EXHIBIT 10.7
Index Based Gas Sale and Power Purchase Agreement
Among
Calpine Energy Services, L.P., Calpine Generating
Company, LLC and Its Subsidiaries Party Hereto
dated as of
March 23, 2004
INDEX BASED GAS SALE AND POWER PURCHASE AGREEMENT
This Index Based Gas Sale and Power Purchase Agreement (as amended,
modified and supplemented from time to time and together with the exhibits,
schedules and any written supplements hereto, which are hereby incorporated
herein and made a part hereof, the "Agreement"), is entered into as of March 23,
2004 (the "Effective Date"), by and among Calpine Generating Company, LLC, a
Delaware limited liability company ("CGC"), the indirect wholly-owned
subsidiaries of CGC listed on the signature page hereof (each a 'Facility Owner"
or the "Company") and Calpine Energy Services, L.P., a Delaware limited
partnership ("CES")
ARTICLE ONE: GENERAL DEFINITIONS
1.1 "Actual Availability" means, for any Facility for any period, (i) the
Actual Energy Production for such Facility during such period divided by (ii)
the Scheduled Energy Production for such Facility during such period.
1.2 "Actual Energy Production" means, for any Facility for any Period, the
total number of MWhs associated with the Applicable Capacity produced by such
Facility (as measured at the Power Delivery Point) during On Peak Hours during
such period, excluding Scheduled Outage Periods.
1.3 "Affiliate" means, with respect to any Person, any other Person (other
than an individual) that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person. For this purpose, "control" means the direct or indirect ownership
of more than fifty percent (50%) of the outstanding capital stock or other
equity interests having ordinary voting power.
1.4 "Amoco" means Amoco Energy Trading Corporation.
1.5 "Amoco Contract" means that certain Power Purchase Agreement dated as
of June 1, 2000 by and between CES (as successor to Calpine Power Services
Company) and Amoco.
1.6 "Applicable Capacity" means, as to any Facility, the Total Capacity
minus the sum of the Host Capacity, the Direct PPA Capacity and the Fixed Price
Capacity for such Facility.
1.7 "Applicable Enthalpy" means, for any Facility, the "Applicable
Enthalpy" indicated for such Facility on the applicable Facility Schedule.
1.8 "Applicable Fuel Price" means, for any Facility, the "Applicable Fuel
Price" indicated for such Facility on the applicable Facility Schedule.
1.9 "Applicable Heat Rate" means, for any Facility, the "Applicable Heat
Rate" indicated for such Facility on the applicable Facility Schedule.
1.10 "Applicable Power Price" means, for any Facility, the "Applicable
Power Price" indicated for such Facility on the applicable Facility Schedule.
1.11 "Availability Factor" means ninety-eight percent (98%) for each Day
that is not a Planned Outage Day and the applicable Planned Outage Percentage
shown on the respective Facility Schedules for each Day that is a Planned Outage
Day.
1.12 "Bankrupt" means, with respect to any entity, such entity (i) files a
petition or otherwise commences, authorizes or acquiesces in the commencement of
a proceeding or cause of action under any bankruptcy, insolvency, reorganization
or similar law, or has any such petition filed or commenced against it, (ii)
makes an assignment or any general arrangement for the benefit of creditors,
(iii) otherwise becomes subject to an involuntary petition seeking to declare
such entity bankrupt or insolvent or seeking liquidation or reorganization of
such entity, if such petition is not timely controverted and dismissed within 60
days after filing, (iv) has a liquidator, administrator, receiver, trustee,
conservator or similar official appointed with respect to it or any substantial
portion of its property or assets, or (v) is generally unable to pay its debts
as they fall due. "Bankruptcy" means, with respect to any entity, the condition
or state of being Bankrupt.
1.13 "Baseload Power Products" means all Power Products other than Peaking
Power Products generated by a Facility.
1.14 "British thermal unit" or "Btu" shall mean the International BTU,
which is also called the Btu (IT).
1.15 "Business Day" means any day except a Saturday, Sunday, or a Federal
Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00
p.m. local time for the relevant Facility. The relevant Party, in each instance
unless otherwise specified, shall be the Party from whom the notice, payment or
delivery is being sent and by whom the notice or payment or delivery is to be
received.
1.16 "Buyer" means (i) with respect to Gas supplied hereunder, the Company
and (ii) with respect to Power Products supplied hereunder, CES.
1.17 "Claiming Party" has the meaning set forth in Section 3.4.
1.18 "Claims" means all third party claims or actions, threatened or filed
and, whether groundless, false, fraudulent or otherwise, and the resulting
losses, damages, expenses, attorneys' fees and court costs, whether incurred by
settlement or otherwise, and whether such claims or actions are threatened or
filed prior to or after the termination of this Agreement.
1.19 "Cogeneration Facility" means each of the Baytown Energy Center
Facility, the Xxxxxxxx Energy Center Facility, the Channel Energy Center
Facility, the Columbia Energy Center Facility, the Corpus Christi Energy Center
Facility, the Decatur Energy Center Facility, the Los Medanos Energy Center
Facility and the Xxxxxx Energy Center Facility.
1.20 "Cogeneration Facility Owner" means the Facility Owner of a
Cogeneration Facility.
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1.21 "Commercial Operation" means, with respect to a Facility, that such
Facility is able to operate and produce electric energy for commercial sale
consistently with Prudent Engineering and Operating Practices and applicable
laws.
1.22 "Consent Parties" means (i) with respect to CGC, CES, (ii) with
respect to a Facility Owner, CGC and CES, and (iii) with respect to CES, CGC and
the Facility Owner of the affected Facility.
1.23 "Contract Price" has the meaning set forth in Article Four.
1.24 "Contracted Power Products" has the meaning set forth in Section 2.1.
1.25 "Costs" means, with respect to the Non-Defaulting Party, brokerage
fees, commissions and other similar third party transaction costs and expenses
reasonably incurred by such Party either in terminating any arrangement pursuant
to which it has hedged its obligations or entering into new arrangements which
replace this Agreement if terminated with respect to one or more Facilities; and
all reasonable attorneys' fees and expenses incurred by the Non-Defaulting
Party in connection with the termination of this Agreement as to one or more
Facilities.
1.26 "Daily Scheduled Energy Production" means, for any Facility and any
period, the total energy production Scheduled by CES in accordance with this
Agreement, not to exceed the actual physical capacity of such Facility (taking
into account current environmental conditions), for each On Peak Hour of an On
Peak Day, including, if applicable, Days during such period when the Facility
was deemed Scheduled pursuant to Section 4.3 notwithstanding the existence of a
Force Majeure, but excluding Scheduled Outage Periods.
1.27 "Day" means, with respect to each Facility, the twenty-four (24) hour
period beginning with the hour ending 0700 local time on one calendar day and
ending with the hour ending 0600 local time on the next calendar day.
1.28 "Defaulting Party" has the meaning set forth in Section 5.1.
1.29 "Delivery Point" means Gas Delivery Point for Gas and Power Delivery
Point for the Power Product.
1.30 "Direct Gas Supply Agreement" has the meaning set forth in Section
2.4.
1.31 "Direct Power Purchase Agreement" means, with respect to each
Facility, each "Direct Power Purchase Agreement" listed on the Facility Schedule
for such Facility or entered into by the Company as provided in Section 2.3.
1.32 "Direct Power Purchaser" means the purchaser of Power Products under
a Direct Power Purchase Agreement.
1.33 "Direct PPA Capacity" means, for any Facility subject to a Direct
Power Purchase Agreement, the "Direct PPA Capacity" listed on the Facility
Schedule for such Facility.
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1.34 "Direct PPA Energy" means, as to any Facility, the amount of electric
energy supplied to a Direct Power Purchaser under a Direct Power Purchase
Agreement during the period in question.
1.35 "Direct Sale Facility" means a Facility other than a Cogeneration
Facility that is subject to a Direct Power Purchase Agreement.
1.36 "Early Termination Date" has the meaning set forth in Section 5.2.
1.37 "Effective Date" has the meaning set forth in the preamble to this
Agreement
1.38 "Equitable Defenses" means all bankruptcy, insolvency, reorganization
and other laws affecting creditors' rights generally, equitable defenses
generally, and with regard to equitable remedies, the discretion of the court
before which proceedings to obtain same may be pending.
1.39 "Event of Default" has the meaning set forth in Section 5.1
1.40 "Facility" means each of the electric generating facilities described
on Exhibit A attached hereto, excluding those Facilities that are sold or
otherwise transferred in accordance with Section 2.6 from and after the date of
such sale or transfer. References herein to a particular Facility by name (e.g.
the Delta Facility) shall mean the Facility so identified on Exhibit A, as the
same may be amended or deemed amended from time to time to reflect the addition
or sale or transfer of Facilities.
1.41 "Facility Gas Charge Adjustment" has the meaning set forth in Section
4.1.
1.42 "Facility Owner" has the meaning defined in the preamble to this
Agreement, excluding the Facility Owners of those Facilities that are sold or
otherwise transferred in accordance with Section 2.6 from and after the date of
such sale or transfer
1.43 "Facility Schedule" means each of Schedules 1 through 14 attached
hereto, which schedules set forth certain indices, plant specific data and other
information relating to each of the Facilities.
1.44 "Facility Transmission Charge Adjustment" means, with respect to a
Facility, the "Facility Transmission Charge Adjustment" indicated for such
Facility on the applicable Facility Schedule
1.45 "Facility Transportation Charge Adjustment" means, with respect to a
Facility, the "Facility Transportation Charge Adjustment" indicated for such
Facility on the applicable Facility Schedule.
1.46 "Fallback Power Reference Price" means, for any Facility, the
"Fallback Power Reference Price" indicated for such Facility on the applicable
Facility Schedule.
1.47 "FERC" means the Federal Energy Regulatory Commission or any
successor government agency having similar jurisdiction.
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1.48 "Fixed Payment" means for each month during the Term hereof,
$13,677,843.
1.49 "Fixed Price Capacity" means, with respect to the Delta and Los
Medanos Facilities, the capacity of such Facility that is subject to the WECC
Fixed Price Contract.
1.50 "Fixed Price Purchaser" means CES, in its capacity as the purchaser
of Power Products under the WECC Fixed Price Contract, and its permitted
successors and assigns thereunder.
1.51 "Force Majeure" means an event or circumstance which prevents one
Party from performing its obligations under this Agreement, which event or
circumstance is not within the reasonable control of, or the result of the
negligence of, willful misconduct of or willful failure to comply with this
Agreement by, the Claiming Party and which, by the exercise of due diligence,
the Claiming Party is unable to overcome or avoid or cause to be avoided,
including without limitation the following: (i) events causing physical loss or
damage to any Facility, including acts of God, unusually severe weather
conditions, civil disturbance, damage or breakdown of necessary facilities,
fire, flood and earthquake, (ii) strikes, lockouts or labor disputes not solely
by or against the Claiming Party, and (iii) changes in laws, rules and
regulations after the date hereof or actions by governmental authorities,
including suspension or revocation of permits and approvals for reasons other
than non-compliance or violation of an applicable law, rule or regulation. Force
Majeure shall not include (i) the loss of Buyer's markets; (ii) Buyer's
inability economically to use or resell the Product purchased hereunder; (iii)
the loss or failure of Gas supply; (iv) Seller's ability to sell the Product at
a price greater than the Contract Price; or (v) complete or partial curtailment
by a Transmission Provider or a Transporter unless the Claiming Party has
contracted for firm transmission or transportation, as applicable.
Notwithstanding anything to the contrary contained in the foregoing, the Company
shall be entitled to claim Force Majeure with respect to a Facility in the event
of (a) CES's failure to Schedule and deliver sufficient Gas to the applicable
Gas Delivery Point to operate such Facility as Scheduled for any reason not the
result of the Company's gross negligence or willful misconduct, and (b) CES's
failure to provide sufficient transmission capacity to export Power Products
Scheduled by CES from the applicable Power Delivery Point for any reason not the
result of the Company's gross negligence or willful misconduct.
1.52 "Gains" means, with respect to any Party, an amount equal to the
present value of the economic benefit to it, if any (exclusive of Costs),
resulting from the termination of this Agreement with respect to one or more
Facilities, determined in a commercially reasonable manner.
1.53 "Gas" means natural gas conforming to the requirements of this
Agreement.
1.54 "Gas Delivery Point" means, for any Facility, the "Gas Delivery
Point" indicated for such Facility on the applicable Facility Schedule.
1.55 "Governmental Charges" has the meaning set forth in Section 9.2.
1.56 "Guarantor" means Calpine Corporation.
1.57 "Guaranty" has the meaning set forth in Section 10.11.
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1.58 "Host" means the party to a Host Agreement that is not the Facility
Owner.
1.5.9 "Host Agreement" means, with respect to each (Cogeneration Facility,
the "Host Agreement" listed on the Facility Schedule for such Facility.
1.60 "Host Capacity" means, with respect to each Cogeneration Facility,
the "Host Capacity" listed on the Facility Schedule for such Facility, as
adjusted from time to time pursuant to Section 4.4.
1.61 "Host Energy" means, with respect to a Cogeneration Facility, the
amount of electric energy supplied to the applicable Host during the period in
question.
1.62 "Host Heat Rate" means, with respect to a Cogeneration Facility, the
"Host Heat Rate" for such Facility specified on the applicable Facility
Schedule.
1.63 "Imbalance Charges" shall mean any fees, penalties, costs or charges
(in cash or in kind) assessed by a Transporter for failure to satisfy the
Transporter's balance and/or nomination requirements.
1.64 "Index Hedge" means that certain ISDA Master Agreement
(Multicurrency-Cross Border), Schedule and Confirmation, each dated as of March
12, 2004 between CGC and Xxxxxx Xxxxxxx Capital Group, Inc.
1.65 "Interest Rate" means, for any date, the lesser of (a) the per annum
rate of interest equal to the prime lending rate as may from time to time be
published in The Wall Street Journal under "Money Rates" on such day (or if not
published on such day on the most recent preceding day on which published), plus
two percent (2%) and (b) the maximum rate permitted by applicable law.
1.66 "ISO" means, as to any Facility, the independent system operator,
regional transmission organization, control area operator or similar entity
controlling the transmission system used by the Transmission Provider serving
such Facility.
1.67 "Losses" means, with respect to any Party, an amount equal to the
present value of the economic loss to it, if any (exclusive of Costs), resulting
from termination of this Agreement with respect to one or more Facilities,
determined in a commercially reasonable manner.
1.68 "Market Consultant" shall mean a nationally recognized independent
power market consultant mutually acceptable to CGC and CES
1.69 "Minimum Generation Level" means, for any Cogeneration Facility or
Direct Sale Facility, the "Minimum Generation Level" for such Facility specified
on the applicable Facility Schedule.
