WHOLESALE STANDARD OFFER SERVICE AGREEMENT
Wholesale Standard Offer
Service Agreement
between
Blackstone Valley Electric Company
Eastern Edison Company
Newport Electric Corporation
and
NRG Energy Power Marketing Inc.
WHOLESALE STANDARD OFFER SERVICE AGREEMENT
This Wholesale Standard Offer Service Agreement ("Agreement"), is made
and entered into this 13th day of October, 1998, between Eastern Edison
Company, ("Eastern") a Massachusetts Corporation; Blackstone Valley Electric
Company ("Blackstone") , a Rhode Island Corporation; and Newport Electric
Corporation ("Newport"), a Rhode Island Corporation (referred to individually
as the "Company" or collectively as the "Companies"), on the one hand, and NRG
Energy Power Marketing Inc. ("Supplier"), on the other hand.
WHEREAS, the Supplier will purchase certain electric resources from
Montaup Electric Company, under an asset purchase agreement, (the "Asset
Purchase Agreement") dated as of October 13, 1998; and as condition of such
purchase and sale Supplier is required to assume a share of the Companies'
Standard Offer Service under this Agreement; and
WHEREAS, the Companies are required to provide firm all- requirements
service to any retail customer that is eligible for and is taking Standard
Offer Service in accordance with the Settlement Agreements; and
WHEREAS, this Agreement provides for the transfer, from the Companies
to Supplier, of the responsibility for providing firm all-requirements electric
service including capacity, energy, reserves, losses and other related services
necessary to serve a specified share of the Companies' aggregate load of retail
customers taking Standard Offer Service; and
WHEREAS, by entering into this Agreement, Supplier agrees to provide
and the Companies agree to receive and pay for electricity provided in
accordance with the terms and conditions of this Agreement and the applicable
Appendices, subject to any actions by any governmental bodies having
regulatory jurisdiction over services rendered hereunder.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements contained herein, Supplier and Companies agree to the terms and
conditions as set forth below:
ARTICLE 1. Definitions
Whenever used in this Agreement, the following terms shall have the
following meanings. In addition, except as otherwise expressly provided, where
terms used in this Agreement are defined in the Restated NEPOOL Agreement and
not otherwise de fined herein, such terms shall have the meanings given them in
the Restated NEPOOL Agreement.
"Affiliate" shall mean any other entity (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 entity. For purposes of
the foregoing the definition of "control" means the direct or indirect
ownership of more than seventy percent of the outstanding capital stock or
other equity interest having ordinary voting power.
"Agreement" shall mean this Agreement, including its Appendices as
amended from time to time.
"Commencement Date of Service" shall mean the later of the Closing Date
as defined in the Asset Purchase Agreement or the date on which required
regulatory approvals have been obtained.
"Contract Year" shall mean any calendar year, or in the case of 1998
part of a calendar year, after the Commencement Date of Service in which
Supplier is scheduled to provide electricity to the Companies for Standard
Offer Service.
"Companies' System" shall mean the electrical distribution systems of
Blackstone, Newport, Eastern, and/or the electrical transmission system of
Montaup Electric Company, as applicable.
"Delivered Energy" shall mean the kilowatthours delivered to the meters
of those retail customers taking Standard Offer Service.
"Delivery Point" shall be any location on the NEPOOL PTF system or
Companies' System.
"D.T.E." shall mean the Massachusetts Department of Telecommunications
and Energy or its successor state regulatory agency.
"Good Utility Practice" - Any of the applicable practices, methods and
acts (i) required by NEPOOL, the Northeast Power Coordinating Council, the
North American Electric Reliability Council, the ISO or the successor of any of
them; (ii) required by the policies and standards of the D.T.E. relating to
emergency operations; or (iii) otherwise engaged in or approved by a
significant portion of the electric utility industry during the relevant time
period; which in each case in the exercise of reasonable judgment in light of
the facts known or that should have been known at the time a decision was made,
could have been expected to accomplish the desired result in a manner
consistent with law, regulation, safety, environmental protection , economy,
and expedition. Good utility practice is intended to be acceptable practices,
methods or acts generally accepted in the region, and is not intended to be
limited to the optimum practices, methods or acts to the exclusion of all
others.
"ISO" shall mean ISO New England, Inc., the independent system operator
established in accordance with the Restated NEPOOL Agreement, or its successor.
"NEPOOL" shall mean the New England Power Pool or its successor.
"Party" or "Parties" shall mean the Supplier and the Companies and
their respective successors and assigns.
"Price" shall mean the annual amount per kilowatthour to be paid for
Delivered Energy set forth in Article 5 with no variation for time-of-use,
seasonality, or any other factor except as specified in Article 5. The
Companies or their Standard Offer customers shall not be obligated under this
Agreement for any payments for Delivered Energy in addition to the payments
made pursuant to Article 5.
"PTF" shall mean the facilities categorized as Pool Transmission
Facilities as defined in the Restated NEPOOL Agreement.
"P.U.C." shall mean the Rhode Island Public Utilities Commission or its
successor state regulatory agency.
"Restated NEPOOL Agreement" shall mean the New England Power Pool
Agreement dated December 31, 1996, as amended from time to time, as it is in
force at the time the action in question is taken.
"Settlement Agreements" shall mean any agreement or agreements that
have been approved by the D.T.E. in Docket No. 96-24, P.U.C. in Docket No.
