in Heard County, Georgia under the Tax
Statute and (2) 6%. If Fuel becomes exempt from the sales and use tax
under the Tax Statute, the Tax Rate shall be 3%. For illustration, if
the tax rate for Heard County, Georgia under the Tax Statute is 9%, the
Fuel Tax Rate shall be 6% + [1/2*(9%-6%)], or 7.5%, and if the tax rate
for Heard County, Georgia under the Tax Statute is 3%, the Fuel Tax
Rate shall be 6% + [1/2*(3%-6%)], or 4.5%.
(ii) The Gas Value for a Month shall equal the product of (A)
the volume of Natural Gas (measured in millions of cubic feet) which is
delivered to or consumed at the Plant in the applicable Month times (B)
the Daily Index Citation (measured in $/million cubic feet) or such
other price or value for such Natural Gas accepted or required by the
applicable taxing authority for the purpose of determining the sales
and use tax on the Fuel under the Tax Statute. For the purposes of this
Subsection 8.11(d)(ii)(A), the volume of Natural Gas delivered or
consumed by the Plant shall be deemed to include a notional volume of
Natural Gas associated with Replacement Energy delivered to PECO
pursuant to Section 6.11 during such Month, which notional volume of
Natural Gas shall equal, for a Month, the product of (x) the amount of
Replacement Energy (in MWh) delivered to PECO during such Month and (y)
11.1 million BTU/MWh.
(iii) The Fuel Oil Value for a Month shall equal the product
of (A) the volume of Fuel Oil (measured in Barrels) as delivered to or
consumed at the Plant in the applicable Month times (B) the value of
such Fuel Oil (measured in $/Barrel) as determined in accordance with
applicable Georgia tax law, rules and regulations or such other price
or value for such Fuel Oil accepted or required by the applicable
taxing authority for the purpose of determining the sales and use tax
on the Fuel under the Tax Statute.
45
(e) Tenaska shall notify PECO in writing within a reasonable period of
time after it learns of any amendments to the Tax Statute introduced at a
session of the Georgia General Assembly, including but not limited to a repeal
in whole or in part of the Tax Statute, which would have the effect of changing
the 6% sales and use tax rate currently in effect in Heard County Georgia
Section 8.12 REPLACEMENT ENERGY PAYMENT. (a)PECO shall pay Tenaska
monthly in accordance with Section 9.02 for Replacement Energy delivered
pursuant to Section 6.11, in an amount equal to aggregate Replacement Energy
Payments for all Days in such Month.
(b) The Replacement Energy Payment for a Day shall equal the sum of (i)
Replacement Energy Cost for such Day and (ii) any Start Charges that PECO would
have incurred in accordance with Section 6.15 had the Replacement Energy been
delivered from the Plant in addition to Delivered Energy, if any, actually
delivered during such period, less (iii) any damages incurred by PECO to any
Fuel supplier(s) as a result of Tenaska's failure to fulfill an Energy Request
from the Plant which PECO is unable to mitigate with reasonable commercial
efforts. PECO will cooperate with Tenaska to provide good faith estimates of
such damages that would be incurred as a result of Tenaska's delivery of
Replacement Energy. PECO anticipates that such damages will not exceed the most
recently published charges under the Transco tariff for imbalance and/or
scheduling penalties in effect at such time.
(c) The Replacement Energy Cost for a Day shall be (in $/MWh) equal to
the product of (i) the total amount of Replacement Energy delivered during such
Day (in MWh) and (ii) the sum of (A) the Gas Energy Rate for such Day (in $/MWh)
and (B) the product of the Fully Loaded Gas Price (in $/million BTU) and 11.1
million BTU/MWh.
ARTICLE IX
BILLING AND PAYMENT
Section 9.01 CONFIRMATION OF AMOUNTS OWED. (a) Each Day on or before
11:00 a.m. EPT during the Operating Term, PECO shall provide a Daily
Confirmation Letter to Tenaska specifying, for the previous Day:
(i) The Requested Energy during each hour of such Day;
(ii) Delivered Energy during each hour of such Day from
Generating Units fired by Natural Gas;
(iii) Delivered Energy during each hour of such Day from
Generating Units fired by Fuel Oil;
(iv) Total Delivered Energy from the Plant during each hour of
such Day excluding Replacement Energy;
46
(v) The total amount of Replacement Energy accepted by PECO
and delivered by Tenaska pursuant to Section 6.11, including the
applicable Replacement Fuel Cost for such Replacement Energy;
(vi) For each Day in a Summer Month, which hours, if any,
during such Day were Base Unit Output hours and for each such hour the
amount of energy produced by the Plant and the applicable Summer Months
Base Heat Rate;
(vii) [Reserved];
(viii) The number of Starts incurred by PECO pursuant to
Energy Requests during such Day;
(b) The information that is needed to calculate Annual Output and
Annual Potential for each hour of such Day.
(c) Tenaska shall counter-sign and return via facsimile or any manner
of delivery as may be agreed by the Parties an executed copy of each Daily
Confirmation Letter within two (2) Days of receipt if it agrees with information
contained in the Daily Confirmation Letter. If Tenaska in good faith disputes
the Daily Confirmation Letter, it shall provide a written response to PECO
within two (2) Days of receipt to PECO (i) describing the dispute and (ii)
providing any documentary evidence supporting Tenaska's position. PECO shall
provide Tenaska with a written response including documentary supporting
evidence within two (2) Days of receipt of such notice disputing the Daily
Confirmation Letter. The Parties shall endeavor in good faith to resolve such a
dispute within five (5) Days thereafter.
(d) The Daily Confirmation Letter and any communications under Section
9.01(b) shall constitute good faith exchanges of information but shall not
preclude either Party from disputing or correcting an error in the Monthly
Statement.
Section 9.02 MONTHLY STATEMENT. (a) Within ten (10) days after the end
of each Month, Tenaska shall deliver to PECO a Monthly Statement detailing:
(i) All amounts due from PECO to Tenaska under Article VIII
for such Month and all amounts due from Tenaska to PECO under Article
VIII;
(ii) The integrated amount of Requested Energy for each hour
of such Month;
(iii) The total amount of Delivered Energy produced by
Generating Units fired by Natural Gas during such Month;
(iv) The total amount of Delivered Energy produced by
Generating Units fired by Fuel Oil during such Month;
(v) The total amount of Delivered Energy from the Plant during
each hour of such Month excluding Replacement Energy accepted by PECO
and delivered by Tenaska pursuant to 6.11;
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(vi) The total amount of Replacement Energy during each hour
of such Month accepted by PECO and delivered by Tenaska pursuant to
Section 6.11, including for each such hour, the applicable amount of
Replacement Energy delivered and the Fully Loaded Daily Gas Price.
(vii) The number of Starts incurred by PECO pursuant to Energy
Requests during such Month; the amount of Natural Gas and Fuel Oil
actually consumed at the Plant during the Month and such other
necessary information for calculating the Fuel Efficiency Adjustment
Payment due pursuant to Section 8.10;
(viii) The total amount of Standby Mode Charges during such
Month pursuant to Section 6.04;
(ix) The total amount of the Excess Run Time Payment for such
Month pursuant to Section 8.03(b);
(x) For each Summer Month, the total number of Base Unit
Output Hours for such Month, and the aggregate Summer Months Base Heat
Rate during all such hours;
(xi) The total amount of Start up energy for such Month
pursuant to Section 6.06 and where possible detailing any amounts due
to PECO pursuant to Section 6.06(a) for such Month or the immediately
preceding Month.
(b) Within ten (10) days of receiving Tenaska's Monthly Statement, PECO
shall make payment by wire transfer in immediately available funds an amount
equal to (A) the amount due Tenaska from PECO as stated in the Monthly Statement
less (B) the amount due PECO from Tenaska as stated in the Monthly Statement
less (C) amounts which PECO, in good faith, disputes, with the total of such
disputed amounts subject to Section 9.04 herein. If the Monthly Statement shows
an amount due from Tenaska to PECO, payment shall, subject to Section 8.09, be
made by offsetting such amount against any amount owed by PECO to Tenaska.
Section 9.03 AVAILABILITY ADJUSTMENT STATEMENTS. (a) Within ten (10)
days of the end the Summer Months of each Contract Year, PECO shall provide an
Accrued Availability Adjustment Statement to Tenaska, determined pursuant to
Sections 8.08 and 8.09 and any Availability Incentive Payment determined
pursuant to Section 8.07. Tenaska and PECO shall make payment, as required, to
the other of the Accrued Availability Adjustment or Availability Incentive
Payment as provided in Sections 8.09 and 8.07 respectively.
(b) Within ten (10) days of the end of each Contract Year, PECO shall
provide an Annual Availability Adjustment Statement to Tenaska, determined
pursuant to Sections 8.08 and 8.09. Tenaska and PECO shall make payment as
required to the other of the Annual Availability Adjustment as provided in
Section 8.09.
Section 9.04 CORRECTIONS AND DISPUTES. (a) Xxxxxxxx and payments shall
be subject to correction for metering and billing errors for a period of two (2)
years.
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(b) If either Party disputes the correctness of a statement (including
any assertion of an offset not shown in such statement), the disputing Party
alleged to owe the disputed amount shall pay the disputed amount into an escrow
account established with a bank mutually agreed by both Parties and acceptable
to the Financial Institutions or, if Tenaska is the disputing party with respect
to an Accrued Availability Adjustment Statement or a Annual Availability
Adjustment Statement and, pursuant to Section 8.08 PECO is entitled to offset
its payment obligation against amounts becoming due from Tenaska, then PECO
shall deposit such offsetting amounts into escrow.
(c) In such cases, such disputes shall be resolved by arbitration in
accordance with the arbitration procedures of Section 18.13, PROVIDED THAT
disputes regarding amounts that can reasonably be expected to aggregate to more
than $7,500,000 on either a recurring or a non-recurring basis shall not be
subject to arbitration.
(d) The disputed amount, or the appropriate portion, together with any
interest earned thereon shall be transferred to, or credited to, the Party or
Parties in whose favor the dispute shall have been resolved.
(e) Interest on all such amounts in dispute shall accrue at the rate
specified in Section 9.05.
Section 9.05 INTEREST ON PAST DUE AMOUNTS. Any bills tendered by
Tenaska to PECO under this Agreement which are not paid when due and any
obligation to refund an amount wrongfully drawn under a letter of credit (which
obligation shall be due on the date of drawing) shall bear interest, compounded
monthly, from the due date until paid, at the lesser of (a) the maximum rate of
interest permitted by Applicable Law and (b) two per cent plus the rate of
interest then most recently announced by The Chase Manhattan Bank as its prime
rate, or equivalent (regardless of whether such bank actually charges such
rate), in effect on the first business day of each Month in which interest
accrues hereunder. Notwithstanding the provisions for calculating interest on
late payments, failure to make payments when due as specified in Section 9.02
shall be a default under this Agreement by the non-paying Party.
Section 9.06 REGULATION. PECO acknowledges and agrees that,
notwithstanding any adverse treatment or burdensome rate regulation that may
apply under any applicable federal, state or local law with respect to the
purchase of capacity and energy under this Agreement or to sales by PECO of
capacity and energy furnished under this Agreement, its obligations to make
payments required under this Agreement and otherwise to perform its other
obligations under this Agreement shall not be diminished or reduced and shall
remain valid and binding, in accordance with the terms of this Agreement.
49
ARTICLE X
[RESERVED]
ARTICLE XI
RECORDS
Section 11.01 RECORDS. Tenaska shall maintain records needed to reflect
power and energy delivered to PECO under this Agreement including (i) the amount
and quality of Fuel delivered to the Plant, (ii) the amount of such Fuel used in
the production of energy and power, (iii) records of taxes assessed and paid on
Fuel in accordance with Section 8.11 and (iv) records of all pertinent Fuel and
electrical parameters of the Plant, with all records referenced herein to be
available to PECO for inspection at all reasonable times. All such records will
be maintained in accordance with industry accepted procedures consistently
applied and will be, for a period of two (2) calendar years after the respective
records are created, subject to inspection and audit by PECO during normal
business hours upon reasonable advance written notice.
ARTICLE XII
ASSIGNMENT
Section 12.01 ASSIGNMENT. (a) Neither Party shall assign this Agreement
without the prior written consent of the other Party, PROVIDED THAT in the event
that PECO sells or otherwise transfers its power marketing business, PECO may
assign this Agreement without Tenaska's consent to the buyer or transferee of
such business if (A) the buyer or transferee has a senior unsecured public debt
rating by Xxxxx'x or Standard & Poor's or any successor thereto which is a
Rating Organization that is not lower than PECO's comparable unsecured senior
debt rating at the time of such transfer and (B) such Rating Organization shall
have confirmed that such rating shall remain in effect following the buyer's or
transferee's assumption of this Agreement.
(b) Nothing contained in this Section 12.01 shall be construed to
prevent the Parties from making a collateral assignment of the revenues due
under the terms of this Agreement, PROVIDED THAT this Agreement may not be
transferred to any purchaser of the Plant upon foreclosure or at a sale in lieu
of foreclosure to, and the Plant shall not be operated during the pendency of
any foreclosure by, any party which is (i) a Competitor or (ii) in PECO's
reasonable judgment does not possess a satisfactory level of experience in
electric power plant operations. Except as provided above, no assignment, merger
or consolidation shall relieve any Party of any obligation under this Agreement.
Subject to the foregoing restrictions in this Section, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
(c) For the purposes of this Agreement, PECO shall at all times from
the date hereof during the term of this Agreement maintain a list (which shall
not be amended without PECO providing 90 days prior written notice to Tenaska of
any proposed change) which designates up to three (3) Competitors, PROVIDED THAT
in respect of each Person designated as a
50
Competitor, PECO has determined in good faith that such Person is a competitor
of PECO in the sale, brokering or marketing of electrical energy or capacity and
(i) the sale, assignment or other transfer of the Plant to such Competitor would
be detrimental to PECO's competitive interests in the sale, brokering or
marketing of electrical energy and capacity or (ii) the operation or maintenance
of the Plant by such Competitor would be detrimental to PECO's competitive
interests in the sale, brokering or marketing of electrical energy and capacity
PROVIDED THAT in no event shall PECO designate any of the Sponsors as a
Competitor.
ARTICLE XIII
INDEMNITIES
Section 13.01 INDEMNIFICATION. (a) Neither Party shall hold the other
Party or its partners (including the corporate Affiliates, parent, subsidiaries,
directors, officers, stockholders, employees and agents of such other Party or
the partners in such other Party) liable for any claims, losses, costs and
expenses of any kind or character, (including, without limitation, loss of
earnings and attorneys' fees) on account of bodily injury to the personnel of or
damage to property of PECO or Tenaska in any way occurring incident to, arising
out of, or in connection with a Party's performance under this Agreement, except
as provided in subsection (b) below.
(b) PECO and Tenaska will each protect and indemnify the other Party
and its partners (including the corporate Affiliates, parent, subsidiaries,
directors, officers, stockholders, employees and agents of such other Party or
the partners in such other Party) from and against any liability or loss
(including reasonable expenses and attorneys' fees) because of bodily injury or
property damage arising out of or in connection with PECO's or Tenaska's,
respective performance hereunder; except that neither shall be obligated to
indemnify the other for injury or damage caused by the negligence or willful
misconduct of the other Party. This provision is for the sole benefit of the
Parties hereto and other Persons named herein and is not intended and shall not
be construed to confer any rights or benefits on any third party.
(c) Nothing in the foregoing provisions of this Section 13.01 shall be
construed to require one Party to this Agreement to indemnify the other Party to
this Agreement for any cost or expense that is to be borne by such other Party
pursuant to any express provision of this Agreement.
Section 13.02 RELEASE BY TENASKA. Tenaska releases PECO, its successors
and assigns and the respective directors, officers, employees, agents and
representatives of PECO and their successors and assigns from any and all
claims, losses, harm, liabilities, damages, costs and expenses to the extent
resulting from any:
(a) Force Majeure (but not from damages otherwise recoverable under
this Agreement);
(b) operation of the Plant in parallel with Local Utility's electrical
systems;
(c) transfer, transmission, use or disposition of energy delivered
pursuant to this Agreement prior to its delivery to PECO at the applicable Point
of Delivery;
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(d) transportation, handling, use, or disposition of all Natural Gas to
be fired at the Plant after it is delivered to Tenaska at the Gas Delivery
Point; or
(e) transportation, handling, use, management or disposition of all
Fuel Oil to be fired at the Plant after it is delivered to Tenaska at the Fuel
Oil Unloading Facilities by tanker truck.
Section 13.03 RELEASE BY PECO. PECO releases Tenaska and its partners
or shareholders, Tenaska's successors and assigns (and their partners and
shareholders), and the respective Affiliates, directors, officers, employees,
agents and representatives of Tenaska, its partners and their Affiliates,
successors and assigns from any and all claims, losses, harm, liabilities,
damages, costs and expenses to the extent resulting from any:
(a) Force Majeure (but not from damages otherwise recoverable under
this Agreement);
(b) operation of the Plant in parallel with the Local Utility's
electric systems;
(c) transfer, transmission, use or disposition of energy after it is
delivered pursuant to this Agreement to PECO at the applicable Point of
Delivery;
(d) interruption, suspension or curtailment of delivery of power
pursuant to this Agreement to the Local Utility' electric systems, which
interruption, suspension or curtailment is caused by the Local Utility' electric
systems;
(e) transportation, handling, use, or disposition of all Natural Gas to
be fired at the Plant prior to it being delivered to Tenaska at the Gas Delivery
Point; or
(f) transportation, handling, use, management or disposition of all
Fuel Oil to be fired at the Plant prior to it being delivered to Tenaska at the
Fuel Oil Unloading Facilities by tanker truck.
ARTICLE XIV
DEFAULT
Section 14.01 (a) Events that shall be considered defaults by Tenaska
under this Section 14.01 are as follows:
(i) Abandonment of the construction of the Plant for any
period in excess of 60 consecutive days.
(ii) Abandonment of the operation of the Plant for any period
in excess of 10 consecutive days.
(iii) A material breach of any representation, warranty or
covenant of Tenaska set forth in Article XVII.
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(iv) Tenaska makes a general assignment of substantially all
of its assets for the benefit of its creditors, files a petition for
bankruptcy or reorganization or seeks other relief under any applicable
insolvency laws, PROVIDED THAT the collateral assignment by Tenaska of
its interest in the Plant and this Agreement shall not be considered an
assignment for the benefit of creditors for purpose of this Section
14.01.
(v) Tenaska has filed against it a petition for bankruptcy,
reorganization or other relief under any applicable insolvency laws and
such petition is not dismissed within sixty (60) days after it is
filed.
(vi) Any other material breach by Tenaska of any material
provision under this Agreement.
Notwithstanding the foregoing, the failure (i) of Tenaska to deliver the amount
of energy requested in Energy Requests in accordance with this Agreement, or to
have the number of Generating Units specified by Section 6.02 available at Unit
Capacity on the Availability Schedule for any period or (ii) of the Plant to
achieve an expected heat rate in accordance with Section 8.10, shall not
constitute a default hereunder, and PECO shall not be entitled to assert any
termination rights as set forth in Section 3.05(a) therefor, but such failure
shall entitle PECO, as its exclusive damages remedy, to recover Availability
Adjustments and Fuel Adjustment Payments, respectively, as provided in Sections
8.08, 8.09 and 8.10, and PECO shall retain its termination rights pursuant to
Section 3.07; provided, however, that upon termination under Section 3.07,
PECO's exclusive damages remedy shall be to recover any accrued amounts owed to
PECO as of the date of such termination including, but not limited to, any
Availability Adjustment payable under Section 8.09, and in such event PECO shall
have no right to assert claims against Tenaska under Section 3.05. The
limitation on damages arising from failures described in clause (i) of the
preceding sentence applies only to failures that cause Tenaska to be unable to
deliver or to cause the Plant to be able to deliver amounts of Energy that are
or may be requested by PECO pursuant to an Energy Request in accordance with
this Agreement. Such limitation does not apply to any material breach of any
material provision of this Agreement independent of shortages in the amount of
energy delivered or available for delivery, including by way of illustration and
not by way of limitation, any material breach by Tenaska of Sections 2.02, 6.03,
6.08 and if Tenaska does not cure any such material breaches PECO shall be
entitled to such recourse and remedies as are set forth in this Section 14.01
and Section 3.05.
