EXHIBIT 10.32
EXECUTION COPY
STRANDED COST SETTLEMENT AGREEMENT
(THE "AGREEMENT")
BY AND BETWEEN:
1. Municipality of Amsterdam;
2. Province of Noord-Holland;
3. Province of Utrecht;
4. Municipality of Utrecht;
5. N.V. Provinciaal en Gemeentelijk Utrechts Stroomleveringsbedrijf;
(parties under 1 through 5, collectively, the "Former Shareholders" or "FS");
6. Reliant Energy Power Generation Inc.;
7. Reliant Energy Wholesale Holdings (Europe) Inc.;
8. Reliant Energy Power Generation Benelux N.V. (formerly known as NV
Energieproduktiebedrijf UNA (the "Company");
(parties under 6 and 7, collectively ("RR") and the parties under 1 through 8,
collectively, the "Parties"),
WHEREAS:
(a) The Parties entered into a Share Purchase Agreement (the "SPA") and a
Partnership Agreement dated 29 March 1999 (the "PARTNERSHIP
AGREEMENT"), as amended and supplemented by the Deed of Amendment dated
2 September 1999 (the "DEED OF AMENDMENT") and the Supplemental
Agreement dated 6 October 1999 (the "SUPPLEMENTAL AGREEMENT") (such
agreements, as amended and supplemented, are referred to below as the
"PARTNERSHIP DOCUMENTATION") in respect of the sale and transfer of
100% of the issued and outstanding shares in the Company to Reliant
Energy Wholesale Holdings (Europe) Inc.
(b) Under the Partnership Documentation, the FS (i) have indemnified the
Company for any Stranded Costs up to a maximum amount of NLG
1,400,000,000, which can be increased by as much as NLG 500,000,000
under Article 13.7 (b) and (c) of the SPA, as amended by Article 4.10
of the Deed of Amendment and Article 9.1 of the Supplemental Agreement,
and (ii) are entitled to receive from the Company any excess of any
dividends of any other distributions by B.V. Nederlands Elektriciteit
Administratiekantoor (formerly N.V. Samenwerkende
Elektriciteits-produktiebedrijven) over NLG 125,000,000 in accordance
with Article 7 of the Supplemental Agreement (the "NEA DISTRIBUTIONS").
(c) The Parties have engaged in settlement negotiations and the FS and the
Company have been extensively advised by their advisors as to various
outcomes relating to the expected magnitude of and the allocation of
liabilities under the Partnership Documentation for Stranded Costs.
(d) The Company has submitted a number of Standard Cost Claim Notices to
the FS and the FS have contested and challenged each of the Stranded
Cost Claim Notices in their entirety, subsequent to which the Company
issued a Notice of Arbitration in accordance with the relevant
provisions of the Partnership Documentation.
(e) A number of uncertainties relating to the Stranded Cost items have
been clarified, including the amount of proceeds resulting from the
sale of Tennet, Transmission System Operator B.V., whilst in respect
of others the rules and regulations governing such Stranded Costs have
to some extent been clarified or confirmed, thus enabling the Parties
to better assess the mutual risks and liabilities in respect of the
Stranded Costs.
(f) The Company has commenced separate arbitration proceedings against N.V.
Nuon Infra West formerly Energie Noord West N.V. (the "NUON REB
ARBITRATION"), Remu Infra
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N.V. (the "REMU REB ARBITRATION") and the Municipality of Purmerend (the
"PURMEREND REB ARBITRATION") (collectively, the "REB ARBITRATIONS"), and
the other generators, Electrabel Nederland N.V., N.V. Elektriciteits
Produktiemaatschappij Zuid-Nederland EPZ and E.ON Benelux Generation N.V.
(collectively, the "OTHER GENERATORS") have commenced or are considering
commencement of arbitration or have finalised arbitration (the "OTHER REB
ARBITRATIONS") in order to retrieve certain amounts related to "REB" (the
"REB Voordeel" or "REB ADVANTAGE" as referred to in the Ministerial Note
(Memorie van Toelichting) to the Transitional Act to the Electricity Xxx
0000 (Overgangswet elektriciteitsproductiesector), Section 4.3, page 8).
(g) The Parties acknowledge that the State of the Netherlands (the Dutch
Government) is in the process of preparing draft legislation for
submission to Parliament on compensation to be paid to the Company and
Other Generators in respect of the stranded costs for district heating
projects. The Parties also acknowledge that rules on compensation to be
paid to the Company in respect of the stranded costs for district heating
projects may be implemented by decree ("wet", "koninklijk besluit",
"ministeriele regeling" or "algemene maatregel van bestuur", together a
"DECREE"), with its associated "memorie van toelichting" or "nota van
toelichting" (the "COMPENSATION RULES"). The Parties further acknowledge
that it cannot be entirely excluded that the State of the Netherlands may
resolve that it will provide no compensation in respect of the stranded
costs for district heating projects.