2514, and the Federal Energy Regulatory Commission in Docket Nos. ER97-2800-
000 and ER97-3127-000, together with all conditions, terms and modifications
imposed by those agencies.
"Standard Offer Service" shall mean firm all-requirements electric
service (minute by minute, hour by hour, day by day) including, but not limited
to: energy, installed capability, operable capability, reserves, and associated
losses necessary to fulfill all NEPOOL and ISO obligations as they may change
from time to time associated with providing firm all requirements power to the
Companies' retail customers taking Standard Offer Service in accordance with
the Settlement Agreements.
"Standard Offer Wholesale Price" shall mean the stipulated stream of
prices, in cents per kilowatthour, that will be paid to suppliers of Standard
Offer Service for Delivered Energy, as shown in Appendix A.
"Terms and Conditions for Suppliers" shall mean the Blackstone Valley
Electric Company and Newport Electric Corporation Terms and Conditions for
Electric Power Suppliers dated May 29, 1997 as approved by the P.U.C., or the
Eastern Edison Comp any Terms and Conditions for Competitive Suppliers as
approved by the D.T.E., as applicable. These Terms and Conditions may be
revised, amended, supplemented, or supplanted in whole or in part from time to
time by the P.U.C. or D.T.E. or as otherwise provided by law.
ARTICLE 2. Term
The term of this Agreement shall begin on the Commencement Date of
Service and end at 12:00 midnight on December 31, 2009, unless terminated
sooner in accordance with Article 8 or 9.
ARTICLE 3. Supplier Responsibilities
Supplier shall, prior to the Commencement Date of Service, (i) be a
member, in good standing, of NEPOOL or its successor entity and maintain an
own-load dispatch or settlement account established in accordance with the
rules and criteria established by the ISO throughout the term of this
agreement, or (ii) have an agreement in place, for the full term of this
Agreement, with a NEPOOL member whereby the NEPOOL member agrees to include the
load to be served by Supplier under this Agreement in its own-load dispatch or
settlement account. In addition, Supplier must satisfy registration and
certification requirements, as the case may be, as a Non-Regulated Power
Producer in Massachusetts and Rhode Island.
Supplier is responsible for providing firm all-requirements service
necessary to serve its share, as shown in Appendix A attached hereto, of the
Companies aggregate load attributed to those customers taking Standard Offer
Service, including changes in Standard Offer Service customer demand for any
reason, including, but not limited to, seasonal factors, daily load
fluctuations, increased or decreased usage, demand side management activities,
extremes in weather, and other similar events.
As a provider of Standard Offer Service, Supplier is solely responsible
for satisfying all requirements and paying all costs incurred or to be incurred
to provide those generation-related services including, without limitation, all
costs or other requirements to furnish installed capability, operable
capability, energy, operating reserves, line losses, automatic generation
control, and other generation-related ancillary services associated with the
provision of its share of Standard Offer Service. Supplier is also solely
responsible for meeting any other requirements and paying any other cost now or
hereafter imposed by the ISO from time to time which are attributable to the
provision of Standard Offer Service, as they may arise. If the ISO or any
successor entity or NEPOOL allocates any expenses or uplift costs to the
Standard Offer Service provided by the Supplier (on a load or peak load basis
or otherwise), the expenses or costs so allocated will be borne by the Supplier
alone without recourse to the Companies.
Supplier shall be responsible for all transmission and distribution
losses associated with the delivery of electricity supplied under this
Agreement from the sources of its supply to the meters of those customers
taking Standard Offer Service ; provided, however, the Companies shall operate
their respective distribution systems in accordance with Good Utility Practice.
Supplier is responsible for any transmission wheeling costs to the
Delivery Point and any distribution wheeling costs associated with supply
sources not included in Companies' approved distribution rates. If the NEPOOL
control area experience s congestion, Supplier will be responsible for any
congestion costs incurred in delivering power to the Delivery Point(s). In the
event that NEPOOL adopts a transmission congestion management approach
assigning priority rights or other benefits to transmission customers serving
native load in the congested area, then, if so requested by Supplier, the
Companies shall assign to the Supplier at no cost the proportional share of
such priority rights or other benefits associated with Seller's proportional
share of Standard Offer Service under this Agreement at such time. Supplier
shall be responsible for all transmission and distribution costs associated
with the use of transmission systems outside of NEPOOL and any local point-to-
point transmission charges and distribution charges incurred to deliver the
power to the NEPOOL PTF or the Companies' systems.
In the event that either the D.T.E. or the P.U.C. issue orders
requiring the Companies to implement uniform disclosure requirements that
pertain to the reporting of information regarding power plant emissions, fuel
types, or labor information for the sources of electricity used to supply
Standard Offer Service, the Supplier will provide, subject to any
confidentiality obligations to which it is bound, such information in a timely
manner in an appropriate form to enable the Companies to comply with such
requirements.
ARTICLE 4. Estimation of Hourly Loads and Reporting to the ISO
To meet their NEPOOL obligations, the Companies shall report to the ISO
Supplier's share of hourly Standard Offer Service load, including distribution
and non-PTF losses. As required by NEPOOL, the Companies will make all
reasonable efforts t o report to the ISO Supplier's hourly share of Standard
Offer Service load by 12:00 noon of the second following business day. In
making such reports, the Companies will estimate Supplier's share of Standard
Offer Service load based on the methods a nd procedures approved in Terms and
Conditions for Suppliers on file with the P.U.C. and D.T.E., as amended from
time to time.
