Read Microsoft Word - Supplementary Agreement to PPA-AEC[DRAFT] - 7-11-05-accepted.doc text version

SUPPLEMENTARY AGREEMENT SUPPLEMENTARY AGREEMENT TO POWER PURCHASE AGREEMENT (PPA) ENTERED BY AND BETWEEN TORRENT POWER GENERATION LIMITED AND THE AHMEDABAD ELECTRICITY COMPANY LIMITED DATED 8TH MAY, 2004. This Supplementary Agreement is made and entered into this 21st November, 2005 by and between TORRENT POWER AEC LIMITED (Earlier known as The Ahmedabad Electricity Company Limited) (TPAEC), an existing company under the Companies Act, 1956 and having its Registered Office at Electricity House, Lal Darwaja, Ahmedabad ­ 380 001 (hereinafter referred to as "the Buyer" or "First Party", which expression, unless repugnant to the context or meaning thereof shall be deemed to include its successors and permitted assigns) of the First Part, AND TORRENT POWER GENERATION LIMITED (TPGL), a Company incorporated under the Companies Act 1956 having its Registered Office at Torrent House, Off Ashram Road, Ahmedabad ­ 380 009, India (hereinafter referred to as "TPGL" or "Second Party" which expression, unless repugnant to the context or meaning thereof shall be deemed to include its successors and permitted assigns) of the Second Part. Both the Buyer and TPGL are hereinafter individually referred to as "Party" and collectively referred to as "Parties". WHEREAS, the party of the first part has entered into the Power Purchase Agreement (hereinafter referred to as "Original PPA") with the party of the second part, for the purpose of purchasing requisite power as per the terms and conditions mentioned in the Power Purchase Agreement dated 8th May, 2004. WHEREAS, for the purpose of incorporating the provisions of the Availability Based Tariff and UI charge mechanism as well as to give effect to other concerned developments, the parties have agreed to enter into this addendum by modification to various clauses of the Original PPA. The words as used herein shall have the same meaning as defined in the Original PPA.

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AGREEMENT (1) (2) In the title of the agreement Installed Capacity of the plant to be read as 1100 MW. Installed Capacity and Allocated Capacity of the plant to be read as 1128 MW and 273.50 MW respectively instead of 1095MW and 273.75MW. The definition of "Availability", be replaced by the following new definition: "Availability" for any period means the average of the daily average declared capacities (DCs) for all the days during that period expressed as a percentage of the Installed Capacity of the Generating Station minus Normative Auxiliary Energy Consumption in MW, and shall be computed in accordance with the following formula: N Availability = 10000 x DCi / { N x IC x (100-AUXn) }% i=1 where, IC = Installed Capacity of the Generating Station in MW, DCi = Average Declared Capacity for the ith day of the period in MW, N = Number of days during the period, and AUXn = Normative Auxiliary Energy Consumption as a percentage of gross generation. (4) The definition of "Rated Capacity or Installed Capacity" shall be replicated by the following definition: `Installed Capacity' or `IC' means the maximum electrical power generating capacity of the project/generating station or a generating unit (reckoned at the generator terminals), as the case may be, in Megawatts ("MW") as measured at the generator terminals, determined from time to time pursuant to Commissioning Tests and as approved by the Commission from time to time. Explanation: Where the cumulative Capacity of one or more Generating Units or of the Project as a whole, in final tests is higher than the Guaranteed Capacity, the Guaranteed Capacity will be the Rated Capacity thereof, as from the date of such final tests. However, 2

(3)

where the cumulative Capacity of one or more Generating Units or of the Project as whole, in final tests is lower than the Guaranteed Capacity, which lower tested Capacity alone, will be the Rated Capacity thereof. (5) In all other definitions, the reference to "Allocated Capacity" or "Rated Capacity" shall be replaced by the reference to "Installed Capacity". The definition of "Forced Outage", shall be changed as follows: "Forced Outage means an interruption or reduction of Power Output of the Project due to unforeseen failure of equipment;" (7) Definition of "Due date of payment" shall be replaced by the following

(6)

"Due date of payment" means with respect to any Monthly Tariff Invoice, the date on which the amount of such Monthly Tariff Invoice becomes due for payment, which date (A) in the case of any Monthly Tariff Invoice for any Billing Month, shall be thirty (30) days from such invoice date and (B) in the case of any Supplementary Invoice, shall subject to Article 10.5, be thirty (30) days from the date of its presentation to the designated officer of the Buyer. (8) Definition of "Metering Date" shall be replaced by the following:

"Metering Date" means (a) the 0.00 Hours of the Commercial Operation Date of the first Generating Unit and (b) the 0.00 Hours of the first day of each calendar month thereafter.. (9) Definition of "Scheduled Net Electrical Energy" added as follows: "Scheduled Net Electrical Energy" means the Energy Units delivered by TPGL to the Buyer or for the Buyer's account at the Interconnection Point as scheduled by the RLDC/SLDC in accordance with the Indian Electricity Grid Code. (10) (11) (12) (13) Definition of "Scheduled Generation" shall be deleted. Name of "SEC" shall be read as "Torrent Power SEC Limited" in place of "The Surat Electricity Company Limited" In the definition of "Synchronisation", words "and transmission" shall be inserted after the words "Interconnection". Definition of "Unscheduled Interchange" shall be added as follows-

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"Unscheduled Interchange" or "UI" means, in relation to the Project, any difference between the total quantity of Active Energy scheduled by the Power Purchasers and the quantity of Active Energy sent out by the Project in any Settlement Period. (14) (15) Heading of Clause 2.1 (a) shall read as "Allocated Capacity" in place of "Rated Capacity". Heading of Clause 2.1 (b) shall read as "Obligation to pay for Allocated Capacity" in place of "Allocation of the Capacity in other circumstances" Clauses 2.1 (b) (i) to (iii) shall be replaced by new sub clauses (i) to (iv) (as shown below) and original clause (iv) thereof shall be renumbered as 2.1(c) (i) wherein reference to "Allocated Capacity" shall be replaced by reference to "Rated Capacity" and the words "as mentioned above" shall be deleted. (i) The Buyer shall not be relieved of its obligation to pay the Minimum Fuel Off-Take Charges in the event that its Scheduled Net Electrical Energy is less than the level specified in Article 4.3(b) for any reason (whether or not constituting a Force Majeure Event) except to the extent that TPGL agrees to accept a temporary surrender of any Allocated Capacity that the Buyer is unable to utilize or resell for its own account and such surrender has been approved by the applicable Government Instrumentality (if required). If TPGL agrees to accept a temporary surrender of any Allocated Capacity pursuant to this provision, the Buyer's share of the Declared Capacity shall be correspondingly reduced during the period of surrender (including for the purposes of Article 4.3(b)) but the Buyer shall remain liable to pay the Capacity Charge for its full Allocated Capacity, the Buyer accepting full market risk in relation to its ability to utilize and/or resell for its own account the whole of its Allocated Capacity. (ii) TPGL shall pass on to the Buyer excess of sale proceeds over the variable cost plus expenses connected with such sale, if any; paid by a third party buyer for any Energy Units generated using Allocated Capacity that has been temporarily surrendered by the Buyer upto the maximum of fixed cost borne by the Buyer in respect of such units sold. (iii) Without prejudice to TPGL's rights under Article 15.4(b), if any amount owed by the Buyer to TPGL under this Agreement (other than an amount that is being disputed in good faith) shall be overdue for payment, TPGL may, if it deems fit, suspend the Buyer's right to schedule its Allocated Capacity (in whole or in part) 4

(16)

by giving written notice to that effect to the Load Despatch Centre until the arrears are paid in full or until alternative payment arrangements, satisfactory to TPGL, have been made without affecting the Buyer's liability to pay Capacity Charges and Minimum Fuel Off-Take Charges under this Agreement. (iv) During any period when the Buyer's right to schedule its Allocated Capacity has been suspended pursuant to paragraph (iii) above, TPGL shall use reasonable efforts to find alternative purchasers for the output from that Allocated Capacity and shall sell such output for the Buyer's account to such alternative purchasers on the best terms reasonably obtainable or, failing that, shall sell it as a UI and shall apply the net proceeds of such sales towards payment of the amounts owed by the Buyer to TPGL under this Agreement. TPGL shall notify the Regional Load Despatch Centre that the Buyer's right to schedule its Allocated Capacity has been reinstated within 24 hours after receiving payment in full of the amount in arrears under this Agreement or within 24 hours after any agreement between the Buyer and TPGL regarding payment of such arrears has taken effect (17) The following clause shall be added as sub clause 2.1(c) (ii). (ii) During any period when the Availability of the Power Station is reduced below the level corresponding to the Installed Capacity, TPGL may equitably reduce the amount of Energy Units that the Buyer and the other Power Purchasers may schedule from the Project during that period. (18) In clause 2.2 (a), both the reference to words "25% of the Rated Capacity" and the first reference to "(the Allocated Capacity)" shall be deleted. In clause 2.2 (b), words "25% of the Net Electricity Energy (the Allocated Net Electrical Energy)" shall be replaced by "the Scheduled Net Electricity Energy" and the word "Allocated" to be replaced by the word "Scheduled" before the word "Net Electricity Energy" in the fifth line of the said sub clause. In clause 3.1, words "1095MW" shall be replaced by words "1128 MW". In clause 3.2 (a), words in the third line, "...Commissioning Test of a Generating Unit in order to..." shall be replaced by the words, "...Commissioning Test of a Generating Unit immediately after the same is finalised with the EPC contractor in order to..."

