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Exhibit 10.7
AGREEMENT TO ASSIGN
TRANSMISSION RIGHTS AND OBLIGATIONS
By and Between
AES NY, L.L.C.
and
NEW YORK STATE ELECTRIC & GAS CORPORATION
Dated as of August 3, 1998
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TABLE OF CONTENTS
PAGE
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Section 1 - Effectiveness........................................................................ 2
Section 2 - Assignment of Rights and Obligations Under the Xxxxxxx Agreement..................... 3
Section 3 - Assignment of Rights and Obligations Under the RLWA.................................. 4
3.1 Effectiveness.................................................................. 4
3.2 Assignment Effective Before Implementation of the ISO Tariff................... 5
3.3 Assignment Effective After the ISO Tariff and the RLWA Letter Agreement Become
Effective ..................................................................... 6
3.4 Assignment Effective After the ISO Tariff Becomes Effective if the RLWA Letter
Agreement is Not Effective .................................................... 7
3.5 Term of Assignment............................................................. 7
Section 4 - Liability and Indemnification........................................................ 7
Section 5 - Disputes............................................................................ 8
Section 6 - Representations...................................................................... 9
6.1 Representations of NYSEG....................................................... 9
6.1.a Organization.......................................................... 9
6.1.b Authority Relative to this Agreement.................................. 9
6.1.c Regulatory Approval................................................... 9
6.1.d Compliance With Law................................................... 9
6.1.e Transmission Agreements............................................... 10
6.2 Representations of Generator................................................... 10
6.2.a Organization.......................................................... 10
6.2.b Authority Relative to this Agreement.................................. 10
6.2.c Regulatory Approval................................................... 10
6.2.d Compliance With Law................................................... 11
6.3 Representations of Both Parties................................................ 11
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Section 7 - Assignment or Other Change in Organizational Identity................................ 11
Section 8 - Headings............................................................................. 11
Section 9 - Waiver............................................................................... 12
Section 10 - Counterparts........................................................................ 12
Section 11 - Governing Law....................................................................... 12
Section 12 - Severability........................................................................ 12
Section 13 - Amendment........................................................................... 13
Section 14 - Entire Agreement.................................................................... 13
Section 15 - Further Assurances.................................................................. 13
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AGREEMENT TO ASSIGN TRANSMISSION RIGHTS AND OBLIGATIONS
This Agreement (hereinafter this "Agreement") is made and entered into
as of August 3, 1998 between NEW YORK STATE ELECTRIC & GAS CORPORATION
("NYSEG"), a New York corporation, and AES NY, L.L.C. ("Generator"), a Delaware
limited liability company (each a "Party," and collectively, the "Parties").
Factual Recitals
WHEREAS, NYSEG, NGE Generation, Inc. ("NGE Gen"), a wholly-owned
subsidiary of NYSEG, and Generator have entered into an Asset Purchase Agreement
by and between NGE Gen, NYSEG and Generator ("APA") dated as of August 3, 1998
for the purchase by Generator of certain of NGE's fossil-fired generating
facilities, including without limitation, the coal-fired generating plant
located in Somerset, New York which is known as the Xxxxxxx Generating Station
("Kintigh");
WHEREAS, in connection with the APA and NGE Gen's sale of Kintigh to
Generator, NYSEG desires to assign to Generator certain of its transmission
rights in accordance with the terms of this Agreement;
WHEREAS, NYSEG is a party to: (1) a December 12, 1983 agreement among
Niagara Mohawk Power Corporation ("NMPC"), the New York Power Authority
("NYPA"), NYSEG and Rochester Gas & Electric Corporation ("RG&E") concerning the
transmission of energy from Kintigh, which is designated RG&E FERC Rate Schedule
No. 33, as amended and supplemented ( the "Kintigh Agreement"), and (2) an
