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Home My WebLink AboutContract #: 675 - From: 12-01-2013 To: 12-01-2015 - Trans Canada - Town of North Andover�� Vii_ RECEIVED TOWN MANAGER'S O FIC 2013 JUL 17 PM 2: 36 TOWN O -- WORTH WOR►N A�N06YER MASS CiiUS TTS @ , 3 July 11, 2013 Mr. Andrew Maylor Town of North Andover, Massachusetts 120 Main Street North Andover, MA 1845 Dear Mr. Maylor, '44-- & 1'✓ 7r nCanada to business to deliver Mr. Stuart Ormsbee TransCanada Power Marketing Ltd. 110 Turnpike Road, Suite 300 Westborough, MA 01581 Tel: 508-871-1857 Fax: 508-898-0433 Email: stuart-0rmsbee@transcanada.com Web: www.transcanada.com/powermarketing Thank you for choosing TransCanada as your electric supplier. We appreciate and value your business. Enclosed please find a copy of your fully executed Power Purchase Agreements and/or Confirmations. Please ensure that the correct billing address is reflected in this document. If any changes need to be made, please notify us. If you have any questions or concerns, please feel free to contact Customer Care at 1.877.MEGAWAT or accounting_department@transcanada.com. Regards, V6�-� Stuart Ormsbee Manager, Power Marketing Enclosure `. APPENDIX A POWER PURCHASE AGREEMENT CONFIRMATION June 27, 2013 This Confirmation, upon execution and delivery represents a legally binding Transaction between TransCanada Power Marketing Ltd. ("TransCanada") and Town of North Andover, Massachusetts (the "Buyer") and shall incorporate and be subject to the Cover Sheet and the Terms and Conditions of the Power Purchase Agreement dated December 13, 2011 between TransCanada and Buyer (the "Agreement"), except to the extent expressly stated herein. This Confirmation together with the aforementioned Agreement constitute a single agreement between the Parties and any capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. 1. Supply Term The Supply Term applicable for each account specified in Section 4 of this Confirmation shall begin with the next Billing Cycle that commences after December 1, 2013 and shall end coincident with the first meter read after December 1, 2015, provided however that TransCanada shall continue to provide Electrical Supply service upon the conclusion of the Supply Term until (a) Buyer's account(s) are enrolled by another competitive supplier, (b) Buyer provides notice to TransCanada that it is discontinuing receipt of service at the next earliest opportunity or (c) TransCanada unenrolls Buyer's accounts (the "Automatic Extension Term"). In addition, should Buyer and TransCanada agree to the terms of a new Confirmation during the Automatic Extension Term, this Transaction shall automatically terminate upon the start of the Supply Term under such new Confirmation. 2. Charges for Electrical Supply (a) During the Supply Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be 7.840¢/kWh multiplied by the Energy up to the Contract Quantity; (ii) any applicable charges under Sections 4.3, 4.7; and (iii) any applicable Taxes under Section 6.2. (b) Notwithstanding Section 2(a) of this Confirmation, during the Automatic Extension Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be equal to that price which would have been charged by the Transmitting Utility for the provision of supplier services had the provision of service by TransCanada been discontinued; and (ii) any applicable Taxes under Section 6.2. Contract Quantity, Generation Allowance, and Net Consumption Minimum (a) The Contract Quantity is as follows: Contract Quantity Capacity Allowance Month Energy (kW) (kWh) Each month 500,000 1,625 (b) The Generation Allowance is: 50,000 kWh/month (refer to Sections 3.3 and 4.7 of Terms & Conditions). (set approximately equal to 15% of average monthly usage over a typical year} (c) The Net Consumption Minimum is as follows (refer to Sections 3.3 and 4.7 of Terms & Conditions) {set approximately equal to 80% of typical usage for applicable months): Master TCPM PPA MA Jan2011 Page 1 of 7 Month Energy kWh/month) Jan — Feb 275,000 Jun — Aug300,000 All other months 225,000 The Buyer hereby represents and warrants to TransCanada that there is no On -Site Generation installed at any of Buyer's Service Point(s) listed under this Confirmation. 4. Service Point(s) TransCanada shall sell, and Buyer shall purchase, the Electrical Supply at Buyer's following facilities: Master TCPM PPA MA Jan2011 Page 2 of 7 Buyer's Load Facility Location Zone Account # TCPM Account # Town of North Andover, MA 345 MAIN ST NEMA 4116690007 NANDOVER01 Town of North Andover, MA 566 MAIN ST NEMA 378134000 NANDOVER02 Town of North Andover, MA 33 JOHNSON ST P5196 NEMA 1611900005 NANDOVER06 Town of North Andover, MA 120R MAIN ST NEMA 5015381008 NANDOVER07 Town of North Andover, MA 364 OSGOOD ST P7 NEMA 9081726006 NANDOVER08 Town of North Andover, MA 120 MAIN ST NEMA 8753991005 NANDOVER101 Town of North Andover, MA FOXWOOD DR NEMA 6590905003 NANDOVER110 Town of North Andover, MA SALEM BLUE RIDG ST NEMA 1609294001 NANDOVERI I 1 Town of North Andover, MA JOHNSON CI NEMA 4119388004 NANDOVERI 12 Town of North Andover, MA 14 PALOMINO DR NEMA 9051131008 NANDOVER113 Town of North Andover, MA 1280 TURNPIKE ST NEMA 7804211002 NANDOVER114 Town of North Andover, MA SALEM/CAMPBELL RD NEMA 6573325001 NANDOVER116 Town of North Andover, MA REA'S POND NEMA 1609340008 NANDOVER117 Town of North Andover, MA 723 OSGOOD ST NEMA 378169003 NANDOVERI4 Town of North Andover, SALEM & JOHNSON MA ISCT NEMA 1629245004 NANDOVERI6 Town of North Andover, MA MAIN ST NEMA 21702009 NANDOVERI7 Town of North Andover, MA HAWTHORNE PL NEMA 2873319005 NANDOVER19 Town of North Andover, MA HOLLY RIDGE RD NEMA 9083244007 NANDOVER20 Town of North Andover, MA 805 TURNPIKE ST NEMA 1577038004 NANDOVER22 Town of North Andover, 1 MA FLAGSHIP DR NEMA 2816477006 NANDOVER23 Master TCPM PPA MA Jan2011 Page 2 of 7 N. Town of North Andover, MA TURNPIKE ST NEMA 4062065001 NANDOVER24 Town of North Andover, MA GREAT POND NEMA 380222006 NANDOVER27 Town of North Andover, MA WINTER ST PUMP STA NEMA 5364258001 NANDOVER28 Town of North Andover, MA 75 WATER ST P86/1 NEMA 7855643003 NANDOVER38 Town of North Andover, MA ROSEMONT DR NEMA 2873240005 NANDOVER46 Town of North Andover, MA PETERS STP123 NEMA 1593093005 NANDOVER47 Town of North Andover, MA BARKER ST NEMA 2871896009 NANDOVER49 Town of North Andover, MA 420 GREAT POND RD NEMA 2519660007 NANDOVER50 Town of North Andover, 384 OSGOOD STREET 1555959004 MA NEMA NANDOVER31 5. Invoices All invoices and payments are to be sent to the following address: Town of North Andover, Massachusetts 120 Main Street North Andover, MA 01845 Attn: Maxk-Kegs Town Manager's office Phone: (978) 688-9510 Fax: E-mail: 6. Enrollment In accordance with Section 5. 