(b) Events that shall be considered defaults by PECO under this Section
14.01 include the following:
(i) Failure to make any payment to Tenaska when due, provided,
however, that the failure by PECO to make payments due to Tenaska up to
an aggregate limit of $7,500,000 shall not constitute an event of
default if such amount is disputed in good faith and is deposited by
PECO into an escrow account pursuant to Section 9.04.
(ii) A material breach of any representation or warranty of
PECO set forth in Article XVII.
53
(iii) PECO makes a general assignment of substantially all of
its assets for the benefit of its creditors, files a petition for
bankruptcy or reorganization or seeks other relief under any applicable
insolvency laws.
(iv) PECO has filed against it a petition for bankruptcy,
reorganization or other relief under any applicable insolvency laws and
such petition is not dismissed within sixty (60) days after it is
filed.
(v) Any other material breach by PECO of any material
provision under this Agreement.
Section 14.02 NOTICES FOR DEFAULTS AND FORCE MAJEURE EVENTS. (a) If
either Party defaults under this Agreement, then the other Party shall give the
defaulting Party (i) written notice describing such default within forty-five
(45) Days of the occurrence of such default, and (ii) the specific default cure
desired by the notifying Party. For any Tenaska default, PECO shall provide the
Financial Institutions with a copy of the notification of default at the same
time that it is delivered to the defaulting Party.
(b) In the event either Party to this Agreement is rendered unable,
wholly or in part, by Force Majeure to perform any of its obligations under this
Agreement (other than obligations to make payments), such Party shall provide
notice and the full particulars of such Force Majeure in writing or by telephone
to the other Party as soon as reasonably possible after the occurrence of the
event of Force Majeure. Telephone notices, allowable under the provisions of
this Section, shall be confirmed in writing as soon as reasonably possible and
shall specifically state full particulars of the Force Majeure or such breach,
the time and date when the Force Majeure or such breach occurred. The Party
receiving such notice may request such additional information reasonably
necessary to understand the full particulars and implications of the Force
Majeure event. The obligations of the Party giving such notice, so far as they
are affected by such Force Majeure shall be suspended during the continuance of
any inability of performance so caused, PROVIDED THAT the Party giving notice of
a Force Majeure event shall provide the other Party, as promptly as reasonably
practical (but in any case within 14 Days) of the Force Majeure occurrence, a
plan of action to remedy the Force Majeure, which the Party incurring the Force
Majeure shall then proceed, in good faith, to implement PROVIDED THAT as and
when further facts become available, such plan may be amended from time to time.
(c) Any Party rendered unable to fulfill any of its obligations under
this Agreement by reason of Force Majeure shall exercise due diligence to remove
such inability with all reasonable dispatch. PECO's obligation to pay the
Reservation Payment, Tenaska's obligation to pay Availability Adjustments
pursuant to Section 8.09, and the Parties' obligations to pay other amounts due
under this Agreement shall not be excused by Force Majeure; provided, however,
that PECO may terminate this Agreement pursuant to Section 3.07 without regard
to the occurrence of any Force Majeure event.
(d) If a Party is unable to meet a date established under this
Agreement due to an event of Force Majeure that causes such failure, or due to a
breach of this Agreement by the other Party, the date shall be adjusted, subject
to Sections 3.04(c) and 4.02(d), to the extent
54
necessary so that the affected Party will have the same opportunity to meet the
readjusted date without making expediting or similar payments to accelerate
work.
Section 14.03 DEFAULT CURE RIGHTS AND TIMEFRAMES. (a) The timeframes
for a defaulting Party to cure a default shall be as follows:
(i) For defaults listed in Section 14.01(a)(i) and (ii),
Tenaska shall be given fifteen (15) days from the receipt of such
notice to cure such default.
(ii) For defaults listed in Section 14.01(a) (other than
(a)(i) or (ii)) and Section 14.01(b)(other than (b)(i)), the defaulting
Party shall be given sixty (60) days from the receipt of such notice to
cure such default.
(iii) If a default listed in Section 14.01(a) (other than
(a)(i) or (ii)) or Section 14.01(b) (other than (b)(i)) cannot be cured
within sixty (60) days of receipt of such notice with the exercise of
reasonable diligence, however, the defaulting Party shall have the
right to provide the non-defaulting Party with a plan within such sixty
(60) day period for the appropriate actions to cure the breach or
default. Immediately following the submission of the plan to the
non-defaulting Party, the defaulting Party must diligently commence
pursuit of the appropriate action under the plan to cure and shall be
granted the additional time to cure in accordance with the plan.
(b) The Financial Institutions shall be permitted to cure non-monetary
defaults by Tenaska within 75 days after the receipt of such notice or of the
termination of Tenaska's right to cure hereunder, whichever comes later.
(c) The Financial Institutions shall be allowed to cure monetary
defaults by Tenaska within 30 days of the receipt of such notice or the
termination of Tenaska's right to cure, whichever comes later.
(d) Additionally, the Financial Institutions may cure by assuming, or
causing a new lessee or purchaser of the Plant to assume, Tenaska's rights and
obligations under this Agreement, PROVIDED THAT no entity may assume Tenaska's
rights and obligations if, in PECO's reasonable judgment, such entity (i) does
not possess a satisfactory level of experience in electric power plant
operations or (ii) is a Competitor; and further PROVIDED THAT PECO receives the
written assumption agreement of the Financial Institutions, the new lessee or
purchaser within sixty (60) days of the Financial Institutions' receipt of
default notice from PECO or of the termination of Tenaska's right to cure,
whichever comes later. The Party assuming this Agreement shall have forty-five
(45) days from the effective date of such assumption to cure the material breach
or default or if the default is a nonmonetary default, such longer period as is
required so long as the Party who assumes this Agreement has commenced and is
diligently pursuing appropriate action to cure such default.
(e) If Tenaska or the Party assuming this Agreement from Tenaska are
prohibited from curing any such default by any process, stay or injunction
issued by any governmental authority or pursuant to any bankruptcy or insolvency
proceeding involving Tenaska or the Financial Institutions or any of them, then
the time periods specified herein for curing a default shall be extended for the
period of such prohibition.
55
(f) In no event shall the cure rights provided for in this Section
14.02 continue beyond (A) twelve calendar months if the default is a nonmonetary
default (except that Tenaska or the Financial Institutions may extend cure
rights beyond twelve (12) months by posting an additional $10,000,000 in
Acceptable Credit Support), or (B) four (4) calendar months if the default is a
monetary default, from the date of written notice of the default to the
Financial Institutions or their designee.
ARTICLE XV
[[RESERVED]]
ARTICLE XVI
CONFIDENTIALITY
Section 16.01 SCOPE. Each Party agrees, for itself, its wholly-owned
subsidiaries, and their respective directors, officers, employees and
representatives, including, without limitation, attorneys, accountants and
consultants, to keep Confidential (a) this Agreement, (b) all negotiations
concerning this Agreement, and (c) all documents, data, drawings, studies,
projections, plans and other information, whether written or oral, which relate
to economic benefits to or amounts payable by either Party pursuant to this
Agreement or costs of design, construction and operations of the Plant,
including, without limitation, cost of Fuel. In addition, PECO will keep
Confidential all plans, designs, drawings, documents, studies and other
information relating to design, construction and operation of the Plant.
Section 16.02 EXCEPTIONS. Either Party may, without violating this
Article, disclose matters that are made Confidential by this Agreement:
(a) to actual or prospective co-owners, lenders, financiers, lessors,
insurance brokers and underwriters, contractors, suppliers and others involved
in financing, construction, operation and maintenance of the Plant, or to such
Party's subsidiaries or parent, or to actual or prospective Fuel suppliers or
Fuel transporters, provided, that the Party making the disclosure obtains, as a
condition precedent to the disclosure, a confidentiality agreement with the
Person, corporation or other entity to whom the disclosure is being made with
terms substantially the same as this Article;
(b) to governmental officials and parties involved in any proceeding
whereby either Party is seeking a permit, certificate or other regulatory
approval or order necessary or appropriate to carry out this Agreement; PROVIDED
THAT the Party making the disclosure will exercise reasonable efforts to
restrict public access of the information disclosed by way of protective order
or otherwise;
(c) to governmental officials or the public as required by any law,
regulation or order, including, without limitation, laws or regulations
requiring disclosure of financial information, information material to financial
matters and filing of financial reports; provided, that the Party making the
disclosure will exercise reasonable efforts to restrict public access to the
information disclosed by way of protective order or otherwise.
56
Section 16.03 SCHEDULES OF ENERGY OR GAS. Energy Requests shall be
delivered directly to the Plant operators by PECO with a copy to Tenaska.
Tenaska shall keep confidential notices of Energy Requests for any given Day and
any intra-day adjustments of energy to be delivered under this Agreement for
such Day from the power marketing groups of (a) Tenaska, Inc. (b) any affiliate
of Tenaska, Inc. or (c) any equity partners of Tenaska, PROVIDED THAT Tenaska
may provide to its equity partners and their shareholders information on the
aggregate amount of energy delivered to each Point of Delivery after the xxxx
for such Month has been issued to PECO.
ARTICLE XVII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES
Section 17.01 TENASKA'S REPRESENTATIONS AND WARRANTIES. (a) Tenaska
represents and warrants that it is a limited partnership validly existing and in
good standing under the laws of the State of Delaware and is duly registered to
do business in the State of Georgia and that it has all requisite power and
authority to carry on the business to be conducted by it and to enter into this
Agreement. The execution and delivery of this Agreement and the performance of
Tenaska's obligations hereunder have been duly authorized in accordance with the
procedures of Tenaska's limited partnership agreement.
(b) To the knowledge of Tenaska, there is no threatened or pending
action or proceeding affecting Tenaska before any court, governmental agency or
arbitrator that could reasonably be expected to affect materially and adversely
the financial condition or operations of Tenaska or the ability of Tenaska to
perform its obligations hereunder, or which purports to affect the legality,
validity or enforceability of this Agreement (as is in effect on the date
hereof).
(c) Until this Agreement is terminated in whole or in part as provided
in Article III, and except as expressly provided in Section 6.10(b), Tenaska
covenants and agrees not to negotiate with any other party with respect to (a)
the purchase of any Fuel for the Plant during the Operating Term, or (b) the
sale of any capacity and energy or ancillary products to be produced by the
Plant during the Operating Term.
Section 17.02 PECO'S REPRESENTATIONS AND WARRANTIES. (a) PECO
represents and warrants that it is a corporation duly organized, validly
existing and in good standing under the laws of the State of Pennsylvania and
has all requisite corporate power and authority to carry on the business
presently conducted by it and to enter into this Agreement. The execution and
delivery of this Agreement and the performance of PECO's obligations hereunder
have been duly authorized by PECO and all necessary action to consummate the
transactions contemplated hereunder has been taken.
(b) To the knowledge of PECO, there is no threatened or pending action
or proceeding affecting PECO before any court, government agency or arbitrator
that could reasonably be expected to affect materially and adversely the
financial condition or operations of PECO or the ability of PECO to perform its
obligations hereunder, or which purports to affect, the legality, validity or
enforceability of this Agreement (as is in effect on the date hereof).
57
Section 17.03 COVENANTS OF TENASKA. (a) Tenaska shall, at all times,
and at its sole cost, comply in all material respects with all material
Applicable Laws. Tenaska shall give all required notices, shall procure and
maintain all governmental permits, licenses and inspections necessary for the
performance of its obligations under this Agreement, and shall at all times and
at its sole cost pay all charges and fees in connection therewith.
(b) Tenaska shall use Prudent Utility Practice to maximize satisfaction
of Energy Requests and to end any Forced Outage that limits Tenaska's ability to
deliver Contract Capacity.
(c) Without limiting generality of the foregoing, in the event that the
Plant shall suffer an insured casualty loss, Tenaska shall promptly comply with
any procedures under the Credit Documents to obtain access to the applicable
insurance proceeds and to otherwise proceed in accordance with Prudent Utility
Practice to restore the Plant to reliable operating condition as quickly as
possible.
(d) Tenaska shall maintain insurance coverage for the Plant as
described in EXHIBIT 17.03(D), PROVIDED THAT in the event that such coverage
shall not be available on reasonable commercial terms, Tenaska shall maintain
such substitute coverage as it reasonably selects in good faith.
(e) Tenaska shall deliver to PECO and maintain in full force and effect
not more than five instruments of Acceptable Credit Support or cash collateral
(with a minimum amount of $500,000 for any single instrument of Acceptable
Credit Support) as follows:
(i) On the earlier to occur of (A) the Financial Closing Date
and (B) January 1, 2000, Tenaska shall deliver to PECO Acceptable
Credit Support in the amount of $15,000,000 as security for Tenaska's
obligations under this Agreement. Such Acceptable Credit Support may be
drawn upon by PECO if Tenaska shall have failed to pay amounts due
under Section 4.02.
(ii) On April 1 of the Start Year for the Initial Units,
Tenaska shall deliver to PECO additional Acceptable Credit Support in
the amount of $10,000,000 as security for Tenaska's obligations under
this Agreement. Up to the full $25,000,000 of total Acceptable Credit
Support may be drawn upon by PECO if Tenaska shall have failed to pay
amounts due under Sections 4.02, 8.08, 8.09, 8.10 or 8.11.
(iii) Notwithstanding anything contained in this Agreement to
the contrary, no opportunity to cure or grace period shall apply with
respect to Tenaska's failure to deliver to PECO the Acceptable Credit
Support which is required under this Section 17.03(e) above.
(f) Tenaska shall ensure that the O&M Contractor is not, at the time
such contract is entered into, a Competitor of PECO and that the O&M Contract
contains a covenant that the O&M Contractor shall not undertake the sale,
brokering or marketing of electrical energy or capacity and any Affiliate of the
O&M Contractor that is not an Affiliate of Tenaska shall not during such O&M
Contract, conduct business in the ordinary course from the same offices as are
being used by an Affiliate of the O&M Contractor that is engaging in the sale,
58
brokering or marketing of electrical energy or capacity. Tenaska shall in good
faith use all reasonable commercial efforts to enforce the above mentioned
covenants in the O&M Contract against the O&M Contractor.
(g) Tenaska shall not consent to modifications to the Air Permit that
adversely affect the rights of Tenaska under Section No. 2 thereof, unless the
failure to so agree, in Tenaska's reasonable judgment, would likely result in
adverse effects at least as severe as those resulting from the modification.
PECO shall have the right to direct Tenaska (and Tenaska shall cooperate with
any reasonable direction given by PECO) to contest any modifications to the Fuel
specifications contained in the Air Permit, PROVIDED THAT any such contest shall
be at PECO's sole cost and expense.
(h) Tenaska shall use commercially reasonable efforts to maintain the
Air Permit without any adverse modification. Tenaska shall, at no cost or
expense to Tenaska, act in good faith to assist PECO with the maintenance of
Fuel Oil Delivery Permits.
Section 17.04 COVENANTS OF PECO. (a) PECO undertakes (i) to enter into
a consent to assignment of this Agreement to the Financial Institutions in
connection with the financing or refinancing of the Plant, and (ii) to provide
for the issuance to the Financial Institutions and to Tenaska of an opinion of
counsel from PECO as to the due authorization, delivery and enforceability of
this Agreement and as to other customary matters. The consent and opinion of
counsel shall in substance be in accordance with the forms attached as Exhibits
17.04(a)-1 and 17.04(a)-2, and PECO shall be under no obligation to engage in
further negotiations with respect to, or to alter or amend, the substantive
terms of such consent and opinion of counsel.
(b) PECO shall request energy under this Agreement in good faith and
will cooperate with Tenaska to limit dispatch of the Plant at levels that are
not economically efficient, PROVIDED THAT PECO shall not be required to incur
any economic loss or cost in avoiding dispatch at uneconomic levels.
Section 17.05 COVENANTS OF PECO AND TENASKA. (a) The Parties shall
cooperate in good faith in all reasonable respects in matters involving the
construction of the Plant, the Interconnection Facilities, and the Metering
Equipment, and in the operation of the Plant, the Interconnection Facilities,
and the Metering Equipment during the term of this Agreement. Each Party shall
act, in all reasonable respects, in good faith toward the other Party and when
dealing with governmental regulatory bodies and other third parties regarding
matters arising under or in connection with this Agreement. The Parties shall
cooperate in good faith in all reasonable respects in matters involving
environmental or regulatory permits and each Party shall act in good faith to
assist the other Party with the maintenance of all environmental or regulatory
permits during the term of this Agreement.
(b) PECO, at Tenaska's sole cost and expense, will cooperate with
Tenaska efforts to claim and otherwise benefit from any pollution allowances or
credits related to the Plant, all of which such allowances and credits shall be
the property of Tenaska.
(c) Tenaska shall promptly notify PECO in writing upon becoming aware
of any proposal to modify in any way any of the Fuel Oil Delivery Permits. Each
Party shall act, in all
59
reasonable respects, in good faith toward the other Party and when dealing with
governmental regulatory bodies and other third parties regarding matters arising
under or in connection with this Agreement.
ARTICLE XVIII
MISCELLANEOUS
Section 18.01 LIMITATION ON PUNITIVE AND CONSEQUENTIAL DAMAGES. Neither
Party shall be liable to the other for indirect, consequential, or punitive
damages. For the purpose of this Section 18.01, remedies under Section 3.05(a)
shall not be deemed as a compensation for punitive, indirect or consequential
damage. The limitation in this Section 18.01 shall not apply in the case of bad
faith, gross negligence or willful misconduct.
Section 18.02 NOTICE. Except as provided in Section 16.03, any notices,
elections, demands or requests required or authorized by this Agreement, or any
other instrument or document or information required to be tendered or delivered
by either Party, shall be in writing, and personally delivered or sent by
certified mail, return receipt requested, postage prepaid, or by fax (confirmed
by regular mail) to:
(a) If to PECO:
(i) If by Mail or by Overnight Delivery:
PECO Energy Company - Power Team
0000 Xxxxxxxxxxx Xxxx.
Xxxx xx Xxxxxxx, XX 00000
(ii) If by Fax:
000-000-0000
(b) If to Tenaska:
(i) If by Mail or by Overnight Delivery:
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
(ii) If by Fax:
000-000-0000
or such other address as either Party shall provide. Any notice given hereunder
shall be deemed to be given upon the earlier of (A) actual receipt, or (B) three
days after deposit in a properly addressed envelope in the U.S. mail, postage
prepaid, certified mail, return receipt requested.
60
Routine operational notices and communications and notices during an Emergency
or other unforeseen event may be made in person or by telephone.
Section 18.03 NO RIGHTS OF THIRD PARTIES. This Agreement is intended
for the benefit of the Parties. Except as provided in Article XIII, nothing in
this Agreement shall be construed to create any duty to, any standard of care
with reference to, or any liability to, any Person not a party to this
Agreement.
Section 18.04 SUBJECT TO APPLICABLE LAWS. This Agreement is subject to
applicable federal, state and local laws, ordinances, rules and regulations.
Subject to Section 13.01(b), nothing herein contained shall be construed as a
waiver of any right to question or contest any such law, ordinance, rule or
regulation or asserted regulatory jurisdiction. The Parties shall cooperate,
each at its own expense, in securing the approval of FERC for this Agreement in
its entirety and, if it is approved materially unchanged, in defending against
rehearing and appeals of such approvals, and against any litigation affecting
the validity and enforceability of this Agreement. The Parties expressly agree
that they will neither challenge nor aid others in challenging the tariff
filings implementing the FERC order or orders approving this Agreement.
Section 18.05 NO PARTNERSHIP. This Agreement shall not be interpreted
or construed to create an association, joint venture, or partnership between the
Parties or to impose any partnership obligation or liability upon either Party.
Neither Party shall have any right, power or authority to enter in any agreement
or undertaking for, or act on behalf of, or to act as or be an agent or
representative of, or to otherwise bind, the other Party.