1.70 "MMBtu" shall mean one million British thermal units, which is
equivalent to one dekatherm.
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1.71 "NERC Holiday" means any day that is a holiday as defined by the
North American Electric Reliability Council or any successor organization
thereto.
1.72 "Net Minimum Generation" means, as to any Facility, the Minimum
Generation Level minus the sum of the Host Capacity and the Direct PPA Capacity
for such Facility.
1.73 "Non-Defaulting Party" has the meaning set forth in Section 5.2
1.74 "Off Peak Days" means (i) with respect to the Delta, Goldendale, Los
Medanos and Pastoria Facilities and any other Facilities in WECC that are added
to this Agreement, Sundays and NERC Holidays, and (ii) with respect to the other
Facilities, Saturdays, Sundays and NERC Holidays.
1.75 "Off Peak Hours" means, (i) for any Facility other than a Facility to
the extent it is selling into PJM, (A) the eight (8) hour period during On Peak
Days beginning with the hour ending 2300 and ending with the hour ending 0600,
local time, and (B) to the extent any Facility is selling into PJM, (A) the
eight (8) hour period during On Peak Days beginning with the hour ending 2400
and ending with the hour ending 0700, local time, and (ii) all hours on Off Peak
Days.
1.76 "Off Peak Power Products" means all Baseload Power Products generated
by a Facility during Off Peak Hours.
1.77 "On Peak Days" means (i) with respect to the Delta, Goldendale, Los
Medanos and Pastoria Facilities and any other Facilities in WECC that are added
to this Agreement, Monday through Saturday except NERC Holidays, and (ii) with
respect to the other Facilities, Monday through Friday except NERC Holidays.
1.78 "On Peak Hours" means, (i) for any Facility other than a Facility to
the extent it is selling into PJM, the sixteen (16) hour period during each On
Peak Day beginning with the hour ending 0700 and ending with the hour ending
2200, local time, and (ii) to the extent any Facility is selling into PJM, the
sixteen (16) hour period during each On Peak Day beginning with the hour ending
0800 and ending with the hour ending 2300, local time.
1.79 "On Peak Power Products" means all Baseload Power Products generated
by a Facility during On Peak Hours.
1.80 "Party" means CGC, each of the Facility Owners, and/or CES, as
specified or as the context requires.
1.81 "Peaking Power Products" means all Power Products generated by a
Facility by supplemental natural gas duct firing into the Facility's heat
recovery steam generator(s), by steam injection or by other power production
augmentation techniques that involve operating a Facility in excess of its
baseload operating mode.
1.82 "Person" means any natural person, corporation, partnership, limited
liability company, firm, association, government, political subdivision,
governmental agency, bureau, commission or other authority, or other entity.
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1.83 "PJM" means the PJM Interconnection.
1.84 "Planned Outage Day" means, as to any Facility, each Day in a Planned
Outage Month.
1.85 "Planned Outage Month" means, as to any Facility, the "Planned Outage
Month(s)" indicated for such Facility on the applicable Facility Schedule.
1.86 "Planned Outage Percentage" means, as to any Facility, the "Planned
Outage Percentage" indicated for such Facility on the applicable Facility
Schedule.
1.87 "Power Delivery Point" means, for any Facility, the "Power Delivery
Point" indicated for such Facility on the applicable Facility Schedule.
1.88 "Power Product" means electric capacity, energy or other
generator-based product(s) related thereto.
1.89 "Product" means a Power Product or Gas, as specified or as the
context may require.
1.90 "Prudent Engineering and Operating Standards" means those practices,
methods, equipment, specifications and standards of safety and performance, as
the same may change from time to time, as are commonly used by independent
operators of electric generation stations of a type and size similar to those
constituting the applicable Facility as good, safe and prudent engineering and
operating practices in connection with the operation, maintenance, repair and
use of gas turbines, electrical generators and other equipment and facilities
with commensurate standards of safety, performance, dependability, efficiency
and economy. Prudent Engineering and Operating Practices are not intended to be
limited to the optimum practice or method to the exclusion of others, but rather
to be a spectrum of possible but reasonable practices and methods.
1.91 "Quantity" means that quantity of the Product that Seller agrees to
make available or sell and deliver, or cause to be delivered, to Buyer, and that
Buyer agrees to purchase and receive, or cause to be received, from Seller
hereunder.
1.92 "Recording" has the meaning set forth in Section 2.7.
1.93 "Reduced Semiannual Period" has the meaning set forth in Section
4.3(c).
1.94 "Regulatory Event" has the meaning set forth in Section 10.7.
1.95 "Replacement Index" has the meaning set forth in Section 8.2.
1.96 "Responsible Officer" means, as to any entity, the president chief
executive officer, secretary, treasurer, chief financial officer or any vice
president of such entity, or the designee of such officer.
1.97 "Schedule" or "Scheduling" means the actions of Seller, Buyer and/or
their designated representatives, including each Party's Transmission Providers
or Transporters, if
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applicable, of notifying, requesting and confirming to each other the quantity
and type of Product to be delivered on any given day or days at a specified
Delivery Point.
1.98 "Scheduled Energy Production" means, for any Facility for any period,
the total of the Daily Scheduled Energy Production for each On Peak Day during
such period, excluding Scheduled Outage Periods.
1.99 "Scheduled Outage Period" means, as to any Facility, the period
during which the Company has actually scheduled a maintenance outage for the
Facility, not to exceed a total of thirty (30) Days per calendar year for such
Facility. Scheduled Outage Periods may, but need not, occur during Planned
Outage Months.
1.100 "Secured Obligations" means the "Secured Obligations" as defined in
that certain Security Agreement dated as of March 23, 2004 by and between CGC,
the Facility Owners, as guarantors, and Wilmington Trust Company, as collateral
trustee.
1.101 "Seller" means (i) with respect to Gas supplied hereunder, CES, and
(ii) with respect to Power Products supplied hereunder, the Company.
1.102 "Semiannual Period" means each six month period beginning on January
1 and July 1 during the Term of this Agreement.
1.103 "Spark Spread" means, for any Facility, the Applicable Power Price
minus the sum of (i) the product of the Applicable Fuel Price times the
Applicable Heat Rate and (ii) the Variable O&M Amount.
1.104 "Steam Purchaser" means, with respect to a Cogeneration Facility,
the party to the applicable Steam Sale Agreement that is not the Facility Owner.
1.105 "Steam Quantity" means, with respect to a Cogeneration Facility, the
quantity of steam supplied by the Cogeneration Facility to the applicable Host
and all applicable Steam Purchasers during the period in question.
1.106 "Steam Sale Agreement" means, with respect to a Cogeneration
Facility, each "Steam Sale Agreement" listed on the Facility Schedule for such
Facility.
1.107 "Term" has the meaning set forth in Section 2.5.
1.108 "Termination Notice" has the meaning set forth in Section 5.2.
1.109 "Termination Payment" means, as of an Early Termination Date, an
amount equal to a Non-Defaulting Party's Losses plus Costs minus Gains, in each
case resulting from the termination of this Agreement with respect to an
applicable Facility or Facilities, but not less than zero.
1.110 "Total Capacity" means, with respect to any Facility, the "Total
Capacity" for such Facility as shown on the applicable Facility Schedule.
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1.111 "Transmission Provider" means any entity or entities transmitting
or transporting any Power Product on behalf of Seller or Buyer to or from the
Power Delivery Point.
1.112 "Transporter" means any entity or entities transporting Gas on
behalf of Seller or Buyer to or from the Gas Delivery Point.
1.113 "Variable O&M Amount" means, for any Facility, the "Variable O&M
Amount" indicated for such Facility on the applicable Facility Schedule.
1.114 "WECC Fixed Price Power Contract" means that certain Fixed Price
Power Purchase Agreement dated as of March 23, 2004 by and among Delta Energy
Center, LLC, Los Medanos Energy Center, LLC and CES.
ARTICLE TWO: PURCHASE AND SALE OF GAS AND POWER
2.1 Purchase and Sale of Gas and Power. For and in consideration of the
Contract Price and subject to the terms and conditions of this Agreement,
including without limitation Sections 2.2 and 2.3, CES agrees to purchase from
the Company, and the Company agrees to sell to CES, (i) all On Peak Power
Products produced by each Facility, excluding On Peak Power Products sold
pursuant to the WECC Fixed Price Contract or applicable Host Agreements and
Direct Power Purchase Agreements, (ii) all Off Peak Power Products produced by
each Facility except Off Peak Power Products sold under applicable Host
Agreements and Direct Power Purchase Agreements, and (iii) all Peaking Power
Products produced by each Facility, except Peaking Power Products sold under
applicable Host Agreements and Direct Power Purchase Agreements (the Power
Products described in the foregoing clauses (i), (ii) and (iii) are referred to
collectively as the "Contracted Power Products"), and CES agrees to sell to the
Company, and the Company agrees to purchase from CES, all Gas needed by the
Facilities to operate and to produce all such Contracted Power Products and,
except as otherwise provided herein, Power Products and steam sold under the
Host Agreements, the Direct Power Purchase Agreements and the Steam Sale
Agreements. For the avoidance of doubt, Company agrees to sell and CES agrees to
purchase all Power Products related to the Total Capacity of each Facility that
is not otherwise committed to the WECC Fixed Price Contract or any of the Host
Agreements and Direct Power Purchase Agreements in effect from time to time. The
WECC Fixed Price Contract, Host Agreements, Direct Power Purchase Agreements and
the Steam Sale Agreements as in effect on the date of this Agreement are set
forth on the respective Facility Schedules. The Parties shall amend such
Facility Schedules from time to time as appropriate to add or delete Host
Agreements, Direct Power Purchase Agreements and/or Steam Sale Agreements, but
the omission of any Host Agreement, Direct Power Purchase Agreement and/or Steam
Sale Agreement from any Facility Schedule or the failure to amend any Facility
Schedule shall not affect any of the Parties' rights or obligations hereunder.
The Company and CES acknowledge and agree that, except as expressly provided
herein, the foregoing purchase and sale arrangements shall be exclusive and
that, as a result, (A) the Company will sell all Contracted Power Products
generated by the Facilities only to CES, and (B) except as otherwise provided
herein, CES will supply to CES, and the Company will obtain only from CES, all
the Gas the Company needs for all of its Facilities in order to produce the
Contracted Power Products, the Power Products sold under the Host Agreements and
the Direct Power Purchase Agreements and
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the steam sold under Steam Sale Agreements. Once the Contracted Power Products
are sold to CES, CES shall be entitled to sell, transfer or otherwise dispose of
such Power Products as it elects in its sole discretion. CES shall also have the
right to Schedule deliveries of Contracted Power Products to and from each
Facility in its discretion as provided below.
2.2 Certain Limitations.
(a) Notwithstanding anything to the contrary contained in this Agreement,
including the exclusivity described in Section 2.1, each of the Facility Owners
that is a party to the WECC Fixed Price Contract, a Host Agreement, a Direct
Power Purchase Agreement and/or a Steam Sale Agreement shall have the right to
sell all Power Products and/or steam that such Facility Owner is obligated to
sell under the WECC Fixed Price Contract, a Host Agreement, a Direct Power
Purchase Agreement and/or a Steam Sale Agreement directly to the Fixed Price
Purchaser or applicable Host, Direct Power Purchaser and/or Steam Purchaser from
its Facility. CES's Scheduling of each such Facility shall not be inconsistent
with the applicable Facility Owner's obligations to sell Power Products and/or
steam to the Fixed Price Purchaser, Host, Direct Power Purchaser and Steam
Purchaser under the WECC Fixed Price Contract, Host Agreement, Direct Power
Purchase Agreement and/or Steam Purchase Agreement(s). Notwithstanding such
direct sales, except as otherwise provided herein, CES shall nonetheless supply
each such Facility Owner, and each such Facility Owner shall purchase from CES,
all Gas required by such Facility Owner's Facility, including Gas used to
generate Power Products and steam sold directly to such Fixed Price Purchaser,
Hosts, Direct Power Purchasers and/or Steam Purchasers pursuant to the WECC
Fixed Price Contract, Host Agreement, Direct Power Purchase Agreement and/or
Steam Purchase Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement,
including the exclusivity described in Section 2.1, (i) the Facility Owner of
the Zion Facility shall not be obligated to accept and purchase Gas from CES,
and CES shall not be obligated to sell or deliver Gas to the Facility Owner of
the Zion Facility, during the period when the Capacity of the Zion Facility is
subject to the Direct Power Purchase Agreement listed on the Facility Schedule
for the Zion Facility (see the Special Provisions section of the Facility
Schedule for the Zion Facility), and (ii) the Facility Owners of the
Cogeneration Facilities shall not be obligated to accept and purchase Gas from
CES, and CES shall not be obligated to sell or deliver Gas to such Facility
Owners, to the extent that such Facility Owners receive Gas or other fuel
(including refinery gas) from the Hosts related to such Facilities. Any Facility
Owners of such Cogeneration Facilities shall use commercially reasonable efforts
to advise CES as far in advance as reasonably possible of the amount or Gas or
other fuel that will be supplied by the respective Hosts in order to enable CES
to schedule and deliver the net amount of Gas that will required by such
Facilities from time to time.
(c) Notwithstanding anything to the contrary contained in this Agreement,
CES shall not be obligated to deliver Gas to or to purchase Contracted Power
Products from, and Company shall not be obligated to accept Gas for or to sell
Power Products from, the Columbia Facility, the Pastoria Facility or the
Goldendale Facility, unless and until such Facility has achieved Commercial
Operation. With respect to the Pastoria Facility, CES shall deliver Gas to and
purchase Contracted Power Products from that Facility with respect to the
portion of the
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Applicable Capacity represented by each phase thereof as each such phase
achieves Commercial Operation.