agreement between NYSEG and NMPC known as the "Remote Load Wheeling Agreement"
concerning the transmission of energy from Kintigh, Nine Mile Point 2 and other
sources to remote load areas and other delivery points, which is designated NMPC
FERC Rate Schedule No. 165, as amended and supplemented (the "RLWA," referred to
collectively with the Xxxxxxx Agreement as the "Transmission Agreements");
WHEREAS, the rights and obligations under the Transmission Agreements
may be modified by the proposal pending before FERC to restructure the New York
Power Pool, which contemplates the formation of the New York Independent System
Operator ("ISO") and the implementation of the ISO Tariff filed on December 19,
1997 in FERC Docket Nos. ER97-1523-000, OA97-470-000 and ER97-4234-000, as it
may be amended from time to time (the "ISO Tariff");
WHEREAS, FERC may approve, accept, modify, or reject said restructuring
proposal, and FERC's actions may affect the rights and obligations to be
assigned under the Transmission Agreements;
WHEREAS, the ISO Tariff provides for the conversion of certain existing
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wheeling agreements, including the Transmission Agreements, into "Modified
Wheeling Agreements" as defined in the ISO Tariff; and
WHEREAS, to facilitate the formation of the ISO and to adapt the
Transmission Agreements to the system contemplated by the ISO Tariff, the rights
and obligations under the Transmission Agreements have been or may be
conditionally modified by letter agreements that may be entered into by parties
to the Transmission Agreements (the proposed "Xxxxxxx Letter Agreement," and the
December 19, 1997 "RLWA Letter Agreement," collectively the "Letter Agreements")
and the effectiveness of the Letter Agreements is subject to the satisfaction of
conditions that are specified in the Letter Agreements.
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the Parties hereby agree as follows:
SECTION 1 - EFFECTIVENESS
1.1 This Agreement, subject to Section 1.2, shall become effective when
executed by both Parties, and the assignments under this Agreement shall be
effective on the date that NGE Gen transfers title to Xxxxxxx to Generator (the
"Closing Date"); provided that this Agreement shall terminate, without any
liability to either Party to the other Party, if the Closing Date does not occur
prior to the termination of the APA through no fault of Generator.
1.2 This Agreement is subject to any necessary regulatory acceptance or
approval without any material modification or condition. If any regulatory
agency having jurisdiction over this Agreement requires any modification to, or
imposes any condition of acceptance or approval of, this Agreement, and
1.2.a such modification or condition could reasonably be expected
to, in the aggregate, create, as to Generator, a Buyer
Material Adverse Effect, as defined in Section 5.3(a) of
the APA, or, as to NYSEG, a material adverse effect on the
business assets, operations, or conditions (financial or
otherwise) of NYSEG, then the Parties shall engage in good
faith negotiations for a period of thirty (30) days
following the issuance of that acceptance or approval in
order to agree to revisions to this Agreement to satisfy,
or otherwise address, such modification or condition. If
the Parties fail to agree mutually to such changes, then
the Parties may exercise their rights under Article 9 of
the APA, or
1.2.b such modification or condition could not reasonably be
expected to, in the aggregate, create, as to Generator,
a Buyer Material
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Adverse Effect, as defined in Section 5.3(a) of the APA,
or, as to NYSEG, a material adverse effect on the business
assets, operations, or conditions (financial or otherwise)
of NYSEG, then the Parties shall engage in good faith
negotiations for a period of thirty (30) days following the
issuance of that acceptance or approval in order to agree
to revisions to this Agreement to satisfy, or otherwise
address, such modification or condition. If the Parties
fail to agree mutually to such changes, then NYSEG may make
a unilateral filing to satisfy the modification or
condition, which filing shall attempt to satisfy the intent
of the Parties under this Agreement; provided, however,
that Generator shall have the right to protest the manner
in which NYSEG has attempted to satisfy such modification
or condition.
SECTION 2 - ASSIGNMENT OF RIGHTS AND
OBLIGATIONS UNDER THE KINTIGH AGREEMENT
2.1 NYSEG hereby assigns to Generator free and clear of all liens and
encumbrances all of NYSEG's right, title and interest in and under the Kintigh
Agreement (as the same may be modified by the proposed Kintigh Letter Agreement
and/or the implementation of the ISO Tariff), except that NYSEG hereby retains
those rights specified in Appendix I, paragraph F of the Kintigh Agreement.
