Exhibit 10.62
TRANSITION POWER SALES AGREEMENT
BETWEEN
SOUTHERN ENERGY BOWLINE, L.L.C.,
SOUTHERN ENERGY LOVETT, L.L.C.,
SOUTHERN ENERGY NY-GEN, L.L.C.,
AND
ORANGE AND ROCKLAND UTILITIES, INC.
Dated as of November 24, 1998
TABLE OF CONTENTS
Page
1. DEFINITIONS......................................................3
2. TERM AND TERMINATION.............................................6
3. INSTALLED CAPACITY REQUIREMENTS, QUANTITY AND PRICE..............7
4. ENERGY REQUIREMENTS, QUANTITY AND PRICE..........................9
5. SCHEDULING......................................................10
6. BILLING AND PAYMENT PROCEDURES..................................12
7. INDEMNIFICATION.................................................14
8. LIMITATION OF LIABILITY.........................................18
9. FORCE MAJEURE...................................................19
10. DEFAULT AND TERMINATION.........................................20
11. ADDITIONAL REMEDIES.............................................20
12. DISPUTES........................................................21
13. REPRESENTATIONS.................................................21
14. ASSIGNMENT OR OTHER CHANGE IN CORPORATE IDENTITY................23
15. WAIVER..........................................................24
16. COUNTERPARTS....................................................24
17. GOVERNING LAW...................................................25
18. SEVERABILITY....................................................25
19. AMENDMENT.......................................................25
20. ENTIRE AGREEMENT................................................26
21. FURTHER ASSURANCES..............................................26
22. NO THIRD PARTY BENEFICIARIES....................................26
23. CONFIDENTIALITY.................................................26
24. NOTICES.........................................................27
TRANSITION POWER SALES AGREEMENT BETWEEN
BOWLINE LLC, LOVETT LLC, NY-GEN LLC AND
ORANGE AND ROCKLAND UTILITIES, INC.
This Agreement is made and entered into as of this 24th day of
November, 1998, by and between Southern Energy Bowline, L.L.C. ("Bowline
LLC"), Southern Energy Lovett, L.L.C. ("Lovett LLC"), and Southern Energy
NY-Gen, L.L.C. ("NY-Gen LLC"), each a Delaware limited liability company
and having their principal place of business at 900 Ashwood Parkway, Suite
500, Atlanta, Georgia 30338 (individually a "Generator" and collectively,
the "Generators"), and Orange and Rockland Utilities, Inc. ("O&R"), a New
York corporation having a principal place of business at One Blue Hill
Plaza, Pearl River, New York 10965. The Generators and O&R shall each be
referred to as a "Party", and shall be referred to collectively as the
"Parties."
WHEREAS, as a consequence of the comprehensive restructuring of the
electric power industry in New York State, O&R has offered all its electric
generating assets located in New York for sale by auction;
WHEREAS, O&R, ConEdison and Bowline LLC have entered into the Bowline
Point Generating Station Sales Agreement dated as of the date hereof, O&R
and Lovett LLC have entered into the Lovett Generating Station Sales
Agreement dated as of the date hereof and O&R and NY-Gen LLC have entered
into the Gas Turbine and Hydroelectric Generation Station Sales Agreement
dated as of the date hereof (the "ASA's") pursuant to which the respective
Generators shall purchase such electric generating assets;
WHEREAS, the rights and obligations of buyers and generators of
electric generating capacity, energy, transmission and ancillary services
may be modified by a proposal (the "Proposal") currently pending before the
Federal Energy Regulatory Commission ("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, as approved by FERC in FERC Docket Nos. ER97-1523-000,
OA97-470-000 and ER97-4234-000, as such tariff may be amended from
time-to-time;
WHEREAS, FERC may approve, accept, modify, or reject the Proposal,
and its actions may affect the rights and obligations under this Agreement;
and
WHEREAS, in consideration of the sale of the Purchased Assets to the
Generators, and in recognition of O&R's installed capacity requirements for
its remaining native load customers, the Generators and O&R agree to enter
into this Transition Power Sales Agreement, whereby O&R will purchase from
the Generators, and the Generators will sell to O&R, various amounts of MW
of Installed Capacity and Energy (as defined herein) for the term of this
Agreement.
NOW THEREFORE, in consideration of the mutual agreements and
commitments contained herein, the Generators and O&R hereby agree as
follows:
1. DEFINITIONS
(a) The following terms shall have the meanings set forth
below. Any term used in this Agreement that is not defined herein shall
have the meaning customarily attributed to such term by the electric
utility industry in New York.
"Agreement" shall mean this Transition Power Sales Agreement Between the
Generators and O&R, dated as of November 24, 1998, as it may be amended
from time to time.
"Ancillary Agreements" shall mean (i) the Eastern Load Pocket Call Option
Agreement by and between O&R and Lovett LLC, (ii) the Western Load Pocket
Call Option Agreement by and between O&R and NY-Gen LLC, (iii) the
Continuing Site/Interconnection Agreement by and between O&R and Bowline
LLC, (iv) the Continuing Site/Interconnection Agreement by and between O&R
and Lovett LLC and (v) the Continuing Site/Interconnection Agreement by and
between O&R and NY-Gen LLC, each dated as of the date hereof.
"Auction" shall mean the sale of O&R's electric generating units described
in the "Confidential Information Memorandum" issued by O&R for the sale of
all of O&R's electric generating units, dated May 1998.
"Business Day" shall mean any day other than Saturday, Sunday or any day
which is a legal holiday or a day on which banking institutions in the
State of New York are authorized by law or other governmental action to
close.
"Closing Date" shall mean the date and time at which the closing of the
transactions contemplated by the ASA's actually occurs.
"ConEdison" shall mean Consolidated Edison Company of New York, Inc.
"Delivery Point" means the physical point where Energy will be delivered
and measured for purposes of this Agreement. With respect to power
generated from any of the Purchased Assets, the Delivery Point shall mean
the generator terminals at the applicable Purchased Asset. With respect to
power generated from non-Purchased Assets, the Delivery Point shall mean
the O&R Load Zone.
"Energy" shall mean the amount of energy in GWH that the Generators are
required to deliver to O&R pursuant to Schedule A.
