Exhibit 10.14
PUBLIC RELEASE VERSION
PURCHASED POWER AGREEMENT
BETWEEN
GEORGIA POWER COMPANY
AND
DYNEGY POWER MARKETING, INC.
Dated as of March 2, 2000
TABLE OF CONTENTS
Page No.
ARTICLE 1 DEFINITIONS.............................................................................................2
1.1 CERTAIN DEFINITIONS...................................................................................2
1.2 INTERPRETATION.......................................................................................14
ARTICLE 2 REPRESENTATIONS, WARRANTIES AND COVENANTS..............................................................15
2.1 REPRESENTATIONS AND WARRANTIES.......................................................................15
2.2 REPRESENTATIONS AND WARRANTIES OF GEORGIA POWER......................................................16
ARTICLE 3 TERM OF AGREEMENT......................................................................................18
3.1 TERM.................................................................................................18
3.2 CONTRACT COMMENCEMENT DATE...........................................................................18
ARTICLE 4 SALE OF CAPACITY AND ENERGY............................................................................21
4.1 CONTRACT CAPACITY....................................................................................21
4.2 DELIVERED ENERGY.....................................................................................22
ARTICLE 5 PAYMENTS...............................................................................................22
5.1 MONTHLY PAYMENTS.....................................................................................22
5.2 CAPACITY PAYMENTS....................................................................................22
5.3 ENERGY PAYMENT.......................................................................................23
5.4 MONTHLY DISPATCH PAYMENTS............................................................................24
ARTICLE 6........................................................................................................24
6.1 FUEL FOR OPERATIONS; DELIVERY AND ACCEPTANCE.........................................................24
6.3 MEASUREMENT AND QUALITY OF FUEL......................................................................25
6.4 FAILURE TO DELIVER FUEL; IMBALANCE...................................................................26
ARTICLE 7 AVAILABILITY...........................................................................................26
7.1 CURTAILMENTS AND EXCUSE..............................................................................27
7.2 GEORGIA POWER ELECTIONS; [REDACTED]..................................................................28
7.3 USE OF EQUIVALENT EXCUSED NON-DELIVERY HOURS.........................................................30
7.4 [redacted]...........................................................................................31
7.5 REMEDY...............................................................................................31
ARTICLE 8 SCHEDULING.............................................................................................32
8.1 SCHEDULING...........................................................................................32
8.2 TITLE AND RISK OF LOSS...............................................................................33
ARTICLE 9 BILLING AND PAYMENT....................................................................................33
9.1 CAPACITY, ENERGY AND DISPATCH BILLING AND PAYMENT....................................................33
9.2 BILLING DISPUTES AND FINAL ACCOUNTING................................................................35
9.3 INTEREST.............................................................................................36
9.4 BILLING AND PAYMENT RECORDS..........................................................................36
ARTICLE 10 OPERATIONS............................................................................................37
10.1 CONTRACT CAPACITY AND CONTRACT HEAT RATE.............................................................37
10.2 TRANSMISSION.........................................................................................37
10.3 MAINTENANCE..........................................................................................38
10.4 OPERATING PROCEDURES.................................................................................40
ARTICLE 11 CHANGE IN LAW, MODIFICATION OF AGREEMENT..............................................................41
11.1 CHANGE IN LAW........................................................................................41
11.2 MODIFICATION OF AGREEMENT............................................................................42
ARTICLE 12 FORCE MAJEURE.........................................................................................43
12.1 DEFINITION OF FORCE MAJEURE..........................................................................43
12.2 NO BREACH OR LIABILITY...............................................................................43
12.3 CAPACITY AND ENERGY PAYMENTS.........................................................................44
12.4 MITIGATION...........................................................................................44
12.5 SUSPENSION OF PERFORMANCE............................................................................45
ARTICLE 13 CREDIT................................................................................................45
13.1 GUARANTY.............................................................................................45
ARTICLE 14 EVENTS OF DEFAULT AND DAMAGES FOR NON-PERFORMANCE.....................................................45
14.1 EVENTS OF DEFAULT....................................................................................45
14.2 RIGHTS UNDER AGREEMENT...............................................................................49
14.3 REMEDIES.............................................................................................50
ARTICLE 15 INDEMNIFICATION AND LIMITATION OF LIABILITY...........................................................51
15.1 INDEMNITY............................................................................................51
15.2 NO LIABILITY TO THIRD PARTY..........................................................................51
15.3 NO CONSEQUENTIAL DAMAGES.............................................................................51
15.4 NO WARRANTIES........................................................................................52
ARTICLE 16 ASSIGNMENT............................................................................................52
16.1 ASSIGNMENT AND ASSUMPTION OF OBLIGATIONS.............................................................52
16.2 ASSIGNMENT TO LENDERS................................................................................52
ARTICLE 17 MISCELLANEOUS PROVISIONS..............................................................................54
17.1 AMENDMENTS...........................................................................................54
17.2 BINDING EFFECT.......................................................................................54
17.3 COUNTERPARTS.........................................................................................54
17.4 NOTICES..............................................................................................54
17.5 ENTIRE AGREEMENT.....................................................................................55
17.6 GOVERNING LAW........................................................................................56
17.7 WAIVER...............................................................................................56
17.8 NO DEDICATION OF SYSTEM..............................................................................56
17.9 HEADINGS.............................................................................................57
17.10 THIRD PARTIES........................................................................................57
17.11 AGENCY...............................................................................................57
17.12 SEVERABILITY.........................................................................................57
17.13 CONFIDENTIALITY......................................................................................58
17.14 REPLACEMENT INDEX....................................................................................59
17.15 PUBLIC ANNOUNCEMENT..................................................................................59
17.16 LIQUIDATED DAMAGES...................................................................................59
EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
PURCHASED POWER AGREEMENT
THIS PURCHASED POWER AGREEMENT ("Agreement"), dated as of March 2,
2000, is entered into by and between GEORGIA POWER COMPANY, a corporation
organized and existing under the laws of the State of Georgia with its principal
address at 000 Xxxxx XxXxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Georgia Power")
and DYNEGY POWER MARKETING, INC., a corporation organized and existing under the
laws of the State of Texas, having its principal place of business at 0000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("Dynegy").
W I T N E S E T H:
WHEREAS, Georgia Power is authorized by its Certificate of
Incorporation and by the State of Georgia to engage in the generation,
transmission, sale and distribution of electricity for heat, light and power to
the public;
WHEREAS, Georgia Power represents that it is constructing and intends
to own and operate three new General Electric Frame 7EA natural gas and
oil-fired combustion turbine electric generating units with approximate capacity
of 75 MW each located adjacent to the Georgia Integrated Transmission System,
commonly known as Xxxxx 0, 0 xxx 00 xx xxx Xxxxxxxx Generating Plant located in
Xxxxxxx County, Georgia (the "Units"); and
WHEREAS, Georgia Power has agreed to sell to Dynegy and Dynegy has
agreed to purchase from Georgia Power capacity and energy which may or may not,
at Georgia Power's sole option, be generated at the Units; all in accordance
with the provisions of this Agreement;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises and agreements set forth herein and other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, Georgia Power and Dynegy each intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
..........
1.1 Certain Definitions. In addition to the initially capitalized terms
and phrases defined in the preamble of this Agreement, the following initially
capitalized terms and phrases as and when used in this Agreement shall have the
respective meanings set forth below:
.......... 1.1.1...."Affiliate" of any specified entity means any other existing
or future entity directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified entity. For purposes of
this definition, "control" when used with respect to any entity means the power
to direct the management and policies of such entity, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
1.1.2 "Alternate Resources" means all resources other than
Blocks 1, 2, and 3 (whether such other resources are owned, purchased or
otherwise controlled by Georgia Power) from which Georgia Power may provide
Contract Capacity and Delivered Energy.
1.1.3...."Annual Hours" means hours in which the Units are
unavailable for Scheduling for reasons relating to the maintenance or
administration of the Units or as may otherwise be necessary to operate the
Units in accordance with Prudent Utility Practices, as such hours are designated
and scheduled in accordance with Section 10.3. In any Contract Year, Annual
Hours shall not exceed [redacted] per Block (as such number may be amended from
time to time in accordance with the second sentence of Section 10.3.3).
1.1.4...."Block" means each block of Contract Capacity
specified in Section 4.1.2 and in the amounts (expressed in MW) attributable to
each block of Contract Capacity also set forth in Section 4.1.2. References to
"Block 0," "Xxxxx 2" and/or "Block 3" shall refer to the respective Blocks of
Contract Capacity designated for each of the Blocks also described in Section
4.1.2.
1.1.5...."Business Day" means any day on which the Federal
Reserve Bank of New York is open for business.
1.1.6...."Commercially Reasonable" or "Commercially Reasonable
Efforts" means, with respect to any purchase or sale or other action required to
be made, attempted or taken by a Party under this Agreement, such efforts as a
reasonably prudent business would undertake for the protection of its own
interest under the conditions affecting such purchase or sale or other action,
including without limitation, the amount of notice of the need to take such
action, the duration and type of the purchase or sale or other action, the
competitive environment in which such purchase or sale or other action occurs.
1.1.7...."Contract Capacity" shall have the meaning specified
in Section 4.1.2.
1.1.8 "Contract Commencement Date" shall have the meaning as
specified in Section 3.2.1.