2.3 Additional Power Purchase Agreements. Notwithstanding anything to the
contrary in this Agreement, upon and subject to receiving the consent of CES
thereto, which consent shall not be unreasonably withheld, the Company shall
have the right to enter into additional Direct Power Purchase Agreements with
third party purchasers of Power Products and to terminate or amend this
Agreement with respect to the Facility and to the extent of the capacity
required to serve such additional Direct Power Purchase Agreement, if the
following requirements are satisfied with respect to each such additional Direct
Power Purchase Agreement:
(a)The Company and CES have mutually agreed on arrangements under which,
except as otherwise agreed by the Company and CES, CES will provide all Gas
necessary to satisfy the Company's obligations under such additional Direct
Power Purchase Agreement, make all necessary arrangements with and pay all costs
and expenses of Transporters and Transmission Providers for the transportation
of such Gas and the transmission of all Power Products to be sold under such
additional Direct Power Purchase Agreement, and Schedule all Gas deliveries to
and deliveries of Power Products from the applicable Facility in accordance with
the requirements of such additional Direct Power Purchase Agreement and this
Agreement;
(b) Such additional Direct Power Purchase Agreement is not inconsistent
with the WECC Fixed Price Contract or any Host Agreement, Steam Sale Agreement
or existing Direct Power Purchase Agreement (including Direct Power Purchase
Agreements existing as of the Effective Date and subsequent Direct Power
Purchase Agreements entered into pursuant to this Section 2.3) related to the
applicable Facility, does not require the Company to operate a Facility other
than in accordance with Prudent Engineering and Operating Standards and does not
cause the applicable Facility to violate any applicable law, rule, regulation or
permit or subject the Company to regulation as a "public utility," "public
utility holding company" or any similar designation under federal or state law;
and
(c) CES and the Company have mutually agreed on how all security or
collateral required under such Direct Power Purchase Agreement will be provided
and maintained.
Such additional Direct Power Purchase Agreement shall constitute a direct
contract between the Company and the Direct Power Purchaser thereunder, and all
amounts paid by such Direct Power Purchaser shall be the property of and shall
be paid directly to Company. Prior to the commencement of service under such
additional Direct Power Purchase Agreement, CES and Company shall amend the
appropriate Facility Schedule, the Gas Adjustment Charge under Section 4.1 and
such other components of the Contract Price calculation under Section 4.1 as may
be appropriate, in each case effective as of the date of commencement of service
under the additional Direct Power Purchase Agreement, to reflect the termination
or amendment of this Agreement with respect to the Facility and the capacity of
such Facility required to serve such additional Direct Power Purchase Agreement.
Additional Direct Power Purchase Agreements entered into pursuant to this
Section 2.3 shall survive the termination of this Agreement.
12
2.4 Additional Gas Supply Agreements. Notwithstanding anything to the
contrary in this Agreement, upon and subject to receiving the consent of CES
thereto, which consent will not be unreasonably withheld, the Company shall have
the right to enter into direct contracts with third party sellers for the supply
of Gas (a "Direct Gas Supply Agreement") to one or more Facilities for some
portion, provided that the following requirements are satisfied with respect to
each such Direct Gas Supply Agreement:
(a) The pricing under such Direct Gas Supply Agreement is based on
published gas price indices that are substantially similar to the gas price
indices for the applicable Facility reflected in such Facility's Applicable Fuel
Price.
(b) Such additional Direct Gas Supply Agreement is not inconsistent with
the Company's obligations hereunder or under the WECC Fixed Price Contract or
any Host Agreement, Steam Sale Agreement or Direct Power Purchase Agreement
related to the applicable Facility, does not require the Company to operate a
Facility other than in accordance with Prudent Engineering and Operating
Standards and does not cause the applicable Facility to violate any applicable
law, rule, regulation or permit or subject the Company to regulation as a
"public utility," "public utility holding company" or any similar designation
under federal or state law; and
(c) CES and the Company have mutually agreed on how all security or
collateral required under such Direct Gas Supply Agreement will be provided and
maintained.
Each Direct Gas Supply Agreement shall constitute a direct contract between the
Company and the seller thereunder, and all amounts payable to such seller shall
be the obligation of and shall be paid by Company. However, the Contract Price
shall be modified during the term of such Direct Gas Sale Agreement by deeming
the quantity "(Applicable Fuel Price * Applicable Heat Rate)" in the calculation
of the Daily Spark Spread Amount to be zero for the applicable Facility with
respect to an amount of energy equal to the quantity of Gas supplied under such
Direct Gas Supply Agreement multiplied by the Applicable Heat Rate for such
Facility. As between Company and CES, Company, and not CES, shall be responsible
for any failure by the seller under the Direct Gas Supply Agreement to supply
the Gas such seller is obligated to supply thereunder, including any failure to
deliver any Daily Scheduled Energy Production as a result of the failure of such
seller to deliver Gas. Direct Gas Supply Agreements entered into pursuant to
this Section 2.4 shall survive the termination of this Agreement.
2.5 Term. The "Term" of this Agreement shall be the period commencing on
the Effective Date and ending on December 31, 2013, unless sooner terminated as
provided herein.
2.6 Multiple Facilities. This Agreement applies to the delivery of Gas to
and the receipt of Contracted Power Products from each of the Facilities. In
applying this Agreement with respect to any particular Facility, "Company" shall
be understood to mean the applicable Facility Owner with respect to such
Facility, unless the context indicates otherwise (e.g. that all Facility Owners
are intended to be included). While this Agreement refers to all the Facilities,
the terms of this Agreement shall apply individually to each Facility as well as
the Facilities as a whole where so specified or where the context so requires.
In the event the Company sells or otherwise transfers a Facility (it being
understood that a sale in violation of agreements between
13
the Company and the holders of the Secured Obligations or a foreclosure on one
or more of the Facilities by the holders of the Secured Obligations does not
constitute a sale by the Company for purposes of this Section 2.6), (i) this
Agreement shall not apply to such Facility or Facility Owner from and after the
effective date of such sale and shall be amended to delete the Facility Schedule
related to such Facility and to reduce the Fixed Payment by an amount that
equitably reflects the fact that such Facility is no longer subject to this
Agreement and that CES will no longer be purchasing Power Products from such
Facility, and (ii) CGC, the applicable Facility Owner and CES will be released
from all future liabilities, and will no longer have any obligations, hereunder
with respect to such Facility from and after the date of such sale or transfer.
In the event of a foreclosure on one or more of the Facilities by the holders of
the Secured Obligations, this Agreement may be divided into two or more separate
agreements, each relating to a specific Facility or Facilities, on the identical
terms and conditions as this Agreement and for the then remaining term hereof,
but applied to such Facility or Facilities only, and with the Contract Price
modified to reflect only those elements applicable to such Facility or
Facilities.
2.7 Recording. Unless a Party expressly objects to a Recording (defined
below) at the beginning of a telephone conversation, each Party consents to the
creation of a tape or electronic recording ("Recording") of all telephone
conversations between the Parties to this Agreement, and that any such
Recordings will be retained in confidence, secured from improper access, and may
be submitted in evidence in any proceeding or action relating to this Agreement.
Each Party waives any further notice of such monitoring or recording, and agrees
to notify its officers and employees of such monitoring or recording and to
obtain any necessary consent of such officers and employees. The Recording, and
the terms and conditions described therein, if admissible, shall be the
controlling evidence for the Parties' agreement with respect to a particular
Schedule or other matters related to the Facilities or the administration or
operation of this Agreement in the event of a disagreement between the Parties.
ARTICLE THREE: OBLIGATIONS AND DELIVERIES
3.1 Delivery of Product; Title. Except as otherwise provided herein
(including Sections 2.2(b) and 2.4 and any Facility Schedule), CES shall deliver
all Gas required for each Facility to produce the Contracted Power Products, as
well as all Power Products and steam sold under the Host Agreements, the Direct
Power Purchase Agreements and the Steam Sale Agreements, to such Facility's Gas
Delivery Point, and the Company shall deliver the Contracted Power Products
generated by each Facility to such Facility's Power Delivery Point. Except as
expressly provided on a Facility Schedule, CES shall be responsible for all
costs or charges imposed on or associated with the delivery of Gas provided by
CES to the Gas Delivery Point for each Facility and for the transmission of all
Contracted Power Products from the Power Delivery Point for each Facility,
notwithstanding whether or not such transmission or transportation rights or
services are held by CES or whether or not title to such Gas or Contracted Power
Products may have passed from CES to the Company or from the Company to CES at a
different point, and CES hereby agrees to reimburse the Company for any such
costs or charges to the extent paid for by the Company except to the extent that
a Facility Schedule expressly provides that such costs and charges are to be
paid by the Company. Title to the Gas supplied by CES hereunder shall pass from
CES to the Company at the Gas Delivery Point for the applicable Facility, and
title to all Contracted Power Products sold by the Company to CES hereunder
shall
14
pass from the Company to CES at the Power Delivery Point for the applicable
Facility. Subject to the terms and conditions of this Agreement regarding
responsibility for payments and other matters, CES and the Company shall
cooperate and use commercially reasonable efforts to facilitate the delivery of
Gas and Power Products hereunder.
3.2 Transmission and Scheduling. Subject to Sections 2.2, 2.3 and 3.4, CES
shall have complete rights to Schedule deliveries of the Contracted Power
Products from each Facility and to control the operation and dispatch of each
Facility, so long as such operation and dispatch is consistent with (i) Prudent
Engineering and Operating Practices and existing operational and environmental
conditions, (ii) all manufacturer's recommendations and warranties with respect
to the Facility in question, (iii) the Schedules for delivery of Gas to such
Facility delivered by CES pursuant to Section 3.3 below, and (iv) the WECC Fixed
Price Contract, Host Agreements, Steam Sale Agreements and Direct Power Purchase
Agreements relating to such Facility. Subject to any particular requirements
under the WECC Fixed Price Contract or any Host Agreement, Steam Sale Agreement
or Direct Power Purchase Agreement, CES shall deliver all Schedules and
operating instructions to the Company with respect to each Facility a sufficient
time in advance of the day ahead or intra-day scheduling deadlines, as
applicable, in the applicable Transmission Provider's or ISO's tariff, as
applicable, to enable the Company to comply with the requirements of the
applicable Transmission Provider's or ISO's tariff. The Company shall deliver
all Contracted Power Products Scheduled by CES with respect to each Facility to
the applicable Power Delivery Point unless prevented from doing so by Force
Majeure.
3.3 Gas Transportation and Scheduling. Subject to Sections 2.2, 2.3 and
2.4, CES shall Schedule Gas deliveries to each Facility that are consistent with
(i) the Schedules for delivery of Contracted Power Products from such Facility,
the WECC Fixed Price Contract (if applicable) and the Host Agreements, Steam
Sale Agreements and Direct Power Purchase Agreements related to such Facility,
(ii) Prudent Engineering and Operating Practices, and (iii) all manufacturer's
recommendations and warranties with respect to the Facility in question. The
Parties shall coordinate their nomination activities with respect to Gas,
giving sufficient time to meet the deadlines of the affected Transporter(s).
Subject to Sections 2.2, 2.3 and 2.4 and to any particular requirements under
the WECC Fixed Price Contract and any Host Agreements, Steam Sale Agreements and
Direct Power Purchase Agreements, CES shall deliver nominations to the affected
Transporter(s) a sufficient time in advance of the earliest first of month
nomination deadline for monthly nominations and the intra-month nomination
deadline for subsequent nominations, if intra-month changes are authorized, for
the Transporter(s) delivering Gas for each Facility, and shall give the Company
timely prior notice, sufficient to meet the requirements of all Transporter(s)
involved in the transaction, of the quantities of Gas to be delivered and
purchased each Day. Should any Party become aware that actual deliveries of Gas
at one or more Gas Delivery Point(s) are greater or less than the Scheduled Gas
deliveries, then such Party shall promptly notify the other affected Parties.
The affected Parties shall use commercially reasonable efforts to avoid
imposition by any Transporter of imbalance charges. Unless they result from the
failure by the Company to accept Gas that is properly Scheduled and delivered
and such failure is not excused by Force Majeure or from a failure by a seller
under a Direct Gas Supply Agreement to deliver the amount of Gas scheduled by
Company thereunder, all in balance charges assessed by any Transporters shall be
CES's responsibility. The Party (whether CES or the Company) responsible for
payment of imbalance charges hereunder shall be
15
entitled to all rights and claims that the other Party may have against third
parties with respect to such in balance charges, including any rights to recover
such imbalance charges from third parties, and each Party shall cooperate with
the other Party and shall assign to the other Party such rights as it may have
against any third parties with respect to imbalance charges paid or payable by
the Party responsible for such imbalance charges hereunder.
3.4 Minimum Generation Levels. Notwithstanding anything in this Article
Three to the contrary, the Company shall have the right to operate any Facility
that is required to provide Power Products or steam pursuant to a Host
Agreement, Steam Sale Agreement or Direct Power Purchase Agreement at the
Minimum Generation Level for such Facility, whether or not CES would have
dispatched or Scheduled Contracted Power Products from such Facility. If the
Company is required, by virtue of an applicable Host Agreement, Steam Sale
Agreement or Direct Power Purchase Agreement to operate such Facility at its
Minimum Generation Level, notwithstanding CES's decision not to Schedule or
dispatch the Facility, during such period, the Company shall so notify CES, the
Company shall be entitled to operate such Facility at its Minimum Generation
Level during such period, and, except to the extent Gas is provided therefor by
a third party, CES shall provide all Gas necessary to operate at such Minimum
Generation Level and shall accept and sell or transfer to third parties the Net
Minimum Generation produced by such Facility during such period.
3.5 Force Majeure. To the extent any Party is prevented by Force Majeure
from carrying out, in whole or part, its obligations under this Agreement, such
Party (the "Claiming Party") shall give notice and details of the Force Majeure
to the other Parties as soon as practicable. Subject to the Claiming Party's
obligation to remedy the Force Majeure as soon as possible, the Claiming Party
shall be excused from the performance of its obligations (other than the
obligation to make payments then due or becoming due with respect to performance
prior to the Force Majeure), and the non-Claiming Party shall not be required to
perform or resume performance of its obligations to the Claiming Party
corresponding to the obligations of the Claiming Party excused by Force Majeure
until the Force Majeure has been remedied; provided, however, that in the case
of a Force Majeure affecting the Company or CES, CES shall continue to make
payments under Article Four notwithstanding such Force Majeure, subject,
however, in the case of Force Majeure affecting the Company, to adjustment as
provided in Section 4.3. The Claiming Party shall remedy the Force Majeure as
quickly as reasonably possible; provided, however, that the Claiming Party shall
not be obligated, either in connection with remedying a Force Majeure or in
exercising due diligence in overcoming or avoiding it, to provide or pay for
replacement Product except as expressly provided herein or to settle or
compromise any strike, lockout or labor dispute.
3.6 Quality and Measurement. All Gas delivered by CES shall meet the
pressure, quality and heat content requirements of the receiving Transporter at
the Gas Delivery Point. Measurement of Gas quantities hereunder shall be in
accordance with the established procedures of the receiving Transporter at the
Gas Delivery Point. All Contracted Power Products delivered by the Company shall
meet the frequency, voltage and other quality requirements of the receiving
Transmission Provider at the Power Delivery Point. Measurement of Power Product
quantities hereunder shall be in accordance with the established procedures of
the receiving Transmission Provider at the Power Delivery Point.