2.2 Subject to Section 2.1, the right, title and interest assigned by
NYSEG herein includes, without limitation, the right to wheel one hundred (100)
MW of electricity from Kintigh to certain delivery points in accordance with the
terms of the Xxxxxxx Agreement, and/or the right, subject to applicable
regulatory approval, acceptance or modification of the ISO Tariff, to receive
point-to-point Transmission Congestion Contracts ("TCC") equivalent to one
hundred (100) MW from Kintigh to the NYSEG-East LBMP subzone in accordance with
the terms of the ISO Tariff.
2.3 NYSEG hereby delegates to Generator, and Generator hereby assumes
effective as of the Closing Date, all of NYSEG's liabilities, duties and
obligations under the Kintigh Agreement, as modified by the proposed Kintigh
Letter Agreement and/or the implementation of the ISO Tariff, except Generator
does not assume any liabilities, duties or obligations associated with the
furnishing of transmission service by Generator or the operation, maintenance or
control by Generator of facilities used or usable for such transmission. Such
duties and obligations delegated to and assumed by Generator include, without
limitation, the sole responsibility to pay for any and all charges due and to
schedule services in accordance with the applicable agreement(s) or tariff(s)
arising on and after the Closing Date.
2.4 Term of Assignment. If the Xxxxxxx Letter Agreement and/or
provisions of the ISO Tariff governing the term of the Modified Wheeling
Agreements (as described
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in the ISO Tariff) are effective, then the rights assigned and duties and
obligations assumed under this Agreement, shall be effective for the life of
Xxxxxxx in accordance with the terms of the ISO Tariff and/or the Xxxxxxx Letter
Agreement.
SECTION 3 - ASSIGNMENT OF RIGHTS
AND OBLIGATIONS UNDER THE RLWA
3.1 Effectiveness
The Closing Date may occur (i) before the ISO Tariff becomes effective,
(ii) after both the ISO Tariff and the RLWA Letter Agreement become effective,
or (iii) after the ISO Tariff becomes effective but before the RLWA Letter
Agreement becomes effective. Both the ISO Tariff and the RLWA Letter Agreement
may become effective after the Closing Date.
3.1.a If the Closing Date occurs before the ISO Tariff is in full
force and effect, then, as of the Closing Date, the
provisions of Section 3.2 shall apply.
3.1.b If the Closing Date occurs after the ISO Tariff and the
RLWA Letter Agreement each is in full force and effect,
then the provisions of Section 3.3 shall apply.
3.1.c If the Closing Date occurs after the ISO Tariff becomes
effective but the RLWA Letter Agreement is not effective,
then upon the Closing Date, Section 3.4 shall apply.
3.1.d If neither the ISO Tariff nor the RLWA Letter Agreement are
in full force and effect at the Closing Date, but then
after the Closing Date, the ISO Tariff becomes in full
force and effect, then upon the ISO Tariff effective date
the provisions of Section 3.4 shall apply.
3.1.e If neither the ISO Tariff nor the RLWA Letter Agreement are
in full force and effect at the Closing Date, but then
after the Closing Date, both the ISO Tariff and the RLWA
Letter Agreement become in full force and effect, then upon
the effectiveness of both, the provisions of Section 3.3
shall apply.
3.2 Assignment Effective Before Implementation of the ISO Tariff
3.2.a Subject to Section 3.1, NYSEG hereby assigns to Generator
free and clear of all liens and encumbrances its right,
title and interest in and under the RLWA (as the same may
be modified by the ISO
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Tariff and/or the RLWA Letter Agreement) in connection with
the right to take a specified amount of transmission
service from Kintigh to the delivery points in NYSEG's
Central Load Area specified in the RLWA or to alternate
delivery points, to the extent permitted by and, subject to
the terms of the RLWA ("Physical Rights").
3.2.b NYSEG hereby retains the right to wheel energy in
accordance with the terms of the RLWA from Kintigh, Nine
Mile Point 2, and other sources to NYSEG's Remote Load
Delivery Points specified in the RLWA in amounts up to the
lesser of NYSEG's Net Remote Loads, as specified in the
RLWA, or NMPC's service to NYSEG's Remote Loads under the
RLWA. This Agreement does not oblige Generator to sell
installed generating capacity and/or energy.