1.1.9 "Contract Heat Rate" shall have the meaning specified in
Section 10.1.
1.1.10..."Contract Year" means a year beginning on June 1 and
ending on May 31 of the succeeding calendar year.
1.1.11..."CPT" or "Central Prevailing Time" means the local
time in effect during a particular hour in Birmingham, Alabama whether such time
is Central Standard Time or Central Daylight Time as applicable.
1.1.12 "Day" means the twenty-four (24) hour period
beginning and ending at 12:00 A.M. midnight (Central Prevailing Time).
1.1.13..."Defaulting Party" shall have the meaning specified
in Section 14.1.
1.1.14..."Delivered Energy" means, either individually or in
combination, the energy in megawatt hours (MWh) attributable to a particular
Block (i) generated by the Units and delivered to the Delivery Point, or (ii)
generated by Alternate Resources, and delivered to the Delivery Point, based on
a Schedule submitted by Dynegy as described in Article 8.
1.1.15..."Delivery Point" means the point of physical
interconnection of the Units to the Georgia Integrated Transmission System where
Georgia Power shall deliver the energy Scheduled under this Agreement.
1.1.16..."Delayed Service Commencement Date" shall have the
meaning specified in Section 3.2.3.
1.1.17..."Determination Period" shall have the meaning
specified in Section 7.1.3.
1.1.18..."Dispatch" means whenever a Schedule calls for the
output of a Block to change from zero to its Contract Capacity.
1.1.19 .."Dispatch Center" means the control and dispatching
center designated by Georgia Power from time to time in writing as being the
primary control point for dispatch instructions to Georgia Power.
1.1.20..."Dynegy" shall have the meaning specified in the
first paragraph of this Agreement, and its permitted successors and assigns.
1.1.21..."Election Period" shall have the meaning specified
in Section 7.2.1.
1.1.22 "Eligible Collateral" shall have the meaning
specified in Section 14.1.7.2.
1.1.23..."ENDH Allowance" means the maximum number of
Equivalent ENDH Georgia Power may claim as specified in Exhibit B. ENDH is
determined as [redacted].
1.1.24 "Energy Price" shall have the meaning specified in
Section 5.3.1.
1.1.25 "Equivalent Excused Non-Delivery Hour (Equivalent
ENDH)" shall have the meaning specified in Section 7.3.
1.1.26 "Event of Default" shall have the meaning specified
in Section 14.1.
1.1.27 "Excused Non-Delivery Hour (ENDH)" means an hour (or
portion of an hour) in which an Unavailability Event has occurred and for which
Georgia Power has elected, at its sole discretion, to use ENDH pursuant to
Article 7.
1.1.28 "Extended Outage Period" shall have the meaning
specified in Section 7.1.3.
1.1.29 "FERC" means the Federal Energy Regulatory Commission
or any Governmental Authority succeeding to the powers and functions thereof
under the Federal Power Act.
1.1.30 "Force Majeure Event" has the meaning set forth in
Section 12.1.
1.1.31 [redacted].
1.1.32..."Fuel" means natural gas.
1.1.33 "Fuel Costs" shall have the meaning specified in
Section 5.3.
1.1.34 "Fuel Metering Points" means the location of meters at
or near the interconnection of the Lateral Pipeline and the Interstate Pipeline.
1.1.35 "Georgia Integrated Transmission System" means the
integrated transmission system, as modified or expanded from time-to-time, as
defined in the Revised and Restated Integrated Transmission System Agreement,
dated as of December 7, 1990, between Georgia Power and Municipal Electric
Authority of Georgia, the Revised and Restated Integrated Transmission System
Agreement, dated as of December 7, 1990, between Georgia Power and City of
Xxxxxx, and the Revised and Restated Integrated Transmission System Agreement,
dated as of November 12, 1990, between Georgia Power and Oglethorpe Power
Corporation.
1.1.36 "Georgia Power" shall have the meaning specified in the
first paragraph of this Agreement, and its permitted successors and assigns.
1.1.37 "Governmental Approval" means any authorization,
consent, approval, license, ruling, permit, exemption, variance, order,
judgment, decree, guidance, policies, declarations of or regulation by any
Government Authority relating to the acquisition, development, ownership,
occupation, construction, start-up, testing, operation or maintenance of the
Units and common facilities of the Units or to the execution, delivery or
performance of this Agreement.
1.1.38 "Governmental Authority" means any local, state,
regional or federal administrative, legal, judicial or executive agency, court,
commission, department or other such entity, but excluding any such agency,
court, commission, department or other such entity acting in its capacity as
lender, guarantor or mortgagee.
1.1.39 "Guaranty" shall have the meaning specified in
Section 13.1.
1.1.40 "HE" means hour ending.
1.1.41 "Interstate Pipeline" means the Transcontinental Gas
Pipeline.
1.1.42 "Interest Rate" means [redacted].
1.1.43 "Lateral Pipeline" means the natural gas pipeline,
together with necessary taps and headers connecting the Units with the
Interstate Pipeline.
1.1.44 "Legal Requirement" means any law, code, statute,
regulation, rule, ordinance, judgment, injunction, order or other requirement of
a Governmental Authority having jurisdiction over the matter in question, which
is valid and applicable to the matter in question (i) at the time of the
execution of this Agreement, as amended from time to time or (ii) anytime
thereafter during the Term.
1.1.45 [redacted].
1.1.46 "Material Adverse Change" shall have the meaning
specified in Section 14.1.7.1.
1.1.47 "Month" means a calendar month, commencing at the
beginning of the first Day of such calendar month. "Monthly" has a meaning
correlative to that of Month.
1.1.48 "Monthly Capacity Payment" for a particular Month of
the Term, means the Monthly amount to be paid by Dynegy to Georgia Power for
Dynegy's purchase of the Contract Capacity, as the same is set forth in Section
5.2.
1.1.49 "Monthly Energy Payment" for a particular Month of the
Term, means the Monthly amount to be paid by Dynegy to Georgia Power for
Dynegy's purchase of Delivered Energy, as the same is calculated as provided in
Section 5.3.
1.1.50 "Monthly Dispatch Payment" shall have the meaning
specified in Section 5.4.
1.1.51 "Monthly Weighting Factor" means, for any Month, the
weighting factor set forth opposite such Month in the table below:
Month Weighting Factor
January [redacted]
February [redacted]
March [redacted]
April [redacted]
May [redacted]
June [redacted]
July [redacted]
August [redacted]
September [redacted]
October [redacted]
November [redacted]
December [redacted]
1.1.52 "MW" means, in the singular context, one
megawatt, and in the plural context,
megawatts.
1.1.53 "MWh" means, in the singular context, one megawatt
hour, and in the plural context means, megawatt hours.
1.1.54 "NERC" means the North American Electric Reliability
Council, or any successor to its functions.
1.1.55 "Non-Conforming Fuel" means Fuel that does not meet the
specifications for Fuel delivered from the relevant Interstate Pipeline, in
accordance with Section 6.3.2.
1.1.56 "Non-Defaulting Party" shall have the meaning
specified in Section 14.1.
1.1.57 "Non-Summer Months" means the Months of October,
November, December, January, February, March, April and May.
1.1.58 "Party" or "Parties" means either Georgia Power or
Dynegy, or both.
1.1.59 "Peak Hour" means any Hour Ending [redacted] through
and including any Hour Ending [redacted].
1.1.60 "Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization, Governmental
Authority or other entity.
1.1.61 "Proprietary Information" of a Party shall mean
information rightfully in the possession of such Party, which information
derives economic value from not being generally known to and not being readily
ascertainable by proper means by another person who can obtain economic value
from its disclosure and use, and which is the subject of reasonable efforts to
maintain its secrecy.
1.1.62 "Prudent Utility Practices" means, at a particular
time, any of the practices, methods and acts engaged in or approved by a
significant portion of the electric utility industry prior to such time, or any
of the practices, methods and acts which, in the exercise of reasonable judgment
in light of the facts known at the time the decision was made, could have been
expected to accomplish the desired results at the lowest cost consistent with
good business practices, reliability, safety and expedition. Prudent Utility
Practices is not intended to be limited to the optimum practice, method or act
to the exclusion of all others, but rather to be a spectrum of possible
practices, methods or acts expected to accomplish the desired results, having
due regard for, among other things, manufacturers' warranties and Legal
Requirements and the requirements of this Agreement.
1.1.63 [redacted].
1.1.64 "Schedule" as used as a noun, means an energy schedule
submitted by Dynegy in accordance with the provisions of Article 8 of this
Agreement, and, as a verb, means the act of submitting a Schedule in accordance
with the provisions of Article 8. Any form of the term Schedule (e.g.,
"Scheduled" or "Scheduling") shall refer to the exercise of such right by
Dynegy.
1.1.65 "Service Commencement Date" means the date Georgia
Power declares that a Block is available for Scheduling by Dynegy.
1.1.66 "Summer Months" means the Months of June, July,
August and September.
1.1.67 "Term" shall have the meaning specified in
Section 3.1.
1.1.68 "Unavailability Event" means a condition during which
the Units are physically incapable of delivering all or a portion of the
Scheduled energy for reasons other than a Force Majeure Event.
1.1.69 "Units" shall have the meaning specified on page 1 of
this Agreement.
1.1.70 "Variable O&M (VOM) Amount" shall have the meaning
specified in Section 5.3.1.
