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Exhibit 10.3b
Amendment No. 1 to Interconnection Agreement
THIS AMENDMENT NO. 1, dated as of May 6, 1999, to that certain
Interconnection Agreement (the Agreement") by and between New York State
Electric & Gas Corporation ("NYSEG"), a New York corporation with an office for
the transaction of business at Corporate Drive, Kirkwood Industrial Park,
Binghamton, New York 13902-5225, and AES NY, L.L.C. (the "Buyer"), a Delaware
limited liability company with a principal place of business located at 0000
Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. NYSEG and Buyer shall each be
considered a "Party" and, collectively, they shall be referred to as the
"Parties."
WITNESSETH:
WHEREAS, NYSEG and Buyer entered into the Agreement, which is dated as
of August 3, 1998; and
WHEREAS, NYSEG and Buyer desire to amend the Agreement pursuant to
Section 25.2 of the Agreement.
NOW THEREFORE, in consideration of the mutual representations,
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, the Parties hereto agree as follows:
AGREEMENT
1. Terms used in this Amendment with initial capitalization and not
otherwise defined in this Amendment shall have the meanings specified or
referred to in Article 1 of the Agreement or the Asset Purchase Agreement (the
"APA") by and among NYSEG, NGE Generation, Inc., an affiliate of NYSEG, and the
Buyer dated as of August 3, 1998.
2. The fourth and fifth lines of the definition of "NYISO" in Section
1.20 of the Agreement are hereby revised to read as follows:
FERC, as proposed by the NYPP member systems and conditionally
authorized by FERC in Docket Nos. ER97-1523, ER97-470, and
ER97-4234, and as modified from time to time.
3. The first sentence of Section 2.1 of the Agreement is hereby revised
to read as follows:
Except as provided herein, this Agreement shall become effective as
of the Effective Date, or such other effective date as the FERC may
establish, and shall continue in full force and effect with respect
to a Fossil Plant until that date which is fifty (50) years from the
Closing Date, unless terminated on an earlier date (a)
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by mutual agreement of NYSEG and Buyer, (b) by Buyer upon
twenty-four (24) months written notice to NYSEG if Buyer decides to
decommission, retire, or otherwise permanently cease to operate
such Fossil Plant, or (c) in accordance with the terms of this
Agreement; provided, however, that the provisions of Articles 3, 4,
and 5 shall become effective upon the Closing Date. NYSEG and AES
shall negotiate in good-faith for an interconnection agreement to
be effective upon the expiration of this Agreement.
4. Section 3.1.3 of the Agreement is hereby revised to read as follows:
Except as provided in Section 4.2.1.5, the Buyer shall be
responsible for making arrangements under the applicable tariffs for
(a) transmission and ancillary services associated with the delivery
of capacity and/or energy produced by the Fossil Plants, (b)
obtaining capacity and/or energy to satisfy its station service, or
other, requirements, and (c) transmission, losses, and ancillary
services associated with the use of the Transmission System for the
delivery of capacity and/or energy to the Fossil Plants. NYSEG shall
reasonably cooperate with the Buyer's arrangement for such services.
5. The last line of Section 3.1.5 of the Agreement is hereby revised to
read as follows:
energy, or ancillary services that NYSEG seeks from the Fossil
Plants.
6. The fourth line of Section 3.2.2 of the Agreement is hereby revised
to read as follows:
equipment, building facilities, software, documentation, structural
components, and other
7. Section 3.3.4.1 of the Agreement is hereby revised to read as
follows:
NYSEG may reasonably request, pursuant to Good Utility Practice,
that the Buyer test, calibrate, verify, or validate the Fossil
Plants, and the Buyer shall comply with such request within thirty
(30) days after receiving such request. The Buyer shall be
responsible for all costs of testing, calibrating, verifying or
validating the Fossil Plants. The Buyer may reasonably request,
pursuant to Good Utility Practice, that NYSEG test, calibrate,
verify, or validate the NYSEG Interconnection Facilities, and NYSEG
shall promptly comply with such request within thirty (30) days
after receiving such request. NYSEG shall be responsible for all
costs of testing, calibrating, verifying or validating the NYSEG
Interconnection Facilities.
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8. The last sentence of Section 3.4.4 of the Agreement is hereby
revised to read as follows:
All such additions, modifications, or replacements shall comply
with Good Utility Practice, must be accompanied by appropriate
information and operating instructions, and shall be subject to the
review and acceptance of NYSEG, which review shall be based on Good
Utility Practice and which acceptance shall not be unreasonably
withheld.