Section 18.06 AMENDMENT. This Agreement may be amended at any time, but
only upon written agreement of the Parties.
Section 18.07 NO WAIVER. Failure of a Party to insist, on any occasion,
upon strict performance of this Agreement shall not be a waiver of the right to
insist upon strict performance of any provision on any other occasion.
Section 18.08 CAPTIONS. The captions of the various articles and
sections of this Agreement are for convenience and reference only and shall not
limit or define any of the terms and provisions hereof.
Section 18.09 COMPLETE AGREEMENT. This Agreement (together with the
Exhibits, Schedules and Annexes attached hereto) embodies the complete agreement
between the Parties hereto and supersedes all other oral or written
understandings and agreements. Each Party acknowledges that no representations,
inducements, promises, or agreements, oral or otherwise, have been relied upon
or made by any Party, or anyone on behalf of a Party, which are not embodied
herein, and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding.
Section 18.10 CURRENCY OF ACCOUNT. All payments due to Tenaska or PECO
hereunder shall be made in United States Dollars.
61
Section 18.11 CHOICE OF LAWS. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, excluding any
choice of law provisions or conflict of law principles which would require
reference to the laws of any other jurisdiction.
Section 18.12 SEVERABILITY. If any term or provision of this Agreement,
or the application thereof to any Person or circumstance, shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to Persons or circumstances other than those as to
which it is held invited or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
Section 18.13 ARBITRATION. (a) In the case of any dispute between the
Parties (i) as to the selection of an alternative publication or index as basis
for Daily Gas Price, (ii) arising under Article V, or (iii) arising under
Section 9.02 (subject to Section 9.04(c)), the matter shall be referred to and
determined by a single arbitrator appointed by the parties in accordance with
the Commercial Arbitration Rules of the American Arbitration Association
("AAA"), subject to the following:
A. Arbitration proceedings shall be commenced by the delivery
by either party to the other of a written notice demanding arbitration.
Upon the delivery of a written demand of either Party to the other, the
Parties shall jointly, within fifteen (15) days, choose a single
arbitrator.
B. If the Parties fail to choose a single arbitrator within
the time period allowed, then upon the written application from either
Party, the single arbitrator shall be chosen by the AAA in accordance
with the Commercial Arbitration Rules of the AAA.
C. The single arbitrator shall be a disinterested person and
knowledgeable of the domestic independent power industry.
D. The venue for arbitrations shall be Dallas, Texas or such
other venue as the parties may mutually agree upon.
Disputes that, pursuant to Section 9.04(c) are not subject to arbitration, shall
be subject to resolution through judicial proceedings.
(b) Within seven (7) days after the single arbitrator is chosen, each
Party shall each independently present to the single arbitrator a "final offer"
with supporting rationale, for (i) the alternative publication or index to be
selected if the dispute relates to selection of a new gas index to calculate the
Daily Gas Price, (ii) the appropriate Contract Capacity for a Contract Year if
the dispute relates to Article V; or (iii) the appropriate amount of payments
owed if the disputes relates to Section 9.02.
(c) The single arbitrator shall proceed immediately to hear the matter.
The single arbitrator shall be required to select either the position of Tenaska
or the position of PECO and may not make any other determination. The award of
the single arbitrator shall be made within thirty (30) days after appointment,
subject to any reasonable delay due to unforeseen
62
circumstances. If the single arbitrator fails to make a decision within thirty
(30) days after appointment, then either Party may void the appointment of the
single arbitrator and elect to have a new single arbitrator chosen in like
manner as if none had previously been selected.
(d) The award of the single arbitrator shall be formalized in writing
and signed by the single arbitrator and shall be final and binding on the
Parties, and the Parties shall abide by the award and perform the terms and
conditions thereof.
(e) The fees and expenses of the single arbitrator and the arbitration
process shall be shared equally by Tenaska and PECO.
(f) Except as otherwise provided herein, the arbitration shall be
governed and administered exclusively by the AAA in accordance with the
Commercial Arbitration Rules of the AAA.
Section 18.14 EXHIBITS. The exhibits, annexes and schedules attached to
this Agreement are incorporated herein by reference and made a part of this
Agreement as if fully set forth herein.
EXECUTED this 24th of August, 1999.
PECO ENERGY COMPANY
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, Power Team
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc.
Managing General Partner
By: /s/ Xxxxxxx Bevelhyman
---------------------------------
Name: Xxxxxxx Bevelhyman
Title: Vice President
63
ANNEX A
ACCEPTABLE GUARANTORS
ANNEX A-1
FORM OF LETTER OF CREDIT
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.________
[BANK]
PECO ENERGY COMPANY
[ADDRESS]
[Date]
Dear Sirs:
For the account of [TENASKA]. ("Tenaska"), we hereby authorize you to
draw on us at sight $_______________ (the "Credit Amount").
Funds under this Letter of Credit are available to you against your
sight draft(s) drawn on us and accompanied by a certificate purportedly signed
by your authorized representative in the form of EXHIBIT A attached hereto.
Presentation of such draft(s) and certificate(s) shall be made at our
office located at ________________, ________________, Attention: ______________
or at any other location _______________ which may be designated by us by
written notice delivered to you. Drafts must be marked "Drawn under [BANK]
Irrevocable Letter of Credit No. ________________". We hereby agree that all
drafts drawn under and in compliance with the terms of this Letter of Credit
will be duly honored by us upon due delivery of the draft(s) and certificate(s)
if presented at such office on or before the termination date hereof.
Payment under this Letter of Credit shall be made in accordance with
the payment instructions set forth in your certificate in the form of EXHIBIT A.
All drafts, certificates and notices shall be personally delivered to
us.
Upon our receipt of a certificate in the form of EXHIBIT B attached
hereto from your authorized representative, the Credit Amount will be reduced in
accordance with such certificate.
This Letter of Credit shall automatically terminate and be delivered to
us for cancellation upon the earliest of (i) the making by you of a drawing
hereunder in the full Credit Amount, (ii) our receipt of a certificate signed by
your authorized representative in the form of EXHIBIT C attached hereto, and
(iii) the close of business on [DATE], the Expiry Date.
Partial drawings under this Letter of Credit are permitted. Each
drawing hereunder shall permanently reduce the Credit Amount by the amount paid
on such drawing.
This Letter of Credit is subject to the International Standby Practices
(ISP98). This Letter of Credit shall be deemed to be made under the laws of the
State of ____, including Article 5 of the Uniform Commercial Code, and shall, as
to matters not governed by the International Standby Practices (ISP98), be
governed by and construed in accordance with the laws of the State of ____,
excluding any choice of law provisions or conflict of law principles which would
require reference to the laws of any other jurisdiction.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except for the certificate(s) and such sight
draft(s) referred to herein.
Very truly yours,
[BANK]
By:
-----------------------------------
EXHIBIT A
DRAWING CERTIFICATE
The undersigned, a duly authorized representative of PECO Energy
Company ("PECO"), as the beneficiary of the Irrevocable Letter of Credit No. ___
(the "Letter of Credit") issued by [BANK] (the "Bank") for the account of
[ ] ("Tenaska"), certifies as follows to the Bank:
1. Tenaska and PECO are parties to a Power Purchase Agreement dated
_____, 1999 (the "PPA"). [TENASKA HAS FAILED TO PAY PECO CERTAIN LIQUIDATED
DAMAGES PAYABLE UNDER SECTION 4.02, 8.08, 8.09, 8.10 OR 8.11 OF THE PPA] OR
[TENASKA HAS FAILED TO PAY AN AVAILABILITY ADJUSTMENT DUE UNDER THE PPA.] OR
[THE EXPIRY DATE OF THE LETTER OF CREDIT IS TO OCCUR WITHIN 10 DAYS OF THE DATE
OF THIS DRAWING CERTIFICATE AND THE LETTER OF CREDIT HAS NOT BEEN RENEWED OR
REPLACED BY AN ACCEPTABLE CREDIT SUPPORT (AS DEFINED IN THE PPA).]
2. PECO is entitled to make a drawing under the Letter of Credit in the
amount of $_____. The amount of drawing to be made hereunder does not exceed (a)
the amount of the obligations due and payable by Tenaska to PECO, or (b) the
amount required to be posted as cash collateral upon the expiration of an
Acceptable Credit Support to PECO, pursuant to the PPA.
3. All payments to PECO under the Letter of Credit shall be made by
wire transfer of immediately available funds to PECO at [PECO'S BANK], for
credit to account no. _____.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
-----------------------------------
Name:
Title:
EXHIBIT B
CONSENT TO REDUCTION OF LETTER OF CREDIT
Reference is made to the Irrevocable Stand-by Letter of Credit No. ____
(the "Letter of Credit") issued by [BANK] for the account of [TENASKA]. The
undersigned beneficiary of such Letter of Credit hereby consents to a permanent
reduction in the amount available to be drawn under the Letter of Credit,
effective immediately, to $_____________.
IN WITNESS WHEREOF, PECO Energy Company has executed and delivered this
certificate as of the ____ day of __________.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
-----------------------------------
Name:
Title:
EXHIBIT C
CONSENT TO TERMINATION OF LETTER OF CREDIT
Reference is made to the Irrevocable Stand-by Letter of Credit No. ____
(the "Letter of Credit") issued by [BANK] for the account of [TENASKA]. The
undersigned beneficiary of such Letter of Credit hereby consents to the
termination of the Letter of Credit, effective immediately, and is surrendering
the Letter of Credit for cancellation.
IN WITNESS WHEREOF, PECO Energy Company has executed and delivered this
certificate as of the ____ day of __________, 199_.
PECO ENERGY COMPANY,
a Pennsylvania corporation
By:
-----------------------------------
Name:
Title:
ANNEX A-2
FORM OF GUARANTY
This GUARANTY (this "Guaranty") is dated and effective as of
____________, by and between ___________, a ___________ corporation (the
"Guarantor") and PECO ENERGY COMPANY, a Pennsylvania corporation (the
"Beneficiary").
WHEREAS, the Beneficiary and [TENASKA] ("Tenaska") are parties to a
Power Purchase Agreement dated _________, 1999 (as amended from time to time,
the "Power Purchase Agreement") under which Tenaska undertakes to develop a
power plant in Heard County, Georgia, and sell capacity and energy to the
Beneficiary; and
WHEREAS, it is a condition for the Beneficiary [NOT TO TERMINATE THE
POWER PURCHASE AGREEMENT BEFORE THE FINANCIAL CLOSING DATE HAS OCCURRED] OR [NOT
TO TERMINATE THE POWER PURCHASE AGREEMENT BEFORE ALL SIX (6) GENERATING UNITS TO
BE LOCATED AT THE POWER PLANT HAVE ACHIEVED COMMERCIAL OPERATION] OR [ALLOW
TENASKA TO EXTEND THE PERIOD TO CURE A DEFAULT UNDER THE POWER PURCHASE
AGREEMENT BEYOND THE PERIODS SET FORTH IN SECTIONS OF THE POWER PURCHASE
AGREEMENT] that the Guarantor shall have executed and delivered this Guaranty.
(Unless otherwise defined herein, terms defined in the Power Purchase Agreement
shall have such defined meanings when used herein).
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Guarantor hereby agrees with the Beneficiary as
follows:
1. (a) Subject to Section 1(b) below, the Guarantor does hereby
absolutely, irrevocably and unconditionally guarantee and undertake and assure
to the Beneficiary, its successors and assigns, the full, prompt and complete
payment by Tenaska, its successors and assigns (a) the liquidated damages under
Section 4.02 of the Power Purchase Agreement and (b) the Availability
Adjustments, each when due and payable by Tenaska under the Power Purchase
Agreement (all the obligations listed in clauses (a) and (b) above, the
"Obligations"), which undertaking and assurance are unconditional and absolute.
The Guarantor agrees that the undertaking and assurance as set forth herein are
and shall be primary obligations of, and fully and completely enforceable
against, the Guarantor and shall constitute a continuing guaranty of payment and
not a guaranty of collection only and shall remain in full force and effect
until the Obligations are paid in full. The Guarantor acknowledges the receipt
and adequacy of the consideration hereinabove recited and agrees that such
consideration fully supports this Guaranty.
(b) The maximum amount payable under this Guaranty shall be $_______.
2. (a) The obligations of the Guarantor hereunder are primary,
unconditional and absolute, and shall be valid and enforceable regardless of:
(i) the genuineness, validity, regularity, or any future
amendment of, or change in, this Guaranty, the Power Purchase
Agreement, or any other agreement, document or instrument related to
the transactions contemplated hereby or thereby (including, without
limitation, any amendment extending the manner, place or terms of
payment, renewal, or alteration of all or any portion of the
obligations thereunder), or the enforceability of the Power Purchase
Agreement, or any other agreement, document, or instrument related to
the transactions contemplated thereby;
(ii) any action taken or failed to be taken to enforce this
Guaranty or the Power Purchase Agreement or any other Acceptable Credit
Support, or the waiver or consent by the Beneficiary with respect to
any of the provisions thereof;
(iii) any law, regulation or decree now or hereafter in effect
which might in any manner affect any of the terms or provisions of this
Guaranty;
(iv) any bankruptcy, insolvency, reorganization, arrangement,
adjustment, composition, liquidation or the like of Tenaska or the
Guarantor;
(v) any merger or consolidation of Tenaska or the Guarantor
into or with any other Person, or any sale, lease or transfer of any or
all of the assets of Tenaska or the Guarantor to any other Person;
(vi) any circumstance other than indefeasible payment and
performance which might constitute a defense available to, or a
discharge of the Guarantor, or any other surety;
(vii) any sale, transfer or other disposition by the Guarantor
of any direct or indirect interest it may have in Tenaska;
(viii) absence of any notice to, or knowledge by, the
Guarantor of the existence or occurrence of any of the matters of
events set forth in the foregoing subdivisions (i) through (vi); or
(ix) any other circumstance whatsoever;
it being agreed by the Guarantor that its obligations under this Guaranty shall
not be discharged until all Obligations have been paid or performed in full or
the full amount of this Guaranty ($________) has been paid in full.
(b) The Guarantor hereby waives, and agrees that it shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit or
advantage of:
(i) notices, diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time,
change in nature of form of the Obligations, acceptance of security,
release of security, composition or agreement arrived at as to the
amount of, or the terms of, the Obligations, notice of adverse change
in Tenaska's financial condition or any other fact which might
materially increase the risk to the Guarantor) with respect to any of
the Obligations and all other demands
2
whatsoever and waives the benefit of all provisions of law (to the
extent that may be waived under applicable law) which are or might be
in conflict with the terms of this Guaranty; or
(ii) any requirement on the part of the Beneficiary to
mitigate the damages resulting from any default by Tenaska under the
Power Purchase Agreement.
(c) The Guarantor shall not exercise any rights which it may have
acquired by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, or seek any reimbursement from the Beneficiary in
respect of payments made by such the Guarantor hereunder, unless and until the
Guarantor's Share of all of the Obligations shall have been paid to the
Beneficiary and discharged, in full, and if any payment shall be made to the
Guarantor on account of such subrogation or reimbursement rights at any time
when the Obligations shall not have been paid and discharged, in full, each and
every amount so paid shall forthwith be paid to the Beneficiary to be credited
and applied against the Obligations, whether matured or unmatured.
(d) The Beneficiary shall be authorized and empowered to institute any
proceedings in law or equity against the Guarantor.
(e) Except as specifically stated in clauses (b)(i) and (ii) above,
nothing in this Section 2 or elsewhere in this Guaranty shall constitute a
waiver of any defense available to Tenaska under the Power Purchase Agreement,
and any such defense may be asserted by the Guarantor to the same extent that it
may be asserted by Tenaska.
3. In the event that the Beneficiary elects to take proceedings
hereunder directly against the Guarantor, it shall endeavor to notify the
Guarantor as soon after making such election as is reasonable and practicable to
the Beneficiary. The foregoing undertaking does not impair the unconditional and
absolute nature of this Guaranty and the delivery of such notification does not
constitute a condition to the liability of the Guarantor hereunder, nor shall
any failure to give such notice constitute a defense to or otherwise discharge
the Guarantor's obligations hereunder.
4. The terms of the Guaranty shall be construed according to the laws
of the State of ______, excluding any choice of law provisions or conflict of
law principles that would require reference to the laws of any other
jurisdiction.
5. The terms and provisions of this Guaranty shall be binding upon and
inure to the benefit of the successors, assigns and legal representations of the
parties hereto. Except as hereinafter provided, Guarantor may not assign this
Guaranty or any of its rights or obligations hereunder, without the prior
written consent of the Beneficiary.
6. The Guarantor hereby makes unconditionally the following
representations and warranties:
(a) The Guarantor is a corporation duly organized and in good standing
under the laws of the jurisdiction specified for the Guarantor in the first
paragraph of this Guaranty.
3
(b) The Guarantor has the corporate authority to execute, deliver and
fully perform its obligations under this Guaranty and all resolutions, if any,
of directors and shareholders required to authorize execution and delivery of
this Guaranty have been obtained.
(c) This Guaranty constitutes a valid, legal and binding obligation of
the Guarantor enforceable in accordance with its terms.
(d) Execution of and performance by the Guarantor under this Guaranty
does not require the consent or approval of any Person or governmental agency
and does not conflict with or breach any terms or conditions of:
(i) any order, writ or decree of any court or governmental
authority by which said the Guarantor is bound, or
(ii) any agreement to which the Guarantor is a party or by
which it is bound.
7. Any notice under this Guaranty shall be in writing and shall be
deemed given on the earlier of (i) the date received by the addressee when
delivered by hand, or (ii) the day following the date sent by telecommunication
means to the numbers set forth below, or (iii) five (5) days after mailing by
prepaid registered United States mail, directed to the post office address of
the parties as follows (PROVIDED THAT, at any time when there is a strike
affecting delivery of either United States mail, all such deliveries shall be
made by hand or by telecommunications):
GUARANTOR:
Attention:
Telephone:
Telecopy:
BENEFICIARY: PECO ENERGY COMPANY.
Attention:
Telephone:
Telecopy:
Any party may from time to time designate as the address for
notification under this Guaranty any other address of its choice by delivery of
registered mail to the other Parties.
4
IN WITNESS WHEREOF, each of the Guarantor and the Beneficiary have
caused this Guaranty to be executed and delivered in their respective names and
on their behalf, as of the date first above written.
GUARANTOR:
By:
-----------------------------------
Name:
Title:
BENEFICIARY:
PECO ENERGY COMPANY
By:
-----------------------------------
Name:
Title:
5
EXHIBIT 1.01
COLONIAL PIPELINE COMPANY
3.32.1 SPECIFICATIONS FOR FUNGIBLE LOW SULFUR DIESEL FUEL
Issue No. 3: Grade 74
Cancels Previous Issues of Grade 74
---------------------------------------------------------------------------------------------------------------
Test Results
ASTM Test
Produce Property Method Minimum Maximum Note
------------------------------------- ------------------- ------------------ -------------- -----------
Gravity API D287 30 Report
------------------------------------- ------------------- ------------------ -------------- -----------
Flash Point, (0)F
Xxxxxx-Xxxxxx D93 130
------------------------------------- ------------------- ------------------ -------------- -----------
Distillation, (0)F D86
50% Report
90% 540 640
End Point 690
------------------------------------- ------------------- ------------------ -------------- -----------
*Color ASTM D1500, D6045 2.5
------------------------------------- ------------------- ------------------ -------------- -----------
Color Visual Undyed
------------------------------------- ------------------- ------------------ -------------- -----------
Viscosity, cSt @ 38(0)C (100(0)F) D445 2.0 3.6
------------------------------------- ------------------- ------------------ -------------- -----------
Xxxx Xxxxx X00 0
------------------------------------- ------------------- ------------------ -------------- -----------
Xxxxx Xxxxx X0000 2
------------------------------------- ------------------- ------------------ -------------- -----------
Corrosion, 3 hrs. @ 50(0)C D130
(122(0)F)
------------------------------------- ------------------- ------------------ -------------- -----------
Total Sulfur, wt. % D1266
D2622
or D4294 0.047 3
------------------------------------- ------------------- ------------------ -------------- -----------
tane Number D613 40 4
------------------------------------- ------------------- ------------------ -------------- -----------
Cetane Index D976 42
------------------------------------- ------------------- ------------------ -------------- -----------
Ash, wt. % D482 0.01
------------------------------------- ------------------- ------------------ -------------- -----------
Carbon Residue: Ramsbottom
on 10% Bottom D524 0.35
------------------------------------- ------------------- ------------------ -------------- -----------
BS&W, vol. % D1796
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Test Results
ASTM Test
Produce Property Method Minimum Maximum Note
------------------------------------- ------------------- ------------------ -------------- -----------
or equivalent < 0.05
------------------------------------- ------------------- ------------------ -------------- -----------
Thermal stability, 90 minutes
150(0)C Pad rating,
DuPont scale 7
OR
Oxidation stability, mg/100 ml D2274 2.5
------------------------------------- ------------------- ------------------ -------------- -----------
Haze rating @ 25(0)C (77(0)F) D4176
Procedure 2 2
---------------------------------------------------------------------------------------------------------------
NOTES:
1. Concentration and type of additives permitted only as approved by
Colonial.