1.1.71 "Year" means a calendar year.
1.2 Interpretation. In this Agreement, unless the context
otherwise requires:
1.2.1 words generally importing the singular shall include
the plural and vice versa;
1.2.2 references to "entity" include, without limitation,
corporations, partnerships, associations and governmental authorities.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations and Warranties. Dynegy hereby makes the
following representations and warranties to Georgia Power:
2.1.1 Dynegy is a corporation duly organized, validly existing
and in good standing under the laws of the State of Texas, and, has the legal
power to enter into this Agreement and carry out the transactions contemplated
hereby and perform and carry out all covenants and obligations on its part to be
performed under and pursuant to this Agreement.
2.1.2 Dynegy Inc. ("Guarantor") is a corporation duly
organized and existing under the laws of the State of Delaware and is
authorized to perform the obligations required of Guarantor under the Guaranty.
2.1.3 The execution, delivery and performance by Dynegy of
this Agreement and the guarantee by Guarantor have been duly authorized by all
necessary action, and do not and will not require any consent or approval of
Dynegy's Affiliates, other than that which has been obtained.
2.1.4 The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of and
compliance with the provisions of this Agreement do not and will not conflict
with or constitute a breach of or a default under, any of the terms, conditions
or provisions of any Legal Requirements, or any partnership agreement, deed of
trust, mortgage, loan agreement, other evidence of indebtedness or any other
agreement or instrument to which Dynegy or Guarantor is a party or by which it
or any of its property is bound, or result in a breach of or a default under any
of the foregoing.
2.1.5 This Agreement constitutes the legal, valid and binding
obligation of Dynegy enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws relating to or affecting the enforcement of creditors' rights
generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
2.1.6 There is no pending, or to the knowledge of Dynegy,
threatened action or proceeding affecting Dynegy before any Governmental
Authority which purports to affect the legality, validity or enforceability of
this Agreement as in effect on the date hereof.
2.2 Representations and Warranties of Georgia Power. Georgia
Power hereby makes the following representations and warranties to Dynegy:
2.2.1 Georgia Power is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia, is
qualified to do business in the State of Georgia and has the legal power and
authority to own or lease its properties, to conduct its business and to enter
into this Agreement and carry out the transactions contemplated hereby and
perform and carry out all covenants and obligations on its part to be performed
under and pursuant to this Agreement.
2.2.2 The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of and
compliance with the provisions of this Agreement do not and will not conflict
with or constitute a breach of or a default under, any of the terms, conditions
or provisions of any Legal Requirements, or any partnership agreement, deed of
trust, mortgage, loan agreement, other evidence of indebtedness or any other
agreement or instrument to which Georgia Power is a party or by which it or any
of its property is bound, or result in a breach of or a default under any of the
foregoing.
2.2.3 This Agreement constitutes the legal, valid and binding
obligations of Georgia Power enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws relating to or affecting the enforcement of creditors' rights
generally or by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
2.2.4 There is no pending, or to the knowledge of Georgia
Power, threatened action or proceeding affecting Georgia Power before any
Governmental Authority which purports to affect the legality, validity or
enforceability of this Agreement.
ARTICLE 3
TERM OF AGREEMENT
3.1 Term.
3.1.1 This Agreement shall be effective when executed and
delivered by both Georgia Power and Dynegy and shall remain in full force and
effect until May 31, 2005.
3.1.2 Applicable provisions of this Agreement shall continue
in effect (i) after termination to the extent necessary to provide for final
xxxxxxxx and adjustments, and (ii) as provided herein. Provisions that expressly
survive the termination of this Agreement after the Term shall similarly survive
the early termination of this Agreement for any of the reasons giving rise to
early termination as provided herein.
3.2 Contract Commencement Date.
3.2.1 With regard to Block 1, the Contract Commencement Date
shall mean either June 1, 2000, or July 1, 2000. Georgia Power shall select the
Contract Commencement Date for Block 1 no later than May 1, 2000, by delivering
to Dynegy written notice containing the date on which the Contract Commencement
Date for Block 1 shall occur. Once designated, Georgia Power may not thereafter
change or redesignate the Contract Commencement Date for Block 1. If Georgia
Power originally designates July 1, 2000, as the Contract Commencement Date for
Block 1, but later determines that Block 1 will be available June 1, 2000,
Dynegy will have [redacted] after receipt of notice of such early availability
within which to elect to accept the Contract Capacity and the right to commence
Scheduling Block 1 on June 1, 2000, on the terms and at the rates set forth in
this Agreement. If Dynegy elects not to exercise the option described in the
preceding sentence, then Georgia Power shall have until July 1, 2000, before
making the Contract Capacity for Block 1 available to Dynegy. With regard to
Block 2 and Block 3, the Contract Commencement Date for both Blocks shall be
June 1, 2001. The Contract Commencement Date for Blocks 2 and 3 may not be
re-designated at any time except as provided in Section 3.2.2.
3.2.2 Georgia Power shall make available on the applicable
Contract Commencement Date for each Block, the Contract Capacity for such Block
together with the right of Dynegy to Schedule energy from the Contract Capacity.
However, if for Blocks 2 and 3, Georgia Power gives notice that the Service
Commencement Date shall be earlier than the Contract Commencement Date, the
Parties shall engage in negotiations, to be completed within [redacted]
following such notice, concerning the terms upon which the Contract Capacity for
Blocks 2 and 3 would be made available to Dynegy prior to the Contract
Commencement Date. If the Parties are unable to negotiate the terms of such
early commencement, then Georgia Power shall have until the Contract
Commencement Date before making the Contract Capacity for Blocks 2 and 3
available to Dynegy.
3.2.3 If, as of the Contract Commencement Date for any Block,
Georgia Power elects to delay the Service Commencement Date solely as a result
of the failure of any one or any combination of the Units to have reached a
state of construction completion so that such Unit is capable of delivering a
quantity of energy continuously over a period of hours and at the level that may
be Scheduled by Dynegy, then Georgia Power may elect to delay the Service
Commencement Date for a particular Block. If Georgia Power elects to delay the
foregoing Service Commencement Date for the reasons set forth in this Section
3.2.3, Georgia Power shall provide notice to Dynegy establishing a date on which
the Service Commencement Date will occur (the "Delayed Service Commencement
Date"). For the period from the Contract Commencement Date to the Delayed
Service Commencement Date, Georgia Power shall provide Dynegy with capacity and
energy equal to the Contract Capacity and associated energy attributable to the
Block for which the Delayed Service Commencement Date is applicable. Dynegy
shall be permitted to schedule such capacity and energy as Delivered Energy
under this Agreement to the same extent that Dynegy would have been able to
Schedule the Contract Capacity attributable to the Block subject to the Delayed
Service Commencement Date had the Contract Commencement Date occurred on the
appropriate date for such Block provided in Section 3.2.1. If during the period
from the Contract Commencement Date specified in Section 3.2.1 for the Block
subject to the Delayed Service Commencement Date Georgia Power is unable to
deliver Scheduled energy to Dynegy, then Georgia Power shall be [redacted].
Notwithstanding the Delayed Service Commencement Date, for a particular Block,
Dynegy shall nevertheless commence paying the Capacity Payment attributable to
and appropriate for such Block beginning on the Contract Commencement Date for
such Block specified in Section 3.2.1
ARTICLE 4
SALE OF CAPACITY AND ENERGY
4.1 Contract Capacity.
4.1.1 Unless excused as set forth in Article 12, Georgia Power
agrees to sell to Dynegy and Dynegy agrees to purchase from Georgia Power the
Contract Capacity as set forth below and continuing for the remainder of the
Term.
4.1.2 Contract Capacity shall consist of (i) 75 MW (Block 1)
commencing on the date specified as the Contract Commencement Date for Block 1
in Article 3, and (ii) an additional 150 MW composed of two 75 MW Blocks (Blocks
2 and 3) commencing on the date specified as the Contract Commencement Date for
Blocks 2 and 3 in Article 3, for a total of 225 MW. While various performance,
timing and Scheduling provisions of this Agreement are determined by reference
to the Blocks, the Delivered Energy sold hereunder may be supplied by Georgia
Power from any generation resources it may choose at its sole option. Without
regard to whether Delivered Energy supplied under this Agreement is sourced from
the Units or from Alternate Resources, Georgia Power shall under all
circumstances be required to deliver energy properly Scheduled by Dynegy to the
Delivery Point.
4.2 Delivered Energy.
4.2.1 Beginning on the earlier of the Service Commencement
Date or the Contract Commencement Date for each Block, Dynegy shall have rights
to Schedule energy in accordance with the provisions of this Agreement. For each
Year, the total number of hours which Dynegy shall have rights to Schedule and
receive energy at the Energy Price from each Block shall not exceed [redacted].
4.2.2 Georgia Power, at its sole discretion, shall supply
Delivered Energy (i) from the Units; or (ii) from the Alternate Resources to the
Delivery Point.
ARTICLE 5
PAYMENTS
5.1 Monthly Payments. Dynegy shall pay Georgia Power for each Month of
the Term, a Monthly Capacity Payment, a Monthly Energy Payment and Monthly
Dispatch Payments in accordance with this Article, and if applicable, the Force
Majeure Fixed Payment in lieu of the Monthly Capacity Payment.
