Exhibit 10.1
CORPORATION
1 |
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION | 5 | |||
1.1. | Rules of Construction | 5 | ||
1.2. | Interpretation with Interconnection Agreement | 6 | ||
1.3. | Interpretation of Arrangements for Electric Supply to the Facility | 6 | ||
1.4. | Definitions | 7 | ||
ARTICLE 2. TERM AND TERM INATION | 19 | |||
ARTICLE 3. FACILITY DESCRIPTION | 19 | |||
3.1. | Summary Description | 19 | ||
3.2. | Location | 19 | ||
3.3. | General Design of the Facility | 19 | ||
ARTICLE 4. [INTENTIONALLY LEFT BLANK] | 20 | |||
ARTICLE 5. DELIVERY AND METERING | 20 | |||
5.1. | Delivery Arrangements | 20 | ||
5.2. | Availability Reporting | 20 | ||
5.3. | Electric Metering Devices | 20 | ||
5.4. | Adjustment for Inaccurate Meters | 21 | ||
ARTICLE 6. CONDITIONS PRECEDENT | 22 | |||
6.1. | Utility Regulatory Commissions Approval | 22 | ||
ARTICLE 7. SALE AND PURCHASE OF RENEWABLE ENERGY | 23 | |||
7.1. | Sale and Purchase | 23 | ||
7.2. | Reserved | 23 | ||
7.3. | Title and Risk of Loss | 23 | ||
7.4. | Agc and Company’s Right to Curtail Energy | 23 | ||
7.5. | Scheduling | 24 | ||
7.6. | Availability | 24 | ||
ARTICLE 8. PAYMENT CALCULATIONS | 25 | |||
8.1. | Energy Payment Rate | 25 | ||
8.2. | Curtailment Energy Payment Rate | 26 | ||
ARTICLE 9. BILLING AND PAYMENT | 28 | |||
9.1. | Billing Invoices | 28 | ||
9.2. | Metered Billing Data | 28 | ||
9.3. | [Intentionally Left Blank] | 28 | ||
9.4. | Payments | 28 | ||
9.5. | Billing Disputes | 29 | ||
9.6. | Netting | 29 | ||
ARTICLE 10. OPERATIONS AND MAINTENANCE | 30 | |||
10.1. | Maintenance Schedule | 30 | ||
10.2. | Facility Operation | 30 | ||
10.3. | Capacity Resource Capability Verification | 30 | ||
10.4. | Outage and Performance Reporting | 30 | ||
10.5. | Operating Committee and Operating Procedures | 30 | ||
10.6. | Access to Facility | 31 | ||
10.7. | Reliability Standards | 31 | ||
10.8. | Environmental Credits | 31 |
2 |
10.9. | Availability Reporting | 32 | ||
10.10. | Peak Production Availability | 32 | ||
ARTICLE 11. SECURITY FOR PERFORMANCE | 32 | |||
11.1. | Security Fund | 32 | ||
ARTICLE 12. DEFAULT AND REMEDIES | 35 | |||
12.1. | Events of Default of Seller | 35 | ||
12.2. | Unaffiliated Facility Investor’s Right to Cure Default of Seller | 37 | ||
12.3. | Events of Default of Company | 37 | ||
12.4. | Damages Prior to Termination | 38 | ||
12.5. | Termination | 38 | ||
12.6. | Limitation on Damages | 39 | ||
12.7. | [Intentionally Left Blank] | 39 | ||
12.8. | Specific Performance | 39 | ||
12.9. | Remedies Cumulative | 39 | ||
12.10. | Waiver and Exclusion of Other Damages | 39 | ||
12.11. | Payment of Amounts Due to Party | 40 | ||
12.12. | Duty to Mitigate | 40 | ||
ARTICLE 13. CONTRACT ADMINISTRATION AND NOTICES | 40 | |||
13.1. | Notices in Writing | 40 | ||
13.2. | Representative for Notices | 40 | ||
13.3. | Authority of Representatives | 40 | ||
13.4. | Operating Records | 41 | ||
13.5. | Operating Log | 41 | ||
13.6. | Provision of Real Time Data | 41 | ||
13.7. | Billing and Payment Records | 43 | ||
13.8. | Examination of Records | 43 | ||
13.9. | Exhibits | 43 | ||
13.10. | Dispute Resolution | 43 | ||
ARTICLE 14. FORCE MAJEURE | 44 | |||
14.1. | Definition of Force Majeure | 44 | ||
14.2. | Applicability of Force Majeure | 44 | ||
14.3. | Limitations on Effect of Force Majeure | 45 | ||
ARTICLE 15. REPRESENTATIONS, WARRANTIES AND COVENANTS | 45 | |||
15.1. | Seller’s Representations, Warranties and Covenants | 45 | ||
15.2. | Company’s Representations, Warranties and Covenants | 46 | ||
ARTICLE 16. INSURANCE | 47 | |||
16.1. | Evidence of Insurance | 47 | ||
16.2. | Term and Modification of Insurance | 48 | ||
ARTICLE 17. INDEMNITY | 48 | |||
17.1. | Indemnification | 48 | ||
17.2. | Notice of Claim | 49 | ||
17.3. | Settlement of Claim | 49 | ||
17.4. | Amounts Owed | 49 | ||
ARTICLE 18. LEGAL AND REGULATORY COMPLIANCE | 49 | |||
18.1. | Compliance With Laws | 49 | ||
18.2. | Officer Certificates | 49 |