"FERC" shall mean the Federal Energy Regulatory Commission or its
successor.
"Good Utility Practices" mean any of the practices, methods or acts engaged
in or approved by a significant portion of the electric utility industry
with respect to similar facilities 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 the decision was made,
could have been expected to accomplish the desired result at a reasonable
cost consistent with good business practices, reliability, safety, law,
regulation, environmental protection, and expedition. Good Utility
Practices are not intended to be limited to the optimum practices, methods
or acts to the exclusion of all others, but rather to delineate the
acceptable practices, methods or acts generally accepted in such industry.
"Installed Capacity" shall mean electric generating capacity that satisfies
all of the applicable Installed Capacity requirements established by the
NYPP or ISO, as they apply to O&R.
"ISO" shall mean the New York Independent System Operator, as described in
the Supplemental Filing, or its successors.
"ISO Tariff" shall mean the tariff described in the Supplemental Filing, as
it may be amended from time to time.
"NERC" shall mean the North American Electric Reliability Council or its
successors.
"NYPP" shall mean the New York Power Pool or its successors.
"O&R" shall mean Orange and Rockland Utilities, Inc. or its
successor.
"O&R Load Zone" shall mean the load zone as designated by the ISO which
encompasses the O&R service territory.
"Off-Peak" shall mean all hours not classified as On-Peak hours.
"On-Peak" shall mean those hours Monday through Friday, from hour beginning
7:00 AM through hour beginning 10:00 PM excluding NERC holidays.
"Purchased Assets" shall mean the Bowline, Lovett, Gas Turbines and
Hydroelectric Assets as described in the respective ASA's.
"Replacement Capacity" shall mean Installed Capacity under this Agreement
from a source different from the source identified by the Generators or O&R
and subsequently identified to the NYPP or ISO in O&R's periodic reports
required under applicable procedures to the extent such Installed Capacity
satisfies NYPP or ISO Installed Capacity requirements applicable to O&R
including any applicable delivery requirements.
"Replacement Capacity Costs" shall mean the incremental cost of Replacement
Capacity to the extent it exceeds the cost of ICAP calculated in accordance
with Section 3.2.
"Summer Capability Period" shall have the meaning provided by the NYPP, the
ISO or their successor(s), as may be modified from time to time. Summer
Capability Period is currently each May 1 through October 31 of each year.
"Supplemental Filing" shall mean the December 19, 1997 Supplemental Filing
to the Comprehensive Proposal to Restructure the New York Wholesale
Electric Market in FERC Docket Nos. ER97-1523-000, OA97-470-000, and
ER97-4234-000.
"Winter Capability Period" shall have the meaning provided by the NYPP, the
ISO or their successor(s), as may be modified from time to time. Winter
Capability Period is currently each November 1 through April 30 of the
following calendar year.
(b) Each of the following terms has the meaning specified in
the Section set forth opposite such term:
Term Section
- ---- -------
ASA's Recitals
Capacity Payment 3.2
Confidential Information 23(a)
CEI 14(b)
Direct Claim 7.4
Disclosing Party 23(a)
Deficiency Capacity Payment 3.4
Deficiency Energy Payment 4.4
Energy Payment 4.2
Event of Default 10.1
Force Majeure Event 9.1
Generators Indemnifiable Losses 7.2
ICAP 3.2
Indemnifiable Loss 7.3
Indemnifying Party 7.4
Indemnitee 7.3
Net Worth 14(a)
O&R Indemnifiable Losses 7.1
Recipient 23(a)
Third Party Claim 7.4
2. TERM AND TERMINATION
2.1 Subject to all necessary regulatory authorizations, this
Agreement shall become effective when signed by the Parties. O&R's right
and obligation to purchase Installed Capacity and Energy and the
Generators' obligation to provide and sell Installed Capacity and Energy
shall begin on the Closing Date. This Agreement shall terminate on October
31, 2000.
2.2 This Agreement is subject to all necessary regulatory
authorizations without any material modifications or conditions. If any
regulatory agency having jurisdiction over this Agreement requires any
modification to, or imposes any condition of acceptance or approval of,
this Agreement, then the Parties shall engage in good faith negotiations
for a period of 30 days following the issuance of that modified or
conditional 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 Generators
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 O&R shall have the right to protest the
manner in which the Generators have attempted to satisfy such modification
or condition.
3. INSTALLED CAPACITY REQUIREMENTS, QUANTITY AND PRICE
3.1 Unless excused by the provisions of Article 9, O&R shall
purchase from the Generators and the Generators shall provide to O&R
Installed Capacity in the amounts specified in Schedule A for the term of
this Agreement. Subject to the provisions of this Article 3, O&R shall
compensate the Generators for Installed Capacity at a price of $130/MW-Day
for the term of this Agreement.
3.2 Subject to the crediting mechanism of Section 3.4, O&R
shall pay the Capacity Payment to the Generators monthly as follows:
"Capacity Payment" = ICAP multiplied by $130/MW-Day multiplied by
number of days in month (or part of month, if applicable during any
month of this Agreement)
Where:
"ICAP" is the amount of Installed Capacity in MW, including
Replacement Capacity, not to exceed the amounts in Schedule A, for
the term of this Agreement, that is actually provided by the
Generators to O&R.
3.3 Except as otherwise provided in this Article 3, O&R shall
make no other payment to the Generators for Installed Capacity actually
provided under this Agreement.
3.4 Capacity Requirement
(a) Whenever ICAP delivered by the Generators to O&R is
less than the amount of Installed Capacity that the Generators are required
to supply under Section 3.1, the Generators shall pay O&R for reasonable
and documented costs incurred by O&R as a direct result of the Generators'
failure to supply all or part of the Installed Capacity requirement,
calculated as follows:
The sum of (i) all installed capacity deficiency charges
imposed by the NYPP or ISO on O&R, to the extent they exceed
charges that would have been due under Sections 3.1 and 3.2 had
the Generators performed with respect to the amount of
Installed Capacity by which the Generators were deficient and
on which O&R incurred such NYPP or ISO installed capacity
deficiency charges; (ii) if the Generators fail to provide
Replacement Capacity, and O&R obtains Replacement Capacity from
a source other than the Generators in accordance with Good
Utility Practices, then O&R's Replacement Capacity Costs that
are reasonably incurred, to the extent not included in (i); and
(iii) all directly related transaction costs, to the extent not
included in (i) and (ii), that are reasonably incurred as a
direct result of the Generators' failure to provide O&R with
the required amount of Installed Capacity.
