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EXHIBIT 10.30
TRANSITION CAPACITY AGREEMENT
BETWEEN
XXXXXX KILL POWER LLC
AND
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
Dated as of June 25, 1999
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TABLE OF CONTENTS
Page
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1. DEFINITIONS .............................................................3
2. EFFECTIVENESS, TERM AND TERMINATION .....................................5
3. CAPABILITY AND AVAILABILITY REQUIREMENTS ................................6
4. INSTALLED CAPACITY PURCHASE, QUANTITY AND PAYMENTS ......................7
4.1 Capacity Purchase Quantity ....................................7
4.2 Capacity Payments .............................................8
4.3 Capacity Deficiency Payments ..................................8
5. SCHEDULING ..............................................................9
6. BILLING AND PAYMENT PROCEDURES ..........................................9
6.1 Billing and Payments ..........................................9
6.2 Billing Disputes .............................................10
6.3 Survival .....................................................11
7. FORCE MAJEURE ..........................................................11
8. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES ...............................11
9. EXTENSION, WAIVER ......................................................12
10. COUNTERPARTS ..........................................................12
11. GOVERNING LAW .........................................................12
12. SEVERABILITY ..........................................................13
13. AMENDMENT .............................................................13
14. ENTIRE AGREEMENT ......................................................13
15. FURTHER ASSURANCES ....................................................14
16. INDEPENDENT CONTRACTOR STATUS .........................................14
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17. NOTICES ...............................................................14
18. INTERPRETATION ........................................................15
19. JURISDICTION AND ENFORCEMENT ..........................................15
20. CONFLICT ..............................................................16
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TRANSITION CAPACITY AGREEMENT BETWEEN
XXXXXX KILL POWER LLC AND CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC.
This Transition Capacity Agreement ("Agreement") is made and entered
into as of this day of June 25, 1999, by and between Xxxxxx Kill Power LLC ("AK
POWER"), a Delaware limited liability company having its principal place of
business at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, and Consolidated
Edison Company of New York, Inc. ("Xxxx Xxxxxx"), a New York corporation, AK
POWER and Con Edison shall each be referred to as a "Party", and shall be
referred to collectively as the "Parties."
WHEREAS, NRG Energy, Inc. ("NRG Energy") and Con Edison have entered
into the Generating Plant and Gas Turbine Asset Purchase and Sale Agreement
("APA"), dated January 27, 1999, as amended, and certain other agreements
specified in the APA relating to the purchase by NRG Energy of certain of Con
Edison's generating assets comprised of generating facilities (collectively, the
"Purchased Assets");
WHEREAS, NRG Energy will assign to AK POWER on or prior to the Closing
Date (as defined below) its rights and obligations under the APA relating to the
purchase from Con Edison of the Generating Plant (as defined below) and certain
other assets related thereto in accordance with the terms and conditions of the
APA, and NRG Energy will assign to Astoria Gas Turbine Power LLC ("Astoria
Power") on or prior to the Closing Date its rights and obligations under the
APA relating to the purchase from Con Edison of the Gas Turbines (as defined
below) and certain other assets relating thereto in accordance with the terms
and conditions of the APA;
WHEREAS, the rights and obligations of buyers and providers of electric
generating capacity, energy, transmission and ancillary services may be modified
by a proposal (the "Proposal") currently pending before the Federal Energy
Regulatory Commission ("FERC") to restructure the New York Power Pool, which
Proposal contemplates, among other things, (i) the formation of the ISO (as
defined) and (ii) the implementation of the ISO Tariff filed on December 19,
1997, in FERC Docket Nos. ER97-1523-000, OA97-470-000 and ER97-4234-000, as such
filings may be amended from time-to-time;
WHEREAS, FERC may approve, accept, modify, or reject the Proposal, and
its actions may affect the rights and obligations of the Parties under this
Agreement;
WHEREAS, FERC has accepted for filing certain market power mitigation
measures applicable to sales of capacity, energy and certain other services from
specified electric generating units in New York City in FERC Docket No.