16
3.7 Cooperation and Further Assurances. Company and CES shall cooperate
with each other in a commercially reasonable manner in carrying out their
respective obligations under this Agreement, including without limitation with
respect to Scheduling, delivery and receipt of Gas and Power Products.
ARTICLE FOUR: CONTRACT PRICE
4.1 Calculation of Contract Price. For each month during the Term, CES
shall pay to the Company the Contract Price. "Contract Price" shall be the
amount in U.S.$ calculated as follows:
"Contract Price" = the sum of the Monthly Spark Spread Amount for
each Facility for such month - the Monthly
Minimum Generation Adjustment for each
Cogeneration Facility and each Direct Sale
Facility + the Fixed Payment for such month +
the sum of the VOM Adjustments for each Facility
for such month + the Xxxxxx Adjustment - the Gas
Charge Adjustment + the Transportation Charge
Adjustment + the Transmission Charge Adjustment;
provided, however, that such calculation shall
not include any Contract Price components
related to the Columbia Facility, the Pastoria
Facility (or the applicable phase thereof) or
the Goldendale Facility until such Facility has
achieved Commercial Operation.
For purposes of the foregoing calculation of the Contract Price:
"Monthly Spark Spread for each Facility, the sum of the Daily Spark
Amount" = Spread Amounts for all On Peak Days during such
month
"Monthly Minimum for each Cogeneration Facility and Direct Sale
Generation Adjustment = Facility, the sum of the Daily Minimum
Generation Adjustments for all applicable On
Peak Days during such month
"Daily Spark Spread with respect to each On Peak Day and each
Amount" = Facility, the amount determined in accordance
with the following formula: Applicable Capacity
* Availability Factor * 16 * {Applicable Power
Price - [(Applicable Fuel Price * Applicable
Heat Rate) + Variable O&M Amount]}; provided
that {Applicable Power Price - (Applicable Fuel
Price * Applicable Heat Rate) - Variable O&M
Amount} shall not be less than zero
"Daily Minimum Generation with respect to each On Peak Day for which
Adjustment" = {Applicable Power Price - (Applicable Fuel Price
* Applicable Heat Rate) - Variable O&M Amount}
is less than zero, [Minimum Generation Xxxxx -
00
(Xxxx Xxxxxxxx + Direct PPA Capacity)] *
Availability Factor * 16 * { [(Applicable Fuel
Price * Host Heat Rate) + Variable O&M Amount] -
Applicable Power Price}
"VOM Adjustment" = with respect to each Facility, the Variable O&M
Amount * Energy Produced
"Energy Produced" = with respect to each Facility, the total number
of MWh associated with the Applicable Capacity
(i.e. not including any Host Capacity, Direct
PPA Capacity or capacity associated with the
production or sale of steam) actually produced
by such Facility during On Peak and Off Peak
Hours the applicable month, including all MWh
associated with Baseload Power Products, Peaking
Power Products and Minimum Net Generation
"Xxxxxx Adjustment" = the amount paid by the "Buyer" under the Amoco
Contract in such month - [(total MWh sold to
Amoco under the Amoco Contract in such month) *
Applicable Fuel Price * Host Heat Rate]
Gas Charge Adjustment = the sum of the Facility Gas Adjustment Charges
for the Baytown, Xxxxxxxx, Channel, Columbia,
Corpus Christi, Decatur, Los Medanos and Xxxxxx
Facilities for the applicable month plus the
Facility Gas Adjustment Charge payable as a
result of the execution of additional Power
Purchase Agreements as provided in Section 2.3.
Facility Gas Adjustment for each applicable Facility to the extent
Charge = applicable and to the extent that the Gas
necessary to generate the applicable Host
Energy, Direct PPA Energy and/or steam was in
fact delivered by CES to such Facility, the sum
for each Day in the month of (Host Energy *
Applicable Fuel Price * Host Heat Rate) +
(Direct PPA Energy * Applicable Fuel Price *
Host Heat Rate) + (Steam Quantity * Applicable
Fuel Price * Applicable Enthalpy)
Transportation Charge the sum of the Facility Transportation Charge
Adjustment = Adjustments for the Baytown, Decatur, Delta,
Freestone, Los Medanos and Xxxxxx Facilities
Transmission Charge the Facility Transmission Charge Adjustment for
Adjustment = the Goldendale Facility
4.2 Deemed Operation and Availability. CES and the Company acknowledge and
agree that, except as provided in Section 4.3, the Contract Price will be made
on the basis of the designated indices, quantities and availabilities set forth
in Sections 4.1, the definitions in Article 1 and the applicable Facility
Schedules, regardless of actual day-to-day performance of each Facility, which
may be better or worse than that assumed herein. CES and the Company agree that,
even though results may vary from month to month, the method of calculating the
Contract
18
Price, together with the adjustments pursuant to Section 4.3, is a reasonable
estimate of the actual availability and output of each Facility over time and
the market prices for Gas and Power Products.
4.3 Adjustments to Contract Price.
(a) Within thirty (30) days after the end of each Semiannual Period, the
Company shall deliver to CES a certificate signed by a Responsible Officer of
the Company certifying with respect to each Facility (i) that the Actual
Availability of such Facility during such Semiannual Period was not less than
80% for such Semiannual Period in the aggregate or (ii) if the Actual
Availability of such Facility during such Semiannual Period was less than 80%
for such Semiannual Period, specifying the Actual Availability for such
Semiannual Period as a percentage. For purposes of calculating the Actual
Availability of a Facility for a Semiannual Period, (A) both the Actual Energy
Production and the Scheduled Energy Production during Scheduled Outage Periods
during such Semiannual Period shall be deemed to be zero, and (B) to the extent
that such Facility is wholly or partially prevented from operating by a Force
Majeure, such Facility shall be deemed to have been Scheduled at its Applicable
Capacity during such periods (or, in the event a Force Majeure only partially
affects such Facility's availability, deem such affected portion of such
Facility's Applicable Capacity so Scheduled) for all On Peak Hours during such
period.
(b) If the Company delivers the certification described in Section
4.3(a)(i) for a Semiannual Period, there shall be no adjustment to the Contract
Price for the next Semiannual Period.
(c) If the Company delivers the certification described in Section
4.3(a)(ii) for a Semiannual Period with respect to any Facility, the Monthly
Amounts for the next Semiannual Period (the "Reduced Semiannual Period") for
such Facility shall be adjusted by multiplying the Monthly Amounts otherwise
includable in the calculation of Contract Price under Section 4.1 by a fraction,
the numerator of which is the Actual Availability for such Facility for the
Semiannual Period specified by the Company, expressed as a percentage, in such
certification and the denominator of which is ninety-eight percent (98%).
However, if the Facility achieves an Actual Availability of 90% for 30 or more
consecutive Days during a Reduced Semiannual Period, then, beginning with the
month next following the end of such 30 consecutive day period, the Monthly
Amounts with respect to such Facility shall not be reduced as provided in the
previous sentence for the remainder of such Reduced Semiannual Period.
(d) If the certificate delivered pursuant to Section 4.3(a) with respect
to a Reduced Semiannual Period states that the Actual Availability for such
Reduced Semiannual Period was not less than 80%, then there shall be no
adjustment to the Contract Price for the next Semiannual Period following the
Reduced Semiannual Period, and the full Contract Price shall be payable for such
next Semiannual Period. If, however, the Company delivers the certification
described in Section 4.3(a)(ii) for a Reduced Semiannual Period stating that the
Actual Availability for such Reduced Semiannual Period was less than 80%, the
Contract Price for the next Semiannual Period following the Reduced Semiannual
Period shall again be adjusted as provided in Section 4.3(c).
19
(e) In calculating the Actual Availability for a Semiannual Period, the
Company shall use all reasonably available data and shall calculate the Actual
Availability in accordance with generally established methods and procedures
used in the electric power industry in the United States. Partial outages shall
be prorated accordingly.
(f) If CES disputes the calculation of Actual Availability set forth in
any certificate delivered pursuant to Section 4.3(a), it shall give the Company
written notice of such dispute, including the reasons therefor, within fifteen
(15) Days after receipt of the Company's certificate. If the Parties are unable
to resolve the dispute before the date that a payment affected by the dispute is
payable hereunder, CES shall make payment based on the certificate that was
delivered, but, if upon resolution of such dispute, it is determined that a
lesser amount was properly payable by CES hereunder, CES may offset the
difference between the amounts actually paid and the amounts determined to be
properly payable, together with interest on such difference at the Interest Rate
from the date of the overpayment until the date it is recovered (through
repayment or offset), against amounts otherwise due and payable by CES to the
Company hereunder.
4.4 Adjustment of Host Capacity. On or before January 15 of each calendar
year during the Term hereof after calendar year 2004, the Company and CES shall
adjust the Host Capacity for each Cogeneration Facility for such calendar year
as follows. If, pursuant to the Host Agreement or otherwise, the Host has
nominated the amount of capacity it expects to need or use for such calendar
year, then, whether or not such nomination is binding on the Host, the Host
Capacity for such calendar year will be equal to the amount of capacity
nominated by the Host. If there is no such nomination procedure, or if the Host
fails to make a capacity nomination under the Host Agreement, the Host Capacity
for such calendar year shall be equal to the average capacity used by the Host
in the preceding calendar year. Such new Host Capacity shall be effective for
the entire calendar year, regardless of the actual capacity used by the Host
during such calendar year.
ARTICLE FIVE: EVENTS OF DEFAULT; REMEDIES
5.1 Events of Default. An "Event of Default" shall mean, with respect to a
Party (a "Defaulting Party"), the occurrence of any of the following:
(a) the failure to make, when due, any payment required pursuant
to this Agreement if such failure is not remedied within ten
(10) Days after written notice;
(b) any representation or warranty made by such Party herein is
false or misleading in any material respect when made or when
deemed made or repeated, such inaccuracy has a material
adverse effect on such Party's performance of or ability to
perform its obligations under this Agreement, and such
inaccuracy is not corrected within thirty (30) Days after
written notice, or, if such inaccuracy cannot reasonably be
cured within such thirty (30) Day period, such additional
period, not to exceed ninety (90) Days in the aggregate, as
may reasonably be necessary to cure such
20
inaccuracy, so long as the Defaulting Party is making diligent
efforts to do so;
(c) the failure to perform any material covenant or obligation set
forth in this Agreement (except for such Party's obligations
to deliver or receive the Product, which is covered in
Sections 5.3 and 5.4 below), in each case if such failure has
a material adverse effect on such Party's performance
hereunder, taken as a whole, and is not remedied within thirty
(30) Days after written notice, or, if such failure cannot
reasonably be cured within such thirty (30) Day period, such
additional period, not to exceed ninety (90) Days in the
aggregate, as may reasonably be necessary to cure such
failure, so long as the Defaulting Party is making diligent
efforts to cure such failure;
(d) such Party becomes Bankrupt; provided, however, that a Party's
Bankruptcy shall not constitute an Event of Default hereunder
unless, following such Bankruptcy, such Party breaches or
defaults in the performance of any covenant or obligation
under this Agreement that would, independently of such
Bankruptcy, constitute an Event of Default hereunder;
(e) such Party consolidates or amalgamates with, or merges with or
into, or transfers all or substantially all of its assets to,
another entity and, at the time of such consolidation,
amalgamation, merger or transfer, the resulting, surviving or
transferee entity fails to assume all the obligations of such
Party under this Agreement to which it or its predecessor was
a party by operation of law or pursuant to an agreement
reasonably satisfactory to the other Party;
(f) any of the following occur, any such occurrences being an
Event of Default of CES hereunder:
(i) any representation or warranty made by the Guarantor in
connection with this Agreement is false or misleading in
any material respect when made or when deemed made or
repeated, and such inaccuracy has a material adverse
effect on the Guarantor's performance of or ability to
perform its obligations under the Guaranty and such
inaccuracy is not corrected within thirty (30) Days
after written notice, or, if such inaccuracy cannot
reasonably be cured within such thirty (30) period, such
longer period, not to exceed ninety (90) Days in the
aggregate, as may be reasonably necessary to cure such
inaccuracy;
(ii) the failure of the Guarantor to make any payment
required or to perform any other material covenant or
obligation in the Guaranty and such failure shall not be
remedied within ten (10) Days after written notice with
respect to a failure to make payment and within
21
thirty (30) Days after written notice in all other
cases, or, if such failure cannot reasonably be cured
within such thirty (30) Day period, such additional
period, not to exceed ninety (90) Days in the aggregate,
as may reasonably be necessary to cure such failure, so
long as the Defaulting Party is making diligent efforts
to cure such failure;
(iii) the Guarantor becomes Bankrupt;
(iv) the failure of the Guaranty to be in full force and
effect for purposes of this Agreement (other than in
accordance with its terms) prior to the satisfaction of
all obligations of CES under this Agreement, and such
failure is not remedied within ten (10) Days after
written notice;
(v) the Guarantor shall repudiate, disaffirm, disclaim, or
reject, in whole or in part, or challenge the validity
of the Guaranty; or
(vi) Guarantor shall default beyond any applicable grace
period in the payment or performance of any obligation
due with respect to any recourse indebtedness of
Guarantor with a principal amount of more than
$200,000,000, which default gives the holder or holders
of such indebtedness the right to accelerate the
maturity thereof.
(g) The termination of that certain Master Operation and
Maintenance Agreement dated as of March 23, 2004 between the
Company and Calpine Operating Services Company, Inc. with
respect to any Facility (i) as the result of a default
thereunder by the Company or (ii) by the Company not as the
result of a default thereunder by Calpine Operating Services
Company, Inc. at such time as the applicable Facility Owner is
no longer an Affiliate of the Guarantor, which in either case
shall constitute an Event of Default of the Company hereunder
with respect to such Facility (provided, that CES shall not be
entitled to terminate this Agreement with respect to any
Facility pursuant to Section 5.2 as a result of an Event of
Default under this clause (g) earlier than sixty (60) Days
after such a termination of the Master Operation and
Maintenance Agreement.
