AGREEMENT dated as of November 6, 1987 by and between Northeast Landfill Power Co., a Massachusetts corporation (“Seller”), and New England Power Company, (“NEP”), a Massachusetts corporation.
Exhibit
10.4
AGREEMENT
dated as of November 6, 1987 by and between Northeast Landfill Power Co., a
Massachusetts corporation (“Seller”), and New England Power Company, (“NEP”), a
Massachusetts corporation.
ARTICLE
I. BASIC UNDERSTANDINGS
Seller
intends to construct, operate and maintain three landfill gas-fired electric
generation projects at landfills located in Worcester, MA, and Xxxxxxxx, Rhode
Island (RI) (collectively, the “Facilities” and singularly the
“Facility”). The total projected capacity of the Facilities is
approximately twelve thousand kilowatts (12,000 KW).
Subject
to the following terms and conditions, Seller agrees to sell and deliver, and
NEP agrees to purchase and receive, the entire NEP Entitlement, as defined
below, in each of the Facilities.
ARTICLE
II. DEFINITIONS
Whenever
used in this Agreement, the following terms shall have the following
meanings:
“Affiliate
of NEP” shall mean any company that is a subsidiary of the New England
Electric System.
“Commencement
Date of Operation” shall mean 12:01 a.m. on the first day of the month
following the date Seller designates, in writing, as the initial date of
commercial operation of the Facilities, which shall not precede the latter
to
occur of (i) completion of successful acceptance testing of the Xxxxxxxx
Facility for purposes of financing and project operation or (ii) the initial
date on which Seller generates at least five megawatts (5 MW) of electricity
at
the Xxxxxxxx Facility continuously for a period of eight (8) consecutive
hours.
“Good
Utility Practice(s)” shall mean the practices, methods and acts (including
but not limited to the practices, methods and acts engaged in or approved by
a
significant portion of the electric utility industry) that, at a particular
time, in the exercise of reasonable judgment in light of the facts known or
that
should have been known at the time a decision was made, would have been expected
to accomplish the desired result in a manner consistent with law, regulation,
reliability, safety, environmental protection, economy and expedition. With
respect to each of the Facilities, Good Utility Practice(s) include but are
not
limited to taking reasonable steps to ensure that:
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(l)
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adequate
materials, resources and supplies, including landfill gas, are available
to meet the Facility’s needs;
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(2)
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sufficient
operating personnel are available and are adequately experienced
and
trained and licensed as necessary to operate the Facility properly
and
efficiently and are capable of responding to emergency conditions
relating
to the operation of the Facility whether caused by events on or off
the
site of the Facility;
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(3)
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preventative,
routine and non-routine maintenance and repairs are performed on
a basis
that ensures reliable long-term and safe operation of the Facility,
and
are performed by knowledgeable, trained and experienced personnel
utilizing proper equipment and
tools;
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(4)
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appropriate
monitoring and testing is done to ensure equipment at the Facility
is
functioning as designed and to provide assurance that equipment will
function properly under both normal and emergency conditions;
and
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(5)
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equipment
is not operated at the Facility in a reckless manner, or in a manner
unsafe to workers, the general public or the environment or without
regard
to defined limitations such as rate of refuse decomposition and gas
production, air intrusion, safety inspection requirements, operating
voltage, current, frequency, rotational speed, polarity, synchronization,
and control system limits.
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“NEP
Entitlement” shall mean one hundred percent (100%) of the Net Capability and
Net Electric Output of each of the Facilities unless Seller exercises its option
to contract with another utility for the sale of a percentage of the Net
Capability and the Net Electric Output of the Facilities under Article IV,
below. If Seller exercises such option “NEP Entitlement” shall mean the
percentage of the Facilities’ Net Capability and Net Electric Output not
contracted for sale to another utility.
“NEP’s
System” shall mean the electrical system of NEP and/or the electrical system
of any Affiliate of NEP.
“NEPEX”
shall mean the New England Power Exchange.
“NEPOOL”
shall mean the New England Power Pool.
“NEPOOL
Agreement” shall mean the New England Power Pool Agreement dated as of
September 1, 1971, as amended.
“Net
Capability” shall mean, with respect to each of the Facilities, the maximum
dependable load-carrying ability of the Facility, exclusive of capacity required
for the Facility’s use, expressed in kilowatts, as determined by tests conducted
in accordance with the NEPOOL Agreement, including appropriate NEPOOL Criteria,
Rules and Standards and Operating Procedures.
“Net
Electric Output” shall mean, with respect to each of the Facilities, the
total amount of electricity generated by the Facility less kilowatthours
consumed for the Facility’s use.
“Off-Peak
Periods” shall mean all hours not falling within On-Peak
Periods.
“On-Peak
Periods” shall mean all hours from 7:00 a.m. to 11:00 p.m. Monday through
Friday, excluding legal holidays designated in writing by NEP. At Seller’s
request, NEP shall provide to Seller a list of designated legal holidays prior
to the beginning of each calendar year.
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“Prime
Rate” shall mean the prime (or comparable) rate announced from time to time
as its prime rate by the Bank of Boston, which rate may differ from the rate
offered to its most substantial and creditworthy customers.
“Rate
X” shall mean NEP’s short term avoided energy cost calculated by NEP in
accordance with the methodology described in Appendix A, attached hereto and
incorporated herein by reference, such calculation to be provided to Seller
on a
timely basis for review.
ARTICLE
III. TERM
It
shall
be a condition precedent to the effectiveness of this Agreement that (i) the
requirements of 220 C.M.R. 8.01 et. seq., for the effectiveness of the
Agreement have been fulfilled without a finding by the Massachusetts Department
of Public Utilities (“DPU”) that this Agreement, or any one or more of its
provisions is contrary to the public interest, or (ii) a court or governmental
authority of requisite jurisdiction has determined that the DPU lacks
jurisdiction over NEP’s purchase of the NEP Entitlement.
The
term
of this Agreement shall extend for a period ending thirty (30) years after
the
Commencement Date of Operation; provided, however, that this Agreement
shall terminate on the twentieth (20th) anniversary of the Commencement Date
of
Operation if NEP gives Seller not less than one-hundred and eighty (180) days
prior written notice of such termination unless Seller agrees prior to such
twentieth (20th) anniversary to amend article VI B, below, to provide that
the
price to be paid by NEP subsequent to such twentieth (20th) anniversary for
monthly quantities of electricity delivered hereunder shall be a price per
kilowatthour equal to Rate X.
Notwithstanding
the preceding paragraph, if (a) Seller has not secured exclusive rights, for
a
term at least equal to the term of this Agreement, to purchase the landfill
gas
produced at each of the currently permitted landfill sites on which the
Facilities will be located within ninety (90) days of the effective date of
this
Agreement, (b) construction of the initial gas collection system for the
Xxxxxxxx Facility has not been substantially completed within one (1) year
of
the effective date of this Agreement, or (c) the Commencement Date of Operation
has not occurred prior to December 31, 1989, NEP may thereafter terminate this
Agreement by providing Seller thirty (30) days’ written notice within 60 days of
(a), (b), or (c), above, as appropriate.
NEP
shall
have the option to purchase the Net Capability and the Net Electric Output
of
each or any of the Facilities following expiration or termination of this
Agreement, other than for breach by NEP, upon substantially the same terms
and
purchase price as that offered by Seller to any third party, which option shall
be held open for forty-five (45) days after Seller’s presentation of the terms
of such offer to NEP. NEP’s option to purchase such Net Capability
and Net Electric Output of each or any of the Facilities shall survive
expiration or termination of this Agreement and shall terminate only upon
agreement by a third party to purchase such Net Capability and Net Electric
Output upon substantially the same terms and purchase price most recently
offered to NEP, but not accepted by NEP, within forty-five (45) days of Seller’s
presentation of such offer to NEP. For purposes of this paragraph, a purchase
price that is substantially the same as that offered to any third party shall
equal the purchase price offered to any such third party reduced by all costs
that would be incurred by Seller and/or such third party in
connection with the transmission of the particular Facility’s Net Electric
Output from the Facility to such third party.
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ARTICLE
IV. OPTIONAL CONTRACT
SALE
Seller
shall have the option, exercisable on or before January 1, 1988, to
contract with another utility for the sale of up to fifty percent (50%) of
the
Net Capability and the Net Electric Output of the Facilities for a term
commencing with the Commencement Date of operation and extending for an
uninterrupted period not to exceed twenty (20) years, provided that the
percentage of the Net Capability and Net Electric Output so sold (the “Contract
Percentage”) is fixed throughout such term (any such contract shall be
hereinafter referred to as the “Optional Contract.”)
If
Seller
exercises such option, then NEP shall have the right, exercisable by written
notice given to Seller not less than ninety (90) days prior to the expiration
of
the term of the Optional Contract, to elect to purchase the Contract Percentage
from Seller under the terms and conditions of this Agreement from the Optional
Contract’s expiration date through the expiration date of this Agreement but at
a price per kilowatthour delivered equal to the average of (i) the price
calculated in accordance with Article VI B (the “Contract Price”) and (ii) Rate
X as determined from time to time.
If
NEP
does not so elect, then Seller shall have the right, exercisable by written
notice given to NEP not less than sixty (60) days prior to the expiration of
the
term of the Optional Contract, to elect to sell the Contract Percentage to
NEP
(and if Seller so elects, NEP shall purchase and receive the Contract
percentage) under the terms and conditions of this Agreement from the Optional
Contract’s expiration date through the expiration date of this Agreement but at
a price per kilowatthour delivered equal to the lesser of Rate X or the Contract
Price, both as determined from time to time. If Seller does not so elect, Seller
shall have the right to sell the Contract Percentage to another electric
utility.
ARTICLE
V. TERMS OF SALE
Seller
agrees that the Facilities shall be designed, constructed, operated and
maintained such that they reasonably may be expected (i) to have a monthly
average Net Electric Output not exceeding twelve thousand kilowatts (12,000
KW)
per hour and (ii) to produce collectively a constant Net Electric Output for
a period of not less than thirty (30) years. During the design and construction
of the Facilities, Seller shall provide NEP with such information as NEP may
request to determine whether the Facilities are being so designed and
constructed.
Seller
shall choose an architect/engineer firm (“AE Firm”) for the design, or for the
review of the design if such design is provided by Sellers vendor(s), of each
of
the Facilities, which selection shall be subject to approval by
NEP. NEP hereby approves the selection of Xxxxxx-Xxxxxx as the AE
Firm, and NEP shall not unreasonably withhold approval of any other AE Firm
selected by seller. If NEP fails to approve or disapprove Seller AE Firm
selection within thirty (30) days of a presentation by the proposed AE Firm
to
NEP of its design capabilities, NEP shall be deemed to have approved the
selection for all purposes of this Agreement. NEP and Seller shall mutually
choose a qualified independent engineering firm (“I.E.
Firm”) to evaluate the design of each of the Facilities at Seller’s expense. The
scope of the I.E. Firm’s design evaluation shall be subject to Seller’s review
and NEP’s review and approval. The I.E. Firm’s design evaluation of each
Facility shall be provided to NEP in writing prior to commencement of the
construction of the Facility. Unless NEP and Seller agree otherwise in writing,
Seller shall cause the AE Firm to make all changes in the Facility’s design that
the I.E. Firm determines are necessary to meet the requirements of the preceding
paragraph and Good Utility Practice. Seller shall cause each of the Facilities
to be constructed in accordance with the resulting design. Seller shall insure
that all equipment used in each of the Facilities shall be new and unused,
good
quality utility grade, suitable for the intended service and shall meet the
requirements of applicable codes and standards.