(h) The Parties with their respective advisors have again assessed the mutual
risks and liabilities in respect of the Stranded Costs and wish to settle
any and all of their liabilities under the Partnership Documentation,
provided that since, as of the date hereof, the Compensation Rules have not
come into effect and the Company has not received payment of this
compensation, the Parties have agreed on a special arrangement for the
settlement of the liabilities in regard of the Stranded Costs for district
heating projects.
(i) In order to effectuate the transaction contemplated in this Agreement, the
Company will, in addition to the Escrow Account set up pursuant to the SPA
(the "First Escrow Account"), create a second escrow account with the
Escrow Agent which shall be governed by the rules set forth in Article 9
(the "SECOND ESCROW ACCOUNT").
AGREE AS FOLLOWS:
ARTICLE 1 SETTLEMENT AMOUNT
The FS will pay to the Company NLG 435,608,821 plus interest at the rate which
applies under the Escrow Agreement dated 7 October 1999 from 12 November 2001
until the date of payment (the "Settlement Amount"). Payment will be made
within 20 days after this Agreement takes effect in accordance with Article 11.
Payment will be made by instructing the Escrow Agent to release the Settlement
Amount from the First Escrow Account into the Second Escrow Account. All rights
of the Company and RR in respect of all Stranded Costs and any and all other
liability of the FS under the Partnership Documentation will be automatically
waived and relinquished, without any action by any of the Parties being
required, upon receipt by the Company of payment of the Settlement Amount and
the Stranded Cost Claim Notices for electricity import contracts submitted by
the Company on 29 June 2001 and 10 August 2001, as amended by letter of 24
August 2001, and cancellation of paragraphs 3 and 4 of Article 5 of the
Purchase Price Determination Agreement of 27 January 2000, provided that the
liability of the FS under this Agreement will remain in full effect.
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ARTICLE 2 NEA DISTRIBUTIONS
All of the rights of the FS in respect of the NEA Distributions, which have
already been paid or will be paid, will be automatically waived and
relinquished, without any action by any of the Parties being required, when this
Agreement becomes effective.
ARTICLE 3 ELECTION
1. The Company shall elect (an "ELECTION") by written notice to the FS (an
"ELECTION NOTICE") to apply Article 4 or Article 5 based on its
determination, in its discretion, whether the compensation calculated
under the Compensation Rules, if any, is at least the same as the
compensation calculated under the formulas attached as Annex E to the
Supplemental Agreement (the "ANNEX E FORMULAS"), attached as Exhibit A,
and using the assumptions in the spreadsheets attached as Exhibit B
(the "ANNEX E SPREADSHEET"), as clarified in the comparison attached as
Exhibit C (the "ANNEX E COMPARISON"), and the draft Compensation Rules
attached as Exhibit D (Exhibits A, B, C, and D together the "ANNEX E
CALCULATION"). The Company shall make the Election within 21 days of
the date on which the Compensation Rules take effect (the "EFFECTIVE
DATE"), or promptly after the date of a decision by the State of the
Netherlands by statute, Decree or otherwise in a manner that is
certain, that the State of the Netherlands will provide no compensation
for stranded costs for district heating projects.
2. If no Compensation Rules have taken effect on 31 December 2003, the
Company is entitled but not obligated to elect to apply Article 5, but
is also entitled to wait to make an Election until the second sentence
under 1 applies.
3. If the Company elects to apply Article 4 or fails to make an Election
under 1 within 21 days of the Effective Date, then Article 4 will be
applied.
4. If the Company elects to apply Article 5, then Article 5 will be
applied unless within 21 days of the Election Notice the FS submit a
request (a "REQUEST FOR DETERMINATION") to the Expert under Article 6
to determine whether the compensation calculated under the Compensation
Rules is at least the same as the compensation calculated under the
Annex E Formulas, using the same assumptions as in the Annex E
Spreadsheet as clarified in the Annex E Comparison (this determination,
or a statement by the Expert that he cannot make a determination, or a
failure by the Expert to make a determination within ten weeks from the
Request for Determination, a "DETERMINATION").
5. If the Expert determines that the compensation calculated under the
Compensation Rules is at least the same as the compensation calculated
under the Annex E Formulas, using the same assumptions as in the Annex
E Spreadsheet as clarified in the Annex E Comparison, then Article 4
will be applied.
6. If the Expert determines that the compensation calculated under the
Compensation Rules is not at least the same as the compensation
calculated under the Annex E Formulas, using the same assumptions as in
the Annex E Spreadsheet as clarified in the Annex E Comparison, then
Article 5 will be applied, unless the Company within six months after
the Determination elects to apply Article 4, in which case Article 4
will be applied.