2. This schedule denotes the fluidity of the distillate at the time and
place of use.
Pour Point--September, October, November, December,
January, February, March: Maximum-18(0)C (0(0)F)
Pour Point--April, May, June, July, August: Maximum-12(0)C (+10(0)F)
Cloud Point-- September, October, November, December,
January, February, March: Maximum-9(0)C (+15(0)F)
Cloud Point--April, May, June, July, August: Maximum-7(0)C (+20(0)F)
3. Test method D2622 or D4294 must be used to certify sulfur content at
origin locations.
4. When cetane number by test method D613 is not available, test method
D976 or D4737 can be used as an approximation. 40CFR80.29 allows a
minimum cetane index of 40 by ASTM D976-80 as an approximation of
aromatics content. Minimum cetane index of 42 accounts for +/-2
accuracy of the cetane index methods in approximating cetane number and
satisfies 40CFR80.29 as well.
EXHIBIT 2.01
--------------------------- ------------------------------- -------------------------- ------------------------------
1 2 3
--------------------------- ------------------------------- -------------------------- ------------------------------
EPC Construction Contractor Xxxxxx Construction Corporation TIC The Industrial Company Xxxxxxx Industrial Corporation
--------------------------- ------------------------------- -------------------------- ------------------------------
Parent Company X.X. Xxxxxx Company TIC The Industrial Company Kiewit
--------------------------- ------------------------------- -------------------------- ------------------------------
EPC Engineer Utility Engineering Corporation Xxxxx & XxXxxxxxx Xxxx & Associates Inc.
--------------------------- ------------------------------- -------------------------- ------------------------------
EXHIBIT 3.06
FORM OF LETTER OF CREDIT
IRREVOCABLE STAND-BY LETTER OF CREDIT NO.________
[BANK]
TENASKA GEORGIA PARTNERS, L.P.,
[ADDRESS]
[Date]
Dear Sirs:
For the account of [PECO]. ("PECO"), we hereby authorize you to draw on
us at sight $175,000,000 (the "Credit Amount").
Funds under this Letter of Credit are available to you against your
sight draft drawn on us and accompanied by a certificate purportedly signed by
your authorized representative in the form of EXHIBIT A attached hereto.
Presentation of such draft and certificate shall be made at our office
located at ________________, ________________, Attention: ______________ or at
any other location _______________ which may be designated by us by written
notice delivered to you. The Draft must be marked "Drawn under [BANK]
Irrevocable Letter of Credit No. ________________". We hereby agree that the
draft drawn under and in compliance with the terms of this Letter of Credit will
be duly honored by us upon due delivery of the draft and certificate if
presented at such office on or before the termination date hereof.
Payment under this Letter of Credit shall be made in accordance with
the payment instructions set forth in your certificate in the form of EXHIBIT A.
The draft and certificate shall be personally delivered to us.
This Letter of Credit shall automatically terminate and be delivered to
us for cancellation upon the earliest of (i) the making by you of a drawing
hereunder in the full Credit Amount and (ii) the close of business on [DATE],
the Expiry Date.
Partial drawings under this Letter of Credit are not permitted.
This Letter of Credit is subject to the International Standby Practices
(ISP98). This Letter of Credit shall be deemed to be made under the laws of the
State of ____, including Article 5 of the Uniform Commercial Code, and shall, as
to matters not governed by the International Standby Practices (ISP98), be
governed by and construed in accordance with the laws of the
State of ____, excluding any choice of law provisions or conflict of law
principles which would require reference to the laws of any other jurisdiction.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except for the certificate and such sight
draft referred to herein.
Very truly yours,
[BANK]
By:
-----------------------------------
2
EXHIBIT A
DRAWING CERTIFICATE
The undersigned, a duly authorized representative of TENASKA GEORGIA
PARTNERS, L.P. ("Tenaska"), as the beneficiary of the Irrevocable Letter of
Credit No. ___ (the "Letter of Credit") issued by [BANK] (the "Bank") for the
account of [ ] ("PECO"), certifies as follows to the Bank:
1. Tenaska and PECO are parties to a Power Purchase Agreement
dated _____, 1999 (the "PPA"). PECO has notified Tenaska that it
intends to exercise its right to terminate the PPA effective on the
20th anniversary of the Date of Commercial Operation (the "Termination
Date"). PECO has failed to pay part or all of $175,000,000 that was due
from PECO on the Termination Date.
2. Tenaska is entitled to make a drawing under the Letter of
Credit in the amount of the drawing of $__________________, which is
the amount that PECO failed to pay on the Termination Date.
3. Payment to Tenaska under the Letter of Credit shall be made
by wire transfer of immediately available funds to Tenaska at
[TENASKA'S BANK], for credit to account no. _____.
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc.
Managing General Partner
By:
-------------------------------------
Name:
Title:
EXHIBIT 5.01
PERFORMANCE TEST GUIDELINES AND PROCEDURES
Annual Capacity Tests shall be conducted by Tenaska in accordance with
Georgia PPA Capacity Test Procedures.
Temperature measurements for the Capacity Test will comply with
ASME Performance Test Codes PTC 19.3, PTC 22 and PTC 46.
CAPACITY TEST PROCEDURE
1.0 INTRODUCTION
Following is the procedure for conducting the Capacity Test. The Plant
is comprised of gas turbine generators and associated plant equipment.
2.0 CAPACITY TEST
2.1 CAPACITY TEST OBJECTIVE
The objective of the Capacity Test is to determine the net electrical
output capability of the plant to be used in establishing Contract
Capacity.
2.2 CAPACITY TEST PERIOD
The Capacity Test will be conducted over a minimum 4-hour operating
period. As-tested plant capacity will be based on data recorded during
two 60-minute intervals. Results from each of the two one-hour
intervals will be corrected to the rating conditions shown in Table
2-1. The evaporative cooler effectiveness will be calculated from data
taken during the test period, unless the ambient temperature and wet
bulb temperatures are outside the limits specified in Section 2.3.2.2.
If necessary, the Evaporative Cooler Effectiveness Testing can be
performed independent of the Capacity Test at a time mutually agreeable
to PECO and Tenaska. The effectiveness will be used to establish the
standard condition compressor inlet temperature (CIT).
2.3 CAPACITY TEST PROTOCOL
This section outlines the detailed procedures for conducting the
Capacity Test.
2.3.1 RESPONSIBILITIES
Tenaska will have overall responsibility for conducting the Capacity
Test and for directing operation of the unit during testing. A Test
Coordinator will be assigned by Tenaska. The responsibilities during
and following the conclusion of the Capacity Test will include the
following:
-- Collection of test data.
-- Input manual measurements and calculate specified performance
parameters for test conditions.
-- Preparation and submittal of a preliminary report to PECO
within 48 hours of completing the Capacity Test.
-- Preparation and submittal of the final report to PECO two
weeks after completion of the test.
2.3.2 TEST CONDITIONS
2.3.2.1 GENERAL. General test conditions are as follows:
-- The rating parameters for the Capacity Test herein referred to
as Standard Operating Conditions are shown in Table 2-1.
-- Since test conditions will differ from those shown in Table
2-1, corrections will be calculated and applied to test data.
-- To increase the potential for utilizing the evaporative
cooler, the continuous two-hour test period will be selected
during the afternoon hours.
-- If the Evaporative Cooler Effectiveness Testing cannot be
performed due to not meeting the conditions stated in 2.3.2.2,
the Evaporative Cooler Effectiveness Testing will be conducted
at a time mutually agreeable to Tenaska and PECO. For the
initial Capacity Test (if an Evaporative Cooler Effectiveness
Testing has not already been performed), the manufacturer's
design evaporative cooler effectiveness will be used for the
interim to establish the standard condition CIT as defined in
Section 2.7.1. For subsequent Capacity Tests, the evaporative
cooler effectiveness determined in the previous Capacity Test
will be used for the interim to establish the standard CIT as
defined in Section 2.7.1.
2.3.2.2 PREREQUISITES. The following items represent prerequisites for the
initiation of testing:
-- The gas turbine compressor section will be inspected and
cleaned following manufacturers' instructions, if deemed
necessary by Tenaska.
-- The gas turbine Evaporative Cooler Effectiveness Testing will
be performed only when: (1) the dry bulb temperature exceeds
60oF, and (2) there is a minimum of 10oF difference between
the wet bulb and dry bulb temperatures.
TABLE 2-1
STANDARD OPERATING CONDITIONS
---------------------------------- --------------------------------------------
PARAMETER VALUE
---------------------------------- --------------------------------------------
Ambient Dry Bulb Temperature, 94
DEGREES-F
---------------------------------- --------------------------------------------
Compressor Inlet Temperature, To be determined based on the Evaporative
DEGREES-F (each gas turbine) Cooler Effectiveness Testing described in
Section 2.7.1.
---------------------------------- --------------------------------------------
Barometric Pressure, Psia 14.29
---------------------------------- --------------------------------------------
Ambient Wet Bulb Temperature, oF 74
---------------------------------- --------------------------------------------
Fuel Natural Gas
---------------------------------- --------------------------------------------
Generator Power Factor 0.95 leading to 0.95 lagging
---------------------------------- --------------------------------------------
2.3.2.3 PRETEST ACTIVITIES. The following describe pre-test activities that
must be completed prior to beginning the Capacity Test:
-- Notify PECO as required in Section 5.01(c) of the Power
Purchase Agreement. Notify Local Utility prior to start of the
test.
-- The plant shall be brought on-line and the load increased to
the desired load conditions, which is gas turbine base firing
mode and evaporative cooler in service if conditions are
right.
-- Once the gas turbine reaches the exhaust temperature control,
the plant shall be allowed to stabilize and reach steady-state
conditions. The gas turbine will be considered to be in a
steady-state condition when the turbine exhaust temperatures
do not change more than 5oF in 15 minutes.
-- Determine instrumentation status.
-- Check critical cycle parameters via the plant control system
and the gas turbine control system to resolve parameters which
demonstrate significant variance to expected values.
-- After the period of time allowed for unit stabilization has
elapsed, recording of test data shall begin, as determined by
the Test Coordinator.
2.3.2.4 CAPACITY TEST. The plant will be operated with the following activities
to be performed during the Capacity Test:
-- Equipment status will be determined in order to establish that
all necessary systems and equipment are operational and
functional prior to the commencement of the test. Changes in
equipment status and the time of status change will be
recorded in the operator log. A copy of the operator log will
be provided to the test coordinator by operations personnel
during the Capacity Test.
-- The facility and equipment will be operated within normal
design limits of the equipment and in a manner consistent with
good utility practices for continuous long-term operation.
-- During testing the plant will be operated with all normally
operated auxiliaries in service.
-- The gas turbine will be operated on natural gas and at the
manufacturers rating for continuous service.
-- The Test Coordinator will announce the start of the Capacity
Test to all test personnel.
2.3.2.5 ONE-HOUR RUNS. Each one-hour run will be conducted at the desired load
conditions determined by the Test Coordinator prior to the test.
The following activities will be performed during each one-hour run:
-- The Test Coordinator will announce the start of each one-hour
run.
-- Manual data will be taken at intervals of 10 minutes.
-- Automated data collection will occur at pre-defined intervals
as shown in Table 2-2.
-- The Test Coordinator will announce the end of each one-hour
run.
2.4 DATA COLLECTION
The data collected during the Capacity Test shall include unit
capacity, the test start and stop times, and output data. The data
collected during each one-hour run period shall include the following:
-- Data taken manually from temporary test instrumentation, if
applicable.
-- Data for plant instruments via the plant data acquisition
system (DAS).
-- Record of all alarms and logs from the DAS.
-- Data from plant instruments from the turbine control systems.
Access to data collected manually and data collected through the DAS
will be controlled by Tenaska and will provide all data necessary for
determining the corrected net plant capacity. At the conclusion of the
Capacity Test, preliminary sets of pertinent data will be provided to
PECO. Final performance data will be provided in the Test Report.
If the test is suspended due to anything outside the control of
Tenaska's responsibilities such as interruption of service from Georgia
Transmission Corporation or the gas supplier, the duration of the
Capacity Test will be extended as mutually agreed upon by Tenaska and
PECO.
2.5 TEST DATA REQUIREMENTS
The measurements required to determine the level of achievement during
the Capacity Test are listed in Table 2-2. Additional measurements will
be monitored in order to confirm normal plant performance.
2.5.1 PERFORMANCE MONITORING AND MEASURING FREQUENCY
Where practical, those parameters listed in Table 2-2 will be monitored
using the DAS. The data will be collected as shown in the Table. Data
collected through the DAS will be logged and printed on one-minute
intervals. The manual data will be collected on ten-minute intervals
during each one-hour period.
TABLE 2-2
REQUIRED PERFORMANCE TEST MEASUREMENTS LOG
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
INSTRUMENTATION MEAS. SAMPLING TEST
DESCRIPTION INSTRUMENT/REMARKS 3 METHOD 2 METHOD FREQUENCY REQT.1
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
ELECTRICAL POWER MEASUREMENTS
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Net Plant Output (HV custody transfer
meters), kWh's/Pulse Power Meters (2)3 Plant Instrument DAS N/A C
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Gross Gas Turbine Electrical Output, MW GT reading at generator terminals (6)3 Plant Instrument DAS 1 Minute C
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Gross Gas Turbine Electrical Output, MVar GT reading at generator terminals (3)3 Plant Instrument DAS 1 Minute
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Auxiliary Power consumption, kW 4160V Switchgear 1 & 2 (2)3 Plant Instrument DAS 1 Minute B
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
CORRECTION MEASUREMENTS
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
CT Compressor Inlet Temperature, oF Min. of 2 temp indicators per GT (12+)3 Plant or Test DAS or 1 or 10 C
Instrument Manual Minutes
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Ambient Dry Bulb Temperature, oF RTD Plant or Test DAS or 1 or 10 C
Instrument Manual Minutes
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Ambient Wet Bulb Temperature, oF Psychrometer Plant or Test DAS or 1 or 10 C
Instrument Manual Minutes
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
Ambient Barometric Pressure, psia Barometer Plant or Test DAS or 1 or 10 C
Instrument Manual Minutes
----------------------------------------- --------------------------------------- ---------------- ----------- ---------- ------
NOTES:
1 Test requirements refers to whether the measurement will be used for correction calculations or used for backup measurement
C = Used in calculation of net plant capacity; B = Backup measurement
2 DAS = Data acquisition system
3 Number of primary instruments if greater than one
--------------------------------------------------------------------------------------------------------------------------------
2.5.2 AMBIENT CONDITIONS REQUIREMENTS
The rating conditions (Table 2-1) contain ambient weather conditions at
the plant which are the basis for performance corrections and for
determining the evaporative cooler effectiveness. Tenaska will use
plant and test instrumentation as required to measure compressor inlet
temperature, ambient dry bulb temperature, ambient wet bulb
temperature, and ambient barometric pressure.
2.6 INSTRUMENTATION/DATA ACQUISITION
The test procedures described in these documents are based on use of
plant instrumentation, supplemented with any special test
instrumentation required.
To assure the best possible accuracy with the available
instrumentation, the following procedures should be used:
-- Instrumentation to be used to measure the parameters shown in
Table 2-2 shall be calibrated as near as practical to the
initiation of the test. Calibration records will be prepared
at the time of calibration.
-- Two independent measurements will be taken for critical data
points when possible in order to facilitate detection of
instrument reading errors and to provide backup
instrumentation in case of on-line device malfunctions during
the course of the test.
If during the test run, or during the evaluation of the data after the
run, obvious errors are found in the recorded data, those readings will
be disregarded. The test run will be considered valid provided Tenaska
and PECO agree to evaluation using data considered to be correct.
2.6.1 POWER MEASUREMENTS
Net plant electrical output will be measured using the Utility (Georgia
Transmission Corporation) kilowatt-hour meters on the high side of the
generator step-up transformers.
Auxiliary power will be calculated for use in the plant corrections and
will be measured as a backup on the low side of the auxiliary
transformer.
Individual gas turbine power output will be measured for use in plant
corrections.
2.6.2 AMBIENT CONDITION MEASUREMENTS
Ambient conditions used to correct for variations in the nominal
operating conditions will be measured with plant and test
instrumentation as described in Table 2-2. Compressor inlet temperature
will be measured with a minimum of two calibrated RTD's in the
compressor inlet of the gas turbine. Ambient dry bulb and wet bulb
temperatures, and barometric pressure will be measured with test
instruments and plant weather instrumentation.
2.7 EVALUATION OF TEST RESULTS
Each measured parameter collected by the DAS during the test period
will be averaged for each of the one-hour tests. Data collected
manually will also be based on 10-minute intervals. From this data, the
ten-minute logged data will be averaged into a one-hour average. This
one-hour average will represent the as-tested performance. The
determination of evaporative cooler effectiveness will be based on the
calculation method in Section 2.7.1. The plant capacity will be
determined based on performance calculations using the performance
correction curves provided by the equipment manufacturers.
2.7.1 EVAPORATIVE COOLER EFFECTIVENESS TESTING
For each gas turbine the evaporative cooler effectiveness will be
determined by test data as follows:
X = (DBt - CITt) / (DBt - WBt)
The test evaporative cooler effectiveness will be used to determine the
compressor inlet temperature at Standard Operating Conditions as
follows:
CITSC = DBSC - X (DBSC - WBSC) = 94 - X(20)
where:
X = Tested evaporative cooler effectiveness
DB = Dry bulb temperature, oF
CIT = Compressor inlet temperature, oF
WB = Wet bulb temperature, oF
t = At test conditions
sc = At standard conditions
DBSC = 94 oF
WBSC = 74 oF
2.7.2 AS-TESTED NET PLANT CAPACITY
The as-tested measured values of electrical power are determined from
the gas turbines watt meter readings and the utility meters. The
turbine generator electrical output is considered to be gross
electrical output. The electrical output will be determined as follows:
kWaux = kWGT - kWneta
where:
kWneta = As-tested (Power Metering Equipment)
measured simple cycle net electrical
output, kW. Megawatt-hour pulses will be
summed for each of one-hour period. The
total megawatt-hours will be calculated
and converted to kW.
kWGT = Measured gas turbine electrical output at
generator terminals, kW (the sum of all
gas turbine measurements).
kWaux = Auxiliary electrical consumption
(calculated by difference), including
transformer losses kW.
2.7.3 CORRECTED NET PLANT CAPACITY OUTPUT
The net, as-tested, Capacity output, determined during the test, is
based on plant operating conditions. These operating conditions may be
different from Standard Operating Conditions (Table 2-1). Net capacity
depends on ambient conditions, which are beyond the control of Tenaska.
Because of this, if the values of these conditions are different from
the Standard Operating Conditions, adjustments will be made to the
as-tested generator output to account for these differences.