5.2 Capacity Payments. For each Month beginning with the
Contract Commencement Date and continuing hrough the remaining Term, Dynegy
shall make a Monthly Capacity Payment to Georgia Power in the amounts set
forth on Exhibit A. [redacted].
5.3 Energy Payment.
5.3.1 Each Month, Dynegy shall make a Monthly Energy Payment
to Georgia Power. For each Dispatch during the Month, the energy payment shall
equal the MWh of Delivered Energy multiplied by the Energy Price. The Energy
Price equals the Fuel Costs as determined below plus the Variable O & M Amount
for the applicable period as set forth in Exhibit A. The Monthly Energy Payment
shall equal the sum of the energy payments per Dispatch.
5.3.2 Dynegy shall provide its own Fuel supply to the Units
unless Georgia Power, in its sole discretion, elects to provide energy from
Alternate Resources. The circumstances under which Georgia Power may elect to
provide Scheduled energy from Alternate Resources is addressed in Section 8.1.3.
To the extent Dynegy supplies Fuel to the Units or alternate Fuel delivery
points pursuant to Section 5.3.3, the Energy Price shall not include any Fuel
Costs.
5.3.3 When Georgia Power elects to supply energy from
Alternate Resources, [redacted], Dynegy shall offer a delivered Fuel price.
Georgia Power shall then elect to (i) accept delivery of Fuel at Plant Xxxxxxxx,
(ii) accept delivery of Fuel at alternate Fuel delivery points such that
[redacted], or (iii) accept Dynegy's Fuel price for purposes of determining a
Fuel Cost, which shall equal the Contract Heat Rate multiplied by Dynegy's Fuel
price.
5.4 Monthly Dispatch Payments. Dynegy shall make Dispatch
Payments for each Dispatch of the Contract Capacity in the amount of
[redacted] as set forth in Exhibit A.
ARTICLE 6
FUEL MANAGEMENT
6.1 Fuel for Operations; Delivery and Acceptance.
6.1.1 With respect to agreements for the supply of Fuel with
the Interstate Pipeline, Dynegy shall exercise Commercially Reasonable Efforts
to negotiate such agreements to contain the following provisions: (i) require
the quality of Fuel supplied or transported to conform to the natural gas
quality specification applicable in the performance warranty obtained from the
manufacturer of the natural gas turbines included in each of the Units, (ii) the
right to reject Non-Conforming Fuel, and (iii) supply Fuel to the Fuel Metering
Points at a pressure not less than the minimum requirements of the Units. To the
extent the tariff or Dynegy's agreements with the Interstate Pipeline provides
for recovery or indemnification for damages the shipper suffers as a result of
the Interstate Pipeline's delivery of Non-Conforming Fuel, Dynegy will collect
and distribute to Georgia Power any recovery due from the Interstate Pipeline to
the extent a Unit is damaged by the delivery of Non-Conforming Fuel; provided
that, to the extent such recovery is allocable to transportation transactions
unrelated to the Units, such recovery may be equitably allocated among all such
affected transactions.
6.1.2 To the extent Georgia Power has indicated pursuant to
Section 8.1 that Scheduled Energy will be provided from one or more of the
Units, Dynegy shall at all times arrange, procure, supply, nominate, balance,
transport, pay for and deliver to the Fuel Metering Points, the amount of Fuel
necessary to generate the Scheduled energy based on the Contract Heat Rate for
the period of the Schedule. All Fuel required to be delivered under this
Agreement shall be delivered by Dynegy at the Fuel Metering Points. As long as
the Units are available for Scheduling and are not subject to a Force Majeure
Event, an Unavailability Event or supply from an Alternate Resource, Georgia
Power shall accept all Fuel, other than Non-Conforming Fuel, required by such
Unit delivered by Dynegy at the Fuel Metering Points pursuant to the terms of
this Agreement.
6.2 Risk of Loss. As between the Parties, [redacted].
------------
6.3 Measurement and Quality of Fuel.
6.3.1 All Fuel to be supplied by Dynegy pursuant to the terms
of this Agreement shall be measured at the Fuel Metering Points and shall meet
the specification for gas delivered to the Interstate Pipeline.
6.3.2 Georgia Power shall notify Dynegy if any Fuel made
available by Dynegy to Georgia Power under this Agreement is Non-Conforming
Fuel. Georgia Power may refuse to accept delivery of such Non-Conforming Fuel
and such Non-Conforming Fuel shall, for purposes of this Agreement, be deemed
not to have been provided by Dynegy under this Agreement.
6.4 Failure to Deliver Fuel; Imbalance.
6.4.1 Whenever Georgia Power has indicated
pursuant to Section 8.1 that Scheduled energy will be provided from one or
more of the Units, if Dynegy fails to deliver Fuel of proper quality in the
proper amounts at the times necessary to operate such Unit(s), then Georgia
Power shall be excused from any energy delivery obligation under this Agreement.
6.4.2 The Parties shall exercise Commercially
Reasonable Efforts to minimize any imbalances or other penalties or charges
from transporters resulting from the provisions of Fuel by Dynegy. In general,
the Parties agree that the Party whose action or inaction causes any imbalance
or other penalties or charges will bear the financial responsibility for said
imbalance or other penalties or charges.
[redacted]
ARTICLE 7
AVAILABILITY
7.1 Curtailments and Excuse.
7.1.1 Georgia Power's obligation to deliver Contract Capacity
and energy pursuant to this Agreement, and Dynegy's right to Schedule pursuant
to this Agreement, will be curtailed if and to the extent that an Unavailability
Event or a Force Majeure Event occurs and continues during any portion of the
Term; provided, that Georgia Power's obligation and Dynegy's right shall be
curtailed only for the actual duration of such Unavailability Event or Force
Majeure Event and for no longer period. Upon notice from Georgia Power to Dynegy
that an Unavailability Event or Force Majeure Event, as applicable, has ended
and that a particular Block or Blocks are once again available for Scheduling,
any Unavailability Event or Force Majeure Event then in effect shall end, and
Scheduling may resume.
7.1.2 Georgia Power and Dynegy agree that Georgia Power shall
not be permitted to use ENDH unless the Units are experiencing an Unavailability
Event.
7.1.3 Georgia Power shall promptly notify Dynegy of the
occurrence of an Unavailability Event or after discovering any circumstance that
could reasonably be expected to lead to an Unavailability Event. In the event of
an Unavailability Event, the period after commencement of such Unavailability
Event shall be divided into two distinct, contiguous periods: (i) the period
beginning at the time of the occurrence of the Unavailability Event until the
earlier of the removal of the Unavailability Event or 12:00 midnight (Central
Prevailing Time) of the Day in which such occurrence happens (the "Determination
Period") and (ii) the period from the end of the Determination Period until the
removal of the Unavailability Event (the "Extended Outage Period").
7.1.4 After the commencement of the Extended Outage Period, as
soon as practicable Georgia Power shall notify Dynegy of: (i) the cause (or if
not known, Georgia Power's best estimate of the cause) of the Unavailability
Event resulting therefrom; (ii) the proposed corrective action that can be taken
by Georgia Power relative to the Units and (iii) Georgia Power's best estimate
of the expected duration of the Extended Outage Period.
7.1.5 Georgia Power's estimate of the duration of the
Unavailability Event shall be based on the best information then available to
Georgia Power and Georgia Power shall promptly notify Dynegy of any expected
changes in such period.
7.1.6 Consistent with Prudent Utility Practices, Georgia Power
shall use Commercially Reasonable Efforts to avoid an Unavailability Event and
to minimize the duration of any Unavailability Event.
7.2 Georgia Power Elections; [redacted].
7.2.1 Georgia Power shall, within [redacted] of the occurrence
of the event causing such Unavailability Event (the "Election Period"), provide
telephonic notice (which shall be confirmed in writing as soon as practicable)
to Dynegy indicating whether Georgia Power will elect to provide energy from
Alternate Resources equivalent to the quantity of energy Scheduled by Dynegy,
use ENDH or pay [redacted]. Such notice shall be provided prior to [redacted]
after any hour during the Election Period. The Election Period shall be deemed
to have ended at the end of said hour. Such notice shall indicate Georgia
Power's election for the remainder of the Determination Period and, if
applicable, will indicate whether Georgia Power will elect to provide energy
from Alternate Resources for the first Day of the Extended Outage Period.
Georgia Power's elections for the Determination Period and the first day of the
Extended Outage Period may be different. If Georgia Power fails to deliver such
notice during the Election Period, it shall be conclusively presumed that
[redacted]. During the Election Period, [redacted].
7.2.2 On each Day of the Extended Outage Period, with respect
to any Unavailability Event, Georgia Power shall, within [redacted] of receipt
of Dynegy's Dispatch Schedule, but no earlier than 8:30 a.m. CPT, provide
telephonic notice (which shall be confirmed in writing as soon as practicable)
to Dynegy indicating whether Georgia Power will elect to cover any energy
Scheduled by Dynegy during the Extended Outage Period that as a result of the
Extended Outage Period cannot be delivered by Georgia Power, by providing energy
from Alternate Resources. Such notice shall indicate Georgia Power's election
for Dispatches Scheduled during the Day immediately following the Day on which
such notice is given. Such notice shall specify the portion of the resultant
energy Scheduled by Dynegy to be covered by delivery of energy from Alternate
Resources. On each Day of the Extended Outage Period for which Georgia Power has
elected not to provide energy from Alternate Resources, Georgia Power shall,
within [redacted] of receipt of Dynegy's Schedule, but no earlier than 8:30
a.m., CPT, notify Dynegy of its choice to use ENDH or [redacted] to cover
Dynegy's Schedule for that Day.