7. If the Expert does not make a Determination within ten weeks after the
Request for Determination, or states that he cannot make a
Determination, then Article 5 will be applied, unless the Company
within six months after the Determination elects to apply Article 4, in
which case Article 4 will be applied.
8. The Company cannot elect to apply Article 4 after it has submitted an
Additional Settlement Claim under Article 5.
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ARTICLE 4 ADDITIONAL SETTLEMENT OPTION 1
Under application of this Article, the FS will pay to the Company an amount of
NLG 60,000,000 (the "DISTRICT HEATING SETTLEMENT AMOUNT"). The FS shall pay the
Company an additional amount of NLG 15,000,000 (the "ADDITIONAL DISTRICT HEATING
SETTLEMENT AMOUNT"), unless the State of the Netherlands expressly provides by
Decree implementing the Compensation Rules for Compensation in respect of
stranded costs for district heating projects for the lifetime of the district
heating projects, subject to notification to the European Commission. Payment
will be made within 20 days after the date of an Election Notice that the
Company elects to apply Article 4, or the date of a Determination that the
compensation calculated under the Compensation Rules is at least the same as the
compensation calculated under the Annex E Formulas, using the same assumptions
as in the Annex E Spreadsheet as clarified in the Annex E Comparison. Payment
will be made by instructing the Escrow Agent to release the District Heating
Settlement Amount and the Additional District Heating Settlement Amount from the
First Escrow Account into the Second Escrow Account. All rights of the Company
and RR in respect of the Additional Settlement Amounts and the Further
Settlement Amount under this Agreement will be automatically waived and
relinquished, without any action by any of the Parties being required, upon
receipt by the Company of the District Heating Settlement Amount and the
Additional District Heating Settlement Amount. Subsequent retraction of or
changes to the Compensation Rules will not affect such waiver or relinquishment.
ARTICLE 5 ADDITIONAL SETTLEMENT OPTION 2
1. Under application of this Article and subject to its provisions, the FS
will pay the Company Additional Settlement Amounts equal to the sum of:
(a) NLG 280,000,000 minus the net present value of the
compensation the Company is entitled to receive from the State
of the Netherlands in respect of Stranded Costs for district
heating projects with regard to the period as from 1 January
2001, in accordance with the Compensation Rules, excluding any
Compensation the Company is entitled to receive from the State
of the Netherlands for any REB Advantage which the Company
does not retrieve through the REB Arbitrations (the "FUEL
PRICE RISK SETTLEMENT").
(b) NLG 100,000,000 minus the sum of (i) the net present value of
the REB Advantage with regard to the period as from 1 January
2001, which the Company is entitled to receive under the
arbitral award in the Purmerend REB Arbitration and (ii) the
net present value of the compensation the Company is entitled
to receive from the State of the Netherlands, in accordance
with the Compensation Rules, for any REB Advantage with regard
to the period as from 1 January 2001, which the Company is not
entitled to retrieve through the Purmerend REB Arbitration
(the "PURMEREND SHORTFALL COMPENSATION").
(c) NLG 10,000,000 minus the sum of (i) the net present value of
the REB Advantage with regard to the period as from 1 January
2001, which the Company is entitled to receive under the
arbitral award in the NUON REB Arbitration and (ii) the net
present value of the compensation the Company is entitled to
receive from the State of the Netherlands, in accordance with
the Compensation Rules, for any REB Advantage with regard to
the period as from 1 January 2001, which the Company is not
entitled to retrieve through the NUON REB Arbitration (the
"NUON Shortfall Compensation").
(d) NLG 250,000,000 minus the sum of (i) the net present value of
the REB Advantage with regard to the period as from 1 January
2001, which the Company is entitled to receive under the
arbitral award in the Remu REB Arbitration and (ii) the net
present value of the compensation the Company is entitled to
receive from the State of the Netherlands, in accordance with
the
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Compensation Rules, for any REB Advantage with regard to the period as
from 1 January 2001, which the Company is not entitled to retrieve
through the Remu REB Arbitration (the "REMU SHORTFALL COMPENSATION").
Each of the amounts under (a) through (d) is an "ADDITIONAL SETTLEMENT
AMOUNT" and together these amounts are the "ADDITIONAL SETTLEMENT AMOUNTS".
2. The net present value of the REB Advantage under 1 (b)(i), (c)(i) and
(d)(i) will be calculated in accordance with the Annex E Spreadsheet
attached as Exhibit B by multiplying the estimated REB per GJ as from 1
January 2001 by the total expected GJ heat produced per annum for each of
the Company's district heating contracts over the life of each contract as
from 1 January 2001, and by discounting the result by 6% per annum. The
estimated REB per GJ as from 1 January 2001 will be based on the amount of
the REB Advantage awarded to the Company for 2001 in REB Arbitrations and
the estimated percentage of GJ heat delivered subject to REB, to be adjusted
for expected REB rate increases in 2002 and beyond, in accordance with
Exhibit B.