ER98-3169-000 (such measures, as may be modified from time to time, and any
other applicable market power mitigation measures that may be imposed by FERC,
ISO or the New York State Public Service Commission ("PSC"), the "Mitigation
Measures");
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WHEREAS, sales of capacity, energy and certain other services from the
Generating Plant will be subject to, and the rights and obligations of the
Parties under this Agreement may be affected by, the Mitigation Measures; and
WHEREAS, in recognition of Con Edison's installed capacity requirements
for its delivery service customers and its remaining native load customers, AK
POWER and Con Edison are entering into this Agreement, whereby AK POWER will
maintain the electric generating capability and availability of the Generating
Plant at specified levels for the term of this Agreement and whereby, during
certain periods, Con Edison will purchase from AK POWER, and AK POWER will sell
to Con Edison, specified amounts of Installed Capacity (as defined herein).
NOW THEREFORE, in consideration of the mutual agreements and
commitments contained herein, AK POWER and Con Edison hereby agree as follows:
1. DEFINITIONS.
(a) The following terms shall have the meanings set forth below. Any
term used in this Agreement that is not defined herein shall have the meaning
customarily attributed to such term by the electric utility industry in New
York.
"Ancillary Agreements" shall have the meaning ascribed thereto in
the APA.
"Business Day" shall mean any day other than Saturday, Sunday or any
day which is a legal holiday or a day on which banking institutions in the State
of New York are authorized or required by law or other governmental action to
close.
"Closing" shall mean the closing of the sale of the Purchased Assets
and certain other assets as contemplated by the APA.
"Closing Date" shall mean the date and time at which the Closing
actually occurs.
"Gas Turbines" means the gas turbine units GT2 through GT5 and GT7
through GT13 located at the Astoria Gas Turbine site.
"Generating Plant" means the units 2 and 3 steam-powered generating
facilities and gas turbine unit GT 1 located at the Xxxxxx Kill Generating
Station.
"Government Authority" shall mean any court, administrative or
regulatory agency or commission or other government entity or instrumentality or
any department thereof.
"Installed Capacity" shall mean electric generating capacity of the
Generating Plant that satisfies all of the requirements applicable to installed
capacity established by the NYPP or ISO, as the case may be, as such
requirements apply to Con Edison.
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"ISO" shall mean the New York Independent System Operator, as described
in the Supplemental Filing, or its successors.
"ISO Commencement Date" shall mean the date on which the ISO officially
commences operations of a spot market for energy, spinning and non-spinning
reserves and automatic generator control, as signified by the first day that
resources such as the Generating Plant or Gas Turbines are allowed to bid into
each market on a non-trial or non-experimental basis,
"ISO Rules" shall mean the rules and procedures adopted by the ISO
pursuant to the ISO Tariff from time to time in effect and the related ISO
agreements.
"ISO Tariff" shall mean the tariff described in the Supplemental
Filing, as it may be amended from time to time.
"NERC" shall mean the North American Electric Reliability Council or
its successors.
"NYPP" shall mean the New York Power Pool or its successors.
"NPCC" shall mean the Northwest Power Coordinating Council or its
successors.
"NYPP Rules" shall mean the rules and procedures of the NYPP from time
to time in effect.
"NYSRC" shall mean the New York State Reliability Council or its
successor.
"Replacement Capacity" shall mean installed capacity from resources
other than the Generating Plant which resources are identified by AK POWER and
subsequently identified to the NYPP or ISO, as the case may be, as sources of
installed capacity in Con Edison's periodic reports required under applicable
procedures, provided that such installed capacity (i) is from resources that are
located in New York City or directly interconnected to Con Edison's electric
system in New York City, and (ii) would satisfy the installed capacity
requirements applicable to Con Edison, including any applicable delivery
requirements, established by the NYPP or ISO, as the case may be.
