Revised Draft 8/15/00 8/28/00
				 
CAPACITY
AND
ENERGY AGREEMENT
By and Between
[EDGECOMBE DEVELOPMENT CO., LLC]
and
VIRGINIA ELECTRIC AND POWER COMPANY

Dated as of ______________, 2000

TABLE OF CONTENTS
Page

RECITALS	1
ARTICLE 1  DEFINITIONS	1
1.1	Definitions	1
1.2	Rules of Construction	6 5
ARTICLE 2  TERM	6
2.1	Contract Term	6
2.2	Delivery Term	7
2.3	Construction of the Facility	7
ARTICLE 3  QUANTITY	8 7
3.1	Contract Quantity	8 7
3.2	Deliveries	8
3.3	Alternate Source of Supply	8
3.4	Scheduling	9 8
ARTICLE 4  CONTRACT PRICE	10
4.1	Contract Price	10
4.2	Demand Charge	10
4.3	Energy Charge	10
4.4	O&M Charge	10
4.5	Dispatch Order Start-Up Charge	11 10
4.6	Liquidated Damages for Non-Performance	11 10
4.7	Payment of Liquidated Damages	13
4.8	Buyer's Failure	14 13
4.9	Acknowledgment of Parties	14 13
ARTICLE 5  DELIVERY POINTS; OBLIGATIONS OF THE PARTIES; TITLE	14 13
5.1	Delivery Points	14 13
5.2	Further Obligations of the Parties	15 14
5.3	Title; Risk of Loss; and Indemnity	15 14
5.4	Fuel Oil	15
ARTICLE 6  REPRESENTATIONS AND WARRANTIES	15
6.1	Representations and Warranties	15
6.2	No Other Representations and Warranties	16 15
6.3	Remaking of Representations and Warranties	16
ARTICLE 7  EVENTS OF DEFAULT AND REMEDIES	16
7.1	Event of Default	16
7.2	Remedies Upon an Event of Default	17
7.3	Limitation of Remedies, Liability and Damages	17
7.4	Duty to Mitigate	18 17
7.5	Seller's Negation	18 17
ARTICLE 8  BILLING AND PAYMENT	18
8.1	Billing and Payment	18
8.2	Setoff	19 18
8.3	Audit	19 18
ARTICLE 9  ASSIGNMENT; BINDING EFFECT	19
9.1	Assignment	19
9.2	Binding Effect	20 19
ARTICLE 10  FORCE MAJEURE	20 19
10.1	Force Majeure	20 19
10.2	Effect of Force Majeure	20 19
10.3	Termination Due to Force Majeure	20
10.4	Other Events	20
ARTICLE 12  TAXES; STRANDED COSTS	; ENVIRONMENTAL COSTS 21 20
11.1	General	21 20
11.2	Applicable Taxes	21 20
11.3	Stranded Costs	21
ARTICLE 12  CONFIDENTIALITY	21
12.1	Confidentiality	21
ARTICLE 13  NOTICES	22 21
13.1	Notices	22 21
ARTICLE 14 DISPUTE RESOLUTION	22
14.1	Senior Management Referral	22
14.2	Arbitration	22
14.3	The Award	23 22
ARTICLE 15  MISCELLANEOUS	23
15.1	Entirety	23
15.2	Governing Law	23
15.3	Non-Waiver	23
15.4	Severability	23
15.5	Headings; Exhibits	23
15.6	Survival	24 23
16.6	Winding Up Arrangements	24 23
15.7	No Third Party Beneficiaries	24 23
15.8	Counterparts	24 23

CAPACITY AND ENERGY AGREEMENT
	This Capacity and Energy Agreement (this "Agreement") is entered into effective as of the _____ Day of __________________, 2000 (the "Effective Date"), by and between [EDGECOMBE DEVELOPMENT CO., LLC], a Delaware limited liability company, with its principal office at 1400 Smith Street, Houston, Texas 77002 (together with its successors and permitted assigns, "Seller"), and VIRGINIA ELECTRIC AND POWER COMPANY, a __________Virginia public service corporation, with its principal office at _________________________________________120 Tredegar Street, Richmond, Virginia  23219 (together with its successors and permitted assigns, "Buyer").  Seller and Buyer are also referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A.	Buyer and Seller desire that Seller shall sell to Buyer capacity and electric energy from the Facility or from sources other than the Facility.
B.	The Parties desire to set forth herein the terms and conditions of their understanding concerning the foregoing matters.

In consideration of the mutual promises and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 
ARTICLE 1
DEFINITIONS
1.1	Definitions.  As used in this Agreement, the following terms shall have the respective meanings set forth below.  Certain other capitalized terms are defined where they appear in this Agreement.
"Affiliate" shall mean any Person that directly or indirectly Controls, is Controlled by, or is under common Control with the Person in question.
"Block” shall mean an amount of Energy equal to 50 MW; however, if the Energy Scheduled by Buyer is greater than 200 MW, the last Block shall equal at least 50 MW but shall not exceed the difference between the Contract Capacity and 150 MW.
"Business Day" shall mean a Day, other than a NERC holiday, on which Federal Reserve member banks in New York City are open for business; and a Business Day shall open at 8:00 a.m. and close at 5:00 p.m. E.P.T. EPT.
"Claims" shall mean all claims or actions, threatened or filed and whether groundless, false or fraudulent, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expenses, attorneys’ fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement.
"Commencement Date" shall mean the date specified in Section 2.2.
“Commercial Operation Date” shall mean the date, declared by Seller, on which the Facility is capable of generating electricity for sale on a commercial basis.
"Contract Capacity" shall mean 210 MW; provided, however, that if the power output capability of the Facility that is declared by Seller on the Commercial Operation Date, expressed in MW at 75°F and 60% relative humidity, is less than 97.5% of 210 MW, the actual capacity of the Facility as determined on the Commercial Operation Date (adjusted to75 to 75°F and 60% relative humidity) shall be the Contract Capacity.

"Contract Price" shall mean collectively, the Demand Charges, the Energy Charges, the Fixed O&M Charges, and the Dispatch Order Charges as set forth in Article 4 and on Exhibit A hereto.
"Contract Term" shall mean the term specified in Section 2.1.
"Control" shall mean the possession, directly or indirectly, through one or more intermediaries, of the following:  (a) in the case of a corporation, 10% or more of the outstanding voting securities thereof; (b) in the case of a limited liability company, partnership, limited partnership or venture, the right to 10% or more of the distributions therefrom (including liquidating distributions); (c) in the case of a trust or estate, 10% or more of the beneficial interest therein; (d) in the case of any other entity, 10% or more of the economic or beneficial interest therein; or (e) in the case of any entity, the power or authority, through the ownership of voting securities, by contract or otherwise, to direct the management, activities or policies of the entity.
"Day" shall mean the period of twenty-four (24) hours from 12:00 midnight until the next midnight. 
"Day-Ahead Schedule Notice" shall have the meaning set forth in Section 3.5 3.4(b).
“Deliver” or “Delivered” shall mean the delivery of Energy to a Delivery Point in accordance with Buyer’s Schedules.
"Delivery Point" shall mean any of the Delivery Points described in Section 5.1.
"Delivery Term" shall mean the term for the purchase and sale of Energy hereunder, as set forth in Section 2.2.
"Demand Charge" shall mean the amounts to be paid by Buyer to Seller for each Month during the Year during the Delivery Term, for Buyer's right to Schedule Energy in accordance with this Agreement, all as more particularly set forth in Section 4.2.
“Dispatch Order” shall mean each schedule for delivery of a Block issued by Buyer under this Agreement.  For example, if Buyer’s Day-Ahead Schedule Notice requires delivery of one Block for a period of four (4) Hours, then no deliveries for four (4) Hours and then delivery of two (2) Blocks for eight (8) Hours, three (3) Dispatch Orders will be deemed to have been given.
"Dispatch Order Charge" shall mean the component of the Contract Price as defined in Section 4.5 and in Exhibit A. 
"Dollar" shall mean a unit of currency denominated in United States Dollars.
"Energy" shall mean electric power.
"Energy Charge" shall mean the amount to be paid by Buyer to Seller each Month during the Delivery Term for each MWh of the Contract Quantity of Energy delivered as set forth in Section 4.3 and in Exhibit A.
"EPT" shall mean Eastern Prevailing Time.
"Facility" shall mean that certain dual fueled combustion turbine electricity generating facility with an expected gross Contract Capacity of approximately 210 MW to be constructed in Edgecombe County, North Carolina, and shall include the transmission lines connecting such generating Facility to the Facility Substation. 
"Facility Substation" shall mean the substation located at ______________ at adjacent to the Facility to which the Facility will be interconnected to Buyer’s transmission system serving the Facility.  The Facility Substation shall include a revenue meter owned and maintained by VEPCO.
"Fixed O&M Charge" shall mean the component of the Contract Price as defined in Section 4.4 and in Exhibit A.
"Force Majeure" shall mean an event which is not within the reasonable control of the Party (or in the case of third party obligations or facilities, the third party) claiming suspension (the "Claiming Party"), and which by the exercise of reasonable diligence the Claiming Party, or third party, is unable to overcome.  Events of Force Majeure may include, but are not restricted to: acts of God; ; fire; explosion; civil disturbance; labor dispute; labor or material shortage; sabotage; Change in Law; action or inaction of a Government Authority and action or restraint by court order or Governmental Authority (so long as the Claiming Party has not applied for or assisted in the application for, and has opposed where and to the extent reasonable, such government action).  The following shall not constitute an event of Force Majeure: (a)  loss of Buyer's markets nor Buyer's inability economically to use or resell Energy purchased hereunder; (b) Seller's ability to sell Energy to a market at a more advantageous price; (c) interruption of the flow of Fuel or Energy by a Transmission Provider or Transportation Provider unless otherwise constituting an event of Force Majeure as defined above or (i)  the Party contracting with such Transmission Provider or Transportation Provider shall have made arrangements with such Transmission Provider or Transportation Provider for firm transmission service, and (ii) such interruption is due to an interruption or curtailment in accordance with the Transmission Provider’s or Transportation Provider's tariff or other applicable tariff; (d) prices of goods and services or other economic considerations; and (e) the breakdown of Facility equipment or components that is attributed to normal wear and tear.
"Forced Outage" shall mean any interruption in the delivery of a portion or all of the Scheduled Energy to the Delivery Point that is not the result of planned maintenance pursuant to Section 3.4(g), an event of Force Majeure or a breach by Buyer under this Agreement.
“Forced Outage Rate” shall mean the percentage of the hours in the Year during which Forced Outages occur, calculated as have the meaning set forth in Section 4.6.
"Fuel" shall mean natural gas or No. 2 fuel oil.
"GAAP" shall mean Generally Accepted Accounting Principles in effect from time to time in the United States.
"Government Authority" shall mean any local, state, regional or federal administrative, legal, judicial or executive agency, court, commission, department, or other such entity, but excluding any such agency, court, commission or other such entity acting in its capacity as lender, guarantor or mortgagee.
"Hour" shall mean each of the twenty-four (24) sixty (60) minute intervals comprising a Day, as generally used and understood in the electric power industry.
		"Interconnection Agreement" shall mean the Generator Interconnection and Operating Agreement between Buyer and Seller dated as of ___________, 2000.
"Interest Rate" shall mean, for any date, two percent (2%) over the per annum rate of interest equal to the prime lending rate as may from time to time be published in the Wall Street Journal under "Money Rates"; provided, the Interest Rate shall be compounded daily, and shall never exceed the maximum lawful rate permitted by applicable law.
"Intra-Day Schedule Notice" shall mean any Schedule notice submitted/requested by Buyer after the Day-Ahead Schedule Notice deadline.
“kW” shall mean one kilowatt, or one thousand watts of electric power.
“kWh” shall mean one kilowatt hour or one thousand watts of electric power per hour.
“Market Sources” shall mean any source of wholesale energy available to Seller other than the Facility.
"Month" shall mean a calendar month.
"MW" shall mean one megawatt, or one million watts of electric power.
"MWh" shall mean one megawatt hour, or one million watts of electric power per hour.
"NERC" shall mean North American Electric Reliability Council, and any successor entity.