Such sum shall be referred to as the "Deficiency Capacity Payment."
(b) If O&R purchases more Replacement Capacity than the
amount by which the Generators are deficient, then O&R shall be solely
responsible for the cost of the purchased Replacement Capacity that is more
than the amount by which the Generators are deficient.
(c) If O&R incurs any reasonable and documented costs
described in Section 3.4(a) over a period greater than one calendar month
as a direct result of the Generators' deficiencies described in Section
3.4(a), subject to the Generators' approval, which shall not be
unreasonably withheld, O&R shall allocate those costs on a monthly basis.
3.5 O&R shall pay all taxes, surcharges, adjustments or other
assessments imposed by law, rule or regulation which are of general
applicability and imposed on the sales of Installed Capacity hereunder
unless O&R can demonstrate, based on a ruling from the New York Public
Service Commission, that it cannot collect such taxes, surcharges,
adjustments or other assessments from its customers.
3.6 Billing and payments of the Capacity Payment and the
Deficiency Capacity Payment shall be made in accordance with Article 6.
3.7 Subject to the terms and conditions set forth herein, the
Generators shall satisfy all requirements applicable to suppliers of
Installed Capacity established by the NYPP or the ISO (including any
applicable locational requirements and compliance with and satisfaction of
all applicable tariffs, rules and practices) so that O&R will receive the
levels of Installed Capacity specified in Schedule A for the term of this
Agreement; and
3.8 Subject to the terms and conditions set forth herein, each
Party shall reasonably cooperate with the other Party at the other Party's
request in arranging any necessary interfaces or protocols to satisfy NYPP
or ISO requirements associated with any services provided under this
Agreement.
3.9 Subject to the terms and conditions set forth herein, O&R
shall satisfy all requirements applicable to purchasers of Installed
Capacity established by the NYPP or the ISO.
4. ENERGY REQUIREMENTS, QUANTITY AND PRICE
4.1 Unless excused by the provisions of Article 9, O&R shall
take and purchase from the Generators and the Generators shall deliver and
sell to O&R at the Delivery Point, the full amount of Energy specified in
Schedule A for the term of this Agreement. The Energy to be delivered by
the Generators to O&R may be generated at the Purchased Assets or any other
generating facility, whether owned by third parties or the Generators.
Title to the Energy shall pass to O&R at the Delivery Point and the
Generators shall incur no expense or risk beyond the Delivery Point.
Subject to the provisions of this Article 4, O&R shall compensate the
Generators at the price levels specified in Schedule A.
4.2 Subject to the crediting mechanism of 4.4, O&R shall pay
the Energy Payment to the Generators monthly as follows:
"Energy Payment" = ER multiplied by EP
Where:
"ER" is the amount of Energy in MWH that must be taken by O&R from
the Generators for any given month during the capability period and
on-peak or off-peak period specified in Schedule A; and "EP" is the
Energy price for the capability period and On-Peak or Off-Peak period
specified in Schedule A.
4.3 Except as otherwise provided in this Article 4, O&R shall
make no other payment to the Generators for Energy actually provided under
this Agreement.
4.4 Energy Requirements and Replacement Costs
Whenever the amount of Energy delivered to O&R by the
Generators during any month is less than the amount of Energy that the
Generators are required to supply under Schedule A for that month, the
Generators shall pay O&R monthly for reasonable and documented costs
incurred by O&R in accordance with Good Utility Practices as a direct
result of the Generators' failure to supply all or part of the Energy
requirement, calculated as follows.
The sum of (i) all reasonable and documented costs incurred by
O&R for third-party energy purchases in lieu of Energy amounts
that the Generators should have supplied had the Generators
performed with respect to the Energy specified in Schedule A
and;
(ii) All directly related transaction costs not included in
Section 4.4 (i) above that are reasonably incurred by O&R as
direct result of the Generators' failure to provide the Energy
specified in Schedule A.
Such sum is referred to as the "Deficiency Energy Payment."
4.5 If the Closing Date occurs after May 1, 1999, the Energy
specified in Schedule A for the Summer 1999 Capability Period shall be
prorated on a daily basis for the month that the Closing occurs. If the
Closing Date occurs after November 1, 1999, the Energy specified in
Schedule A for the Winter 1999 Capability Period shall be prorated on a
daily basis for the month that the Closing occurs.
4.6 Billing and payment of the Energy Payment and the
Deficiency Energy Payment shall be made in accordance with Article 6. O&R
shall pay all taxes, surcharges, adjustments or other assessments imposed
by law, rule or regulation which are of general applicability and imposed
on the sales of Energy hereunder unless O&R can demonstrate, based on a
ruling from the New York Public Service Commission, that it cannot collect
such taxes, surcharges, adjustments or other assessments from its
customers.
5. SCHEDULING
5.1 Schedule Dates for Installed Capacity
Subject to Section 5.3, O&R and the Generators shall comply
with the following scheduling procedures with respect to Installed
Capacity:
(a) The Generators shall notify O&R in writing 30 days
prior to the anticipated Closing Date of the location and name of each
generating unit at the Purchased Assets that the Generators intend to use
to supply the Installed Capacity required pursuant to this Agreement and
the estimated amount of Installed Capacity the Generators expect to supply
from each unit for the period from the Closing Date to and including
October 31, 2000;
(b) By September 1, 1999, and March 1, 2000, the
Generators shall notify O&R in writing of the location and name of each
generating unit at the Purchased Assets that the Generators intend to use
to supply the Installed Capacity required pursuant to this Agreement and
the estimated amount of Installed Capacity the Generators expect to supply
from each unit for the periods from November 1, 1999 through April 30,
2000, and from May 1, 2000 through October 31, 2000, respectively; and
(c) To the extent permitted by ISO or NYPP procedures and
consistent with the Generators' obligations under Section 3.1 and 3.6, the
Generators shall notify O&R of any changes in the name and location of, and
the amount of Installed Capacity from, any generating unit to be used by
the Generators to supply the Installed Capacity required pursuant to this
Agreement at least 30 days before the date O&R is required to report such
change to the NYPP or ISO.