As described in the Terms and Conditions for Suppliers, to determine
Supplier's share of Delivered Energy, at the end of each month, the Companies
shall aggregate Supplier's hourly Standard Offer Service loads as reported to
the ISO for each hour of the month. The Supplier's aggregate share of Standard
Offer Service, excluding losses, will be deemed to be the quantity of Delivered
Energy that Supplier provided for that month and is the unadjusted kWh amount
to be used for Billing and Payment as described in Article 6.
The Companies will periodically reconcile the Delivered Energy to
actual meter readings of those customers taking Standard Offer Service, as
described in the Terms and Conditions for Suppliers. The Companies will apply
any resulting billing adjustment (debit or credit) to Supplier's account no
later than the last day of the third month following the billing month.
ARTICLE 5. Price
For each kilowatt-hour of Delivered Energy that Supplier provides in
each month, as determined in accordance with Article 4 and the Terms and
Conditions for Suppliers, the Companies shall pay Supplier the applicable Price
for the month in cents per kilowatt-hour calculated as follows:
Price = Standard Offer Wholesale Price
+ Fuel Adjustment Factor
Where: Standard Offer Wholesale Price in cents per kilowatt hour is as defined
in Article 1 and shown in Appendix A, and
Fuel Adjustment Factor is a cents per kilowatt-hour adder based
on the incremental revenues collected, if any, attributed to the operation of
the Retail Standard Offer Fuel Index ("Fuel Index") mechanism in the Companies'
Standard Offer Service tariffs. The revenues attributed to the Fuel Index will
be fully allocated to Suppliers in proportion to the Standard Offer Service
energy provided by each Supplier for the applicable billing month through the
Fuel Adjustment Factor. The Fuel Index, and the resulting Fuel Adjustment
Factor to be paid to Supplier, will be made subject to regulatory approval and
only to the extent that the Companies are allowed to collect such revenues from
their retail customers taking Standard Offer Service.
With the exception of any sales or gross receipt taxes which are
required by law to be paid by Standard Offer Service customers, the Price for
Delivered Energy as set forth herein includes all local, state, and federal
taxes, fees and levies applicable as of the date hereof. For any new taxes,
fees and levies, assessed with respect to the services provided by Supplier
after the Commencement Date of Service, the Companies will fully support and
pursue in good faith the recovery of any such new tax, fee and levy imposed on
Supplier from the Companies' Standard Offer Service customers. To the extent
such new taxes, fees and levies are allowed to be recoverable by the Companies
from their Standard Offer Service customers, the Companies shall reimburse
Supplier for such generation related taxes, fees and levies paid by Supplier.
ARTICLE 6. Billing and Payments
Until reconciled with actual metered data pursuant to the Terms and
Conditions of Suppliers, computations by the Companies of the charges for the
purposes of billings hereunder shall be based on estimates of Supplier's
Delivered Energy in accordance with Article 4 and the Price as determined in
accordance with Article 5. The Companies shall calculate the amount payable to
Supplier for a given month on or before the twentieth (20th) day of the
following month. The calculation shall be provided to Supplier and shall show
the total amount due and payable for the previous month. Each bill shall be
subject to adjustment for any errors in arithmetic computation, estimating,
reconciliation pursuant to the Terms and Conditions of Suppliers or otherwise
only to the extent allowed by the terms of this Article 6.
On or before the last day of each month, Companies shall pay Supplier
any amounts due and payable for the Delivered Energy provided by Supplier in
the previous month ("Due Date"). Any amount remaining unpaid after the Due Date
shall bear interest at the Prime Rate then in effect at the main office of
BankBoston, or such other lending institution as agreed to by Companies and
Supplier, from the Due Date to the date of payment by Companies.
If Supplier disputes the amount of any bill or payment, Supplier shall
itemize the basis for its dispute in a written notice to Companies within
fifteen days after the Due Date. Billing and payment disputes shall be handled
in accordance wit h the provisions of Article 13 of this Agreement. Upon final
resolution of the dispute, payment of any amount due to a Party under the terms
of the resolution shall be made within thirty (30) days of the date thereof,
together with interest from and after the original Due Date at the rate
specified in this Article.
The Companies may make retroactive adjustments to any billing for a
period of up to one year from the date of the original billing in order to
reflect differences in charges resulting from receipt of more accurate data.
Supplier may dispute such adjustment in writing within thirty (30) days of
receipt of the proposed adjustment.
Commencing in 2001, Supplier will pay to each of the Companies a rebate
(the "SO Rebate") for the prior Contract Year equal to the product of (i) the
Base SO Rebate for such Company set forth in Appendix B to this Agreement,
multiplied by (ii) a fraction, the numerator of which will be equal to such
Company's actual Delivered Energy for the Contact Year for which the SO Rebate
is being calculated, and the denominator of which will be equal to the Base
Delivered Energy for such Company set forth in Appendix B. The SO Rebate
payable to each Company for a Contract Year will be calculated on April 1 of
the following Contract Year and setoff in equal amounts against the amounts
payable by such Company for Delivered Energy over the next three billing
periods; provided that if the SO Rebate is not fully recovered by the
applicable Company during such billing periods, any remaining SO Rebate shall
be paid by Supplier within 30 days of the applicable Company's written demand
therefor.