“On-Peak Hours” shall mean the hours from 7:00 a.m. EPT until 11:00 p.m. EPT of each day of  the week Monday through Friday.
“Operational Limitations” shall have the meaning as described in Section 3.4 (d).
"Operating Year" shall mean during the Delivery Term the periods June 1, 2001 through May 31, 2002; June 1, 2002 through May 31, 2003; June 1, 2003 through May 31, 2004 and June 1, 2004 through August 31, 2004.
“Peak Period” shall mean the period of January 1 through February 28 (or 29, if a leap year) and June 1 through September 30 of each Year.
"Person" shall mean one or more individuals, corporations, partnerships, or other entity possessing legal rights.
“Planned Maintenance Period” shall mean those periods of scheduled maintenance as agreed by Buyer and Seller pursuant to Section 3.4 (g).
"Sales Price" shall mean the price at which Seller, acting in a commercially reasonable manner, sells (if at all) the Energy Scheduled but not received by Buyer (less any additional transmission charges or other expenses, if any, incurred by Seller to resell the Energy).
"Schedule" or "Scheduling" shall mean the acts of Buyer and/or its designated representatives, of notifying, requesting and confirming to Seller the quantity of Energy to be delivered Hourly on any given Day or Days during the Delivery Term.
"SERC" shall mean Southeast Electric Reliability Council, and any successor entity.
"Start-Up" shall mean thecommencement the commencement of delivery of one or more Blocks of Energy to the Delivery Point necessary to meet all or a portion of a Schedule.  Start-Up shall cease with respect to a Block when delivery of Energy in the quantity needed to meet the requested Schedule has commenced.
		“Summer Months” shall mean the Months of May through September.
"Taxes" shall mean any [any tax, duty, impost and levy of any nature (whether state, local or federal) whatsoever and wherever charged, levied or imposed, together with any interest and penalties in relation thereto]. or all ad valorem, property, occupation, severance,
generation, first use, conservation, Btu or energy, transmission, utility, gross receipts, privilege, sales, use, consumption, excise, lease, transaction, and other taxes, governmental charges, licenses, fees, permits and assessment, or increases therein, other than taxes based on net income or net worth.

"Transmission Provider" shall mean the entity or entities transmitting Energy on behalf of Seller or Buyer to or from the Delivery Point.
		“Winter Months” shall mean the Months of October through April.
"Year" shall mean a calendar year.
1.2	Rules of Construction. The following rules of construction shall be followed when interpreting this Agreement:
(a)	titles and headings are inserted for convenience only and shall not be used for the purposes of construing or interpreting this Agreement;  
(b) 	words importing the singular also include the plural and vice versa;  
(c) 	references to natural persons or parties includes firms, corporations, or any other entity having legal capacity;  
(d)	words importing one gender include the other gender;  
(e)	the word "include" and "including" are not words of limitation and shall be deemed to be followed by the words "without limitation"; 
(f)	all references contained herein to contracts, agreements, or other documents shall be deemed to mean such contracts, agreements or documents, as the same may be modified, supplemented, or amended from time-to-time; and
(g)	words and abbreviations not defined in this Agreement which have well-known technical or design, engineering, or construction industry meanings are used in this Agreement in accordance with such recognized meanings.
ARTICLE 2
TERM
2.1	Contract Term.
  (a) The Contract Term shall begin on the Effective Date and end on the last Day of the Delivery Term; provided, however, that neither Party shall be liable for any obligations hereunder unless on or before November 30, 2000, the following conditions precedent have been met:
(i)	Buyer and Seller shall have entered into an agreement for the interconnection of the Facility with Buyer’s transmission system on terms satisfactory to Seller;
(ii)	Seller shall have received all licenses, certificates, permits and consents of Government Authorities necessary for the ownership and commencement of construction of the Facility; and
(iii)	Seller shall have entered into a long-term binding contract for the supply of natural gas for the Facility on terms and conditions satisfactory to Seller.
In the event the foregoing conditions precedent are not satisfied or waived by Seller in its sole discretion on or before November 30, 2000, either Party shall have the right, by notice issued to the other Party within ten (10) Days following such date, to terminate this Agreement.  Upon such termination, neither Party shall have any liability to the other Party other than with respect to any provisions hereof that survive termination.
(b)	Seller agrees that from the Effective Date through December 31, 2000 neither it nor any of its Affiliates shall sell, offer to sell or solicit offers for the purchase of the capacity and energy to be generated by the Facility, up to the Contract Capacity, to or from any Person other than Buyer. In the event that on or before December 31, 2000, Seller commences construction of the Facility, Seller shall be deemed to have waived any unsatisfied condition precedent under Section 2.1(a) and, if this Agreement has previously been terminated, upon Buyer’s demand issued in writing on or before December 31, 2000, this Agreement shall automatically be deemed to be reinstated and in full force and effect between the Parties. The provisions of this Section 2.1(b) shall survive termination of this Agreement but shall expire at 11:59 p.m. on December 31, 2000.
 2.2	Delivery Term.  The purchase and sale of Capacity and Energy shall commence June 1, 2001 (the "Commencement Date"), regardless of whether the Facility is commercially operable at that time, and shall continue through [August 31,] 2004. 
2.3	Construction of the Facility.  The scheduled Commercial Operation Date for the Facility is July 1, 2001, which date shall be extended in the event of (i) a delay due to Force Majeure, (ii) a breach by Buyer under this Agreement or (iii) a failure by Buyer or its Affiliates to complete the interconnection facilities for the Facility in time for the start-up and testing for the Facility to occur on a schedule that will allow the Commercial Operation Date to be achieved by such date (“Excusable Delays”).  In the event that the Facility does not achieve the Commercial Operation Date on or before July 1, 2001 (as so extended) such failure shall not constitute a default under this Agreement so long as (i) Seller commenced construction of the Facility on or before December 1, 2000 and (ii) as of the Commencement Date, Seller commences delivering Energy from alternate sources in accordance with Section 3.3.  For the purposes of Section 2.1(b) and this Section 2.3 Seller shall have “commenced construction” upon the commencement of grading and leveling work at the Facility site.  If Seller has not completed construction of the Facility and declared the Commercial Operation Date before November 30 October 31, 2001 (as extended due to Excusable Delays), Seller shall obtain rights to capacity equal to the Contract Capacity from one or more generation facilities in Buyer’s control area within thirty (30) days of such date.  If Seller does not fulfill its obligation to such capacity, Buyer may terminate this Agreement upon notice to Seller and such notice shall not be provided any earlier than November 30, 2001., delivered subsequent to the expiration of such thirty (30) day period.
ARTICLE 3
QUANTITY; SCHEDULING
3.1	Contract Quantity. 
(a)	Contract Capacity.  From and after June 1, 2001and 2001 and during the remainder of the Delivery Term, Seller shall provide, and Buyer shall be purchase and receive, or cause to be received, the Contract Capacity, subject to the provisions of this Agreement.  In the event Seller represents and warrants that whether or not the Commercial Operation Date has not occurred on or before by June 1, 2001, Seller must by such date demonstrate to Buyer’s reasonable satisfaction that Seller has capacity shall have under contract or otherwise available to it capacity equal to 210 MW that Buyer may claim for meeting its reported capability requirements.  
(b)	Energy. Seller shall sell and deliver, and Buyer shall purchase and receive an amount of Energy in any Hour Scheduled by Buyer up to the Contract Capacity; provided, however that Seller shall not be required to deliver, and Buyer shall have no right to Schedule Energy in excess of 1400 hours in any Year. Operating Year provided that during the last Operating Year this shall be limited to 350 hours.
(c)	Excess Capacity and Energy.  Seller shall have the right to sell any capacity of the Facility in excess of the Contract Capacity and, Energy associated with such excess capacity and any Energy not Scheduled by Buyer to any Person, so long as such sales do not impact Buyer’s right to the Contract Capacity under this Agreement.
3.2	Deliveries.  All deliveries and receipts of Energy under this Agreement shall be made at the Delivery Point(s).
3.3	Alternate Source of Supply.  
(a)	Anything herein to the contrary notwithstanding, Seller may supply the Energy sold to Buyer hereunder from the Facility or any other source Market Source, at Seller's sole right and option.  However, if Seller is supplying the Energy from Market Sources and that supply is interrupted, Seller shall  and the Facility is not supplying Energy to any other Person, Seller shall either replace the Scheduled Energy or supply it from the Facility, subject to the Facility as soon as practicable following notice from Buyer that the supply has been interrupted, subject to the Facility’s Operational Limitations set forth in Section 3.4(d).  In the event that Seller fails to replace the Scheduled Energy or supply it from the Facility, such failure to deliver Scheduled Energy  shall be included in the Forced Outage Rate under Section 4.6 unless due to the Operational Limitations, an event of Force Majeure or Buyer’s non-performance under this Agreement or the interconnection agreement with Buyer.
(b)	In the event that Seller fails to replace the Scheduled Energy from market sources Market Sources, but Seller is supplying Energy from the Facility to other Persons during the Scheduled Hours, Seller shall commence Delivery from the Facility as soon as practicable, but not less than sixty (60) minutes from receipt of notice that supply from Market Sources has been cut, unless Delivery is prevented due to the Operational Limitations, an event of Force Majeure or Buyer’s non-performance under this Agreement or the interconnection agreement). . The time period between when Seller receives notice from Buyer and Seller commences Delivery (as referenced in the preceding sentence) shall be included in the FOR calculation.