7.2.3 In the Determination Period or Extended Outage Period:
(i) if Georgia Power elects to use ENDH for any particular Dispatch during the
Unavailability Event, Georgia Power must use ENDH [redacted]; (ii) [redacted];
and (iii) if Georgia Power elects to deliver energy from Alternate Resources in
replacement of energy Scheduled by Dynegy that would otherwise be undelivered
due to an Unavailability Event, Georgia Power must do so [redacted].
7.2.4 During any Determination Period or Extended Outage
Period, Georgia Power may elect to [redacted]. [redacted]. If the ENDH limits
described in Exhibit B are depleted in any Contract Year, Georgia Power shall
thereafter for the remainder of such Contract Year during any period in which
Dynegy has Scheduled energy for delivery and there exists an Unavailability
Event, either provide energy from Alternate Resources equal to the amount of
energy Scheduled by Dynegy, or elect not to provide energy from Alternate
Resources and [redacted].
7.2.5 In any circumstance where Georgia Power has the option
to use ENDH, if the ENDH is exhausted during any Schedule, Georgia Power shall
be required to [redacted].
7.3 Use of Equivalent Excused Non-Delivery Hours.
7.3.1 Where Georgia Power has elected to use Excused
Non-Delivery Hours as provided above in lieu of providing energy from Alternate
Resources, the Excused Non-Delivery Hour shall be converted to an Equivalent
Excused Non-Delivery Hour equal to the product of (i) the hour or fraction of
the hour in which Scheduled energy was not delivered due to the Unavailability
Event, and (ii) the appropriate [redacted].
7.3.2 Use of Equivalent ENDH for Peak Hours during the Summer
Months shall be equal to the sum of Equivalent ENDH which have occurred during
Peak Hours during the Summer Months of the Year. Use of Equivalent ENDH for Peak
Hours during the Non-Summer Months shall be equal to the sum of Equivalent ENDH
which have occurred during Peak Hours during the Non-Summer Months of the Year.
7.3.3 For each respective period, the sum of Equivalent ENDH
shall not exceed the ENDH Allowance limits as set forth in Exhibit B. If the
ENDH Allowance is depleted, and Georgia Power does not provide energy from
Alternate Resources, then [redacted].
7.4 [redacted].
7.4.1 [redacted]
7.4.2 [redacted].
7.5 Remedy. Dynegy's sole and exclusive remedy for energy not delivered
from Alternate Resources during Peak Hours where the ENDH Allowance may be
exceeded as set forth in this Article is [redacted] Georgia Power shall incur no
liability and shall not use ENDH [redacted] in respect of an Unavailability
Event during non-Peak Hours.
ARTICLE 8
SCHEDULING
8.1 Scheduling.
8.1.1 Prior to the first Day of each Month, Dynegy shall
provide to Georgia Power non-binding, good faith projections of the amounts of
energy to be scheduled by Dynegy for each hour of such Month. The Monthly
schedules shall in no way limit the flexibility of Scheduling available to
Dynegy as described in Article 8.
8.1.2 Dynegy shall inform Georgia Power on each Business Day
before 9:30 a.m. (CPT) of the projected Schedule of the Blocks for each hour for
the following Business Day and any non-Business Days which will occur before the
next Business Day.
8.1.3 Within [redacted] of receiving Dynegy's projected
Schedule as specified in Section 8.1.2, but no earlier than 8:30 a.m. (CPT),
Georgia Power shall inform Dynegy by telephone whether Georgia Power will
respond to such Schedule (and any related Schedule order) with one or more of
the Units or with Alternate Resources.
8.2 Title and Risk of Loss. As between the Parties, Georgia Power shall
be deemed to be in exclusive control (and responsible for any property damages
or injuries to Persons caused thereby) of the Contract Capacity and Scheduled
energy at and prior to the Delivery Point and Dynegy shall be deemed to be in
exclusive control (and responsible for any property damages or injuries to
Persons caused thereby) of the Contract Capacity and Scheduled energy from and
after the Delivery Point. Custody, title and risk of loss related to the
Contract Capacity and Scheduled energy shall transfer from Georgia Power to
Dynegy at the Delivery Point.
ARTICLE 9
BILLING AND PAYMENT
9.1 Capacity, Energy and Dispatch Billing and Payment.
9.1.1 Georgia Power shall send Dynegy an invoice as soon as
practicable after the end of each Month during the Term stating the Monthly
Capacity Payment, [redacted], Monthly Energy Payment and Monthly Dispatch
Payment for the immediately previous Month. If circumstances require that the
invoice be an estimated xxxx, Georgia Power may render an estimated xxxx and any
adjustments required shall be made in ensuing invoices. Each Monthly invoice
shall contain a statement explaining in reasonable detail how the invoice was
calculated.
9.1.2 All such invoices shall be due when rendered and payable
by Dynegy on or before the later of the [redacted] following the day on which
the invoice is actually received by Dynegy, or the [redacted] of the Month in
which the invoice is delivered to Dynegy. Georgia Power may render invoices by
means of facsimile, and receipt shall be deemed to have occurred upon
transmission if confirmed in writing (by manually or machine-generated
confirmation notice). Subject to the provisions of Section 9.2, Dynegy shall
make payment to Georgia Power in accordance with such invoices and all other
amounts payable to Georgia Power hereunder on or before the date due in
immediately available funds, through wire transfer of funds to an account
designated by Georgia Power, or other means reasonably acceptable to Georgia
Power.
9.1.3 If Georgia Power owes Dynegy for [redacted] or any other
amounts hereunder, then Dynegy will deliver to Georgia Power a statement showing
such amounts and explaining in reasonable detail how such amounts were
calculated. Subject to Section 9.2, such amounts, if less than or equal to the
next invoice amount will be credited against such invoice. To the extent such
[redacted].
9.2 Billing Disputes and Final Accounting.
-------------------------------------
9.2.1 If either Party after receiving a statement or xxxx
reasonably questions or contests the amount or propriety of any payment or
amount claimed by the billing Party to be due pursuant to this Agreement, the
billed Party shall provide the billing Party with written notice of the disputed
amount.
[redacted]
9.2.2 In the event that the billed Party questions or contests
the correctness of any such charge or credit, the billing Party shall promptly
review the questioned charge or credit and shall notify the billed Party of any
error in its determination of amounts owed and the amount of any payment that
the billed Party is required to make in respect of such redetermination. Not
later than the [redacted] after receipt by Dynegy of any such notice from
Georgia Power as to the amount of any Monthly Capacity Payments, Monthly Energy
Payments, Force Majeure Fixed Payment or Dispatch Payments that Dynegy is
required to make, Dynegy shall make payment as provided in Section 9.2.1 to
Georgia Power in immediately available funds. Not later than the [redacted]
after receipt by Georgia Power of any such notice from Dynegy as to the amount
of any payment or [redacted] that Georgia Power is required to make, Georgia
Power shall make payment or credit as appropriate, to Dynegy in immediately
available funds. If the billed Party disagrees with the billing Party's
resolution of a question or contest, then the dissatisfied billed Party may seek
settlement through further negotiations or legal action, subject to the
provisions of Section 9.3. Adjustments shall be made or credited at the time of
resolution together with interest at the Interest Rate from the date the
original payment was due until the date such payment or credit together with
interest at the Interest Rate is actually made. The billed Party shall have
until the end of [redacted] after its receipt of any invoice or statement to
question or contest the correctness of any charge or credit on such invoice or
statement.
9.3 Interest. If a Party does not make a payment required by this
Agreement when due then interest shall be added to the overdue payment from the
date such overdue payment was due until such overdue payment together with
interest at the Interest Rate is paid. If a Party makes a payment required by
the Agreement and it is later determined that such payment was not due, then
such amount shall be refunded or credited with interest at the Interest Rate
accruing from the date that the returned payment was originally made.
9.4 Billing and Payment Records. Until the end of [redacted] after its
receipt of any invoice, each Party will make available to the other Party upon
written request, and each Party may audit, such books and records of the other
Party (or other information to which such Party has access) as are reasonably
necessary for such Party to calculate and determine the Monthly Energy Payments
or Force Majeure Fixed Payment shown on such invoice and thereby to verify the
accuracy and appropriateness of the amounts billed to Dynegy and the information
provided by Dynegy to Georgia Power. The Parties shall maintain their respective
books and records in accordance with generally accepted accounting principles
applicable from time to time.
ARTICLE 10
OPERATIONS
10.1 Contract Capacity and Contract Heat Rate.
----------------------------------------
10.1.1 While the Parties acknowledge that Georgia Power may
construct the Units, energy actually delivered under this Agreement may be
provided from any generation resource available to Georgia Power at Georgia
Power's sole discretion, and except where specifically noted, operation of the
Units may not necessarily be tied directly to Scheduling of energy in Blocks by
Dynegy. Regardless of the source of energy to be delivered to Dynegy under this
Agreement, Georgia Power shall at all times deliver such energy to the Delivery
Point.