5.2 Scheduling Energy
The Generators and O&R shall comply in all material respects with
applicable energy scheduling requirements under NYPP or ISO rules
and regulations.
5.3 Notification Changes
If the NYPP or ISO modifies the notification schedules or the
definition of Summer Capability Period or Winter Capability Period such
that the schedule dates contained in this Section 5 are inconsistent with
the modified schedule or definition, then O&R shall provide reasonable
notice thereof to the Generators and the Parties shall revise the dates in
this Section 5 to be consistent with said modification.
6. BILLING AND PAYMENT PROCEDURES
6.1 Billing and Payments
(a) Beginning in the calendar month following the Closing
Date, the Generators shall render a bill for the Capacity Payment and the
Energy Payment to O&R for the previous calendar month in accordance with
Sections 3.2 and 4.2 on or before the 20th day of each month. The Capacity
Payment and the Energy Payment owed, unless otherwise agreed, shall be due
and payable on or before the later of (i) the last day of the month, or
(ii) 10 days after O&R receives a bill.
(b) After the Closing Date, O&R shall render bills to the
Generators for any Deficiency Capacity Payment or Deficiency Energy Payment
owed by the Generators to O&R calculated in accordance with Sections 3.4
and 4.4 on or before the 20th day of each month. All Deficiency Capacity
Payments or Deficiency Energy Payments owed, unless otherwise agreed, shall
be due and payable on or before the later of (i) the last day of the month,
or (ii) 10 days after the Generators receives a bill.
(c) Each Party may set off any undisputed amount owed to
the other Party against any undisputed amount owed pursuant to this
Agreement or other arrangement(s) agreed to between the Parties including,
without limitation, amounts owed under Sections 3.4 and 4.4.
(d) If any payment under Sections 6.1(a) or (b) falls due
on a day that is not a Business Day, then the payment shall be made on the
next Business Day.
(e) Interest on unpaid amounts or payments received after
the due date shall accrue at a rate equal to the lesser of (i) two percent
per annum over the prime commercial lending rate established from time to
time by Chase Manhattan Bank, N.A., New York, New York, or its successor,
or (ii) the highest rate per annum permitted by law, from the due date
until the date upon which payment is made.
(f) All billings to O&R shall be sent to:
Orange and Rockland Utilities, Inc.
390 West Route 59
Spring Valley, New York 10977
Attn: Manager - Energy Resources
(g) All billings to the Generators shall be sent to:
Southern Energy Bowline, L.L.C.
Southern Energy Lovett, L.L.C.
Southern Energy NY-Gen, L.L.C.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
Attention: Steve Gillis
Finance Director
North American Operations
(h) Any payments owed directly by the Generators to the
ISO or the NYPP shall be made pursuant to the procedures established in the
ISO Tariff, by the ISO or in the NYPP procedures. The Generators shall be
solely responsible for making all such payments to the ISO or the NYPP.
(i) The Parties shall maintain records, accounts and
other documents sufficient to reflect accurately all transactions hereunder
for a period of four years from the time of the transactions. Each Party
shall, at its own expense, have the right to audit such records, accounts
and other documents of the other Party during such four-year period upon
reasonable prior notice to the other Party.
6.2 Billing Disputes
If a Party contests the amount billed in accordance with
Section 6.1(a) or (b) before the bill is due, the contesting Party shall
pay the undisputed billed amount when due and promptly provide written
notice to the other Party of the relevant bill identifying the reason for
the dispute. If neither Party disputes a bill within six months after the
due date of such bill, such bill shall be deemed correct. The Parties shall
engage in good faith negotiations to resolve any disputed amounts within 30
days. If the Parties are unable to resolve a dispute within such period,
disputed amounts shall be paid into an escrow account pending resolution of
the dispute. Thereafter, either Party may exercise such remedies as may be
available under this Agreement, at law or in equity. In addition to any
other remedies available to the Generators in the event O&R fails to pay a
disputed bill into such escrow account within 30 days after its due date,
the Generators may withhold Installed Capacity and Energy until such bill
is paid. Interest at the rate specified in Section 6.1(e) shall accrue on
the portion, if any, that is refunded or credited to the contesting Party
or that is released from escrow to the non-contesting Party, when the
contested amount is resolved.
6.3 Survival
The provisions of Sections 3 and 4 and this Section 6 shall
survive termination, expiration, cancellation, suspension, or completion of
this Agreement to the extent necessary to allow for final billing and
payment.
7. INDEMNIFICATION
7.1 Generators' Indemnification
The Generators shall indemnify, hold harmless and defend O&R,
its parent, affiliates, and successors, and their officers, directors,
employees, agents, subcontractors, and successors, from and against any and
all claims, demands, liabilities, costs, losses, judgments, damages and
expenses (including, without limitation, reasonable attorney and expert
fees, and disbursements incurred by O&R in any actions or proceedings
between O&R and a third party, the Generators, or any other party) to the
extent the foregoing are not covered by insurance ("O&R Indemnifiable
Losses") asserted against or suffered by O&R for (i) damage to property, or
(ii) injury to or death of any person, including O&R employees, the
Generators' employees and their affiliates' employees, or any third
parties, in such case to the extent caused by the gross negligence or
willful misconduct of the Generators and/or their respective officers,
directors, employees, agents, and subcontractors and arising out of this
Agreement and not caused by the negligence or willful misconduct of any
such Indemnitee.
7.2 O&R's Indemnification
O&R shall indemnify, hold harmless and defend the Generators,
their parent, affiliates, and successors, and their officers, directors,
employees, agents, subcontractors, and successors, from and against any and
all claims, demands, liabilities, costs, losses, judgments, damages and
expenses (including, without limitation, reasonable attorney and expert
fees, and disbursements incurred by the Generators in any actions or
proceedings between the Generators and a third party, O&R, or any other
party) to the extent the foregoing are not covered by insurance
("Generators Indemnifiable Losses") asserted against or suffered by the
Generators for (i) damage to property, or (ii) injury to or death of any
person, including the Generators employees, O&R's employees and their
affiliates' employees, or any third parties, in each case to the extent
caused by the gross negligence or willful misconduct of O&R and/or its
officers, directors, employees, agents, and subcontractors and arising out
of or connected with this Agreement and not caused by the negligence or
willful misconduct of any such Indemnitee.