ARTICLE 7. Security Provisions
As a condition of this Agreement and upon execution hereof, the
Supplier shall deliver to the Companies a financial surety to secure Supplier's
performance under this Agreement under one of the following forms, as Supplier
may from time to time determine:
(1) Except as otherwise provided in this Article, Supplier shall at
all times during the term of this Agreement (i) maintain an investment grade
rating on its senior debt securities, as determined by Standard & Poor's
Corporation, Moody's Investors Service, Inc. or another nationally recognized
rating service reasonably acceptable to the Companies and (ii) maintain total
assets of at least $500,000,000 times the percentage of the Companies'
Standard Offer Service which is initially satisfied by the Wholesale Standard
Offer Service under this Agreement (the foregoing items (i) and (ii) being
herein referred to as the "Creditworthiness Criteria"). If on the
Commencement Date of Service or at any time during the term of this Agreement
the Supplier shall fail to meet the Creditworthiness Criteria, then the
Supplier shall promptly deliver to the Companies an unconditional and
irrevocable guaranty of its obligations under this Agreement in form and
substance acceptable to the Companies and issued by an entity meeting the
Creditworthiness Criteria (a "Guaranty"). The amount of any such Guaranty
shall be the difference between the value of Supplier's total assets and its
requirements pursuant to part (ii) of the Creditworthiness Criteria;
provided, however, that if Supplier meets or exceeds its obligations pursuant
to part (ii) of the Creditworthiness Criteria no Guaranty will be required of
it. Supplier or the issuer of the Guaranty, as applicable, shall certify to
the Companies no less frequently than the end of every calendar quarter that
it meets the Creditworthiness Criteria (which certification shall include such
calculations and evidence as the Companies shall reasonably request from time
to time), and shall deliver financial statements to the Companies certified by
a firm of certified public accountants of national standing at least annually
within sixty (60) days following the end of the Supplier's or the guarantor's
fiscal year.
(2) In lieu of meeting the Creditworthiness Criteria or delivering
the Guaranty as required in Article 7(1), Supplier shall have the right to
deliver to the Companies an irrevocable standby letter of credit issued by a
commercial bank reasonably acceptable to the Companies. The amount of such
letter of credit shall be calculated annually based on the following formula:
SD(n) = SF x STDL(n-1) x { (PSTD(n) x TD(n))+(PSTD(n+1) x TD(n+1))+
(PSTD(n+2) x TD(n+2))+.........+
(PSTD(2009) x TD(2009)) }
Where:
SD(n) is the Security Deposit in Contract Year (n)
SF is the Security Fee equal to $10.00/MWh
STDL(n-1) is the aggregate load of those customers taking Standard
Offer Service in the previous Contract Year (n-1), expressed
in MWh. In Contract Year 1997, STDL shall be 4,500,000 MWh.
PSTD(n) is the percentage share of Standard Offer Service load that
the Supplier has committed to provide in Contract Year (n)
as shown in Appendix A.
TD(n) is the Transition Discount in Contract Year (n), calculated
as follows:
TD(n) = 1.00
TD(n+1) = (7-1)/7 = 0.857
TD(n+2) = (7-2)/7 = 0.714
TD(n+3) = (7-3)/7 = 0.571
TD(n+4) = (7-4)/7 = 0.429
TD(n+5) = (7-5)/7 = 0.286
TD(n+6) = (7-6)/7 = 0.143
TD(n+7) = 0
TD(n+8) = 0
TD(n+9) = 0
TD(n+10) = 0
TD(n+11) = 0
The letter of credit shall be available to be drawn upon by the
Companies in the event that an event of default occurs with respect to the
Supplier hereunder and shall otherwise be in form and substance reasonably
acceptable to the Companies (the "Initial Letter of Credit"). The draw down
on the Initial Letter of Credit shall be limited to the amount the Companies
are entitled to pursuant to Article 8(3) hereof. The bank issuing such Initial
Letter of Credit on behalf of a Supplier must maintain a long term debt rating
of "A" or better from Standard and Poor's Rating Service or Moody's Investment
Service.
The Initial Letter of Credit, if not issued for the full term of the
Supplier's Standard Offer Service obligation, shall be renewed on an annual
basis or replaced and superseded by a like kind of surety at least thirty (30)
days prior to the expiration of such prior surety on a continuing basis to the
termination of this Agreement or until Supplier's share of Standard Offer
Service load is zero. The amount of such financial surety may be amended on an
annual basis to reflect the security amount calculated pursuant to this Article
7 for the remaining term of this Agreement, provided that, if such Initial
Letter of Credit is drawn down upon by the Companies, Supplier shall have no
duty to renew or replace it with a letter of credit having a face amount
greater than that remaining on the drawn down Initial Letter of Credit.
ARTICLE 8. Events of Default, Liability, Relationship of the Companies
(1) Unless excused by a Force Majeure as described in Article 10,
each of the following events shall be deemed to be an Event of
Default hereunder:
(a) Failure of the Company to pay when due any undisputed payment
due to Supplier and such failure shall continue for five (5) days following the
receipt of written notice from the Supplier specifying the overdue amount.