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ARTICLE 19. ASSIGNMENT AND OTHER TRANSFER RESTRICTIONS | 50 | |||
19.1. | No Assignment Without Consent | 50 | ||
19.2. | Accommodation of Unaffiliated Facility Investor | 50 | ||
19.3. | Change of Control | 51 | ||
19.4. | Notice of Unaffiliated Facility Investor Action | 52 | ||
19.5. | Transfer Without Consent is Null and Void | 52 | ||
19.6. | Subcontracting | 52 | ||
19.7. | Option to Purchase and Right of First Offer | 52 | ||
ARTICLE 20. MISCELLANEOUS | 53 | |||
20.1. | Waiver | 53 | ||
20.2. | Taxes | 54 | ||
20.3. | Fines and Penalties | 54 | ||
20.4. | Rate Changes | 54 | ||
20.5. | Disclaimer of Third Party Beneficiary Rights | 55 | ||
20.6. | Relationship of the Parties | 55 | ||
20.7. | Equal Employment Opportunity Compliance Certification | 55 | ||
20.8. | Survival of Obligations | 55 | ||
20.9. | Severability | 55 | ||
20.10. | Complete Agreement; Amendments | 56 | ||
20.11. | Binding Effect | 56 | ||
20.12. | Headings | 56 | ||
20.13. | Counterparts | 56 | ||
20.14. | Governing Law | 56 | ||
20.15. | Press Releases and Media Contact | 56 | ||
20.16. | Forward Contract | 56 | ||
20.17. | Confidentiality | 57 | ||
20.18. | Cooperation | 58 | ||
SCHEDULE A (to PPA) RENEWABLE ENERGY PAYMENT RATE | 60 | |||
EXHIBIT A (to PPA) | 61 | |||
[INTENTIONALLY LEFT BLANK] | 61 | |||
EXHIBIT B (to PPA) FACILITY DESCRIPTION AND SITE MAPS | 62 | |||
EXHIBIT C (to PPA) Notices and Contact Information | 67 | |||
EXHIBIT D (to PPA) INSURANCE COVERAGE | 68 | |||
EXHIBIT E (to PPA) | 69 | |||
[INTENTIONALLY LEFT BLANK] | 69 | |||
EXHIBIT F (to PPA) FORM OF LETTER OF CREDIT | 70 | |||
EXHIBIT G (to PPA) AGC Protocols | 76 | |||
EXHIBIT H (to PPA) FORM OF GUARANTY | 79 | |||
EXHIBIT I (to PPA) DATA COLLECTION | 84 | |||
EXHIBIT J (to PPA) GUARANTEED AVAILABILITY | 85 | |||
EXHIBIT K (to PPA) OPTION AGREEMENT | 86 |
4 |
1.1. | Rules of Construction. |
5 |
1.2. | Interpretation with Interconnection Agreement. |
1.3. | Interpretation of Arrangements for Electric Supply to the Facility. |
6 |
1.4. | Definitions. |
7 |
8 |
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15 |
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3.1. | Summary Description |
3.2. | Location |
3.3. | General Design of the Facility |
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5.1. | Delivery Arrangements |
5.2. | Availability Reporting |
5.3. | Electric Metering Devices. |
20 |
5.4. | Adjustment for Inaccurate Meters |
21 |
6.1. | Utility Regulatory Commissions Approval |
22 |
7.1. | Sale and Purchase |
7.2. | Reserved |
7.3. | Title and Risk of Loss |
7.4. | AGC and Company’s Right to Curtail Energy |
23 |
7.5. | Scheduling |
7.6. | Availability |
24 |
8.1. | Energy Payment Rate. |
25 |
8.2. | Curtailment Energy Payment Rate. |
26 |
27 |
9.1. | Billing Invoices |
9.2. | Metered Billing Data |
9.3. | [Intentionally Left Blank] |
9.4. | Payments |
28 |
9.5. | Billing Disputes |
9.6. | Netting |
29 |
10.1. | Maintenance Schedule |
10.2. | Facility Operation |
10.3. | Capacity Resource Capability Verification |
10.4. | Outage and Performance Reporting |
10.5. | Operating Committee and Operating Procedures |
30 |
10.6. | Access to Facility |
10.7. | Reliability Standards |
10.8. | Environmental Credits |
31 |
10.9. | Availability Reporting |
10.10. | Peak Production Availability |
11.1. | Security Fund |
32 |
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12.1. | Events of Default of Seller |
35 |
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12.2. | Unaffiliated Facility Investor’s Right to Cure Default of Seller |
12.3. | Events of Default of Company |
37 |
12.4. | Damages Prior to Termination |
12.5. | Termination |
38 |
12.6. | Limitation on Damages |
12.7. | [Intentionally Left Blank]. |
12.8. | Specific Performance |
12.9. | Remedies Cumulative |
12.10. | Waiver and Exclusion of Other Damages |
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12.11. | Payment of Amounts Due to Party |
12.12. | Duty to Mitigate |
13.1. | Notices in Writing |
13.2. | Representative for Notices |