3.4	Scheduling.
(a)	Weekly Forecast. Buyer shall provide to Seller by 5:00 p.m. EPT on each Friday a weekly non-binding estimate of its Energy requirements for the next succeeding week from Saturday through Friday. Buyer will provide an updated non-binding estimate by 5:00 p.m. EPT the following Monday for the period Tuesday through Friday of the then current week.
(b)	Day-Ahead Schedule. On or before 10:00 a.m. EPT on each Day, Buyer shall provide to Seller a good faith, non-binding Schedule of its Energy requirements for each Hour of the next Day.  Buyer shall provide to Seller no later than 11:00 a.m. EPT each Day a Schedule of the Energy to be purchased by the Buyer from Seller hereunder during each Hour of the next succeeding Day (a “Day-Ahead Schedule Notice”).  (For the purposes of this Section 3.5(b), if the next succeeding Day is a Saturday, then the good faith estimate and the Day-Ahead Schedule Notice shall be given for each Hour of such Saturday and the following Sunday and Monday.) Monday.  Buyer shall have the right, until 11:00 a.m. EPT, to change its Schedule from the amounts stated in the good faith estimate without any liability to Buyer. Each Day-Ahead Schedule Notice shall be for a minimum of four (4) consecutive Hours. All Energy Scheduled shall be Scheduled in Blocks.,].  Within two (2) Hours of receipt of Buyer’s Day-Ahead Schedule Notice, Seller shall provide Buyer with a schedule setting forth, for each Hour of the Day(s) for which the Day-Ahead Schedule Notice was provided, whether deliveries of Energy will be made from the Facility or from Market Sources, and if from Market Sources, specifying the Delivery Point(s), which Delivery Point(s) shall comply with the requirements of Section 5.1.  Seller shall have the right to sell to other Persons any Energy from the Facility not Scheduled by Buyer and Energy from the Facility in excess of the Contract Capacity.
(c)	Intra-Day Scheduling. Buyer may, upon at least four (4) Hours minimum advance notice to Seller, make changes to a Schedule by way of an Intra-Day Schedule Notice. Any such changes shall be in increments of at least 50 MW and may not exceed the Contract Capacity. If the Intra-Day Schedule Notice requires an increase in the Energy scheduled per the Day-Ahead Schedule Notice, Seller shall, at its sole discretion determine whether to dispatch the Facility or provide Energy from other sources Market Sources.  Seller shall use commercially reasonable efforts to accommodate Buyer’s Intra-Day Schedule Notice but if Seller is unable to do so, such Hours shall not be included as Energy Scheduled for the purpose of determining the Forced Outage Rate.  Buyer shall be liable to Seller for all additional costs (whether direct or indirect) and penalties (including cancellation charges), if any, incurred by Seller to accommodate Buyer’s Intra-Day Schedule Notice; provided, however, that such costs shall be limited to costs actually incurred by Seller (including cost of cover, penalties, liquidated damages, cancellation charges or the like due to another Person) with respect to (i) transactions entered into by Seller with other Persons prior to receipt of Buyer’s Intra-Day Schedule Notice (provided that such transactions and the terms thereof can be verified in an audit to be performed in accordance with Section 8.3, (ii) transactions that must be entered into by Seller in order to accommodate Buyer’s Intra-Day Schedule Notice or (iii) extra costs incurred in operating the Facility to accommodate such notice.  For the avoidance of doubt, such costs shall not include Seller’s lost opportunity costs with respect to transactions that Seller may have been able to obtain but were not entered into by Seller prior to receipt of the Intra-Day Schedule Notice.  Seller shall have the right, but not the obligation, to resell any Energy not taken by Buyer due to a decrease in Energy pursuant to an Intra-Day Schedule Notice provided, however, that the revenues from any such sales will be offset against the additional costs to be charged to Buyer as provided herein.
(d)	Operational Limitations.  The provisions of this paragraph shall apply to deliveries to be made from the Facility. Seller shall not be required to Start-Up the Facility more than two (2) times per day.  In addition, there shall be a minimum of four (4) Hours following each shut-down of the Facility before Seller can be required to Start-Up the Facility. Seller shall not be required to Start-Up the Facility during the any Planned Maintenance Period.  In no event shall Seller be obligated to operate the Facility in excess of its permit requirements.
(e)	Dispatch Limit.  Buyer shall be limited to  200 Dispatch Orders per Block per Year Operating Year (pro-rated for final Operating Year); provided, however, that in the event that Seller does not deliver at least 50% of the Energy Scheduled for the time period covered by the Dispatch Order, such Dispatch Order will not be counted for the purpose of the  200 Dispatch Order limitation.
(f)	Scheduling Procedures.  Prior to the Commencement Date, the Parties shall agree on detailed procedures for Energy scheduling notifications.
(g)	Planned Maintenance.  On or before September 1 of each Year, Seller shall provide to Buyer its proposed schedule for planned maintenance at the Facility for the following Year, which schedule shall be subject to Buyer’s approval, such approval not to be unreasonably withheld.  Seller shall have the right to alter its planned maintenance schedule on fifteen (15) days notice to Buyer, provided that Buyer approves the schedule change, such approval not to be unreasonably withheld.  No planned maintenance shall be scheduled during the On-Peak Hours of the Peak Periods without the prior consent of Buyer.
ARTICLE 4
CONTRACT PRICE
4.1	Contract Price.  The Contract Price to be paid by Buyer to Seller each Month during the Delivery Term shall consist of the Demand Charge, Energy Charge, Fixed O&M Charge and Dispatch Order Charge.
4.2	Demand Charge.  In consideration for the right of Buyer to purchase Energy at the Energy Charge and Contract Capacity on the terms and conditions of this Agreement, Buyer shall pay to Seller Monthly for each Month, throughout the Delivery Term a Demand Charge as set forth on Exhibit A.
4.3	Energy Charge.  In addition to the Demand Charge and all other amounts due to Seller under this Agreement, Buyer shall pay to Seller each Month during the Delivery Term an Energy Charge for Energy delivered each Day of the applicable Month, as set forth on Exhibit A.  
4.4	O&M Charge.  As a component of the Contract Price, Buyer shall pay to Seller each Month during the Delivery Term a Fixed O&M Charge, as set forth on Exhibit A.
4.5	Dispatch Order Charge.  As a component of the Contract Price, Buyer shall pay to Seller each Month during the Delivery Term a Dispatch Order Charge as set forth on Exhibit A.
4.6	Liquidated Damages for Non-Performance.  
	Seller acknowledges and agrees that availability of Contract Capacity and dependable delivery of Energy is essential to Buyer, and that Buyer will be substantially damaged in amounts that will be difficult or impossible to determine if the Contract Capacity is not available and Energy is not delivered when Scheduled by Buyer in accordance with this Agreement.  Accordingly, the Parties agree that the following liquidated damages are a reasonable approximation of Buyer’s damages and that the following liquidated damages shall not be construed as a penalty.  Any Except for Buyer’s right of termination set forth in Section 4.6(d), any liquidated damages calculated herein shall be Buyer’s sole and exclusive remedy for Seller's failure to make Contract Capacity available or to deliver Energy as Scheduled during an Operating Year. If, during any Operating Year, Seller's failure to deliver Energy as Scheduled by Buyer equates to a Forced Outage Rate greater than 4.0% but less than or equal to 10.0%, then Seller shall pay Buyer liquidated damages equal to: (i) the sum of the Demand Charges paid during the Year in accordance with Section 4.2 of this Agreement, multiplied by a percentage that is 3 times greater than the percentage that is the difference between the actual Forced Outage Rate and 4.0%.  For example, a Forced Outage Rate of 6.5% would result in liquidated damages for Buyer of 7.50% 7.5% or ((6.5% - 4.0%) * 3) of the Demand Charges paid during the Operating Year.