After the as-tested values for each of the one-hour performance runs
are calculated, the adjustments will be performed. The correction
factors that will be applied to the as-tested gross generator output
include the following:
-- Compressor inlet temperature
-- Barometric pressure
A description of the correction method is as follows:
kWnetc = kWGTc - kWaux
where:
kWnetc = Corrected net plant output, kW
kWGTc = Gas turbine adjusted gross electrical output,
kW (the sum of all corrected gas turbine
outputs with each corrected independently such
that kWGTc=kWGTxCgtkwCITxCgtkwBP for each unit)
kWaux = Auxiliary electrical consumption, including
transformer losses, kW
CgtkwCIT = Gas turbine electrical output correction for
compressor inlet temperature (for each unit)
CgtkwBP = Gas turbine electrical output correction for
barometric pressure
The specific curves used for correcting the Capacity Test to be
provided by manufacturers include: Gas Turbine Output vs CIT and Gas
Turbine Output vs Barometric Pressure.
Corrected net plant output results from the two one-hour performance
runs will be arithmetically averaged and rounded off to the nearest 100
kW. This value will be referred to as Corrected Capacity Test Output.
No correction for measurement uncertainty will be allowed.
2.8 TEST REPORT FORMAT AND REQUIREMENTS
A written test report will document the results of the Capacity Test.
The report will include the following as a minimum:
-- Date and time of test start and finish
-- Description of the conditions of the tests
-- Summary of instrument calibration data
-- Performance data from each of the test runs including data
sheets, DAS printouts and guaranteed emissions
-- Summary sheet tabulating corrected capacity for each 60-minute
test run, an average of the capacity values, and a statement
that reads, (Corrected Capacity Test Output is __________ MW.)
-- A list of any abnormal occurrences that could affect results
of the test
-- Summary of applied corrections and corrected test results
-- Conclusions from test results
The data recorded during the Capacity Test and the calculations of the
results will be included as appendices to the report.
EXHIBIT 8.02
MONTHLY RESERVATION RATE
Contract Year Reservation Rate
(In $/kWm)
1 $3.50
2 [*]
3 [*]
4 [*]
5 [*]
6 [*]
7 [*]
8 [*]
9 [*]
10 [*]
11 [*]
12 [*]
13 [*]
14 [*]
15 [*]
16 [*]
17 [*]
18 [*]
19 [*]
20 [*]
21 [*]
22 [*]
23 [*]
24 [*]
25 [*]
26 [*]
27 [*]
28 [*]
29 $6.00
EXHIBIT 8.03
ENERGY PAYMENTS
--------------------------------------------------------------------------------
Gas Energy Rate Fuel Oil Energy Rate
Contract Year ($/MWh) ($/MWh)
--------------------------------------------------------------------------------
1 $0.16 $1.06
2 [*] [*]
3 [*] [*]
4 [*] [*]
5 [*] [*]
6 [*] [*]
7 [*] [*]
8 [*] [*]
9 [*] [*]
10 [*] [*]
11 [*] [*]
12 [*] [*]
13 [*] [*]
14 [*] [*]
15 [*] [*]
16 [*] [*]
17 [*] [*]
18 [*] [*]
19 [*] [*]
20 [*] [*]
21 [*] [*]
22 [*] [*]
23 [*] [*]
24 [*] [*]
25 [*] [*]
26 [*] [*]
27 [*] [*]
28 [*] [*]
29 $0.56 $1.46
--------------------------------------------------------------------------------
EXHIBIT 17.03(D)
INSURANCE COVERAGES
On and following the Date of Commercial Operation and continuing
throughout the term of this Agreement, Tenaska shall maintain the following
insurance coverages subject to availability on commercially reasonable terms.
1. PROPERTY/BOILER & MACHINERY COVERAGE - Tenaska shall maintain
all-risk property and boiler and machinery coverage on a broad form basis in an
amount equal to the replacement value of the Plant for Contract Years 1 through
15 and equal to or greater than 80% of the replacement value of the Plant
thereafter except for flood, earthquake transit and debris removal perils which
may have lower sublimits.
2. BUSINESS INTERRUPTION COVERAGE - Tenaska shall maintain business
interruption coverage in an amount approximately equal to 12 months of the
Reservation Payments that otherwise would have been owed by PECO under section
8.02 of this Agreement during such 12 month period.
3. COMPREHENSIVE GENERAL LIABILITY COVERAGE - Tenaska shall maintain
comprehensive general liability coverage on a broad form basis for third party
bodily injury/property damage of not less than $1,000,000 each occurrence and ,
$1,000,000 annual aggregate.
4. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY - If Tenaska has any
potential liability with respect to employees, then Tenaska shall maintain
workers' compensation coverage for the relevant state of employment and
employer's liability insurance coverage subject to the statutory limit of
primary bodily injury liability insurance required to support the purchase of
the insurance described in EXHIBIT 17.03(D)(6).
5. AUTOMOBILE LIABILITY - Tenaska shall maintain comprehensive
automobile liability coverage for any owned vehicles, non-owned and hired
vehicles with a combined single limit for bodily injury and property damage of
not less than $1,000,000.
6. UMBRELLA LIABILITY - Tenaska shall maintain excess or umbrella
liability coverage providing limits in excess of the coverages described in
paragraphs 3, 4 and 5 above. The limits of such policy and this excess or
umbrella coverage when combined shall not be less than $15,000,000 each
occurrence and $15,000,000 annual aggregate.
EXHIBIT 17.04(A)
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "CONSENT"), dated as of [ ] among PECO
Energy Company, a Pennsylvania corporation (the "CONSENTING PARTY"), Tenaska
Georgia Partners, L.P., a Delaware limited partnership (the "BORROWER"), and [
], a banking corporation organized and existing under the laws of the [ ] as
agent (together with its successors in such capacity, the "Agent") for the
financial institutions (the "Banks") which are or from time to time may become a
party to the Loan Agreement (as defined below).
RECITALS
WHEREAS, the Borrower proposes to develop, construct, own and operate a
[900] MW natural gas-fired electric generating plant, together with related
facilities at Xxxxxx Xxxxx Xxxx (xxx xxxx xxxxx xx Xxxxxxx 00) near the Town of
Franklin, in Heard County, Georgia (the "PROJECT");
WHEREAS, the Consenting Party and the Borrower have entered into a
Power Purchase Agreement, dated as of [July __, 1999] (the "ASSIGNED AGREEMENT")
pursuant to which the Borrower will sell and the Consenting Party will purchase
the capacity and associated energy from the Project;
WHEREAS, the Borrower, the Agent and the Banks have entered into a
Construction and Term Loan and Reimbursement Agreement, dated as of [ ] (as
amended, restated, modified or otherwise supplemented from time to time, the
"Loan Agreement"), pursuant to which the Banks will make loans and extend other
credit to the Borrower for the purpose of financing the cost of, and providing
certain other credit support for, the construction and operation of the Project
and certain related expenses (the "Loans");
WHEREAS, as security for the Loans and all other obligations under the
Loan Agreement, the Borrower has assigned as security for the Loans and certain
other obligations, all of its right, title and interest in, to and under, and
granted a security interest in, the Assigned Agreement to the Agent pursuant to
the Assignment and Security Agreement, dated as of the date hereof, between the
Borrower and the Agent (as amended, restated, modified or otherwise supplemented
from time to time, the "Security Agreement"); and
WHEREAS, it is a condition precedent to the Banks' obligations to make
the Loans under the Loan Agreement that the Consenting Party execute and deliver
this Consent.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt of which is hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
Section 1 CONSENT TO ASSIGNMENT, ETC.
1.1 CONSENT TO ASSIGNMENT. The Consenting Party (a) consents in all
respects to the pledge and assignment to the Agent of all of the Borrower's
right, title and interest in, to and under the Assigned Agreement pursuant to
the Security Agreement and (b) acknowledges the right, but not the
obligation, of the Agent or a Qualified Agent's Designee (as defined below),
in the exercise of the Agent's rights and remedies under the Security
Agreement, to make all demands, give all notices, take all actions and
exercise all rights of the Borrower in accordance with the Assigned
Agreement, and agrees that in such event the Consenting Party shall continue
to perform its obligations under the Assigned Agreement in accordance with
its terms.
For purposes of this Consent, a "QUALIFIED AGENT'S DESIGNEE" means a
corporation, partnership, joint venture, firm, a person or other legal entity
("PERSON") that is designated by the Agent and that possesses a satisfactory
level of experience in electric power plant operations to operate the Plant for
a period of two hundred seventy (270) days or such longer period of time as may
reasonably be necessary for the Agent to complete foreclosure proceedings upon,
or otherwise obtain title to, the Plant (as defined in the Assigned Agreement)
and to sell the Plant in a commercially reasonably manner to a third party in
order to maximize the sale price.
1.2 SUBSTITUTE OWNER. The Consenting Party agrees that, if the Agent
shall notify the Consenting Party that an event of default under the Loan
Agreement has occurred and is continuing and that the Agent has exercised its
rights (a) to have itself or a Qualified Agent's Designee substituted for the
Borrower under the Assigned Agreement or (b) to sell, assign, transfer or
otherwise dispose of the Assigned Agreement to (i) a Person that possesses a
satisfactory level of experience in electric power plant operations (a
"PERMITTED TRANSFEREE") or (ii) any Person which has acquired a partnership
interest in the Borrower without contravening the terms of the Assigned
Agreement or this Consent, and any other Person under common control with any
of such Persons (each, a "SPONSOR") then the Agent, the Qualified Agent's
Designee, such Permitted Transferee or such Sponsor shall be substituted for
the Borrower under the Assigned Agreement upon the assumption by the Agent,
the Qualified Agent's Designee, such Permitted Transferee or such Sponsor, as
the case may be, of all of the rights and obligations of the Borrower under
the Assigned Agreement pursuant to a written assumption agreement (each a
"SUBSTITUTE OWNER") and that, in such event, the Consenting Party will
continue to perform its obligations under the Assigned Agreement in
accordance with its terms in favor of the Substitute Owner.
Notwithstanding the foregoing, in no event shall a Substitute Owner
be any of the Persons (each, a "DISQUALIFIED PERSON") that the Consenting
Party so designates in accordance with this sentence in writing to the Agent
within ten (10) days of delivery of written notice by the Agent to the
Consenting Party that the Agent intends to seek a purchaser for the Plant
following an event of default under the Loan Agreement, provided that (i) the
Consenting Party may only designate up to three (3) Disqualified Persons
(together with any Persons under common control with any such Disqualified
Persons) but only to the extent that the Consenting Party has determined in
good faith (and certified in writing to the Agent) that such Disqualified
Person is a competitor of the Consenting Party in the sale, brokering or
marketing of electrical energy or capacity and that the sale, assignment or
other transfer of the Plant to such Disqualified Person would be detrimental
to the Consenting Party's competitive interests in the sale, brokering or
marketing of electrical energy and capacity and (ii) in no event shall the
Consenting Party
3
designate any of the Sponsors as a Disqualified Person. No Person (other than
the Agent, the Agent's Qualified Designee or a Sponsor) that otherwise
qualifies as a Substitute Owner pursuant to this Section 1.2 shall be a
Substitute Owner for purposes of this Consent until eleven (11) days after
the Agent has delivered to the Consenting Party the above written notice.
1.3 RIGHT TO CURE. The Consenting Party agrees that in the event of
a default by the Borrower in the performance of any of its obligations under
the Assigned Agreement, or upon the occurrence or non-occurrence of any event
or condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both,
enable the Consenting Party to terminate or suspend its obligations or
exercise any other right or remedy under the Assigned Agreement or under
applicable law (hereinafter a "DEFAULT"), the Consenting Party will continue
to perform its obligations under the Assigned Agreement and will not exercise
any such right or remedy until it gives written notice of such default to the
Agent (a "Default Notice") and, as set forth in Section 14.03(b) and (c) of
the Assigned Agreement, affords the Agent, the Qualified Agent's Designee and
the Banks a period to cure such default. Such cure period will be no less
than thirty (30) days (in the case of a monetary default) and seventy-five
(75) days (in the case of a non-monetary default) beginning upon the later of
(a) the Agent's receipt of the Default Notice and (b) the termination of the
Borrower's right to cure such default under the Assigned Agreement, provided
that in the event that a Substitute Owner assumes the rights and obligations
of the Borrower under the Assigned Agreement pursuant to a written assumption
agreement (a copy of which is provided to the Consenting Party by the later
of (i) sixty (60) days after receipt of the Default Notice and (ii) the
termination of the Borrower's right to cure such default under the Assigned
Agreement), such Substitute Owner shall have forty-five (45) days from the
effective date of the assumption of the rights and obligations of the
Borrower under the Assigned Agreement to cure such default or if such default
is a non-monetary default, such longer period as is required so long as such
Substitute Owner has commenced and is diligently pursuing appropriate action
to cure such default; provided, however, that if such Substitute Owner is
prohibited from curing any such default by any process, stay or injunction
issued by any governmental authority or pursuant to any bankruptcy or
insolvency proceeding involving the Borrower, the Agent, the Qualified
Agent's Designee, the Banks or such Substitute Owner, then the time periods
specified in this Section 1.3 for curing a default shall be extended for the
period of such prohibition. In no event shall the cure rights provided in
this Section 1.3 continue beyond (x) twelve (12) calendar months from the
date of the Default Notice in the case of a non-monetary default (unless the
Borrower or the Agent, the Qualified Agent's Designee or the Banks post
$10,000,000 in Acceptable Credit Support (as defined in the Assigned
Agreement), in which case the cure rights provided in this Section 1.3 shall
extend beyond such twelve (12) calendar months) or (y) four (4) calendar
months from the date of the Default Notice in the case of a monetary default.
1.4 NO AMENDMENTS. The Consenting Party will not, without the prior
written consent of the Agent, enter into any consensual cancellation or
termination of the Assigned Agreement, or assign or otherwise transfer any of
its right, title and interest thereunder or consent to any such assignment or
transfer by the Borrower, provided that the Consenting Party may assign the
Assigned Agreement without the consent of the Agent in the event that (i) the
Consenting Party sells or otherwise transfers its power marketing business to
a buyer or transferee whose senior unsecured public debt is rated by Xxxxx'x
Investor Services, Inc. or
4
Standard & Poors (each, a "RATING AGENCY") at not less than the comparable
rating of the Consenting Party's unsecured senior debt at the time of such
transfer and (ii) such Rating Agency has confirmed in writing delivered to
the Agent that the senior unsecured public debt rating of such buyer or
transferee shall remain in effect following the assumption of the Assigned
Agreement by such buyer or transferee. The Consenting Party will not enter
into any material amendment, supplement or other modification of the Assigned
Agreement (an "AMENDMENT") until after the Agent has been given ten (10) days
(excluding Saturdays, Sundays and any days which are a legal holiday in New
York or any days on which banking institutions are authorized or required by
law or government action to close) prior written notice of the proposed
Amendment by the Borrower (a copy of which notice will be provided to the
Consenting Party by the Borrower), and will not then enter into such
Amendment if the Consenting Party has, within such ten (10) day period,
received a copy of (i) the Agent's objection to such Amendment or (ii) the
Agent's request to the Borrower for additional information with respect to
such Amendment.
1.5 NO LIABILITY. The Consenting Party acknowledges and agrees that
neither the Agent, the Qualified Agent's Designee or the Banks shall have any
liability or obligation to the Consenting Party under the Assigned Agreement
as a result of this Consent or the assignment of the Assigned Agreement to
the Agent as security for the Loans, nor shall the Agent, the Qualified
Agent's Designee or the Banks be obligated or required to (a) perform any of
the Borrower's obligations under the Assigned Agreement, except, in the case
of the Agent or the Qualified Agent's Designee, during any period in which
the Agent or the Qualified Agent's Designee is a Substitute Owner pursuant to
Section 1.2, in which case (i) the obligations of such Substitute Owner shall
be no more than that of the Borrower under such Assigned Agreement, and (ii)
the sole recourse of the Consenting Party shall be to such Substituted Owner
and its interest in the Project, or (b) take any action to collect or enforce
any claim for payment assigned as security for the Loans.
1.6 PERFORMANCE UNDER ASSIGNED AGREEMENT. The Consenting Party shall
perform and comply with all material terms and provisions of the Assigned
Agreement to be performed or complied with by it and shall maintain the
Assigned Agreement in full force and effect in accordance with its terms and
with all of the Consenting Party's rights and remedies thereunder, subject to
this Consent.
1.7 DELIVERY OF NOTICES. The Consenting Party shall deliver to the
Agent, concurrently with the delivery thereof to the Borrower, a copy of each
notice, request or demand given by the Consenting Party pursuant to the Assigned
Agreement.
1.8 ACKNOWLEDGEMENTS. The Consenting Party agrees to execute such
acknowledgments or other similar instruments as the Agent shall reasonably
request in connection with the transactions provided for in this Consent.
Section 2 PAYMENTS UNDER THE ASSIGNED AGREEMENT
2.1 PAYMENTS. The Consenting Party will pay all amounts payable by it
under the Assigned Agreement, if any, in the manner required by the Assigned
Agreement directly into the account specified on Exhibit A hereto, or to such
other person or account as shall be specified
5
from time to time by the Agent to the Consenting Party by not less than 7
business days prior written notice. Amounts paid by the Consenting Party
pursuant to Section 9.04 of the Assigned Agreement shall be paid to the Agent in
trust for deposit into a PPA Disputed Payments Account Depositary Agreement in
the form of Exhibit D, to be entered into with the bank specified pursuant to
Section 9.04(b) as the depositary for payments under the Assigned Agreement,
pending resolution of the dispute or the issuance of a final and binding
arbitral award or a binding court order directing a disposition of such funds,
in each case, in accordance with the terms of the Assigned Agreement.
Section 3 REPRESENTATIONS AND WARRANTIES OF THE CONSENTING PARTY
The Consenting Party makes the following representations and warranties
(as of the date hereof), which shall survive the execution and delivery of this
Consent and the Assigned Agreement and the consummation of the transactions
contemplated hereby and thereby.
3.1 ORGANIZATION; POWER AND AUTHORITY. The Consenting Party is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, and is duly qualified, authorized to do
business and in good standing in every jurisdiction in which it owns or leases
real property or in which the nature of its business requires it to be so
qualified, and has all requisite power and authority, corporate and otherwise,
to enter into and to perform its obligations hereunder and under the Assigned
Agreement, and to carry out the terms hereof and thereof and the transactions
contemplated hereby and thereby.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Consenting Party of this Consent and the Assigned Agreement have been duly
authorized by all necessary corporate action on the part of the Consenting Party
and do not require any approval or consent of any holder (or any trustee for any
holder) of any indebtedness or other obligation of (a) the Consenting Party or
(b) any other person or entity, except approvals or consents which have
previously been obtained.
3.3 EXECUTION AND DELIVERY; BINDING AGREEMENTS. Each of this Consent
and the Assigned Agreement is in full force and effect, has been duly executed
and delivered on behalf of the Consenting Party by the appropriate officers of
the Consenting Party, and constitutes the legal, valid and binding obligation of
the Consenting Party, enforceable against the Consenting Party in accordance
with its terms except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and (b) general equitable principles
(whether considered in a proceeding in equity or at law).
3.4 LITIGATION. There is no litigation, action, suit, proceeding or
investigation pending or (to the best of the Consenting Party's knowledge)
threatened against the Consenting Party before or by any court, administrative
agency, arbitrator or governmental authority, body or agency which, if adversely
determined, individually or in the aggregate, (a) is reasonably likely to have a
materially adverse effect upon the performance by the Consenting Party of its
obligations hereunder or under the Assigned Agreement, or which could modify or
otherwise adversely affect the Approvals (as defined in Section 3.6), (b)
questions the validity, binding
6
effect or enforceability hereof or of the Assigned Agreement, any action taken
or to be taken pursuant hereto or thereto or any of the transactions
contemplated hereby or thereby or (c) is reasonably likely to have a material
adverse effect upon (i) the business, operations, properties, assets, or
condition (financial or otherwise) of the Consenting Party, (ii) the ability of
the Consenting Party to perform under the Assigned Agreement or this Consent,
(iii) the business, operations, properties, assets, prospects or condition
(financial or otherwise) of the Project, (iv) the value, validity, perfection
and enforceability of the liens granted to the Agent under the Security
Agreement and other security documents or (v) the ability of the Agent or the
Banks to enforce any of their material rights and remedies under the Assigned
Agreement or this Consent (collectively, a "MATERIAL ADVERSE EFFECT").