"Replacement Capacity Costs" shall mean the incremental costs and
expenses for Replacement Capacity to the extent costs and expenses for
Replacement Capacity exceed the payments for ICAP calculated in accordance with
Section 4.2.
"Supplemental Filing" shall mean the December 19, 1997 Supplemental
Filing to the Comprehensive Proposal to Restructure the New York Wholesale
Electric Market in FERC Docket Nos. ER97-1523-000, OA97-47000, and
ER97-4234-000.
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"Summer Capability Period" shall have the meaning provided by the NYPP
or ISO, as the case may be, as may be modified from time to time. Summer
Capability Period is currently May 1 through October 31 of each year.
"Winter Capability Period" shall have the meaning provided by the NYPP
or ISO, as the case may be, as may be modified from time to time. Winter
Capability Period is currently each November 1 through April 30 of the following
calendar year.
(b) Each of the following terms has the meaning specified in the
Section set forth opposite such term:
Term Section
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AK POWER Preamble
Affiliate 8(a)
Agreement Preamble
APA Recitals
Capacity Payment 4.2
Capacity Deficiency Payments 4.3
Con Edison Preamble
Confidentiality Agreement 14
DMNC 3(a)
FERC Recitals
Force Majeure Event 7(a)
ICAP 4.2
Mitigation Measures Recitals
Party Preamble
PSC Recitals
Proposal Recitals
Purchased Assets Recitals
Required Net Capability 3(a)
2. EFFECTIVENESS, TERM AND TERMINATION.
2.1 This Agreement shall only become effective upon the consummation of
the Closing. If the APA is terminated for any reason prior to the Closing, then
this Agreement shall also terminate and be of no further force or effect.
2.2 This Agreement shall expire on the later of (a) the earlier of (i)
December 31, 2002 or (ii) the date on which AK POWER receives written notice
from the ISO to the effect that none of the electric capacity of the Generating
Plant is required for meeting the installed capacity requirements in New York
City as determined by the ISO, or (b) the end of the
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capability period immediately preceding the capability period covered by the
first auction for capacity sponsored by the ISO that occurs after the Closing
Date.
2.3 The Parties agree that, notwithstanding any other provision of this
Agreement, the APA or any other Ancillary Agreement, this Agreement may not be
terminated prior to its expiration by either Party under any circumstances,
including as a result of a breach, whether or not material, by the other Party,
except pursuant to an agreement in writing executed by each Party.
2.4 If any Governmental Authority having jurisdiction over this
Agreement requires any modification to, or imposes any condition on acceptance
or approval of, this Agreement, then the Parties shall engage in good faith
negotiations in order to amend this Agreement to satisfy, or otherwise address,
such modification or condition. Notwithstanding the foregoing, the Parties
acknowledge and agree that the effectiveness of Section 2.5 hereof is not
contingent upon FERC approval.
2.5 In the event that the ISO Commencement Date does not occur by
December 31, 2001, either Party may request the other Party to renegotiate in
good faith the terms and conditions, including payment terms, for purchases of
Installed Capacity under this Agreement. If, upon such request by either Party,
the Parties are unable to reach agreement on such revised terms and conditions,
AK POWER shall file tariffs governing such purchases with the appropriate
regulatory agency or agencies, to become effective as of April 1, 2002, and,
upon the effectiveness of such tariffs, as may be modified by such regulatory
agency or agencies, the terms and conditions contained in the approved tariffs
shall be binding upon the Parties and shall govern the purchases of Installed
Capacity under this Agreement; provided, however, that Can Edison shall have the
right to protest the tariffs filed by AK POWER to such regulatory agency or
agencies.