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Prior
to
the later to occur of the Commencement Date of Operation or January 1, 1989,
Seller shall sell and deliver and NEP shall purchase and receive the NEP
Entitlement in each of the Facilities when and if available at the price
specified in ARTICLE VI A, below. Thereafter, Seller shall sell and deliver,
and
NEP shall purchase and receive, the NEP Entitlement in each of the Facilities
at
the price specified in ARTICLE VI B, below. NEP agrees to accept delivery of
the
NEP Entitlement in each of the Facilities. NEP shall not, however, be liable
for
any damages arising from its inability to accept delivery of any electricity
that each or any of the Facilities are otherwise capable of generating if NEP
uses all reasonable efforts to promptly restore such ability. Seller shall
install and maintain in a safe manner, and in accordance with Good Utility
Practice and applicable regulations, all of its equipment and facilities
connected to NEP’s System. If at any time the operation of each or any of the
Facilities endanger the safety of NEP’s personnel, or interferes with the safe
and reliable operation of NEP’s System, NEP may discontinue purchases from
Seller and disconnect from such Facility until such condition has been
corrected. Unless an emergency exists, or the risk of one is imminent, NEP
shall
give Seller reasonable notice of its intention to disconnect from each or any
of
the Facilities and to discontinue purchases from Seller, and where practical,
allow suitable time for Seller to remove the interfering condition. NEP shall
reasonably cooperate with Seller in Seller’s efforts to remove such interfering
condition. Any costs incurred by NEP in so cooperating shall be at Seller’s
expense. NEP’s judgments with regard to discontinuance of purchases or
disconnection of each or any of the Facilities under this paragraph shall be
made in accordance with Good Utility Practice.
Seller
shall cause, at Seller’s expense, the AE Firm, equipment vendor or such other
party as may be chosen by Seller and approved by NEP which approval will not
be
unreasonably withheld, to prepare a plan and schedule for annual ongoing
maintenance and spare parts inventory as well as a plan for less frequent major
overhaul work on each of the Facilities’ generators, gas collection systems, and
auxiliary equipment. Such plan shall be subject to NEP’s approval, which shall
not be unreasonably withheld and shall conform to the recommendations of the
equipment vendors and the AE Firm. Seller shall provide such plan to NEP prior
to the Commencement Date of Operation. Subject to the following paragraph,
Seller shall perform maintenance of each of the Facilities in accordance with
such plan.
Seller
shall cause, at Seller’s expense, an independent engineering firm (“I.E.
O&M”) selected by Seller and approved by NEP (which approval shall not be
unreasonably withheld) to conduct a review of each of the Facilities’ operation
and maintenance practices after the second and before the third anniversary
of
the Commencement Date of Operation, and, unless the parties otherwise
agree, every five years thereafter. In addition, such a review shall
be conducted at NEP’s written request in any year following a two calendar year
period in which, for each of the two calendar years, the Net Electric Output
of
the Xxxxxxxx Facility is less than ninety percent (90%) of the Xxxxxxxx “KWHr
Production (1000 KWH)” set forth in Appendix B, attached hereto and incorporated
herein by reference. Seller shall cause the I. E. O&M to issue a written
report describing the extent to which the maintenance plan and schedule
described in the preceding paragraph is being followed, a description of and
a
statement of the reasons for any justified departure from such schedule or
plan,
a description of any deficiencies in the Facility’s operation and maintenance
practices, and its recommendations, if any, for improving future operation
and
maintenance practices. Seller shall implement any recommendations made by the
I.E. O&M that the I.E. O&M determines are necessary to meet Good Utility
Practice unless Seller and NEP mutually agree otherwise. Seller shall keep
and
make available adequate maintenance logs for use by the I. E. O&M and/or NEP
for the purpose of this review.
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Seller
agrees to operate the Facilities in parallel with NEP System and to deliver
the
NEP Entitlement in each of the Facilities to NEP at the delivery points and
voltage levels specified in ARTICLE VIII, below. Unless otherwise requested
by
NEP, Seller shall operate each of the Facilities at a unity power factor or
in
an over excited condition at the point of delivery to NEP, subject to the
response tine of control equipment to transient conditions on NEP System. If
Seller fails to operate each or any of the Facilities at a unity power factor
or
in an over excited condition, NEP may install, at Seller’s expense, capacitors
or other electric equipment necessary to ensure that such Facility can be so
operated. NEP shall have the right on a short—term emergency basis to request
that Seller operate each or any of the Facilities at any excitation level within
the range of the particular Facility’s capability as determined from the
equipment manufacturer’s recommendations. Seller agrees to use all reasonable
efforts to comply with any such request from NEP.
At
NEP’s
sole option, NEP shall have the right to claim credit for (i) all or a portion
of each or any emission to the air from each or any of the Facilities and the
associated equivalent Btu heat input or (ii) the equivalent Btu heat input
to
each or any of the Facilities, that can be associated, per statutes, laws,
regulations, ordinances, government standards and/or government regulations,
with generation at the particular Facility. If NEP exercises such option, NEP
shall reimburse Seller for all incremental expenses incurred by Seller and
associated with such credits, beyond those required for the particular Facility
to meet applicable environmental regulations. In no case shall NEP claim a
credit at any time if it would cause the Facility to be in violation of the
Facility’s applicable all quality emissions limit or any other applicable laws
or regulations and NEP shall have no liability in the event the Facility fails
to meet applicable environmental regulations.
If
the
Federal Energy Regulatory Commission (FERC) determines that each or any of
the
Facilities is not a Qualifying Facility pursuant to 18 C.F.R. Part 292, or
each
or any of the Facilities otherwise becomes subject to Section 205 of the Federal
Power Act or any similar federal requirement, Seller shall file, within sixty
(60) days of such event, a rate with FERC requiring payments for electricity
generated by such Facility(ies) and sold by Seller to NEP to be based on
Seller’s reasonable costs of generating electricity but in no event at a rate
higher than the applicable rates specified in Article VI hereof, effective
as of
the date of such event.
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During
the term of this Agreement, Seller agrees that Seller shall not permit landfill
gas purchased by it at each or any of the landfills on which the Facilities
are
located, or waste heat and/or steam generated by each or any of the Facilities,
to be sold or used for any purpose other than generating electricity, unless
required by regulatory f authorities, without NEP prior written approval which
approval shall be granted if Seller demonstrates to NEP’s satisfaction that such
sale or use would not adversely affect the present or future level of
electricity production at the particular Facility over the remaining tern of
this Agreement.
Seller
agrees that during the term -of this Agreement it will not sell or otherwise
dispose of its interest in each or any of the Facilities without first obtaining
NEP’s written consent, which consent shall not be unreasonably
withheld.
Commencing
as of the Commencement Date of Operation, Seller shall:
(1) Operate
the electric generating unit(s) at each of the Facilities to the maximum extent
feasible consistent with Good Utility Practice; Sell shall provide NEP with
such
information at NEP may reasonably request to determine whether each of the
Facilities is being so operated and maintained.
(2) Operate
and maintain each of the Facilities in accordance with Good Utility Practice;
Seller shall provide NEP with such information as NEP may reasonably request
to
determine whether the Facilities are being so operated and
maintained.
(3) Provide
NEP prior to the first day of January of each year, or at NEP’s reasonable
request, an estimate of the amount of electricity to be generated at each of
the
Facilities for each of the following twelve (12) months beginning January 1,
or
the first day of the month following NEP’s request;
(4) Provide
NEP, or its designee, prior to the first day of each month, a schedule of the
anticipated generation of electricity at each of the Facilities for such
month;
(5) At
NEP’s request, provide NEP, or its designee, prior to 9:00 a.m. of each day, a
schedule of the anticipated generation of electricity at each of the Facilities
for the next day;
(6) Use
all reasonable efforts to maximize delivery of electricity from each of the
Facilities during On-Peak Periods;
(7) Conduct
scheduled maintenance of each of the Facilities during reasonable periods
designated by NEP. NEP shall designate such periods for each calendar
year in writing during the preceding December, but not less than ninety (90)
days prior to the beginning of a period so designated;
(8) Cooperate
with NEP in the arrangement and conduct of any tests required under the NEPOOL
Agreement to determine the Net Capability of each of the Facilities and in
operating each of the Facilities in conformity with any applicable requirements
of NEPEX and/or its satellite dispatching center, including providing such
operating and/or design information to NEP or its designee as NEP may request;
and
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(9) Provide
NEP such supporting information related to billing as NEP may reasonably
request.
The
estimates and schedules provided by Seller under Clauses (3), (4) and (5),
above, shall be prepared in good faith, based on landfill gas availability
and
other conditions anticipated at the time such estimates and schedules are made,
but shall not be binding on Seller. Seller shall, however, promptly
inform NEP whenever it appears that actual generation at each or any of the
facilities will vary more than ten percent (10%) from the most recent estimates
or schedules provided under Clause (3), (4), or (5), above.
The
parties recognize that emergencies, accidents, other unusual conditions and
events of force majeure as defined in Article XIV, may necessitate a departure
from scheduled generation. Seller, however, agrees to use all reasonable efforts
to promptly resume scheduled generation.
ARTICLE
VI. PRICE AND BILLING
A. Prior
to July 1, 1988, NEP shall pay Seller monthly for quantities of electricity
delivered for sale to NEP hereunder, as determined in accordance with ARTICLE
VIII, a price in cents per kilowatthour equal to ninety percent (90%) of Rate
X.
Commencing on July 1, 1988, and extending until the later to occur of January
1,
1989 or the Commencement Date of Operation, NEP shall pay Seller monthly for
quantities of such electricity, a price in cents per kilowatthour equal to
four
and eight-tenths cents ($.048) per kilowatthour delivered during On-Peak Periods
and two and eight-tenth cents ($.028) per kilowatthour delivered during Off-Peak
Periods.