1, TransCanada shall employ its best efforts to enroll Buyer's accounts and Buyer agrees to take steps to cooperate with TransCanada's efforts to perform such enrollment, including but not limited to providing TransCanada with a copy of an electric utility bill prepared by Buyer's Transmitting Utility for each account specified in Section 4 of this Confirmation. TransCanada shall not be held liable to Buyer for not enrolling Buyer's accounts if such failure was due to any cause beyond TransCanada's control. Mediation Service As described more fully in Section 6.1(e), in the event the Parties are unable to resolve a dispute between themselves, the Buyer may avail itself of mediation services available through the Massachusetts Department of Public Utilities pursuant to the Massachusetts General Laws c. 164, § IF(2) and 220 CMR 11.07(4). 8. Representations and Warranties Each Party represents and warrants that it has the necessary corporate and legal authority to enter into this Confirmation and to perform each duty and obligation imposed by this Confirmation and that this Confirmation, when executed by the duly authorized representatives of each Party, represents a valid, binding and enforceable legal obligation of the Party. Each Party represents that each individual affixing a signature to this Confirmation has been duly authorized to execute this Confirmation on behalf of the Party he or she represents, and that by signing the Confirmation, a valid, binding and enforceable legal obligation of the Party has been created. Buyer acknowledges that (i) the Contract Price is a fixed price for the Supply Term and will not fluctuate based on market prices for Electrical Supply; and (ii) it has made its own independent decision to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and is capable and prepared to assume such risks. Master TCPM PPA MA Jan2011 Page 3 of 7 Further and with respect to Buyer, Buyer represents and warrants to TransCanada, continuing throughout the term of the Agreement, with respect to the Agreement and this Confirmation, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Confirmation, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and any ordinances, bylaws or other regulations applicable to Buyer and its obligations under this Confirmation, (ii) all persons making up the governing body of the Buyer are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law, (iii) entry into and performance of this Confirmation by the Buyer are fbr a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable I aw, (iv) the term of this Confirmation does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) Buyer shall not assert as a defense to the enforceability of this Confirmation, including without limitation to any claim for payment hereunder, that Buyer's obligations hereunder are invalid or unenforceable because they are in conflict with the terms of any bond indenture or bond ordinance t4 which it is a party, the Act or any relevant constitutional, organic or other governing documents and applicable law, (vi) entry into and performance of this Confirmation by the Buyer will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer that is otherwise entitled to such exclusion, and (vii)obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. "Act" means the governing law spceilied under Section 1.3 of the Terms and Conditions. On the date of execution of the Confirmation, and as a condition to the obligations of TransCanada under this Confirmation, Buyer shall provide TransCanada with a notarized certificate, from its duly authorized representative in the form attached as Exhibit B-1 to the Agreement, certifying the authority of the Buyer to enter into this Confirmation. 9. Execution and Effectiveness Effectiveness of this Confirmation is dependent upon the delivery to TransCanada of an executed copy by no later than 4:00 PM on June 27, 2013. Delivery of a copy of this Confirmation by facsimile is good and sufficient delivery. Signed and delivered. TransC da Power Market' Ltd. Town of North Andover, Massachusetts huler 6t.) Per: , s Agent and Attorney- Fact Pe►~ Andrew W. Maylor, Townh anaier Per: Michael liach�y, Directore�mmercial East Per Master XPAI PPA Mil Jan1011 Page 4 of 7 t. EXHIBIT B-1 CERTIFICATE (for Municipal Buyers) To: TRANSCANADA POWER MARKETING LTD. ("TransCanada") Ile: Power Purchase Agreement dated December 13, 2011 between the Town of North Andover, Massachusetts ("Buyer") and TransCanada, including the Cover Sheet, the Terms and Conditions, any and all Confirmations and all the schedules attached thereto, including, without limitation, the Power Purchase Agreement Confirmation dated June 27, 2013 (collectively, the ".Agreement") 1, Andrew W. Maylor [Signator], HEREBY CERTIFY that I am the Town Manager [Title] of the Buyer and that, as such, I am authorized to execute this Certificate on behalf of the Buyer and, as it relates to the Agreement, I further certify that: The execution, delivery, observance and performance of the Agreement .does not and will not conflict with or result in a breach or constitute a default under any of: (A) the articles, by-laws, constitutional, organic or other relevant governing and organizational documents of the Buyer, or (B) the terms or provisions of any judgment, law, decree, order, statute, rule, regulation or agreement, indenture or instrument to which the Buyer is a party or by which the Buyer is bound or to which the Buyer is subject; 2. The person signing the Agreement has the legal authority to execute and deliver the; Agreement on behalf of the Buyer; 3, The Agreement constitutes a legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms; 4. Buyer is fully aware and has acknowledged that the costs associated with capacity, and congestion, as referenced under Article 4 of the Agreement, may be significant and has agreed to be fully responsible for all such costs in accordance with the terms of the Agreement; 5. Buyer has read Section 9.4 of the Agreement and has acknowledged that the Liquidated Damages provided for under that provision constitutes a reasonable pre -estimate of damages and agrees to fully comply with such provision under the circumstances set forth therein; 6. The Buyer and the person signing the Agreement has. satisfied and complied with all applicable ordinances, resolutions, public notices and other local requirements with respect to any approvals and authorizations necessary for the execution, delivery and performance of the Agreement by the Buyer; and A4asier 701M PPA MA Jan20!! Page 5 of 7 7. 