3. CAPABILITY AND AVAILABILITY REQUIREMENTS.
(a) During the term of this Agreement, AK POWER will use commercially
reasonable efforts to maintain the electric generating capability and
availability of the Generating Plant (i) to provide 840 MWs of Installed
Capacity, after any adjustment set forth in the ISO Rules to reflect the failure
by the Generating Plant to satisfy the minimum generator availability targets
established by the ISO Rules applicable to the Generating Plant (the "Required
Net Capability") and (ii) to satisfy all criteria, standards and requirements
applicable to providers of installed capacity (including locational, seasonal
and other performance requirements and compliance with all applicable tariffs,
rules and practices) established by the NYSRC, NPCC, NERC and by the NYPP or
the ISO, as applicable. Subject to AK POWER's obligations under Section 4 below,
the foregoing obligations shall not apply to any portion of the electric
generating capacity of the Generating Plant with respect to which AK POWER
receives a written notice from the ISO that such capacity is no longer required
for meeting the installed capacity requirements in New York City as determined
by the ISO.
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(b) For each capability period in which AK POWER fails to maintain the
capability and availability of the Generating Plant to provide an amount of
Installed Capacity of no less than the Required Net Capability as required under
Section 3(a)(i), as such amount of Installed Capacity is demonstrated by a DMNC
test and adjusted, if necessary, in accordance with the ISO Rules to reflect the
failure by the Generating Plant to satisfy the applicable minimum generator
availability targets, AK POWER shall pay to Con Edison a deficiency charge equal
to the product of (i) the amount (in MW) by which the Installed Capacity
provided is deficient, less any Replacement Capacity purchased by AK POWER for
the applicable capability period, to the extent such Replacement Capacity is not
otherwise required to meet the installed capacity requirements for New York City
under applicable ISO Rules in such capability period, and (ii) the deficiency
charge per MW applicable under the NYPP Rules or ISO Rules, as the case may be,
for failure by providers of installed capacity to satisfy applicable installed
capacity requirements. Payment of such deficiency charges shall be due at the
end of the first month following the end of the capability period for which the
deficiency charged is assessed.
(c) Following each capability period, and at such other times as may
reasonably be requested by Con Edison, AK POWER shall provide Con Edison access
to, or copies of, such relevant plant data and other documents and records
reasonably requested by Con Edison as is necessary to verify the electric
generating capability and availability of the Generating Plant, and any
deficiency in the amount of Installed Capacity provided, for such capability
period or for another period as may be reasonably requested by Con Edison.
4. INSTALLED CAPACITY PURCHASE, QUANTITY AND PAYMENTS
4.1 Capacity Purchase Quantity
(a) From the Closing Date until the later of (i) the end of the 1999
Summer Capability Period or (ii) the end of the capability period immediately
preceding the capability period covered by the first auction for capacity for or
including New York City sponsored by the ISO that occurs after the Closing Date,
AK POWER will sell to Con Edison and Con Edison will purchase from AK POWER an
amount of Installed Capacity equal to 100 percent of the Installed Capacity as
demonstrated by the Generating Plant during the most recent DMNC test, performed
during the applicable capability period in accordance with applicable procedures
of the NYPP or ISO, as the case may be; provided, however, that the amount of
Installed Capacity to be provided under this Section 4.1(a) shall be no less
than the Required Net Capability. AK POWER shall notify Con Edison five days
prior to the conduct of any DMNC test, and Con Edison shall have the right to
observe such test.
(b) If the 1999-2000 Winter Capability Period is covered by an auction
for capacity for or including New York City, sponsored by the ISO, AK POWER will
sell to Con Edison and Con Edison will purchase from AK POWER 263 MW of
Installed Capacity during the 1999-2000 Winter Capability Period. AK POWER shall
identify to Con Edison in writing
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the specific generating units of the Generating Plant that AK POWER will use to
supply such Installed Capacity to Con Edison and the amount of Installed
Capacity to be supplied from each such generating unit in accordance with
Section 5.
(c) Subject to AK POWER's obligations under Section 3(a), and to the
extent permitted by NYPP Rules or ISO Rules, as the case may be, AK POWER may
use Replacement Capacity to supply the Installed Capacity required to be
provided to Con Edison under this Section 4.1.