13.3. | Authority of Representatives |
40 |
13.4. | Operating Records |
13.5. | Operating Log |
13.6. | Provision of Real Time Data |
41 |
42 |
13.7. | Billing and Payment Records |
13.8. | Examination of Records |
13.9. | Exhibits |
13.10. | Dispute Resolution |
43 |
14.1. | Definition of Force Majeure |
14.2. | Applicability of Force Majeure |
44 |
14.3. | Limitations on Effect of Force Majeure |
15.1. | Seller’s Representations, Warranties and Covenants |
45 |
15.2. | Company’s Representations, Warranties and Covenants |
46 |
16.1. | Evidence of Insurance |
47 |
16.2. | Term and Modification of Insurance |
17.1. | Indemnification |
48 |
17.2. | Notice of Claim |
17.3. | Settlement of Claim |
17.4. | Amounts Owed |
18.1. | Compliance With Laws |
18.2. | Officer Certificates |
49 |
19.1. | No Assignment Without Consent |
19.2. | Accommodation of Unaffiliated Facility Investor |
50 |
19.3. | Change of Control |
51 |
19.4. | Notice of Unaffiliated Facility Investor Action |
19.5. | Transfer Without Consent is Null and Void |
19.6. | Subcontracting |
19.7. | Option to Purchase and Right of First Offer |
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20.1. | Waiver |
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20.2. | Taxes |
20.3. | Fines and Penalties |
20.4. | Rate Changes |
54 |
20.5. | Disclaimer of Third Party Beneficiary Rights |
20.6. | Relationship of the Parties |
20.7. | Equal Employment Opportunity Compliance Certification |
20.8. | Survival of Obligations |
20.9. | Severability |
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20.10. | Complete Agreement; Amendments |
20.11. | Binding Effect |
20.12. | Headings |
20.13. | Counterparts |
20.14. | Governing Law |
20.15. | Press Releases and Media Contact |
20.16. | Forward Contract |
56 |
20.17. | Confidentiality |
57 |
20.18. | Cooperation |
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Ashtabula Wind III, LLC | Otter Tail Power Company | ||||||||||
By: | /s/ | Michael O’Sullivan | By: | /s/ | Charles S. MacFarlane | ||||||
Name: | Michael O’Sullivan | Name: | Charles S. MacFarlane | ||||||||
Title: | Senior Vice President | Title: | President and CEO |
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Year | Rate (/MWh) |
1 | $[**] |
2 | $[**] |
3 | $[**] |
4 | $[**] |
5 | $[**] |
6 | $[**] |
7 | $[**] |
8 | $[**] |
9 | $[**] |
10 | $[**] |
11 | $[**] |
12 | $[**] |
13 | $[**] |
14 | $[**] |
15 | $[**] |
16 | $[**] |
17 | $[**] |
18 | $[**] |
19 | $[**] |
20 | $[**] |
21 | $[**] |
22 | $[**] |
23 | $[**] |
24 | $[**] |
25 | $[**] |
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● | Thirty Nine (39) General Electric 1.6 MW xle wind turbine generators on 80 meter towers with 82.5 meter rotor diameter blades |
● | A network of several miles of low profile, gravel field roads providing access to the Turbines |
● | Electrical transformation equipment located at the Facility |
● | An underground electric cable collection system to carry electricity to the substation |
● | An underground and aboveground fiber-optic data collection system |
● | Permanent meteorological (“MET”) tower |
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Company | Seller |
Notices: Jan Rudolf, Vice President, Energy Supply Otter Tail Power Company 215 S Cascade St Fergus Falls, MN 56537 Phone: 218-739-8440 Fax: 218-739-8629 Harvey McMahon Manager, Renewable Energy Development Otter Tail Power Company 215 S Cascade St Fergus Falls, MN 56537 Phone: (218) 739-8477 Fax: (218) 739-8442 | Notices: Rebecca Kujawa, Vice President, Midwest Region Business Management 700 Universe Blvd. Juno Beach, FL 33408 Phone: 561-304-5111 Fax: 561-625-7504 Nicole Daggs Director, Midwest Region Business Management 700 Universe Blvd. Juno Beach, FL 33408 Phone: 561-691-7887 Fax: 561-625-7504 |