1 am signing this Certificate with a full and complete understanding of the risks and consequences of the matters that I am certifying herein. IN WITNESS WHEREOF, I have hereunder set my hand this 28 day of June , 2013. Po726 a_� l•cll� d�& Name: [Signator] Andrew W. Maylor�— Title: [Title] Town Manager SUBSCRIBED and SWORN to me this day of r f , 2013 Notary Public My Commission Expires; + - ri zol �i�rri��r.1.rrrrr..i✓�.rri�rfi..r-CiiJ. Master 7rPA4 PPA U4 Jmj2(N l Page 6 of 7 r Electricity Facts TransCanada Power Marketing Ltd. Massachusetts July 2013 Competitive Suppliers are required by the Massachusetts Department of Public Utilities to provide customers with an information disclosure label. The purpose of the label is to ensure that customers are presented with consistent information by which to evaluate services offered by Competitive Suppliers and Distribution Companies. Generation Price Known Power Source Resources System Power Total Biomass 0.0/0 0.1/0 o 0.1/0 Average price per kWh at Average Use per Month 1,000 kWh 10,000 kWh 20,000 kWh 40,000 kWh different levels of use. Prices do not include regulated charges for Average Please refer to your Purchased Power Agreement for contract customer service and delivery Price per prices. Your average electricity price may vary by time of use. 0.0% kWh See your most recent invoice for your monthly use. Contract Please refer to your Purchased Power Agreement for prices and terms for Generation Service. Power Sources This electricity product in the period 01/1/12 to 12/31/12 was assigned generation from the following sources: Known Power Source Resources System Power Total Biomass 0.0/0 0.1/0 o 0.1/0 Coal 0.0% 3.1% 3.1% Hydro: Large 7.2% 0.9% 8.1% Hydro: Small 0.0% 0.0% 0.0% Imported Power 0.0% 0.0% 0.0% Landfill Gas 0.0% 0.0% 0.0% Low Impact Hydro Institute* 13.1% 0.0% 13.1% Municipal Trash 0.0% 1.4% 1.4% Natural Gas 16.4% 24.3% 40.7% Nuclear 0.0% 20.3% 20.3% Oil inc. Diesel & Jet 0.0% 4.2% 4.2% Other 0.0% 5.0% 5.0% Other Renewable 0.0% 0.0% 0.0% Solar 0.0% 0.1% 0.1% Wind 3.9% 0.1% 4.0% Total 40.63% 59.37% 100.0% Air Emissions Carbon dioxide (CO2), nitrogen oxide (NOj, and sulfur dioxide (SO2) emission rates from these sources, relative to the regional average, and to the emission rates of a new generating unit. New TCPM Resource England Portfolio Average lbs/MWh lbs/MWh TCPM o Portfolio as /o of Regional Average New Unit lbs/MWh CO2 634 855.78 74% 760 NO,, 1 0.73 1.14 63% 0.06 SO2 1 0.88 1.79 49% 0.02 Labor Information 47% of the electricity from Known Resources union contracts or that used replacement labor came from power sources with during disputes between 01/1/12 and 12/31/12. It is not known what percentage of the electricity from System Power came from power sources with union contracts. Customer Service For questions about your invoice, please call 508-871-1850, option other inquiries, contact your business representative directly or call 3. For all TransCanada toll-free at 1-877-634-2928. *Low Impact Hydro Institute (LIHI) certification means that these plants meet or exceed rigorous criteria in eight key areas: river flows, water quality, fish passage and protection, watershed protection, threatened and endangered species protection, cultural resource protection, recreation, and facilities recommended for removal. Master TUM PPA_MA Jan2011 Page 7 of 7 Y i � ,S o `A r, Z� q JAN, hia =s 6ilw1savVER OFFICE OF TOWN MANAGER January 30, 2012 Mr. Andrew Maylor Town of North Andover 120 Main Street North Andover, MA 01845 Dear Mr. Maylor, TransCanada In business to deliver TransCanada Power Marketing Ltd. 110 Turnpike Road, Suite 203 Westborough, MA 01581 tel 508-871-1857 fax 508-898-0433 email stuart_ormsbee@transcanada.com web www.transcanada.com/powermarketing Thank you for choosing TransCanada as your electric supplier. We appreciate and value your business. Enclosed please find a copy of your fully executed Power Purchase Agreement and/or Confirmation. Please ensure that the correct billing address is reflected in this document. If any changes need to be made, please notify us. If you have any questions or concerns, please feel free to contact Customer Care at 1.877.MEGAWAT or accounting_department@transcanada.com. Regards, vo� Stuart Ormsbee Manager, Power Marketing Enclosure APPENDIX A POWER PURCHASE AGREEMENT CONFIRMATION January 25, 2012 This Confirmation, upon execution and delivery represents a legally binding Transaction between TransCanada Power Marketing Ltd. ("TransCanada") and Town of North Andover, Massachusetts (the "Buyer") and shall incorporate and be subject to the Cover Sheet and the Terms and Conditions of the Power Purchase Agreement dated December 13, 2011 between TransCanada and Buyer (the "Agreement"), except to the extent expressly stated herein. This Confirmation together with the aforementioned Agreement constitute a single agreement between the Parties and any capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. 1. Supply Term The Supply Term applicable for each account specified in Section 4 of this Confirmation shall begin with the next Billing Cycle that commences after December 1, 2012 and shall end coincident with the first meter read after December 1, 2013, provided however that TransCanada shall continue to provide Electrical Supply service upon the conclusion of the Supply Term until (a) Buyer's account(s) are enrolled by another competitive supplier, (b) Buyer provides notice to TransCanada that it is discontinuing receipt of service at the next earliest opportunity or (c) TransCanada unenrolls Buyer's accounts (the "Automatic Extension Term"). In addition, should Buyer and TransCanada agree to the terms of a new Confirmation during the Automatic Extension Term, this Transaction shall automatically terminate upon the start of the Supply Term under such new Confirmation. 2. Charges for Electrical Supply (a) During the Supply Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be 6.9900/kWh multiplied by the Energy up to the Contract Quantity; any applicable charges under Sections 4.3, 4.7; and (iii) any applicable Taxes under Section 6.2. (b) Notwithstanding Section 2(a) of this Confirmation, during the Automatic Extension Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be equal to that price which would have been charged by the Transmitting Utility for the provision of supplier services had the provision of service by TransCanada been discontinued; and (ii) any applicable Taxes under Section 6.2. 3. Contract Quantity, Generation Allowance, and Net Consumption Minimum (a) The Contract Quantity is as follows: Contract Quantity Capacity Allowance Month Energy (kW) (kWh) Each month 525,000 1,700 (b) The Generation Allowance is; 50,000 kWh/month (refer to Sections 3.3 and 4.7 of Terms & Conditions). (set approximately equal to 15% of average monthly usage over a typical year) (c) The Net Consumption Minimum is as follows (refer to Sections 3.3 and 4.7 of Terms & Conditions) (set approximately equal to 80% of typical usage for applicable months): Master TCPM PPA_MA Jan2011 Pagel of 7 Month Energy kWh/month Jan — Feb 275,000 Jun — Aug300,000 All other months 225,000 The Buyer hereby represents and warrants to TransCanada that there is no On -Site Generation installed at any of Buyer's Service Point(s) listed under this Confirmation. Service Point(s) TransCanada shall sell, and Buyer shall purchase, the Electrical Supply at Buyer's following facilities: Master TCPMPPA_MA Jan2011 Page 2 of 7 Buyer's Load FacilityLocation Zone Account # TCPM Account # Town of North Andover, MA 345 MAIN ST NEMA 4116690007 NANDOVER01 Town of North Andover, MA 566 MAIN ST NEMA 378134000 NANDOVER02 Town of North Andover, MA 33 JOHNSON ST P5196 NEMA 1611900005 NANDOVER06 Town of North Andover, MA 120R MAIN ST NEMA 5015381008 NANDOVER07 Town of North Andover, MA 364 OSGOOD ST P7 NEMA 9081726006 NANDOVER08 Town of North Andover, MA 120 MAIN ST NEMA 8753991005 NANDOVERI01 Town of North Andover, MA FOXWOOD DR NEMA 6590905003 NANDOVERI 10 Town of North Andover, MA SALEM BLUE RIDG ST