10.1.2 The Contract Heat Rate for each Block shall be
[redacted].
10.1.3 Georgia Power intends to operate its system in
accordance with Prudent Utility Practices, and otherwise in accordance with this
Agreement.
10.2 Transmission.
10.2.1 Georgia Power shall be responsible for making all
arrangements for transmission service, including ancillary services, for
delivery of Contract Capacity and energy to the Delivery Point. Georgia Power
shall be responsible for all costs, losses, and any liability associated with
such transmission.
10.2.2 Dynegy shall be responsible for making all arrangements
for transmission service, including ancillary services, for delivery of Contract
Capacity and energy from the Delivery Point. Dynegy shall be responsible for all
costs, losses and any liability associated with such transmission.
10.3 Maintenance.
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10.3.1 Except as provided for in Section 10.3.4, Georgia Power
shall not be permitted to use Annual Hours during any Summer Month.
10.3.2 At least [redacted] before June 1 of each Contract Year
and at least [redacted] prior to the applicable Contract Commencement Date,
Dynegy shall provide to Georgia Power a non-binding proposed Schedule of MWhs
Dispatches of Blocks 1, 2, and 3 for the Contract Capacity for each Month of the
ensuing Contract Year. Within [redacted] of receiving Dynegy's proposed
schedule, Georgia Power shall submit to Dynegy a proposed schedule of Annual
Hours for the period covered by the proposed Dispatch and Schedule provided by
Dynegy. The proposed schedule of Annual Hours shall give due consideration to,
and shall take into account, the proposed Schedule submitted by Dynegy;
provided, however, that in no event shall [redacted]. Within [redacted] after
receiving Georgia Power's proposed schedule of Annual Hours, Dynegy may request,
in writing, that Georgia Power reschedule any such Annual Hours. Georgia Power
shall make reasonable efforts to accommodate such request in the scheduling of
Annual Hours. In scheduling maintenance for its generating facilities Georgia
Power shall make no adverse distinction against the Units.
10.3.3 Contract Years in which Annual Hours include a
combustion inspection, a hot gas inspection or a major inspection with respect
to any generation equipment from which the Contract Capacity attributable to
Blocks 1, 2, and 3 may be sourced, the duration of the Annual Hours shall be
determined in accordance with the equipment manufacturers' then current
recommendations; provided that for purposes of this Section 10, the
manufacturers' recommendations shall be determined in accordance with the
formulae provided by the relevant equipment manufacturers and shall be
consistent with the formulae provided by such equipment manufacturers that is
typical for similar equipment, which formulae may be revised from time to time
by such manufacturers. If such recommendations or formulae are revised by such
manufacturers to decrease the intervals at which a combustion inspection, a hot
gas inspection and/or a major inspection is recommended to occur with respect to
a Unit, then the number of Annual Hours shall be amended to reflect the
increased hours effected by such decreased intervals, with the intent that
Georgia Power will be able to include all hours included in the decreased
intervals in the Annual Hours. Notwithstanding the foregoing or any provision
herein, Georgia Power shall use Prudent Utility Practices to complete and
minimize the duration of Annual Hours. To the extent that hours which are, or
which would otherwise be considered, Annual Hours exceed the total Annual Hours
available to Georgia Power in any Contract Year, then to the extent that Georgia
Power incurs Unavailability as a result of such exceedance, Georgia Power shall
have the right to make the elections specified in Article 7 with regard to such
Unavailability.
10.3.4 In addition to the Annual Hours provided for in
Sections 10.3.2 and 10.3.3, Georgia Power shall be entitled to perform
additional maintenance during the [redacted] Months during non-Peak Hours. If
maintenance is to be scheduled on a Saturday, Sunday or a NERC holiday, Georgia
Power shall provide telephonic notice (confirmed in writing) as soon as
practicable prior to the Day on which the additional maintenance is projected to
commence. Dynegy shall have the right to request that Georgia Power perform said
maintenance during other mutually agreeable periods and Georgia Power shall make
Commercially Reasonable Efforts, consistent with Prudent Utility Practices, to
accommodate Dynegy's requests.
10.3.5 With respect to the Annual Hours, Georgia Power and
Dynegy agree that, in addition to the other provisions of this Section 10.3,
Annual Hours are intended to encompass periods during which the generating units
comprising the Units and encompassing the Blocks are unavailable for dispatch by
any party. Therefore, Georgia Power shall not be permitted to designate Annual
Hours and simultaneously operate the Units. The limitation specified in this
Section 10.3.5 shall apply in every instance in which Annual Hours are
designated or used.
10.4 Operating Procedures. Dynegy and Georgia Power shall develop
written operating procedures before synchronization of the Units with the
Georgia Integrated Transmission System. The operating procedures shall establish
the protocol under which the Parties shall perform their respective
responsibilities under this Agreement and shall include, but shall not
necessarily be limited to, method of Day-to-Day communications, key personnel
lists for Georgia Power and Dynegy, ENDH and Annual Hour reporting, daily
capacity level and energy reports, coordinating Fuel arrangements and the
operating procedures for Fuel supply, the resolution of disputes and the
allocation of Fuel delivered to the Units.
ARTICLE 11
CHANGE IN LAW, MODIFICATION OF AGREEMENT
11.1 Change in Law.
11.1.1 The Parties acknowledge that a change of a law or
regulation or a change in interpretation of a law or regulation ("Change in
Law"), including but not limited to environmental laws and regulations may
significantly change Georgia Power's costs in providing service under this
Agreement. In the event of such a Change in Law, Georgia Power may give notice
to Dynegy that Georgia Power's costs of providing service under this Agreement
have changed significantly. In such case, Georgia Power shall submit to Dynegy a
certificate setting forth in reasonable detail the basis of, and the calculation
for, the increased costs, and the Parties shall enter into negotiations in an
effort to arrive at a mutually agreeable amendment to this Agreement that would
accommodate the impact of the Change in Law. If after a period of [redacted]
following the commencement of the negotiations, the Parties have not reached
agreement, then Georgia Power shall have the option, in its sole discretion, (i)
to continue this Agreement unamended; or (ii) to terminate this Agreement as of
the next [redacted] first to occur and which is at least [redacted] after the
end of the [redacted] negotiation period; provided, however, that during any
[redacted] Month this Agreement remains in effect after a Change in Law has
resulted in increased costs to Georgia Power, Dynegy will make increased
payments as reasonably calculated by Georgia Power in good faith to take account
of such increased costs.
11.1.2 For purposes of this Article, Changes In Law include,
but are not limited to, changes in environmental laws or regulations and energy
taxes on wholesale power sales. Applicable environmental laws and regulations
may seek either to decrease current limits (e.g., NOx), or to establish limits
for currently uncontrolled substances (e.g., CO2), on any plant emission.
Covered costs include, but are not limited to changes in chemicals, consumables,
O&M, emission allowance purchases, carrying costs and efficiency impacts.
11.2 Modification of Agreement. In the event the FERC or any other
Governmental Authority modifies this Agreement, the Parties agree to make all
changes necessary to preserve as nearly as possible the bargain contained in
this Agreement, including but not limited to, the total amounts of capacity and
energy delivered to Dynegy and the total amount of revenues to be received by
Georgia Power.
ARTICLE 12
FORCE MAJEURE
12.1 Definition of Force Majeure. For the purposes of this Agreement, a
"Force Majeure Event" as to a Party means any occurrence, nonoccurrence or set
of circumstances, whether or not foreseeable, that is beyond the reasonable
control of such Party and is not caused by such Party's negligence, including,
without limitation: any strike, stoppage in labor, failure of contractors or
suppliers of materials or services caused by Force Majeure as defined in the
applicable contract: flood, ice, earthquake, windstorm or eruption; fire;
explosion; invasion, riot, war, commotion or insurrection; sabotage, terrorism
or vandalism; military or usurped power; order of any Governmental Authority; or
act of God or of a public enemy. The term Force Majeure Event shall not include
(i) [redacted], (ii) [redacted], (iii) the failure to timely apply for or to
obtain any applicable governmental approvals for the construction or operation
of the Units from any Governmental Authority, (iv) changes in market conditions
that affect the cost of fuel, capacity or energy; or (v) difficulty or inability
to make payments.
12.2 No Breach or Liability. Either Party shall be excused from
performance and shall not be construed to be in default in respect of any
obligation hereunder (other than the obligation to pay money) for so long as
failure to perform such obligation shall be due to a Force Majeure Event.
12.3 Capacity and Energy Payments. During the suspension of
performance due to or resulting from a Force Majeure Event declared by
Georgia Power, Dynegy shall continue to make Monthly Capacity Payments;
[redacted]
12.4 Mitigation. Following the occurrence of a Force Majeure
Event, the affected Party shall:
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12.4.1 give the other Party notice thereof, followed by
written notice if the first notice is not written, as promptly as practicable
after such Party becomes aware of such Force Majeure Event, describing the
particulars of such Force Majeure Event;
12.4.2 use its reasonable best efforts consistent with Prudent
Utility Practices to remedy its inability to perform as soon as practicable;
provided, however, that this Section 12.4.2 shall not require the settlement of
any strike, walkout, lockout or other labor dispute on terms which in the sole
judgment of the party involved in the dispute, are contrary to its interest;
provided further, that the settlement of strikes, lockouts or other labor
disputes shall be entirely within the discretion of the Party having the
difficulty; and
12.4.3 when it is able to resume performance of its
obligations under this Agreement, give the other Party written notice to that
effect.