(b) Failure of Supplier, in a material respect, to comply with,
observe, or perform any covenant, warranty or obligation under this Agreement,
and such failure is not cured or rectified within forty-five (45) days after
receipt of written notice thereof from the Companies.
(c) Failure of the Companies, in a material respect, to comply
with, observe, or perform any covenant, warranty or obligation under this
Agreement, other than as described in (a) above, and such failure is not cured
or rectified within forty-five (45) days after receipt of written notice
thereof from the Supplier.
(d) Failure of Supplier to maintain any of the security
requirements outlined in Article 7, and such failure is not cured or rectified
within ten (10) days after notice thereof from the Companies.
(e) And with respect to the Supplier, any Company and/or the
Companies, a custodian, receiver, liquidator or trustee for such Party is
appointed or takes possession and such appointment or possession remains
uncontested or in effect for m ore than sixty days; or the Party makes an
assignment for the benefit of creditors or admits in writing its inability to
pay its debts as they mature; or the Party is adjudicated as bankrupt or
insolvent; or an order for relief is entered under the Federal Bankruptcy Code
against the Party; or any material property of the Party is sequestered by
court order and the order remains in effect for more than sixty days; or a
petition is filed against the Party under any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law of any jurisdictions, whether now or subsequently in effect, and is not
stayed or dismissed within sixty days after filing; or the Party files a
petition in voluntary bankruptcy or seeking relief under any provision of
any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or subsequently
in effect; or the Party consents to the filing of any petition against it under
any such law; or the Party consents to the appointment or taking possession by
a custodian, receiver, trustee or liquidator of the Party or any material
portion of its property.
(2) Upon the occurrence of an Event of Default by the Companies,
the Companies shall be liable to the Supplier for any direct damages resulting
from the Event of Default, including, but not limited to, reasonable additional
administrative and legal expenses incurred as a result of Companies failure to
perform. Supplier shall take all commercially reasonable measures to mitigate
such direct damages. In addition, the Supplier may unconditionally terminate
this Agreement by giving written notice to the Companies, such termination to
be effective as of the date specified in such notice. Notwithstanding any
other provision of this Agreement to the contrary, the rights and obligations
of the Companies, herein are several and not joint. Each of the Company's
share of such rights and obligations shall be determined by the portion of its
monthly Standard Offer Service requirements represented as a percentage of the
Companies' total Standard Offer Service requirements during the period of time
in which the right, obligation or liability in questions arose, accrued and/or
matured, and in the event of difficulty or a dispute in determining the
appropriate period of time, during the entire duration of the Agreement.
(3) Upon the occurrence of an Event of Default by the Supplier, the
Supplier shall be liable to the Companies for all costs reasonably incurred by
the Companies resulting from Supplier's failure to deliver its share of the
Standard Offer Service. Such amount shall include the positive difference, if
any, obtained by subtracting the per unit Price established in Article 5, from
the per unit Replacement Price. The positive difference shall be applied to
each kilowatthour that Supplier fails to deliver.
"Replacement Price" shall mean the price at which the Companies acting
in a commercially reasonable manner purchase substitute Standard Offer Service
not delivered by Supplier, plus any additional transmission and NEPOOL charges,
incurred by the Companies. The Parties hereby stipulate that purchases at the
applicable NEPOOL spot market prices will be deemed commercially reasonable.
The Parties expressly agree that the amounts set forth in this Article
8(3) do not constitute liquidated damages. In addition to the amounts
established in this Article 8(3) above, the Supplier shall be liable to the
Companies for any additional direct damages resulting from an Event of Default
associated with reasonable additional administrative and legal expenses
incurred as a result of Supplier's failure to perform, and the Companies may
unconditionally terminate this Agreement by giving at least sixty (60) days
advance written notice to the Supplier, such termination to be effective as of
the date specified in such notice. The Parties expressly agree that the
Companies may exercise their rights under the financial surety provide d under
Article 7 to collect any and all amounts owed and due from the Supplier
resulting under this Article 8.
Nothing in this Article 8 shall be construed to limit the right of any
party to seek any remedies for a breach specified in this Agreement by the
other Party or Parties of its or their obligations hereunder, whether or not
such breach results in a termination of this Agreement under this Article 8
and whether or not such breach is cured per Articles 8(1)(a) or 8(1)(b), or
during any period during which the non-breaching Party elects not to exercise
its right to terminate this Agreement. In particular, each Party shall have
the right to seek a specific performance of any of the obligations of any
other Party hereunder.
ARTICLE 9. Termination
In addition to the termination rights for an Event of Default provided
in Article 8, the Companies may terminate this Agreement if Supplier's share of
Standard Offer Service load is less than one (1) megawatt for two consecutive
months.
ARTICLE 10. Force Majeure
As used in this Agreement, "Force Majeure" means any cause beyond the
reasonable control of, and without the fault or negligence of, the Party
claiming Force Majeure. A Force Majeure shall include, without limitation,
sabotage, strikes, riot s or civil disturbance, acts of God, acts of a public
enemy, drought, earthquake, flood, explosion, fire, lightning, landslide, or
any similar cataclysmic occurrence, or appropriation or diversion of
electricity by sale or order of any governmental authority having jurisdiction
thereof, but only if and to the extent that the event adversely affects the
availability of the transmission or distribution facilities of NEPOOL and/or
its participants, the Companies or an affiliate of the Companies, an d such
affected facilities are necessary to deliver Standard Offer Service electricity
to the Standard Offer Service customers.