NEMA 1609294001 NANDOVERI l l Town of North Andover, MA JOHNSON Cl NEMA 4119388004 NANDOVERI 12 Town of North Andover, MA 14 PALOMINO DR NEMA 9051131008 NANDOVERI 13 Town of North Andover, MA 1280 TURNPIKE ST NEMA 7804211002 NANDOVERI 14 Town of North Andover, MA SALEM/CAMPBELL RD NEMA 6573325001 NANDOVER116 Town of North Andover, MA REAS POND NEMA 1609340008 NANDOVER117 Town of North Andover, MA 723 OSGOOD ST NEMA 378169003 NANDOVER14 Town of North Andover, SALEM & JOHNSON MA ISCT NEMA 1629245004 NANDOVERI6 Town of North Andover, MA MAIN ST NEMA 21702009 NANDOVERI7 Town of North Andover, MA HAWTHORNE PL NEMA 2873319005 NANDOVERI9 Town of North Andover, NIA HOLLY RIDGE RD NEMA 9083244007 NANDOVER20 Town of North Andover, MA 805 TURNPIKE ST NEMA 1577038004 NANDOVER22 Town of North Andover, MA FLAGSHIP DR NEMA 2816477006 NANDOVER23 Master TCPMPPA_MA Jan2011 Page 2 of 7 Town of North Andover, MA TURNPIKE ST NEMA 4062065001 NANDOVER24 Town of North Andover, MA GREAT POND NEMA 380222006 NANDOVER27 Town of North Andover, MA WINTER ST PUMP STA NEMA 5364258001 NANDOVER28 Town of North Andover, MA 75 WATER ST P86/1 NEMA 7855643003 NANDOVER38 Town of North Andover, MA ROSEMONT DR NEMA 2873240005 NANDOVER46 Town of North Andover, MA PETERS ST P123 NEMA 1593093005 NANDOVER47 Town of North Andover, MA BARKER ST NEMA 2871896009 NANDOVER49 Town of North Andover, MA 420 GREAT POND RD NEMA 2519660007 NANDOVER50 Town of North Andover, 384 OSGOOD STREET 1555959004 MA NEMA NANDOVER31 I 5. Invoices All invoices and payments are to be sent to the following address: Town of North Andover, Massachusetts 120 Main Street North Andover, MA 01845 Ann: XMEXKX Andrew W. Maylor Phone: (978)688-9510 Fax: 978-688-9556 E-mail: townmanager@townofnorthandover.com 6. Enrollment In accordance with Section 5.1, TransCanada shall employ its best efforts to enroll Buyer's accounts and Buyer agrees to take steps to cooperate with TransCanada's efforts to perform such enrollment, including but not limited to providing TransCanada with a copy of an electric utility bill prepared by Buyer's Transmitting Utility for each account specified in Section 4 of this Confirmation. TransCanada shall not be held liable to Buyer for not enrolling Buyer's accounts if such failure was due to any cause beyond TransCanada's control. 7. Mediation Service As described more fully in Section 6.1(e), in the event the Parties are unable to resolve a dispute between themselves, the Buyer may avail itself of mediation services available through the Massachusetts Department of Public Utilities pursuant to the Massachusetts General Laws c. 164, § 1 F(2) and 220 CMR 11.07(4). 8. Representations and Warranties Each Party represents and warrants that it has the necessary corporate and legal authority to enter into this Confirmation and to perform each duty and obligation imposed by this Confirmation and that this Confirmation, when executed by the duly authorized representatives of each Party, represents a valid, binding and enforceable legal obligation of the Party. Each Party represents that each individual affixing a signature to this Confirmation has been duly authorized to execute this Confirmation on behalf of the Party he or she represents, and that by signing the Confirmation, a valid, binding and enforceable legal obligation of the Party has been created. Buyer acknowledges that (i) the Contract Price is a fixed price for the Supply Term and will not fluctuate based on market prices for Electrical Supply; and (ii) it has made its own independent decision to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and is capable and prepared to assume such risks. .'Master TCPM PPR MA Jan2011 Page 3 of 7 Further and with respect to Buyer, Buyer represents and warrants to TransCanada, continuing throughout the term of the Agreement, with respect to the Agreement and this Confirmation, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Confirmation, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and any ordinances, bylaws or other regulations applicable to Buyer and its obligations under this Confirmation, (ii) all persons making up the governing body of the Buyer are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law, (iii) entry into and performance of this Confirmation by the Buyer are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law, (iv) the term of this Confirmation does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) Buyer shall not assert as a defense to the enforceability of this Confirmation, including without limitation to any claim for payment hereunder, that Buyer's obligations hereunder are invalid or unenforceable because they are in conflict with the terms of any bond indenture or bond ordinance to which it is a party, the Act or any relevant constitutional, organic or other governing documents and applicable law, (vi) entry into and performance of this Confirmation by the Buyer will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer that is otherwise entitled to such exclusion, and (vii) obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. "Act" means the governing law specified under Section 1.3 of the Terms and Conditions. On the date of execution of the Confirmation, and as a condition to the obligations of TransCanada under this Confirmation, Buyer shall provide TransCanada with a notarized certificate, from its duly authorized representative in the form attached as Exhibit B-1 to the Agreement, certifying the authority of the Buyer to enter into this Confirmation. 9. Execution and Effectiveness Effectiveness of this Confirmation is dependent upon the delivery to TransCanada of an executed copy by no later than 4:00 PM on January 25, 2012. Delivery of a copy of this Confirmation by facsimile is good and sufficient delivery. Signed and delivered. TransCanada Power Marketing Ltd. Per: William Per: Michael E. East Town Anda , lja'Iachusetts Per: Andrew W. 16aylor, Town Manager Per: Master TCPMPPA_MA Jan2011 Page 4 of EXHIBIT B-1 CERTIFICATE (for Municipal Buyers) To: TRANSCANADA POWER MARKETING LTD. ("TransCanada") Re: Power Purchase Agreement dated December 13, 2011 between the Town of North Andover, Massachusetts ("Buyer") and TransCanada, including the Cover Sheet, the Terms and Conditions, any and all Confirmations and all the schedules attached thereto, including, without limitation, the Power Purchase Agreement Confirmation dated January 25, 2012 (collectively, the "Agreement") I, Andrew W. Maylor [Signator], HEREBY CERTIFY that I am the Town Manager [Title] of the Buyer and that, as such, I am authorized to execute this Certificate on behalf of the Buyer and, as it relates to the Agreement, I further certify that: 1. The execution, delivery, observance and performance of the Agreement does not and will not conflict with or result in a breach or constitute a default under any of (A) the articles, by-laws, constitutional, organic or other relevant governing and organizational documents of the Buyer, or (B) the terms or provisions of any judgment, law, decree, order, statute, rule, regulation or agreement, indenture or instrument to which the