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. The Consenting Party is not
in violation of its charter or by-laws, and the execution, delivery and
performance by the Consenting Party of this Consent and the Assigned Agreement
and the consummation of the transactions contemplated hereby and thereby will
not result in any violation of, breach of or default under any term of its
charter or by-laws, or of any contract or agreement to which it is a party or by
which it or its property is bound, or of any license, permit, franchise,
judgment, writ, injunction, decree, order, charter, law, ordinance, rule or
regulation applicable to it, except for any such violations which, individually
or in the aggregate, would not have a Material Adverse Effect on the Consenting
Party.
3.6 GOVERNMENT CONSENT. No consent, order, authorization, waiver,
approval or any other action, or registration, declaration or filing with,
any person, board or body, public or private (collectively, the "APPROVALS"),
is required to be obtained by the Consenting Party in connection with the
execution, delivery or performance of the Assigned Agreement or the
consummation of the transactions between the Borrower and the Consenting
Party contemplated thereunder, except as listed in Exhibit B hereto. All such
Approvals listed on Exhibit B, except for those set forth in Part II thereof
(the "DEFERRED APPROVALS"), are Final (as defined below). An Approval shall
be "FINAL" if it has been validly issued, is in full force and effect, is not
subject to any condition (other than compliance with the terms thereof), does
not impose restrictions or requirements inconsistent with the terms of the
Assigned Agreement, and is final and not subject to any appeal. The
Consenting Party reasonably believes that each Deferred Approval will be
obtained in the ordinary course of business prior to the time when such
Deferred Approval is required to be Final.
3.7 NO DEFAULT OR AMENDMENT. Neither the Consenting Party nor, to
the best of the Consenting Party's knowledge, any other party to the Assigned
Agreement is in default of any of its obligations thereunder. The Consenting
Party has no existing counterclaims, offsets or defenses against the
Borrower. The Consenting Party and, to the best of the Consenting Party's
knowledge, each other party to the Assigned Agreement have complied with all
conditions precedent to the respective obligations of such party to perform
under the Assigned Agreement. To the best of the Consenting Party's
knowledge, no event or condition exists which would either immediately or
with the passage of any applicable grace period or giving of notice, or both,
enable either the Consenting Party or the Borrower to terminate or suspend
its obligations under the Assigned Agreement. The Assigned Agreement has not
been amended, modified or supplemented in any manner.
7
3.8 REGULATION. The Consenting Party acknowledges and agrees that,
notwithstanding any adverse treatment or burdensome rate regulation that may
apply under any applicable federal, state or local law with respect to sales by
the Consenting Party of capacity and energy furnished under the Assigned
Agreement, its obligations to make payments required under the Assigned
Agreement and otherwise to perform its other obligations under the Assigned
Agreement shall not be diminished or reduced and shall remain valid and binding,
in accordance with the terms of the Assigned Agreement.
3.9 NO PREVIOUS ASSIGNMENTS. The Consenting Party has no notice of,
and has not consented to, any previous assignment of all or any part of its
rights under the Assigned Agreement.
3.10 REPRESENTATIONS AND WARRANTIES. All representations, warranties
and other statements made by the Consenting Party in the Assigned Agreement
were true and correct as of the date when made and are true and correct in
all material respects as of the date of this Consent.
Section 4 OPINION OF COUNSEL
The Consenting Party shall deliver an opinion of counsel relating to
the Assigned Agreement and this Consent, which opinion shall be substantially in
the form attached hereto as Exhibit C.
Section 5 CLARIFICATIONS
5.1 "CREDIT DOCUMENTS" AND "FINANCIAL INSTITUTIONS". The Consenting
Party acknowledges and agrees that each of this Consent, the Loan Agreement and
the Security Agreement shall be deemed "CREDIT DOCUMENTS" for all purposes of
the Assigned Agreement. The Consenting Party further acknowledges and agrees
that each of the Banks, the Agent and their respective successors and assigns
shall be deemed "FINANCIAL INSTITUTIONS" for all purposes of the Assigned
Agreement.
5.2 USE OF CASUALTY PROCEEDS. The Consenting Party hereby agrees
that Section ____* of the [Loan Agreement] dealing with the treatment of
casualty insurance proceeds, a copy of which is attached hereto as Exhibit E,
constitutes arrangements satisfactory to the Consenting Party under Section
17.03(c) of the Assigned Agreement. The Consenting Party further agrees that,
notwithstanding anything to the contrary in Section 17.03(c) of the Assigned
Agreement, the Borrower shall not be obligated (and shall not be in default
under the Assigned Agreement for failure) to restore the Plant with any
casualty insurance proceeds resulting from an insured casualty loss to the
Plant if and to the extent that such casualty insurance proceeds are not
released to the Borrower for such purpose in accordance with the provisions
of the [Loan Agreement] attached hereto as Exhibit E. This Section 5.2 shall
not otherwise alter or amend the Borrower's obligations under Section
17.03(c) of the Assigned Agreement.
------------------
* The applicable provision from the [Loan Agreement] will not be materially
less favorable to the Borrower than the provision attached as
Exhibit E hereto.
8
5.3 ASSIGNMENTS BY THE BORROWER. The Consenting Party confirms that
the prohibition on assignments in Section 12.01 of the Assigned Agreement
applies to assignments of the Assigned Agreement by the Consenting Party and
by the Borrower and not to transfers of partnership interests in the
Borrower, provided that PECO does not waive any right it may have to contend
that transfers after the date of this Consent of more than fifty percent
(50%) of the partnership interests of the Borrower to parties that are not in
common control with a Sponsor as of the date of this Consent is prohibited by
Section 12.01.
Section 6 MISCELLANEOUS
6.1 NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed given upon receipt thereof by the party or parties to
whom such notice is addressed, shall refer on their face to the Assigned
Agreement (although failure to so refer shall not render any such notice of
communication ineffective), shall be sent by first class mail, by personal
delivery or by a nationally recognized courier service, and shall be directed as
follows:
If to the Consenting Party:
PECO Energy Company - Power Team
0000 Xxxxxxxxxxx Xxxx.
Xxxx xx Xxxxxxx, XX 00000
Attention: ______________
Fax: (000) 000-0000
If to the Borrower:
Tenaska Georgia Partners, L.P.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
If to the Agent:
[ ]
Attention:
Fax
The above parties may, by notice given hereunder, designate any further or
different addresses to which subsequent notices or other communications shall be
sent.
6.2 GOVERNING LAW; SUBMISSION TO JURISDICTION. (i) THIS
CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
9
THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
(b) Any legal action or proceeding with respect to this
Consent and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Consent, each of the Consenting Party,
the Borrower and the Agent hereby accepts for itself and in respect of
its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any
appeal thereof. Each of the Consenting Party and the Borrower hereby
irrevocably designates, appoints and empowers CT Corporation System,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and
in respect of its property, service of any and all legal process,
summons, notices and documents which may be served in any action or
proceeding. If for any reason such designee, appointee and agent shall
cease to be available to act as such, the Borrower or the Consenting
Party, as applicable, agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this
provision satisfactory to the Agent. Each of the Consenting Party, the
Borrower and the Agent irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to the Consenting Party at its notice address
provided pursuant to Section 6.1 hereof. Each of the Consenting Party,
the Borrower and the Agent hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Consent brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing herein shall affect the right
of the Agent or its designees to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed
against the Consenting Party in any other jurisdiction.
6.3 COUNTERPARTS. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
6.4 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Consent are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Consent.
6.5 SEVERABILITY. In case any provision in or obligation under this
Consent shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10
6.6 AMENDMENT, WAIVER. Neither this Consent nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified except by an
instrument in writing signed by the Consenting Party and the Agent.
6.7 TERMINATION; REFINANCING. (i) The Consenting Party's
obligations hereunder are absolute and unconditional, and the
Consenting Party has no right, and shall have no right, to terminate
this Consent or to be released, relieved or discharged from any
obligation or liability hereunder until all Loans and all other
obligations under the Loan Agreement have been indefeasibly satisfied
in full, notice of which shall be provided by the Agent when all such
obligations have been satisfied (the "TERMINATION NOTICE").
Notwithstanding the foregoing or anything else to the contrary
contained herein, this Consent shall terminate on the earlier of (i)
the termination of the original term of the Loan Agreement or one year
after the termination of the original term of the Loan Agreement if the
Borrower has refinanced the original Loan Agreement through a Rule 144A
financing or (ii) the termination of the Assigned Agreement in
accordance with this Consent.
(b) In the event that the Agent delivers the Termination
Notice to the Consenting Party pursuant to Section 6.7(a) of this
Consent, this Consent shall terminate for all purposes as to the Agent
and the Loan Agreement identified in the first paragraph of this
Consent, and the Agent, the Banks and the Consenting Party shall have
no further rights or obligations under this Consent, provided, however
that the Consenting Party agrees that this Consent shall continue to
apply for the benefit of the Borrower and the providers of any new
credit facilities (the "NEW LENDER") entered into by the Borrower to
replace the Loan Agreement, provided that (i) within five days
following delivery by the Agent to the Consenting Party of the
Termination Notice as provided in Section 6.7(a) the New Lender or an
agent, trustee or other representative of the New Lender, shall have
notified the Consenting Party that it undertakes the prospective
obligations of the "AGENT" under this Consent and Agreement, and shall
have supplied substitute notice address information for Section 6.1 and
new payment instructions (countersigned on behalf of the Borrower) for
Exhibit A, (ii) the amount of the new credit facilities do not exceed
the original amount of commitments by the Banks to make loans and
extend other credit facilities under the original Loan Agreement, and
(iii) thereafter, (a) the term "LOANS" under this Consent and Agreement
will be deemed to refer to the new credit facilities, (b) the term
"AGENT" or "BANKS" shall be deemed to refer to the New Lender or any
agent or trustee for the New Lender, (c) the term "LOAN AGREEMENT"
shall be deemed to refer to the credit agreement, indenture or other
instrument providing for the new credit facilities and (d) the term
"SECURITY AGREEMENT" shall be deemed to refer to the security agreement
under which the Assigned Agreement is assigned as collateral to secure
performance of the obligations of the Borrower under the new credit
facilities.
6.8 SUCCESSORS AND ASSIGNS. This Consent shall be binding upon the
parties hereto and their permitted successors and assigns and shall inure to the
benefit of the parties, their designees and their respective permitted
successors and assigns.
11
6.9 FURTHER ASSURANCES. The parties hereto hereby agree to execute and
deliver all such instruments and take all such action as may be necessary to
effectuate fully the purposes of this Consent.
6.10 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE CONSENTING PARTY, THE BORROWER AND THE AGENT HEREBY IRREVOCABLY
WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT.
6.11 SURVIVAL. All agreements, statements, representations and
warranties made by the Consenting Party herein shall be considered to have
been relied upon by the Agent and the Banks and shall survive the execution
and delivery of this Consent.
6.12 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
the Agent in exercising any right, power or privilege hereunder and no course of
dealing between the Consenting Party and the Agent shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise, or the further exercise, of any
other right, power or privilege hereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Agent would otherwise have.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
12
IN WITNESS WHEREOF, the Consenting Party, the Borrower and the Agent
have caused this Consent to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above written.
PECO ENERGY COMPANY
By:
---------------------------------------
Name:
Title:
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc.
Managing General Partner
By:
---------------------------------------
Name:
Title:
[ ]
as Agent
By:
---------------------------------------
Name:
Title:
Exhibit A to
Consent And Agreement
---------------------
PAYMENT INSTRUCTIONS
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
Exhibit B to
Consent And Agreement
---------------------
APPROVALS
[None]
Exhibit 17(a)-2
Exhibit C to
Consent And Agreement
---------------------
FORM OF OPINION OF COUNSEL
[ ]
Tenaska Georgia Partners, L.P.
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Re: The [900] MW natural gas-fired electric generating facility
located in Heard County, Georgia (the "PROJECT"). -------
Dear Ladies and Gentlemen:
I have acted as [__________] to PECO Energy Company, a Pennsylvania corporation
("PECO"), in connection with the Project to be constructed by Tenaska Georgia
Partners, L.P., a Delaware limited partnership (the "BORROWER"), from which PECO
will purchase capacity and energy pursuant to a Power Purchase Agreement, dated
as of [ ] between the Borrower and PECO (the "AGREEMENT"). This opinion is being
provided in connection with the [describe Financing].
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:
(i) the Agreement;
(ii) the Consent and Agreement of PECO, dated as of the date
hereof (the "CONSENT");
(iii) the Certificate of Incorporation and By-laws of PECO;
and
(iv) general resolutions adopted by the Board of Directors of
PECO authorizing the President, and delegations of authority to other
officers, to take such actions as may be necessary or convenient to
execute contracts and other instruments.
The documents referred to in items (iii) and (iv) above are hereinafter
collectively referred to as the "GOVERNING DOCUMENTS" and the Agreement and the
Consent are hereinafter collectively referred to as the "DOCUMENTS". In
addition, I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such other documents as I have
deemed necessary or appropriate as a basis for the opinions set forth below. As
to all factual matters, I have relied, to the extent appropriate, upon
statements and certificates of PECO officers and appropriate public officials.
In my examination I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. In rendering the opinions
expressed below, I have further assumed, without any independent investigation
or verification of any kind, that each Document I have examined is the valid and
binding obligation of each party thereto other than PECO.
I am admitted to the Bar of the State of Pennsylvania. I express no
opinion as to the law of any jurisdiction other than (i) the laws of the State
of Pennsylvania and (ii) the federal laws of the United States of America.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, I am of the opinion
that:
1. PECO is a corporation duly organized, validly existing and in good
standing under the laws of the State of Pennsylvania. PECO is duly qualified to
transact business in each jurisdiction in which it owns or leases real property
or in which the nature of its business requires it to be so qualified.
2. PECO has full corporate power and authority to enter into, deliver
and perform its obligations under each of the Documents.
3. PECO has taken all necessary corporate action to authorize the
execution, delivery and performance by it of each Document.
4. PECO has duly executed and delivered each Document.
5. Each Document constitutes the valid and binding obligation of PECO
enforceable against PECO in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
6. The execution, delivery and performance by PECO of the Documents
will not (i) contravene any applicable provision of any currently effective law,
regulation, ruling, order or decree of any governmental authority having
jurisdiction over PECO and to which or by which PECO or any of its property or
assets is subject or bound or (ii) violate any provision of the Governing
Documents of PECO. The execution, delivery or performance by PECO of the
Documents do not and will not, to the best of my knowledge, materially conflict
with, result in any material breach of, or constitute a material default under,
or result in the creation or imposition of (or the obligation to create or
impose) any material lien or encumbrance upon any of the property or assets of
PECO pursuant to any provision of any securities issued by PECO, or under any
indenture, mortgage, deed of trust, contract, undertaking, document, instrument
or other agreement to which PECO is a party or by which it or any of its
property or assets is bound.
7. No consent, order, authorization, waiver, approval or any other
action, or registration, declaration or filing with, any person, board or body,
public or private (collectively, the "APPROVALS"), is required to be obtained by
PECO in connection with the execution, delivery
2
or performance of the Documents or the consummation of the transactions
contemplated thereby, except as listed on Schedule A hereto. All such Approvals
listed on Schedule A, except for those set forth in Part II thereof, are Final
(as defined below). An Approval shall be Final if it has been validly issued, is
in full force and effect, is not subject to any condition (other than compliance
with terms thereof), doe s not impose restrictions or requirements inconsistent
with the terms of the Documents, and is final and not subject to any appeal.
8. To the best of my knowledge after due inquiry, there are no pending
or threatened actions or proceedings affecting PECO or any of its properties or
assets that individually or in the aggregate could prohibit or limit in any way
the execution, delivery and performance by PECO of any of the Documents.
This opinion is being furnished only to the Agent, the Borrower, the
parties identified on Schedule B hereto and their respective successors and
assigns and is solely for the benefit of such parties; provided that assignees
of, or participants in, the interests of the Banks may rely on this opinion as
if it were addressed to them.
Very truly yours,
3
Schedule A
APPROVALS
None
Schedule B
Exhibit D to the
Consent and Agreement
PPA DISPUTED
AMOUNTS DEPOSITARY AGREEMENT
among
TENASKA GEORGIA PARTNERS, L.P.,
as Borrower,
PECO ENERGY COMPANY
and
[ ],
as Agent
Dated as of [ ], [ ]
TABLE OF CONTENTS
PAGE
ARTICLE I ..........................................................................DEFINITIONS/INTERPRETATION
SECTION 1.1 Definitions.................................................................................. 1
SECTION 1.2 Certain Principles of Interpretation......................................................... 3
SECTION 1.3 UCC Terms.................................................................................... 3
ARTICLE II .......................................................GOVERNMENT AND ESTABLISHMENT OF THE ACCOUNT
SECTION 2.1 [Reserved]....................................................................................3
SECTION 2.2 Procedures Governing the Account..............................................................3
SECTION 2.3 Establishment of the PPA Disputed Payments Account............................................5
SECTION 2.4 Security Interest.............................................................................5
SECTION 2.5 Termination...................................................................................6
SECTION 2.6 Dominion and Control of the Account, Funds, and Permitted Investments.........................6
SECTION 2.7 Certificates; Method and Timing of Payments and Transfers.....................................6
SECTION 2.8 Security Interest Absolute....................................................................7
SECTION 2.9 Identification and Confirmation of Proceeds of the
Account.......................................................................................7
SECTION 2.10 Account Balance Statements....................................................................8
ARTICLE III ....................................................DEPOSITS TO AND DISTRIBUTIONS FROM THE ACCOUNT
SECTION 3.1 Deposits into the Account.................................................................... 8
SECTION 3.2 Distributions from the Account............................................................... 8
ARTICLE IV ....................................................................................DEPOSITARY BANK
SECTION 4.1 Appointment of Agent, Powers and Immunities.................................................. 8
SECTION 4.2 Reliance by Agent............................................................................ 9
SECTION 4.3 Court Orders................................................................................. 9
ARTICLE V .....................................................................EXPENSES; INDEMNIFICATION; FEES
SECTION 5.1 Expenses.................................................................................... 10
SECTION 5.2 Indemnification............................................................................. 10
i
ARTICLE VI ......................................................................................MISCELLANEOUS
SECTION 6.1 Amendments; Etc............................................................................. 10
SECTION 6.2 Addresses for Notices....................................................................... 10
SECTION 6.3 Governing Law............................................................................... 11
SECTION 6.4 Headings.................................................................................... 12
SECTION 6.5 No Third Party Beneficiaries................................................................ 12
SECTION 6.6 No Waiver................................................................................... 12
SECTION 6.7 Severability................................................................................ 12
SECTION 6.8 Successors and Assigns...................................................................... 12
SECTION 6.9 Execution in Counterparts................................................................... 13
SECTION 6.10 Consequential Damages....................................................................... 13
SECTION 6.11 Conflict with Other Agreements.............................................................. 13
Exhibit A Form of PPA Disputed Payments
Withdrawal Certificate
ii
This PPA DISPUTED AMOUNTS DEPOSITARY AGREEMENT (this "AGREEMENT") is
dated as of [ ], [ ] among TENASKA GEORGIA PARTNERS, L.P., a Delaware limited
partnership (the "BORROWER"), PECO ENERGY COMPANY, a Pennsylvania corporation
("PECO"), [ ], a banking corporation organized and existing under the laws of
the [ ] as agent (together with its successors and permitted assigns, the
"AGENT"), for itself, the banks that are the issuers of certain letters of
credit (the "ISSUING BANKS") and the banks (the "BANKS"), in each case that are
parties to the Loan Agreement (as hereinafter defined) and each of the Secured
Interest Rate Protection Providers (as hereinafter defined) (collectively, the
Agent, the Issuing Banks, the Banks and the Secured Interest Rate Protection
Providers being the "SECURED PARTIES").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower, the Agent, the Banks, and the Issuing Banks have
entered into that certain Construction and Term Loan and Reimbursement
Agreement, dated as of [ ] (as amended, supplemented or otherwise modified from
time to time, the "LOAN AGREEMENT"), which provides for the making of certain
loans (the "LOANS") by the Banks to the Borrower and the issuance by the Issuing
Banks of certain letters of credit (the "LETTERS OF CREDIT") in connection with
the financing of a [900]MW (net) electric power plant located at Xxxxxx Xxxxx
Xxxx (xxx xxxx xxxxx xx Xxxxxxx 00) near the town of Franklin, in Heard County,
Georgia (as more particularly described in the Loan Agreement, the "PROJECT") in
accordance with the terms and conditions set forth therein;
WHEREAS, the Borrower and PECO have entered into a Power Purchase
Agreement, dated as of [ ] (the "PPA"), pursuant to which Borrower
will sell and PECO will purchase the electrical capacity and associated energy
from the Project in accordance with the terms and conditions set forth therein;
WHEREAS, it is a condition precedent to the making of the Loans by the
Banks and the issuance of the Letters of Credit by the Issuing Banks pursuant to
the Loan Agreement that the parties hereto enter into this Agreement;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements as herein set forth and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS/INTERPRETATION
Section 1.1 DEFINITIONS.