B. Commencing
on the later to occur of January 1, 1989 or the Commencement Date of Operation,
NEP shall pay Seller monthly for quantities of electricity delivered for sale
to
NEP hereunder, as determined in accordance with ARTICLE VIII, a price in cents
per kilowatthour calculated in accordance with the following
formula:
P
= [Q + (R x S)] x U
T
Where
“P”
is
the total price in cents
per kilowatthour;
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“Q”
is three and one-half cents (3.5¢) per kilowatthour for electricity
delivered during On-Peak Periods and one and one-half cents (1.5¢) per
kilowatthour for electricity delivered during Off-Peak Periods,
respectively. NEP may, at its option, upon thirty (30) days
written notice to Seller, increase or decrease “Q” for On-Peak Periods and
increase or decrease “Q” for Off-Peak Periods; provided, however,
that the average value of “Q” for On-Peak Periods and Off—Peak Periods,
weighted by the number of hours in the On-Peak and Oft-Peak Periods,
shall
equal the average value of “Q” for On-Peak Periods and Off-Peak Periods,
weighted by the number of hours in the On-Peak and Off-Peak Periods,
prior
to such revision;
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“R
is three cents (3¢) per
kilowatthour;
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“S”
is 1.00 through December 31, 1989 and in each calendar year thereafter
“S”
is the Consumer Price Index for Urban Wage Earners and Clerical Workers,
unadjusted for seasonal variations, all items indexed for Boston,
Massachusetts, as published in the Bureau of Labor Statistics’ CPI
Detailed Report (the “CPI Index”) for November of the preceding Calendar
Year; provided, however, that if a CPI Index is not published for
November, “S” shall be the CPI Index for the first preceding month for
which a CPI Index is published;
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“T”
is 1.00 through December 31, 1989 and in each calendar year thereafter
“T”
is the CPI Index for November of 1988; provided, however, that if a
CPI Index is not published for November of 1988 “T” shall be the CPI Index
for the first preceding month for which a CPI Index is published;
and
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“U”
is 1.00 through December 31 of the first full calendar year in which
the
amount paid by NEP under this ARTICLE VI B for the monthly quantities
of
electricity delivered hereunder during the calendar year is less
than the
total amount that would have been paid by NEP for the monthly quantities
of electricity delivered hereunder during the calendar year had the
price
established under this ARTICLE VI B been equal to Rate X as in effect
during the calendar year (the “Crossover Year”); and in each month
thereafter “U” shall be the lesser of 1.00 or an amount calculated in
accordance with the following
formula:
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U
= .5 +
(.5 x K)
L
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Where
“K” is the quantity of electricity in kilowatthours delivered during
the
preceding calendar year; and
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“L”
is:
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(i)
Until December 31 of the year in which the “Aggregate Differential” as
defined in Article VII B, below, is reduced to zero (0), the average
quantity of electricity delivered during the Crossover Year and the
prior
four full calendar years. If fewer than four full calendar years
have
elapsed from the Commencement Date of Operation to the beginning
of the
Crossover Year, “L” shall be determined using the average quantity of
electricity delivered for all full calendar years from the Commencement
date of Operation to the end of the Crossover Year;
and
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(ii)
Thereafter, the “Total Kwhr Production” for the preceding calendar year
specified in Appendix B hereto multiplied by the highest Net Capability
of
the Facilities determined in any year following
the Commencement Date of Operation divided by twelve thousand kilowatts
(12,000 kw).
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If
a CP
Index referred to in “S” above has not been published at the time that such
information is required for billing, the value of “P” shall remain unchanged
until such publication, at which time a retroactive billing adjustment shall
be
made.
In
the
event of any future modification of the basis upon which the CPI Index is
calculated, “T” shall be adjusted to be on a consistent basis with
“S”.
If
publication of the CPI Index is discontinued during the term of this Agreement,
the parties agree to meet and mutually agree upon an alternative, but
substantially equivalent, method of adjusting the value of “R”, above, in
determining the price to be paid by NEP under this Paragraph B.
If
the
CPI Index employed in calculating the price to be paid by NEP during any month
is subsequently revised, then such price shall be recalculated using the revised
information and the bills and payments for such month shall be retroactively
adjusted to reflect such recalculated price.
Notwithstanding
the preceding provisions of this ARTICLE VI B, if Seller delivers a quantity
of
electricity during the On-Peak Period or Off-Peak Period in any month that
exceeds an amount equal to the product of (i) one (1) minus the Contract
Percentage (if any) (expressed as a decimal) times (ii) twelve thousand
kilowatts (12,000 KW) multiplied by the number of On-Peak hours or Off-Peak
hours during the month, respectively (the “Maximum Participation Level”), then
NEP shall not be required to pay Seller for any quantity of electricity
delivered to NEP in excess of the Maximum Participation Level in the respective
On-Peak or Off-Peak Period.
C. Bills
for all amounts due under this ARTICLE VI shall be tendered to NEP monthly.
A
separate xxxx shall be rendered for electricity delivered to NEP from each
of
the Facilities. At NEP’s request, each xxxx shall contain a breakdown of the
amount billed expressed in terms of the fuel-related and non-fuel-related cost
to NEP of electricity purchased hereunder.. The breakdown shall be presented
on
both a cents per kilowatthour basis and a total xxxx basis. The fuel-related
cost to NEP shall be deemed to be equal to a percentage of NEP’s avoided fuel
cost per kilowatthour to be specified by NEP and the non-fuel-related cost
to
NEP shall be deemed to equal the balance. In no event shall any such breakdown
of the amount billed result in any increase or reduction in the price payable
by
NEP to Seller under this ARTICLE VI. If NEP requests such a
breakdown, NEP shall provide Seller with its avoided fuel cost calculation
for
each month on or before the fifth business day of the following month. No such
breakdown shall be construed as indicative, of the cost of fuel or any other
expenses incurred by Seller in generating electricity for sale to
NEP.
Seller
may in writing direct that NEP make payment of bills rendered by Seller
hereunder to a third party such as a trust agent for disbursement. If all or
any
part of any xxxx shall remain unpaid for more than thirty (3) days after NEP’s
receipt of such xxxx, interest at a rate per annum equal to the Prime Rate
shall
thereafter accrue and be payable to Seller either (i) on such unpaid amount,
or (ii) in the event the amount of the xxxx is disputed, on the unpaid amount
finally determined to be due and payable. NEP may dispute all or any part of
any
xxxx by mailing to Seller written notice thereof, stating the reason for such
dispute, within thirty (30) days of receipt of such xxxx and by paying to Seller
any amount not in dispute. Both parties shall exercise good faith in resolving
any such dispute in a timely manner.
10
ARTICLE
VII.
DEFAULT/TERMINATION/SECURITY/COMPLETION SECURITY
AND MILESTONES
A. Events
of Default. The occurrence of any one or more of the following
shall constitute an “Event of Default” hereunder:
(1) If,
except to the extent permitted under ARTICLE VI C, above, with regard to amounts
in dispute, NEP shall fail to make any payment required pursuant to ARTICLE
VI,
above, and such failure continues for a period of forty-five (45) days after
written notice thereof from Seller;
(2) If
(i) Seller shall fail in any material respect to comply with, observe, perform
or shall default in any material respect upon any covenant, warranty or
obligation under this Agreement and such failure materially adversely affects
the NEP Entitlement in the Facilities, Seller’s ability to furnish to NEP the
NEP Entitlement in the Facilities or NEP’s ability to take and receive such NEP
Entitlement during the term of this Agreement, and (ii) after written notice
thereof from NEP, such failure shall continue for a period of forty-five (45)
days, or, if such failure cannot reasonably be cured within such forty-five
(45)
day period, such further period as shall reasonably be required to effect such
cure, provided that Seller commences within such forty-five (45) day period
to
effect such cure and at all times thereafter proceeds diligently to complete
such cure as quickly as reasonably possible;
(3) If
(i) there shall be filed by or against Seller a petition initiating proceedings
under the Bankruptcy Code and such proceedings shall not be dismissed within
forty-five (45) days or (ii) if Seller shall be in default under the terms
of
any obligation or agreement secured by any lien(s) and/or security interest(s)
on or in Seller’s properties and assets at the Facilities (including, without
limitation, any leasehold interest in or possessory interest in the Facilities
and any licenses or other rights to use, manage and/or occupy the Facilities,
as
applicable) and the holder of such lien(s) and/or security interest(s) shall
give notice of intention to accelerate and thereafter to commence action to
foreclose or otherwise realize on the properties and assets of Seller securing
such obligation and/or agreement (hereinafter “Default Notice”) and Seller does
not cure such default on or before the expiration of any grace period or waiver
applicable to such obligation or agreement; provided, however, that any
occurrence set forth in this clause (3) shall not constitute an Event of Default
if within forty-five (45) days of the initiation of such proceedings or the
giving of such Default Notice Seller instructs NEP in writing to reduce each
monthly payment otherwise due Seller from NEP under Article VI, above, during
the period that such proceedings remain outstanding or such default remains
uncured by an amount equal to the amount by which the Aggregate Differential,
as
defined in ARTICLE VII B, below, would otherwise have increased over the amount
determined for the preceding month. If Seller so instructs NEP, and if such
proceedings are subsequently terminated or such default is subsequently cured
and Seller reaffirms its intention to perform its obligations hereunder and
provides
adequate assurance of its ability to perform such obligations, then, within
thirty (30) days of NEP receipt of written notice from Seller of the termination
of such proceedings or the cure of such default, NEP agrees to pay Seller any
aggregate amount by which each of NEP monthly payments have been reduced in
accordance with this clause (3) plus interest accrued on each such monthly
reduction commencing as of the date of such reduction at a rate per annum equal
to the Prime Rate in effect on the first business day of each
month;
11
(4) If
Seller fails to make a required monthly deposit into the Escrow Account as
provided in ARTICLE VII C, below, or if Seller fails to deposit with NEP the
Irrevocable Letter of Credit as provided in ARTICLE VII D, below;
(5) If
Seller grants a security interest in the Escrow Account established in
accordance with ARTICLE VII C, below, to any party other than NEP;
and
(6) If,
prior to December 31, 1996, the currently permitted landfill site on which
the
Xxxxxxxx Facility is located does not receive for disposal municipal and
commercial solid waste at an average rate of either (i) at least five hundred
(500) tons per day over any consecutive two (2) month period, or (ii) at least
one thousand (1000) tons per day over any consecutive twelve (12) month period;
provided, however, that any occurrence set forth in this clause (6) shall
not constitute an Event of Default if within forty-five (45) days of such
occurrence Seller instructs NEP in writing to reduce each monthly payment
otherwise due Seller from NEP under ARTICLE VI, above, during the period such
default remains uncured by an amount equal to the amount by which the Aggregate
Differential, as defined in ARTICLE VII B, below, would otherwise have increased
over the amount determined for the preceding month. If Seller so instructs
NEP.
and such default is subsequently cured or if Seller demonstrates to NEP
reasonable satisfaction that the Facilities can be expected to generate a Net
Electric Output during the balance of this Agreement at a level equal to the
projected “Total kWhr Production” specified in Appendix B hereto over the
balance of this Agreement times the highest Net Capability of the Facilities
determined in any year following the Commencement Date of Operation divided
by
twelve thousand kilowatts (12,000 kW), then, within thirty (30) days NEP agrees
to pay Seller any aggregate amount by which each of NEP’s monthly payments have
been reduced in accordance with this clause (6) plus interest accrued on each
such monthly reduction commencing as of the date of such reduction at a rate
per
annum equal to the Prime Rate in effect on the first business day of each
month.
Seller
shall notify NEP immediately upon the occurrence of an event described in Clause
(3)(i), Clause (3)(ii), Clause (5), or Clause (6), above.
The
enumeration of Events of Default hereunder shall not be construed to limit
or
exclude the right of the parties hereto to seek remedies at law or in equity
or
damages for the breach of any other term, condition, covenant, warranty or
obligation hereunder.
B. Termination. If
an Event of Default shall occur and be continuing, the non—defaulting party may,
by notice in writing, terminate this Agreement as of the date of such
notice.
12
In
the
event of the termination of this Agreement by NEP pursuant to this ARTICLE
VII
B, Seller acknowledges and agrees that NEP will suffer direct damages as a
result of such termination and that such direct damages are not susceptible
of
easy determination, but shall in all events be at least equal to the Aggregate
Differential, as hereinafter defined, and Seller agrees to pay NEP (as
liquidated damages, and not as a penalty) an amount equal to the Aggregate
Differential, if any, as of the date of such termination, plus interest
thereafter accrued at a rate per annum equal to the Prime Rate.