5.2 Declaration of an Early Tennination Date and Calculation of Settlement
Amounts. If an Event of Default with respect to a Defaulting Party has occurred
and is continuing, the other Party (the "Non-Defaulting Party") shall have the
right upon written notice (the "Termination Notice") to the Non-Defaulting Party
(i) to designate a day, no earlier than the day the Termination Notice is
effective and no later than 30 Days after the Termination Notice is effective,
as an early termination date ("Early Termination Date") to terminate this
Agreement with respect to the Facility or Facilities affected by such Event of
Default only; provided, however, that if such Event of Default is cured before
the Early Termination Date, such Termination Notice shall cease to be effective,
(ii) withhold any payments due to the Defaulting
22
Party under this Agreement with respect to such Facility or Facilities, (iii)
suspend performance with respect to such Facility or Facilities, and (iv) seek
specific enforcement of this Agreement, the Parties hereby agreeing that the
covenants and obligations in this Agreement may be specifically enforced
regardless of whether or not there is an adequate remedy available at law. If a
Non-Defaulting Party is permitted to and elects to terminate this Agreement with
respect to a Facility or Facilities on account of an Event of Default, it shall
calculate, in a commercially reasonable manner, a Termination Payment as of the
Early Termination Date. The Gains and Losses resulting from termination of this
Agreement with respect to such Facility or Facilities shall be determined by
calculating the amount that would be incurred or realized to replace or to
provide the economic equivalent of the remaining payments or deliveries in
respect of the purchase and sale of Gas and Power Products contemplated by this
Agreement. The Non-Defaulting Party (or its agent) may determine its Gains and
Losses by reference to information either available to it internally or supplied
by one or more third parties including, without limitation, quotations (either
firm or indicative) of relevant rates, prices, yields, yield curves,
volatilities, spreads or other relevant market data in the relevant markets.
Third parties supplying such information may include, without limitation,
dealers in the relevant markets, end-users of the relevant product, information
vendors and other sources of market information.
5.3 CES Failure. If CES fails to Schedule and/or deliver all or part of
the Gas required to be delivered hereunder or fails to accept and receive any
Power Products to be delivered hereunder, and such failure is not excused by the
Company's failure to perform, then CES shall nonetheless continue to pay the
Company the Contract Price as provided in Article Four; provided, that if CES
fails to deliver sufficient Gas to enable the Company to satisfy its obligations
under a Host Agreement, a Direct Power Purchase Agreement or another Power
Purchase Agreement, and such failure is not excused by Force Majeure or the
Company's failure to perform, then CES shall be liable for any costs related to
replacement Gas required by the Company to enable it to satisfy its obligations
under such Host Agreement, Direct Power Purchase Agreement or other Power
Purchase Agreement in excess of the amount such Gas would have cost the Company
under this Agreement. If CES willfully fails to Schedule and/or deliver all or
part of the Gas required to be delivered hereunder with respect to a Facility or
willfully fails to accept and receive any Contrqacted Power Products to be
delivered hereunder with respect to a Facility, such failure continues for more
than ten (10) Days after written notice, and such failure is not excused by
Force Majeure or the Company's failure to perform, then the Company shall have
the right to deliver a Termination Notice and to terminate this Agreement with
respect to such Facility only pursuant to Section 5.2.
5.4 Company Failure. If the Company willfully fails to accept and receive
all or part of the Gas Scheduled to be delivered hereunder with respect to a
Facility or willfully fails to deliver any Contracted Power Products to be
delivered hereunder with respect to a Facility, such failure continues for more
than ten (10) Days after written notice, and such failure is not excused by
Force Majeure or by CES's failure to perform, then CES shall have the right, at
its election, (a) to suspend its obligations hereunder, including its
obligations to make payments, to schedule and supply Gas, and to schedule and
accept Contracted Power Products, until such willful failures to accept and
receive Gas and/or to deliver Contracted Power Products cease, and/or (b) to
deliver a Termination Notice and to terminate this Agreement with respect to
such Facility only pursuant to Section 5.2. Otherwise, if the Company's failure
to accept and receive all or part of the Gas Scheduled hereunder with respect to
a Facility or to deliver any Contracted Power
23
Products hereunder with respect to a Facility is not willful, CES's sole remedy
for such failure shall be the adjustment of the Contract Price provided in
Section 4.3.
5.5 Notice of Payment of Termination Payment. As soon as practicable after
a termination hereunder, notice shall be given by the Non-Defaulting Party to
the Defaulting Party of the amount of the Termination Payment if any, owed to
the Non-Defaulting Party. The notice shall include a written statement
explaining in reasonable detail the calculation of such amount. The Termination
Payment shall be made by the Defaulting Party within fifteen (15) Business Days
after such notice is received by the Defaulting Party.
5.6 Disputes With Respect to Termination Payment. If the Defaulting Party
disputes the Non-Defaulting Party's calculation of the Termination Payment, in
whole or in part, the Defaulting Party shall, within ten (10) Business Days
after receipt of Non-Defaulting Party's calculation of the Termination Payment,
provide to the Non-Defaulting Party a detailed written explanation of the basis
for such dispute. The Defaulting Party and the Non-Defaulting Party shall use
all commercially reasonable efforts to resolve such dispute by negotiation and
compromise. If they are unable to do so within twenty (20) Business Days after
the Defaulting Party's delivery of such detailed written explanation, both
Parties shall have the right to exercise any or all of their legal rights and
remedies with respect to such dispute.
5.7 Termination for Convenience. The Company may, at its sole option,
terminate this Agreement with respect to one or more Facilities or in its
entirety at any time during the Term at the Company's convenience upon sixty
(60) Days prior written notice to CES. Upon receipt of such notice, CES shall
calculate a Termination Payment hereunder as if the Company were the Defaulting
Party. Upon such termination, the Company shall pay CES the Termination Payment
so calculated, and, this Agreement shall cease to apply to such Facility or
Facilities, and the Contract Price and other provisions hereof shall be adjusted
accordingly to delete amounts, rights or obligations related to such Facility or
Facilities.
ARTICLE SIX: BILLING AND PAYMENT
6.1 Billing Period. All payments under this Agreement (other than
Termination Payments and other damage payments payable pursuant to Article 5,
which shall be paid as provided therein) will be paid on a monthly basis. Within
ten (10) Days after the end of each month, CES will calculate the amount of the
monthly payment due for such month and will send a notice of such amount,
together with supporting information and calculations, to the Company.
6.2 Timeliness of Payment. All invoices for monthly payments under this
Agreement shall be due and payable to or by each Facility Owner in accordance
with the Facility Owner's or CES's invoice instructions, as applicable, on or
before the later of the twenty-fifth (25th) day of each month, or the fifteenth
(15th) day after receipt of the invoice or, if such day is not a Business Day,
then on the next Business Day. Payment shall be made by electronic funds
transfer, or by other mutually agreeable method(s), to the account designated by
a Party in its invoice. Any amounts not paid by the due date will be deemed
delinquent and will accrue
24
interest at the Interest Rate, such interest to be calculated from and including
the due date to but excluding the date the delinquent amount is paid in full.
6.3 Disputes and Adjustments of Invoices. A Party may, in good faith,
dispute the correctness of any invoice or any adjustment to an invoice, rendered
under this Agreement or adjust any invoice for any arithmetic or computational
error within twelve (12) months of the date the invoice, or adjustment to an
invoice, was rendered. In the event an invoice or portion thereof, or any other
claim or adjustment arising hereunder, is disputed, payment of the undisputed
portion of the invoice shall be required to be made when due, with notice of the
objection given to the other Party. Any invoice dispute or invoice adjustment
shall be in writing and shall state the basis for the dispute or adjustment.
Payment of the disputed amount shall not be required until the dispute is
resolved. Upon resolution of the dispute, any required payment shall be made
within five (5) Business Days of such resolution along with interest accrued at
the Interest Rate from and including the due date to but excluding the date
paid. Inadvertent overpayments shall be returned upon request or deducted by the
Party receiving such overpayment from subsequent payments, with interest accrued
at the Interest Rate from and including the date of such overpayment to but
excluding the date repaid or deducted by the Party receiving such overpayment.
Any dispute with respect to an invoice is waived unless the other Party is
notified in accordance with this Section 6.3 within twelve (12) months after the
invoice is rendered or any specific adjustment to the invoice is made. If an
invoice is not rendered within twelve (12) months after the close of the month
during which performance has occurred, the right to payment for such performance
is waived.
6.4 Netting of Payments. The Parties hereby agree that they shall
discharge mutual debts and payment obligations due and owing to each other on
the same date under this Agreement through netting, in which case all amounts
owed by each Party to the other Party for the purchase and sale of Products
during the monthly billing period under this Agreement, including any related
damages calculated pursuant to Article Five, interest, and payments or credits,
shall be netted so that only the excess amount remaining due shall be paid by
the Party who owes it.
6.5 Payment Obligation Absent Netting. If no mutual debts or payment
obligations exist and only one Party owes a debt or obligation to the other
during the monthly billing period, including, but not limited to, any related
damage amounts calculated pursuant to Article Five, interest, and payments or
credits, that Party shall pay such sum in full when due.
ARTICLE SEVEN: LIMITATIONS
7.1 Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH
HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM
THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT
SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN
EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE
OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL
BE LIMITED AS SET FORTH IN SUCH
25
PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF
NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR'S
LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES
AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, NO PARTY SHALL
BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BY
STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS
THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND
THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO,
INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID
HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT
OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS
INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE
APPROXIMATION OF THE HARM OR LOSS.
ARTICLE EIGHT: REPLACEMENT OF INDICES
8.1 Index Hedge Indices. As of the date of this Agreement, the indices
used to determine the various Applicable Power Prices and Applicable Fuel Prices
under this Agreement are the same as those indices used in the Index Hedge
(which is designed to provide the Company a hedge against the Daily Spark Spread
Amounts hereunder). The parties agree that in the event that during the term of
the Index Hedge any index in the Index Hedge is changed for any reason, the
corresponding index under this Agreement will be immediately replaced with such
index and the Applicable Power Prices and Applicable Fuel Prices under this
Agreement shall thereafter be calculated using such replacement index.
8.2 Cessation of an Index. If, during the term of this Agreement after the
expiration or other termination of the Index Hedge, any index or any publication
cited herein as the source of an index, including specifically the indices and
publications used to determine the various Applicable Power Prices and
Applicable Fuel Prices, (a) ceases to exist or to be published, (b) no longer
substantially reflects the prices in the relevant market for the delivery of
Power Products or Gas, (c) no longer has liquidity, or (d) lacks acceptance in
the general marketplace; then the Parties shall use the Fallback Power Reference
Price for Power Products. With respect to Gas and/or if the index used in
determining the Fallback Power Reference Price suffers an event as described in
(a), (b), (c), or (d) above, then CES may give notice to this effect to the
Company and CES shall select a new replacement index or pricing mechanism
("Replacement Index"). For such Replacement Index to be in effect, the Market
Consultant must agree that such Replacement Index is reasonable and is
representative of the original index, including any necessary basis adjustments.
Such Replacement Index (including any necessary basis adjustments) will be
effective as of the date the original index ceased to exist, be published, or
26
substantially reflect the price of Power Products or Gas, as the case may be, in
the relevant market.
8.3 Interruption of an Index. If, during the term of this Agreement after
the expiration or other termination of the Index Hedge, there is an interruption
in the publication of an index (including any temporary discontinuance or
unavailability of the index, any temporary closing of any exchange acting as the
index, or any material change in the formula for or the method of determining
the index), including specifically the indices and publications used to
determine the various Applicable Power Prices and/or the Applicable Fuel Prices,
the affected index or indices shall be determined pursuant to the index
specified herein for the first Day after such interruption ceases; provided,
however, if the interruption lasts more than five (5) Business Days, the Parties
shall negotiate in good faith to agree on a value for the index or indices
during the period of the interruption. If they are unable to agree within thirty
(30) Days, the values of the affected index or indices will be determined by
each Party obtaining a quote from a leading dealer in the relevant market and
averaging the two quotes.
8.4 Updating Index References Subject to Section 8.1, if, during the term
of this Agreement, any of the references to any index listed on a Facility
Schedule changes (as opposed to the cessation or interruption of such index),
the Parties will amend the applicable Facility Schedule to update the
description of such index to include the appropriate reference.
ARTICLE NINE: GOVERNMENTAL CHARGES
9.1 Cooperation. Each Party shall use reasonable efforts to implement the
provisions of and to administer this Agreement in accordance with the intent of
the parties to minimize all taxes, so long as neither Party is materially
adversely affected by such efforts.
9.2 Governmental Charges. The payments to be made by CES to the Company
hereunder are net of all taxes due or payable with respect to such payments.
Accordingly, CES shall pay or cause to be paid all taxes imposed by any
government authority ("Governmental Charges") on or with respect to Gas
delivered hereunder arising prior to or at the applicable Delivery Point and on
or with respect to any Contracted Power Product delivered hereunder arising at
or after the applicable Delivery Point, including any sales or use taxes imposed
in connection with the sale or transfer of any Gas or Power Product. The Company
shall pay or cause to be paid all Governmental Charges on or with respect to Gas
delivered hereunder imposed after the applicable Delivery Point and with respect
to Contracted Power Products delivered hereunder imposed prior to the applicable
Delivery Point. Franchise or income taxes imposed on the net income of a Party
shall be the responsibility of that Party. In the event either Party is required
by law or regulation to remit or pay Governmental Charges which are the other
Party's responsibility hereunder, the second Party shall promptly reimburse the
first Party for such Governmental Charges. Nothing herein shall obligate or
cause a Party to pay or be liable to pay any Governmental Charges for which it
is exempt under the law.
ARTICLE TEN: MISCELLANEOUS
10.1 Representations and Warranties. On the Effective Date, each Party
represents and warrants to each other Party that:
27
(i) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation;
(ii) it has all regulatory authorizations necessary for it to
legally perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this Agreement are
within its powers, have been duly authorized by all necessary
action and do not violate any of the terms and conditions in
its governing documents, any material contracts to which it is
a party or any law, rule, regulation, order or judgment
applicable to it;
(iv) this Agreement and each other document executed and delivered
in accordance with this Agreement constitutes its legally
valid and binding obligation enforceable against it in
accordance with its terms subject to any Equitable Defenses.
(v) it is not Bankrupt and there are no proceedings pending or
being contemplated by it or, to its knowledge, threatened
against it which would result in it being or becoming
Bankrupt;
(vi) there is not pending or, to its knowledge, threatened against
it or any of its Affiliates any legal proceedings that could
reasonably be expected to materially and adversely affect its
ability to perform its obligations under this Agreement;
(vii) no Event of Default with respect to it has occurred and is
continuing and no such event or circumstance would occur as a
result of its entering into or performing its obligations
under this Agreement;
(viii)it is acting for its own account, has made its own
independent decision to enter into this Agreement and as to
whether this Agreement is appropriate or proper for it based
upon its own judgment, is not relying upon the advice or
recommendations of the other Party in so doing, and is capable
of assessing the merits of and understanding, and understands
and accepts, the terms, conditions and risks of this
Agreement; and
(ix) it has entered into this Agreement in connection with the
conduct of its business and it has the capacity or ability to
make or take delivery of all Products referred to herein.