Operating Committee Representative: Harvey McMahon Manager Renewable Energy Construction & Operations Otter Tail Power Company 215 S Cascade St Fergus Falls, MN 56537 Phone: (218) 739-8444 Fax: (218) 739-8442 Alternate: Randy Synstelien Manager, Renewable Energy Development Otter Tail Power Company 215 S Cascade St Fergus Falls, MN 56537 Phone: (218) 739-8477 Fax: (218) 739-8442 | Operating Committee Representative: Business Manager, Midwest Region Business Management 700 Universe Blvd. Juno Beach, FL 33408 Phone: 561-304-5806 Fax: 561-625-7504 Alternate: Nicole Daggs Director, Midwest Region Business Management 700 Universe Blvd. Juno Beach, FL 33408 Phone: 561-691-7887 Fax: 561-625-7504 |
Energy Dispatch Control Center Real-time Communications Contact Real-time Generation Dispatch desk (24 hour coverage) Phone: 218 739 8262 Fax: 218 739 8453 | Energy Dispatch Control Center Real-time Communications Contact Real-time Generation Dispatch desk (24 hour coverage) Phone: 561-694-3636 |
Power Services Real-Time desk Phone: 218-739-8863 Fax: 218-739-8596 | Power Services Real-Time desk Phone: 561-625-7100 |
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Type of Insurance | Minimum Limits of Coverage | ||||
Commercial General Liability (CGL) | $11,000,000 combined single limit. The required limit can be achieved using any combination of primary and excess insurance. If CGL insurance contains a general aggregate limit, it shall apply separately to the Facility. |
Business Automobile Liability | $1,000,000 combined single limit (each accident), including all Owned, Non-Owned, Hired and Leased Autos. |
Workers Compensation | Statutory Requirements. Seller may comply with these requirements through the use of a qualified self-insurance plan. |
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SINCERELY, | ||||
[ISSUING BANK] | ||||
By: | ||||
Title: | ||||
Address: |
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(1) | The undersigned is the ____________ of Beneficiary and is duly authorized by Beneficiary to execute and deliver this Certificate on behalf of Beneficiary. |
(2) | Beneficiary hereby makes demand against the Letter of Credit by Beneficiary’s presentation of the draft accompanying this Certificate, for payment of _______________________ U.S. dollars (US$__________), which amount, when aggregated together with any additional amount that has not been drawn under the Letter of Credit, is not in excess of the Stated Amount (as in effect of the date hereof). |
(3) | The conditions for a drawing by Beneficiary pursuant to [describe the draw conditions from the underlying agreement]. |
(4) | You are hereby directed to make payment of the requested drawing to: (insert wire instructions) |
(5) | Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Letter of Credit. |
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1. | AGC Electronic Communications between Company and Seller |
2. | Data Points to be sent from Seller to Company via AGC |
3. | Response times and limitations of Facility in regards to AGC |
4. | Process for communications between Company and Seller in cases when AGC system is not functioning |
Description | Units |
AGC Set‐Point | MW |
Digital signal (indicating Company’s directive to enable curtailment) | 1 = ON, 0 = OFF |
Description | Units |
AGC Set‐Point (echo) | MW |
Power demand | MW |
Actual power | MW |
Park Potential | MW |
Actual reactive power | Mvars |
Average Voltage | kV |
Number of turbines online and running | Integer |
AGC Status | Remote/Local |
Echo of Company’s digital signal indicating curtailment | 1 = ON, 0 = OFF |
Analog control mode value (indicating if curtailment is in effect and the reason therefor) | 0 – No curtailment active 1 – Curtailment active pursuant to Company direction 2 – Curtailment active pursuant to Seller direction 3 – Curtailment active pursuant to Interconnection Provider, MISO or Transmission Provider 4 – Curtailment active due to a Facility limit constraint |
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THIS GUARANTY (this “Guaranty”), dated as of _____, ____ (the “Effective Date”), is made by NEXTERA ENERGY CAPITAL HOLDINGS, INC. (“Guarantor”), in favor of[INSERT COUNTERPARTY’S NAME IN ALL CAPS] (“Counterparty”).