The net present value of any compensation by the State of the Netherlands
under 1 (b)(ii), (c)(ii) and (d)(ii) will be calculated in the way
indicated by the State of the Netherlands, or failing such an indication, in
the same way as the net present value of the REB Advantage as described in
the previous two sentences.
The net present value of any compensation by the State of the Netherlands
under 1 (a) will be calculated, including any explicit compensation for
non-commodity costs whether through a surcharge on the Pg, u, d, p or in any
other manner, in the way indicated by the State of the Netherlands, or
failing such an indication, using the same methodology and assumptions with
respect to discount rates, GJ heat produced per contract per annum for the
duration of the project, inflation, and other variables in accordance with
Exhibit B.
Any maximum amount to be imposed by the State of the Netherlands by Decree
will affect the net present values of the compensation amounts under 1 (a),
(b)(ii), (c)(ii) and (d)(ii), but only to the extent that the part of the
maximum amount applicable to the Company is equal to or less than the amount
of the Fuel Price Risk Settlement, the Purmerend Shortfall Compensation, the
NUON Shortfall Compensation or the Remu Shortfall Compensation.
If the Company submits an Additional Settlement Claim in accordance with
this Article 5, and no Compensation Rules have taken effect on the date of
the Additional Settlement Claim, then the net present value of the
respective compensation amounts under 1 (a), (b)(ii), (c)(ii) and (d)(ii)
will be deemed to be zero.
3. The parties will not consider the following in carrying out the calculations
under 1 (a) through (d): (i) any imposition by the State of the Netherlands
of a time limit of 31 December 2010, or later, on the period for which
compensation will be provided under the Compensation Rules, or (ii) any
introduction of, changes in, or withdrawal of, the Compensation Rules, if
any, after all of the Additional Settlement Claims have been submitted under
1 (a) through (d).
4. The Company will submit any claim in respect of any Additional Settlement
Amount (an "ADDITIONAL SETTLEMENT CLAIM") in writing to the FS with a
calculation (the "CALCULATION") of the Additional Settlement Amount in
accordance with this Agreement.
The Company will under 1 (a) submit its Additional Settlement Claim and
Calculation, or, if the Calculation resulted in an amount less than zero,
its Calculation within six
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months after its Election to apply Article 5, or, if the FS make a
Request for Determination, within 90 days after the Determination.
The Company will under 1 (b) through (d) submit its Additional
Settlement Claim and Calculation or, if the Calculation resulted in an
amount less than zero, its Calculation within 90 days of the award
issued in the respective REB Arbitration after the Company has made an
Election, or otherwise within six months of its Election to apply
Article 5, or, if the FS make a Request for Determination, within 90
days after the Determination.
The FS may notify the Company within 20 days of receipt of an
Additional Settlement Claim or Calculation in writing that they dispute
an Additional Settlement Claim or Calculation. If the FS do not notify
the Company within 20 days of receipt that they dispute and Additional
Settlement Claim, the FS shall pay the Additional Settlement Amount
promptly, but not later than 20 days after receipt of the Additional
Settlement Claim. However, in the event that the FS dispute part of an
Additional Settlement Claim, the FS will in accordance with the
previous sentence pay the undisputed amount of the Additional
Settlement Claim. If the FS notify the Company in writing that they
dispute an Additional Settlement Claim or a Calculation, the Parties
will promptly enter into negotiations to reach an amicable resolution
of the disputed amount or Calculation. If no resolution is achieved
within 30 days of the FS's notice of the dispute, each Party shall be
entitled to initiate arbitration in accordance with Article 13 of this
Agreement.
5. The Additional Settlement Amounts shall never exceed NLG 700,000,000.
6. If the Additional Settlement Amounts are equal to or less than NLG
10,000,000, the Company will not be entitled to payment of the
Additional Settlement Amounts. If, however, any Additional Settlement
Amount or the Additional Settlement Amounts are more that NLG
10,000,000, the Company will be entitled to full payment of the entire
amount of the Additional Settlement Amount or Additional Settlement
Amounts.
7. The Additional Settlement Amounts under 1 (a), (b), (c) and (d) will be
increased by 6% per annum from 1 January 2001 until the earlier of the
date of payment or until a maximum of NLG 700,000,000 has been reached.