12.5 Suspension of Performance. The suspension of performance due to a
Force Majeure Event shall be of no greater scope and of no longer duration than
is required by such Force Majeure Event. No Force Majeure Event shall extend
this Agreement beyond its stated Term.
ARTICLE 13
CREDIT
13.1 Guaranty. Simultaneously with the execution of this
Agreement, Dynegy shall cause Dynegy Inc. to execute and deliver a Guaranty
Agreement in the form of that attached hereto as Exhibit C (Guaranty).
ARTICLE 14
EVENTS OF DEFAULT AND DAMAGES FOR NON-PERFORMANCE
14.1 Events of Default. "Event of Default" means the occurrence of any
of the following events with respect to a Party (the Defaulting Party, the other
Party being the Non-Defaulting Party), Defaulting Party in the case of Dynegy
including Dynegy Inc.
14.1.1 The Defaulting Party fails to make any payment which it
is obligated to make pursuant to this Agreement and such failure to make payment
continues for a period of [redacted] after the date on which written notice
thereof shall have been given to the Defaulting Party.
14.1.2 Any representation or warranty of the Defaulting Party
pursuant to this Agreement or the Guaranty shall prove to have been false or
misleading in any material respect when made or deemed made; unless (i) the
fact, circumstance or condition that is the subject of such representation or
warranty is made true within [redacted] after notice thereof has been given to
the Defaulting Party and (ii) such cure removes any adverse effect on the
Non-Defaulting Party of such fact, circumstance or condition being otherwise
than as first represented, or unless such fact, circumstance or condition being
otherwise than as first represented does not materially adversely affect
Non-Defaulting Party.
14.1.3 A court having jurisdiction shall enter (i) a decree or
order for relief in respect of Defaulting Party in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or (ii) a decree or order adjudicating
Defaulting Party bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of Defaulting Party under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of Defaulting Party or of any substantial part of its
affairs; or
14.1.4 Defaulting Party shall (i) commence a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or any other case or proceeding to be
adjudicated as bankrupt or insolvent, or (ii) consent to the entry of a decree
or order for relief in respect of Defaulting Party in any involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or (iii) file any petition, answer or
consent seeking reorganization or relief under any applicable Federal or state
law, or (iv) consent to the filing of any petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official or (v) make an assignment for the benefit of
creditors, or (vi) be unable, or admit in writing its inability, to pay its
debts as they become due, or (vii) take any action in furtherance of any of the
foregoing.
14.1.5 Defaulting Party shall fail to pay when due (subject to
any applicable grace or cure period), whether by acceleration or otherwise, any
principal or interest on indebtedness aggregating in excess of [redacted] in
principal amount; or any indebtedness aggregating in excess of [redacted] shall
be declared due and payable or be required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity of such indebtedness.
14.1.6 Dynegy Inc. shall fail to perform any covenant set
forth in the Guaranty, or the Guaranty shall expire and shall not be replaced
with comparable assurance to Georgia Power, with Georgia Power's consent, which
consent shall not be unreasonably withheld. Notwithstanding anything to the
contrary contained in this Agreement, if the Guaranty shall expire or if Dynegy
Inc. shall fail to perform any of its obligations under the Guaranty, Dynegy
shall have the right to replace the Guaranty with a replacement guaranty
agreement issued by Dynegy Holdings Inc., which replacement guaranty shall be in
form and substance similar to the Guaranty. In such event, and provided that at
the time of replacement, Dynegy Holdings Inc. is not experiencing a Material
Adverse Change of the type described in Section 14.1.7.1, Georgia Power shall be
deemed to have consented to the delivery of the replacement guaranty.
14.1.7 Dynegy Inc. shall experience a Material Adverse Change;
provided, however, such Material Adverse Change shall not be considered an Event
of Default if Dynegy Inc., or Dynegy delivers or causes to be delivered to
Georgia Power: (a) a guaranty agreement issued by Dynegy Holdings Inc. (or any
other third party guarantor) in form and substance comparable to the Guaranty,
and guaranteeing the obligations of Dynegy for the remainder of the Term,
provided that for such replacement guaranty to be sufficient to remove an Event
of Default arising under this Section 14.1.7, Dynegy Holdings Inc. (or such
third party guarantor) must not, at the time of replacement, be experiencing a
Material Adverse Change of the type described in Section 14.1.7.1; or (b)
Eligible Collateral in an amount equal to the next [redacted]. Eligible
Collateral will be adjusted on the last day of each Month during the Material
Adverse Change Event as dictated by changes in [redacted].
14.1.7.1 As used in this Section 14.1.7, a Material Adverse Change shall
occur when Dynegy Inc.'s senior securities are rated below [redacted]. In the
event one of the ratings of Dynegy Inc. falls below either [redacted], Dynegy
will propose a substitute guarantor from an entity with ratings greater than or
equal to [redacted], which substitute guarantor is acceptable to Georgia Power.
A Material Adverse Change shall occur if no such substitute guarantor is
available. If long-term ratings are not available from [redacted] will be used
instead of the [redacted] to determine a Material Adverse Change. In the case of
[redacted] are not available, [redacted] will be used instead of the [redacted]
to determine a Material Adverse Change. If Dynegy Inc. ceases to have a long-or
short-term rating from either [redacted], then a Material Adverse Change shall
have occurred.
14.1.7.2 As used in this Section 14.1.7, Eligible Collateral shall consist
of an irrevocable Letter of Credit or surety bond from [redacted] (and in a form
reasonably acceptable to Georgia Power), or cash.
14.1.8 The Defaulting Party materially breaches any obligation
under this Agreement (other than the obligation to pay money when due which
shall be governed exclusively by Section 14.1.1) or the Guaranty, and such
breach shall continue for a period of [redacted] after the date on which written
notice thereof shall have been given to the Defaulting Party; except that if it
shall be impracticable or impossible to remedy any such breach within such
[redacted] period, such period shall be extended as reasonably necessary to
remedy such breach.
14.2 Rights Under Agreement. Except as otherwise provided herein, each
Party reserves to itself all rights, counterclaims, and other defenses which it
is or may be entitled to arising from or out of this Agreement.
14.3 Remedies.
--------
14.3.1 Upon the occurrence of an Event of Default pursuant to
this Article 14, the Non-Defaulting Party may at its discretion, take either or
both of the following actions: (i) proceed by appropriate proceedings, judicial,
administrative, in equity or otherwise at law, to protect and enforce its
rights, to recover any damages to which it may be entitled, and to enforce
performance by the Defaulting Party, including specific performance of
Defaulting Party's obligations hereunder; and (ii) terminate this Agreement by
giving written notice thereof to the Defaulting Party.
14.3.2 In addition to the remedies provided in Section 14.3.1,
the Non-Defaulting Party may, for so long as the Event of Default is continuing,
by written notice to the Defaulting Party, establish a date on which this
Agreement shall be terminated, which date shall be at least [redacted] and no
more than [redacted] after the date of such written notice. [redacted].
14.3.3 In the case in which an Event of Default in which
Dynegy is the Defaulting Party has occurred and is continuing, Georgia Power
shall have the right to sell all Contract Capacity and energy under this
Agreement to any party. Georgia Power shall use its reasonable best efforts to
sell such Contract Capacity and energy at prices equal to or greater than those
Dynegy would have paid under this Agreement; provided, that if such prices are
less than those Dynegy would have paid under this Agreement, Dynegy shall be
liable to pay Georgia Power the difference. By way of clarification of the
foregoing only, an Event of Default shall not be deemed to have occurred unless
and until all applicable grace and/or cure periods have expired.
ARTICLE 15
INDEMNIFICATION AND LIMITATION OF LIABILITY
15.1 Indemnity. Subject to Section 15.3 below, each Party expressly
agrees to indemnify, hold harmless and defend the other Party against all
claims, liability, costs or expense for loss, damage or injury to persons or
property in any manner directly or indirectly connected with or growing out of,
the generation, transmission or distribution of Delivered Energy on its own side
of the Delivery Point, unless such loss, damage or injury is the result of gross
negligence or willful misconduct of the Party seeking indemnification.
15.2 No Liability to Third Party. Nothing herein shall create, or be
interpreted as creating, any standard of care with reference to, or any duty or
liability to any person not a Party hereto.
15.3 No Consequential Damages. To the fullest extent permitted by law,
neither Party shall be liable to the other for punitive, indirect, exemplary,
consequential, or incidental damages including, without limitation, claims of
customers of the indemnified Party arising in connection with this Agreement.
15.4 No Warranties. There are no warranties under this Agreement except
to the extent specifically set forth in the text hereof. The Parties hereby
specifically disclaim and exclude all implied warranties, including the implied
warranties of merchant ability and of fitness for a particular purpose.
ARTICLE 16
ASSIGNMENT
16.1 Assignment and Assumption of Obligations. Neither Party shall
assign this Agreement or any portion thereof without the prior written consent
of the other Party which such consent shall not be unreasonably withheld;
provided, however, (i) any assignee shall expressly assume assignor's
obligations hereunder and (ii) unless expressly approved by the other Party to
this Agreement, no assignment, whether or not consented to, shall relieve the
assignor, and any guarantor, of their obligations hereunder in the event its
assignee fails to perform and (iii) either Party may assign this Agreement to an
Affiliate without consent, and, upon approval of the creditworthiness of such
assignee by the non-assigning Party (which approval shall not be unreasonably
withheld), the assignor (but not any guarantor) shall be released from its
obligations under this Agreement. The transfer of any interest in the ultimate
parent of a Party to this Agreement shall not constitute an assignment under
this Section requiring the consent of the other Party.