(b)	If, during any Operating Year, Seller's failure to deliver Energy as Scheduled by Buyer equates to a Forced Outage Rate greater than 10.0% but less than or equal to 14.0%, then Seller shall pay Buyer liquidated damages equal to: (i) the sum of the Demand Charges paid during the Operating Year in accordance with Section 4.2 of this Agreement, multiplied by (ii) the sum of (A) 18.0% and (B) the product of 7 times the difference between the actual Forced Outage Rate and 10.0%.  For example, a Forced Outage Rate of 12.5% would result in liquidated damages for Buyer of 35.50% or (18% + ((12.5% - 10%) *7)) of the Demand Charges paid during the Operating Year.

(c)	If, during any Operating Year, Seller's failure to deliver Energy as Scheduled by Buyer equates to a Forced Outage Rate greater than 14.0% but less than or equal to 20.0%, then Seller shall pay Buyer liquidated damages equal to: (i) the sum of the Demand Charges paid during the Operating Year in accordance with Section 4.2 of this Agreement, multiplied by (ii) the sum of (A) 46.0% and (B) the product of 11 times the difference between the actual Forced Outage Rate and 14.0%.  For example, a Forced Outage Rate of 16.5% would result in liquidated damages for Buyer of 73.50% or (46% + ((16.5% - 14%) *11)) of the Demand Charges paid during the Operating Year.

(d)	If, during the any Operating Year, Seller Delivers a number of KWh that equates to a Forced Outage Rate greater than 20.0%, then Seller shall pay Buyer liquidated damages equal to 100% of the Demand Charges payable during the Year. If the Forced Outage Rate exceeds 20.0% in any Operating year, then, in addition to its entitlement to liquidated damages described in this article, Buyer may terminate this Agreement pursuant to Article 7, and neither Party shall have any further liability to the other.

(e)	For purposes of this Section 4.6, the Forced Outage Rate (“FOR”) for the Operating Year (expressed as a percentage to one decimal place) shall be equal to the average of the FOR calculations for each one hour period as further developed in the Operating Procedures: 
FOR  =  [1 – {( A + B ) / ( C )}] 
Where:
A	=	Energy Delivered to a Delivery Point from a Market Source (in MWh).  

B	=	Energy Delivered from the Facility (in MWh). 
C	=	Energy Scheduled (in MWh); 

provided, however, if the FOR for the Operating Year would otherwise equal a negative number, the FOR shall be deemed to equal 0%.  For the purposes of this calculation, “A” shall include Energy Scheduled but not Delivered to the extent that Section 3.3(b) applies and Seller has paid the amount due under Section 4.6(g) with respect to such shortfall in deliveries.

(f)	For the purpose of determining the FOR for a an Operating Year, and provided Seller has Delivered Energy for a minimum of one hour for that Operating Year, it shall be deemed that Buyer Scheduled Energy at the Contract Capacity level for 900 hours (i.e., 189,000 MWh) during the Year Operating Year (except in the last Operating Year it shall be deemed that Buyer Scheduled Energy at the Contract Capacity level for 225 hours (i.e., 47,250 MWh) even if actual Energy Scheduled was less).  In the event that the Scheduled Energy for the Year was less than 189,000 MWh, the Energy Delivered for the purposes of determining A and B above will be adjusted by multiplying the aggregate of the actual Energy Delivered from Market Sources and the Facility by the ratio of 189,000 MWh to the Energy Scheduled.

For example, if the Energy Scheduled for the Operating Year was 178,500 MWh (850 hours multiplied by 210 MW), and 173,250 MWh (825 hours times 210 MW) were delivered, the 173,250 MWh will be multiplied by the result of 189,000/178,500 (i.e., 1.06) and the MWh as adjusted (in this case, 183,645 MWh) will be compared to the 189,000 MWh for the purposes of calculating the FOR.

                 A+B =	 183,645 MWh
                 C=	             189,000 MWh
                 FOR =         1 – (183,645/189,000) = 0.028

In the event that Seller Delivered Energy for less than one hour for a an Operating Year, and Buyer Scheduled Energy for less than 900 hours during the Operating Year, the Energy Delivered for the purposes of determining A and B above will be adjusted by multiplying the Contract Capacity by the difference between 900 hours and (Buyer Scheduled Energy divided by Contract Capacity).

For example, if the Energy Scheduled for the Operating Year was only 840 MWh (4 hours times 210 MW), and no MWh were delivered, Energy Delivered will be adjusted to 210 MW x (900 hours – (840 MWh/210 MW)) or 188,160 MWh.

                 A+B =	  188,160 MWh
                 C=		  189,000 MWh
                 FOR =	  1 – (188,160/189,000) = 0.004

4.7	Payment of Liquidated Damages.  Within thirty (30) Days after the last day of the Operating Year, Buyer shall send Seller an invoice setting forth the amount of liquidated damages with supporting calculations that are payable pursuant to Section 4.6.  Seller shall pay such liquidated damages within ten (10) days after receipt of such invoice from Buyer.

4.8	Buyer's Failure.  Unless excused by Force Majeure or Seller’s failure to perform, if Buyer fails to receive and take the Energy Scheduled by Buyer, Buyer shall pay Seller, on the date payment would otherwise be due to Seller, liquidated damages in an amount for each MWh of such deficiency equal to the sum of (i) any and all charges, penalties or other costs imposed upon Seller as a result of such failure to perform by Buyer and (ii) the positive difference, if any, obtained by subtracting the Sales Price from the Energy Charge for the deficient quantity of Energy.
4.9	Acknowledgment of Parties.  Each Party hereby stipulates that the payment obligations set forth in this Article 4 are reasonable in light of the anticipated harm and the difficulty of estimation or calculation of actual damages and each Party hereby waives the right and agrees not to contest such payments as an unreasonable penalty.  In the event that either Seller or Buyer fails to pay amounts in accordance with this Article when due, the aggrieved Party shall have the right to: 
(a)	(a) suspend performance until such amounts plus interest at the Interest Rate have been paid, and/or 
(b)	 (b) exercise any remedy available at law or in equity to enforce payment of such amount plus interest at the Interest Rate.  The Except as provided for in Section 4.6(d), the remedies set forth in this Article 4 shall be the sole and exclusive remedies of the aggrieved Party for the failure of (i) Seller to make Capacity available or to deliver the Scheduled Energy or (ii) Buyer to purchase and receive the Scheduled Energy.  Disagreements with respect to the calculation of damages pursuant to this Article 4 shall be resolved in accordance with the dispute resolution procedures set forth in Article 14.
ARTICLE 5
delivery POINTS; OBLIGATIONS OF THE PARTIES; TITLE
5.1	Delivery Point. The Delivery Point shall be any or all of the following delivery points described in this Section 5.1:
(a)	For deliveries of Energy from the Facility, the Delivery Point shall be at the point between the high side of each generator step-up transformer and the first high voltage circuit breaker at the Facility Substation.  This point shall coincide with the point of interconnection as defined in the interconnection agreement between Buyer and Seller Interconnection Agreement.
(b)	For Energy not generated by the Facility, the Delivery Point shall be at a valid then existing transmission interface within Virginia Power’s control area transmission system.  Seller shall within two (2) hours after receipt of Buyer’s Schedule, designate such transmission interface(s) as a Delivery Points Point and such Delivery Point(s) shall remain in effect for the lesser of the duration of the Schedule or one Day, unless delivery is interrupted for reasons beyond Seller’s control in which case Seller may designate an alternative Delivery Point(s).  The availability to Buyer of firm transmission service on Virginia Power’s control area at a particular transmission interface shall serve as a precondition of Seller’s designation of a Delivery Point.  Seller shall not be released from its obligation to Deliver Scheduled Energy Seller’s obligation to schedule and deliver Scheduled Energy shall not be fulfilled until verification of a firm transmission path is received from the applicable control areas and all scheduling and tagging has been completed by all parties.  Buyer shall work in good faith with Seller to determine a firm transmission path.
(c)	 Any other mutually agreeable points of interconnection. 
5.2	Further Obligations of the Parties.  Seller shall be responsible for any costs or charges imposed on or associated with the delivery of Energy hereunder prior to the Delivery Point.  With respect to Energy produced by Market Sources, such responsibilities shall include, but not be limited to, control area services, imbalance energy flows, transmission losses and loss charges relating to the transmission of Energy, up to the Delivery Point.  With respect to Energy produced by the Facility, such responsibilities shall be limited to costs actually incurred by Seller in delivering Energy to the Facility Substation and shall not include charges related to the operation of third-party transmission systems.  Buyer shall be responsible for any costs or charges imposed on or associated with Energy hereunder, including control area services, ancillary services, imbalance Energy flows, interconnection fees, transmission losses and loss charges relating to (i) the transmission of Energy at and from the Delivery Point, and (ii) the delivery of Energy from the Facility at the Facility Substation that is related to the operation of third-party transmission systems. 
5.3	Title; Risk of Loss; and Indemnity.  As between the Parties, Seller shall be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the Energy prior to the Delivery Point and Buyer shall be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the Energy at and from the Delivery Point. Seller warrants that it will deliver to Buyer the Energy hereunder free and clear of all liens, claims and encumbrances arising prior to the Delivery Point.  Title to and risk of loss related to Energy hereunder shall transfer from Seller to Buyer at the Delivery Point.  Seller and Buyer shall each indemnify, defend and hold harmless the other Party from any Claims arising from any act or incident occurring when title to the Energy is vested in the indemnifying Party. The Parties have agreed to this Section 5.3 to allocate certain risks and responsibilities as between themselves; as between a Party and a third party, this Section is not intended as an admission of liability or responsibility by either Party, and shall not be construed or implemented in such a manner. 
5.4	Fuel Oil.  During the Delivery Term, Seller shall maintain or cause to be maintained  at the Facility site sufficient No. 2 oil during the Winter Months to enable the Facility to be operated for 72 hours at full load.
ARTICLE 6
representations AND WARRANTIES
6.1	Representations and Warranties.  As a material inducement to entering into this Agreement, each Party, with respect to itself, hereby represents and warrants to the other Party as of the Effective Date as follows:
(a)	it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement;
(b)	it has, or will have prior to the Commencement Date, all regulatory authorizations necessary for it to legally perform its obligations under this Agreement;
(c)	the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents or any contract to which it is a party or any law, rule, regulation, order, writ, judgment, decree or other legal or regulatory determination applicable to it;
(d)	no consent, approval, authorization, filing, exemption of or with any other person or governmental authority is required for such Party to execute, deliver and perform its obligations under the Agreement that have has not already been obtained (other than such permits, approvals or authorizations as are not normally obtained until a later date and such Party reasonably believes that such permit, approval or authorization can be obtained in the normal course of business);
(e)	this Agreement constitutes a legal, valid and binding obligation of such Party enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditor's rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain same may be pending; 
(f)	there are no bankruptcy, insolvency, reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it; and
(g)	there are no suits, proceedings, judgments, rulings or orders by or before any court or any governmental authority that materially adversely affect its ability to perform this Agreement.
6.2	No Other Representations and Warranties.  Each Party acknowledges that in entering into this Agreement it has not relied upon any representations and warranties of the other Party other than those set forth in this Agreement.
6.3	Remaking of Representations and Warranties.  Each Party covenants that it will cause its respective representations and warranties in Section 6.1 to remain true and correct throughout the Contract Term.
ARTICLE 7
EVENTS OF default and remedies
7.1	Event of Default.  An "Event of Default" shall mean, with respect to a Party alleged to have taken or been affected by any of the actions set forth below in this Section 7.1 (the "Defaulting Party"):
(a)	the failure by the Defaulting Party to make, when due, any payment required under this Agreement if such failure is not remedied within five (5) Business Days after written notice of such failure is given to the Defaulting Party by the other Party ("Non-Defaulting Party") and provided the payment is not the subject of a good faith dispute as described in the billing and payment provisions under Article 8;
(b)	any representation or warranty made by the Defaulting Party in this Agreement shall prove to have been false or misleading in any material respect when made or ceases to remain true during the Contract Term; 
(c)	the failure by the Defaulting Party to perform any material obligation set forth in this Agreement (other than payment, as to which Section 7.1(a) shall apply, and except where specific remedies, including liquidated damages, are prescribed by this Agreement) and such failure is not excused by Force Majeure or cured within thirty (30) Days after written notice thereof to the Defaulting Party or such longer period of time as is reasonably necessary to cure such default not to exceed ninety (90) Days so long as the Defaulting Party has commenced a cure within the thirty (30) Day period and diligently pursues such cure;
(d)	the Defaulting Party:
(i)	makes an assignment or any general arrangement for the benefit of creditors;
(ii)	(ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors, or has such petition filed against it and such petition is not withdrawn or dismissed within thirty (30) Days after such filing;
(iii)	(iii) otherwise becomes bankrupt or insolvent (however evidenced); or
(iv)	(iv) is unable to pay its debts as they fall due.;
(e)	failure of Seller to comply with its obligations under Section 3.3(b) [on more than ___ occasions during any Operating Year].