Interest will accrue at the rate which applies under the Escrow
Agreement dated 7 October 1999 on any Additional Settlement Claim that
is submitted by the Company from the date of the Additional Settlement
Claim to the date of payment. If, however, the FS dispute an Additional
Settlement Claim under paragraph 4, any unpaid part of that Additional
Settlement Claim will be increased only by statutory interest from the
date of the respective Additional Settlement Claim until the date of
payment.
8. If any Calculation under 1 (a) through (d) is lower than zero, the
difference between that amount and zero (the "NEGATIVE AMOUNT") will be
set off against any Additional Settlement Amount subsequently
calculated under 1 (a) through (d). A Negative Amount under 1 (b)
through (d) will be increased by 6% per annum from 1 January 2001 to
the date of set-off, but a Negative Amount under 1 (a) will not be
increased. If the last calculation under 1 (a) through (d) and any
set-off under the previous sentence result in an amount less than zero,
the Company will promptly pay the difference between this amount and
zero to the FS.
9. The Company will not submit any Additional Settlement Claim under 1 (a)
before the earliest of three dates: (i) the Effective Date, or (ii) the
date of a decision by the State of the Netherlands by statute, Decree
or otherwise in a manner that is certain, that the State of the
Netherlands will provide no compensation for Standard Costs for
district heating projects, or (iii) if no Compensation Rules are in
effect on 31 December 2003, before 1 January 2004. The Company will not
submit any Additional Settlement Claims under 1 (b) through (d) before
the respective arbitral award in the respective REB Arbitration.
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The possibility of challenging an arbitral award will not stay the
effectuation of any of the provisions in this Agreement. However, if an
arbitral award is subsequently replaced by a final judgement on the
merits, then the Parties agree to give effect to that judgement. This
paragraph 9 does not affect the Company's entitlement to payment of
Additional Settlement Claims and only concerns the timing of submission
of Additional Settlement Claims.
10. Any Additional Settlement Amount shall be paid by the FS to the Company
(i) first, by instructing the Escrow Agent to release from the First
Escrow Account and transfer into the Second Escrow Account the
Additional Settlement Amount, and (ii) second, if the Escrow Amount in
the First Escrow Account is not sufficient to pay the Additional
Settlement Amount, by payment in cash into the Second Escrow Account of
any balance of any Additional Settlement Amount remaining unpaid after
the payment under (i).
11. The Company hereby assigns ("cedeert") to the FS any and all of its
rights to, and interest on, any compensation that the Company is
entitled to receive from the State of the Netherlands in respect of
stranded costs for district heating projects under any rule or
regulation that takes effect after (i) 31 December 2003 and an Election
for Article 5 or (ii) the date of a decision by the State of the
Netherlands by statute, Decree or otherwise in a manner that is
certain, that the State of the Netherlands will provide no compensation
for stranded costs for district heating projects. This assignment
("cessie") will only take effect if the net present values of the
compensation amounts under 1 (a), (b) (ii), (c) (ii) and (d)(ii) are
deemed to be zero in accordance with the final sentence under 2, and if
the FS have paid all Additional Settlement Amounts in full. The FS have
the right to inform the State of the Netherlands of this assignment
("cessie"). If the net present values of the compensation amounts under
1(a),(b)(ii), (c)(ii) and (d)(ii) are deemed to be zero in accordance
with the final sentence under 2, the FS have paid to the Company the
resulting Additional Settlement Amounts, and an assignment ("cessie")
of the rights of the Company and RR under the Compensation Rules is
excluded by Decree or otherwise, or such an assignment is ineffective
for any other reason, then the Company will promptly pay to the FS any
amounts that it receives from the State of the Netherlands in
compensation for the compensation amounts under 1(a), (b)(ii), (c)(ii),
and (d)(ii).
12. The following will apply if (i) the State of the Netherlands imposes by
Decree implementing the Compensation Rules any maximum amount of
compensation to be provided under the Compensation Rules, (ii) this
maximum amount affects the net present values of the compensation
amounts under 1(a),(b)(ii), (c)(ii) and (d)(ii) by limiting these net
present values, (iii) the FS pay all Additional Settlement Amounts, and
(iv) the State of the Netherlands subsequently decides in a Decree
effective on or before 31 December 2010 to provide compensation to the
Company in excess of this maximum amount. The Company will calculate
the amounts under paragraph 1 in accordance with paragraph 2 taking
into account the excess provided in accordance with the Decree under
(iv) over the maximum amount referred to under (i), and pay to the FS
the difference between these amounts and the Additional Settlement
Amounts (such difference, the "MAXIMUM REPAYMENT AMOUNT"). The Company
will submit to the FS the calculation of the Maximum Repayment Amount
within six months from the effective date of the Decree referred to in
this paragraph under (iv) (the "MAXIMUM REPAYMENT CALCULATION"). The
Maximum Repayment Amount will accrue interest at a rate of 6% per annum
from 1 January 2001 to the date of submission of the Maximum Repayment
Calculation and at the rate which applies under the Escrow Agreement
dated 7 October 1999 from the date of the submission of the Maximum
Repayment Calculation to the date of payment.