3.2.c NYSEG's Physical Rights under the RLWA are subject to
periodic updates based on the Dependable Maximum Net
Capability of Kintigh and Nine Mile Point 2 and NYSEG's Net
Remote Loads, as provided for under the RLWA. Accordingly,
the Physical Rights may change from time to time.
3.2.d NYSEG hereby delegates to Generator, and Generator hereby
assumes, NYSEG's liabilities, duties and obligations
arising on and after the Closing Date under the RLWA
associated with the Physical Rights, which include, but are
not limited to, the sole responsibility to pay for any and
all charges due that are associated with the assignment
described above; and the responsibility for all obligations
arising on and after the Closing Date under the RLWA
related to the Physical Rights but shall not include any
liabilities, duties, or obligations associated with the
furnishing of transmission service by Generator or the
operation, maintenance or control by Generator of
facilities used or usable for such transmission.
3.3 Assignment Effective After the ISO Tariff and the RLWA Letter
Agreement Become Effective
3.3.a Subject to Section 3.1, NYSEG hereby assigns to Generator
its right, title and interest in and under the RLWA (as may
be modified by the RLWA Letter Agreement and implementation
of the ISO Tariff) in connection with the right to 298 MW
of transmission service provided by NMPC from Kintigh to
NYSEG's Central Load Area ("the RLWA Assumed Rights Post
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ISO"). As described in the RLWA Letter Agreement, upon the
effectiveness of the ISO Tariff, these transmission rights
shall be converted to point-to-point Transmission
Congestion Contracts ("TCCs") equivalent to 298 MW from
Kintigh to the NYSEG Central LBMP subzone in accordance
with the terms of the ISO Tariff.
3.3.b NYSEG hereby retains the rights provided for under the RLWA
that are not being assigned under this Agreement as
described in Section 3.3.a, including without limitation:
(1) Rights to TCCs equivalent to a total of 464 MW: 277
MW from Kintigh to the NYSEG Mechanicville LBMP
subzone, and 187 MW from Nine Mile Point 2 to the
NYSEG Mechanicville LBMP subzone; and
(2) Rights to TCCs equivalent to a total of 464 MW from
the NYSEG Mechanicville LBMP subzone, (a) to the
Central Xxxxxx LBMP subzones, (b) to the NYSEG Xxxxxx
LBMP subzones, and (c) within the NYSEG Mechanicville
LBMP subzone, including the southern portion of NYSEG
North.
3.3.c NYSEG hereby delegates to Generator, and Generator hereby
assumes, NYSEG's liabilities, duties, and obligations
arising on and after the Closing Date under the RLWA
related to the RLWA Assumed Rights Post ISO (as modified by
the RLWA Letter Agreement and the implementation of the ISO
Tariff), including, but not limited to, the sole
responsibility to pay for all charges due that are
associated with the assignment described in Section 3.3.a,
and the responsibility for all obligations under the RLWA
and the ISO Tariff related to the RLWA Assumed Rights Post
ISO but shall not include any liabilities, duties or
obligations associated with the furnishing of transmission
service by Generator or the operation, maintenance or
control by Generator of facilities used or usable for such
transmission.