RECITALS:
A. | WHEREAS, Counterparty and Guarantor’s indirect, wholly-owned subsidiary[INSERT OBLIGOR’S NAME IN ALL CAPS](“Obligor”) have entered into, or concurrently herewith are entering into, that certain ____________________ Agreement [dated/made/entered into/effective] as of ______, 20__ (the “Agreement”); and |
B. | WHEREAS, Guarantor will directly or indirectly benefit from the Agreement between Obligor and Counterparty; |
NOW THEREFORE, in consideration of the foregoing premises and as an inducement for Counterparty’s execution, delivery and performance of the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees for the benefit of Counterparty as follows:
* * *
1. | GUARANTY. Subject to the terms and provisions hereof, Guarantor hereby absolutely and irrevocably guarantees the timely payment when due of all obligations owing by Obligor to Counterparty arising pursuant to the Agreement on or after the Effective Date (the “Obligations”). This Guaranty shall constitute a guarantee of payment and not of collection. The liability of Guarantor under this Guaranty shall be subject to the following limitations: | |
(a) | Notwithstanding anything herein or in the Agreement to the contrary, the maximum aggregate obligation and liability of Guarantor under this Guaranty, and the maximum recovery from Guarantor under this Guaranty, shall in no event exceed __________________[spell out the dollar amount] U.S. Dollars (U.S. $__________) (the “Maximum Recovery Amount”). |
(b) | The obligation and liability of Guarantor under this Guaranty is specifically limited to payments expressly required to be made under the Agreement, as well as costs of collection and enforcement of this Guaranty (including attorney’s fees) to the extent reasonably and actually incurred by the Counterparty (subject in all instances, to the limitations imposed by the Maximum Recovery Amount as specified inSection 1(a) above). In no event, however, shall Guarantor be liable for or obligated to pay any consequential, indirect, incidental, lost profit, special, exemplary, punitive, equitable or tort damages. | |
2. | DEMANDS AND PAYMENT. | |
(a) | If Obligor fails to pay any Obligation to Counterparty when such Obligation is due and owing under the Agreement (an “Overdue Obligation”), Counterparty may present a written demand to Guarantor calling for Guarantor’s payment of such Overdue Obligation pursuant to this Guaranty (a “Payment Demand”). |
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(b) | Guarantor’s obligation hereunder to pay any particular Overdue Obligation(s) to Counterparty is conditioned upon Guarantor’s receipt of a Payment Demand from Counterparty satisfying the following requirements: (i) suchPayment Demand must identify the specific Overdue Obligation(s) covered by such demand, the specific date(s) upon which such Overdue Obligation(s) became due and owing under the Agreement, and the specific provision(s) of the Agreement pursuant to which such Overdue Obligation(s) became due and owing; (ii) suchPayment Demandmust be delivered to Guarantor in accordance withSection 9 below; and (iii) the specificOverdueObligation(s) addressed by suchPayment Demandmust remain due and unpaid at the time of such delivery to Guarantor. |
(c) | After issuing a Payment Demand in accordance with the requirements specified inSection 2(b) above, Counterparty shall not be required to issue any further notices or make any further demands with respect to theOverdueObligation(s) specified in that Payment Demand, and Guarantor shall be required to make payment with respect to theOverdueObligation(s) specified in that Payment Demand within five (5) Business Days after Guarantor receives such demand. As used herein, the term “Business Day” shall mean all weekdays (i.e., Monday through Friday) other than any weekdays during which commercial banks or financial institutions are authorized to be closed to the public in the State of Florida or the State of New York. |
3. | REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that: | |
(a) | it is a corporation duly organized and validly existing under the laws of the State of Florida and has the corporate power and authority to execute, deliver and carry out the terms and provisions of the Guaranty; |
(b) | no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guaranty; and |
(c) | this Guaranty constitutes a valid and legally binding agreement of Guarantor, enforceable against Guarantor in accordance with the terms hereof, except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. | |
4. | RESERVATION OF CERTAIN DEFENSES. Without limiting Guarantor’s own defenses and rights hereunder, Guarantor reserves to itself all rights, setoffs, counterclaims and other defenses to which Obligor is or may be entitled arising from or out of the Agreement, except for defenses (if any) based upon the bankruptcy, insolvency, dissolution or liquidation of Obligor or any lack of power or authority of Obligor to enter into and/or perform the Agreement. | |
5. | AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall be amended, modified, altered, waived or supplemented except in a writing signed by Guarantor and Counterparty. | |
6. | WAIVERS AND CONSENTS.Subject to and in accordance with the terms and provisions of this Guaranty: | |
(a) | Except as required inSection 2 above, Guarantor hereby waives (i) notice of acceptance of this Guaranty; (ii) presentment and demand concerning the liabilities of Guarantor; and (iii) any right to require that any action or proceeding be brought against Obligor or any other person, or to |
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require that Counterparty seek enforcement of any performance against Obligor or any other person, prior to any action against Guarantor under the terms hereof. | ||
(b) | No delay by Counterparty in the exercise of (or failure by Counterparty to exercise) any rights hereunder shall operate as a waiver of such rights, a waiver of any other rights or a release of Guarantor from its obligations hereunder (with the understanding, however, that the foregoing shall not be deemed to constitute a waiver by Guarantor of any rights or defenses which Guarantor may at any time have pursuant to or in connection with any applicable statutes of limitation). |