The FS may notify the Company within 20 days of receipt of the Maximum
Repayment Calculation in writing that they dispute the Maximum
Repayment Calculation. If the FS
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do not notify the Company within 20 days of receipt that they dispute the
Maximum Repayment Calculation, the Company shall pay the Maximum Repayment
Amount promptly. However, in the event that the FS dispute part of the
Maximum Repayment Calculation, the disputed amount will be increased with
statutory interest from the date of the Maximum Repayment Calculation to the
date of payment. If the FS notify the Company in writing that they dispute
the Maximum Repayment Calculation, the Parties will promptly enter into
negotiations to reach an amicable resolution of the disputed Maximum
Repayment Calculation. If no resolution is achieved within 30 days of the
FS's notice of the dispute, each Party shall be entitled to initiate
arbitration in accordance with Article 13 of this Agreement.
The Maximum Repayment Amount shall be paid through set-off against any
Additional Settlement Claims or Further Settlement Claim or, if no such
Additional Settlement Claims or Further Settlement Claim shall be
outstanding, by payment to the FS.
13. Any introduction of, changes in, or withdrawal of, the Compensation Rules
after submission of all Additional Settlement Claims shall not affect the
Additional Settlement Amounts.
ARTICLE 6 EXPERT DETERMINATION ("BINDEND ADVIES")
1. The Parties will before 30 January 2002 jointly select and appoint a
certified accountant (the "Expert"). If the Parties fail to reach agreement
on this selection and appointment, each of the Parties shall be entitled to
request the President of the NIVRA to select and appoint the Expert. The
Parties will submit to the Expert the following documents within two weeks
of his appointment: this Agreement with its Exhibits. The parties will use
their best efforts to agree on an explanatory memorandum on the Annex E
Spreadsheet. The Parties will request that the Expert review these documents
with a view to his duties under this Article 6. If the Expert does not
accept these duties within two weeks of the request by the Parties, or
thereafter is not available to make the Determination within ten weeks of
the Request for Determination, the Parties will consult to appoint another
Expert promptly.
2. The FS may, within 21 days after an Election Notice in which the Company
elects to apply Article 5, submit a Request for Determination to the Expert
with a copy to the Company. The following documents will be submitted to the
Expert, by the FS with the Request for Determination or by the Company
promptly thereafter: the Compensation Rules, with their history and
explanatory note (""parlementaire geschiedenis", "nota van toelichting" and
other relevant parliamentary documents).
3. The Request for Determination will request that the Expert make the
Determination by calculating the compensation under the Annex E Formulas and
the Compensation Rules, using the same assumptions as in the Annex E
Spreadsheet and as clarified in the Annex E Comparison.
4. The Expert will allow the Parties to comment in each others' presence at a
hearing held within four weeks of the Request for Determination. The Expert
will issue a draft Determination within two weeks of the hearing and invite
the Parties to comment within two weeks of the draft Determination. The
Expert will issue the Determination within six weeks of the hearing.
5. In determining whether Article 4 or Article 5 applies, the Expert will not
consider whether or not the State of the Netherlands makes a temporary
withholding of compensation owed to the Company under the Compensation Rules
in respect of any REB Advantage until the arbitral awards in the REB
Arbitrations.
6. In determining whether Article 4 or Article 5 applies, the Expert will take
into account an imposition by the State of the Netherlands of a time limit
of 31 December 2010, or
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later, (the "TIME LIMIT") on the period for which compensation will be
provided under the Compensation Rules, if an extension of such period is
expressly excluded by the State of the Netherlands unless the State of the
Netherlands undertakes in the Compensation Rules to provide for
compensation in respect of stranded costs for district heating projects for
the lifetime of the district heating projects, subject to notification to
the European Commission. In this latter case Article 4 will apply.
7. Any imposition by the State of the Netherlands in a Decree of a maximum
compensation amount for the Company and the Other Generators of less than
NLG 1,000,000,000 will constitute a Determination that the compensation
calculated under the Compensation Rules is not at least the same as the
compensation calculated under the Annex E Formulas, using the same
assumptions as in the Annex E Spreadsheet and as clarified in the Annex E
Comparison, and that Article 5 applies, provided that the maximum
compensation amount does not include a compensation for REB Advantage. Any
maximum other than as specified in the previous sentence will not be
considered in making the Determination.
8. The Parties will bear all costs in relation to the Determination in equal
portions, regardless of the substance of the Determination.
