ALL TELEPHONIC CALLS AND MEETINGS WITH THE
FERC REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE
CONDUCTED BY THE PURCHASER AND THE SELLER JOINTLY.
4.04
COOPERATION IN REGULATORY REVIEW PROCESS.
EACH PARTY SHALL CONSULT
AND COOPERATE IN THE REGULATORY REVIEW PROCESS.
NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT TO THE CONTRARY, EACH PARTY AGREES NOT TO OPPOSE, OBSTRUCT, OR
OTHERWISE INTERFERE WITH, IN ANY MANNER WHATSOEVER, THE EFFORTS OF THE OTHER
PARTY TO OBTAIN SUCH PARTY'S GOVERNMENTAL APPROVALS AND ALL OTHER CLEARANCE OR
APPROVAL REQUIRED BY ANY GOVERNMENTAL AUTHORITY OR APPLICABLE LAW WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED HEREBY.
4.05
CONDITIONS OR LIMITATIONS.
NOTHING IN THIS AGREEMENT WILL REQUIRE
ANY PARTY TO ACCEPT ANY CONDITION TO, LIMITATION ON, OR OTHER TERM CONCERNING
THE GRANT OF ANY GOVERNMENTAL APPROVAL IF SUCH CONDITION, LIMITATION, OR OTHER
TERM, ALONE OR IN THE AGGREGATE WITH OTHER SUCH CONDITIONS, LIMITATIONS, OR
OTHER TERMS WOULD (I) REQUIRE THE DISPOSITION BY PURCHASER OF ANY MATERIAL
ASSET(S); (II) HAVE A MATERIAL ADVERSE EFFECT ON EITHER PARTY OR ANY OF ITS
AFFILIATES IN ITS ACQUISITION, OWNERSHIP, USE, OPERATION, OR DISPOSITION OF ANY
PROPERTY OTHER THAN THE PURCHASED ASSETS; OR (III) WOULD MATERIALLY CHANGE OR
IMPAIR THE COMMERCIAL EXPECTATION OF THE PURCHASER WITH RESPECT TO THE SALE OR
TRANSMISSION OF POWER FROM THE FACILITY.
4.06
PJM NOTIFICATION OF SALE AND SCHEDULING AND BIDDING FOR DAY OF
CLOSING.
(A)
SELLER AND PURCHASER SHALL COOPERATE IN THE TRANSFER OF THE
FACILITY FROM SELLER'S ACCOUNT WITH PJM TO PURCHASER'S ACCOUNT WITH PJM WHICH
COOPERATION SHALL INCLUDE THE TRANSFER OF OWNERSHIP OF THE FACILITY ON THE
CLOSING DATE AND THE ALLOCATION OF COSTS AND REVENUES RELATED TO THE FACILITY
FOR THE CLOSING DATE.
SELLER HAS PROVIDED TO OR SHALL PROVIDE TO PURCHASER AS
OF THE CLOSING DATE ACCESS TO ALL HISTORICAL GADS DATA RELATED TO THE FACILITY.
17
(B)
FOR ANY FACILITY BIDS SUBMITTED TO PJM THAT WILL BE EFFECTIVE ON
THE CLOSING DATE, SELLER AGREES TO BID THE FACILITY UNITS IN ACCORDANCE WITH THE
FOLLOWING GUIDELINES:
(I)
AT THE SELLER'S CALCULATED MAXIMUM ALLOWABLE COST PURSUANT TO PJM
MANUAL 15 - COST DEVELOPMENT GUIDELINE (OR SUCH OTHER GUIDELINE THAT MAY REPLACE
THE PJM MANUAL 15 - COST DEVELOPMENT GUIDELINE) FOR THE UNITS AT THE FACILITY
PLUS THE ALLOWABLE 10% MARKUP, AND
(II)
USING A DELIVERED GAS PRICE EQUIVALENT TO THE INTERCONTINENTAL
EXCHANGE ("ICE") "TCO POOL" HIGH TRADE/SETTLEMENT (AS DETERMINED BY SELLER IN
ITS DISCRETION) FOR A GAS FLOW DAY THAT COINCIDES WITH THE CLOSING DATE PLUS THE
APPLICABLE ADDERS FOR PIPELINE FUEL, TRANSPORTATION, STORAGE/BALANCING, AND
OTHER ADDERS DEEMED APPROPRIATE BY SELLER TO DELIVER FUEL TO THE FACILITY.
ARTICLE V
COVENANTS
5.01
DUE DILIGENCE REVIEW.
PENDING CLOSING, THE SELLER SHALL AT ALL
REASONABLE TIMES AND UPON REASONABLE PRIOR NOTICE MAKE THE FACILITY, PROPERTIES,
ASSETS, BOOKS AND RECORDS, AND INVOLVED PERSONNEL PERTAINING TO THE PURCHASED
ASSETS AVAILABLE FOR EXAMINATION, INSPECTION AND REVIEW BY THE PURCHASER AND ITS
LENDERS, AGENTS AND REPRESENTATIVES; PROVIDED, HOWEVER, PURCHASER'S INSPECTIONS
AND EXAMINATIONS SHALL NOT UNREASONABLY DISRUPT THE NORMAL OPERATIONS OF THE