16.2 Assignment to Lenders.
16.2.1 Notwithstanding Section 16.1, Georgia Power may,
without the consent of Dynegy, assign this Agreement to a lender for collateral
security purposes in connection with the financing or refinancing of the Units.
Upon any such assignment however, Georgia Power shall provide notice to Dynegy
of the lender assignee, together with appropriate contact information with
respect to a business representative of such assignee.
16.2.2 Georgia Power has represented to Dynegy that Georgia
Power may procure permanent and/or construction financing for the purchase and
installation of the Units. In order to facilitate the obtaining of financing of
the Units, Dynegy shall execute such consents, agreements or similar documents
with respect to a collateral assignment of this Agreement to a lender as lender
may reasonably request in connection with the documentation of the financing or
refinancing for the Units, provided, that any such consents, agreements or
similar documents will be on terms and conditions acceptable to Dynegy. Under no
circumstances in connection with the foregoing, shall Dynegy be required to
deliver consents, agreements or similar documents that would have the effect of
enhancing the overall liability or obligations of Dynegy under this Agreement or
that would in any way dilute the benefits accruing to Dynegy under this
Agreement if such consents, agreements or similar documents had not been
required.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Amendments. This Agreement may be amended only by a written
instrument duly executed by each of Georgia Power and Dynegy, which has received
all approval of Governmental Authorities of competent jurisdiction necessary for
the effectiveness thereof.
17.2 Binding Effect. This Agreement and any extension shall inure to the
benefit of and shall be binding upon the Parties and their respective permitted
successors and assigns.
17.3 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
17.4 Notices. Where written notice is required by this Agreement, such
notice shall be in writing and shall be deemed given (i) when mailed by United
States registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
To: Dynegy: 0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Vice President - Power Marketing
With Copies To: 000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Vice President
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: General Counsel - Dynegy Power Marketing
To: Georgia Power Company Southern Wholesale Energy
c/o Southern Company Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President - Southern Wholesale Energy
With Copy To: Xxxxxxxx Xxxxxxx LLP
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
or to such other address as may be designated by the Parties; or (ii) when sent
by facsimile, provided such facsimile is confirmed by mailing a hard copy
confirmation, as provided in clause (i) above, within one (1) Business Day after
the sending of the facsimile or (iii) when sent by overnight courier to the
addresses provided above or to such other address as may be designated by the
Parties.
17.5 Entire Agreement. This Agreement constitutes the entire
understanding between the Parties and supersedes any previous agreements between
the Parties. The Parties have entered into this Agreement in reliance upon the
representations and mutual undertakings contained herein and not in reliance
upon any oral or written representations or information provided by one Party to
the other Party not contained or incorporated herein.
17.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
17.7 Waiver. The failure of either Party to enforce at any time any of
the provisions of this Agreement, or to require at any time performance by the
other Party of any of the provisions hereof, shall in no way be construed to be
a waiver of such provisions, nor in any way to affect the validity of this
Agreement or any part hereof, or the right of such Party hereafter to enforce
every such provision. No modification or waiver of all or any part of this
Agreement shall be valid unless it is reduced to a writing, which expressly
states that the Parties hereby agree to a waiver or modification as applicable,
and is signed by both Parties.
17.8 No Dedication of System. Nothing contained in this Agreement shall
require Georgia Power to construct any particular facilities. Any undertaking by
Georgia Power under any provisions of this Agreement shall not be construed to
constitute the dedication of Georgia Power's system, or the system of any
Affiliate of Georgia Power, or any portion thereof, to the public or to Dynegy;
provided, however, the Parties acknowledge that Georgia Power may construct the
Units with respect to service provided under this Agreement. Georgia Power's
provision of Contract Capacity and Delivered Energy under this Agreement does
not constitute a sale, lease, rental, transfer or conveyance of any ownership
interest or entitlement in or to any facilities of any kind. All obligations of
the Parties shall cease upon termination of this Agreement, except as otherwise
expressly provided herein, and Dynegy shall not attempt to Schedule any energy
under this Agreement after its termination.
17.9 Headings. The headings contained in this Agreement are used solely
for convenience and do not constitute a part of the Agreement between the
Parties hereto, nor should they be used to aid in any manner in the construction
of this Agreement.
17.10 Third Parties. This Agreement is intended solely for the benefit
of the Parties hereto. Except as otherwise expressly provided herein, nothing in
this Agreement shall be construed to create any duty to, or standard of care
with reference to, or any liability to, any person not a Party to this
Agreement.
17.11 Agency. This Agreement shall not be interpreted or construed to
create an association, joint venture, or partnership between the Parties to
impose any partnership obligation or liability upon either Party. Neither Party
shall have any right, power or authority to enter into any agreement or
undertaking for, or act on behalf of, or to act as or be an agent or
representative of, or to otherwise bind, the other Party.
17.12 Severability. If any term or provision of this Agreement or the
application thereof to any person, entity, or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provisions to person, entities or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
17.13 Confidentiality.
---------------
17.13.1 The Parties acknowledge that this Agreement contains
Proprietary Information and each Party agrees that for a period of five (5)
years from the date of termination of the Agreement it will not, without the
written consent of the other or as otherwise provided herein, disclose to any
third party (other than to Affiliates of the disclosing party or consultants and
advisors to such Affiliates and the disclosing Party who need to know such
information in connection with the performance of their duties or services for
such Affiliates or the disclosing Party or Lenders to such Affiliates of the
disclosing party), the Proprietary Information except to the extent that
disclosure is required by law, or by a Governmental Authority having
jurisdiction over the party from which disclosure is sought.
17.13.2 The Parties agree to seek confidential treatment of
the Proprietary Information in this Agreement from FERC but acknowledge that
certain Proprietary Information may need to be disclosed in Georgia Power's
filings with FERC which may be publicly available.
17.14 Replacement Index. Whenever any published index or tariff is
referenced herein, the Parties intend to track those costs as faithfully as
commercially practical. Should any such index or tariff be discontinued or no
longer published, the Parties will cooperate in establishing substitute
benchmarks through reference to equivalent indices or tariffs.
17.15 Public Announcement. The Parties agree that no public or other
announcement concerning the transactions contemplated hereby shall be made
except after mutual consultation and consent, provided, however, that consent
will not be required if either Party determines that disclosure to the public or
to governmental agencies are reasonably necessary to comply with applicable laws
or Legal Requirements.
17.16 Liquidated Damages. To the extent that any damages required to be
paid under this Agreement are liquidated, the Parties acknowledge that the
damages are difficult or impossible to determine, otherwise obtaining an
adequate remedy is inconvenient, and the liquidated damages constitute
approximation of the expected actual harm or loss.
IN WITNESS WHEREOF, the undersigned Parties hereto have duly executed
this Agreement effective as of the date first above written.
GEORGIA POWER COMPANY
"Georgia Power"
By:
----------------------------
Attest:
------------------------
Title:
----------------
DYNEGY POWER MARKETING, INC.
"Dynegy"
By:
----------------------------
Attest:
------------------------
Title:
----------------
EXHIBIT "A"
PRICE ESCALATION
--------------------------------------------------------------------------------------------------------
Dispatch Cost Monthly Capacity Payment* VOM
[redacted] ($) ($/MWh)
--------------------------------------------------------------------------------------------------------
Either:
June 1, 2000 - May 31, 2001, [redacted] [redacted] [redacted]
or July 1, 2000 - May 31, 2001
June 1, 2001 - May 31, 2002 [redacted] [redacted] [redacted]
June 1, 2002 - May 31, 2003 [redacted] [redacted] [redacted]
June 1, 2003 - May 31, 2004 [redacted] [redacted] [redacted]
June 1, 2004 - May 31, 2005 [redacted] [redacted] [redacted]
* The Monthly Capacity Payment shall be adjusted on a Monthly
basis by multiplying the payment schedules set forth above
times the Weighting Factors attributable to the applicable
calendar Month for which such adjustment is made.
EXHIBIT "B"
ENDH Allowance
Period ENDH Allowance
Summer July 1, 2000 - September 30, 2000 [redacted]
June 1, 2002 - September 30, 2002 [redacted]
June 1, 2003 - September 30, 2003 [redacted]
June 1, 2004 - September 30, 2004 [redacted]
Non-Summer October 1, 2000 - December 31, 2000 [redacted]
January 1, 2001 - May 31, 2001; October 1, 2001
[redacted] - December 31, 2001
January 1, 2002 - May 31, 2002; October 1, 2002
[redacted] - December 31, 2002
January 1, 2003 - May 31, 2003; October 1, 2003
[redacted] - December 31, 2003
January 1, 2004 - May 31, 2004; October 1, 2004
[redacted] - December 31, 2004
January 1, 2005 - May 31, 2005 [redacted]
Sample Calculation:
[redacted]
EXHIBIT "C"
GUARANTY AGREEMENT
[redacted]
Exhibit D
[redacted]