7.2	Remedies Upon an Event of Default.  If an Event of Default occurs with respect to a Defaulting Party at any time during the Contract  Term, the Non-Defaulting Party may, for so long as the Event of Default is continuingestablish continuing establish a date (which date shall be between five (5) and ten (10) Business Days after the Non-Defaulting Party delivers notice) ("Early Termination Date") on which this Agreement shall terminate..   If an Early Termination Date has been designated, the Non-Defaulting Party shall have the right (unless termination is under Section 7.1(e) in which case Seller shall be limited to the remedies set forth in Section 4.6) to seek its direct damages as a result of such breach by the other Party, subject to the limitations set forth in Section 7.3.
7.3	Limitation of Remedies, Liability and Damages.  THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF.  FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS HEREIN PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED.  IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY HEREIN PROVIDED, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE.  IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.  TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.  
7.4	Duty to Mitigate.  Each Party agrees that it has a duty to mitigate damages and covenants that it will use its best reasonable efforts to minimize any damages it may incur as a result of the other Party’s  non-performance of this Agreement.
7.5	SELLER'S NEGATION.  EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN TO THE CONTRARY, SELLER EXPRESSLY NEGATES ANY REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO CONFORMITY TO MODELS OR SAMPLES, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
ARTICLE 8
billing AND payment
8.1	Billing and Payment.  Seller shall on or before the fifth day Day (or, if such day Day is not a Business Day, the next following Business Day) of each Month during the Delivery Term render to Buyer (by regular mail or other acceptable means pursuant to Article 13) a statement setting forth the Demand Charge, the Energy Charge, the Fixed O&M Charge and the Dispatch Order Charge for the preceding Month, together with all other amounts due from Buyer hereunder. All such charges shall be due within twenty (20) Days after receipt of the Monthly billing statement by Buyer, by wire transfer to an account designated by Seller.
Overdue payments shall accrue interest from, and including, the due date to, but excluding, the date of payment at the Interest Rate.  If either Party, in good faith, disputes a statement, such Party shall provide a written explanation specifying in detail the basis for the dispute and pay the portion of such statement conceded to be correct no later than the due date.  If any amount disputed by a Party is determined by the Parties’ agreement or pursuant to the dispute resolution procedures in Article 14 to be due to the other Party, it shall be paid within ten (10) Days of such final determination, along with interest accrued at the Interest Rate computed from the original due date until the date paid.  All amounts payable under this Agreement shall be paid in U.S. Dollars.
8.2	Setoff.  If Buyer and Seller are each required to pay an amount in the same Month, then such amounts with respect to each Party may be aggregated and the Parties may discharge their obligations to pay through netting, in which case the Party, if any, owing the greater aggregate amount may pay to the other Party the difference between the amounts owed.  Each Party reserves to itself all rights, setoffs, counterclaims and other remedies and defenses (to the extent not expressly herein waived or denied) which such Party has or may be entitled to arising from or out of this Agreement.  The obligations to make payment under this Agreement or any other agreement between the Parties may be offset against each other, set off or recouped therefrom.
8.3	Audit.
(a)	Each Party (and its representatives) has the right, at its sole expense and during normal working hours, to examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any statement, charge or computation made pursuant to this Agreement.  If requested, a Party shall provide to the other Party statements evidencing the quantities of Energy delivered at the Delivery Points.  If any such examination Buyer also shall have the right to request an audit by an independent auditor reasonably acceptable to Seller of Seller’s costs under Section 3.4(c) for which Buyer is liable.  The auditor shall be subject to a confidentiality agreement with Seller and shall report to Buyer the conclusions of his audit and not the details of the transactions audited.
(b)	If any examination pursuant to Section 8.3(a) reveals any inaccuracy in any statement, the necessary adjustments in such statement and the payments thereof will be promptly made and shall bear interest calculated at the Interest Rate from the date the overpayment or underpayment was made until paid; provided, however, that any such audit must be commenced within one Year of the statement giving rise to the same, and must be completed within three Months after the commencement thereof, and provided, further, that the Party not requesting the audit has only one Year after the completion of the audit to challenge the results thereof; and provided, further, that this Section 8.3 will survive any termination of this Agreement for a period of one (1) Year from the date of such termination for the purpose of such statement and payment objections.
ARTICLE 9
assignment; BINDING EFFECT
9.1	Assignment.  Buyer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Seller may, without the need for consent from Buyer, (a) pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof as collateral in connection with any financing or other financial arrangements for the Facility; (b) transfer or assign this Agreement to an Affiliate of Seller; or (c) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of Seller; provided, however, that in each such case any such assignee shall agree in writing to be bound by the terms and conditions hereof. In the event of an assignment by Seller under (b) or (c), Seller shall be relieved of all liability hereunder by such assignment.  Seller shall provide notice to Buyer of any such assignment.  Buyer may, without Seller’s consent, assign this Agreement to an Affiliate pursuant to its approved functional separation plan.  Buyer shall provide notice to Seller of any such assignment.[open issue: payment security]
9.2	Binding Effect.  This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.  
ARTICLE 10
force majeure 
10.1	Force Majeure.  If either Party is rendered unable by Force Majeure to carry out, in whole or part, its obligations under this Agreement and such Party gives notice and full details of the event to the other Party as soon as practicable after the occurrence of the event, then during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) shall be suspended to the extent required.  Without limiting the foregoing, any hours during which Seller is unable to deliver Energy as Scheduled by Buyer due to an event of Force Majeure shall not be included as hours during which Seller has failed to deliver Energy for the purpose of determining the Forced Outage Rate under Section 4.6. The Party affected by the Force Majeure shall remedy the Force Majeure with all reasonable dispatch; provided, however, that this provision shall not require Seller or Buyer to (i) settle any strikes or other labor disputes or (ii) deliver or receive Energy at points other than the Delivery Points.
10.2	Effect of Force Majeure.  In the event of a Force Majeure event affecting the delivery of Scheduled Energy from the Facility, the following shall occur:  
(a)	Seller shall as soon as reasonably practicable but in no event use commercially reasonable efforts to fulfill its obligations to deliver Scheduled Energy from Market Sources until notice is provided pursuant to Section 10.2(b) below.
(b)	Not later than ten (10) Days following the onset of the event of Force Majeure, event, Seller shall (i) issue a notice to Buyer stating whether Seller will (I) continue to fulfill its obligations to Buyer hereunder from Market Sources or (ii) relieve Buyer, until the Force Majeure event is terminated or (ii) declare a Force Majeure and relieve Buyer from its obligation to pay the Demand Charge during the pendency of Seller’s inability to meet its obligations hereunder (such relief from the Demand Charge to be applied on a pro rata basis retroactive to the commencement of the Force Majeure and to the extent the Contract Capacity is unavailable for each Day during which Seller is unable to meet its obligations hereunder).  
During the period from the onset of the Force Majeure until the earlier of (i) the date on which Seller provides the notification required under this Section 10.2 or (ii) the expiration of such ten (10) Day period, Seller shall use commercially reasonable efforts to fulfill its obligations hereunder from Market Sources. In the event of a Force Majeure affecting Buyer’s ability to receive Energy from Seller, payment of the Demand Charge shall continue.
10.3	Termination Due to Force Majeure. If an event of Force Majeure continues in effect for twelve (12) consecutive Months, then the Party not declaring Force Majeure may terminate this Agreement upon providing written notice of such termination to the other Party (but if such event of Force  Majeure terminates before any such termination notice is provided, then this Agreement shall continue in full force and effect).
10.4	Other Events.  Any other provision of this Agreement not withstanding, in the event that Buyer is regulated by a federal, state or local regulatory body, and such body shall disallow all or any portion of any costs incurred or yet to be incurred by Buyer under any provision of this Agreement, such action shall not operate to excuse Buyer from performance of any obligation nor shall such action give rise to any right of Buyer to any refund or retroactive adjustment of the Contract Price. 
ARTICLE 11
TAXES; STRANDED COSTS ; ENVIRONMENTAL COSTS
11.1	General.  Buyer and Seller shall each use best reasonable efforts to implement the provisions of and to administer this Agreement in accordance with their intent to minimize Taxes, so long as neither Party is materially adversely affected by such efforts and shall use best reasonable efforts to obtain and cooperate with obtaining any exemption from or reduction of Tax.  If a Party is exempt from taxes Taxes, it shall provide a certificate of exemption or other reasonably satisfactory evidence of exemption to the other Party.  Either Party with knowledge of a Tax on the purchase or sale of Contract Capacity and/or Energy, that may be applicable to the Contract Capacity and/or Energy sold hereunder shall notify the other Party, in advance, of the applicability of such Tax and shall also notify the other Party if it has knowledge of any proposal to implement a new Tax or apply an existing Tax to the purchase, sale, delivery, or receipt of Contract Capacity and/or Energy hereunder.
11.2	Applicable Taxes.  The Contract Price shall include full reimbursement for, and Seller is liable for and shall Seller shall be responsible for all existing and any new Taxes, imposed or levied by any Government Authority on the Energy sold and delivered hereunder up to the delivery of such Energy to the Delivery Point.  Buyer shall be responsible for all existing and any new Taxes, imposed or levied by any Government Authority on the Energy sold and delivered hereunder from and after the delivery of such energy to the Delivery Point.  If Seller is required to collect or remit any Tax levied at the Delivery Point on behalf of Buyer as a result of the sales transaction contemplated in this Agreement (including, but not limited to, any sales, use, utility or gross receipts tax, or any tax of a similar nature), Buyer shall reimburse that Tax to Seller.  Neither Party is required to pay, or cause to be paid, or reimburse Buyer if Buyer has paid, all Taxes applicable to a Transaction arising prior to the Delivery Point. If Buyer is required to remit such Tax, the amount shall be deducted from any sums due to Seller. Seller shall indemnify, any Taxes measured by the income of the other Party.  Each Party shall indemnify, release, defend and hold harmless Buyer from any Claims for such Taxes. The Contract Price does not include reimbursement for, and Buyer is liable for and shall pay, cause to be paid, or reimburse Seller if Seller has paid, all Taxes applicable to a Transaction arising at and from the Delivery Point, including any Taxes imposed or collected by a the other Party from and against any and all liability for:

(a)	Taxes measured by the income of the other Party and

(b)	Taxes imposed or assessed by any taxing authority with jurisdiction over Buyer. Buyer shall indemnify, defend and hold harmless Seller from any Claims for such Taxes. Either Party, upon written request of the other, shall provide a certificate of exemption or other reasonably satisfactory evidence of exemption if either Party is exempt from taxes, and shall use reasonable efforts to obtain and cooperate with obtaining any exemption from or reduction of any Tax. Each Party shall use reasonable efforts to administer this Agreement and implement the provisions in accordance with the intent to minimize Taxes respect to the Energy sold, delivered and received hereunder that are the responsibility of such Party pursuant to this Section 11.2.

11.3	Stranded Costs.  Notwithstanding any other provision in this Agreement to the contrary, in performance of this Agreement Seller shall not be required to bear, directly or indirectly, any charges or costs (including, without limitation, any transmission surcharges, taxes, etc.) incurred by Buyer or any customer or supplier of Buyer or any other person, or that are assessed or levied by any person against Seller, Buyer or any other person, in order to recoup the expenses and liabilities associated with stranded investments, and Buyer shall bear or otherwise reimburse Seller for its expenses associated with any and all such charges.
ARTICLE 12
CONFIDENTIALITY
12.1	Confidentiality.  Neither Party shall disclose any terms of this Agreement to a third party (other than to such Party’s lenders, advisers, counsel or accountants who have agreed to keep such terms confidential) except in order to comply with any applicable law or the requirements of a governmental authority or a stock exchange on which such Party’s stock is traded; provided, each Party shall notify the other Party of any proceeding of which it is aware which may result in disclosure and shall cooperate with the other Party in seeking confidential treatment of this Agreement in such proceedings.  Subject to the limitations of Section 7.3, the Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. 
ARTICLE 13
notices
13.1	Notices.  All notices, requests, statements or payments shall be made as specified in Exhibit B hereto.  Notices required to be in writing shall be delivered by letter, facsimile or other documentary form.  Notice by first class mail shall be deemed to be received three (3) Business Days after it was sent.  Notice by facsimile or hand delivery shall be deemed to have been received by the close of the Business Day on which it was transmitted or hand delivered (unless transmitted or hand delivered after close in which case it shall be deemed received at the close of the next Business Day).  Notice by overnight mail or courier shall be deemed to have been received two (2) Business Days after it was sent.  A Party may change its address by providing notice of same in accordance herewith.

ARTICLE 14
DISPUTE RESOLUTION

14.1	Senior Management Referral.  Any claim or dispute which either Party may have against the other arising out of or relating to this Agreement or the breach, termination or validity thereof (any such claim or dispute, a “Dispute”) shall be submitted in writing to the other Party.  The submission of any Dispute shall include a concise statement of the question or issue in dispute, together with a statement listing the relevant facts and documentation that support the claim. In the event that representatives of Seller and Buyer are unable in good faith to satisfactorily resolve their disagreement within 20 (twenty) days from the receipt of notice of the Dispute, the representatives must refer the Dispute to senior management representatives of each Party with authority to resolve and settle the Dispute.  The senior management representatives shall meet at an acceptable time and place to attempt to resolve and settle the Dispute.
14.2	Arbitration.	If any Dispute arising hereunder is not resolved within thirty (30) days after notice thereof to the other Party, either Party may demand in writing the submission of the Dispute to binding arbitration in [Richmond], Virginia.  Any arbitration initiated under this Agreement shall be conducted before a single neutral arbitrator appointed by the Parties within thirty (30) days of receipt by respondent of the demand for arbitration.  If the Parties are unable to agree on an arbitrator, such arbitrator shall be appointed by the American Arbitration Association.  Unless the Parties agree otherwise, the arbitrator shall be an attorney or retired judge licensed in Virginia with at least 15 years of experience, and shall not have any current or past substantial business or financial relationships with any Party to the arbitration.  If possible, the arbitrator shall have experience in the electric utility industry.  Unless otherwise agreed, the arbitration shall be conducted in accordance with the American Arbitration Association’s Commercial Arbitration Rules then in effect.  Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration Act of the United States, 9 U.S.C. §§ 1 et seq.