10.2 Title. Seller warrants that it will deliver to Buyer the Quantity of
each Product to be delivered hereunder free and clear of all liens, security
interests, claims and encumbrances or any interest therein or thereto by any
person arising prior to the applicable Delivery Point.
10.3 Indemnity. Each Party shall indemnify, defend and hold harmless the
other Parties from and against any Claims arising from or out of any event,
circumstance, act or incident first occurring or existing during the period when
control and title to Product is vested in
28
such Party as provided in Section 3.1. Each Party shall indemnify, defend and
hold harmless the other Parties against any Governmental Charges for which such
Party is responsible under Article Nine.
10.4 Assignment. No Party shall assign its rights and interests under this
Agreement without the prior written consent of the other Consent Parties, which
consent may be withheld in the exercise of its sole discretion; provided,
however, either Party may, without the consent of the other Party (and without
relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber
or assign its rights and interests under this Agreement and in and to the
accounts, revenues or proceeds hereof in connection with any financing or other
financial arrangements, or (ii) transfer or assign its rights and interests
under this Agreement to an Affiliate of such Party if, (A) in the case of CGC,
the assignee succeeds to the ownership of all of the Facility Owners, (B) in the
case of a Facility Owner, the assignee succeeds to the ownership of the
applicable Facility, or (C) in the case of CES, the obligations of the assignee
continue to be guaranteed by the same Guarantor.
10.5 Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. EACH PARTY WAIVES ITS
RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER
OR IN CONNECTION WITH THIS AGREEMENT.
10.6 Notices. All notices, requests, statements or payments shall be made
as follows:
CES: Calpine Energy Services, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Contract Administration
Fax: (000) 000-0000
Phone: (000) 000-0000
CGC: Calpine Generating Company, LLC
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
Phone: (000) 000-0000
Facility Owner: To the Plant Manager for the applicable
Facility at the address set forth on Exhibit A
attached hereto.
Notices (other than scheduling requests) shall, unless otherwise specified
herein, be in writing and may be delivered by hand delivery, United States mail,
overnight courier service or facsimile. Notice by facsimile or hand delivery
shall be effective at the close of business on the day actually received, if
received during business hours on a Business Day, and otherwise shall
29
be effective at the close of business on the next Business Day. Notice by
overnight United States mail or courier shall be effective on the next Business
Day after it was sent. A Party may change its addresses by providing like notice
as specified above.
10.7 General. This Agreement (including the exhibits, schedules and any
written supplements hereto), constitute the entire agreement between the Parties
relating to the subject matter. This Agreement shall be considered for all
purposes as prepared through the joint efforts of the Parties and shall not be
construed against a Party as a result of the preparation, substitution,
submission or other event of negotiation, drafting or execution hereof. Except
to the extent herein provided for, no amendment or modification to this
Agreement shall be enforceable unless reduced to writing and executed by all
affected Parties. Each Party agrees if it seeks to amend any applicable
wholesale power sales tariff during the term of this Agreement, such amendment
will not in any way affect this Agreement without the prior written consent of
the other affected Parties. Each Party further agrees that it will not assert,
or defend itself, on the basis that any applicable tariff is inconsistent with
this Agreement. This Agreement shall not impart any rights enforceable by any
third party (other than a permitted successor or assignee bound to this
Agreement). Waiver by a Party of any default by another Party shall not be
construed as a waiver of any other default. Any provision declared or rendered
unlawful by any applicable court of law or regulatory agency or deemed unlawful
because of a statutory change (individually or collectively, such events
referred to as "Regulatory Event") will not otherwise affect the remaining
lawful obligations that arise under this Agreement. If a Regulatory Event
occurs, the Parties shall use their best efforts to reform this Agreement in
order to give effect to the original intention of the Parties. The term
"including" when used in this Agreement shall be by way of example only and
shall not be considered in any way to be in limitation. The headings used herein
are for convenience and reference purposes only. All indemnity and audit rights
shall survive the termination of this Agreement for twelve (12) months. This
Agreement shall be binding on each Party's successors and permitted assigns.
10.8 Audit. Each Party has the right, at its sole expense and during
normal working hours, to examine the records of another Party to the extent
reasonably necessary to verify the accuracy of any statement, charge or
computation made pursuant to this Agreement. If requested, a Party shall provide
to the other Parties statements evidencing the Quantity delivered at an
applicable Delivery Point. If any such examination reveals any inaccuracy in any
statement, the necessary adjustments in such statement and the payments thereof
will be made promptly and shall bear interest calculated at the Interest Rate
from the date the overpayment or underpayment was made until paid; provided,
however, that no adjustment for any statement or payment will be made unless
objection to the accuracy thereof was made prior to the lapse of twelve (12)
months from the rendition thereof, and thereafter any objection shall be deemed
waived.
10.9 Forward Contract. The Parties acknowledge and agree that this
Agreement constitutes a "forward contract" within the meaning of the United
States Bankruptcy Code.
10.10 Confidentiality. The Parties agree that they will not disclose their
communications with any Transporter or Transmission Provider to a third party
(other than the Party's employees, lenders, counsel, accountants or advisors who
have a need to know such information and have agreed to keep such terms
confidential) except in order to comply with any
30
applicable law, regulation, or any exchange, control area or independent system
operator rule or in connection with any court or regulatory proceeding;
provided, however, each Party shall, to the extent practicable, use reasonable
efforts to prevent or limit the disclosure. The Parties shall be entitled to all
remedies available at law or in equity to enforce, or seek relief in connection
with, this confidentiality obligation.
10.11 Guaranty. CES shall deliver to the Company, prior to or concurrently
with the execution and delivery of this Agreement, a guaranty (the "Guaranty")
in a form reasonably acceptable to the Company whereby Guarantor guarantees, in
favor of the Company, the performance by CES of its obligations under this
Agreement.
31
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
CALPINE ENERGY SERVICES, L.P. CALPINE GENERATING COMPANY, LLC
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxx
--------------------------------- --------------------------------
Name: XXXXXX XXXXXXX Name: XXXXX XXXX
Title: Authorized Signatory Title: Vice President
BAYTOWN ENERGY CENTER, X.X. XXXXXXXX ENERGY, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CHANNEL ENERGY CENTER, L.P. COLUMBIA ENERGY, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
CORPUS CHRISTICOGENERATION, L.P. DECATUR ENERGY CENTER, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
DELTA ENERGY CENTER, LLC FREESTONE POWER GENERATION, L.P.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxx
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
32
GOLDENDALE ENERGY CENTER, LLC LOS MEDANOS ENERGY CENTER, LLC
By: /s/ XXXXX XXXX By: /s/ XXXXX XXXX
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
XXXXXX ENERGY CENTER, LLC CALPINE XXXXX POWER, L.P.
By: /s/ XXXXX XXXX By: /s/ XXXXX XXXX
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
PASTORIA ENERGY FACILITY L.L.C. ZION ENERGY, LLC
By: /s/ XXXXX XXXX By: /s/ XXXXX XXXX
--------------------------------- --------------------------------
Name: XXXXX XXXX Name: XXXXX XXXX
Title: Vice President Title: Vice President
33
EXHIBIT A
DESCRIPTION OF THE FACILITIES
BAYTOWN ENERGY CENTER FACILITY
Address: 0000 XX 0000
Xxxxxxx, Xxxxx 00000
(000)000-0000
The Baytown facility is a nominal 742 MW natural gas-fired combined cycle
generating facility with an estimated peak capacity of 830 MW. The facility
consists of three Siemens combustion turbines and three Nooter Xxxxxxx heat
recovery steam generators which supply steam to a single Toshiba steam turbine.
The facility supplies power and steam to Bayer Corporation.
XXXXXXXX ENERGY CENTER FACILITY
Address: 0000 XX Xxxxxxx 00
Xxxxx Xxxxxxx, Xxxxxxxxx 00000
(000) 000-0000
The Carville facility is a nominal 455 MW natural gas-fired combined cycle
generating facility with an approximate peak capacity of 531 MW. The facility
consists of two General Electric combustion turbines and two Alstom heat
recovery steam generators which supply steam to a single Alstom steam turbine.
The facility supplies steam to Cos-Mar Corporation.
CHANNEL ENERGY CENTER FACILITY
Address: 00000 Xxxxxxxx Xxxxxx, XXX Xxxx 0
Xxxxxxxx, Xxxxx 00000
(000) 000-0000
The Channel facility is a nominal 527 MW natural gas-fired combined cycle
generating facility. The facility consists of two Siemens combustion turbines
and two Nooter Xxxxxxx heat recovery steam generators which supply steam to a
single Toshiba steam turbine. The facility supplies power and steam to
Lyondell-CITGO Refining, L.P.
COLUMBIA ENERGY CENTER FACILITY
Address: 000 Xxxxxxx Xxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
(000) 000-0000
The Columbia facility is a nominal 464 MW natural gas-fired combined cycle
generating facility with an approximate peak capacity of 641 MW. The facility
consists of two General Electric combustion turbines and two Nooter Xxxxxxx heat
recovery steam generators which
A-l
supply steam to a single Toshiba steam turbine. The facility supplies steam to
Xxxxxxx Chemical Company.
CORPUS CHRISTI ENERGY CENTER FACILITY
Address: 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
(000)000-0000
The Corpus Christi facility is a nominal 414 MW natural gas-fired combined
cycle generating facility with an approximate peak capacity of 537 MW. The
facility consists of two General Electric combustion turbines and two Alstom
heat recovery steam generators which supply steam to a single Alstom steam
turbine. The facility supplies power and steam to CITGO Refining and Chemicals,
L.P., Elementis Chrominum, L.P. and Flint Hills Resources, L.P.
DECATUR ENERGY CENTER FACILITY
Address: 0000 Xxxxxxx 00 Xxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
The Decatur facility is a nominal 692 MW natural gas-fired combined cycle
generating facility with an approximate peak capacity of 838 MW. The facility
consists of three Siemens combustion turbines and three Nooter Xxxxxxx heat
recovery steam generators which supply steam to a single Toshiba steam turbine.
The facility supplies steam to Solutia Inc.
DELTA ENERGY CENTER FACILITY
Address: 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
The Delta facility is a nominal 799 MW natural gas-fired combined cycle
generating facility with an estimated peak capacity of 882 MW. The facility
consists of three Siemens combustion turbines and three Deltak heat recovery
steam generators which supply steam to a single Toshiba steam turbine.
FREESTONE ENERGY CENTER FACILITY
Address: 0000 XX 000
Xxxxxxxxx, Xxxxx 00000
(000) 000-0000
The Freestone facility is a nominal 1,022 MW natural gas-fired combined
cycle generating facility with an approximate peak capacity of 1,022 MW. The
facility consists of four General Electric combustion turbines and four Nooter
Xxxxxxx heat recovery steam generators which supply steam to two General
Electric steam turbines.
A-2
GOLDENDALE ENERGY CENTER FACILITY
Address: 000 Xxxxxxxxxx Xxxx Xxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
The Goldendale facility will be a nominal 237 MW natural gas-fired
combined cycle power generating facility with an estimated peak capacity of 271
MW. The facility will consist of a single General Electric combustion turbine
and a Hitachi heat recoversy steam generator which supplies steam to a single
Hitachi steam turbine.
LOS MEDANOS ENERGY CENTER FACILITY
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
(000)000-0000
The Los Medanos facility is a nominal 497 MW natural gas-fired combined
cycle generating facility with an estimated peak capacity of 566 MW. The
facility consists of two General Electric combustion turbines and two Nooter
Xxxxxxx heat recovery steam generators which supply steam to a single General
Electric steam turbine. The facility supplies power and steam to USS-POSCO
Industries and may supply power to Dow Chemical Company.
XXXXXX ENERGY CENTER FACILITY
Address: 0000 Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
The Xxxxxx facility is a nominal 722 MW natural gas-fired combined cycle
generating facility with an approximate peak capacity of 852 MW. The facility
consists of three Siemens combustion turbines and three Nooter Xxxxxxx heat
recovery steam generators which supply steam to two Toshiba steam turbines. The
facility supplies steam to BP Amoco Chemical Company.
XXXXX ENERGY CENTER FACILITY
Address: 00000 Xxxx 000xx Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
(000)000-0000
The Xxxxx facility is a nominal 994 MW natural gas-fired combined cycle
generating facility with an approximate peak capacity of 994 MW. The facility
consists of four General Electric combustion turbines and four Nooter Xxxxxxx
heat recovery steam generators which supply steam to two Toshiba steam turbines.
PASTORIA ENERGY CENTER FACILITY
Address: 00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxxxx 00000
A-3
(000)000-0000
The Pastoria facility will be a nominal 759 MW natural gas-fired combined
cycle generating facility with an estimated peak capacity of 769 MW. The
facility is being constructed in two phases. Phase 1 consists of a single
General Electric combustion turbine and a Nooter Xxxxxxx heat recovery steam
generator which supplies a single General Electric steam turbine. Phase 2
consists of two General Electric combustion turbines and two Nooter Xxxxxxx heat
recovery steam generators which supply a single General Electric steam turbine.
ZION ENERGY CENTER FACILITY
Address: 0000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx 00000
(000)000-0000
The Zion facility is a nominal 513 MW simple cycle peaking facility with
an estimated peak capacity of 513 MW. The facility consists of three General
Electric combustion turbines The facility generally runs on natural gas, but is
capable of running on oil.
X-0
XXXXXXXX 0
XXXXXXX ENERGY CENTER FACILITY
0000 XX 0000
XXXXXXX, XX 00000
LOCATION: Texas
NERC REGION: ERCOT
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date] ($/MWh):
Central: On-Peak: ERCOT, Houston: Index" for the
applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "ERCOT
Houston".
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
East-Houston-Katy: Houston Ship Channel" as in Gas Daily
+ $0.04.