(c) | Without notice to or the consent of Guarantor, and without impairing or releasing Guarantor’s obligations under this Guaranty, Counterparty may: (i) change the manner, place or terms for payment of all or any of the Obligations (including renewals, extensions or other alterations of the Obligations); (ii) release Obligor or any person (other than Guarantor) from liability for payment of all or any of the Obligations; or (iii) receive, substitute, surrender, exchange or release any collateral or other security for any or all of the Obligations. | |
7. | REINSTATEMENT. Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if all or any part of any payment made hereunder is at any time avoided or rescinded or must otherwise be restored or repaid by Counterparty as a result of the bankruptcy or insolvency of Obligor, all as though such payments had not been made. | |
8. | TERMINATION. This Guaranty and the Guarantor’s obligations hereunder will terminate automatically and immediately upon the earlier of (i) the termination or expiration of the Agreement, and (ii) 11:59:59 Eastern Prevailing Time [_______, 20__];provided,however, that no such termination shall affect Guarantor's liability with respect to any Obligation incurred prior to the time the termination is effective, which Obligation shall remain subject to this Guaranty. | |
9. | NOTICE. Any Payment Demand, notice, request, instruction, correspondence or other document to be given hereunder (herein collectively called “Notice”) by Counterparty to Guarantor, or by Guarantor to Counterparty, as applicable, shall be in writing and may be delivered either by (i) U.S. certified mail with postage prepaid and return receipt requested, or (ii) recognized nationwide courier service with delivery receipt requested, in either case to be delivered to the following address (or to such other U.S. address as may be specified via Notice provided by Guarantor or Counterparty, as applicable, to the other in accordance with the requirements of thisSection 9): |
TO GUARANTOR: * | TO COUNTERPARTY: |
NextEra Energy Capital Holdings, Inc. 700 Universe Blvd. Juno Beach, Florida 33408 Attn: Treasurer
| __________________ __________________ __________________ Attn: _________ |
[Tel: (561) 694-6204 -- for use in connection with courier deliveries] | [Tel: (___) ___-___ -- for use in connection with courier deliveries] |
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* | (NOTE: Copies of any Notices to Guarantor under this Guaranty shall also be sent via facsimile toATTN: Contracts Group, Legal, Fax No. (561) 625-7504 andATTN: Credit Department, Fax No. (561) 625-7642. However, such facsimile transmissions shall not be deemed effective for delivery purposes under this Guaranty.) |
Any Notice given in accordance with thisSection 9 will (i) if delivered during the recipient's normal business hours on any given Business Day, be deemed received by the designated recipient on such date, and (ii) if not delivered during the recipient's normal business hours on any given Business Day, be deemed received by the designated recipient at the start of the recipient's normal business hours on the next Business Day after such delivery.
10. MISCELLANEOUS.
(a) | This Guaranty shall in all respects be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws thereunder (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law). |
(b) | This Guaranty shall be binding upon Guarantor and its successors and permitted assigns and inure to the benefit of and be enforceable by Counterparty and its successors and permitted assigns. Guarantor may not assign this Guaranty in part or in whole without the prior written consent of Counterparty. Counterparty may not assign its rights or benefits under this Guaranty in part or in whole without the prior written consent of Guarantor. |
(c) | This Guaranty embodies the entire agreement and understanding between Guarantor and Counterparty and supersedes all prior agreements and understandings relating to the subject matter hereof. |
(d) | The headings in this Guaranty are for purposes of reference only, and shall not affect the meaning hereof. Words importing the singular number hereunder shall include the plural number and vice versa, and any pronouns used herein shall be deemed to cover all genders. The term "person" as used herein means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated association, or government (or any agency or political subdivision thereof). |
(e) | Wherever possible, any provision in this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any one jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. | |
(f) | Counterparty (by its acceptance of this Guaranty) and Guarantor each hereby irrevocably: (i) consents and submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or if that court does not have subject matter jurisdiction, to the exclusive jurisdiction of the Supreme Court of the State of New York, New York County (without prejudice to the right of any party to remove to the United States District Court for the Southern District of New York) for the purposes of any suit, action or other proceeding arising out of this Guaranty or the subject matter hereof or any of the transactions contemplated hereby brought by Counterparty, Guarantor or their respective successors or assigns; and (ii) waives (to the fullest extent permitted by applicable law) and agrees not to assert any claim that it is not |
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personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeeding is improper or that this Guaranty or the subject matter hereof may not be enforced in or by such court. | ||
(g) | COUNTERPARTY (BY ITS ACCEPTANCE OF THIS GUARANTY) AND GUARANTOR EACH HEREBY IRREVOCABLY, INTENTIONALLY AND VOLUNTARILY WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS GUARANTY OR THE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY. |
* * *
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on _____________, 20__, but it is effective as of the Effective Date.