14.3	The Award.  The arbitration shall, if possible, be concluded not later than 6 months after the date that it is initiated.  The arbitrator shall be authorized only to interpret and apply the provisions of this Agreement or any related agreements entered into under this Agreement and shall have no power to modify or change any of the above in any manner. The arbitrator shall have no authority to award punitive or multiple damages or any damages inconsistent with this Agreement.  The arbitrator shall within thirty (30) days of the conclusion of the hearing, unless such time is extended by agreement of all Parties, notify the Parties in writing of his or her decision, stating his or her reasons for such decision and separately listing his or her findings of fact and conclusions of law. The decision of the arbitrator rendered in such a proceeding shall be final and binding on the Parties.  Judgment on the award may be entered upon it in any court having jurisdiction.
ARTICLE 15
miscellaneous
15.1	Entirety.  This Agreement and the Exhibits hereto constitute the entire agreement between the Parties and supersede any prior agreements or understandings concerning the subject matter hereof. No amendment, modification or change herein shall be enforceable unless reduced to writing and executed by both Parties.
15.2	Governing Law.  THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF VIRGINIA, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
15.3	Non-Waiver.  No waiver by any Party hereto of any one or more defaults by the other Party in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.  
15.4	Severability.  Except as otherwise stated herein, any provision or article declared or rendered unlawful by a court of law or regulatory agency with jurisdiction over the Parties, or deemed unlawful because of a statutory change, will not otherwise affect the lawful obligations that arise under this Agreement.
15.5	Headings; Exhibits.  The headings used for the sections and articles herein are for convenience and reference purposes only and shall in no way affect the meaning or interpretation of the provisions of this Agreement.  Any and all Exhibits referred to in this Agreement are, by such reference, incorporated herein and made a part hereof for all purposes.
15.6	Survival.  Sections 4.6, 4.9, 5.3, 7.3, 8.3, 11.2, 12.1, Article 14 and Article 15 shall survive termination of this Agreement.  
15.7	No Third Party Beneficiaries.  Nothing in this Agreement shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the Parties that this Agreement shall not be construed as a third party beneficiary contract.
15.8	Counterparts.  This Agreement may be executed in several counterparts, each of which is an original and all of which constitute one and the same instrument.

[EDGECOMBE DEVELOPMENT CO., LLC]
By:	
Name:	
Title:	
VIRGINIA ELECTRIC AND POWER COMPANY
By:  	
Name:  Paul E. Hilton	Title: 
EXHIBIT A Title:  Senior Vice President – Bulk Sales	

to the EXHIBIT A
Power Purchase and Sale Agreement

MONTHLY CHARGES
As provided in Article 4 of the Agreement, Monthly payments to Seller from Buyer shall be calculated as set forth below:

Monthly Demand Charge	 = $4.85/kW-Month based upon the Contract Capacity per Month during the Delivery Term		

Monthly Fixed O&M Charge	=$.85/kW-Month based upon the Contract Capacity per Month during the Delivery Term, escalated on the first Day of each Year in accordance with [index to be determined] the Consumer Price Index.

Monthly Energy Charge	=  the sum, for each Day during such Month, of  the Fuel Charge + Variable O&M Charge

	Fuel Charge($/MWh 
	Delivered)		=(Heat Rate x Delivered Fuel Price) where:

Heat Rate = 10,600 MMBtu/kWh Btu/kWh (LHV)
Delivered Fuel Price = (i) in the Summer Months, the Gas Index plus $0.970 per MMBtu for transportation and (ii) in the Winter Months, the Fuel Oil Index + $0.014 per gallon for transportation. 
“Gas Index” means the price published in the Gas Daily for Transco Zone 6 (non-NY) Midpoint for the flow date corresponding to the Day Energy is Delivered.  *

“Fuel Oil Index” means OPIS Selma, North Carolina low Sulfur No. 2 oil.
				
	Variable O&M
	Charge ($/MWh 
Delivered)	=$2.00 per MWh of Energy delivered, escalated on the first Day of each Year in accordance with the Consumer Price Index.

Dispatch Order Charge	= the sum, for each Day during the Month, of $500 x the number of Dispatch Orders

* In the event that Buyer and Seller enter into a long term gas supply contract for the Facility that includes a formula price based on Henry Hub and a basis for physical delivery to the Facility, then this Agreement shall be amended to reflect the terms of such contract. EXHIBIT B

EXHIBIT B TO SELLER:

to the NOTICES AND CORRESPONDENCE

Power Purchase and Sale Agreement

NOTICES

NOTICES AND PAYMENT

SELLER:    NOTICES & CORRESPONDENCE: PAYMENTS:    		

		
If by US Mail:

[EDGECOMBE DEVELOPMENT CO., LLC] c/o ENRON NORTH AMERICA			
1400 Smith Street 			
Houston, Texas  77002			
Attn:  				
Facsimile No.: (713)     INVOICES:        		

		
		
If by hand, courier, or fax:

[EDGECOMBE DEVELOPMENT CO., LLC] c/o ENRON NORTH AMERICA 
1400 Smith Street 		
Houston, Texas  77002		
Attn.:			
		
      Facsimile No.: (713)		

PAYMENT

[EDGECOMBE DEVELOPMENT CO., LLC] c/o ENRON NORTH AMERICA

Account No.:

ABA No.:

TO BUYER:	
		
NOTICES, CORRESPONDENCE, & INVOICES:	PAYMENTS:   Virginia Power Company As described in writing by Buyer          Attn.:   Facsimile No.: (____)      	

126189.7 If by US Mail:

Virginia Electric and Power Company 
Director Capacity Acquisition
P. O. Box 26666
Richmond, Virginia  23261		

If by hand, fax, or courier:

Virginia Electric and Power Company 
Director Capacity Acquisition
One James River Plaza
701 E. Cary Street
Richmond, Virginia  23219

Fax: 804-771-3005

			

		

126189.8

---------------------- REVISION LIST ----------------------

The bracketed numbers refer to the Page and Paragraph for the start of the paragraph in both the old and the new documents.