4.2 Capacity Payments
Subject to the provisions of Section 2.5, the monthly payment from Con
Edison to AK POWER for Installed Capacity ("Capacity Payment") shall equal the
product of (a) the ICAP, (b) a daily per-MW rate which, on an annualized basis,
is equivalent to $105/kW-Year and (c) the number of days in the applicable
month (or portion thereof, if applicable). "ICAP" is the amount of Installed
Capacity in MW, including Replacement Capacity, that is actually provided
by AK POWER to Con Edison based upon the applicable summer period DMNC testing
performed in accordance with applicable procedures of the NYPP or ISO, as the
case may be, adjusted, if necessary, in accordance with the ISO Rules to reflect
the failure by the Generating Plant to satisfy the applicable minimum generator
availability targets established by the ISO Rules.
4.3 Capacity Deficiency Payments
(a) Whenever ICAP provided by AK POWER to Con Edison is less than the
amount of Installed Capacity that AK POWER is required to sell to Con Edison
under Section 4.1, AK POWER shall pay to Con Edison deficiency payments
("Capacity Deficiency Payments"), which shall equal:
The sum of (i) all installed capacity deficiency charges imposed by the
NYPP or ISO, as the case may be, on Con Edison, to the extent the deficiency
charges exceed payments for Installed Capacity, in respect of which a deficiency
charge was imposed, that would have been due under Section 4.2; (ii) Con
Edison's Replacement Capacity Costs that are reasonably incurred if, and to the
extent that, AK POWER fails to provide Replacement Capacity and Con Edison
obtains such Replacement Capacity; (iii) all other directly related costs and
expenses, to the extent not included in (i) and (ii), that are reasonably
incurred by Con Edison as a direct result of AK POWER's failure to provide Con
Edison with the required amount of Installed Capacity; provided, however, that
any Capacity Deficiency Payments will be credited against deficiency charges
due to Con Edison under Section 3(b),
(b) If Con Edison incurs any reasonable costs and expenses described in
Section 4.3(a) over a period greater than one calendar month, Con Edison shall,
subject to AK POWER's approval, which shall not be unreasonably withheld,
allocate those costs on a monthly basis.
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4.4 Billing and payments of the Capacity Payment due under Section
4.2 and the Capacity Deficiency Payments due under Section 4.3 shall be made in
accordance with Section 6.
4.5 Subject to the terms and conditions set forth herein, AK POWER
shall satisfy all requirements applicable to suppliers of installed capacity
established by the NYPP or ISO, as the case may be, including any applicable
locational and seasonal requirements and compliance with and satisfaction of all
applicable tariffs, rules and practices, so that Con Edison will receive the
amount of Installed Capacity specified in Section 4.1.
4.6 Subject to the terms and conditions set forth herein, Con Edison
shall satisfy all requirements applicable to purchasers of installed capacity
established by the NYPP or ISO, as the case may be. Notwithstanding the
provisions of Section 4.3, Con Edison shall have no obligation to obtain
Replacement Capacity if AK POWER fails to supply all or part of the Installed
Capacity required under Section 4.1 or to obtain Replacement Capacity for any
shortfall in such Installed Capacity.
5. SCHEDULING.
Consistent with the procedures of the NYPP or ISO, as the case may be,
and consistent with AK POWER's obligations under Section 4.1 and 4.5, AK POWER
shall specify to Con Edison in writing, for each Summer Capability Period and
for each Winter Capability Period, the generating units of the Generating Plant
that AK POWER will use to supply Installed Capacity to Con Edison for such
Summer Capability Period or Winter Capability Period, as the case may be, and
the amount of Installed Capacity to be supplied from each generating unit, or
any change thereto, at least 30 days before the date Con Edison is required to
report such information, or any changes thereto, to the NYPP or ISO, as the case
may be,
6. BILLING AND PAYMENT PROCEDURES.
6.1 Billing and Payments
(a) In respect of each calendar month ending after the Closing Date, AK
POWER shall, on or prior to the twentieth day of the following month, prepare
and render an invoice to Con Edison for the Capacity Payment due from Con Edison
to AK POWER for the preceding calendar month, calculated in accordance with
Section 4.2. The Capacity Payment owed shall be due and payable 10 Business Days
after Con Edison receives an invoice.