ARTICLE 7 FURTHER SETTLEMENT
1. Under application of Article 5, if the State of the Netherlands does not
provide for compensation in respect of stranded costs for district heating
projects for the lifetime of the district heating projects, then the
Company will calculate these stranded costs for the period for which the
State of the Netherlands does not provide compensation (the "Uncompensated
Period"). This calculation (the "Further Calculation") will be a net
present value calculation as per 1 January 2001 of these stranded costs
over the Uncompensated Period, in accordance with the Annex E Formulas,
using the assumptions in the Annex E Spreadsheet, and as clarified in the
Annex E Comparison, excluding any Additional Settlement Amounts paid by
the FS to the Company in respect of the Uncompensated Period, and will be
made within six months after the first day of the Uncompensated Period.
The Company will submit a claim (a "Further Settlement Claim") to the FS,
with the Further Calculation, within nine months after the first day of
the Uncompensated Period.
2. The FS may notify the Company within 20 days of receipt of a Further
Settlement Claim in writing that they dispute a Further Settlement Claim,
failing which the FS shall pay the amount listed in the Further Settlement
Claim promptly, but not later than 20 days after receipt of the Further
Settlement Claim. However, in the event that the FS dispute part of a
Further Settlement Claim, the FS will in accordance with the previous
sentence pay the undisputed amount of the Further Settlement Claim. If the
FS notify the Company in writing that they dispute a Further Settlement
Claim, the Parties will promptly enter into negotiations to reach an
amicable resolution of the disputed amount. If no resolution is achieved
within 30 days of the FS's notice of the dispute, each Party shall be
entitled to initiate arbitration in accordance with Article 13 of this
Agreement.
3. Any Further Settlement Claim will be increased by interest at 6% per annum
as from 1 January 2001 to the date of the claim. From the date of the
Further Settlement Claim to the date of payment, interest will accrue on
any Further Settlement Claim at the rate which applies under the Escrow
Agreement of 7 October 1999. If, however, the FS dispute a Further
Settlement Claim, any unpaid part of that Further Settlement Claim will be
increased only by statutory interest from the date of the respective
Further Settlement Claim until the date of payment. The Further Settlement
Claim will never exceed NLG 700,000,000 less the Additional Settlement
Claims after set-off with the
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Maximum Repayment Amount, if any, provided that the Further Settlement
Claim is a net present value amount as per 1 January 2001.
ARTICLE 8 FIRST ESCROW ACCOUNT
1. The Parties agree in respect of the First Escrow Account that after the
release of the Settlement Amount pursuant to Article 1, the District
Heating Settlement Amount pursuant to Article 4 and, subject to Article
4, the Additional District Heating Settlement Amount, the remaining
Escrow Amount in the First Escrow Account shall be released to the FS
within 20 days after an Election Notice that Article 4 applies or a
Determination that Article 4 applies.
2. If Article 5 applies, the Company will submit the respective Additional
Settlement Claim or Calculation. If the maximum amount of any unpaid
Additional Settlement Claims submitted by the Company plus the balance
of the maximum amount of potential future Additional Settlement Claims
over any Negative Amount, is less than the remaining Escrow Amount in
the First Escrow Account, the amount of this difference will be
released from the First Escrow Account to the FS within 20 days of the
respective Additional Settlement Claim or Calculation.
3. The Escrow Amount in the First Escrow Account, less the difference
between any unpaid Additional Settlement Claims submitted by the
Company and any Negative Amount, will be released to the FS on 30
January 2004.
ARTICLE 9 SECOND ESCROW ACCOUNT
1. The Parties agree that the Escrow Agent is only entitled to release an
amount from the Second Escrow Account to the Company submits to the
Escrow Agent a written certificate (i) stating the amount and
describing the nature of the Stranded Costs incurred and (ii)
confirming that the Company shall utilise the amount to be released
exclusively for paying or reimbursing the Company for such Stranded
Costs.
2. Any remaining amounts held in the Second Escrow Account shall be
released to the Company on 30 January 2004.
ARTICLE 10 UNCITRAL ARBITRATION PROCEEDINGS
The Parties will request that the Arbitral Tribunal freeze the arbitration
proceedings the Company has brought against the FS (registered under no. UN1316
following the Notice of Arbitration of 10 August 2001) immediately after
signature of this Agreement until the obligations of Parties under this
Agreement become effective or this Agreement is deemed null and void. The
Company will withdraw these arbitration proceedings if and when this Agreement
becomes effective.
ARTICLE 11 EFFECT OF THIS AGREEMENT
This Agreement shall become effective upon a date to be agreed upon by the
Parties.