Buyer is a party or by which the Buyer is bound or to which the Buyer is subject; 2. The person signing the Agreement has the legal authority to execute and deliver the Agreement on behalf of the Buyer; 3. The Agreement constitutes a legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms; 4. Buyer is fully aware and has acknowledged that the costs associated with capacity, and congestion, as referenced under Article 4 of the Agreement, may be significant and has agreed to be fully responsible for all such costs in accordance with the terms of the Agreement; 5. Buyer has read Section 9.4 of the Agreement and has acknowledged that the Liquidated Damages provided for under that provision constitutes a reasonable pre -estimate of damages and agrees to fully comply with such provision under the circumstances set forth therein; 6. The Buyer and the person signing the Agreement has satisfied and complied with all applicable ordinances, resolutions, public notices and other local requirements with respect to any approvals and authorizations necessary for the execution, delivery and performance of the Agreement by the Buyer; and MasterTCPMPPA _MA Jan2011 Page 5of7 7. I am signing this Certificate with a full and complete understanding of the risks and consequences of the matters that I am certifying herein. IN WITNESS WHEREOF, I have hereunder set my hand this 25 day o Januar 2012. Name: [Signator] Andre W. Maylor Title: [Title] Town Manager SUBSCRIBED and SWORN to me this P - S day of 2012 Notary Public My Commission Expires: ` II' J 1. .► C ✓J 1.11.Il./Jl././,/l�lfffl./..I./I�J�l Master TCPM PPA_MA_Jan201l Page 6 of 7 Electricity Facts TransCanada Power Marketing Ltd. Massachusetts January 2012 Competitive Suppliers are required by the Massachusetts Department of Public Utilities to provide customers with an information disclosure label. The purpose of the label is to ensure that customers are presented with consistent information by which to evaluate services offered by Competitive Suppliers and Distribution Companies. Generation Price Power Source Known Resources System Power Total Biomass 0.0% 0.1% Average price per kWh at different levels of use. Prices do not include regulated charges for customer service and delivery Average Use -RE-Mo-nth 1,000 kWh 10,000 kWh 20,000 kWh 40,000 kWh Average Price per kWh Please refer to your Purchased Power Agreement for contract prices. Your average electricity price may vary by time of use. I See your most recent invoice for your monthly use. ContractI Please refer to your Purchased Power Agreement for prices and terms for Generation Service. Power Sources This electricity product in the period 7/1/10 to 6/30/11 was assigned generation from the following sources: Power Source Known Resources System Power Total Biomass 0.0% 0.1% 0.1% Coal 0.0% 3.8% 3.8% Hydro: Large 12.3% 0.5% 12.8% Hydro: Small 0.0% 0.0% 0.0% Imported Power 0.0% 0.0% 0.0% Landfill Gas 0.0% 0.0% 0.0% Low Impact Hydro Institute* 12.8% 0.0% 12.8% Municipal Trash 0.0% 0.3% 0.3% Natural Gas 23.6% 19.5% 43.1% Nuclear 0.0% 14.5% 14.5% Oil inc. Diesel & Jet 0.0% 4.3% 4.3% Other 0.0% 2.7% 2.7% Other Renewable 0.0% 0.0% 0.0% Solar 0.0% 1 0.0% 0.0% Wind 5.6% 0.0% 5.7% Total 54.39% 45.61% 100.0% Air Emissions New TCPM Carbon dioxide (CO2), nitrogen oxide (NO, and sulfur dioxide (S02) emission rates from these TCPM Resource Portfolio Ibs/MWh England Average Ibs/MWh Portfolio as % of Regional Average New Unit Ibs/MWh CO2 576 863 67% 760 sources, relative to the regional average, and to the emission NO 0.36 0.73 50% 0.06 SO2 0.64 1.87 34% 0.02 rates of a new generatingunit. Labor Information 47% of the electricity from Known Resources came from power sources with union contracts or that used replacement labor during disputes between 7/1/10 and 6/30/11. It is not known what percentage of the electricity from System Power came from power sources with union contracts. Customer Service For questions about your invoice, please call 508-871-1850, option 3. For all other inquiries, contact your business representative directly or call TransCanada toll-free at 1-877-634-2928. *Low Impact Hydro Institute (L1H1) certification means that these plants meet or exceed rigorous criteria in eight key areas: riverflows, water quality, fish passage and protection, watershed protection, threatened and endangered species protection, cultural resource protection, recreation, and facilities recommended for removal. Master TCAV PPA_MA Jan2ol l Page 7 of 7 Savage, Lyne From: Santilli, Ray Sent: Monday, January 23, 2012 9:10 AM To: Thibodeau, Bruce; Mealey, James Cc: Savage, Lyne Subject: FW: Tradition- Natural Gas Update JZaq Santini Assistant Town Manager Town of North Andover From: Tim Morrison ,[mailto:Tim.Morrison @Traditionenergy.com] Sent: Thursday, January 19, 2012 6:38 PM Subject: Tradition- Natural Gas Update Good Afternoon. Thank you for your quick actions gaining approvals, signing, & returning natural gas agreements yesterday. We have successfully secured $6.57 per Dth for the entire GLEC purchasing group for 12 months beginning November 2012. This agreement will earn the group approximately $760,000 in savings year-on-year. Please don't hesitate to contact me regarding questions about your agreements or any other items. I hope to be in touch with you soon regarding the next purchasing group meeting. In addition we will continue to monitor the market for strong buying opportunities for your next term. Best Regards, Timothy M. Morrison Senior Energy Advisor TraditionAA PEnergy' 25 Mall rd, suite 403 Burlington, MA 01803 Tel: 781.497.5006 Cell: 203.687.8317 Fax: 781.658.2533 tmorrison(tDtradition.com www.traditionenergy.com This message (including any attachments) is intended solely for the use of sender, TFS Derivatives Corporation / Tradition Financial Services, Inc. / TFS Energy Futures LLC / and/or any of their respective affiliates (collectively 'Tradition"), and the intended individual addressee(s). This message is riot intended to create any contractual or fiduciary obligations upon Tradition and may contain confidential and/or private information privileged to intended recipient or recipients named above. If you are riot the authorized recipient(s), or the employee or agent responsible for delivering this message to the intended recipient(s), please immediately notify the sender by e-mail at the address shown above and delete this message from your system, other storage mechanism and/or shred the document and any attachments. Any unauthorized use, review or dissemination of this message in whole or in pail by persons or entities other than the intended recipient is strictly prohibited. Although information herein contained is from sources believed to be reliable Tradition makes no warranty or representation that such information is correct, and is not responsible for errors, omissions or misstatements of any kind. All opinions expressed herein are those of the authors, and no statement should be construed December 20, 2011 Mr. Mark Rees Town of North Andover 120 Main Street North Andover, MA 01845 Re: Power Purchase Agreement dated December 