An event that affects the availability or cost of operating any
transmission or distribution facilities outside the NEPOOL control area,
affects the availability or cost of operating a generating facility, or any
event that merely causes an economic hardship to either Party shall not be
deemed a Force Majeure.
If either Party is rendered wholly or partly unable to perform its
obligations under this Agreement because of Force Majeure as defined above,
that Party shall be excused from whatever performance is affected by the Force
Majeure, to the extent so affected, provided that:
(a) The nonperforming Party promptly, but in no case longer than
five (5) working days after the occurrence of the Force Majeure, gives the
other Party written notice describing the particulars of the occurrence;
(b) The suspension of performance shall be of no greater scope and
of no longer duration than is reasonably required by the Force Majeure;
(c) The nonperforming Party uses reasonable efforts to remedy its
inability to perform and expeditiously takes reasonable action to correct or
cure the event or condition; and
(d) The nonperforming Party exercises all reasonable efforts to
mitigate or limit damages to the other Party. With respect to the Supplier,
this shall mean that Supplier must purchase, at its own expense, electricity
from the NEPOOL market to meet its obligations under this Agreement, to the
extent such electricity is available and deliverable.
ARTICLE 11. Assignment
Unless mutually agreed to by the Parties, no assignment, pledge, or
transfer of this Agreement shall be made by either Party without the prior
written consent of the other Party, which shall not be unreasonably withheld,
except no prior written consent shall be required for (i) the assignment,
pledge or other transfer to another company or Affiliate in the same holding
company system as the assignor, pledgor or transferor, provided, the assignee,
pledgee or transferee expressly assumes a nd demonstrates, to the reasonable
satisfaction of the non-assigning Party, that it can meet the obligations of
the assignor, pledgor or transferor under this Agreement, or (ii) the transfer,
incident to a merger or consolidation with, or transfer of all (or
substantially all) of the assets of the transferor, to another person or
business entity, provided, such transferee expressly assumes, and demonstrates
to the reasonable satisfaction of the non-assigning party that it can meet,
all the obligations of the assignor, pledgor or transferor under this
Agreement.
ARTICLE 12. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their successors and assignees.
ARTICLE 13. Resolution of Disputes
Subject to Article 8(3), all disputes between the Companies and
Supplier resulting from or arising out of performance under this Agreement
shall be referred to a senior representative of the Companies with authority to
settle, designated by t he Companies, and a senior representative of Supplier
with authority to settle, designated by Supplier, for resolution on an
informal, face-to-face basis as promptly as practicable. The Parties agree
that such informal discussion shall be conducted in good faith. The
discussions between such representatives shall be considered "settlement talks"
under Rule 403 of the Federal Rules of Evidence or analogous Massachusetts
rules or practices and such discussions shall have no evidentiary value
provided, however, that either Party may introduce evidence of matters
discussed
in such settlement talks, if the facts and documents reflecting such matters
are discovered or otherwise come into a Party's possession independent of such
settlement talks . In the event the designated senior representatives are
unable to resolve the dispute within thirty (30) days, or such other period as
the Companies and the Supplier may jointly agree upon, such dispute may be
submitted to arbitration and resolved in accordance with the arbitration
procedure set forth herein if the Companies and Supplier jointly agree to
submit it to arbitration. For any dispute or claim arising out of or relating
to any charges incurred under this Agreement having a value less than or
equivalent to $100,000, such arbitration shall be mandatory. Nothing in this
Article 13 shall prevent the Companies from issuing, pursuant to Sections 1(a)
and (3) of Article 8, notice of failure to comply with, observe or perform this
Agreement.
The arbitration shall be conducted before a single neutral arbitrator
or arbitrator panel appointed by the Parties. If the Parties agree upon a
single arbitrator within ten (10) days of the referral of the dispute to
arbitration, that arbitrator shall serve, otherwise the Companies and Supplier
shall each choose one arbitrator, who shall serve on a three-member arbitration
panel. The two arbitrators so chosen shall within twenty (20) days select a
third arbitrator to act as chairman of the arbitration panel. If the two
arbitrators are unable to select a third arbitrator, each arbitrator shall
select three candidates. A list of the six candidates, along with their
resumes, shall be provided in alphabetical order, with no indication of the
arbitrator who selected such candidate or the Party who selected the arbitrator
who selected such candidate, to the American Arbitration Association ("AAA"),
who will select one candidate. If that candidate is unable or unwilling to
serve, AAA shall select another candidate. This process will be repeated
until a third arbitrator is selected or the list of candidates is exhausted.
If the list of candidates is exhausted, the arbitrators shall submit a new list
of candidates and the process set forth above shall be repeated a second time.
In all cases, the arbitrator(s) shall be knowledgeable in electric utility
matters, including electricity transmission and bulk power issues, and shall
not have any current or past substantial business or financial relationships
with any Party to the arbitration or any affiliate of such Party.