ARTICLE 12 COURT PROCEEDINGS
The Company is not obliged to challenge any decree or resolution or decision by
the State of the Netherlands to deny or reduce compensation of Stranded Costs
for district heating projects or any compensation for loss of REB Advantage to
the Company. The Company will permit the FS to appoint counsel to act, on behalf
of the Company but on the instructions and at the expense of the FS, to
challenge in favour of the Company and for the benefit of the FS any such decree
or resolution or decision, and counsel will keep the Company fully informed in
this respect.
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ARTICLE 13 APPLICABLE ARTICLES
Articles 24, 26, 27, 31, 32, 33, 35, 39.2, 40 and 41 of the Partnership
Agreement govern this Agreement. Capitalized terms used in this Agreement which
are not defined in this Agreement have the meanings assigned to them in the
Share Purchase Agreement, as amended by the Deed of Amendment and the
Supplemental Agreement. The Parties waive any rights to, in whole or in part,
terminate, annul, rescind this Agreement or to request, in whole or in part,
the rescission or dissolution of this Agreement on any grounds including but
not limited to breach of contract (wanprestatie), error (dwaling) and
unforeseen circumstances (onvoorziene omstandigheden).
ARTICLE 14 NOTICE
Any notice to be given by any Party in respect of this Agreement shall be in
writing and shall be deemed duly served if delivered personally or sent by fax
or by prepaid registered post to the addressee at the relevant address as
follows:
If to the Municipality of Amsterdam:
Xxxxxxx 000
0000 XX XXXXXXXXX
for the attention of: Directeur Concern Financien
fax: x00 00 000 00 00
If to the Province of Noord-Holland:
Gedeputeerde Staten van Noord-Holland
Postbus 123
2000 MD UTRECHT
for the attention of: het Hoofd van de Afdeling Financieel-Economische Zaken
fax: x00 00 000 00 00
If to the Province of Utrecht:
Gedeputeerde Staten van Xxxxxxx
Xxxxxxx 00000
0000 XX UTRECHT
for the attention of: X.X. van der Veen
fax: x00 00 000 00 00
If to the Municipality of Utrecht:
Postbus 16200
3500 CE UTRECHT
for the attention of: X.X.X. Xxxxxxxx
fax: x00 00 000 00 00
If to N.V. Provinciaal en Gemeentelijk Utrechts Stroomleveringsbedrijf:
Postbus 16200
3500 CE UTRECHT
for the attention of: X.X.X. Xxxxxxxx
fax: x00 00 000 00 00
If to Reliant Energy Power Generation Inc.:
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx, Xxxxxx Xxxxxx of America 77002
for the attention of: X. Xxxxxxxx
fax: x0 000 000 0000
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If to Reliant Energy Wholesale Holdings (Europe) Inc.:
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx, Xxxxxx Xxxxxx of America 77002
for the attention of: X. Xxxxxxxx
fax: x0 000 000 0000
If to Reliant Energy Power Generation Benelux N.V.:
Beech Avenue 1
1118 ZX SCHIPHOL-RIJK
for the attention of: X. Xxxxxxxx
fax: 000 000 00 00
or to such other address as the Party to be served may have notified as its
address for service.
In witness whereof this Agreement is executed by the Parties hereto in sixfold
on 21 November 2001.
GEMEENTE AMSTERDAM
/s/ X. X. XXXX
---------------------------------------
for and on behalf of Gemeente Amsterdam
By: X. X. Xxxx
Its: Wethouder
PROVINCIE NOORD HOLLAND
By: /s/ [ILLEGIBLE]
----------------------------------------
Name: [Illegible]
Title: [Illegible]
PROVINCIE UTRECHT
By: /s/ [ILLEGIBLE]
----------------------------------------
Name: [Illegible]
Title: [Illegible]
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GEMEENTE UTRECHT
By: /s/ M. A. XX XXXXXX
----------------------------------------
Name: M. A. Xx Xxxxxx
Title: Wethouder
N.V. PROVINCIAAL EN GEMEENTELIJK
UTRECHTS STROOMLEVERINGSBEDRIJF
/s/ B. TROWBERST
----------------------------------------
for an on behalf of N.V. Provinciaal en Gemeentelijk
Utrechts Stroomleveringsbedrijf
By: B. Trowberst
Its: Director
RELIANT ENERGY POWER GENERATION INC.
By: /s/ X. XXXXXXXX
----------------------------------------
Name: X. Xxxxxxxx
Title: Agent
RELIANT ENERGY WHOLESALE HOLDINGS (EUROPE) INC.
By: /s/ X. XXXXXXXX
----------------------------------------
Name: X. Xxxxxxxx
Title: Agent
RELIANT ENERGY POWER GENERATION BENELUX N.V.
By: /s/ X. XXXXXXXXX
----------------------------------------
Name: X. Xxxxxxxxx
Title: Chief Financial Officer
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