NEXTERA ENERGY CAPITAL HOLDINGS, INC. | ||
By:_____________________________________ | ||
Name:___________________________________ | ||
Title:____________________________________ |
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By: | /s/ Charles S. MacFarlane | ||
Name: | Charles S. MacFarlane | ||
Title: | President and CEO |
By: | /s/ Michael O’Sullivan | ||
Name: | Michael O’Sullivan | ||
Title: | Senior Vice President |
● | Depiction of the Ashtabula III Project, the Ashtabula III Wind Farm Substation and Ashtabula III Transmission Line Assets and the Lead Line substations (Luverne and Maple River) |
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ARTICLE I | DEFINITIONS, INTERPRETATION | 1 | ||
1.01 | Definitions | 1 | ||
1.02 | Interpretation | 10 | ||
ARTICLE II | SALE OF ASSETS AND CLOSING | 11 | ||
2.01 | Purchase and Sale | 11 | ||
2.02 | Excluded Assets | 12 | ||
2.03 | Purchase Price | 12 | ||
2.04 | Liabilities | 13 | ||
2.05 | Closing | 14 | ||
2.06 | Further Assurances, Post-Closing Cooperation | 14 | ||
ARTICLE III | REPRESENTATIONS AND WARRANTIES OF SELLER | 15 | ||
3.01 | Existence; Ownership | 15 | ||
3.02 | Authority | 16 | ||
3.03 | No Conflicts | 16 | ||
3.04 | Governmental Approvals and Filings | 16 | ||
3.05 | Legal Proceedings | 17 | ||
3.06 | Bankruptcy; Solvency | 17 | ||
3.07 | Real Property | 18 | ||
3.08 | Contracts | 19 | ||
3.09 | Governmental Approvals and Consents | 19 | ||
3.10 | Environmental | 20 | ||
3.11 | Due Diligence | 20 | ||
3.12 | Legal Compliance | 20 | ||
3.13 | Brokers’ Fees | 20 | ||
3.14 | Interconnection | 20 | ||
3.15 | Material Misstatements or Omissions | 21 | ||
3.16 | Taxes | 21 | ||
3.17 | Wind Data | 21 | ||
3.18 | Seller’s Disclaimer | 22 | ||
ARTICLE IV | REPRESENTATIONS AND WARRANTIES OF PURCHASER | 22 | ||
4.01 | Existence | 22 |
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4.02 | Authority | 22 | ||
4.03 | No Conflicts | 23 | ||
4.04 | Governmental Approvals and Filings | 23 | ||
4.05 | Legal Proceedings | 23 | ||
4.06 | Intentionally Deleted | 23 | ||
4.07 | Bankruptcy | 23 | ||
4.08 | Material Misstatements or Omissions | 24 | ||
4.09 | Independent Investigation | 24 | ||
ARTICLE V | COVENANTS OF SELLER | 24 | ||
5.01 | Regulatory and Other Approvals | 24 | ||
5.02 | Investigation by Purchaser | 25 | ||
5.03 | Fulfillment of Conditions | 25 | ||
5.04 | Intentionally Deleted | 25 | ||
5.05 | Duty to Notify | 25 | ||
5.06 | Cooperation; Prohibited Actions | 25 | ||
5.07 | Interconnection | 26 | ||
5.08 | Correspondence Regarding Assets | 26 | ||
5.09 | Additional Documents, Consents | 26 | ||
5.10 | Notification of Status of Pre-Closing Actions | 27 | ||
5.11 | Exclusivity | 27 | ||
5.12 | Title Commitment | 27 | ||
5.13 | Notification of Completion or Failure of Conditions | 28 | ||
5.14 | Intentionally Deleted | 28 | ||
5.15 | Updated Certificates | 28 | ||
ARTICLE VI | COVENANTS OF PURCHASER | 28 | ||
6.01 | Regulatory and Other Approvals | 29 | ||
6.02 | Duty to Notify | 29 | ||
6.03 | Consents | 29 | ||
6.04 | Fulfillment of Conditions | 29 | ||
6.05 | Updated Certificates | 29 |
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ARTICLE VII | [RESERVED] | 30 | ||
ARTICLE VIII | CONDITIONS TO OBLIGATIONS OF PURCHASER | 30 | ||
8.01 | Representations and Warranties | 30 | ||
8.02 | Performance | 30 | ||
8.03 | Officer’s Certificates | 30 | ||
8.04 | Orders and Laws | 30 | ||
8.05 | Regulatory Consents and Approvals | 30 | ||
8.06 | Required Governmental Approvals | 31 | ||
8.07 | Changes in Governmental Regulation | 31 | ||
8.08 | Post Execution Actions | 31 | ||
8.09 | Additional Agreements | 31 | ||
8.10 | Title Policy | 31 | ||
8.11 | Material Adverse Effect | 31 | ||
8.12 | Other Matters | 32 | ||
8.13 | Tax Matters | 32 | ||
8.14 | Certificate of Site Compatibility | 32 | ||
8.15 | Required Documents | 32 | ||
8.16 | Estoppel Certificates | 32 | ||
8.17 | Failure of the Conditions | 33 | ||
ARTICLE IX | CONDITIONS TO OBLIGATIONS OF SELLER | 33 | ||
9.01 | Representations and Warranties | 33 | ||
9.02 | Performance | 33 | ||
9.03 | Officers’ Certificates | 33 | ||
9.04 | Orders and Laws | 33 | ||
9.05 | Regulatory Consents and Approvals | 33 | ||
9.06 | Certain OTP Development Costs | 34 | ||