TOTAL CAPACITY: 714 MW
HOST CAPACITY: 215 MW
MINIMUM GENERATION LEVEL: 388 MW
APPLICABLE HEAT RATE: 7.00 MMBtu/MWh
HOST HEAT RATE: 7.2 MMBtu/MWh
APPLICABLE ENTHALPY: 1066 Btu/pound of steam
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $0.34
January 2005 through December 2005: 0.35
January 2006 through December 2006: 0.36
January 2007 through December 2007: 0.37
January 2008 through December 2008: 0.36
January 2009 through December 2009: 0.37
January 2010 through December 2010: 0.38
January 2011 through December 2011: 0.39
S-1
January 2012 through December 2012: 0.40
January 2013 through December 2013: 0.41
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: Texas Eastern Transmission Corporation, Meter No. 73301
Xxxxxx Xxxxxx Texas Xxxxxxxx, X. X., Xxxxx Xx. 00000 Kinder
Xxxxxx Xxxxx Pipeline, L. P., Meter No. 350782 Xxxx Xxxxx
Xxxxxxxxxx, X. X., Xxxxx Xx. 000000
POWER DELIVERY POINT: 345kV Xxxxxxxx Substation
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: All amounts, if any, paid by Baytown
Energy Center to Calpine Texas
Pipeline, L.P. for gas transportation
from the Duke/Texas Eastern, Tejas,
Xxxxxx Xxxxxx and El Paso gas
pipelines
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Services Agreement dated as of January 12, 2000 between
Bayer Corporation and Baytown Energy Center, L.P. (as successor
to Calpine Construction Finance Company, L.P.), as amended from
time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-2
SCHEDULE 2
XXXXXXXX ENERGY CENTER FACILITY
0000 XX XXXXXXX 00
XX. XXXXXXX, XX 00000
LOCATION: Louisiana
NERC REGION: SERC
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery ($/MWh):
Central: On-Peak: Entergy, into: Index" during the
applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "Entergy".
APPLICABLE FUEL PRICE: The daily prices for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
Louisiana-Onshore South: Xxxxx Hub" as in Gas Daily
+ $0.08.
TOTAL CAPACITY: 438 MW
HOST CAPACITY: 0 MW
MINIMUM GENERATION LEVEL: 120 MW
APPLICABLE HEAT RATE: 7.08 MMBtu/MWh
HOST HEAT RATE: 7.3 MMBtu/MWh
APPLICABLE ENTHALPY: 1,100 Btu/pound of steam
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $0.38
January 2005 through December 2005: 0.39
January 2006 through December 2006: 0.40
January 2007 through December 2007: 0.41
January 2008 through December 2008: 0.44
January 2009 through December 2009: 0.45
January 2010 through December 2010: 0.46
January 2011 through December 2011: 0.48
January 2012 through December 2012: 0.49
January 2013 through December 2013: 0.50
S-3
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: March
SECOND PLANNED OUTAGE MONTH: October
PLANNED OUTAGE PERCENTAGE:
March: 63.23%
October: 66.39%
GAS DELIVERY POINT: Bridgeline Holdings, L.P., Meter No. 847791
Acadian Gas Pipeline System, Meter No. A3211
POWER DELIVERY POINT: 230kV Carville Substation
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Services Agreement dated as of December 28, 1999 between
Xxxxxxxx Energy LLC and Cos-Mar, Incorporated, as amended from
time to time
DIRECT POWER PURCHASE AGREEMENTS: Agreement for Purchased Power from Qualified
Cogeneration Facility dated August 31, 2002
between Xxxxxxxx Energy LLC and Entergy Gulf
States, Inc., as amended from time to time
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-4
SCHEDULE 3
CHANNEL ENERGY CENTER FACILITY
00000 XXXXXXXX XXXXXX, XXX XXXX 0
XXXXXXX, XX 00000
LOCATION: Texas
NERC REGION: ERCOT
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date] ($/MWh):
Central: On-Peak: ERCOT, Houston: Index" for the
applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "ERCOT
Houston".
APPLICABLE FUEL PRICE: The daily prices for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
East-Houston-Katy: Houston Ship Channel" as in Gas Daily
+ $0.04.
TOTAL CAPACITY: 507 MW
HOST CAPACITY: 123 MW
MINIMUM GENERATION LEVEL: 268 MW
APPLICABLE HEAT RATE: 6.95 MMBtu/MWh
HOST HEAT RATE: 7.0 MMBtu/MWh
APPLICABLE ENTHALPY: 1327 Btu/pound of steam
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $1.10
January 2005 through December 2005: 1.13
January 2006 through December 2006: 1.16
January 2007 through December 2007: 1.19
January 2008 through December 2008: 1.21
January 2009 through December 2009: 1.24
January 2010 through December 2010: 1.28
January 2011 through December 2011: 1.31
S-5
January 2012 through December 2012: 1.34
January 2013 through December 2013: 1.37
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: Xxxxxx Xxxxxx Texas Xxxxxxxx, X. X., Xxxxx Xx. 00000
Kinder Xxxxxx Xxxxx Xxxxxxxx, X. X., Xxxxx Xx. 00000
POWER DELIVERY POINT: 138kV LCR Substation and 345kV LCR Substation
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Services Agreement dated as of January 25, 2000
Lyondell-Citgo Refining LP and Channel Energy Center, LP (as
successor to Calpine Construction Finance Company, L.P.), as
amended from time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: LCR may provide refinery gas to the Facility under the Host
Agreement listed above
S-6
SCHEDULE 4
COLUMBIA ENERGY CENTER
000 XXXXXXX XXX
XXXXXX, XX 00000
LOCATION: South Carolina
NERC REGION: SERC
APPLICABLE POWER PRICE: 0.5 * (The daily price as published in Megawatt Daily
under the heading "Day-ahead markets for delivery
($/MWh): East: On-Peak: Southern, into:[Index]" during
the applicable day) + 0.5 * [(The hourly-weighted
average of the hourly prices as published by PJM
Interconnection, LLC ("PJM") or its successor on PJM's
official web site currently located at
xxxx://xxx.xxx.xxx/xxxxxxx/xxxxxx-xxxxxx/ real-time.
html, or any successor thereto, under the headings "PJM
- Daily Real-Time Locational MarginalPricing Files;
Western Hub" for on peak electricity delivered during
the applicable day)]
FALLBACK POWER REFERENCE PRICE: 0.5 * (The daily weighted average index for
on-peak power in the 10X Day Ahead Power Price
Report as published by IntercontinentalExchange
on its official web site currently located at
xxx.xxxxxx.xxx under the heading "Cinergy")
+ 0.5 * (The daily weighted average index for
on-peak power in the 10X Day Ahead Power Price
Report as published by IntercontinentalExchange
on its official web site currently located at
xxx.xxxxxx.xxx under the heading "PJM-Weste")
APPLICABLE FUEL PRICE: The daily price for each applicable day being the price
published under the heading "Daily Price Survey
($/MMBtu): Midpoint: Mississippi-Alabama: Transco, zone
4" in Gas Daily + $0.11
TOTAL CAPACITY: 446 MW
HOST CAPACITY: 0 MW
MINIMUM GENERATION LEVEL: N/A
APPLICABLE HEAT RATE: 6.76 MMBtu/MWh
HOST HEAT RATE: N/A
APPLICABLE ENTHALPY: 1437 Btu/pound of steam
S-7
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $ 1.14
January 2005 through December 2005: 1.16
January 2006 through December 2006: 1.19
January 2007 through December 2007: 1.22
January 2008 through December 2008: 1.04
January 2009 through December 2009: 1.06
January 2010 through December 2010: 1.09
January 2011 through December 2011: 1.12
January 2012 through December 2012: 1.15
January 2013 through December 2013: 1.17
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: Connection between South Carolina Pipeline and the Columbia
Energy Center
POWER DELIVERY POINT: Columbia Energy 115kV Edenwood Tap & Columbia Energy 230kV
Switching Station
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Services Agreement dated as of August 15, 2000 between
Columbia Energy LLC and Xxxxxxx Chemical Company, as amended
from time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: In connection with the calculation of Actual Availability of
the Columbia Facility, On Peak Hours will be considered to
be On Peak Hours for a Facility not selling into PJM except
to the extent that CES designates in advanced that some or
all of the Daily Scheduled Energy Production for the Day in
question is to be sold or delivered into PJM, in which case
the On Peak Hours with respect to such designated portion of
the Daily Scheduled
S-8
Energy Production will be the On Peak Hours for a Facility delivering into PJM.
S-9
SCHEDULE 5
CORPUS CHRISTI ENERGY CENTER FACILITY
0000 XXXXX XXXXXXXX XXXXX
XXXXXX XXXXXXX, XX 00000
LOCATION: Texas
NERC REGION: ERCOT
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date] ($/MWh):
On-Peak: ERCOT, South: Index" during the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by Intercontinental Exchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "ERCOT-South".
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
South-Corpus Christi: Texas Eastern, STX" in Gas Daily
+ $0.06.
TOTAL CAPACITY: 398 MW
HOST CAPACITY: 47 MW
MINIMUM GENERATION LEVEL: 115 MW
APPLICABLE HEAT RATE: 6.78 MMBtu/MWh
HOST HEAT RATE: 5.9 MMBtu/MWh
APPLICABLE ENTHALPY: 1093 Btu/pound of steam
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $0.71
January 2005 through December 2005: 0.73
January 2006 through December 2006: 0.75
January 2007 through December 2007: 0.77
January 2008 through December 2008: 0.77
January 2009 through December 2009: 0.79
January 2010 through December 2010: 0.81
January 2011 through December 2011: 0.83
January 2012 through December 2012: 0.85
S-10
January 2013 through December 2013: 0.87
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: March
SECOND PLANNED OUTAGE MONTH: November
PLANNED OUTAGE PERCENTAGE:
March: 66.39%
November: 62.07%
GAS DELIVERY POINT: Crosstex CCNG Transmission, L. P., Meter No. 00-0000-00
POWER DELIVERY POINT: 138kV CITGO North Oak Park Switching Station
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Services Agreement dated March 23,1999 between Corpus
Christi Cogeneration, L.P. (as successor to Nueces Bay Energy
LLC) and Citgo Refining and Chemicals, L.P., as amended from
time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM AGREEMENTS:(1) Restated Energy Service Agreement - Steam dated July 26,
2002 between Corpus Christi Cogeneration LP and Elementis
Chromium L.P., as amended from time to time
(2) Energy Services Agreement dated as of July 24, 2003 between
Corpus Christi Cogeneration LP and Flint Hills Resources, LP,
as amended from time to time
SPECIAL PROVISIONS: Citgo may provide refinery gas to the Facility under the
Host Agreement listed above
S-11
SCHEDULE 6
DECATUR ENERGY CENTER FACILITY
0000 XXXXXXX 00 XXXX
XXXXXXX, XX 00000
LOCATION: Alabama
NERC REGION: SERC
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery ($/MWh): East:
On-Peak: Southern, into: Index" for the applicable day
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "Cinergy")
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
Louisiana-Onshore South: Tennessee, La., 500 Leg" in Gas
Daily+ $0.25
TOTAL CAPACITY: Effective Date - April 30, 2007: October - April: 783 MW
May-September: 666 MW
May 1, 2007 - December 31, 2013 : 666 MW
HOST CAPACITY: Effective Date - April 30, 2007: October - April: 0 MW
May- September: 140 MW
May l, 2007 - December 31, 2013: 140 MW
MINIMUM GENERATION LEVEL: Effective Date - April 30, 2007: October - April: N/A
May- September:238 MW
May 1, 2007 - December 31, 2013 : 411 MW
APPLICABLE HEAT RATE: Effective Date - April 30, 2007: October - April: 7.22
MMB tu/MWh
May - September: 6.80
MMB tu/MWh
May 1, 2007 - December 31, 2013: 6.70MMBtu/MWh
HOST HEAT RATE: Effective Date - April 30, 2007: October - April: N/A
May through September: 7.0
MMBtu/MWh
May 1, 2007 - December 31, 2013: 6.4 MMBtu/MWh
APPLICABLE ENTHALPY: 1238 Btu/pound of steam
VARIABLE O&M AMOUNT:
S-12
Effective Date through December 2004: $0.83
January 2005 through December 2005: 0.85
January 2006 through December 2006: 0.87
January 2007 through December 2007: 0.89
January 2008 through December 2008: 0.94
January 2009 through December 2009: 0.96
January 2010 through December 2010: 0.99
January 2011 through December 2011: 1.01
January 2012 through December 2012: 1.04
January 2013 through December 2013: 1.06
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: March
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
March: 31.61%
GAS DELIVERY POINT: Enbridge Pipelines (Bamagas Intrastate) L.L.C., Meter No.
30165
POWER DELIVERY POINT: DEC 161kV Switching Station
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: All amounts, if any, paid by Decatur
Energy Center to Enbridge Pipelines
(Bamagas Intrastate) LLC
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Second Amended and Restated Lease, Steam Sales and Shared
Services Agreement dated as of January 31, 2001 between Decatur
Energy Center, LLC and Solutia Inc., as amended from time to
time, as amended from time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-13
SCHEDULE 7
DELTA ENERGY CENTER FACILITY
0000 XXXXX XXXX
XXXXXXXXX, XX 00000
LOCATION: California
NERC REGION: WECC
APPLICABLE POWER PRICE: The daily prices published by Dow Xxxxx Tolerate in the
section "Workstation 3 Pages 38422" under the heading
"Dow Xxxxx Energy Service, Dow Xxxxx XX-15 Electricity
Price Index: [date] Firm: On Peak" for electricity
delivered during the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by on its official web currently
located at xxx.xxxxxx.xxx under heading "NP-15".
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
Citygates: PG&E Citygate" in Gas Daily + $0.04.
TOTAL CAPACITY: 768 MW
APPLICABLE HEAT RATE: 7.15 MMBtu/MWh
VARIABLE O&M AMOUNT:
Commencement through December 2004: $0.26
January 2005 through December 2005: 0.27
January 2006 through December 2006: 0.28
January 2007 through December 2007: 0.28
January 2008 through December 2008: 0.30
January 2009 through December 2009: 0.31
January 2010 through December 2010: 0.31
January 2011 through December 2011: 0.32
January 2012 through December 2012: 0.33
January 2013 through December 2013: 0.34
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
S-14
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: CPN Pipeline Meter No. 32600
PG&E City Gate interconnection at Delta Energy Facility
POWER DELIVERY POINT: 230kV Pittsburgh Power Plant Switchyard
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: To the extent the Facility Owner pays
local distribution charges to PG&E,
the amount of such local distribution
charges (currently $0.31/MMBtu)
FIXED PRICE POWER CONTRACTS (ON PEAK):
Effective Date -December 31, 2009: 250 MW
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: Must-Run Service Agreement dated February 10,
2003 between Delta Energy Center, LLC and
California Independent System Operator
Corporation, as amended from time to time
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-15
SCHEDULE 8
FREESTONE ENERGY CENTER FACILITY
0000 XX 000
XXXXXXXXX, XX 00000
LOCATION: Texas
NERC REGION: ERCOT
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date]
($/MWh):Central: On-Peak; ERCOT, North: Index" for
the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report
as published by IntercontinentalExchange on
its official web site currently located at
xxx.xxxxxx.xxx under the heading "ERCOT-North".
APPLICABLE FUEL PRICE: The daily price for applicable day published under the
heading "Daily Price Survey ($/MMBtu): Midpoint:
East-Houston-Katy: Houston Ship Channel" in Gas Daily.