3.4 Assignment Effective After the ISO Tariff Becomes Effective if the
RLWA Letter Agreement is Not Effective
Subject to Section 3.1, NYSEG may negotiate or extend the RLWA Letter
Agreement to make it effective and to adapt it to any changes in the ISO Tariff
necessary to implement the ISO Tariff, in which case the modified RLWA letter
agreement shall
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govern the terms of the assignment of RLWA rights and obligations pursuant to
this Agreement provided, however, that the terms of said modified letter
agreement are no more onerous to Generator than the RLWA Letter Agreement had it
been in full force and effect except to the extent required by a FERC order. If
the RLWA Letter Agreement is not effective and there is no effective modified
letter agreement, then the assignment, delegation and assumption under this
Section 3.4 shall be based on the Physical Rights adapted to the ISO Tariff, as
implemented, including any conversion options available under the ISO Tariff, as
reasonably determined by NYSEG. NYSEG, in the exercise of reasonable discretion,
shall have the right to determine the rights it retains to serve NYSEG's native
load customers. Irrespective of whether there is a modified letter agreement,
NYSEG hereby delegates to Generator, and Generator hereby assumes, NYSEG's
liabilities, duties, and obligations arising on and after the Closing Date under
the RLWA and the modified RLWA letter agreement, if one exists related to the
rights assigned pursuant to this Section 3.4, which include, but are not limited
to, the sole responsibility to pay for any and all charges due that are
associated with the rights assigned to Generator described in this Section 3.4
but shall not include any liabilities, duties, or obligations associated with
the furnishing of transmission service by Generator or the operation,
maintenance or control by Generator of facilities used or usable for such
transmission.
3.5 Term of Assignment
If the RLWA Letter Agreement and/or provisions of the ISO Tariff
governing the term of the Modified Wheeling Agreements (as described in the ISO
Tariff) are effective, then the rights assigned and duties and obligations
assumed under this Agreement, shall be effective for the life of Xxxxxxx in
accordance with the terms of the ISO Tariff and/or the RLWA Letter Agreement.
SECTION 4 - LIABILITY AND INDEMNIFICATION
4.1 NYSEG's assignment of the rights and interest and delegation of the
liability duties and obligations under this Agreement shall relieve NYSEG, its
officers, directors, agents, employees, parent and affiliates of all obligations
and liability under the Kintigh Agreement and proposed Kintigh Letter Agreement
for periods on or after the Closing Date.
4.2 NYSEG's assignment of the rights and interests, and delegation of
the liability, duties and obligations under this Agreement shall relieve NYSEG,
its officers, directors, agents, employees, parent and affiliates of all
obligations and liability associated with the RLWA Physical Rights, the RLWA
Assumed Rights Post ISO, and/or the rights associated with the assignment
described in Section 3.4, and the RLWA Letter Agreement, and ISO Tariff, as
applicable to those rights and associated obligations and duties for periods on
or after the Closing Date.
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4.3 Generator shall be responsible for and shall indemnify, defend and
hold NYSEG, its officers, directors, agents, employees, parent and affiliates
harmless from and against any and all claims, demands, liabilities, costs,
losses, judgments, damages (including without limitation, reasonable attorney
and expert fees, and disbursements incurred by NYSEG in any actions or
proceedings between NYSEG and a third party, Generator, or any other party) to
the extent caused wholly or in part by Generator's acts or omissions under this
Agreement, the Transmission Agreements or Letter Agreements.
4.4 Subject to NYSEG's rights hereunder, including any actions NYSEG
takes under Section 3.4, NYSEG shall indemnify, defend and hold Generator, its
officers, directors, agents, employees, parent and affiliates harmless from and
against any and all claims, demands, liabilities, costs, losses, judgments,
damages (including without limitation, reasonable attorney and expert fees, and
disbursements incurred by Generator in any actions or proceedings between
Generator and a third party, NYSEG, or any other party) to the extent caused
wholly or in part by NYSEG's acts or omissions under the Transmission Agreements
occurring prior to the Closing Date.
4.5 This Section 4 shall continue in full force and effect regardless
of whether this Agreement has expired or been suspended, terminated or canceled.
SECTION 5 - DISPUTES
Any disagreement between NYSEG and Generator as to their rights and
obligations under this Agreement shall first be addressed by the Parties. In the
event that representatives of Generator and NYSEG are unable, in good faith, to
satisfactorily resolve their disagreement, they shall refer the matter to their
respective senior management. If, after using their good faith best efforts to
try to resolve the dispute, senior management cannot resolve the dispute in 30
days, either Party may exercise any right or remedy available pursuant to this
Agreement, at law, or in equity.
SECTION 6 - REPRESENTATIONS
6.1 Representations of NYSEG.
NYSEG represents and warrants to Generator as follows:
6.1.a Organization. NYSEG is a corporation duly organized,
validly existing and in good standing under the laws of the
State of New York, and NYSEG has the requisite corporate
power and authority to carry on its business as now being
conducted.