Notwithstanding
any other provision of this Agreement to the contrary, neither the determination
of the Aggregate Differential nor seller’s agreement to pay the Aggregate
Differential to NEP as liquidated damages shall be construed to limit or affect
NEP’s right to assert and prove further direct damages in the event of Seller’s
breach of or NEP’s termination of this Agreement, but not direct damages
relating to past or future power supply unless Seller breaches ARTICLE V of
this
Agreement by voluntarily selling or otherwise disposing of its interest in
each
or any of the Facilities.
For
purposes of this Agreement, the term “Aggregate Differential” shall mean an
amount determined each month following July 1, 1988 in accordance with the
following formula:
A
= (B + [[(W x U) — V] x C]] x (1 +
F)
Where
“A”
is the Aggregate Differential for the month;
“B”
is
the prior month’s Aggregate
Differential;
“C
is the
quantity of electricity delivered hereunder, as determined in accordance
with
ARTICLE VIII, for the month, expressed in kilowatthours;
“W”
is
equal to the following amounts
per kilowatthour delivered:
1988 $.0380 1998 $.0677 2008 $.0882
1989 .0550 1999 .0694 2009 .0907
1990 .0562 2000 .0712 2010 .0934
1991 .0574 2001 .0730 2011 .0961
1992 .0587 2002 .0750 2012 .0989
1993 .0601 2003 .0770 2013 .1019
1994 .0615 2004 .0790 2014 .1050
1995 .0630 2005 .0812 2015 .1082
1996 .0645 2006 .0834 2016 .1115
1997 .0661 2007 .0858 2017 .1150
“U”
is
as calculated in Article VI
B.
“V”
is
equal to the following amounts
per kilowatthour delivered:
1988 $.0342 1998 $.0945 2008 $.1332
1989 .0371 1999 .0972 2009 .1389
13
1990 .0390 2000 .1001 2010 .1450
1991 .0464 2001 .1037 2011 .1515
1992 .0512 2002 .1075 2012 .1585
1993 .0555 2003 .1109 2013 .1659.
1994 .0598 2004 .1147 2014 .1738
1995 .0844 2005 .1189 2015 .1823
1996 .0891 2006 .1233 2016 .1915
1997 .0917 2007 .1279 2017 .2015
;
and
“F”
is
.0075
C. Security.
To
secure
the payment by Seller to NEP of the Aggregate Differential, as
provided in ARTICLE VII B above, Seller shall establish, on or prior to July
1, 1988, an interest bearing escrow account (the “Escrow Account”) with a
banking institution acceptable to NEP (the “Escrow Agent”). The Escrow Account
shall be established for the benefit of NEP. Seller hereby grants to NEP a
security interest in the Escrow Account to secure such payment.
Subject
only to Seller’s approved financing, fuel, operation and maintenance obligations
as detailed in Appendix C, attached hereto and incorporated herein by reference,
each month following July 1, 1988 Seller shall deposit into the Escrow Account
an amount equal to five percent (5%) of the total amount paid by NEP to Seller
for electricity delivered to NEP under ARTICLE VI of this Agreement during
the
preceding month; provided, however, that if Seller exercises its option
to enter into an Optional Contract under ARTICLE IV, above, the amount to be
so
deposited during the term of the Optional Contract shall be increased to seven
percent (7%) of the total amount paid by NEP to Seller for electricity delivered
to NEP under ARTICLE VI of this Agreement during the preceding month. If Seller
has insufficient funds in any month to make such deposit due to Seller’s
approved financing, fuel, operation and maintenance obligations, then Seller
shall provide NEP with written notice of the basis for Seller’s inability to
make its required deposits and Seller shall make up the shortfall, together
with
interest accrued at a rate per annum equal to the Prime Rate, in the first
month(s) in which Seller has sufficient funds to both make its required monthly
deposit into the Escrow Account and to make up or to reduce such shortfall.
Seller’s obligation to make deposits under this ARTICLE VII C shall continue and
interest shall accrue until the Aggregate Differential is less than the amount
in the Escrow Account, at which xxxx Xxxxxx shall have the right to discontinue
making such deposits and Seller may withdraw from, and NEP consents to the
withdrawal from, the Escrow Account any amount by which the balance in the
Escrow Account exceeds the Aggregate Differential from time to time. Such
withdrawals may be made at any time but not more often than monthly. Withdrawals
shall be made only by a direction to the Escrow Agent made in writing jointly
by
Seller and NEP. If a balance exists in the Escrow Account at the expiration
or
termination of this Agreement, such balance shall be paid to NEP.
Notwithstanding the foregoing, Seller may at any time and from time to time
withdraw any part or all of the balance of the Escrow Account after providing
NEP with one or more irrevocable letters of credit issued by a banking or other
financial institution reasonably acceptable to NEP (the “Issuer”), and otherwise
in accordance with
this
paragraph. Such irrevocable letter(s) of credit shall be in a total amount
equal
to the amount to be withdrawn from the Escrow Account by Seller, plus compound
interest on the principal amount to be withdrawn, at the then effective rate
of
interest on the Escrow Account balance, for the initial term of the letter(s)
of
credit. The letter(s) shall be payable to, and for deposit in, the Escrow
Account on the twentieth banking day before the expiration of such letter(s).
An
irrevocable letter of credit as described herein shall be presented to NEP
for
its approval as to form at least ten (10) days prior to the effective date
thereof, such approval not to be unreasonably withheld, and shall be made
effective prior to the corresponding withdrawal of funds by Seller pursuant
to
this paragraph.
14
Any
fees
charged by the Escrow Agent to maintain the Escrow Account shall be paid
directly by Seller and shall not be deducted from the Escrow
Account.
D. Completion
Milestones and Security. NEP is relying on the future
availability of the NEP Entitlement in the Facilities to meet the needs of
its
customers. Seller shall within ten days of the effective date of this Agreement
provide NEP with a written development plan that outlines preoperational
milestones. The plan shall include, at a minimum, milestone dates for financial
closing, permitting (including, without limitation, zoning, air quality, water
quality, waste handling), construction start date, and Commencement Date of
Operation. Seller shall provide NEP with a quarterly status report on its
progress in meeting each of the milestones in its development plan until the
Commencement Date of Operation. In addition, Seller shall provide-NEP with
immediate written notice of any occurrences of which it is aware that are likely
to substantially delay construction start date or the Commencement Date of
Operation of the Facilities. Seller shall immediately notify NEP in writing
if,
and at such time that, it decides to discontinue its efforts to construct the
Facilities. If its reason for such decision is the denial of a site or
environmental permit required by law for the construction of the Facilities,
Seller shall identify for NEP the permit that has been denied and provide NEP
with documentation of such denial.
Seller
shall, within ten days of the effective date of this Agreement, deposit with
NEP
an Irrevocable Letter of Credit in the initial amount of $12,000, which amount
shall be increased to $120,000 on the earlier to occur of (i) the date on which
Seller closes on its financing or lease for the electric generating equipment
at
the Xxxxxxxx Facility or (ii) the first anniversary date of the effective date
of this Agreement, drawn on a bank or other financial institution reasonably
acceptable to NEP (the “Issuer”). Such Irrevocable Letter of credit
shall designate NEP as beneficiary with authority to draw drafts on the Issuer
as follows:
15
Upon
Presentation by NEP of
a
Signed
Statement Over a
Signature
Described as
|
Amount
Payable to NEP
|
“Authorized” that: |
|
(i)
$12,000
|
“On
or prior to twelve months after the effective date of its power purchase
agreement with New England Power Company, Northeast Landfill Power
Company
notified New England Power Company in writing of its decision to
discontinue its efforts to construct the Xxxxxxxx Facility contemplated
in
such power purchase agreement.”
|
Or,
alternatively,
|
“Subsequent
to twelve months after the effective date of its power purchase agreement
with New England Power Company, Northeast Landfill Power Company
notified
New England Power Company in writing of its decision to discontinue
its
efforts to construct the Xxxxxxxx Facility contemplated in such power
purchase agreement due to the denial of a site or environmental permit
required by law for construction of such
Facility.”
|
|
(ii)
$120,000
|
“Subsequent
to twelve months following the effective date of its power purchase
agreement with New England Power Company, Northeast Lanfill Power
Company
notified New England Power Company in writing of its decision to
discontinue its efforts to construct the Xxxxxxxx Facility contemplated
by
such power purchase agreement for reasons other than the denial of
a site
or environmental permit required by law for construction of such
Facilities.”
|
|
(iii)
$120,000
|
“As
of December 31, 1989, the ‘Commencement Date of Operation’ of the
Facilities, as defined in the power purchase agreement between Northeast
Landfill Power Company and New England Power Company, has not
occurred.”
|
Seller
and NEP agree that the Irrevocable Letter of Credit shall not be exercised
except as specified above. If Seller issues a notice in writing to NEP as
provided in clause (i) or (ii), above, or following the date specified in clause
(iii), above, NEP shall have ninety (90) days within which
to
draw drafts on the Irrevocable Letter of Credit. IF NEP fails to draw such
drafts, it shall be deemed to have waived all rights that are provided it under
this ARTICLE VII D.
16
As
soon
as reasonably practicable following (i) NEP’s receipt of the payment specified
in Clauses (i), (ii), or (iii), above or (ii) the Commencement Date of
Operation, the Irrevocable Letter of Credit shall expire, and NEP shall return
it to Seller.
Seller
acknowledges and agrees that NEP will suffer direct damages as the result of
any
decision by Seller to discontinue the construction of the Xxxxxxxx Facility,
or
the delay beyond December 31, 1989 of the Commencement Date of Operation of
the
Facilities and that such direct damages shall in all events be at least equal
to
the amounts specified above as payable to NEP under the Irrevocable Letter
of
Credit in connection with such event, and Seller agrees that such amounts shall
be payable to NEP as provided above as liquidated damages, and not as a
penalty.
ARTICLE
VIII. DELIVERY AND MEASUREMENT OF
ELECTRICITY
The
Net
Electric Output generated by each of the Facilities shall be delivered to NEP
at
points of interconnection between NEP’s System and Seller’s systems in the form
of three-phase sixty-hertz alternating current at a voltage determined by mutual
agreement of the parties. Momentary voltage fluctuations shall be permitted,
provided that they neither disturb service provided by NEP or any affiliate
of
NEP to its customers nor hinder NEP or any affiliate of NEP in maintaining
proper voltage conditions. The location of the interconnection points for each
Facility shall be determined prior to the commencement of the Facility’s
construction by mutual agreement of the parties.
NEP
shall, at Seller’s expense, provide, own, and maintain metering, telemetering
and communication equipment at each of the Facilities for measuring and
reporting electricity delivered to NEP and the status of switching equipment.
Seller shall provide suitable space at each of the Facilities for installation
of the metering, telemetering and communication equipment at no cost to NEP
The
metering equipment shall comply with Good Utility Practice and shall be capable
of recording var flow and of segregating electricity delivered during On-Peak
Periods arid Off-Peak Periods.
NEP
agrees to cause its interconnection and transmission facilities to be operated
and maintained in accordance with Good Utility Practice so as to permit the
delivery to NEP’s System of each of the Facilities’ Net Electric
Output.
Meters
shall be read by Seller on the first business day of each month. The quantity
of
electricity delivered for sale to NEP during the preceding month shall be
determined by multiplying such readings by the NEP Entitlement (expressed as
a
decimal). Daily meter readings and log sheets shall be recorded. If NEP so
requests, one (1) copy shall be mailed to NEP each day from each of the
Facilities.