(19)

(20) (21)

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(22)

In clause 4.1, words "Subject always to Articles 7.1(b), 9.3(i) and 16.5" shall be inserted before the words "Recovery of capacity charges" in the fifth line. Last two lines "No capacity....or Forced Outage" of Clause 4.1, shall be deleted. In Clause 4.2 (1) (a), at the end of first para words `as approved by the Commission from time to time' to be added. In the last para `penalties for delayed... in the above' to be deleted'. The Clause 4.2 (1) (d) shall be replaced by the following clause:

O&M Expenses (inclusive of Insurance expenses): - O&M expenses will be charged as applicable as per the tables given below:-

(23) (24)

(25)

Year

(Rs. in lakh/MW) Gas Turbine/Combined Cycle generating stations other than

small gas turbine power generating stations With warranty spares of 10 years Without warranty spares

2006-07 2007-08 2008-09 5.62 5.85 6.08 8.44 8.77 9.12

(26)

In clause 4.3 (a), words "ex-bus energy delivered/sent out from the Generating Station" shall be replaced by words "its Scheduled Net Electrical Energy" and words "Scheduled Net Electrical Energy" shall be inserted in the definition of Energy Charges before the words "..........Energy delivered" The following clause shall replace existing clause 4.3(b): (b) Minimum Fuel Off-take Charges The Buyer shall reimburse TPGL for charges paid in respect of its failure to take delivery of minimum levels of Fuel, but only to the extent that TPGL's failure to take such Fuel is due to the Buyer's Scheduled Net Electrical Energy in any [Contract Year] being less than the 80% of the maximum number of Energy Units that could have been generated from its share of the Declared Capacity as specified in Article 2.4 (such percentage of the maximum number of Energy Units being the "Buyer's Minimum Take Requirement"); Provided that the Buyer shall reimburse such minimum Fuel offtake charges to the company only to the extent that such minimum fuel off-take charges (take-or-pay charge) were incurred in accordance with the Fuel Supply Agreement; 6

(27)

(28)

In Clause 4.4, reference to "Allocated Capacity" shall be replaced by reference to "Installed Capacity" and reference to "ex-bus actual energy delivered" shall be replaced by "ex-bus scheduled energy corresponding to scheduled generation". The following clause shall be replaced in place of Clause 4.8 "Unscheduled Interchange Charges". 4.8 Unscheduled Interchange Charges (UI Charges) For any deviation in generation/drawl of active energy from their respective schedule, TPGL and the Buyer, as the case may be, shall pay UI charges to RLDC/SLDC, as per the provisions and frequency linked rates mentioned in the CERC Regulations.

(29)

(30) (31)

In Clause 6.9, words `or last test/calibration made, whichever is later' to be inserted after the words `previously monthly meter reading'. In clause 7.1, sub clause (a) shall be deleted while sub clause (b) shall read as sub clause (a) and new sub clause (b) shall be inserted as follows. (b) The Buyer acknowledges that it is purchasing its Allocated Capacity and Scheduled Net Electrical Energy at the Interconnection Point. Nothing occurring on any transmission or distribution lines on the Buyer's side of an Interconnection Point (whether or not caused by a Force Majeure Event) shall relieve the Buyer of its obligation to pay Capacity Charges and Energy Charges -for energy scheduled.

(32) (33)

In clause 7.3 (c), words "Interconnect and Transmission Facilities" shall be inserted in place of word "transmission line". In Clause 8.1, second para to be added as follows"Provided, however that the TPGL shall be entitled to carry out such of the modifications to comply with the foregoing at no cost to Buyer, subject to the conditions that such modifications do not result into the inability of generating station to operate within the Grid System Parameters.

(34)

In Clause 8.2, second para- `If in future......... variable Energy Charges' to be deleted.

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(35)

Clause 9.1 (i) shall be replaced as follows"The Dispatch of the Generating Station will be controlled by the SLDC/RLDC or such applicable Load Dispatch Centre as the case may be. The Buyer shall schedule its load requirement directly with the SLDC/RLDC or applicable Load Dispatch Centre."