7.3 Indemnification Procedures
Any Party entitled to receive indemnification under this
agreement (an "Indemnitee") having a claim under these indemnification
provisions shall make a good faith effort to recover all losses, damages,
costs and expenses from insurers of such Indemnitee under applicable
insurance policies so as to reduce the amount of any O&R Indemnifiable Loss
or Generators Indemnifiable Loss, as appropriate, hereunder. The amount of
any O&R Indemnifiable Loss or Generators Indemnifiable Loss, as
appropriate, shall be reduced to the extent that Indemnitee receives any
insurance proceeds with respect to an O&R Indemnifiable Loss or Generators
Indemnifiable Loss, as appropriate (either may be referred to as an
"Indemnifiable Loss").
7.4 Defense of Claims. (a) If any Indemnitee receives written
notice of the assertion of any claim or of the commencement of any claim,
action, or proceeding made or brought by any Person who is not a Party to
this Agreement or any affiliate of a Party to this Agreement (a "Third
Party Claim") with respect to which indemnification is to be sought from a
person required to provide indemnification under this Agreement (an
"Indemnifying Party"), the Indemnitee will give such Indemnifying Party
reasonably prompt written notice thereof, but in any event not later than
30 days after the Indemnitee's receipt of written notice of such Third
Party Claim. Such notice shall describe the nature of the Third Party Claim
in reasonable detail and will indicate the estimated amount, if
practicable, of the Indemnifiable Loss that has been or may be sustained by
the Indemnitee. The Indemnifying Party will have the right to participate
in or, by giving written notice to the Indemnitee, to elect to assume the
defense of any Third Party Claim at such Indemnifying Party's own expense
and by such Indemnifying Party's own counsel, and the Indemnitee will
cooperate in good faith in such defense at such Indemnitee's own expense.
(b) If within ten calendar days after an Indemnitee
provides written notice to the Indemnifying Party of any Third Party Claim
the Indemnitee receives written notice from the Indemnifying Party that such
Indemnifying Party has elected to assume the defense of such Third Party
Claim as provided in the last sentence of Section 7.4(a), the Indemnifying
Party will not be liable for any legal expenses subsequently incurred by
the Indemnitee in connection with the defense thereof; provided, however,
that if the Indemnifying Party fails to take reasonable steps necessary to
defend diligently such Third Party Claim within 20 calendar days (unless
waiting 20 calendar days would prejudice the Indemnitee's rights) after
receiving notice from the Indemnitee that the Indemnitee believes the
Indemnifying Party has failed to take such steps, the Indemnitee may assume
its own defense, and the Indemnifying Party will be liable for all
reasonable expenses thereof. Without the prior written consent of the
Indemnitee, the Indemnifying Party will not enter into any settlement of
any Third Party Claim which would lead to liability or create any financial
or other obligation on the part of the Indemnitee for which the Indemnitee
is not entitled to indemnification hereunder. If a firm offer is made to
settle a Third Party claim without leading to liability or the creation of
a financial or other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder and the
Indemnifying Party desires to accept and agree to such offer, the
Indemnifying Party will give written notice to the Indemnitee to that
effect. If the Indemnitee fails to consent to such firm offer within ten
business days after its receipt of such notice, the Indemnitee may continue
to contest or defend such Third Party Claim and, in such event, the maximum
liability of the Indemnifying Party as to such Third Party Claim will be
the amount of such settlement offer, plus reasonable costs and expenses
paid or incurred by the Indemnitee up to the date of such notice.
Notwithstanding the foregoing, the Indemnitee shall have the right to pay,
compromise or settle any Third Party Claim at any time, provided that in
such event the Indemnitee shall waive any right to indemnity hereunder
unless the Indemnitee shall have first sought the consent of the
Indemnifying Party in writing to such payment, settlement or compromise and
such consent was unreasonably withheld or delayed, in which event no claim
for indemnity therefor hereunder shall be waived.
(c) Any claim by an Indemnitee on account of an
Indemnifiable Loss which does not result from a Third Party Claim (a
"Direct Claim") will be asserted by giving the Indemnifying Party
reasonably prompt written notice thereof, stating the nature of such claim
in reasonable detail and indicating the estimated amount, if practicable,
but in any event not later than thirty calendar days after the Indemnitee
becomes aware of such Direct Claim, and the Indemnifying Party will have a
period of 30 calendar days within which to respond to such Direct Claim. If
the Indemnifying Party does not respond within such 30 calendar day period,
the Indemnifying Party will be deemed to have accepted such Direct Claim.
If the Indemnifying Party rejects such Direct Claim, the Indemnitee will be
free to seek enforcement of its rights to indemnification under this
Agreement.
(d) If the amount of any Indemnifiable Loss, at any time
subsequent to the making of an indemnity payment in respect thereof, is
reduced by recovery, settlement or otherwise under or pursuant to any
insurance coverage, or pursuant to any claim, recovery, settlement or
payment by or against any other entity, the amount of such reduction, less
any costs, expenses or premiums incurred in connection therewith (together
with interest thereon from the date of payment thereof at the prime rate
then in effect of the Chase Manhattan Bank, N.A.), will promptly be repaid
by the Indemnitee to the Indemnifying Party. Upon making any indemnity
payment, the Indemnifying Party will, to the extent of such indemnity
payment, be subrogated to all rights of the Indemnitee against any third
party in respect of the Indemnifiable Loss to which the indemnity payment
relates; provided, however, that (i) the Indemnifying Party will then be in
compliance with its obligations under this Agreement in respect of such
Indemnifiable Loss and (ii) until the Indemnitee recovers full payment of
its Indemnifiable Loss, any and all claims of the Indemnifying Party
against any such third party on account of said indemnity payment is hereby
made expressly subordinated and subjected in right of payment to the
Indemnitee's rights against such third party. Without limiting the
generality or effect of any other provision hereof, each such Indemnitee
and Indemnifying Party will duly execute upon request all instruments
reasonably necessary to evidence and perfect the above-described
subrogation and subordination rights. Nothing in this Section 7.4(d) shall
be construed to require any Party hereto to obtain or maintain any
insurance coverage.