[1:1 1:1] Changed	"8/15/00" to "8/28/00"
[2:6 2:6] Changed	"6" to "5"
[2:11 2:11] Changed	"8" to "7"
[2:12 2:12] Changed	"8" to "7"
[2:15 2:15] Changed	"9" to "8"
[2:21 2:21] Changed	"Dispatch Order " to "Start-Up "
[2:21 2:21] Changed	"11" to "10"
[2:22 2:22] Changed	"11" to "10"
[2:24 2:24] Changed	"14" to "13"
[2:25 2:25] Changed	"14" to "13"
[2:26 2:26] Changed	"14" to "13"
[2:27 2:27] Changed	"14" to "13"
[2:28 2:28] Changed	"15" to "14"
[2:29 2:29] Changed	"15" to "14"
[2:33 2:33] Changed	"16" to "15"
[2:39 2:39] Changed	"18" to "17"
[3:1 3:1] Changed	"18" to "17"
[3:4 3:4] Changed	"19" to "18"
[3:5 3:5] Changed	"19" to "18"
[3:8 3:8] Changed	"20" to "19"
[3:9 3:9] Changed	"20" to "19"
[3:10 3:10] Changed	"20" to "19"
[3:11 3:11] Changed	"20" to "19"
[3:14 3:14] Changed	"; ENVIRONMENTAL COSTS 21" to "20"
[3:15 3:15] Changed	"21" to "20"
[3:16 3:16] Changed	"21" to "20"
[3:20 3:20] Changed	"22" to "21"
[3:21 3:21] Changed	"22" to "21"
[3:25 3:25] Changed	"23" to "22"
[3:32 3:32] Changed	"24" to "23"
[3:33 3:33] Changed	"24" to "23"
[3:34 3:34] Changed	"24" to "23"
[3:35 3:35] Changed	"24" to "23"
[4:2 4:2] Changed	"a __________ corporation," to "a Virginia  ...  corporation,"
[4:2 4:2] Changed	"_________________________________________ " to "120 Tredegar  ...  Virginia 23219 "
[4:11 4:11] Changed	"E.P.T." to "EPT"
[5:3 5:2] Changed	"to75" to "to 75"
[5:8 5:7] Changed	"3.5" to "3.4(b)"
[5:12 5:11] Changed	"the Year during the Delivery" to "the Delivery"
[6:6 6:5] Changed	"expected gross Contract" to "expected Contract"
[6:7 6:6] Changed	"at ______________ at " to "adjacent to the Facility to "
[6:7 6:6] Changed	"Facility. " to "Facility.  ...  by VEPCO."
[6:9 6:8] Changed	"God; ; fire;" to "God; fire;"
[6:9 6:8] Changed	"sabotage;  ...  Law; action" to "sabotage; action"
[7:1 7:1] Changed	"mean the percentage  ...  calculated as " to "have the meaning "
[7:6 7:6] Add Para	""Interconnection  ...  ___________, 2000."
[8:1 8:1] Add Para	""Operating Year"  ...  August 31, 2004."
[8:4 8:5] Changed	"Energy not" to "Energy Scheduled but not"
[8:7 8:8] Changed	"thecommencement " to "the commencement "
[8:9 8:10] Changed	"or all ad  ...  severance," to "[any tax,  ...  thereto]."
[8:10 8:10] Del Para	"generation, first  ...  income or net worth."
[10:2 10:2] Changed	"before November 30," to "before October 31,"
[10:2 10:2] Changed	"Delays), Buyer" to "Delays), Seller  ...  capacity, Buyer"
[10:2 10:2] Changed	"and such notice  ...  30, 2001." to ", delivered  ...  day period."
[10:5 10:5] Changed	"2001and " to "2001 and "
[10:5 10:5] Changed	"shall be purchase" to "shall purchase"
[10:5 10:5] Changed	"In the event " to "Seller represents  ...  whether or not "
[10:5 10:5] Changed	"has not occurred on or before" to "has occurred by"
[10:5 10:5] Changed	"must by such  ...  capacity " to "shall have "
[10:5 10:5] Changed	"it equal" to "it capacity equal"
[10:6 10:6] Changed	"Year." to "Operating  ...  350 hours."
[10:7 11:1] Changed	"Contract Capacity  ...  associated" to "Contract Capacity,  ...  associated"
[10:7 11:1] Changed	"capacity to" to "capacity and  ...  by Buyer to"
[11:3 11:4] Changed	"other source" to "Market Source"
[11:3 11:4] Changed	", Seller shall " to "and the Facility  ...  shall either "
[11:3 11:4] Changed	", subject  ...  Facility " to "as soon as  ...  Facility’s "
[11:4 11:5] Changed	"market sources" to "Market Sources"
[11:4 11:5] Changed	"between Seller" to "between when Seller"
[11:4 11:5] Changed	"notice and " to "notice from  ...  and Seller"
[11:6 11:7] Changed	"a weekly non-binding" to "a non-binding"
[11:6 11:7] Changed	"estimate the" to "estimate by 5:00 p.m. EPT the"
[11:6 11:7] Changed	"Monday." to "Monday for  ...  current week."
[11:7 11:8] Changed	"Notice”). (For" to "Notice”). For"
[11:7 11:8] Changed	"Monday.) " to "Monday. "
[11:7 11:8] Changed	"Blocks.,]. Within" to "Blocks. Within"
[11:7 11:8] Changed	"5.1. Seller  ...  Capacity." to "5.1. "
[12:1 12:1] Changed	"other sources" to "Market Sources.  ...  Outage Rate"
[12:1 12:1] Changed	"indirect)  ...  charges)," to "indirect),"
[12:1 12:1] Changed	"Buyer’s Intra-Day" to "Buyer’s Intra-Day  ...  Intra-Day"
[12:2 12:2] Changed	"during the Planned" to "during any Planned"
[12:2 12:2] Changed	"Period." to "Period. In  ...  requirements."
[12:3 13:1] Changed	"Year" to "Operating  ...  Operating Year)"
[12:4 13:2] Changed	"for scheduling" to "for Energy scheduling"
[12:5 13:3] Changed	"withheld. No" to "withheld.  ...  withheld. No"
[12:5 13:3] Changed	"Periods." to "Periods without  ...  of Buyer."
[13:8 13:11] Changed	"availability Contract" to "availability of Contract"
[13:8 13:11] Changed	"Any " to "Except for  ...  4.6(d), any "
[13:8 13:11] Changed	"Scheduled." to "Scheduled  ...  Operating Year."
[13:8 13:11] Changed	"any Year," to "any Operating Year,"
[13:8 13:11] Changed	"7.50% " to "7.5% "
[13:8 13:11] Changed	"the Year." to "the Operating Year."
[14:1 14:1] Changed	"any Year," to "any Operating Year,"
[14:1 14:1] Changed	"during the Year in" to "during the Operating Year in"
[14:1 14:1] Changed	"the Year." to "the Operating Year."
[14:2 14:2] Changed	"any Year," to "any Operating Year,"
[14:2 14:2] Changed	"during the Year in" to "during the Operating Year in"
[14:2 14:2] Changed	"the Year." to "the Operating Year."
[14:3 14:3] Changed	"during the Year," to "during any Operating Year,"
[14:3 14:3] Changed	"any year," to "any Operating year,"
[14:4 14:4] Changed	"the Year" to "the Operating Year"
[14:7 15:1] Changed	"Source." to "Source (in MWh)."
[14:8 15:2] Changed	"Facility." to "Facility (in MWh)."
[14:9 15:3] Changed	"Scheduled;" to "Scheduled (in MWh);"
[14:10 15:4] Changed	"the Year" to "the Operating Year"
[14:11 15:5] Changed	"for a Year," to "for an Operating Year,"
[14:11 15:5] Changed	"that Year," to "that Operating Year,"
[14:11 15:5] Changed	"the Year even" to "the Operating  ...  MWh) even"
[14:11 15:5] Changed	"less." to "less)."
[15:1 15:6] Changed	"Scheduled  ...  was 178,500" to "Scheduled  ...  was 178,500"
[15:1 15:6] Changed	"a " to "an Operating "
[15:1 15:6] Changed	"the Year," to "the Operating Year,"
[15:1 15:6] Changed	"Scheduled  ...  Year was only" to "Scheduled  ...  Year was only"
[15:3 16:2] Changed	"the Year," to "the Operating Year,"
[16:1 16:5] Changed	"to: (a) suspend" to "suspend"
[16:1 16:6] Changed	"and/or (b) exercise" to "exercise"
[16:1 16:6] Changed	"The " to "Except as  ...  4.6(d), the "
[16:4 16:9] Changed	"interconnection  ...  and Seller" to "Interconnection Agreement"
[16:5 17:1] Changed	"valid " to "then existing "
[16:5 17:1] Changed	"as Delivery Points" to "as a Delivery Point"
[16:5 17:1] Changed	"Point(s) shall" to "Point shall"
[16:5 17:1] Changed	"Seller shall  ...  Scheduled Energy " to "Seller’s obligation  ...  fulfilled "
[16:5 17:1] Changed	"areas." to "areas and  ...  transmission path."
[18:2 18:7] Changed	"have " to "has "
[18:2 18:7] Changed	"obtained;" to "obtained (other  ...  business);"
[19:5 19:9] Changed	"(ii) files" to "files"
[19:6 19:10] Changed	"(iii) otherwise" to "otherwise"
[19:7 19:11] Changed	"(iv) is" to "is"
[19:7 19:11] Changed	".
     " to ";"
[19:8 19:12] Add Para	"(e) failure of  ...  Operating Year]."
[19:8 20:1] Changed	"continuingestablish " to "continuing establish "
[19:8 20:1] Changed	"right to" to "right (unless  ...  Section 4.6) to"
[20:4 21:2] Changed	"fifth day (or," to "fifth Day (or,"
[20:4 21:2] Changed	"such day is" to "such Day is"
[21:2 21:6] Changed	"Audit. Each" to "(a) Each"
[21:2 21:6] Changed	"Points. If" to "Points. Buyer  ...  transactions audited."
[21:2 21:7] Changed	"If any such examination " to "(b) If any  ...  Section 8.3(a) "
[22:4 23:1] Changed	"Force Majeure  ...  Facility, Seller" to "Force Majeure  ...  shall occur: "
[22:4 23:2] Changed	"practicable but" to "practicable  ...  10.2(b) below."
[22:4 23:3] Changed	"but in no event " to "Not "
[22:4 23:3] Changed	"the event  ...  Majeure, issue" to "the Force  ...  (i) issue"
[22:4 23:3] Changed	"will (I) continue" to "will continue"
[22:4 23:3] Changed	"or (ii) relieve Buyer, " to "until the  ...  relieve Buyer "
[22:4 23:3] Changed	"basis to" to "basis retroactive  ...  Majeure and to"
[22:4 23:4] Changed	"hereunder).  ...  Sources. In" to "In"
[23:2 23:7] Changed	"COSTS; ENVIRONMENTAL COSTS" to "COSTS "
[23:3 23:8] Changed	"taxes" to "Taxes"
[23:4 24:1] Changed	"The Contract  ...  and shall " to "Seller shall  ...  required to "
[23:4 24:1] Changed	"or reimburse  ...  indemnify, " to "any Taxes  ...  release, "
[23:4 24:1] Changed	"harmless Buyer" to "harmless the  ...  liability for:"
[23:4 24:1] Changed	"harmless Buyer  ...  minimize Taxes. " to "harmless "
[23:4 24:2] Add Para	"Taxes measured  ...  other Party and"
[23:4 24:3] Changed	"harmless Buyer" to "Taxes imposed  ...  any taxing"
[23:4 24:3] Changed	"jurisdiction  ...  minimize Taxes" to "respect to  ...  Section 11.2"
[25:1 25:4] Changed	"in [Richmond]," to "in Richmond,"
[25:1 25:4] Changed	"[Richmond]," to "Richmond,"
[25:1 25:4] Changed	"judge with" to "judge licensed in Virginia with"
[26:4 26:8] Changed	"Sections 4.9," to "Sections 4.6, 4.9,"
[28:8 29:7] Changed	"Title: " to "Paul E. Hilton "
[29:1 29:8] Changed	"EXHIBIT A" to "Title: Senior  ...  Bulk Sales "
[29:2 30:1] Changed	"to the" to "EXHIBIT A"
[29:3 30:2] Del Paras	"Power Purchase  ... MONTHLY CHARGES"
[29:7 30:4] Changed	"[index to be determined]" to "the Consumer Price Index"
[29:11 30:8] Changed	"MMBtu/kWh" to "Btu/kWh (LHV)"
[29:13 30:10] Changed	"Delivered. *
     “Fuel" to "Delivered. "
[29:19 31:1] Changed	"* In the event  ...  contract. " to "EXHIBIT B"
[31:1 31:2] Changed	"EXHIBIT B" to "TO SELLER:"
[31:2 31:3] Changed	"to the" to "NOTICES AND CORRESPONDENCE"
[31:3 31:4] Del Paras	"Power Purchase  ... NOTICES AND PAYMENT"
[31:6 31:4] Changed	"SELLER:NOTICES & CORRESPONDENCE:PAYMENTS:" to "If by US Mail:"
[31:6 31:5] Changed	"Facsimile  ...  INVOICES: " to "If  ...  courier, or fax:"
[31:6 31:6] Add Para	"[EDGECOMBE DEVELOPMENT  ...  NORTH AMERICA "
[31:6 31:7] Changed	"BUYER:NOTICES," to "Facsimile No.: (713)"
[31:6 31:7] Changed	"BUYER:

NOTICES,  ...  (____) 

" to "

"
[31:6 31:8] Add Paras	"PAYMENT ... ABA No.:"
[31:6 31:12] Changed	"

BUYER:

NOTICES," to "

TO BUYER:

NOTICES,"
[31:6 31:12] Changed	"PAYMENTS:

Virginia  ...  (____) 

" to "
"
[31:7 32:1] Add Paras	"If by US Mail: ... 126189.8"
[31:7 32:14] Del Para	"126189.7"

This redlined draft, generated by CompareRite (TM) - The Instant Redliner, shows the differences between - 
original document   : I:\DOCSOPEN\WODKNA\0126189.07
and revised document: I:\DOCSOPEN\WODKNA\0126189.08

CompareRite found  171 change(s) in the text

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