(b) In respect of each calendar month ending after the Closing Date,
Con Edison shall, on or prior to the twentieth day of the following month,
prepare and render an invoice to AK POWER for any Capacity Deficiency Payments
due from AK POWER to Con Edison for the preceding calendar month, calculated in
accordance with Section 4.3. The Deficiency
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Capacity Payments owed shall be due and payable 10 Business Days after AK POWER
receives an invoice.
(c) Each Party may set off any undisputed amount owed to the other
Party against any undisputed amount owed to such Party by the other Party
pursuant to this Agreement or other arrangement(s) specifically agreed to
between the Parties, including, without limitation, amounts owed by AK POWER to
Con Edison under Section 3(b).
(d) If any payment under Sections 3(b), 6.1(a) or 6.1(b) falls due
on a day that is not a Business Day, then the payment shall be made on the next
Business Day.
(e) Interest on unpaid amounts or payments received after the due date
shall accrue at a rate equal to the prime commercial lending rate established
from time to time by Chase Manhattan Bank, N.A., New York, New York, or its
successor, from the due date until the date upon which payment is made.
(f) Any payments owed directly by AK POWER to the NYPP or ISO, as the
case may be, shall be made pursuant to the procedures established by the NYPP or
ISO, as the case may be. AK POWER shall be solely responsible for making all
such payments to the NYPP or ISO.
(g) The Parties shall maintain records, accounts and other documents
sufficient to reflect accurately all transactions hereunder for a period of four
years from the time of the transactions. Each Party shall, at its own expense,
have the right to audit such records, accounts and other documents of the other
Party during, such four-year period upon reasonable prior notice to the other
Party.
6.2 Billing Disputes
If a Party contests the amount billed in accordance with Sections
6.1(a) or (b) before such amount is due, the contesting Party shall pay the
undisputed billed amount when due and promptly provide written notice to the
other Party of the disputed amount and identifying the reason for the dispute.
If neither Party disputes a xxxx within six months after the due date of such
xxxx, such xxxx shall be deemed correct.. The Parties shall engage in good faith
negotiations to resolve any disputed amounts within 30 days. If the Parties are
unable to resolve a dispute within such period, disputed amounts shall, if
requested by the billing Party, be paid into an escrow account within 30 days of
such request pending resolution of the dispute. Thereafter, either Party may
exercise such remedies as may be available under this Agreement, at law or in
equity. In addition to any other remedies available to AK POWER, in the event
Con Edison fails to pay a disputed xxxx into such escrow account within 30
days of a request by AK POWER pursuant to the previous sentence, AK POWER may
withhold Installed Capacity to be provided to Con Edison under Section 4.1 until
such xxxx is paid into such escrow account. Interest at the rate specified in
Section 5.1(e) shall accrue on any amount due hereunder, if any, that is
refunded or credited to the contesting Party or that is released from escrow to
the non-contesting Party, when the contested amount is resolved.
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6.3 Survival
The provisions of Section 3, Section 4 and this Section 6 shall survive
termination, expiration, cancellation, suspension, or completion of this
Agreement to the extent necessary to allow for final billing and payment.
7. FORCE MAJEURE
(a) Notwithstanding anything in this Agreement to the contrary,
neither Party shall have any liability or be otherwise responsible to the other
for its failure to carry out its obligations, with the exception of any
obligation to pay money, under this Agreement if and only to the extent that it
becomes impossible for either Party to so perform as a result of any occurrence
or event which is beyond the reasonable control, and does not result from any
fault or negligence, of the Party affected (each, a "Force Majeure Event"),
including any act of God, strike or any other labor disturbance, act of a public
enemy, war, act of terrorism, riot, any other civil disturbance, fire, storm,
lightning, flood, earthquake, any other natural disasters, explosion, materials
shortage, breakage or accident involving facilities, equipment or systems, any
order or regulation or restriction imposed by any Governmental Authority,
failure of a contractor or subcontractor caused by a Force Majeure Event and
transportation delays or stoppages.