17
All
metering equipment associated with the Facilities shall be routinely tested
in
accordance with Good Utility Practice, at Seller’s expense. Such routine tests
shall be conducted not more often than annually. Either party may at any
time
require an additional test of the metering equipment, provided that the
requesting party shall pay the cost of such test. If, at any time, any metering
equipment is found to be inaccurate by more than two percent (2%), NEP shall
cause such metering equipment to be made accurate or replaced if necessary
at
Seller’s expense, and meter readings for the period of inaccuracy shall be
adjusted so far as the same can be reasonably ascertained, but no adjustment
prior to the beginning of the preceding month shall be made by agreement
of the
parties. The test shall be made in such manner as may be mutually and reasonably
agreed upon by the parties. Each party shall comply with any reasonable request
of the other concerning the sealing of meters, the presence of a representative
of the other party when the seals are broken and the tests are made, and
other
matters affecting the accuracy of the measurement of electricity delivered
from
the Facilities. Copies of the test reports shall be made available to both
parties. If either party believes that there has been a meter failure or
stoppage, it shall immediately notify the other.
ARTICLE
IX. CONSTRUCTION OF INTERCONNECTION
FACILITIES
The
interconnection facilities associated with each of the Facilities shall be
constructed at Seller’s expense. NEP reserves to itself and its affiliates the
construction and ownership of all necessary modifications to its system
attributable to the interconnection of each of the Facilities. Seller agrees
to
pay NEP in advance for all costs that NEP reasonably estimates will be incurred
in connection with such activities. NEP shall prepare its estimate in good
faith
and in accordance with Good Utility Practice. Upon completion of construction,
NEP shall prepare a breakdown of all costs incurred in connection with such
activities and the parties agree to make a final adjustment to correct for
any
overpayment or underpayment. NEP represents that in making the interconnections,
it will use standard equipment customarily employed by NEP for its own system,
all in accordance with Good Utility Practice.
Seller
shall be responsible for construction of all other interconnection facilities
associated with each of the Facilities. As soon as reasonably practicable,
Seller shall furnish, for review and approval by NEP, specifications for such
facilities, which approval shall not be unreasonably withheld. Responsibility
for making the final interconnection between the systems is reserved exclusively
to NEP or its affiliates. Prior to making such interconnections with each of
the
Facilities, NEP shall have the right to require Seller to provide satisfactory
documentation that the Facility and the interconnection facilities constructed
by Seller comply with all applicable safety and electrical codes. NEP agrees
to
exercise good faith in undertaking such interconnections in a timely
manner.
ARTICLE
X. ACCESS TO FACILITIES
Properly
accredited representatives of NEP or an Affiliate of NEP shall at all reasonable
times have access to each of the Facilities to make inspections and obtain
information required in connection with this Agreement. While at a Facility,
such representatives shall observe such reasonable safety precautions as may
be
required by Seller and shall conduct themselves in a manner that will not
interfere with the operation of the Facility.
ARTICLE
XI. NOTICES: REPRESENTATIVES OF THE PARTIES
Any
notice, demand or request required or authorized by this Agreement to be given
by one party to the other party shall be in writing. It shall either be
personally delivered or mailed, by
registered or certified mail, postage prepaid, to the representative of the
other party designated in this ARTICLE. Any such notice, demand or request
so
delivered or mailed shall be deemed to be given when so delivered or
mailed.
18
Notices
and other communications by Seller to NEP shall be addressed to:
Manager,
Alternate Energy
Projects
New
England Power Service
Company
00
Xxxxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Notices,
payments and other communications by NEP to Seller shall be addressed
to:
Northeast
Landfill Power
Company
000
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxxxx
00000
Attn: Xxxxxx
X. Xxxxx
President
Either
party may change its representative by written notice to the other.
The
parties’ representatives designated above shall have full authority to act for
their respective principals in all technical matters relating to the performance
of this Agreement. However, they shall not have authority to amend, modify,
or
waive any provision of this Agreement.
ARTICLE
XII. INSURANCE, LIABILITY, INDEMNIFICATION, AND
RELATIONSHIP
OF PARTIES
A. Seller
shall, at its own expense, acquire and maintain. or cause Seller’s agent to
acquire and maintain, throughout the term of this Agreement the following
minimum insurance coverages as adjusted for inflation, as long as such coverages
or reasonably similar coverages are available on reasonable commercial
terms:
|
(i)
|
Statutory
coverage for Worker’s Compensation, and Basic Employers’ Liability
Coverage with a limit no less than
$500,000;
|
|
(ii)
|
Comprehensive
General Liability Coverage including Operations, Contractual Liability
and
Broad Form Property Damage Liability, written with limits no less
than;
|
Bodily
Injury — $3 million per
occurrence
Property
Damage — $1 million per
occurrence
or
$3 million
Combined
Single
Limit;
19
(iii) Comprehensive
Automobile Liability Coverage, including all owned, non—owned, and hired
vehicles, written with limits no less than:
Bodily
Injury
- $1
million per person/
$2
million per accident
Property
Damage
- $500,000
per occurrence;
|
(iv)
|
All
Risk Property Coverage and Boiler and Machinery Coverage against
damage to
each of the Facilities in an amount not less than the full replacement
cost of the Facility (to restore the Facility to its condition prior
to
the casualty loss) and subject to a reasonable
deductible.
|
Such
policies shall be endorsed to
require that:
|
(1)
|
complete
copies of each inspection or other report required by or performed
for the
insurer shall be provided to NEP within thirty (30) days of its
completion,
|
|
(2)
|
the
coverage afforded shall not be canceled or reduced without at least
ninety
(90) days prior written notice to NEP,
and
|
|
(3)
|
the
insurance proceeds shall be applied to repair of the Facility unless
Seller and NEP agree otherwise; and
|
|
(v)
|
Business
Interruption Insurance as is reasonably available under reasonable
commercial terms providing funds to cover all of Seller’s costs to the
extent that they would not be eliminated or reduced by the failure
of each
or any of the Facilities to operate (including but not limited to
rent or
mortgage payments, interest and principal payments on loans or bonds
and
salaries and wages) or a period of at least twelve (12) months after
a
reasonable deductible period.
|
Minimum
insurance coverages required by this Article XII A shall be increased every
five
years to the nearest $100,000 based on experienced inflation.
The
insurance policies specified in Clause (ii) and (iii), above, shall be endorsed
naming NEP, its employees, agents, and affiliates as additional insureds with
respect to any and all third party bodily injury and/or property damage claims
arising from Sellers performance of this Agreement and shall require sixty
(60)
days written notice to be given to NEP of cancellation and/or material change
in
any of the policies.
Evidence
of insurance for the coverages specified herein shall be provided to NEP prior
to the Commencement Date of Operation. During the term of this Agreement,
Seller, upon NEP’s reasonable request, shall furnish NEP with certified copies
of the insurance policies described in this Article XII A.
The
insurance coverages described in Clause (i) through (iii), above, shall be
primary to any other coverage available to NEP or to NEP’s affiliates and shall
not be deemed to limit
Seller’s liability under this Agreement, except to the extent any amounts are
paid by such insurance.
20
B. Notwithstanding
any other provision of this Agreement to the contrary, neither NEP nor Seller,
nor their respective officers, directors, shareholders, partners, agents,
employees, patent or affiliates, or their respective officers, directors,
shareholders, partners, agents or employees shall be liable to the other party
or its parent, subsidiaries, affiliates, officers, directors, shareholders,
partners, agents, employees, successors or assigns, for claims for incidental,
indirect or consequential damages connected with or resulting from performance
or non-performance of this Agreement, including, without limitation, claims
in
the nature of lost revenues, income or profits irrespective of whether such
claims are based upon warranty, negligence, strict liability, contract,
operation of law or otherwise. Neither shall the parent or affiliates of NEP
or
Seller, nor their respective officers, directors, shareholders, partners, agents
or employees, be liable for claims for direct damages connected with or
resulting from performance or non-performance of this Agreement.
C. Seller
agrees to defend, indemnify and save NEP, its officers, directors, shareholders,
partners, employees, agents and affiliates and their officers, directors,
shareholders. partners, employees and agents harmless from and against any
and
all claims, suits, actions or causes of action for damage by reason of bodily
injury, death or damage to property caused by Seller, its officers, directors,
shareholder, partners, employees, agents or affiliates or caused by or sustained
on its facilities, except to the extent caused by an act of negligence or
willful misconduct by an officer, director, shareholder, partner, agent,
employee or affiliate of NEP, its successors or assigns.
D. NEP
agrees to defend, indemnify and save Seller, its officers, directors,
shareholders, partners, employees, agents and affiliates and their officers,
directors, shareholders, partners, employees and agents harmless from and
against any and all claims, suits, actions, or causes of action for damage
by
reason of bodily injury, death or damage to property caused by NEP, its
officers, directors, shareholder, partners, employees, agents or affiliates
or
caused by or sustained on its facilities, except to the extent caused by an
act
of negligence or willful misconduct by an officer, director, shareholder,
partner, agent, employee or affiliate of Seller, its successors or
assigns.
E. Nothing
in this Agreement shall be construed as creating any relationship between the
parties other than that of independent contractors for the sale and purchase
of
electricity generated by the Facilities.
ARTICLE
XIII. ASSIGNMENT
Neither
party shall assign, pledge or otherwise transfer this Agreement or any right
or
obligation under this Agreement without first obtaining the other party’s
written consent, which shall not be unreasonably withheld; except that Seller
may assign its interests in this Agreement, in whole or in part, to a financial
institution in connection with the construction and/or long term financing
of
the Facilities or modification thereof without NEP’s consent and NEP may assign
its rights and obligations to any Affiliate of NEP within the New England
Electric System without Seller’s consent.
21
ARTICLE
XIV. FORCE MAJEURE
A. The
parties shall be excused from performing their respective obligations hereunder
and shall not be liable in damages or otherwise, if and only to the extent
that
they are unable to so perform or are prevented from performing by an event
of
force majeure, including, without limitation, storm, flood, lightning,
draught, earthquake, fire, explosion, equipment failure, civil disturbance,
labor dispute, act of God or the public enemy, action of a court or public
authority, or any other cause beyond their control, including, without
limitation, shutdown of, or limited operation of, facilities due to breakdown
or
unscheduled repair or maintenance.
No
event
caused by or resulting from (i) Seller’s or NEP’s failure to operate and
maintain their respective facilities in accordance with Good Utility Practice
or
(ii) the reduction of the landfill gas supply to the Facilities shall be deemed
to be an event of force majeure under this ARTICLE XIV.
B. If
either party shall rely on the occurrence of an event or condition described
in
ARTICLE XIV A. above, as a basis for being excused from performance of its
obligations under this Agreement, then the party relying on the event or
condition shall (i) provide prompt notice to the other party of the occurrence
of the event or condition giving an estimation of its expected duration and
the
probable impact on the performance of its obligations hereunder, (ii) exercise
all reasonable efforts to continue to perform its obligations hereunder, (iii)
expeditiously take action to correct or cure the event or condition excusing
performance, (iv) exercise all reasonable efforts to mitigate or limit damages
to the other party to the extent such action will not adversely affect its
own
interests, and (v) provide prompt notice to the other party of the cessation
of
the event or condition giving rise to its excuse from performance.