6.1.b Authority Relative to this Agreement
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NYSEG has the requisite power and authority to execute and
deliver this Agreement and, subject to the procurement of
applicable regulatory approvals, to carry out the actions
required of it by this Agreement. The execution and
delivery of this Agreement and the actions it contemplates
have been duly and validly authorized by all required
corporate action. This Agreement has been duly and validly
executed and delivered by NYSEG and constitutes a legal,
valid and binding agreement of NYSEG.
6.1.c Regulatory Approval
NYSEG has obtained, or will obtain, by the Closing Date any
and all approvals of, and given any notice to, any public
authority that are required for NYSEG to execute and
deliver this Agreement and shall cooperate with Generator
to the extent reasonably required by Generator to obtain
the regulatory approvals referred to in Section 6.2.c.
6.1.d Compliance With Law.
NYSEG represents and warrants that it is not in violation
of any applicable, law, statute, order, rule, regulation or
judgment promulgated or entered by any Federal, state, or
local governmental authority, which violation would affect
NYSEG's performance of its obligations under this
Agreement. NYSEG represents and warrants that it will
comply with all applicable laws, rules, regulations, codes,
and standards of all Federal, state, and local governmental
agencies having jurisdiction over NYSEG or this Agreement.
6.1.e Transmission Agreements
NYSEG represents and warrants that it has produced to
Generator true and accurate copies of the Transmission
Agreements and the Letter Agreements, including amendments
thereto that are material to this Agreement, but not the
ISO Tariff.
6.1.f NYSEG makes no representations or warranties, express or
implied, and shall have no liability in connection with the
rights and obligations (including transmission rights)
assigned by NYSEG to Generator pursuant to this Agreement.
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6.2 Representations of Generator
Generator represents and warrants to NYSEG as follows:
6.2.a Organization. Generator is a limited liability company duly
organized, validly existing and in good standing under the
laws of the State of Delaware, and Generator has the
requisite power and authority to carry on its business as
now being conducted.
6.2.b Authority Relative to this Agreement
Generator has the requisite power and authority to execute
and deliver this Agreement and, subject to the procurement
of applicable regulatory approvals, to carry out the
actions required of it by this Agreement. The execution and
delivery of this Agreement and the actions it contemplates
have been duly and validly authorized by all required
action. This Agreement has been duly and validly executed
and delivered by Generator and constitutes a legal, valid
and binding agreement of Generator.
6.2.c Regulatory Approval
Generator has obtained, or will obtain, by the Closing Date
any and all approvals of, and given any notice to, any
public authority that are required for Generator to execute
and deliver this Agreement and shall cooperate with, and
assist NYSEG to the extent reasonably required by NYSEG to
obtain the regulatory approvals referred to in this Section
6.1.c or otherwise necessary to effectuate this Agreement.
6.2.d Compliance With Law
Generator represents and warrants that it is not in
violation of any applicable, law, statute, order, rule,
regulation or judgment promulgated or entered by any
Federal, state, or local governmental authority, which
violation would affect Generator's performance of its
obligations under this Agreement. Generator represents and
warrants that it will comply with all applicable laws,
rules, regulations, codes, and standards of all Federal,
state, and local governmental agencies having jurisdiction
over Generator or this Agreement.
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6.3 Representations of Both Parties
The representations and warranties in Sections 6.1 and 6.2 shall
continue in full force and effect for the term of this Agreement.
SECTION 7 - ASSIGNMENT OR OTHER CHANGE IN ORGANIZATIONAL IDENTITY
This Agreement and all of the provisions hereof shall be binding upon,
and inure to the benefit of, the Parties and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests,
or obligations hereunder shall be assigned by or through any Party hereto,
whether by operation of law or otherwise, without the prior written consent of
the other Party, which consent shall not be unreasonably withheld. Any
assignment of this Agreement in violation of the foregoing shall be, at the
option of the non-assigning Party, void.