(e) A failure to give timely notice as provided in this
Section 7.4 will not affect the rights or obligations of any Party
hereunder except if, and only to the extent that, as a result of such
failure, the Party which was entitled to receive such notice was actually
prejudiced as a result of such failure.
7.5 Survival
The indemnification obligations of each Party under this
Article 7 shall become effective upon the occurrence of the Closing Date,
and, for acts and occurrences prior to expiration, termination, completion,
suspension or cancellation of this Agreement shall continue in full force
and effect regardless of whether this Agreement expires, terminates, or is
suspended, completed or canceled. Such obligations shall not be limited in
any way by any limitation on insurance, by the amount or types of damages
(except as otherwise limited under Section 8.1), or by any compensation or
benefits payable by the Parties under workers' compensation acts,
disability benefit acts or other employee acts, or otherwise.
8. LIMITATION OF LIABILITY
8.1 Limitation on Damages
Neither O&R nor the Generators, nor their respective officers,
directors, agents, employees, successors, assigns, or subcontractors nor
their respective officers, directors, agents, employees, successors,
assigns, or subcontractors shall be liable to the other Party or its
parent, subsidiaries, affiliates, officers, directors, agents, employees,
successors, assigns, or subcontractors for claims, suits, actions, causes
of action or otherwise for incidental, punitive, special, indirect,
multiple or consequential damages (including attorneys' fees or litigation
costs) connected with, or resulting from, performance or non-performance of
this 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, statutory (including
negligence and misrepresentation), breach of warranty or strict liability.
8.2 Subject to indemnity obligations set forth in Article 7,
upon an Event of Default by O&R under this Agreement, which Event of
Default is not excusable due to a Force Majeure Event or due to an Event of
Default by the Generators under this Agreement, O&R's liability to the
Generators shall be limited to the Generators' direct damages incurred by
the Generators as a result of such Event of Default by O&R.
8.3 Subject to indemnity obligations set forth in Article 7,
upon an Event of Default by the Generators under this Agreement, which
Event of Default is not excusable due to a Force Majeure Event or due to an
Event of Default by O&R under this Agreement, the Generators' liability to
O&R shall be limited to O&R's direct damages incurred by O&R as a result of
such Event of Default by the Generators.
8.4 The provisions of this Article 8 shall survive termination,
cancellation, suspension, completion, or expiration of this Agreement.
9. FORCE MAJEURE
9.1 Force Majeure Event
A Party shall not be considered to be in default or breach of
this Agreement, and shall be excused from performance, or liability for
damages to the other Party, to the extent it shall be delayed in or
prevented from performing or carrying out any of the obligations or
responsibilities of this Agreement because of Force Majeure Event. "Force
Majeure Event" means any occurrence beyond the reasonable control of a
Party which causes such Party to be delayed in or prevented from performing
or carrying out any of its obligations under this Agreement and which by
the exercise of due diligence in accordance with Good Utility Practices,
that Party is unable to prevent, avoid, mitigate, or overcome, including
any of the following: any act of God, labor disturbance, act of the public
enemy, war, insurrection, riot, fire, storm or flood, ice, explosion,
breakage or accident to machinery or equipment, order, regulation or
restriction imposed by governmental military or lawfully established
civilian authorities provided that a Force Majeure Event shall not include
lack of finances or change in market conditions, and provided further that
any failure by the Generators to obtain fuel or services for the Facility
due to the failure of any supplier or subcontractor of the Generators to
perform any obligation to the Generators will not constitute a Force
Majeure Event hereunder unless such subcontractor or supplier is unable to
perform for reasons that would constitute a "Force Majeure Event"
hereunder.
9.2 Obligations to Make Payment
Nothing contained in this Article 9 shall relieve any Party of
the obligation to make payments when due pursuant to this Agreement,
provided that O&R shall not be required to pay Installed Capacity Payments
or Energy Payments due under Sections 3 and 4 to the extent that (i) with
respect to Installed Capacity Payments, the Generators are unable to
provide ICAP because of a Force Majeure Event experienced by the Generators
and O&R is unable to receive Installed Capacity credit as a result thereof
and (ii) with respect to Energy Payments, the Generators are unable to
deliver Energy because of a Force Majeure Event experienced by the
Generators.
9.3 Notice and Due Diligence
Any Party claiming that a Force Majeure Event has occurred
shall (i) provide prompt written notice of such Force Majeure Event to the
other Party giving a detailed written explanation of the event and estimate
of its expected duration and probable effect on the performance of that
Party's obligations hereunder; and (ii) use commercially reasonable efforts
in accordance with Good Utility Practices to mitigate the effect of the
Force Majeure Event on the other Party, including the provision of
Replacement Capacity, if available; except that settlement of any labor
dispute shall be in the sole judgment of the affected Party.
9.4 Survival
The provisions in this Article 9 shall survive termination,
cancellation, suspension, completion or expiration of this Agreement.
10. DEFAULT AND TERMINATION
10.1 Event of Default Defined
Unless excused by a Force Majeure Event, or the other Party's
Event of Default, each of the following events shall be deemed to be an
"Event of Default" hereunder: failure of either Party, in a material
respect, to comply with, observe, or perform any covenant, warranty or
obligation under this Agreement, without limitation, including the
obligation to pay amounts due under Article 3 and 4 in accordance with
Article 6, and such failure is not cured or rectified within 30 days after
receipt of written notice of such failure from the other Party or such
longer period as may be reasonably required, provided that the defaulting
Party diligently attempts to cure the Event of Default; provided, however,
that in any event, O&R shall have no more than five Business Days to pay
any past due bill.
10.2 This Agreement shall terminate if the ASA's are
terminated.
10.3 The provisions of this Section 10 are subject to the
occurrence of the Closing Date and shall survive termination, cancellation,
suspension, completion or expiration of this Agreement.