ARTICLE
XV. WAIVERS
The
failure of either party to insist in any one or more instance(s) upon strict
performance of any of the provisions of this Agreement or to take advantage
of
any of its rights under this Agreement shall not be construed as a general
waiver of any such provision or the relinquishment of any such right, but the
same shall continue and remain in full force and effect, except with respect
to
the particular instance or instances.
ARTICLE
XVI. REGULATION
This
Agreement and all rights, obligations, and performances of the parties
hereunder, are subject to all applicable state and Federal laws, and to all
duly
promulgated orders and other duly authorized action of any governmental
authority having jurisdiction.
ARTICLE
XVII. INTERPRETATION, DISPUTE RESOLUTION
The
interpretation and performance of this Agreement shall be in accordance with
and
controlled by the law of The Commonwealth of Massachusetts, the State or Federal
Courts in which shall have exclusive original jurisdiction over cases and
controversies arising hereunder.
22
ARTICLE
XVIII. PRIOR AGREEMENT SUPERSEDED
This
Agreement constitutes the entire agreement between the parties hereto relating
to the subject matter hereof and supersedes all previous agreements,
discussions, communications and correspondence with respect to the subject
matter hereof.
ARTICLE
XIX. USE OF LANDFILLS
Seller
represents and warrants that it will secure exclusive rights to purchase the
landfill gas produced at each of the currently permitted landfill sites on
which
the Facilities will be located prior to the Commencement Date of Operation.
Except as provided in Article IV and Article V above, neither Seller, nor its
officers, directors, shareholders, partners, agents, employees, parent or
affiliate, or their respective officers, directors, shareholders, partners,
agents or employees, shall directly or indirectly, sell such landfill gas to
others, assign to others or waive its rights to such landfill gas, or use such
landfill gas to generate electricity for sale.
ARTICLE
XX. SEVERABILITY
If
any
provision or provisions of this Agreement shall be held invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
ARTICLE
XXI. MODIFICATIONS
No
modification to this Agreement shall be binding on either party unless it shall
be in writing and signed by both parties.
ARTICLE
XXII. COUNTERPARTS
This
Agreement may be executed in any number of counterparts, and each executed
counterpart shall have the same force and effect as an original
instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
NEW ENGLAND POWER COMPANY | |||
|
By
|
||
Title: | |||
NORTHEAST LANDFILL POWER COMPANY | |||
By
|
|||
Title: |
23
Page
1 of
2
APPENDIX
A
NEP
uses
a computerized power cost estimation program to establish a relationship between
its average and incremental fuel costs. The program computes the probable fuel
costs annually, on a forward looking basis. Monthly load duration curves, fuel
costs, scheduled unit outages, forced unit outage rates, and unit heat rates
are
considered in a hypothetical unit dispatch to meet NEP’s annual load on a
month-by-month basis. From these data, a relationship between NEP's average
and
incremental fuel cost is established.
By
way of
example, a summary of the calculation of NEP’s 1986 annual factors is attached.
Three computer runs were made. The first run used NEP’s 1986 estimated load
duration curve. The second run was made adding a 100 MW increment of load to
all
on-peak and off-peak hours. The third run was made subtracting a 100 MW
decrement of load from all on-peak and off-peak hours.
The
first
run provided NEP’s 1986 total fuel cost, which was divided by NEP 1986 energy
output to yield its 1986 estimated average fuel cost per MWH. The on-peak
incremental fuel cost was determined by dividing the cost of fuel for the sum
of
the 100 MW increment and the 100 MW decrement of load during the on-peak periods
by the energy produced during said periods, to yield NEP’s on-peak incremental
fuel cost. This, in turn, yielded the 1986 on-peak factor. The same
procedure, using off-peak components, was used to establish NEP’s 1956 off-peak
factor.
Each
month the 1986 factors are multiplied by NEP average fuel cost -- as filed
with
the Federal Energy Regulatory Commission -- to determine NEP’s on-peak and
off-peak incremental fuel costs.
24
Page
2 of
2
APPENDIX
A
METHODOLOGY
FOR CALCULATING
NEP’s
1986 ANNUAL FACTORS
DOLLARS
Estimate
NEP 1986 total fuel cost with . . . .
(1) … no
additional energy (“T”).
|
(2)
|
…
|
100
MW of load added to all on-peak hours (“Ton
+ ”) and
with 100
MW of load added to all off-peak hours (“Toff
+
”).
|
|
(3)
|
…
|
100
MW of load subtracted from all on-peak hours (“Ton
- ”), and
with 100 MW of load subtracted from all off-peak hours (“Toff
-
”).
|
ENERGY
Estimate
NEP’s 1986 energy production (“E”).
Energy
added for on-peak increment/decrement (“Eon”).
Energy
added for off-peak increment/decrement (“Xxxx”).
$/MWH
1986
Estimated Average Fuel Cost = T = $413,198 x 103
=
$21.20/MWH
E 19,490 GWH
1986
Estimated On-Peak Incremental Cost =
Ton+
-
Ton- =
$431,218 – 396,370 = $43.04/MWH
2
Eon 2
x 404.8
1986
Estimated Off-Peak Incremental Cost =
Toff+
-
Toff- =
$428,321 – 398.9 = $31.17/MWH
2
Xxxx 2
x 471.2
On-Peak
Factor
= 43.04 = 2.03
21
.20
Off-Peak
Factor
= 31.17 = 1.47
21.20
00
XXXXXXXX
X
EXHIBIT
1: PROJECTED
OPERATING CAPACITY AND PRODUCTION
Worcester,
MA, Johnston, RI and
Billerica, MA Landfill Gas-to-Energy Projects
Cash
Flow Year
Calendar
Year
|
1
1987
|
2
1988
|
3
1989
|
4
1999
|
5
1991
|
6
1992
|
7
1993
|
8
1994
|
9
1995
|
10
1996
|
11
1997
|
12
1998
|
13
1999
|
14
2000
|
15
2001
|
|||||||||||||||||||||||||||||||||||||||||||||
WORCESTER
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
3,810
|
3,576
|
3,357
|
3,152
|
2,940
|
2,700
|
2,499
|
2,235
|
1,960
|
1,755
|
1,537
|
900
|
900
|
950
|
790
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
14,105
|
20,195
|
26,469
|
24,051
|
23,179
|
21,916
|
19,701
|
17,622
|
15,453
|
13,057
|
12,116
|
7,726
|
7,726
|
7,553
|
6,271
|
|||||||||||||||||||||||||||||||||||||||||||||
BILLERICA
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
2,940
|
2,852
|
2,659
|
2,497
|
2,344
|
1,960
|
1,960
|
1,770
|
1,574
|
900
|
900
|
900
|
902
|
759
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
7,297
|
22,331
|
20,963
|
19,602
|
10,482
|
15,453
|
15,453
|
13,957
|
12,411
|
7,726
|
7,726
|
7,726
|
7,113
|
5,902
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
XXXXXXXX
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
2,800
|
5,600
|
5,600
|
5,600
|
6,580
|
7,560
|
7,560
|
7,560
|
8,540
|
9,520
|
9,519
|
10,032
|
10,174
|
10,415
|
10,863
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
5,212
|
44,150
|
44,150
|
44,150
|
51,077
|
59,603
|
59,603
|
59,603
|
67,329
|
75,056
|
75,051
|
79,070
|
80,211
|
82,114
|
85,651
|
|||||||||||||||||||||||||||||||||||||||||||||
TOTALS
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total
Operating Capacity
|
9,550
|
12,009
|
11,616
|
11,249
|
11,064
|
12,300
|
12,019
|
11,565
|
12,074
|
12,255
|
12,036
|
11,972
|
12,056
|
12,132
|
11,661
|
|||||||||||||||||||||||||||||||||||||||||||||
Total
kWhr Production (1000 kWhrs)
|
26,694
|
94,676
|
91,582
|
88,604
|
95,538
|
96,972
|
94,757
|
91,102
|
95,195
|
96,619
|
94,896
|
94,543
|
95,050
|
95,650
|
91,932
|
|||||||||||||||||||||||||||||||||||||||||||||
Cash
Flow Year
Calendar
Year
|
16
2002
|
17
2003
|
18
2004
|
19
2005
|
20
2006
|
21
2007
|
22
2008
|
23
2009
|
24
2010
|
25
2011
|
26
2012
|
27
2013
|
28
2014
|
29
2015
|
30
2016
|
|||||||||||||||||||||||||||||||||||||||||||||
WORCESTER
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
BILLERICA
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|||||||||||||||||||||||||||||||||||||||||||||
Xxxxxxxx
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Operating
Capacity (in kW)
|
11,107
|
11,366
|
11,400
|
11,400
|
11,400
|
11,366
|
11,107
|
10,054
|
10,607
|
10,367
|
9,941
|
9,733
|
9,491
|
9,274
|
9,063
|
|||||||||||||||||||||||||||||||||||||||||||||
kWhr
Production (1000 kWhrs)
|
87,564
|
89,610
|
90,508
|
90,500
|
90,500
|
89,610
|
87,364
|
85,571
|
83,629
|
81,735
|
78,375
|
76,577
|
74,824
|
75,116
|
71,452
|
|||||||||||||||||||||||||||||||||||||||||||||
TOTALS
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total
Operating Capacity
|
11,107
|
11,366
|
11,400
|
11,400
|
11,400
|
11,366
|
11,107
|
10,054
|
10,607
|
10,367
|
9,941
|
9,733
|
9,491
|
9,274
|
9,063
|
|||||||||||||||||||||||||||||||||||||||||||||
Total
kWhr Production (1000 kWhrs)
|
87,564
|
89,610
|
90,508
|
90,500
|
90,500
|
89,610
|
87,364
|
85,571
|
83,629
|
81,735
|
78,375
|
76,577
|
74,824
|
75,116
|
71,452
|
|||||||||||||||||||||||||||||||||||||||||||||
26
Page
1 of
2
APPENDIX
C
APPROVED
FINANCING, FUEL. & OPERATING EXPENSES
SENIOR
TO
ESCROW ACCOUNT
The
following monthly expenses of Northeast Landfill Power Company shall be senior
to the funding of the Escrow Account required under the provisions of Article
VII (C).
1. Financing
Costs -- As provided in the loan agreement(s) and/or lease agreement(s)
between Seller and project lender(s) and/or lessor(s) and summarized as
follows:
|
(to
be completed by Seller and approved by NEP, which approval shall
not be
unreasonably withheld, prior to Commencement Date of
Operation)
|
2. Contract
Operation & Maintenance Expenses -- As provided in the operation and
maintenance agreement(s) between Seller and its contract operator(s) and
summarized below:
|
(to
be completed by Seller and approved by NEP, which approval shall
not be
unreasonably withheld, prior to Commencement Date of
Operation)
|
3. Fuel
Cost/Royalty -- The minimum gas purchase price as provided in the gas sales
agreements between Seller and the Northeast Landfill Gas Company plus any rents
or royalties due the landfill owner by Seller but not in excess of a monthly
limit determined in accordance with the following formula:
ML
=
($10,000 x S) + A + B + C
T
Where
“ML”
is
the monthly
limit:
“S”
is
as defined in ARTICLE VI B of
this Agreement;
“T”
is
as defined in ARTICLE VI B of
this Agreement;
27
Page
2
|
“A”
is 12.5% of Seller’s revenues under this Agreement derived from
electricity produced at the Billerica
Facility;
|
|
“B”
is 17.5% of Seller’s revenues under this Agreement derived from
electricity produced at the Worcester Facility;
and
|
|
“C”
is 15% of Seller’s revenues under this Agreement derived from electricity
produced at the Xxxxxxxx Facility.
|
4. Insurance
& Local Taxes -- The actual cost of insuring the project as required by
Project Lenders(s), lessor(s), or this Agreement plus the cost of local excise,
property, or other taxes assessed against the project, but not federal income
taxes.