9. The last line of Section 3.4.5 of the Agreement is hereby revised
to read as follows:
modification, or replacement to the Fossil Plants made pursuant to
Sections 3.4.2, 3.4.3, or 3.4.4.
10 The following sentences are hereby inserted at the end of Section
3.6.3 of the Agreement:
NYSEG disclaims, and the Buyer releases NYSEG from, any liability
to the Buyer or to the Buyer's parent, affiliates, successors,
officers, directors, employees, or agents, in connection with,
arising from, or related to (a) NYSEG's receipt of information in
accordance with this Section 3.6.3, or (b) NYSEG's acts or
omissions, negligent or otherwise, subsequent to receiving such
information. For the first six (6) months commencing with the
Effective Date, NYSEG will supply the Buyer verbally with
information received in accordance with Section 3.6.3, but only for
the purpose of data comparison and verification. Beyond such
six-month period, NYSEG shall supply Buyer with such information
upon Buyer's reasonable request, but only for the purpose of data
comparison and verification.
11. Section 3.7.1.2 of the Agreement is hereby revised to read as
follows:
Neither NYSEG nor the Buyer shall terminate any services set forth
in Sections 3.8 and 3.9 below without the other Party's written
consent, which shall not be unreasonably withheld, or without, in
the case of the services set forth in Sections 3.9.4 and 3.9.6, at
least one (1) month's prior written notification and, with respect
to all other services set forth in Sections 3.8 and 3.9, at least
twenty-four (24) months' prior written notification; provided,
however, that if either Party no
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longer needs or desires a particular service provided under Section
3.8 or 3.9, that Party shall notify the other Party, and the
providing Party shall terminate that service as soon thereafter as
practicable; provided further, that if Buyer exercises its right to
terminate this Agreement, for any Fossil Plant, in accordance with
Section 2.1 (b) of this Agreement, then the Buyer shall, at its
option, and as a condition to the effectiveness of such
termination, either (a) on or before the effective date of the
termination of this Agreement, and at the Buyer's expense, (i)
relocate NYSEG's control equipment and related facilities located
in the Fossil Plant to a new building to be located on a parcel to
be provided by NYSEG (which building shall be constructed by the
Buyer in accordance with NYSEG's reasonable specifications and
shall become the property of NYSEG), (ii) provide and install all
necessary equipment for services to such new building, including,
but not limited to, heating, lighting and ventilation (which
services shall be provided in accordance with NYSEG's reasonable
specifications), and (iii) reimburse NYSEG for the cost of those
modifications to NYSEG's system necessary to establish Secondary
System service and control cabling between such new building and
NYSEG's substation equipment; provided, however, that the Buyer's
obligation to provide access to Secondary System service and to
provide certain building services pursuant to Sections 3.9.1 and
3.9.2, respectively, of this Agreement or otherwise, shall cease
upon AES's compliance with this Section 3.7.1.2.(a), or (b)
following the termination of this Agreement, and up to what would
have been the expiration date of this Agreement but for such
termination, and at Buyer's expense, (iv) provide NYSEG with access
to the NYSEG Excluded Assets located within the Fossil Plant equal
to that access provided to NYSEG under this Agreement and the
Easement Agreement applicable to that Fossil Plant, (v) provide the
NYSEG Excluded Assets located within the Fossil Plant with building
services to the same extent as provided pursuant to Section 3.9.2
of this Agreement, or any agreement between the parties
implementing this Agreement, (vi) continue to provide NYSEG with
access to Secondary System service to the same extent provided
pursuant to Section 3.9.1 of this Agreement (or reimburse NYSEG for
the reasonable costs of modifications to its system required to
establish Secondary System service and control cabling between the
Fossil Plant and NYSEG's substation equipment), (vii) maintain the
physical and structural integrity of the Fossil Plant, (viii)
maintain the Fossil Plant's physical, mechanical and electrical
facilities in good repair, and (ix) provide appropriate security to
prevent intrusion and vandalism to NYSEG Excluded Assets.