13, 2011 Dear Mr. Rees: TransCanada In business to deUver TransCanada Power Marketing Ltd. 110 Turnpike Road, Suite 203 Westborough, MA 01581 tel 508-871-1857 fax 508-898-0433 email stuart_ormsbee@transcanada.com web www.transcanada.com/powermarketing Thank you for renewing your contract with TransCanada. Due to the late renewal date, we were not able to update the contract price with National Grid in time for National Grid to apply the new price to the supply period December 2011 to January 2012. Consequently, National Grid will bill the Town's accounts for this period at the previous rate of 8.155 cents/kWh for 384 Osgood Street and 10.745 cents/kWh for the remaining accounts. TransCanada will refund by check the difference between the billed rates and the new contract price of 6.995 cents/kWh as soon as practicable after receipt of the metered kWh usages. We apologize for the inconvenience. The new contract price will be billed by National Grid starting with the period January to February. Please contact me or Kristin Mahnke (508-475-6790) if you have any questions. Regar , *jkl/ Stuart Ormsbee Manager, Power Marketing cc: Kristin Mahnke (TransCanada) 0 December 20, 2011 Mr. Mark Rees Town of North Andover 120 Main Street North Andover, MA 01845 Dear Mr. Rees, 9(D)PV TransCanada In business to deliver TransCanada Power Marketing Ltd. 110 Turnpike Road, Suite 203 Westborough, MA 01581 tel 508-871-1857 fax 508-898-0433 email stuart_ormsbee@transcanada.com web www.transcanada.com/powermarketing Thank you for choosing TransCanada as your electric supplier. We appreciate and value your business. Enclosed please find a copy of your fully executed Power Purchase Agreement and/or Confirmation. Please ensure that the correct billing address is reflected in this document. If any changes need to be made, please notify us. If you have any questions or concerns, please feel free to contact Customer Care at 1.877.MEGAWAT or accounting_department@transcanada.com. Regards, oUV Stuart Ormsbee Manager, Power Marketing Enclosure TRANSCANADA POWER MARKETING LTD. POWER PURCHASE AGREEMENT This Agreement is made and entered into between TransCanada Power Marketing Ltd. ("TransCanada") and Town of North Andover, Massachusetts ("Buyer") on this day 13* December, 2011. Capitalized terms not otherwise defined in this Cover Sheet shall have the meanings given to them in the Terms and Conditions. In consideration of the premises and mutual covenants contained in this Agreement and other good and valuable consideration (the receipt and sufficiency of which is acknowledged), Buyer and TransCanada agree as follows: 1.0 Obligations of TransCanada and Buyer Pursuant to any Confirmation, TransCanada shall sell to Buyer and Buyer shall purchase from TransCanada, Electrical Supply in accordance with the Terms and Conditions. 2.0 Details for Sale of Electrical Supply The sale of Electrical Supply from TransCanada to Buyer under this Agreement shall be subject to the terms of this Agreement. The details of such sale shall be as stated in any Confirmation entered into between Buyer and TransCanada. 3.0 Terms and Conditions The Terms and Conditions attached to this Cover Sheet, and any Confirmation are incorporated into and form a part of this Agreement. By signing this Cover Sheet, Buyer acknowledges that: (i) it has read the Terms and Conditions and agrees to be bound to the terms of this Agreement; (ii) it has affirmatively designated TransCanada as Buyer's sole competitive supplier for the accounts to be served under this Agreement during any Supply Term, and (iii) Buyer understands that an action by Buyer to terminate service to any account to be served under this Agreement prior to the end of a Supply Term may result in costs and charges to the Buyer. 4.0 Addresses for Notices TransCanada Power Marketing Ltd. 110 Turnpike Road, Suite 203 Westborough, MA 01581 Attn: Stuart Ormsbee Phone: (508) 871-1857 Fax: (508) 898-0433 Email: stuart—ormsbee@)�transcanada.com Town of North Andover, Massachusetts 120 Main Street North Andover, MA 01845 Attn: Mark Rees Phone: (978) 688-9510 Fax: (978)688-9556 Email: IN WITNESS WIIE e � 9re executed this Agreement as of the date first above written. DA�t3 V�#M�dikETING LTD. TOWN OANDOVER, MASSACHUSETTS Per: Name''�lyihii��ill) Taylor Title: Vice President Per: Name: Middlfael E. Machey Title: Director, Commerci Per - Name: Title: Per: Name: Tide: :trrs,er rcrMPPa tifa_Janznr1 Page i of 16 POWER PURCHASE AGREEMENT TERMS AND CONDUIONS Article 1 - interpretation 1.1 Scope and Purpose These Terms and Conditions arc intended to facilitate transactions between TransCanada and Buyer for the sale and purchase of Electrical Supply. All Transactions are entered into in reliance on the fact that the Cover Sheet, these Terms and Conditions and all Confirmations form a single agreement between the Parties and each Confirmation shall incorporate and be subject to these Terms and Conditions, except to the extent expressly stated in any Confirmation. In the event of a conflict among these Terms and Conditions, the Cover Sheet and any Confirmation, the terms shall govern in the following order. (i) the Confinnation, (ii) the Terms and Conditions, (iii) the Cover Sheet. 1.2 Definitions The following words and phrases have the following meanings unless otherwise stated in this Agreement. Capitalized terms which are not defined in this Agreement shall have the same meaning given to such terms in ISO -NE Rules, or such successor document that defines such terns (a)" Affiliate" means, with respect to any Person, any other Person (other than an individual) that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, that Person. For the purpose of this definition, "control" means the direct or indirect ownership of more than 50% of the outstanding capital stock or other equity interests having ordinary voting power. (b) "Agreement" means the legally binding contract between the Parties for the purchase and sale of Electrical Supply and incorporates by reference the Cover Sheet, these Terms and Conditions, any and all binding Confirmations, and any schedules and written amendments thereto. (c) "Billing Cycle" means the periodic meter reading schedule used by the Transmitting Utility. (d) "Business Day" means any calendar day starting at 0800 hours Prevailing Time and finishing at 1700 hours Prevailing Time, excluding Saturdays, Sundays and United States federal statutory holidays. (c) "Buyer's Capacity Obligation" means the monthly forward capacity market obligation, locational forward capacity market obligation, or forward capacity market transition payment obligation, as applicable and each as defined in ISO -NE Rules, imposed on TransCanada as a result of TransCanada's obligation to supply the Electrical Supply to Buyer under the Agreement as measured and expressed in kilowatts (kWs). (f) "Buyer's Load Zone" means the load zones) in which Buyer's Service Point(s) are located as detailed in any Confirmation. (g) "Capacity Allowance" means the maximum quantity of Buyer's Capacity Obligation that TransCanada shall supply Buyer at the Contract