In
addition, if, under the provisions of ARTICLE VII A (3) or (6), Seller instructs
NEP to reduce the monthly payments otherwise due Seller from NEP under ARTICLE
VI in order to avoid the occurrence of an Event of Default, then all reasonable
expenses incurred by Seller in efforts to cure the circumstances underlying
the
potential Event of Default or to otherwise provide assurance to NEP of Seller’s
ability to perform its obligations under this Agreement shall be senior to
the
funding of the Escrow Account required under the provisions of ARTICLE VII
C.
28
Amendment
to Power Purchase Agreement
This
Amendment (‘Amendment”), dated as of December 1, 1989, amends the Agreement
dated as of November 6, 1987, between New England Power Company (“NEP”) and
Northeast Landfill Power Company (“NLP”), as assigned by NEP to Massachusetts
Electric Company (“MEC”) by assignment dated November 18, 1987, as reassigned by
MEC to NEP by reassignment dated February 12, 1988, and as assigned by NLP
to
Northeast Landfill Power Joint Venture, an Illinois partnership (“Seller”) by
assignment dated as of March 31, 1989 (the “Power Purchase
Agreement”).
Basic
Understandings
Seller
is
about to obtain its financing for construction of the Facility pursuant to
a
certain Loan Agreement (“Loan Agreement”), dated as of August 2, 1989 by and
between State Street Bank and Trust Company (the “Bank”) and Seller. Before
financing can be obtained from the Bank, the Power Purchase Agreement needs
to
be amended to address certain issues that need clarification.
Accordingly,
the parties agree to amend the Power Purchase Agreement as follows:
Section
1. Rights
of the Bank Upon Seller’s Default
(a) The
Bank has the right (but not the obligation) to cure any default on behalf of
Seller and exercise, to the extent expressly permitted by the Borrower’s
Collateral Assignment and Security Agreement (as such terms are defined in
the
Loan Agreement), any rights of Seller under the Power Purchase Agreement within
the cure periods specified in the Power Purchase Agreement.
(b) NEP
will send copies of any default notices under the Power Purchase Agreement
to
the Bank, at the following address:
State
Street Bank and Trust Company
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX. 00000
Attention:
Project Finance Department
(c) NEP
shall incur no liability for inadvertent failure to send default notices to
the
Bank, but any time limit specified in the Power Purchase Agreement for curing
an
Event of Default shall not begin to run for the Bank until the Bank receives
a
copy of the notice.
(d) NEP
will not exercise any of its rights and remedies with respect to default before
the expiration of the Bank’s cure period (as specified above).
Section
2 Assignments
by the Bank
If
there
is an Event of Default under the Loan Agreement, the Bank may (i) exercise
Seller’s rights under the Power Purchase Agreement, or (ii) assign or sublease
any or all of Seller’s rights, title and interest in, to and under the Power
Purchase Agreement to any third party (or parties), as long as such third
party:
|
(a)
|
assumes
all of the obligations of Seller under the Power Purchase Agreement
(including any accrued liability in respect of the Aggregate
Differential); and
|
|
(b)
|
is
at least as experienced and capable of owning and operating (or causing
the operation of) the Facility as
Seller.
|
-
2 -
Section
3.
|
Definition
of “Facility”
|
As
of the
Commencement Date of Operation, the landfill gas electric generation project
at
the landfill located in Johnston, Rhode Island will be the only project which
will be initially providing electricity to NEP under the Power Purchase
Agreement. Therefore, the Power Purchase Agreement is amended so that
the terms “Facilities” and “Facility” shall each mean the landfill gas-fired
electric generation project at the landfill located in Johnston, Rhode Island;
provided, however, that if and when the proposed landfill gas-fired electric
generation project at the landfill located in Worcester, Massachusetts becomes
operational, then the term “Facilities” shall mean both the landfill gas-fired
electric generation projects located at landfills in Johnston, Rhode Island
and
Worcester, Massachusetts and the term “Faci1ity” shall mean either of such
projects.
Section
4. Waiver
of Termination Right
NEP
waives any right it may otherwise have and agrees not to terminate the Power
Purchase Agreement pursuant to the third paragraph of Article III; provided
that
the “Commencement Date of Operation” occurs before July 1, 1990.
Section
5. Substitution
of the word “Account”
The
first
word in the last line of the first paragraph of Article VII C is amended by
deleting the word “Agreement” and substituting the word “Account”.
Section
6. Changing
the “Commencement Date of Operation”
The
definition of “Commencement Date of Operation” is amended by deleting the third
paragraph of Article II of the Power Purchase Agreement and by substituting
therefor the following sentence: “Commencement Date of Operation” shall
mean the later to occur of (i) substantial
completion of Phase 1 at the Xxxxxxxx Facility as per Seller’s construction
contract for the Xxxxxxxx Facility, or (ii) the initial date on which Seller
generates at least five megawatts (5MW) of electricity at the Xxxxxxxx Facility
continuously for a period of eight (8) consecutive
hours.
-
3 -
Section
7. Substitution
of Appendix C
Appendix
C to the Power Purchase Agreement is deleted and a new Appendix C (attached
to
this Amendment as Exhibit A) is substituted in its place.
Section
8. Insurance
Proceeds
Pursuant
to Article XII A (iv) (3) of the Power Purchase Agreement, the insurance
proceeds shall be applied during the term of the Loan Agreement between Seller
and the Bank in accordance with Sections 5.9(a)(iii) and 5.9(d) of the Loan
Agreement.
Section
9. Interconnection
Facilities
If
NEP
does not complete construction of the interconnection facilities associated
with
Seller’s Facility on or before December 15, 1989, the December 31, 1989 deadline
specified for the Commencement Date of Operation in Article VII D., paragraph
(iii) on page 20, will be extended by the number of days beyond December 15,
1989 that the interconnection was completed.
The
parties have caused their authorized representatives to execute this Amendment
on the date(s) set forth below, which Amendment may be signed in counterparts
so
that each party may retain a signed original. All counterparts will constitute
one agreement binding on each of the parties.
-
4 -
NEW
ENGLAND POWER COMPANY
By:_________________________________
Title:
_______________________________
Date:
_______________________________
NORTHEAST
LANDFILL POWER JOINT VENTURE
By:
Northeast Landfill Power Company, a general partner
By:_______________________________
Xxxxxx
X.
Xxxxx
Title:
President
Date:
______________________
-
5 -
EXHIBIT
A
APPENDIX
C
PART
I Cash
Flow Priorities
The
Borrower will use its Cash Flow, and will only make payments and distributions
to any Person, in accordance with the priority of payments set forth below
on a
monthly basis:
(a) first,
principal, interest, fees and expenses due to the Bank pursuant to the terms
of
the Loan Agreement or any of the Collateral Documents (as such term is defined
in the Loan Agreement);
(b) second,
senior operating expenses incurred in the ordinary course of business (other
than item (c) below) which are due to RISWMC under the Landfill Gas Lease
Agreement, the Town under the Taxes Agreement, payments for insurance, legal
and
accounting fees incurred in the ordinary course of Borrower’s business, and base
gas payments due to GASCO under the Sublease Agreement, all in the preceding
order;
(c) third,
senior operating expenses incurred in the ordinary course of business which
are
due to WPI under the Operating Agreement (other than bonus and penalty payments
and other subordinated payments);
(d) fourth,
payments required to be made to the Escrow Account under the Power Purchase
Agreement (this Escrow Account will be funded separately);
(e) fifth,
payments to Borrower’s debt reserve account and thereafter to Borrower’s
maintenance reserve account at the Bank pursuant to Section 5.12 of the Loan
Agreement to the extent the debt reserve account has been drawn upon to make
the
payments described in item (a) or the maintenance reserve account has been
drawn
upon to make the payments described in items (b) and (c) above;
(f) sixth,
payments for management fees due to NLP and HW Landfill under the Management
Agreements;
(g) seventh,
payments for the initial funding of the Borrower’s debt reserve account and
thereafter for the initial funding of the Borrower’s maintenance reserve
account, with the Bank, each in accordance with Section 5.12 of the Loan
Agreement.
(h) eighth,
additional and excess gas payments due to Gasco under the Sublease
Agreement;
(i) ninth,
bonus payments or previously subordinated payments due to WPI under the
Operating Agreement;
The
balance of Cash Flow after payments described in subparagraphs (a) through
(i)
above is referred to as “Cash Flow Available for Distribution” which shall be
used in accordance with Section 5.27 of the Loan Agreement.
-
6 -
PART
II Special
Withdrawals From the Escrow Account
As
agreed
to by the parties, the Escrow Account will be separately funded by direct
payments by NEP of 5% of monthly revenues due to Seller. If, however, after
a
monthly payment of 5% has been made, it is determined that there were not enough
revenues from the remaining 95% of the revenues due to Seller to cover the
items
described in (a), (b), and (c) of Part I above, NEP and Seller agree to the
following:
|
(i)
|
Seller
shall send a written notice to NEP, stating that there were insufficient
revenues to cover the items to be funded in subparagraph (a), (b)
and (c)
of Part I of this Appendix C
(“Shortfall”).
|
|
(ii)
|
With
the notice, Seller shall include documentation of how much in additional
funds is needed to cover the Shortfall for the
month.
|
|
(iii)
|
If
Seller’s documentation is accurate, NEP and Seller will send a joint
notice to the Escrow Agent, requesting a withdrawal from the Escrow
Account equal to (i) the amount needed to cover the Shortfall for
the
month, or (ii) the total of the month’s 5% payment, whichever amount is
less. The Escrow Agent will be directed to make payment of the withdrawal
into an account designated by
Seller.
|
The
special withdrawals described above only may be made to cover the Shortfall
for
a particular month. Shortfalls may not be accumulated from month to month in
cases where the total of the month’s 5% payment to the Escrow Account does not
cover the entire month’s Shortfall.
Part
III
Definitions
For
the
purpose of this Appendix C, the following terms shall have the following
meanings:
“Cash
Flow” means for a particular fiscal period of the Borrower, revenues received by
the Borrower in the ordinary course of business from its operation of the
electrical generation facility at the Xxxxxxxx landfill and from Gasco pursuant
to the terms of the Sublease Agreement (but excluding extraordinary payments
contemplated by Section 2.9(a)(i) and (a)(ii) of the Loan
Agreement).
“Gasco”
means Central Gas Limited Partnership, an Illinois limited partnership, and
its
successors.
“H-W”
means Xxxxxx-Xxxxxx, Inc., a New York corporation, and its
successors.
“HW
Landfill” means HW Landfill Gas, Inc., a Delaware corporation and its
successors.
“Landfill
Gas Lease Agreement” means the Landfill Gas Lease Agreement dated May 1, 1987
between RISWMC and H-W, as supplemented by the Supplemental Agreement, dated
May
1, 1987, between RISWMC and H-W, as amended by the Amendment to Supplement,
dated July 28, 1988, between RISWMC and H-W, as assigned by H-W to the Borrower
by Assignment, dated as of March 31, 1989, and as amended by the Amendment
dated
as of March 31, 1989 between RISWMC and H-W and consented to by RISWMC as of
March 31, 1989.
