RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WHICH APPEARS IN THE
FERC REGULATORY FILING.
PURCHASER AND SELLER AGREE THAT ALL TELEPHONIC CALLS
AND MEETINGS WITH THE FERC REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT SHALL BE CONDUCTED BY PURCHASER AND SELLER JOINTLY.
4.03
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 CONSENT, CLEARANCE OR APPROVAL REQUIRED BY ANY GOVERNMENTAL
AUTHORITY OR APPLICABLE LAW WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY.
4.04
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.
(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 AVERAGE
INTERCONTINENTAL EXCHANGE ("ICE") HIGH TRADE/SETTLEMENT (AS DETERMINED BY SELLER
IN ITS DISCRETION) FOR "DOMINION SOUTH" AND "TCO POOL" 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.
4.05
2007/2008 RPM BIDDING.
THE PARTIES AGREE AND ACKNOWLEDGE THAT
CAPACITY RIGHTS WITHIN PJM'S CURRENT CAPACITY MARKET CONSTRUCT AS WELL AS ITS
PROPOSED RELIABILITY PRICING MODEL ("RPM") CONSTRUCT SHALL FLOW TO PURCHASER AS
OF THE CLOSING DATE.
IF THE CLOSING DATE OCCURS AFTER THE BIDDING WINDOW FOR
THE 2007/2008 DELIVERY YEAR BASE RESIDUAL AUCTION, SELLER SHALL BID THE UNITS
INTO THE RPM PROCESS AT A VALUE THAT IN SELLER'S SOLE DISCRETION APPROXIMATES
THE AVOIDABLE COST (AS DEFINED BY PJM AND CALCULATED IN A MANNER CONSISTENT WITH
HOW SELLER CALCULATES AVOIDABLE COST FOR ITS OTHER PEAKING FACILITIES) OF MAKING
THE FACILITY AVAILABLE FOR THE 2007/2008 PJM DELIVERY YEAR.
SELLER SHALL THEN
TRANSFER THE FACILITY TO PURCHASER IN THE PJM SYSTEM AS OF THE CLOSING DATE. THE
PARTIES SHALL TRANSFER BOTH THE RPM CAPACITY BENEFITS AND PJM MARKET SELLER
RESPONSIBILITIES RELATING TO THE FACILITY TO PURCHASER AS OF THE CLOSING DATE.
13
ARTICLE V
PRE-CLOSING COVENANTS
5.01
DUE DILIGENCE REVIEW.
(A)
PENDING CLOSING, SELLER SHALL AT ALL
REASONABLE