(b) If a Party shall rely on the occurrence of a Force Majeure Event as
a basis for being excused from performance of its obligations under this
Agreement, then the Party relying on such occurrence shall (i) provide prompt
written notice of such Force Majeure Event to the other Party giving an estimate
of its expected duration and the probable impact on the performance of its
obligations hereunder; (ii) exercise its reasonable best efforts to continue to
perform its obligations under this Agreement; (iii) reasonably and
expeditiously take action to correct or cure the Force Majeure Event, provided,
however, that settlement of strikes or any other labor disturbance will be
completely within the sole discretion of the Party affected by such strike or
labor dispute; (iv) exercise its reasonable best efforts to mitigate or limit
damages to the other Party; and (v) provide prompt written notice to the other
Party of the cessation of the Force Majeure Event.
9. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
(a) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by either Party, including by
operation of law, without the prior written consent of the other Party, except
(i) in the case of Con Edison, to an Affiliate of Con Edison or a third party
that has a contractual or statutory obligation to supply Installed Capacity to
Con Edison's retail customers; (ii) in the case of AK POWER, to an Affiliate of
AK POWER or a third party in
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connection with the transfer of all of AK POWER's right, title and interest in
and to the Generating Plant to such Affiliate or third party; and (iii) in the
case of either Party, to a lending institution or trustee in connection with a
pledge or granting of a security interest in the Generating Plant and/or this
Agreement; provided, however, that no assignment or transfer of rights or
obligations by either Party shall relieve it from the full liabilities and the
full financial responsibility, as provided for under this Agreement, unless and
until the transferee or assignee shall agree in writing to assume such
obligations and duties and the other Party has consented in writing to such
assumption. For purposes of this Agreement, the term "Affiliate" shall have the
meaning set forth in Rule l2b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
(b) Nothing in this Agreement is intended to confer upon any other
person except the Parties any rights or remedies hereunder or shall create any
third party beneficiary rights in any person.
9. EXTENSION; WAIVER.
Either Party may (a) extend the time for the performance of any of
the obligations or other acts of the other Party or (b) waive compliance by the
other Party with any of the agreements or conditions contained in this
Agreement. Any agreement on the part of a Party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such Party. The failure of a Party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
Notwithstanding anything herein to the contrary, to the extent that either Party
fails, in any particular instance, to take affirmative steps to exercise its
rights to witness, inspect, observe or approve the activities of the other
Party, such rights shall, solely with respect to such instance, be deemed waived
in respect of such activity.
10. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
and the same instrument.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (regardless of the laws that might otherwise
govern under applicable principles of conflicts of law).
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12. SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the Parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
13. AMENDMENT.
This Agreement may be amended, modified or supplemented only by an
instrument in writing signed on behalf of each of the Parties. If the applicable
provisions of the NYPP Rules, or the applicable provisions of the ISO Tariff or
ISO Rules, relating to installed capacity requirements applicable to this
Agreement or the implementation of this Agreement are changed materially, the
Parties shall endeavor in good faith to make conforming changes to this
Agreement with the intent to fulfill the purposes of this Agreement; provided,
however, that, except as provided for in Section 2.5, in no event shall such
changes modify the price for Installed Capacity set forth in Section 4.2 or
excuse AK POWER from paying, or otherwise modifying its obligations in respect
of, Capacity Deficiency Payments under Section 4.3. Any such conforming change
to this Agreement shall be subject to all necessary regulatory authorizations,
which the Parties shall request or support, as applicable.