(a) In addition to such other defined terms as may be set forth in this
Agreement, as used in this Agreement, the following terms shall have the
following respective meanings and all other capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the Loan
Agreement:
"Account Collateral" shall have the meaning set forth in Section 2.4.
"Authorized Officer" shall mean (i) with respect to any Person that is
a corporation, the president, any vice president, the treasurer or the chief
financial officer of such Person, (ii) with respect to any Person that is a
partnership, an Authorized Officer of a general partner of such Person or (iii)
with respect to any Person, such other representative of such Person that is
approved by the Agent in writing. No Person shall be deemed to be an Authorized
Officer unless named on a certificate of incumbency of such Person delivered to
the Agent.
"Date of Commercial Operation" shall have the meaning set forth in the
Power Purchase Agreement.
"Governmental Authority" shall mean any nation, state, sovereign, or
government, any federal, regional, state, local or political subdivision and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Permitted Investments" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having a maturity not exceeding
one year from the date of issuance, (ii) time deposits and certificates of
deposit of any Bank or any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000, (iii) commercial paper
issued by the parent corporation of any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000, the parent
corporation of any Bank, and commercial paper of any domestic corporation rated
at least A-1 or the equivalent thereof by Standard & Poor's Corporation (or any
successor thereto which is a nationally recognized rating agency) or at least
P-1 or the equivalent thereof by Xxxxx'x Investors Services, Inc. (or any
successor thereto which is a nationally recognized rating agency) and, in each
case, having a maturity not exceeding ninety (90) days from the date of
acquisition, (iv) fully secured repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications established in
clause (ii) above and (v) investments in money market funds or mutual funds
sponsored by any securities broker-dealer of a recognized national standing
having an investment policy that requires substantially all of the invested
assets of such fund to be invested in investments described in (i), (ii), (iii)
and (iv) above.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any Governmental
Authority.
"PPA Disputed Payments" shall mean the amount of any payments requested
by Borrower under the Power Purchase Agreement that have been disputed by PECO
in accordance with Section 9.04(b) of the Power Purchase Agreement.
"PPA Disputed Payments Account" shall have the meaning set forth in
Section 2.3.
"PPA Disputed Payments Withdrawal Certificate" shall mean the
instrument in the form of Exhibit A.
2
"Secured Interest Rate Protection Providers" shall mean any Bank that
is a party to a Secured Interest Rate Protection Agreement.
"UCC" shall meaning the Uniform Commercial Code of the State of New
York.
Section 1.2 CERTAIN PRINCIPLES OF INTERPRETATION.
(a) Unless the context requires otherwise, any reference in this
Agreement to any agreement or contract shall mean such agreement or document and
all schedules, exhibits and attachments thereto as amended, supplemented or
otherwise modified and in effect from time to time. Unless otherwise stated, any
reference in this Agreement to any person shall include its permitted successors
and assigns and, in the case of any Government Authority, any Person succeeding
to its functions and capacities.
(b) Defined terms in this Agreement shall include in the singular
number the plural and in the plural number the singular.
(c) The words "herein," "hereof" and "hereunder" and words of similar
import when used in this Agreement shall, unless otherwise expressly specified,
refer to this Agreement as a whole and not to any particular provision of this
Agreement and all references to Sections, Schedule and Exhibits shall be
references to Sections of, and Schedules and Exhibits to, this Agreement unless
otherwise specified.
(d) Unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement, contract or
document in the form (including amendments and clarification letters relating
thereto) delivered to the Agent on the date hereof, as the same may thereafter
be amended, supplemented or otherwise modified from time to time in accordance
with the terms of the Loan Agreement and the other Loan Documents.
Section 1.3 UCC TERMS. Unless otherwise defined herein or in the Loan
Agreement, terms defined in the UCC as in effect from time to time in the State
of New York which we used herein shall have the respective meanings given to
those terms in the UCC as in effect from time to time in the State of New York.
ARTICLE II
GOVERNMENT AND ESTABLISHMENT OF THE ACCOUNT
Section 2.1 [RESERVED].
Section 2.2 PROCEDURES GOVERNING THE ACCOUNT.
(a) The Agent hereby agrees to act and to accept all amounts and
Permitted Investments received or held by the Agent pursuant to the terms of
this Agreement and to promptly deposit or credit all such amounts and Permitted
Investments received into the PPA Disputed Payments Account established
hereunder. The Agent shall hold and safeguard the PPA
3
Disputed Payments Account (and the PPA Disputed Payments, cash, payments,
securities, investments and other amounts on deposit therein) during the term of
this Agreement for disbursement strictly in accordance with the terms hereof.
(b) The Agent shall treat the amounts and Permitted Investments and any
other property, and all rights related thereto, now or hereafter deposited in or
credited to the PPA Disputed Payments Account as "financial assets" (as defined
in Section 8-102(a)(9) of the UCC), to be held by the Agent, acting as a
"securities intermediary" (as defined in the UCC).
(c) All of the Borrower's right, title and interest, whether now
existing or hereafter acquired or arising, in, to and under all such amounts and
Permitted Investments and other property held in or credited to the PPA Disputed
Payments Account shall constitute a part of the Collateral and shall not
constitute payment of any Indebtedness or any other obligation of the Borrower
until applied as provided in the Loan Documents. Except as otherwise expressly
provided for herein, the PPA Disputed Payments Account shall at all times be in
the exclusive possession of, and under the exclusive dominion and control of,
the Agent, acting at the direction of the Agent. The Borrower and PECO agree
that each of their rights to amounts, Permitted Investments and any other
property held in or credited to the PPA Disputed Payments Account are subject to
and controlled by the terms of this Agreement.
(d) The Agent hereby represents that it has not entered into, and,
hereby agrees that until each of the Loan Documents has been terminated, it will
not enter into, any agreement with any other Person (other than the Borrower and
PECO) relating to the PPA Disputed Payments Account (or the amounts or Permitted
Investments or other property deposited therein or credited thereto) pursuant to
which it has agreed to comply with entitlement orders made by such Person. The
Agent hereby represents that it has not entered into any other agreement with
the Borrower or PECO purporting to limit or condition the obligation of the
Agent to comply with entitlement orders as set forth in this Section 2.2(d).
(e) The PPA Disputed Payments Account established pursuant to Section
2.3 shall be in the name of the Agent for the benefit of the Secured Parties.
All amounts and Permitted Investments and any other property from time to time
held in or credited to the PPA Disputed Payments Account shall be (i) registered
in the name of the Agent or (ii) endorsed to the Agent or in blank or credited
to another account maintained in the name of Agent. In no case will any amounts
or Permitted Investments or other property deposited in or credited to the PPA
Disputed Payments Account be registered in the name of the Borrower or PECO,
payable to the order of the Borrower or PECO or specially endorsed to the
Borrower or PECO, except to the extent the foregoing have been specially
endorsed to the Agent or in blank.
(f) Except for the claims and interest of the Borrower and PECO in the
PPA Disputed Payments Account, no officer of the Agent with direct
responsibility for administering this Agreement has actual knowledge of any
claim to, or interest in, the PPA Disputed Payments Account or any monies or any
other property deposited therein or credited thereto. If an officer of the Agent
with direct responsibility for administering this Agreement obtains actual
knowledge that any Person has asserted any lien, encumbrance or adverse claim
against the PPA Disputed Payments Account or in any amounts, Permitted
Investments or any other property deposited therein or credited thereto, the
Agent will promptly notify the Borrower and PECO
4
thereof. The Agent agrees that all property delivered to the Agent as a Disputed
Payment Amount pursuant to the Power Purchase Agreement will be promptly
credited to the PPA Disputed Payments Account.
Section 2.3 ESTABLISHMENT OF THE PPA DISPUTED PAYMENTS ACCOUNT. The
Agent hereby creates and establishes a special, segregated and irrevocable
account of the Borrower and PECO entitled the "PPA Disputed Payments Account for
the benefit of [Agent]", initially having account number [ ], to be maintained
with the Agent (the "PPA DISPUTED PAYMENTS ACCOUNT"). The PPA Disputed Payments
Account shall be a "securities account" (as such term is defined in Section
8-501(a) of the UCC) and shall be maintained at all times in accordance with
Section 2.2 until the termination of this Agreement. No payments shall be made
out of the PPA Disputed Payments Account except for the purposes and on the
terms herein stated. The Agent shall not change the name or account number of
the PPA Disputed Payments Account without the prior written consent of the
Borrower and PECO. In the event that, in accordance with this Agreement, the
Agent is required to segregate certain monies in the PPA Disputed Payments
Account from any other amounts on deposit in such Account pending transfer or
withdrawal in accordance with this Agreement, the Agent shall either (i) hold
such monies in such Account for use solely for such transfer or withdrawal, or
(ii) create a separate sub-account in such Account for such purpose (and the
Agent shall give notice to the Borrower and PECO promptly after the creation
thereof).
Section 2.4 SECURITY INTEREST.
(a) As collateral security for the prompt and complete payment and
performance when due of all of the Borrower's obligations owing to any of the
Secured Parties under the Loan Documents including the Obligations, the Borrower
hereby pledges, assigns, hypothecates and transfers to the Agent for the benefit
of the Secured Parties, and grants to the Agent for the benefit of the Secured
Parties a Lien on and security interest in and to, all of the Borrower's right,
title and interest, whether now existing or hereafter acquired or arising, in,
to and under the PPA Disputed Payments Account (including any successor accounts
to the PPA Disputed Payments Account) and all amounts, Permitted Investments and
any other property (including, but not limited to, securities, financial assets,
investment property, security entitlements and instruments) at any time
deposited in or credited to the PPA Disputed Payments Account and all security
entitlements with respect thereto, including all income or gain earned thereon
and any proceeds thereof (collectively, the "ACCOUNT COLLATERAL").
(b) The Borrower, PECO and the Secured Parties hereby authorize the
Agent to set off against and/or debit the Account Collateral to the extent of
any and all fees and charges owing to the Agent directly related to the Account
Collateral or the Agent's duties hereunder. Except with respect to the amounts
described in the preceding sentence, the Agent hereby waives any right of
set-off or recoupment that it may have or obtain with respect to the PPA
Disputed Payments Account or any amounts, Permitted Investments and any other
property deposited therein or credited thereto and agrees that in the event that
the Agent has or subsequently obtains by agreement, by operation of law or
otherwise a security interest in the Account Collateral or any security
entitlement credited thereto, the Agent hereby agrees that such security
interest shall be subordinate to the security interest of the Secured Parties.
5
Section 2.5 TERMINATION. The rights and powers granted herein to the
Agent have been granted in order to perfect its security interest in the PPA
Disputed Payments Account, are powers coupled with an interest and will neither
be affected by the bankruptcy of the Borrower or PECO nor by the lapse of time.
The obligations of the Agent hereunder shall continue in effect until the
termination of the Loan Documents.
Section 2.6 DOMINION AND CONTROL OF THE ACCOUNT, FUNDS, AND PERMITTED
INVESTMENTS.
(a) Except as expressly provided herein, the PPA Disputed Payments
Account (and the amounts, Permitted Investments and property on deposit or held
therein) shall be under the sole dominion and control of the Agent, and the
Borrower or PECO shall have no right of withdrawal in respect of any of the PPA
Disputed Payments Account. The Borrower and PECO hereby irrevocably direct and
authorize the Agent to deposit into and withdraw funds from the PPA Disputed
Payments Account in accordance with the terms and conditions of this Agreement.
(b) Pending disbursement of any funds held in the PPA Disputed Payments
Account by the Agent pursuant to this Agreement, such funds shall be invested
and reinvested in Permitted Investments, and such Permitted Investments held
therein liquidated, at the risk and expense of the Borrower and PECO by the
Agent in accordance with written joint instructions given to the Agent by an
Authorized Officer of the Borrower and an Authorized Officer of PECO; PROVIDED
that if the Borrower and PECO fail to instruct the Agent, amounts on deposit in
the PPA Disputed Payments Account shall be invested and reinvested in Permitted
Investments, and Permitted Investments held therein liquidated, at the risk and
expense of the Borrower and PECO. The Agent shall not be liable for any loss
resulting from any Permitted Investment (or any investment or reinvestment
therein or liquidation or redemption thereof) in the PPA Disputed Payments
Account or the sale or redemption thereof except to the extent that such loss
results solely from the gross negligence or willful misconduct of the Agent, it
being understood and agreed that in no event shall the Agent be liable for any
loss resulting from any investment made, or any sale or redemption of any
investment made, in accordance with instructions received from the Borrower and
PECO or in accordance with paragraph (c) of this Section 2.6. The Agent, the
Borrower and PECO agree that the interest paid or other earnings on Permitted
Investments made hereunder shall be credited to the PPA Disputed Payments
Account.
(c) If and when cash is required to be disbursed in accordance with
Article III of this Agreement, and cash is not otherwise available in the PPA
Disputed Payments Account, the Agent is authorized, without instructions from
the Borrower or PECO, to cause Permitted Investments to be sold or otherwise
liquidated into cash (without regard to maturity) in such manner as the Agent
shall deem reasonable and prudent under the circumstances. All of the Borrower's
right, title and interest, whether now existing or hereafter acquired or
arising, in, to and under the PPA Disputed Payments Account and all funds held
therein and all such Permitted Investments made in respect thereof, shall
constitute part of the Collateral subject to the security interests created by
this Agreement and the other Security Documents and shall not constitute payment
of any of the Obligations or any other obligations of the Borrower until applied
as provided in the Loan Documents.
6
Section 2.7 CERTIFICATES; METHOD AND TIMING OF PAYMENTS AND
TRANSFERS.
(a) Any certificate or written instruction required to be delivered
hereunder by the Borrower and PECO shall be delivered to the Agent prior to
12:00 noon (New York City time) at least five (5) Business Days prior to the
date of any transfer or distribution contemplated by such certificate or written
instruction. Such certificate or instructions may be delivered by telecopy
pursuant to Section 6.2 and shall be considered delivered upon receipt
confirmation. In no event shall a certificate be considered delivered hereunder
if it is incomplete or inaccurate, is not substantially in the form of the
corresponding Exhibit or does not otherwise meet the requirements set forth in
this Agreement, including any set forth in any Exhibit.
(b) Subject to the timely receipt of a certificate or written notice,
if and as prescribed herein, and to the availability of cash in the PPA Disputed
Payments Account, the Agent shall make any payment or transfer hereunder
required by means of wire transfer of immediately available funds, to the
account of the payee set forth in such certificate or written instructions or
Schedule thereto, prior to 1:00 p.m. (New York City time) on the date specified
in such certificate or instruction for such payment, or by such other means of
payment, to such other address or at such later time as shall be specified by
such payee. Notwithstanding the foregoing, the Agent shall not be responsible in
any manner for the truth and accuracy of any information contained in any
certificate or written information provided by the Borrower and PECO.
Section 2.8 SECURITY INTEREST ABSOLUTE. All rights of the Agent and
security interests hereunder, shall be absolute and unconditional irrespective
of:
(a) any lack of validity or enforceability of the Power Purchase
Agreement or any of the Loan Documents or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the payment obligations of PECO under the Power
Purchase Agreement, or any other amendment or waiver of or any consent to any
departure from the Power Purchase Agreement or any other agreement or instrument
relating thereto;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the payment Obligations, or any other amendment or
waiver of or any consent to any departure from the Loan Documents or any other
agreement or instrument relating thereto;
(d) any exchange, release or non-perfection of any other collateral, or
any release or amendment or waiver of or consent to any departure from any
guaranty, for all or any of the Obligations; or
(e) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Borrower, PECO or a third party pledgor.
Section 2.9 IDENTIFICATION AND CONFIRMATION OF PROCEEDS OF THE
ACCOUNT. The Agent agrees to cause each Permitted Investment to be promptly
identified to the PPA Disputed Payments Account from which it was invested in
accordance with the terms hereof, and to no
7
other account and in no other name. No interest of any Person other than the
interests of the Secured Parties, the Borrower and PECO shall be identified to
the PPA Disputed Payments Account or the Permitted Investments therein.
Section 2.10 ACCOUNT BALANCE STATEMENTS. The Agent shall, on a monthly
basis and at such other times as the Borrower or PECO may from time to time
reasonably request, provide to the Borrower and PECO account balance statements
in respect of the PPA Disputed Payments Account. Such balance statements shall
also include deposits and transfers to, withdrawals from, and the net investment
income or gain received and collected for, the PPA Disputed Payments Account.
ARTICLE III
DEPOSITS TO AND DISTRIBUTIONS FROM THE ACCOUNT
Section 3.1 DEPOSITS INTO THE ACCOUNT. PECO shall promptly deposit or
cause to be deposited all PPA Disputed Payments into the PPA Disputed Payments
Account at such time as it disputes any such amount in accordance with the
provisions of Section 9.04(b) of the Power Purchase Agreement.
Section 3.2 DISTRIBUTIONS FROM THE ACCOUNT. Upon receipt of a PPA
Disputed Payments Withdrawal Certificate, delivered in accordance with Section
2.7, stating that (i) PECO and the Borrower have reached a mutually satisfactory
resolution of their dispute with respect to any or all of the PPA Disputed
Payments, and directing the disposition of such funds, or (ii) a final and
binding arbitration award or court order has been issued with respect to any or
all of the PPA Disputed Payments and the disposition of such funds, the Agent
shall transfer the amount of the PPA Disputed Payments indicated in such
certificate, together with any interest on or earnings from Permitted
Investments with respect thereto, as follows:
(a) if and to the extent such funds are stated in the PPA Disputed
Payments Withdrawal Certificate to be for the account of the Borrower, to the
Revenue Account; and
(b) if and to the extent such funds are stated in the PPA Disputed
Payments Withdrawal Certificate to be for the account of PECO, to such account
or accounts as designated by PECO in such certificate.
ARTICLE IV
DEPOSITARY BANK
Section 4.1 APPOINTMENT OF AGENT, POWERS AND IMMUNITIES.
(a) The Agent may execute any of its duties under this Agreement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining hereto.
8
(b) The Agent shall not have any duties or responsibilities, except
those expressly set forth in this Agreement. Notwithstanding anything to the
contrary contained herein, the Agent shall not be required to take any action
which is contrary to this Agreement or applicable Law. Neither the Agent nor any
of its Affiliates shall be responsible to any Secured Party for any recitals,
statements, representations or warranties made by the Borrower or PECO contained
in this Agreement or the Power Purchase Agreement or in any certificate or other
document referred to or provided for in, or received by any Secured Party under,
this Agreement or the Power Purchase Agreement for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Power Purchase Agreement or any other document referred to or provided for
herein or therein or for any failure by the Borrower or PECO to perform its
obligations hereunder or thereunder or for the perfection or priority of any
Lien on the Collateral (including the Account Collateral). The Agent shall not
be required to ascertain or inquire as to the performance by the Borrower or
PECO of any of its obligations under this Agreement or the Power Purchase
Agreement or any other document or agreement contemplated hereby or thereby. The
Agent shall not (a) be required to initiate or conduct any litigation or
collection proceeding hereunder or (b) be responsible for any action taken or
omitted to be taken by it hereunder (except for its own gross negligence or
willful misconduct). Whenever in the administration of this Agreement the Agent
shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Agent taking, suffering or omitting to take
any action hereunder, such matter (unless other evidence in respect thereof is
herein specifically prescribed) may be deemed to be conclusively proved or
established by a certificate of an Authorized Officer of the Borrower, PECO, if
appropriate. The Agent shall have the right at any time to seek instructions
concerning the administration of this Agreement from any court of competent
jurisdiction. The Agent shall have no obligation to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder.