Price during the Supply Term, as set out in any Confirmation. (h) "Capacity Market Price" means: (i) Starting December I, 2006 and continuing through May 31, 2011, the monthly forward capacity market transition rates approved by the Federal Energy Regulatory Commission, or its successors, from time to time during the term of this Agreement; and (ii) Starting June 1, 2011 the ISO forward capacity market auction clearing price, or any other price for capacity calculated under any subsequent capacity payment mechanism, as defined in ISO -NC Rules. (i) "Confirmation(s)" means a written document, in the form attached to these Terms and Conditions as Appendix A, setting forth the terms ore Transaction. (j) "Contract Price" means the price, expressed in OlkWh, to be paid by Buyer to TransCanada for Electrical Supply (up to the Contract Quantity) purchased under this Agreement as set out in any Confirmation. (k) "Contract Quantity" means the maximum quantity of Electrical Supply that TransCanada agrees to sell to Buyer at the Contract Price each Billing Cycle during any Supply Term, as set out in any Confirmation. (1) "Cover Sheet" means tht, Cover Sheet attached as the first page to this Agreement. (m) "Delivery Point" means the Buyer's Load 7.one. (n) "Demand" means the maximum delivery to Buyer as specified in the Transmitting Utility's applicable tariffs for each account during the month, as measured in kilowatts (kW) at the Service Point(s). (o) "Electrical Supply" means the entirety of the electrical requirements at the Senice Point(s), including Energy, Buyer`s Capacity Obligation, associated reserves, regulation service, and other ancillary services. (p) "Energy" means the actual metered electrical energy (expressed in kilowatt hours (kWh)) delivered by the Transmitting Utility to, and purchased by Buyer from TransCanada at, the Service Point(s) under the terms of this Agreement. (q) "Force Majeure" means an event, condition, occurrence or circumstance beyond the reasonable control and without the fault or negligence of the Party claiming the Force Majeure, which, despite all reasonable efforts at a reasonable cost of the Party claiming the Force Majeure to prevent its occurrence or mitigate its effects, causes a delay or disruption in the performance of any obligation (other than the obligation to pay money due) imposed on that Parry under this Agreement, including, but not limited to, flood, earthquake, storm, fire, pestilence, lightning, and other natural catastrophes, epidemic; war; riot; civil disobedience; labor dispute; sabotage; restraint order by court or public authority; acts of God or public enemies; failure, malfunction or outage of transmission facilities and actions of a Transmitting Utility, independent system operator or power pool; o- inability to obtain or retain the necessary authorisations or approvals from any governmental authority, which by exercise of due diligence the Party has been, or would be, unable to overcome. Notwithstanding the foregoing, Force Majeure shall not include a failure or inability to perform or comply with any of the covenants or obligations imposed upon it under this Agreement that: (a) was caused by m own negligence or failure to remedy that negligence within a reasonable time; (b) was caused by lack of funds or other financial problems affecting the Party claiming Force Majeure; (c) was caused by a failure to use all reasonable efforts to remedy the situation and remove, so far as possible and with reasonable dispatch, the cause of its inability to perform or comply with such covenants or obligations; or (d) would result in an economic hardship for the Parry. (r) "Insolvency Event" means, in relation to any Party, the occurrence of one or more of the following: (i) an order is made or an effective resolution passed for the winding -up, liquidation or dissolution of the Party; (ii) the Party institutes proceedings for its winding up, liquidation or dissolution, or takes action to become a voluntary bankrupt, or consents to the filing of a bankruptcy proceeding against it, or files a proposal, a notice of intention to make a proposal, a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under any bankruptcy law or any other similar applicable law or consents to the filing of any such petition, or consents to the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency of all or a substantial part of the property of the Party or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they come due or commits any other act of bankruptcy, or suspends or threatens to suspend transaction of its usual business, or any action is taken by the Party in furtherance of any of the aforesaid; (iii) a court having jurisdiction enters a decree or order adjudging the Party a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, readjustment, arrangement, composition or similar relief under any bankruptcy law or any other similar applicable law, or a decree or order of a court having jurisdiction for the appointment of a receiver; liquidator, trustee or assignee in bankruptcy or insolvency of all or a substantial part of the undertaking or prorerty of the Parry, or for the winding up, Master TCPM PPA_ MA lan2011 Page 2 of 16 (s) (Z)"P (bb) (cc) (dd) (ee) (m (gg) (hh) (ii) dissolution or liquidation of its affairs, is entered and the decree, order or petition is not contested and the effect of it stayed, or any material part of the property of the Party is sequestered or attached and is not returned to the possession of the Party or released from such attachment within 20 days thereafter, (iv) any proceedings, voluntary or involuntary, are commenced, or an order or petition is issued, respecting the Party pursuant to arty applicable law relating to bankruptcy, insolvency, reorganization of debts, liquidation, winding -up or dissolution; (v) the Party causes or institutes any proceeding for its dissolution or termination; or (vi) the Party is generally not paying its debts as they become due or snakes a general assignment for the benefit of creditors. "iSO-NE Rules" means the ISO New England System Rules, as that term is defined in ISO New England Market Rule 1, on file with the Federal Energy Regulatory Commission and as revised and superseded from time to time. "Liquidation Quantity" means the quantity of l.1ectrical Supply anticipated to be provided by TransCanada and purchased by the Buyer over the remainder ofall the Supply Terms. Notwithstanding that Buyer is not obliged to purchase a fixed quantity of Electrical Supply under this Agreement, the Parties agree that the Liquidation Quantity shall be calculated using Buyer's most recent two-year average historical Electrical Supply usage for the same month applicable to the remainder of the all Transactions. In the event that such two )rears of historical Electrical Supply data is not available, the Liquidation Quantity shall be determined based upon available historical Electrical Supply data. "New England Hub" means the Hub, as such term is defined in iSO-NE Rules. "Off -Peak Hours" means all off-peak hours as defined by the Transmitting