TOTAL CAPACITY: 983 MW
APPLICABLE HEAT RATE: 6.95 MMBtu/MWh
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $ 0.24
January 2005 through December 2005: 0.24
January 2006 through December 2006: 0.25
January 2007 through December 2007: 0.25
January 2008 through December 2008: 0.25
January 2009 through December 2009: 0.26
January 2010 through December 2010: 0.27
January 2011 through December 2011: 0.27
January 2012 through December 2012: 0.28
January 2013 through December 2013: 0.29
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: January
SECOND PLANNED OUTAGE MONTH: N/A
S-16
PLANNED OUTAGE PERCENTAGE:
January: 31.61%
GAS DELIVERY POINT: Pinnacle Gas Treating, Inc., PIN00043
Enbridge Pipeline (East Texas), L. P., Meter Xx. 00000
Xxxx Xxxxx Xxxxx, L.P., Meter No. 321715
TXU Fuel Company, Meter No. T0000588
POWER DELIVERY POINT: 345kV Freestone Power Facility Switchyard
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: All amounts, if any, paid by
Freestone Energy Center to Calpine
Texas Pipeline, L.P. for gas
transportation from the gas pipelines
owned by (1) EPGT Texas Pipeline.
(2) Pinnacle Gas Treating, Inc.,
(3) TXU Fuel Company and (4) Xxxx
Midstream Services Company from the
Gas Delivery Points to the Facility
burner tip
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-17
SCHEDULE 9
GOLDENDALE ENERGY CENTER FACILITY
000 XXXXXXXXXX XXXX XXX
XXXXXXXXXX, XX 00000
LOCATION: Washington
NERC REGION: WECC
APPLICABLE POWER PRICE: The daily prices published by Dow Xxxxx Telerate in the
section "Workstation 3 Pages 38422" under the heading
"Dow Xxxxx Energy Service, Dow Xxxxx Mid-C Electricity
Price Index: [date] Firm: On Peak" for electricity
delivered during the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price
Report as published by
IntercontinentalExchange on its official
web site currently located at
xxx.xxxxxx.xxx under the heading "Mid C",
APPLICABLE FUEL PRICE: The daily price for applicable day published under the
heading "Daily Price Survey ($/MMBtu): Midpoint:
Canadian Gas: Northwest, Can. Bdr. (Sumas)" in Gas
Daily.+ $0.32
TOTAL CAPACITY: 228 MW
APPLICABLE HEAT RATE: 7.34 MMBtu/MWh
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $ 0.49
January 2005 through December 2005: 0.50
January 2006 through December 2006: 0.51
January 2007 through December 2007: 0.53
January 2008 through December 2008: 0.51
January 2009 through December 2009: 0.52
January 2010 through December 2010: 0.53
January 2011 through December 2011: 0.55
January 2012 through December 2012: 0.56
January 2013 through December 2013: 0.57
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
S-18
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: Northwestern Pipeline Corp, Meter No. 618
POWER DELIVERY POINT: 230kV Harvalum Substation
FACILITY TRANSMISSION CHARGE ADJUSTMENT: Transmission charges payable to
Bonneville Power Administration or
Klickitat Public Utility District
between the Power Delivery Point and
the mid-Columbia hub, including
variable and fixed components
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-19
SCHEDULE 10
LOS MEDANOS ENERGY CENTER FACILITY
000 XXXX XXXXX XXXXXX
XXXXXXXXX, XX 00000
LOCATION: California
NERC REGION: WECC
APPLICABLE POWER PRICE: The daily prices published by Dow Xxxxx Telerate in the
section "Workstation 3 Pages 38422" under the heading
"Dow Xxxxx Energy Service, Dow Xxxxx XX-15 Electricity
Price Index: [date] Firm: On Peak" for electricity
delivered during the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "NP-15".
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
Citygates: PG&E Citygate" in Gas Daily + $0.04.
TOTAL CAPACITY: 478 MW
HOST CAPACITY: 32
MINIMUM GENERATION LEVEL: 174 MW
APPLICABLE HEAT RATE: 6.90 MMBtu/MWh
HOST HEAT RATE: 7.5 MMBtu/MWH
APPLICABLE ENTHALPY: 1200 Btu/pound of steam
VARIABLE O&M AMOUNT:
Commencement through December 2004: $ 0.50
January 2005 through December 2005: 0.52
January 2006 through December 2006: 0.53
January 2007 through December 2007: 0.54
January 2008 through December 2008: 0.52
January 2009 through December 2009: 0.53
January 2010 through December 2010: 0.55
January 2011 through December 2011: 0.56
January 2012 through December 2012: 0.57
S-20
January 2013 through December 2013: 0.59
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: November
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
November: 29.40%
GAS DELIVERY POINT: CPN Pipeline Meter No. 32500
PG&E City Gate interconnection at LMEC Facility
POWER DELIVERY POINT: 115kV LMEC Switchyard
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: To the extent the Facility Owner pays
local distribution charges to PG&E,
the amount of such local
distribution charges (currently
$0.31/MMBtu)
FIXED PRICE POWER CONTRACTS (ON PEAK): Effective Date - December 31, 2009:
250 MW
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Purchase and Sale Agreement dated as of December 21, 1998
between Los Medanos Energy Center, LLC (as successor to
Pittsburg District Energy Facility, LLC) and USS-Posco
Industries, as amended by that certain Modification Agreement
dated June 30, 1999 and that certain Second Amendment to Energy
Purchase and Sale Agreement dated as of April 30, 2001, as
further amended from time to time.
DIRECT POWER PURCHASE AGREEMENTS: (1) Amended and Restated Must-Run Service
Agreement originally dated September 27, 1999
and restated June 19, 2003 between Los Medanos
Energy Center, LLC (as successor to Pittsburg
District Energy Facility, LLC) and California
Independent System Operator Corporation, as
amended from time to time,
(2) Binding Letter of Intent dated
December 10, 2002 among The Dow Chemical
Company, Los Medanos Energy Center, LLC,
Calpine Pittsburg, LLC and Delta Energy
Center, LLC
STEAM SALE AGREEMENTS: N/A
S-21
SPECIAL PROVISIONS: N/A
S-22
SCHEDULE 11
XXXXXX ENERGY CENTER FACILITY
0000 XXX XXX XXXX
XXXXXX XXXXXX, XX 00000
LOCATION: Alabama
NERC REGION: SERC
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery ($/MWh): East:
On-Peak: Southern, into: Index" for the applicable day
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report as
published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "Cinergy")
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey($/MMBtu): Midpoint:
Louisiana-Onshore South: Tennessee, La., 500 Leg" in Gas
Daily + $0.25
TOTAL CAPACITY: Effective Date - December 31, 2005: September - May: 740 MW
June - August: 724 MW
January 1, 2006 - December 31, 2013: 695 MW
HOST CAPACITY: Effective Date - December 31, 2005: September - May: N/A
June-August: 125 MW
January 1, 2006-December 31, 2013: 119 MW
MINIMUM GENERATION LEVEL: Effective Date - December 31, 2005: September -
May:N/A
June - August: 154 MW
January 1, 2006 - December 31, 2013: 241 MW
APPLICABLE HEAT RATE: Effective Date - December 31, 2005: September - May: 7.15
MMBtu/MWh
June - August: 7.19
MMBtu/MWh
January 1, 2006 - December 31, 2013: 6.76 MMBtu/MWh
HOST HEAT RATE: Effective Date - December 31, 2005: September - May: N/A
June - August: 7.8 MMBtu/MWh
January 1, 2006 - December 31, 2013: 7.6 MMBtu/MWh
APPLICABLE ENTHALPY: 1157 Btu/pound of steam
S-23
VARIABLE O&M AMOUNT:
Effective Date through December 2004: $ 0.49
January 2005 through December 2005: 0.51
January 2006 through December 2006: 0.52
January 2007 through December 2007: 0.53
January 2008 through December 2008: 0.59
January 2009 through December 2009: 0.60
January 2010 through December 2010: 0.61
January 2011 through December 2011: 0.63
January 2012 through December 2012: 0.65
January 2013 through December 2013: 0.66
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: April
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
April: 29.40%
GAS DELIVERY POINT: Enbridge Pipelines (Bamagas Intrastate) L.L.C., Meter No.
30155
POWER DELIVERY POINT: MEC 161kV Switching Station
FACILITY TRANSPORTATION CHARGE ADJUSTMENT: All amounts, if any, paid by Xxxxxx
Energy Center to Enbridge Pipelines
(Bamagas Intrastate) LLC
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: Energy Sales Agreement dated as of June 1, 2000 between BP Amoco
Chemical Company and Decatur Energy Center, LLC (as successor
to Calpine Construction Finance Company, L.P.), as amended from
time to time
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-24
SCHEDULE 12
XXXXX ENERGY CENTER FACILITY
00000 XXXX 000XX XXXXXX XXXXX
XXXXXX XXXXX, XX 00000
LOCATION: Oklahoma
NERC REGION: SPP
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date] ($/MWh):
Central: On-Peak: SPP, North: Index" during the
applicable day
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report
as published by IntercontinentalExchange on its
official web site currently located at
xxx.xxxxxx.xxx under the heading "Entergy".
APPLICABLE FUEL PRICE: The daily prices for each such calendar day published
under the heading "Daily Price Survey ($/MMBtu):
Midpoint: Louisiana-Onshore South: Xxxxx Hub" in Gas
Daily + $0.30.
TOTAL CAPACITY: 957 MW
APPLICABLE HEAT RATE: 7.06 MMBtu/MWh
VARIABLE O&M AMOUNT:
Commencement through December 2004: $ 0.48
January 2005 through December 2005: 0.49
January 2006 through December 2006: 0.51
January 2007 through December 2007: 0.52
January 2008 through December 2008: 0.55
January 2009 through December 2009: 0.57
January 2010 through December 2010: 0.58
January 2011 through December 2011: 0.59
January 2012 through December 2012: 0.61
January 2013 through December 2013: 0.62
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: February
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
S-25
February: 24.50%
GAS DELIVERY POINT: Enogex, Inc, Meter No. 11526
POWER DELIVERY POINT: Xxxxx 345kV Substation
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-26
SCHEDULE 13
PASTORIA ENERGY CENTER FACILITY
00000 XXXXXXXXX XXXXXXX XXXXXXX XXXX
XXXXX,XX 00000
LOCATION: California
NERC REGION: WECC
APPLICABLE POWER PRICE: The daily prices published by Dow Xxxxx Telerate in the
section "Workstation 3 Pages 38422" under the heading
"Dow Xxxxx Energy Service, Dow Xxxxx XX-15 Electricity
Price Index: [date] Firm: On Peak" for electricity
delivered during the applicable day.
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report
as published by IntercontinentalExchange on
its official web site currently located at
xxx.xxxxxx.xxx under the heading "SP-15".
APPLICABLE FUEL PRICE: The daily price for each applicable day published under
the heading "Daily Price Survey ($/MMBtu): Midpoint:
Others: SoCal" in Gas Daily + $0.05
TOTAL CAPACITY: Effective Date - July 31, 2005: 244 MW August 1, 2005-
December 31, 2013: 730 MW
APPLICABLE HEAT RATE: 6.98 MMBtu/MWh
VARIABLE O&M AMOUNT:
Commencement through December 2004: $ 0.51
January 2005 through December 2005: 0.52
January 2006 through December 2006: 0.53
January 2007 through December 2007: 0.55
January 2008 through December 2008: 0.54
January 2009 through December 2009: 0.55
January 2010 through December 2010: 0.57
January 2011 through December 2011: 0.58
January 2012 through December 2012: 0.60
January 2013 through December 2013: 0.61
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: March
SECOND PLANNED OUTAGE MONTH: N/A
S-27
PLANNED OUTAGE PERCENTAGE:
March: 31.61%
GAS DELIVERY POINT: Kern River Gas Transmission Company, Meter No. 025034
POWER DELIVERY POINT: 230kV Pastoria Substation
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: N/A
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: N/A
S-28
SCHEDULE 14
ZION ENERGY CENTER FACILITY
0000 XXXXX XXXXXX
XXXX, XX 00000
LOCATION: Illinois
NERC REGION: MAIN
APPLICABLE POWER PRICE: The daily price as published in Megawatt Daily under the
heading "Day-ahead markets for delivery [date] ($/MWh):
Central: On-Peak; ComEd, into: Index" for the
applicable day
FALLBACK POWER REFERENCE PRICE: The daily weighted average index for on-peak
power in the 10X Day Ahead Power Price Report
as published by IntercontinentalExchange on
its official web site currently located at
xxx.xxxxxx.xxx under the heading "Comed"
APPLICABLE FUEL PRICE: The daily price for each such applicable day published
under the heading "Daily Price Survey ($/MMBtu):
Midpoint: Citygates: Chicago city-gates" in Gas
Daily + $0.02
TOTAL CAPACITY: 495 MW (165 MW/unit)
DIRECT PPA CAPACITY: 495 MW (165 MW/unit - see Direct Power Purchase Agreement
described below)
APPLICABLE HEAT RATE: 10.60 MMBtu/MWh
VARIABLE O&M AMOUNT:
Commencement through December 2004: $ 0.76
January 2005 through December 2005: 0.78
January 2006 through December 2006: 0.80
January 2007 through December 2007: 0.82
January 2008 through December 2008: 0.84
January 2009 through December 2009: 0.86
January 2010 through December 2010: 0.88
January 2011 through December 2011: 0.90
January 2012 through December 2012: 0.93
January 2013 through December 2013: 0.95
PLANNED OUTAGE MONTHS:
FIRST PLANNED OUTAGE MONTH: November
S-29
SECOND PLANNED OUTAGE MONTH: N/A
PLANNED OUTAGE PERCENTAGE:
November: 29.40%
GAS DELIVERY POINT: Natural Gas Pipeline Company of America, Meter No. 39927
POWER DELIVERY POINT: 345kV Transmission Switching Station 974 Zion Energy
Center
FIXED PRICE POWER CONTRACTS (ON PEAK): N/A
FIXED PRICE POWER CONTRACTS (OFF PEAK): N/A
HOST AGREEMENT: N/A
DIRECT POWER PURCHASE AGREEMENTS: Amended and Restated Fuel Conversion Services
Agreement dated April 28, 2003 between
Wisconsin Electric Power Company and Zion
Energy LLC, as amended from time to time
STEAM SALE AGREEMENTS: N/A
SPECIAL PROVISIONS: Wisconsin Electric Power Company takes all power and
provides all Gas for unit 1 of the Facility to June 1,
2008, for unit 2 of the Facility to June 1, 2012 and for
unit 3 of the Facility to June 1, 2013.
S-30