11. ADDITIONAL REMEDIES
Subject to Section 8.1, and to the extent permitted by law, the
Parties shall be entitled to injunctive relief to prevent breaches by a
Party, and specific performance to enforce the terms of this Agreement, in
addition to any other remedy to which a Party is entitled under this
Agreement, at law, or in equity. In addition, the non-defaulting Party may
pursue any remedies and may begin proceedings at the FERC to terminate this
Agreement by giving at least ten days advance written notice to the
defaulting Party, such termination to be effective as of the date specified
in such notice, subject to the approval of the FERC, in accordance with
FERC regulations.
12. DISPUTES
Any disagreement between O&R and the Generators as to their
rights and obligations under this Agreement shall first be addressed by the
Parties. If representatives of the Parties are unable in good faith to
satisfactorily resolve their disagreement, the Parties shall refer to the
matter to their respective senior management. If after using their 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.
13. REPRESENTATIONS
13.1 Representations of O&R
O&R represents and warrants to Generators as follows:
(a) Organization. O&R is a corporation duly organized,
validly existing and in good standing under the laws of the State of New
York and O&R has the requisite corporate power and authority to carry on
its business as now being conducted;
(b) Authority Relative to this Agreement. O&R 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. The Agreement has been duly
and validly executed and delivered by O&R and constitutes a valid and
binding Agreement of O&R;
(c) Regulatory Approval. O&R 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 O&R to execute and deliver this
Agreement; and
(d) Compliance With Law.
(i) O&R represents and warrants
that it is not in violation of any applicable law, statute, order,
rule, or regulation promulgated or judgment entered by any Federal,
state, or local governmental authority, which violation would affect
O&R's performance of its obligations under this Agreement.
(ii) O&R represents and warrants
that it will comply in all material respects with all applicable
laws, rules, regulations, codes and standards of all Federal, state,
and local governmental agencies having jurisdiction over this
Agreement and all applicable rules, requirements and procedures of
the ISO and NYPP, except to the extent that a failure to so comply
would not have a material adverse effect on O&R's obligations
hereunder.
13.2 Representations of Generators
Each Generator represents and warrants to O&R as follows:
(a) Organization. Each Generator is a limited liability
company, validly existing and in good standing under the laws of the State
of Delaware and each Generator has the requisite power and authority to
carry on its business as now being conducted;
(b) Authority Relative to this Agreement. Each 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 the Managers or Members of each Generator and no
other company proceedings on the part of the Generators are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby. The Agreement has been duly and validly executed and delivered by
each Generator and constitutes a valid and binding Agreement of each
Generator;
(c) Regulatory Approval. Each 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 it to execute and
deliver this Agreement; and
(d) Compliance With Law.
(i) Each Generator represents and
warrants that it is not in violation of any applicable law, statute,
order, rule, or regulation promulgated or judgment entered by any
Federal, state, or local governmental authority, which violation
would affect its performance of its obligations under this Agreement.
(ii) Each Generator represents and
warrants that it will comply in all material respects with all
applicable laws, rules, regulations, codes and standards of all
Federal, state, and local governmental agencies having jurisdiction
over this Agreement and all applicable rules, requirements and
procedures of the ISO and NYPP, except to the extent that a failure
to so comply would not have a material adverse effect on its
obligations hereunder.
13.3 The representations and warranties in Sections 13.1 and
13.2 shall continue in full force and effect for the term of this
Agreement.
14. ASSIGNMENT OR OTHER CHANGE IN CORPORATE IDENTITY
(a) 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 assignment of any right,
interest or obligation under this Agreement may not be made without the
other Party's written consent, which may not be unreasonably withheld.
Assignments that are not consented to may be voided by the non-assigning
Party. This Agreement shall be binding upon and inure to the benefit of
O&R, the Generators and their respective successors and assigns.
Notwithstanding the foregoing, (a) O&R may assign this Agreement to an
affiliate of O&R that has a contractual or statutory obligation to supply
Installed Capacity and Energy to O&R's retail customers, provided, however,
that no such assignment, transfer, pledge, conveyance, or disposition shall
relieve or in any way discharge O&R from the performance of its duties and
obligations under this Agreement; and (b) the Generators may assign,
transfer, pledge or otherwise dispose of their respective rights and
interests hereunder to (i) a trustee or lending institution(s) for the
purposes of financing or refinancing the acquisition of the Purchased
Assets, including upon or pursuant to the exercise of remedies under such
financing or refinancing, or by way of assignments, transfers, pledges,
conveyances, or dispositions in lieu thereof; provided, however, that no
such assignment, transfer, pledge, conveyance, or disposition shall relieve
or in any way discharge the Generators from the performance of their
respective duties and obligations under this Agreement; or (ii) an
affiliate of the Generators or (iii) a purchaser, transferee or
lessor of all or substantially all of a Generator's right, title and
interest in and to the Purchased Assets, provided such purchaser,
transferee or lessor (A) (1) has a "net worth", or "consolidated net
worth", if applicable, as determined in accordance with U.S. generally
accepted accounting principles and reflected in an audited balance sheet
(or consolidated balance sheet, if applicable) ("Net Worth") at least equal
to an amount equal to (x) with regard to Bowline LLC, one-third of the
Purchase Price (as described in Section 3.1 of the Bowline Point Generating
Station Sales Agreement), (y) with regard to Lovett LLC, one-third of the
Purchase Price (as described in Section 3.1 of the Lovett Generating
Station Sales Agreement) and (z) with regard to NY-Gen LLC, one-third of
the Purchase Price (as described in Section 3.1 of the Gas Turbine and
Hydroelectric Generating Station Sales Agreement), or (2) provides a
guaranty from an affiliate which has a Net Worth at least equal to the
amount specified in (A)(1) above and (B) demonstrates its ability to
operate the Purchased Assets to O&R's reasonable satisfaction in accordance
with Good Utility Practices.
(b) The Generators acknowledge that O&R has entered into
an Agreement and Plan of Merger whereby O&R will become a wholly-owned
subsidiary of Consolidated Edison, Inc. ("CEI"). Notwithstanding any other
provision of this Article 14, the Generators agree that this Agreement may
be assigned to CEI, or a wholly-owned affiliate of CEI without the
Generators' consent provided, however, that no such assignment, transfer,
pledge, conveyance, or disposition shall relieve or in any way discharge
O&R from the performance of its duties and obligations under this
Agreement.