Section 4.2 RELIANCE BY AGENT. The Agent shall be entitled to rely
upon and shall not be bound to make any investigation into the facts or matters
stated in any certificate, or any other notice or other document (including any
cable, telegram, telecopy or telex) believed by it to be genuine and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice or statement of legal counsel, independent accountants and other experts
selected by the Agent and shall have no liability for its actions taken
thereupon, unless due to the Agent's willful misconduct or gross negligence.
Without limiting the foregoing, the Agent shall be required to make payments for
the benefit of the Secured Parties only as set forth herein. The Agent shall be
fully justified in failing or refusing to take any action under this Agreement
(i) if such action would, in the reasonable opinion of the Agent, be contrary to
applicable Law or the terms of this Agreement, (ii) if such action is not
specifically provided for in this Agreement, it shall not have received any such
advice or concurrence of the Agent as it deems appropriate or (iii) if the
taking of any such action could expose it to potential liability (whether such
action is or is intended to be an action of the Agent), it shall not first be
indemnified to its satisfaction by the Borrower against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.
Section 4.3 COURT ORDERS. The Agent is hereby authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or
9
administrative agency affecting any money, documents or things held by the
Agent. The Agent shall not be liable to any of the parties hereto, their
successors, heirs or personal representatives by reason of the Agent's
compliance with such writs, orders, judgments or decrees, notwithstanding that
such writ, order, judgment or decree is later reversed, modified, set aside or
vacated.
ARTICLE V
EXPENSES; INDEMNIFICATION; FEES
Section 5.1 EXPENSES. The Borrower agrees to pay or reimburse all
out-of-pocket expenses of the Agent (including reasonable fees and expenses for
legal services) in respect of, or incident to, the execution, administration or
enforcement of any of the provisions of this Agreement or in connection with any
amendment, waiver or consent relating to this Agreement. The obligations
contained in this Section 5.1 shall survive the termination of this Agreement or
the resignation or removal of the Agent.
Section 5.2 INDEMNIFICATION. The Borrower agrees to indemnify the
Agent in its capacity as such, and, in their capacity as such, its officers,
directors, shareholders, controlling persons, employees, agents and servants
(each an "INDEMNIFIED AGENT PARTY"), from and against any and all claims,
losses, liabilities and expenses (including the reasonable fees and expenses of
counsel) arising out of or resulting from this Agreement (including, without
limitation, performance under or enforcement of this Agreement, but excluding
any such claims, losses or liabilities resulting from the Indemnified Agent
Party's gross negligence or willful misconduct). This indemnity shall survive
the termination of this Agreement, and the resignation or removal of the Agent.
ARTICLE VI
MISCELLANEOUS
Section 6.1 AMENDMENTS. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Borrower or PECO herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Agent and the other parties to this Agreement. Any such amendment, waiver
or consent shall be effective only in the specific instance and for the
specified purpose for which given.
Section 6.2 ADDRESSES FOR NOTICES. All notices, requests and other
communications provided for hereunder shall be in writing and, except as
otherwise required by the provisions of this Agreement, shall be sufficiently
given and shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid, or sent by overnight delivery, telecopy,
telegram or telex, addressed to the parties as follows (or to such other address
as such party may hereafter provide in accordance with this Section 6.2):
10
Borrower: Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: [ ]
-----------------------------
Telephone: [ ]
-----------------------------
Fax: [ ]
-----------------------------
PECO: PECO ENERGY COMPANY
PECO Energy Company- Power Team
0000 Xxxxxxxxxxx Xxxx.
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: [ ]
-----------------------------
Telephone: [ ]
-----------------------------
Fax: [ ]
-----------------------------
Agent: [ ]
-----------------------------
[ ]
-----------------------------
[ ]
-----------------------------
Attention: [ ]
-----------------------------
Telephone: [ ]
-----------------------------
Fax: [ ]
-----------------------------
Section 6.3 GOVERNING LAW.
(a) THIS AGREEMENT AND THE PPA DISPUTED PAYMENTS ACCOUNT ESTABLISHED
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PROVISIONS
(OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THAT MIGHT
CAUSE THIS AGREEMENT OR ANY ACCOUNT ESTABLISHED HEREUNDER TO BE GOVERNED BY OR
CONSTRUED OR ENFORCED IN ACCORDANCE WITH THE LAWS OF ANY OTHER JURISDICTION.
REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, THE
STATE OF NEW YORK SHALL BE DEEMED TO BE THE AGENT'S JURISDICTION AND ANY ACCOUNT
HEREUNDER (AS WELL AS THE SECURITIES ENTITLEMENTS RELATED THERETO) SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAW PROVISIONS THAT MIGHT CAUSE ANY ACCOUNT OR ANY SECURITY
ENTITLEMENTS RELATED THERETO TO BE GOVERNED BY THE LAWS OF ANY OTHER
JURISDICTION.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE BORROWER AND PECO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
11
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH
OF THE BORROWER AND PECO HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT
CORPORATION SYSTEM AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN
ANY ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT
SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH OF THE BORROWER AND PECO AGREES
TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS
AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT. EACH OF THE
BORROWER AND PECO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH SUCH
PARTY AT ITS ADDRESS REFERRED TO IN SECTION 6.2. EACH OF THE BORROWER AND PECO
HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE
AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.
(c) THE BORROWER AND PECO HEREBY IRREVOCABLY WAIVE ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
Section 6.4 HEADINGS. Headings used in this Agreement are for
convenience of reference only and do not constitute part of this Agreement for
any purpose.
Section 6.5 NO THIRD PARTY BENEFICIARIES. The agreements of the
parties hereto are solely for the benefit of the Borrower, PECO, the Agent and
the Secured Parties and their respective successors and assigns and no Person
(other than the parties hereto and such Secured Parties) shall have any rights
hereunder.
Section 6.6 NO WAIVERS. No failure on the part of the Agent or any
Secured Party or any of their nominees or representatives to exercise, and no
course of dealing with respect to, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent or any Secured Party or any of their nominees or
representatives of any right, power or remedy.
12
Section 6.7 SEVERABILITY. If any provision of this Agreement or the
application thereof shall be invalid or unenforceable to any extent, (a) the
remainder of this Agreement and the application of such remaining provisions
shall not be affected thereby and (b) each such remaining provision shall be
enforced to the greatest extent permitted by law.
Section 6.8 SUCCESSORS AND ASSIGNS. All covenants, agreements,
representations and warranties in this Agreement by the Agent, the Borrower and
PECO shall bind and, to the extent permitted hereby, shall inure to the benefit
of and be enforceable by their respective successors and assigns, whether so
expressed or not, PROVIDED that the Borrower may not assign any of its rights or
obligations hereunder (except pursuant to the Security Documents).
Section 6.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 6.10 CONSEQUENTIAL DAMAGES. In no event (other than with
respect to its own gross negligence or willful misconduct) shall the Agent be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Agent has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
Section 6.11 CONFLICT WITH OTHER AGREEMENTS. There are no other
agreements entered into between the Agent, the Borrower and PECO with respect to
the PPA Disputed Payments Account. In the event of any conflict between this
Agreement (or any portion thereof) and any other agreement now existing or
hereafter entered into, the terms of this Agreement shall prevail.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TENASKA GEORGIA PARTNERS, L.P.,
as Borrower
By: Tenaska Georgia Inc.,
Managing General Partner
By: Tenaska Georgia I, L.P.,
Managing General Partner
By:
----------------------------------------
Name:
Title:
PECO ENERGY COMPANY
By:
----------------------------------------
Name:
Title:
14
EXHIBIT A TO
PPA DISPUTED AMOUNTS
DEPOSITARY AGREEMENT
FORM OF
PPA DISPUTED PAYMENTS WITHDRAWAL CERTIFICATE
Date: [ , ]
Reference is made to Section 3.2 of the PPA Disputed Amounts Depositary
Agreement, dated as of [ ] (as amended, supplemented or otherwise modified from
time to time, the "DEPOSITARY Agreement"), by and among Tenaska Georgia
Partners, L.P., a Delaware limited partnership (the "BORROWER"), PECO Energy
Company, a Pennsylvania corporation ("PECO"), and [ ], a banking corporation
organized and existing under the laws of [ ], as agent (together with its
successors and permitted assigns, the "AGENT") for itself, the banks that are
issuers of certain letters of credit (the "ISSUING BANKS") and the banks (the
"BANKS"), in each case that are parties to the Construction and Term Loan and
Reimbursement Agreement, dated as of [ ] (as amended, supplemented or otherwise
modified from time to time, the "LOAN AGREEMENT"), and the Secured Interest Rate
Protection Providers (as defined in the Loan Agreement) (collectively, the
"SECURED PARTIES"). Capitalized terms used herein but not defined herein shall
have the respective meanings as signed thereto in the Depositary Agreement.
The Borrower and PECO hereby request that the Agent withdraw from the
PPA Disputed Payments Account on [INSERT REQUESTED DATE OF WITHDRAWAL] (the
"WITHDRAWAL DATE") the amounts set forth on Schedule 1 attached hereto and, as
applicable, transfer the same to such accounts as are also set forth on Schedule
1.
In support of such request, each of the undersigned on behalf of the
Borrower and PECO, respectively, hereby represents and certifies to the Agent as
follows:
(a) Each of the undersigned is an Authorized Officer of the Borrower
and PECO, respectively.
(b) This PPA Disputed Payments Withdrawal Certificate is being
delivered to the Agent prior to 12:00 noon (New York City time) at least five
(5) Business Days prior to the Withdrawal Date and such Withdrawal Date is a
Business Day.
[(c) PECO and the Borrower have reached a mutually satisfactory
resolution of their dispute with respect to any or all of the PPA Disputed
Payments, according to which resolution the amount of such PPA Disputed
Payments, as more specifically set forth on Schedule 1 hereto, together with any
interest on or earnings from Permitted Investments with respect thereto, shall
be withdrawn from the PPA Disputed Payments Account and transferred to [the
Revenue Account] [such account or accounts as are designated by PECO in Schedule
1]]
[(d) A final and binding [arbitration award][court order] has been
issued with respect to any or all of the PPA Disputed Payments and the
disposition of such funds, a certified copy of which is attached hereto. In
accordance with such [arbitration award][court order], the amount of such PPA
Disputed Payments, as more specifically set forth on Schedule 1 hereto, together
with any interest on or earnings from Permitted Investments with respect
thereto, shall be withdrawn from the PPA Disputed Payments Account and
transferred to [the Revenue Account][such account or accounts as are designated
by PECO in Schedule 1]]
16
IN WITNESS WHEREOF, the Borrower and PECO have each caused
this PPA Disputed Payments Withdrawal Certificate to be executed and delivered
as of the day and year first above written.
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia Inc.,
Managing General Partner
By: Tenaska Georgia I, L.P.,
Managing General Partner
By:
----------------------------------------
Name:
Title:
PECO ENERGY COMPANY
By:
----------------------------------------
Name:
Title:
17
Schedule 1 to
PPA Disputed Payments
Withdrawal Certificate
WITHDRAWALS FROM
PPA DISPUTED PAYMENTS ACCOUNT
I. Transfers to the Revenue Account for the account of the Borrower:
Payee Amount
----- ------
Tenaska Georgia Partners, L.P. $
II. Transfers for the account of PECO:
Payee Amount Wire Instructions
----- ------ -----------------
$
Exhibit E to
Consent And Agreement
---------------------
CASUALTY INSURANCE PROVISIONS
SECTION [ ] LOSS PROCEEDS ACCOUNT. All Loss Proceeds (other than the
proceeds of business interruption insurance or delayed opening insurance) and
Condemnation Proceeds received by the Borrower shall be deposited in the Loss
Proceeds Account. The Agent shall separately segregate such Loss Proceeds and
Condemnation Proceeds for distribution in the manner as set forth below:
(a) All proceeds in respect of any property insurance policy (other
than proceeds of business interruption or delayed opening insurance) covering
the Borrower or the Project ("Insurance Proceeds") shall be paid by the
respective insurers directly to the Loss Proceeds Account, PROVIDED, HOWEVER,
that all proceeds in respect of any insurance policy providing business
interruption or delayed opening coverage shall be paid directly to the Revenue
Account.* The Borrower shall use its best efforts to ensure that all proceeds in
respect of any action to condemn, seize or appropriate all or any part of the
Project (any such action, a "Condemnation," and any such proceeds, "Condemnation
Proceeds") shall be paid to the Loss Proceeds Account. If any Insurance Proceeds
or Condemnation Proceeds (collectively, "Loss Proceeds") are received by the
Borrower, such Loss Proceeds shall be received in trust for the Agent, shall be
segregated from other funds of the Borrower, and shall be forthwith paid into
the Loss Proceeds Account in the same form as received (with any necessary
endorsement). If the conditions set forth in clauses (b), (c) and (d) of this
Section [ ] are satisfied as certified in a Loss Proceeds Account Withdrawal
Certificate delivered in accordance with Section [ ], the Agent shall distribute
amounts on deposit in the Loss Proceeds Account in accordance with such Loss
Proceeds Account Withdrawal Certificate. Upon written notification by the Agent
to the Agent that the conditions set forth in paragraph (e) of this Section [ ]
exist, the Agent shall transfer the funds in the Loss Proceeds Account to the
Agent.
(b) In the event of a casualty loss involving Insurance Proceeds not
exceeding $10,000,000 (such $ 10,000,000 to be escalated at a rate of 3% per
year using 2001 as a base year) in respect of any single claim with respect to
the Project (a "Section [ ](b) Event"), the Borrower shall provide written
information to the Agent describing the use to which such Insurance Proceeds are
to be put and demonstrating to the reasonable satisfaction of the Required Banks
that the Project can be Repaired Feasibly (as defined below). Following the
Agent's confirmation of the satisfaction of such conditions, and if no Event of
Default shall have occurred and be continuing, such Insurance Proceeds shall,
upon delivery by the Borrower of a Loss Proceeds Account Withdrawal Certificate
delivered in accordance with Section [ ], be paid to the Borrower out of the
Loss Proceeds Account (up to a maximum of $10,000,000 (escalated as above) with
respect to any single claim) and applied by the Borrower in its reasonable
----------------------
* Note- The Revenue Account is the account specified on Exhibit A
to the Consent and Agreement.
discretion to the cost of the repair or restoration of such damage or
destruction described in such notice.
(c) "Repaired Feasibly" means:
(1) The Project can be repaired or restored in a manner that
is technically feasible to at least as good condition or state of
repair as it was in prior to the Event of Loss or a Section [ ](b)
Event;
(2) None of the following circumstances exists:
(A) the repair or restoration of the Project, with
available Insurance Proceeds or other funds available for such
purpose and otherwise permitted by the terms of this
Agreement, or the operation of the Project as repaired or
restored with available Insurance Proceeds or other moneys
available for such purpose as permitted by the terms of this
Agreement, would violate applicable law or otherwise not be
permitted under existing permits or other replacement permits
that have been obtained;
(B) The Event of Loss or Section [ ](b) Event
(including the non-operation of the Project during any period
of repair or restoration) has resulted or may reasonably be
expected to result in a default giving rise to a termination
of, or a materially adverse modification of one or more
material Project Documents, and such material Project
Documents have not been replaced by replacement Project
Documents on economic terms and conditions reasonably expected
to permit the Borrower to pay Mandatory Debt Service [defined
as interest, fees and regularly scheduled loan repayments] and
to make payments under Secured Interest Rate Protection
Agreements then in effect when due and on such other terms and
conditions as are reasonably acceptable to the Required Banks;
(C) After taking into consideration the availability
of Insurance Proceeds and such other proceeds available for
the repair or restoration of the Project (including delayed
opening and business interruption insurance proceeds) there
will not be adequate funds available to pay all ongoing
expenses including Mandatory Debt Service and to make payments
under Secured Interest Rate Protection Agreements then in
effect during the period of repair or restoration, or the
Borrower's ability to pay all ongoing expenses including
Mandatory Debt Service and to make payments under Secured
Interest Rate Protection Agreements then in effect when due,
subsequent to the completion of the repair or restoration of
the Project has been materially adversely impaired, provided
that for purposes of the foregoing, it shall be assumed that
delayed opening and business interruption insurance proceeds
will be sufficient to pay Mandatory Debt Service and to make
payments under Secured Interest Rate Protection Agreements
then in effect during the period of restoration or repair
unless the insurer obligated to pay such proceeds is the
subject of an insolvency proceeding or is contesting (whether
by litigation, arbitration or by way of seeking compromises,
releases or settlement
2
of) its obligations to make payments in the amounts, at the
times and otherwise in accordance with the policy; and
(3) Construction contractors and vendors of
recognized skill, reputation and credit worthiness have
executed reconstruction contracts and purchase orders on terms
and conditions reasonably acceptable to the Required Banks.
(d) If there shall occur any event of damage, destruction,
condemnation, seizure or appropriation of all or any portion of the Project
other than a Section [ ](b) Event (an "Event of Loss") and (i) an Authorized
Officer of the Borrower and the Engineering Advisor shall deliver to the Agent
written information acceptable to the Required Banks that the Project can be
Repaired Feasibly and (ii) the Agent shall receive an opinion of counsel
acceptable to the Required Banks covering such matters in connection with such
proposed repair and replacement as the Required Banks shall reasonably require,
including, without limitation, that all Governmental Approvals, amendments to
Transaction Documents and all other instruments necessary for the purpose of
completing such repairs or restoration or granting the Agent a Lien thereon have
been obtained or delivered, then the Borrower shall use its best efforts to
cause any repairs or restoration to be commenced and completed promptly and
diligently at its own cost and expense (including from funds on deposit in the
Loss Proceeds Account). From time to time after the Agent shall have received
the documents required to be delivered under clauses (i) and (ii) above, any
Loss Proceeds held in the Loss Proceeds Account arising out of the applicable
Event of Loss shall be paid over to or upon the order of the Borrower to pay for
the cost of such repairs or restoration actually incurred by the Borrower, upon
the delivery by the Borrower to the Agent of a Loss Proceeds Account Withdrawal
Certificate (reviewed and certified by the Engineering Advisor) in accordance
with Section [ ], and (v) describing in reasonable detail the nature of the
repairs or restoration, (w) stating that the Borrower has available funds
through Loss Proceeds or otherwise, to complete such repair or restoration in
compliance with this Section [ ], (x) stating the cost of such repairs or
restoration and the specific amount requested to be paid over to or upon the
order of the Borrower, the timing of such payments, and that such amount is
requested to pay the cost thereof (together with any documentation supporting
such statement as the Required Banks may reasonably request), (y) stating that
the Project can be Repaired Feasibly and (z) stating that there has occurred and
is continuing no Event of Default.
(e) If (i) with respect to Loss Proceeds the disposition of which is
covered under clause (d) of this Section, the conditions specified in clauses
(i) and (ii) thereof are not satisfied within the later of: (x) 45 days after
receipt of such Loss Proceeds or (y) 90 days after the Event of Loss, or (ii)
with respect to any Loss Proceeds the disposition of which is covered under
clauses (b) or (c) of this Section, any of such Loss Proceeds shall remain in
the Loss Proceeds Account after the Event of Loss in respect of which such Loss
Proceeds were received has been fully repaired or restored (as certified by the
Borrower and the Engineering Advisor), then an amount equal to all of the
applicable unused Loss Proceeds in the Loss Proceeds Account shall be applied to
the prepayment of the unpaid Loans and Reimbursement Obligations and accrued
interest thereon.
3
(f) The Banks shall respond promptly to requests for approval or for
indications of satisfaction or acceptability of the matters under this Section [
] that must be satisfactory or acceptable to the Required Banks; PROVIDED, that
the effect of any unreasonable delay by the Banks in so responding shall be to
extend the time periods set forth above in Section [ ](e).
4