9.07 | Additional Agreements | 34 | ||
9.08 | Other Matters | 34 | ||
9.09 | Failure of the Conditions | 34 | ||
ARTICLE X | TAX MATTERS | 34 | ||
10.01 | Certain Taxes | 34 |
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ARTICLE XI | SURVIVAL, NO OTHER REPRESENTATIONS | 35 | ||
11.01 | Survival of Representations, Warranties, Covenants and Agreements | 35 | ||
11.02 | No Other Representations | 36 | ||
ARTICLE XII | INDEMNIFICATION | 36 | ||
12.01 | Indemnification | 36 | ||
12.02 | Method of Asserting Claims | 37 | ||
ARTICLE XIII | TERMINATION AND DEFAULT | 39 | ||
13.01 | Termination | 39 | ||
13.02 | Effect of Termination | 40 | ||
13.03 | Default | 40 | ||
ARTICLE XIV | MISCELLANEOUS | 41 | ||
14.01 | Notices; Payments | 41 | ||
14.02 | Entire Agreement | 41 | ||
14.03 | Expenses | 42 | ||
14.04 | Public Announcements | 42 | ||
14.05 | Confidentiality | 42 | ||
14.06 | Waiver | 43 | ||
14.07 | Amendment | 43 | ||
14.08 | No Third Party Beneficiary | 44 | ||
14.09 | No Assignment, Binding Effect | 44 | ||
14.10 | Invalid Provisions | 44 | ||
14.11 | Governing Law | 44 | ||
14.12 | Venue and Consent to Jurisdiction | 44 | ||
14.13 | Attorney’s Fees | 45 | ||
14.14 | Limitation of Liability, Waiver of Consequential Damages | 45 | ||
14.15 | Waiver of Trial by Jury | 45 | ||
14.16 | Facsimile Signature, Counterparts | 46 |
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EXHIBITS | |
Exhibit A-1: | Form of Assignment and Assumption Agreement |
Exhibit A-2: | Form of Bill of Sale |
Exhibit B: | Site Plan Depicting Ashtabula III Project and Common Facilities Area |
Exhibit C: | Form of Seller’s President/Vice President’s Certificate |
Exhibit D: | Form of Seller’s Secretary’s Certificate |
Exhibit E: | Form of Purchaser’s President/Vice President’s Certificate |
Exhibit F: | Form of Purchaser’s Secretary’s Certificate |
Exhibit G-1: | Form of Wind Farm Easement Agreement |
Exhibit G-2: | Form of Collection Easement |
Exhibit G-3: | Form of Common Facilities Collection Easement |
Exhibit G-4: | Form of Transmission Easement |
Exhibit H: | Form of Common Facilities Agreement |
Exhibit I: | Form of O&M Agreement |
Exhibit J: | Reserved |
Exhibit K: | Form of Assignment and Assumption of LGIA Agreement |
SCHEDULES | |
Schedule 2.01: | Material Assets |
Schedule 3.03: | Seller Conflicts |
Schedule 3.04: | Required Governmental Approvals and Filings for Seller |
Schedule 3.05: | Legal Proceedings |
Schedule 3.07(a): | Real Property for Ashtabula III Project and Common Facilities; List of Land Contracts and Common Facilities Land Contracts |
Schedule 3.07(e): | Real Property: Rights of Possession |
Schedule 3.08: | Contracts |
Schedule 3.09(a)(i): | Governmental Approvals and Consents |
Schedule 3.09(a)(ii): | Required Governmental Approvals and Consents to be obtained by Seller |
Schedule 3.09(b): | Facts or circumstances that would hinder, delay or restrict the ability of Purchaser to obtain the Required Governmental Approvals |
Schedule 3.10: | Environmental: Reports and Claims |
Schedule 3.14: | Interconnection Documents |
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Schedule 3.16: | Liens for Taxes on Assets |
Schedule 3.17: | Wind Data |
Schedule 4.03: | Purchaser Conflicts |
Schedule 4.04: | Required Governmental Approvals and Filings for Purchaser |
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DEFINITIONS, INTERPRETATION
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SALE OF ASSETS AND CLOSING
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Otter Tail Power Company | ||||
By: | ||||
Name: | Charles S. MacFarlane | |||
Title: President and CEO | ||||
Ashtabula Wind III, LLC | ||||
By: | ||||
Name: | Michael O’Sullivan | |||
Title: | Vice President | |||
● | The portion thereof consisting of the Ashtabula Project communication pathway or collection system necessary for the operation of both the OTP III Project and the Ashtabula Project. |
● | The portion thereof consisting of interconnection and transmission facilities between the OTP III Project and the Ashtabula Substation and Ashtabula Power Line Assets. |
● | The portion thereof consisting of any applicable Ashtabula Project access roads and any other facilities necessary for the operations of the OTP III Project |