15. 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 benefit 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.
16. 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.
17. GOVERNING LAW
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 and
the federal 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 federal and state courts of the State of New York. Both
Parties hereby consent to the exclusive jurisdiction of the courts 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. If
requested by O&R, each Generator will consent to appointing an agent for
service of process in New York City.
18. SEVERABILITY
If 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 enforcability
of the remaining provisions hereof shall not be affected thereby.
19. AMENDMENT
If the applicable provisions of the ISO Tariff, or any other
ISO or NYPP rules relating to Installed Capacity and Energy or the
implementation of this Agreement are changed materially from the ISO Tariff
filed with FERC by the Member Systems of NYPP on December 19, 1997, the
Parties shall endeavor in good faith to make conforming changes to this
Agreement with the intent to fulfill the purposes of this Agreement,
provided, however, that in no event shall such change excuse O&R from
paying the Capacity Payment in accordance with Section 3.2. Any such
conforming change to this Agreement shall be subject to filing with FERC.
Except as provided above in this Section 19 and subject to Section 2.2, the
rates, 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 Partes. It is the intent of this Section 19 that, except as provided
above in this Section 19 and subject to Section 2.2, to the maximum extent
permitted by law, the rates, terms and conditions in this Agreement shall
not be subject to change, regardless of whether such change is sought (a)
by the FERC acting sua sponte on behalf of a Party or third party, (b) by a
Party, (c) by a third party, or (d) in any other manner and that this
Agreement may be amended, modified, or supplemented only by written
agreement of both O&R and the Generators.
20. ENTIRE AGREEMENT
This Agreement, the ASA's and the Ancillary Agreements
constitute the entire understanding between the Parties, and supersedes any
and all previous understandings, oral or written, which pertain to the
subject matter contained herein or therein.
21. 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 instruments and documents which may be reasonably requested in
order to effectuate the transactions contemplated hereby.
22. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to
confer on any person, other than the Parties, any rights or remedies under
or by reason of this Agreement.
23. CONFIDENTIALITY
(a) All information regarding a Party (the "Disclosing
Party") that is furnished directly or indirectly to the other Party (the
"Recipient") pursuant to this Agreement and marked "Confidential" shall be
deemed "Confidential Information". Notwithstanding the foregoing,
Confidential Information does not include information that (i) is
rightfully received from Recipient from a third party having an obligation
of confidence to the Disclosing Party, (ii) is or becomes in the public
domain through no action on Recipient's part in violation of this
Agreement, (iii) is already known by Recipient as of the date hereof, or
(iv) is developed by Recipient independently of any Confidential
Information of the Disclosing Party. Information that is specific as to
certain data shall not be deemed to be in the public domain merely because
such information is embraced by more general disclosure in the public
domain.
(b) Recipient shall keep the Confidential Information
strictly confidential and not disclose any Confidential Information to any
third party for a period of two years from the date the Confidential
Information was received by Recipient, except as otherwise provided herein.
(c) Recipient may disclose the Confidential Information
to its and its affiliates' respective directors, officers, employees,
consultants, advisors and agents who need to know the Confidential
Information for the purpose of assisting Recipient with respect to its
obligations under this Agreement. Recipient shall inform all such parties,
in advance, of the confidential nature of the Confidential Information.
Recipient shall cause such parties to comply with the requirements of this
Agreement and shall be responsible for the actions, uses, and disclosures
of all such parties.
(d) If Recipient becomes legally compelled or required to
disclose any of the Confidential Information (including, without
limitation, pursuant to the rules or regulations of the NYPP, ISO or FERC),
Recipient will provide the Disclosing Party with prompt written notice
thereof so that the Disclosing Party may seek a protective order or other
appropriate remedy. Recipient will furnish only that portion of the
Confidential Information which its counsel considers legally required, and
Recipient will cooperate, at the Disclosing Party's expense, with the
Disclosing Party's counsel to enable the Disclosing Party to obtain a
protective order or other reliable assurance that confidential treatment
will be accorded the Confidential Information. It is further agreed that,
if in the absence of a protective order, Recipient is nonetheless required
to disclose any Confidential Information, Recipient will furnish only that
portion of the Confidential Information which its counsel considers is
legally required.
(e) Recipient shall promptly return to the Disclosing
Party all items containing or constituting Confidential Information,
together with all copies, extracts, or summaries thereof, upon the earlier
of (i) the Disclosing Party's request, or (ii) the termination or
expiration of this Agreement.
24. NOTICES
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed effective upon receipt
when delivered either by hand delivery, cable, telecopy (confirmed in
writing) or telex, or by mail (registered or certified, postage prepaid) to
the respective Parties as follows:
If to O&R, to:
Orange and Rockland Utilities, Inc.
One Blue Hill Plaza
Pearl River, New York 10965
Attention: Legal Department
Fax: (914) 577-2959
with copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Attention: Sheldon S. Adler, Esq.
If to the Generators to:
Southern Energy Bowline, L.L.C.
Southern Energy Lovett, L.L.C.
Southern Energy NY-Gen, L.L.C.
900 Ashwood Parkway
Suite 500
Atlanta, Georgia 30338
Attention: Randy Harrison, Vice President
Southern Company Services
276 Peachtree Street
Bin 918
Atlanta, Georgia 30303
Attention: Vice President and Associate General Counsel
and
Troutman Sanders LLP
Nationsbank Plaza
Suite 5200
Atlanta, Georgia 30308
Attention: Robert C. Marshall, Esq.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed as of the date and year first above written.
SOUTHERN ENERGY BOWLINE, L.L.C.
By: /s/ Randy Harrison
_____________________________
Name: Randy Harrison
Title: Vice President
SOUTHERN ENERGY LOVETT, L.L.C.
By: /s/ Randy Harrison
____________________________
Name: Randy Harrison
Title: Vice President
SOUTHERN ENERGY NY-GEN, L.L.C.
By: /s/ Randy Harrison
_____________________________
Name: Randy Harrison
Title: Vice President
ORANGE AND ROCKLAND UTILITIES, INC.
By: /s/ D. Louis Peoples
______________________________
Name: D. Louis Peoples
Title: Vice Chairman and Chief Executive
Officer