12. Section 4.2.2 of the Agreement is hereby revised to read as
follows:
Unless otherwise agreed to by the Parties, the Buyer shall operate
the Fossil Plants with automatic voltage regulation equipment in
service at all times, unless such equipment requires repair, in
which case the Buyer will take all immediate
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steps to restore such equipment to service as soon as possible. The
voltage regulation equipment will control voltage at the Points of
Interconnection to the Desired Hold Voltage set forth in Schedule D
of this Agreement, as may be amended by NYSEG, or the System
Operator, from time to time; provided, however, that nothing in
this Section 4.2.2 shall require the Buyer to operate a Fossil
Plant in a manner that is materially different from the manner such
Fossil Plant was operated by NYSEG prior to the Closing. NYSEG, or
the System Operator, may require the Buyer, at no charge to NYSEG,
to raise or lower the Desired Hold Voltage at any of the Buyer's
Fossil Plants, consistent with the Range of Voltage set forth in
Schedule D of this Agreement, which may result in providing
reactive power to the Transmission System or absorbing reactive
power from the Transmission system, provided that, in either case,
the Fossil Plant is operating within its reactive generating
capability and not violating any electric constraints.
13. Section 4.2.2.1 of the Agreement is hereby revised to read as
follows:
If the Buyer fails to operate a Fossil Plant in accordance with
Section 4.2.2, and to the extent the Fossil Plant is operating
within its reactive generating capability and not violating any
electric constraints, NYSEG will provide written notice to the
Buyer of NYSEG's intent to remedy that failure. If the Buyer does
not promptly commence appropriate action after receiving such
notice, NYSEG may then take necessary action at the Buyer's expense
to remedy such failure, including the installation of capacitor
banks or other reactive compensation equipment necessary to ensure
the proper voltage or reactive supply at the Fossil Plant. NYSEG
shall take, to the extent feasible, reasonable efforts to minimize
the impact of such action on the operation of the Fossil Plant.
14. Section 4.2.2.3 of the Agreement is hereby revised to read as
follows:
In addition to voltage regulation, the Buyer shall adhere to the
NYPP's or the NYISO's service restoration plan and black start
criteria, as amended from time to time.
15. Section 4.2.5 of the Agreement is hereby deleted in its entirety.
16. The revised Schedule A to the Agreement, which is attached to this
Amendment as Appendix A, is hereby substituted in its entirety for the form of
Schedule A currently attached to the Agreement.
17. The revised Schedule D to the Agreement, which is attached to this
Amendment as Appendix B, is hereby substituted in its entirety for the form of
Schedule C currently attached
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to the Agreement.
18. The revised Schedule F to the Agreement, which is attached to this
Amendment as Appendix C, is hereby substituted in its entirety for the form of
Schedule F currently attached to the Agreement.
19. This Amendment may be executed in two or more counterparts, all of
which will be considered one and the same Amendment, and each of which shall be
deemed an original.
20. This Amendment and all rights, obligations, and performances of the
Parties hereunder, are subject to all applicable Federal and state laws, and to
all duly-promulgated orders and other duly-authorized action of governmental
authorities having jurisdiction. When not in conflict with or preempted by
Federal law, this Amendment will be governed by and construed in accordance with
the law of the State of New York, without giving effect to the conflict of law
principles thereof.
21. The Agreement, as modified by this Amendment, remains in full force
and effect.
22. NYSEG shall file this Amendment with the FERC as an amendment to
the applicable Rate Schedules and Supplements in FERC Docket No. ER98-4406-000.
The Buyer agrees to support such filing, to cooperate reasonably with NYSEG with
respect to such filing, and to provide any information, including the filing of
testimony, reasonably required by NYSEG to comply with applicable filing
requirements. This Amendment is subject to any necessary regulatory acceptance
or approval without any material modification or condition. If any regulatory
agency having jurisdiction over this Amendment requires any modification to, or
imposes any condition of acceptance or approval of, this Agreement, then NYSEG
and the Buyer shall engage in good faith negotiations for a period of thirty
(30) days following the issuance of that acceptance or approval in order to
agree to revisions to this Amendment to satisfy, or otherwise address, such
modification or condition. If NYSEG and the Buyer fail to agree mutually to such
changes, then NYSEG may make a unilateral filing to satisfy the modification or
condition, which filing shall attempt to satisfy the intent of the Parties under
this Agreement; provided, however, that the Buyer shall have the right to
protest the manner in which NYSEG has attempted to satisfy such modification or
condition.
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Amendment as of the date first above written.
NEW YORK STATE ELECTRIC & GAS CORPORATION
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Xxxxxx X. Xxxxxx
Vice President and Secretary
AES NY, L.L.C.
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Xxxxx Xxxxxxx
Vice President
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APPENDIX A
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APPENDIX B
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