-7
-
“Management
Agreements” means the Management Agreement between the Borrower and NLP and the
Management Agreement between the Borrower and H-W Landfill, each to be entered
into prior to the initial construction borrowing under the Loan Agreement in
the
form approved in writing by the Bank, providing for the management of the
Borrower.
“Operating
Agreement” has the meaning set forth in Section 3.2(1) of the Loan Agreement, or
any substitution thereof if approved in writing by the Bank pursuant
hereto.
“Person”
means an individual, a corporation, a partnership, an association, a trust
or
any other entity or organization, including with limitation a government or
political subdivision or an agency or instrumentality thereof.
“RISWMC”
means Rhode Island Solid Waste Management corporation, a corporation created
by
the State of Rhode Island.
“Sublease
Agreement” means the Landfill Gas Contract and Sublease Agreement dated as of
March 31, 1989 between the Borrower and Gasco pertaining to the Xxxxxxxx
facility.
“Taxes
Agreement” means the Agreement dated May 1, 1987 by and among the Town, RISWMC
and H-W for Payment in Lieu of Taxes for the landfill gas collection and
processing project, as will be assigned to the Borrower by assignment prior
to
the initial construction borrowing under the Loan Agreement.
“Town”
means the Town of Xxxxxxxx, Rhode Island, a political subdivision of the State
of Rhode Island.
“WPI”
means Waukesha Xxxxxx Industries, Inc., a Texaco corporation, and its
successors.
- 8
-
SECOND
AMENDMENT TO POWER PURCHASE AGREEMENT
This
Amendment (“Amendment”), dated as of October 31, 1991 amends the Agreement dated
as of November 6, 1987, between New England Power Company (“NEP”) and Northeast
Landfill Power Company (“NLP”), as assigned by NEP to Massachusetts Electric
Company (“MEC”) by assignment dated November 18, 1987, as reassigned by MEC to
NEP by reassignment dated February 12, 1988, as assigned by NLP to Northeast
Landfill Power Joint Venture, an Illinois partnership (“Seller”), by assignment
dated as of March 31, 1989 and as amended by an Amendment to Power Purchase
Agreement dated December 1, 1989 (the “Power Purchase Agreement”).
Basic
Understandings
Seller
is
about to obtain its term financing for the Facility pursuant to a certain Note
Purchase Agreement (“Note Purchase Agreement”), dated as of October 1, 1991 by
and among Northwestern National Life Insurance Company, Northern Life Insurance
Company and The North Atlantic Life Insurance Company of America (the
“Purchasers”) and Seller. Before financing can be obtained from the Purchasers,
the Power Purchase Agreement needs to be amended to address certain issues
that
need clarification.
Accordingly,
the parties agree to amend the Power Purchase Agreement as follows:
Section
1.
Rights of the Purchasers Upon Seller’s Default
(a) The
Purchasers have the right (but not the obligation) to cure any default on behalf
of Seller and exercise, to the extent expressly permitted by the Project
Agreements Assignment and the Security Agreement (as such terms are defined
in
the Note Purchase Agreement), any rights of Seller under the Power Purchase
Agreement within the cure periods specified in the Power Purchase
Agreement.
(b) NEP
will send copies of any default notices under the Power Purchase Agreement
to
the Purchasers, at the following address:
x/x
Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxx.
Xxxxxxxxx
Xxxx, Xxxxx 0000
000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxx
(c) NEP
shall incur no liability for inadvertent failure to send default notices to
the
Purchasers, but any time limit specified in the Power Purchase Agreement for
curing an Event of Default shall not begin to run for the Purchasers until
the
Purchasers receive a copy of the notice.
(d) NEP
will not exercise any of its rights and remedies with respect to default before
the expiration of the Purchaser’s cure period (as specified above).
Section
2.
Assignments by the Purchasers
If
there
is an Event of Default under the Note Purchase Agreement, the Purchasers may
(i)
exercise Sellers rights under the Power Purchase Agreement, or (ii) assign
or
sublease any or all of Seller’s rights, title and interest in, to and under the
Power Purchase Agreement and the Facilities to any third party (or parties),
as
long as such third party:
|
(a)
|
assumes
all of the obligations of Seller under the Power Purchase Agreement
(including any accrued liability in respect of the Aggregate
Differential); and
|
|
(b)
|
is
at least as experienced and capable of owning and operating (or causing
the operation of) the Facility as
Seller.
|
Section
3.
Substitution of Appendix C
Appendix
C to the Power Purchase Agreement is deleted and a new Appendix C (attached
to
this Amendment as Exhibit A) is substituted in its place.
Section
4.
Insurance Proceeds
Pursuant
to Article XII A (iv)(3) of the Power Purchase Agreement, the parties agree
that
the insurance proceeds shall be applied during the term of the Note Purchase
Agreement between Seller and the Purchasers in accordance with paragraph 9
of
the Note Purchase Agreement.
Section
5.
Effect on Prior Amendment
This
Amendment supersedes the provisions of Sections 1, 2, 7 and 8 of the Amendment
to Power Purchase Agreement dated as of December 1, 1989 (the “Prior
Amendment”), which Sections shall be of no further force or
effect. All other provisions of the Prior Amendment shall remain in
full force and effect with no other modifications or waiver.
The
parties have caused their authorized representatives to execute this Amendment
on the date(s) set forth below, which Amendment may be signed in counterparts
so
that each party may retain a signed original. All counterparts will constitute
one agreement binding on each of the parties.
2
NEW ENGLAND POWER COMPANY | ||||
|
By:
|
|||
Title: | ||||
Date: | ||||
NORTHEAST LANDFILL POWER JOINT | ||||
VENTURE, an Illinois general | ||||
partnership | ||||
By: |
Northeast
Landfill Power
|
|||
Company,
a Massachusetts
|
||||
corporation
and general
|
||||
partner
|
||||
By:
|
||||
Title: | ||||
Date: | ||||
And by: | Johnston Natural Power | |||
Corporation, a Delaware | ||||
Corporation and general | ||||
Partner | ||||
By: | ||||
Title: | ||||
Date: | ||||
3
EXHIBIT
A
TO SECOND
AMENDMENT
TO POWER
PURCHASE
AGREEMENT
APPENDIX
C
PART
I Cash
Flow Priorities
The
Seller will use its Cash Flow, and will only make payments and distributions
to
any Person, in accordance with the priority of payments set forth below on
a
monthly basis:
(a) first,
principal, interest, fees and expenses due to the Purchasers pursuant to the
terms of the Note Purchase Agreement or any of the Note Documents (as such
term
is defined in the Note Purchase Agreement);
(b) second,
senior operating expenses incurred in the ordinary course of business (other
than item (c) below) which are due to RISWMC under the Landfill Gas Lease
Agreement, the Town under the Taxes Agreement, payments for insurance, legal
and
accounting fees incurred in the ordinary course of Seller’s business, and base
gas payments due to GASCO under the Sublease Agreement, all in the preceding
order;
(c) third,
senior operating expenses incurred in the ordinary course of business which
are
due to WPI under the O&M Agreement (other than bonus and penalty payments
and other subordinated payments);
(d) fourth,
payments requited to be made to the Escrow Account under the Power Purchase
Agreement (this Escrow Account will be funded separately); and
(e) fifth,
the balance of Cash Flow after payments described in subparagraphs (a) through
(d) above shall be applied in compliance with the Note Purchase
Agreement.
PART
II Special
Withdrawals From the Escrow Account
As
agreed
to by the parties, the Escrow Account will be separately funded by direct
payments by NEP of 5% of monthly revenues due to Seller. If, however, after
a
monthly payment of 5% has been made, it is determined that there were not enough
revenues from the remaining 95% of the revenues due to Seller to cover the
items
described in (a), (b), and (c) of Part I above, NEP and Seller agree to the
following:
|
(i)
|
Seller
shall send a written notice to NEP, stating that there were insufficient
revenues to cover the items to be funded in subparagraph (a), (b)
and (c)
of Part I of this Appendix C
(“Shortfall”).
|
|
(ii)
|
With
the notice, Seller shall include documentation of how much in additional
funds is need to cover the Shortfall for the
month.
|
|
(iii)
|
If
Seller’s documentation is accurate, NEP and Seller will send a joint
notice to the Escrow Agent, requesting a withdrawal from the Escrow
Account
equal to (i) the amount needed to cover the Shortfall for the month,
or
(ii) the total of the months 5% payment, whichever amount is less.
The
Escrow Agent will be directed to make payment of the withdrawal into
an
account designated by Seller.
|
4
The
special withdrawals described above only may be made to cover the Shortfall
for
a particular month. Shortfalls may not be accumulated from month to month in
cases where the total of the month’s 5% payment to the Escrow Account does not
cover the entire month’s Shortfall.
Part
III Definitions
For
the
purpose of this Appendix C, the following terms shall have the following
meanings:
“Cash
Flow” means for a particular fiscal period of the Seller, revenues received by
the Seller in the ordinary course of business from its operation of the
electrical generation facility at the Xxxxxxxx landfill and from Gasco pursuant
to the terms of the Sublease Agreement.
“Gasco”
means Central Gas Limited Partnership, an Illinois limited partnership, and
its
successors.
“H-W”
means Xxxxxx-Xxxxxx, Inc., a New York corporation, and its
successors.
“JNPC”
means Xxxxxxxx Natural Power Corporation, a Delaware corporation (f/n/a HW
Landfill Gas, Inc.), and its successors.
“Landfill
Gas Lease Agreement” means the Landfill Gas Lease Agreement dated May 1, 1987
between RISWMC and H-W, as supplemented by the Supplemental Agreement, dated
May
1, 1987, between RISWMC and H-W, as amended by the Amendment to Supplement,
dated July 28, 1988, between RISWMC and H-W, as assigned by H-W to the Seller
by
Assignment, dated as of March 31, 1989, as amended by the Amendment dated as
of
March 31, 1989 between RISWMC and H-WS and consented to by RISWMC as of March
31, 1989, and as amended by the Amendment dated as of October 31, 1991 between
RISWMC and Seller.
“Management
Agreements” means the Management Agreement between the Seller and NLPC dated
October 31, 1989, and the Management Agreement between the Seller and JNPC
dated
October 31, 1989, providing for the management of the Borrower.
“NLPC”
means Northeast Landfill Power Company, a Massachusetts corporation, and its
successors.
“O&M
Agreement” has the meaning set forth in the Note Purchase
Agreement.
“Person”
means an individual, a corporation, a partnership, an association, a trust
or
any other entity or organization, including with limitation a government or
political subdivision or an agency or instrumentality thereof.
5
“RISWMC”
means Rhode Island Solid Waste Management corporation, a corporation created
by
the State of Rhode Island.
“Sublease
Agreement” means the Landfill Gas Contract and Sublease Agreement dated as of
March 31, 1989 between the Seller and Gasco pertaining to the Xxxxxxxx
facility.
“Taxes
Agreement” means the Agreement dated May 1, 1987 by and among the Town, RISWMC
and H-W for Payment in Lieu of Taxes for the landfill gas collection and
processing project, as assigned to the Seller by assignment dated
_______________.
“Town”
means the Town of Xxxxxxxx, Rhode Island, a political subdivision of the State
of Rhode Island.
“WPI”
means Waukesha-Xxxxxx Industries, Inc., a Texas corporation, and its
successors.
429
9R
6