(36) (37)

Sub clause 9.1 (ii) to (iv) shall be deleted. In clause 9.2, words in the fourth line, "...as per the mutually agreed procedures and shall include..." shall be replaced by the words, "...as per the mutually agreed procedures within the framework of the Grid Code and other negotiations as applicable and shall include..." In clause 9.2(v), words "TPGL shall operate.........relevant availability" shall be deleted. In clause 9.3 (i), words "state its Declared Capacity........fully loaded" shall be replaced by following words "notify the Buyer and the SLDC/RLDC or applicable Load Dispatch Centre of the effect of such shutdown or backing down on the Buyer's ability to schedule deliveries of power from its Allocated Capacity, provided that nothing in this Article shall relieve the Buyer of its obligation to pay the Capacity Charges and Minimum Fuel Off-Take Charges for Allocated Capacity that TPGL could have made available but for such shutdown" In Clause 11.1 (b) (ii), following line shall be inserted at the end of para "Provided that the TPGL shall deposit the proceeds of such Buyer's Letter of Credit into a bank account to be held as substitute security for Buyer's obligation and within five (5) days of Buyer's replenishment, renewal or replacement of the Buyer's Letter of Credit, the deposits from such account shall be refunded to Buyer." In Clause 12.3, line shall be added that ­ "The TPGL shall from time to time, obtain all such insurance necessary for statutory compliance." New Clause 13.3 to be added, as follows"13.3 Satisfaction of Conditions Precedent Each party that is responsible for satisfying a particular Condition Precedent shall keep the other party informed in writing of the progress being made in fulfilling such Condition Precedent and upon the fulfillment or waiver of such Condition Precedent, as the case may be."

(38) (39)

(40)

(41) (42)

(43)

In Clause 16.3, point (x) shall be deleted. 8

(44) (45)

In clause 20.9, in the second last line word "international" shall be replaced by the word "intentional". The Clause 20.13, (Confidentiality), shall be substituted by the following clause as follows :

20.13 The terms of this Agreement and any information delivered by any Party hereto in connection with this Agreement and / or has been marked confidential by the delivering Party are confidential and such terms or other information or any part thereof may not be disclosed to any Person, other than the following Persons: (a) any officers, directors, agents, consultants, or employees of the Parties or any lender or proposed lender; or (b) any agents, employees, officers, or directors of any assignee or potential assignee that is permitted hereunder or any assignee or potential assignee of a lender or proposed lender. In addition, any Party hereto may disclose confidential information to any other Person, to the extent that such disclosure is necessary to perform its obligations hereunder. No Party shall mark any information confidential unless such Party reasonably believes that such information is confidential. The obligations with respect to the disclosure of confidential information set forth in this Section are not applicable to confidential information which (i) becomes available from a source, other than a Party to this Agreement, who has no obligation of confidentiality with respect to the confidential information and who did not obtain such confidential information pursuant to a breach of this Section, or any other confidentiality obligation to the Party claiming ownership of such confidential information; (ii) is developed independently by the Party to whom it was delivered; (iii) is within, or later falls within, the public domain without breach of this Agreement by the Party receiving such information; or (iv) is required to be disclosed in connection with any law or any legal proceeding pending before a court or other governmental entity of competent jurisdiction, provided that the Party required to make such disclosure shall give immediate notice that it is compelled to make such disclosure so that the Party providing the information hereunder may, if it so desires, seek a protective order with respect to the confidentiality of the information covered thereby. Each Party to this Agreement agrees to use its reasonable efforts to protect the confidential information and prevent its disclosure, publication, or dissemination to third parties. The terms of this Section shall survive for a period of three (3) years following the expiration or earlier termination of this Agreement. (46) The Following new Clauses shall be added as Clause 20.21 and Clause 20.22 respectively :

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20.21 Notwithstanding anything contained herein, the provisions contained in the applicable CERC guidelines for Tariff as amended from time to time shall apply in all matters contained in such guidelines. 20.22 Notwithstanding anything contained herein, the provisions contained in the applicable Indian Electricity Grid Code, State Grid Code, Grid Connectivity Standards, Metering Code and Safety Standards as may be specified by the Central Electricity Authority and as amended from time to time shall apply in the matters contained in such standards/codes. (47) In Schedule A, words "1095MW' shall be replaced as "1128 MW'

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IN WITNESS WHEREOF, each of the Parties have caused this Agreement to be executed and delivered in more than one (1) copy, each of which shall be deemed to be an Original, as of the day and year first above written. SIGNED, SEALED AND DELIVERED by,

For and on behalf of TORRENT POWER AEC LIMITED

For and on behalf of TORRENT POWER GENERATION LIMITED

Sd/_______________________________ Authorised Signatory

Sd/_______________________________ Authorised Signatory

Witness: 1. Sd/2. Sd/-

Witness: 1. Sd/2. Sd/-

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