Except as otherwise provided herein, the arbitrator(s), shall generally
conduct the arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. There shall be no formal discovery
conducted in connection with the arbitration, except as specifically
authorized by a vote of the panel. The Parties shall exchange witness lists
and copies of any exhibits that they intend to utilize in their direct
presentations at any hearing before the arbitrator (s) at least ten (10) days
prior to such hearing, along with any other information or documents
specifically requested by the arbitrator(s) prior to the hearing. Unless
otherwise agreed, the arbitrator(s) shall render a decision within ninety (90)
days of his, her, or their appointment and shall notify the Parties in writing
of such decision and the reasons therefor, and shall make an award apportioning
the payment of the costs and expenses of arbitration, including panel costs,
among the Parties, provided, however, that each Party shall bear the costs and
expenses of its own attorneys, expert witnesses and consultants. The
arbitrator(s) shall be authorized only to interpret and apply the provisions of
this Agreement and shall have no power to amend or modify this Agreement in
any manner. The decision of the arbitrator(s) shall be final and binding upon
the Parties, and judgment on the award may be entered in any court having
jurisdiction. The decision of the arbitrator(s) may be appealed solely on the
grounds that the conduct of the arbitrator(s), or the decision itself, violated
the standards required under the Federal Arbitration Act (9 U.S.C.A. Sect. 1
et. al.) and/or The Uniform Arbitration Act, as adopted in Massachusetts
(M.G.L. c. 251, Sect. 1 et seq.).
ARTICLE 14. Interpretation
The interpretation and performance of this Agreement shall be in
accordance with and shall be controlled by the laws of the Commonwealth of
Massachusetts, without regard to Massachusetts conflict of law principles.
ARTICLE 15. Severability of Provisions
Subject to the provisions of Article 13, a holding by any court having
jurisdiction that any provision of this Agreement is invalid or unenforceable
shall not result in invalidation or unenforceability of the entire Agreement
but all remaining terms shall remain in full force and effect.
ARTICLE 16. Accounts and Records
The Companies and Supplier shall keep complete and accurate records of
their operations hereunder and shall maintain such data for a period of at
least two (2) years after final billing. The Companies and Supplier shall have
the right, during normal business hours, to examine and inspect all such
records insofar as may be necessary for the purpose of ascertaining the
reasonableness and accuracy of all relevant data, estimates or statement of
charges associated with service hereunder.
ARTICLE 17. Limitations on Liability and Indemnification
Each Party agrees to indemnify, defend, and hold the other Party
(including the other Party's affiliated companies, trustees, directors, board
members, officers, employees, and
agents) harmless from and against any and all damages, costs, claims,
liabilities, actions or proceedings arising from or claimed to have arisen from
the wrongful acts or omissions of the indemnifying Party's employees or agents,
unless caused by an act of negligence or willful misconduct by the indemnified
Party (including the Party's affiliated companies, trustees, directors, board
members, officers, employees or agents).
The Parties hereby waive and release the other Party as well as the
other Party's affiliated companies, trustees, directors, officers, employees,
and agents from any liability, claim, or action arising from damage to its
property due to the performance of this Agreement.
To the fullest extent permissible by law, neither the Companies nor
Seller, nor their respective officers, directors, agents, employees, parent or
Affiliates, successors or assigns, or their respective officers, directors,
agents or employees , successors or assigns, shall be liable to the other party
or its parent, subsidiaries, Affiliates, officers, directors, agents,
employees, successors or assigns, for claims, suits, actions or causes of
action for incidental, indirect, special, punitive, multiple or consequential
damages (including attorneys' fees or litigation costs) connected with or
resulting from performance or non-performance of the Agreement, or any actions
undertaken in connection with or related to this Agreement, including without
limitation any such damages which are based upon causes of action for breach of
contract, tort (including negligence and misrepresentation), breach of
warranty, strict liability, Massachusetts General Laws Chapter 93A, statute,
operation of law, or any other theory of recovery. The provisions of this
Section 17 shall apply regardless of fault and shall survive termination,
cancellation, suspension, completion or expiration of this Agreement.
ARTICLE 18. Regulation
(1) This Agreement and all rights, obligations, and performances of
the Parties hereunder, are subject to all applicable state and federal laws,
and to all duly promulgated orders and other duly authorized actions of
governmental authority having jurisdiction, provided, however, that this
Agreement shall not be subject to change through unilateral application under
Sections 205 and 206 of the Federal Power Act.
(2) This Agreement is intended to comply with all NEPOOL Criteria,
Rules, and Standards ("Rules"). If, during the term of this Agreement, the
Restated NEPOOL Agreement is terminated or amended in a manner that would
eliminate or alter a Rule affecting a right or obligation of a Party hereunder,
or if such a Rule is eliminated or altered by NEPOOL or the ISO, in a manner
which materially affects the costs and obligations to provide Standard Offer
Service, the Companies and Supplier s hall meet to determine appropriate
compensation to the affected Party. In the event that the Parties are not able
to agree on the materiality of the cost or obligations or the amount to be
reimbursed, Parties shall attempt to resolve the matter in accordance with
Article 13.
(3) In the event that the Standard Offer Service or the Terms and
Conditions for Suppliers are terminated, amended or replaced by any
governmental or regulatory agency having jurisdiction over the provision of
Standard Offer Service in a manner which materially increases Supplier's costs
or obligations to provide Standard Offer Service or the Companies are prevented
from recovering from customers taking Standard Offer Service the cost of
electricity provided by Supplier, the Companies and Supplier shall meet to
determine appropriate compensation to the negatively impacted Party. In the
event that the Parties are not able to agree on the materiality of the
increased cost or obligations or the amount to be reimbursed, Parties shall
attempt to resolve the matter in accordance with Article 13.