Nothing in this Agreement shall prevent a Party from utilizing the
services of any subcontractor as it deems appropriate to perform its obligations
under the Xxxxxxx Agreement, Xxxxxxx Letter Agreement, RLWA and/or the RLWA
Letter Agreement; provided that each Party shall require its subcontractors to
comply with all applicable terms and conditions of such agreements in providing
such services; and provided further, however, that the use of such
subcontractors shall not relieve the Party of liability for its obligations
under such agreement.
SECTION 8 - HEADINGS
The descriptive headings of the Sections of this Agreement are inserted
for convenience only and do not affect the meaning or interpretation of this
Agreement.
SECTION 9 - WAIVER
Except as otherwise provided in this Agreement, any failure of a Party
to comply with any obligation, covenant, agreement, or condition herein may be
waived by the Party entitled to the benefits thereof only by a written
instrument signed by the Party granting such waiver, but such waiver shall not
operate as a waiver of, or estoppel with respect to, any subsequent failure of
the first Party to comply with such obligation, covenant, agreement, or
condition.
SECTION 10 - COUNTERPARTS
This Agreement may be executed in two or more counterparts, all of
which will be considered one and the same Agreement and each of which will be
deemed an original.
SECTION 11 - GOVERNING LAW
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This Agreement and all rights, obligations, and performances of the
Parties hereunder, are subject to all applicable Federal and state laws, and to
all duly-promulgated orders and other duly-authorized action of governmental
authorities having jurisdiction.
When not in conflict with or preempted by Federal law, this Agreement
will be governed by and construed in accordance with the law of the State of New
York, without giving effect to the conflict of law principles thereof. Except
for those matters covered in this Agreement that are jurisdictional to the FERC
or the Appellate Courts to the extent of any appeals from FERC proceedings, any
action arising out of or concerning this Agreement must be brought in the courts
of the State of New York. Both Parties hereby consent to the exclusive
jurisdiction of the State of New York for the purpose of hearing and determining
any action not preempted by Federal law or not within the jurisdiction of the
FERC.
SECTION 12 - SEVERABILITY
In the event that any of the provisions of this Agreement are held to
be unenforceable or invalid by any court or regulatory authority of competent
jurisdiction, the Parties shall, to the extent possible, negotiate an equitable
adjustment to the provisions of this Agreement with a view toward effecting the
purpose of this Agreement, and the validity and enforceability of the remaining
provisions hereof shall not be affected thereby.
SECTION 13 - AMENDMENT
Subject to Sections 1.2.b and 3.4, this Agreement may be amended,
modified, or supplemented only by written agreement of both NYSEG and Generator.
The Parties agree that the terms and conditions contained in this Agreement are
not subject to change under Sections 205 or 206 of the Federal Power Act, as
either section may be amended or superseded, absent the mutual written agreement
of the Parties. The Parties agree that it is the intent of this Section 13 that,
to the maximum extent permitted by law, the terms and conditions in this
Agreement shall not be subject to change, regardless of whether such change is
sought (a) by the FERC sua sponte or on behalf of a Party or third party, (b) by
a Party, (c) by a third party, or (d) in any other manner.
SECTION 14 - ENTIRE AGREEMENT
This Agreement, together with the Transmission Agreements and Letter
Agreements, constitute the entire understanding between the Parties, and
supersede any and all previous understandings, oral or written, which pertain to
the subject matter contained herein or therein.
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SECTION 15 - FURTHER ASSURANCES
The Parties hereto agree to promptly execute and deliver, at the
expense of the Party requesting such action, any and all other and further
information, instruments and documents, which may be reasonably requested in
order to effectuate the transactions contemplated hereby.
Generator hereby agrees to cooperate with, and to assist, NYSEG in
acquiring any regulatory approval necessary to effectuate this Agreement, which
obligation will include, without limitation, filing of testimony, and
preparation of other documents and witnesses.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
NEW YORK STATE ELECTRIC
& GAS CORPORATION
By: ____________________________________
Xxxxxxx X. Xxxxxxxx
Executive Vice President
AES NY, L.L.C.
By: ____________________________________
Xxxxx Xxxxxxx
Manager
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