14. ENTIRE AGREEMENT
This Agreement, the APA, the other Ancillary Agreements and the
Confidentiality Agreement dated August 19, 1998 between Con Edison and NRG
Energy (the "Confidentiality Agreement"), including the Exhibits, Schedules,
documents, certificates and instruments referred to herein or therein and other
contracts, agreements and instruments contemplated hereby or thereby embody the
entire agreement and understanding of the Parties in respect of the transactions
contemplated by this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings other than those
expressly set forth or referred to herein or therein. This Agreement, the APA
and the other Ancillary Agreements supersede all prior agreements and
understandings between the Parties with respect to the transaction contemplated
by this Agreement other than the Confidentiality Agreement.
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15. FURTHER ASSURANCES.
The Parties agree to, from time to time upon the reasonable request
of either Party, negotiate in good faith and execute and deliver amendments to
this Agreement, including in response to regulatory, technological, operational
or other changes affecting the Generating Plant or the electric power industry
generally, or such other documents or instruments as may be necessary, in order
to effectuate the transactions contemplated hereby.
16. INDEPENDENT CONTRACTOR STATUS.
Nothing in this Agreement is intended to create an association, trust,
partnership or joint venture between the Parties, or to impose a trust,
partnership, or fiduciary duty, obligation or liability on or with respect to
either Party, and nothing in this Agreement shall be construed as creating any
relationship between Con Edison and AK POWER other than that of independent
contractors.
17. NOTICES.
Unless otherwise specified herein, all notices and other communications
hereunder shall be in writing and shall be deemed given (as of the time of
delivery or, in the case of a telecopied communication, of confirmation) if
delivered personally, telecopied (which is confirmed) or sent by overnight
courier (providing proof of delivery) to the Parties at the following
addresses (or at such other address for a Party as shall be specified by like
notice)
if to Con Edison, to:
Consolidated Edison Company of New York, Inc.
0 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000,
Telecopy No.: (000) 000-0000
Attention: Senior Vice President & General Counsel
if to AK POWER, to
Xxxxxx Kill Power LLC
c/o NRG Energy Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000
Telecopy No.: (000) 000-0000
Attention: Vice-President and General Counsel
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With a copy to:
Xxxxxx Kill Power LLC
c/o NRG Energy Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000
Telecopy No.: (000) 000-0000
Attention, Commercial Asset Manager
18. INTERPRETATION.
When a reference is made in this Agreement to an Article or Section,
such reference shall be to an Article or Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation" or equivalent words. The words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms. Any agreement, instrument, statute,
regulation, rule or order defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument, statute,
regulations, rule or order as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes, regulations, rules or orders) by
succession of comparable successor statutes, regulations, rules or orders and
references to all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
19. JURISDICTION AND ENFORCEMENT.
(a) Each of the Parties irrevocably submits to the exclusive
jurisdiction of (i) the Supreme Court of the State of New York, New York County
and (ii) the United States District Court for the Southern District of New York,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the Parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States District Court for the Southern District of New York or, if such suit,
action or proceeding may not be brought in such court for jurisdictional
reasons, in the Supreme Court of the State of New York, New York County. Each of
the Parties further agrees that service of process, summons, notice or document
by hand delivery or U.S registered mail at the address specified for such Party
in Section 17 (or such other address specified by such Party
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from time to time pursuant to Section 17 shall be effective service of process
for any action, suit or proceeding brought against such Party in any such
court. Each of the Parties irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (i) the Supreme Court of
the State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(b) The Parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the Parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement, this being in addition to any other remedy to which they are
entitled at law or in equity.
20. CONFLICT.
Except as expressly otherwise provided herein or therein, in the event
of any conflict or inconsistency between the terms of this Agreement and the
terms of the APA or any other Ancillary Agreement, the terms of this Agreement
shall prevail.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed by their respective duly authorized officers as of the date and year
first above written.
XXXXXX KILL POWER LLC
By: /s/ Xxxxxxx X'Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxxx
Title: Vice President
CONSOLIDATED EDISON COMPANY OF NEW YORK INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and CFO
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