ARTICLE 19. Notices
Any notice, demand, or request permitted or required under this
Agreement shall be delivered in person or mailed by certified mail, postage
prepaid, return receipt requested, or otherwise confirmed receipt, to a Party
at the applicable address set forth below:
To Companies:
Kevin A. Kirby
Vice President - Power Supply
EUA Service Corporation
P. O. Box 543
750 West Center Street
West Bridgewater, MA 02379
To Supplier:
NRG Power Marketing Inc.
1221 Nicollet Mall
Minneapolis, MN 55403-2445
Attention: Craig Mataczynski, President
Facsimile: 612-373-5430
With a copy to:
James Bender, Vice President
Facsimile: 612-373-5392
Such addresses may be changed from time to time by written notice by
either Party to the other Party.
ARTICLE 20. Miscellaneous:
(1) Each Party shall prepare, execute and deliver to the other
Party any documents reasonably required to implement any
provision hereof.
(2) Each Party represents to the other that this Agreement and such
Party's performance thereof are within the corporate powers of
such Party and have been duly authorized by proper corporate
action on the part of such Party.
(3) Any number of counterparts to this Agreement may be executed
and each shall have the same force and effect as the original.
(4) This Agreement shall constitute the entire understanding
between the Parties and shall supersede all prior
correspondence and understandings pertaining to the subject
matter of this Agreement.
(5) Failure of either Party to enforce any provision of this
Agreement or to require performance by the other Party of any
of the provisions hereof, shall not be construed as a waiver of
such provisions or affect the validity of this Agreement, any
part hereof, or the right of either Party to thereafter enforce
each and every provision.
(6) Article and Section headings used throughout this Agreement are
for the convenience of the Parties only and are not to be
construed as part of this Agreement.
(7) Nothing in this Agreement shall be construed as creating any
relationship between the Parties other than that of independent
contractor for the sale and purchase of electricity at
wholesale.
(8) Notwithstanding any other provision of this Agreement to the
contrary, the rights and obligations of the Companies herein
are several and not joint. Each of the Companies share of such
rights and obligations shall be determined by the portion of
its monthly Standard Offer Service energy requirements
represented as a percentage of the Companies' total Standard
Offer Service requirement.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, Supplier and the Companies have caused this
Agreement to be signed by their respective duly authorized representatives as
of the date first above written.
Supplier: NRG ENERGY POWER MARKETING INC.
By: /s/ Craig Mataczynski
Name: Craig Mataczynski
Title: President
On Behalf of the Companies:
Blackstone: BLACKSTONE VALLEY ELECTRIC COMPANY
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
Eastern: EASTERN EDISON COMPANY
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
Newport: NEWPORT ELECTRIC CORPORATION
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
APPENDIX A
SCHEDULE OF SUPPLIER'S SHARE of STANDARD OFFER SERVICE
AND
STANDARD OFFER WHOLESALE PRICE
TABLE 1
Calendar Supplier's Share Standard
Year of Standard Offer
Offer Service Wholesale
In Percent Price
1998 29.5980% 3.2 cents/kWh
1999 29.5980% 3.5 cents/kWh
2000 29.5980% 3.8 cents/kWh
2001 29.5980% 3.8 cents/kWh
2002 29.5980% 4.2 cents/kWh
2003 29.5980% 4.7 cents/kWh
2004 29.5980% 5.1 cents/kWh
*2005 29.5980% 5.5 cents/kWh
2006 29.5980% 5.9 cents/kWh
2007 29.5980% 6.3 cents/kWh
2008 29.5980% 6.7 cents/kWh
2009 29.5980% 7.1 cents/kWh
* Standard Offer Service for Eastern Edison terminates at 12:00 midnight on
February 28, 2005.
APPENDIX B
SO REBATE
Company
Base Delivered Energy
Base SO Rebate
Eastern Edison Company
2,619,300 MWh
$895,875
Blackstone Valley Electric Company
1,222,100 MWh
$417,993
Newport Electric Company
544,200 MWh
$186,132
TABLE OF CONTENTS
ARTICLE 1. Definitions 2
ARTICLE 2. Term 4
ARTICLE 3. Supplier Responsibilities 4
ARTICLE 4. Estimation of Hourly Loads and Reporting to the ISO 5
ARTICLE 5. Price 6
ARTICLE 6. Billing and Payments 7
ARTICLE 7. Security Provisions 8
ARTICLE 8. Events of Default, Liability, Relationship of the Companies 10
ARTICLE 9. Termination 12
ARTICLE 10. Force Majeure 12
ARTICLE 11. Assignment 13
ARTICLE 12. Successors and Assigns 13
ARTICLE 13. Resolution of Disputes 13
ARTICLE 14. Interpretation 15
ARTICLE 15. Severability of Provisions 15
ARTICLE 16. Accounts and Records 15
ARTICLE 17. Limitations on Liability and Indemnification 15
ARTICLE 18. Regulation 16
ARTICLE 19. Notices 16
ARTICLE 20. Miscellaneous: 17
APPENDIX A SCHEDULE OF SUPPLIER'S SHARE of STANDARD OFFER SERVICE
AND STANDARD OFFER WHOLESALE PRICE
APPENDIX B SO REBATE