Utility. "Ort -Peak Hours" means all on -peak hours as defined by the Transmitting Utility. "Party" means either Buyer or TransCanada, and "Parties" means both Buyer and TransCanada. "Performance Assurance" moans: (i) collateral, in the form of either cash, a guarantee, an increase in the amount of a guarantee currently held by TransCanada guaranteeing Buyer's obligations under this Agreement, Ietter(s) of credit, or other security, in an amount acceptable to TransCanada; (ii) TransCanada requiring prepayment from Buyer for deliveries under any Transaction, with terms to be determined by TransCanada in its sole discretion; or (iii) TransCanada requiring an accelerated payment schedule with terms to be determined by TransCanada in its sole discretion. P erson" means an individual, partnership, association, or body corporate, as the case may be. "Prevailing Time" means the time as measured in the city of Hartford, Connecticut. "Prime Rate" means the base rate on corporate loans posted by at least 15% of the nation's largest banks as published from time to time under "Money Rates" by The Wall Street Journal. "Service Point" means the retail meters of Buyer's facilities set out in any Confirmation. "Supptied Energy" means Energy plus distribution line losses as determined by the Transmitting Utility. "Supply Term" means the term of a Transaction, as specified under any Confirmation. "Taxes" means all ad valorem, property, occupation, utility, gross receipts, sales, use, excise and other taxes, governmental charges, licenses, permits and assessments. "Term" means the term of this Agreement as stated in Section 2.1 of the Terms and Conditions. "Terata and Conditions" means these Terms and Conditions attached to and forming part of the Agreement. "Transaction" means any sale of Electrical Supply from TransCanada to Buyer pursuant to this Agreement, as specified in a Confirmation. W) "Transmitting Utility" means any utility or utilities providing services for the delivery of the Electrical Supply from the Delivery Point to the Service Point(s) under any Transaction. 1.3 Governing Low This Agreement is to be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts and the federal laws of the United States of America applicable in the Commonwealth of Massachusetts and is to be treated in all respects as a Massachusetts contract. To the extent that there is any change in any such laws which renders arty provision of this A;reerticnt illegal or unenforceable because of any such change in law(sl or should this Agreement fail to include a provision that is required as a matter of law, the validity of the other provisions of this Agreement shall not be affected thereby. If such circumstances arise, the 'Parties shall negotiate in good faith appropriate modifications to this Agreement to reflect those changes that are required by law. The Parties irrevocably consent and submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts with respect to all matters relating to this Agreement. Each Party waives any objection that it may now or hereafter have to the determination of the venue for any proceeding relating to this Agreement that such court(s) is an inconvenient forum. 1.4 Severability Subject to Section 1.3, if any one or more terms or provisions of this Agreement is found to be illegal or unenforceable for any reason, those terns and provisions or portion of them that are determined to be illegal or unenforceable are deleted from this Agreement, and the remaining terms and provisions continue :n full force and effect as if the offending terms and provisions were never made a pan of this Agreement. 1.5 Headings The headings and divisions of this Agreement into Articles and Sections are for convenience of reference only and in no way affect the meaning or interpretation of this Agreement. Unless otherwise stated, all references to Sections in this Agreement shall refer to Sections in the Terms and Conditions. Article 2 - Term 2.1 Term This Agreement shall remain it effect until TransCanada and Buyer have fulfilled all their obligations with respect to each and every Transaction entered into, from time to time, under this Agreement. The expiry of the Supply Term of any Transaction shall not affect or excuse the performance of either Party under any provision of this Agreement that by its toms survives any such expiration. Upon the fulfillment of all obligations by the Parties with respect to such Transactions, either Party may terminate this Agreement upon thirty (30) days prior written notice. Article 3 - Electrical Supply 3.1 Electrical Supply Pursuant to a Confirmation, TransCanada shall sell, and Buyer shall purchase, the Electrical Supply in accordance with the terns of this Agreement. Notwithstandir:g anything to the contrary herein. TransCanada shall not be obligated to physically deliver the Electrical Supply from the Delivery Point to the Service Points) and Buyer acknowledges that such responsibility shall be borne by the Transmitting Utility. Buyer shall be responsible for any charges for transmission and distribution services imposed on Buyer by the Transmitting Utility. 3.2 Purchase Quantities Notwithstanding anything to the contrary in this Agreement, Buyer is not obligated to purchase a fixed quantity of ElLctrical Supply under this Agreement. Buyer expressly acknowledges, however, that Buyer shall be obligated to purchase from TransCanada all Electrical Supply consumed at the Service Point(s) as referenced in any Confirmation under this Agreement for the entirety of any Supply Term. The Contract Quantity establishes a purchase allowance approximately 20 percent above Buyer's historic usage levels under which Buyer may purchase Electrical Supply at the Contract Price. 3.3 On -Sire Generation (a) Without incurring any additional charges hereunder, Buyer may install electric generation facilities that reduce the Energy at the Service Points) of any of Buyer's facilities set out in any Confirmation (individually and collectively, "On -Site Generation") provided that the On -Site Generation does not leave the installed capability to reduce the monthly Energy more than the Generation Allowance set out in any Confirmation. (b) Buyer may request TransCanada's prior written consent to increase the Generation Allowance set out in any Confirmation in order to Master 1CPMPPA MA Jan2011 Page 3 of 16 accommodate larger levels of On -Site Generation. Buyer shall provide notice for TransCanada's consent under this subsection no less than four months prior to the anticipated commercial operation date of the On -Site Generation. TransCanada may withhold its consent under this subsection in its sole discretion. Article 4 - Charges for Electrical Supply 4.1 Charges for Electrical Supply For the sale of Electrical Supply, Buyer agrees to pay to TransCanada, in accordance with the Unnis of this Agreemt'n4 all applicable amounts under Sections 4.2, 4.3, 4.4, 4.5, 4.6 and any Taxes under Section 6.2. 4.2 Charges for Electrical Supply up to the Contract Quantity Buyer shall pay to TransCanada the Contract Price multiplied by the Energy up to the monthly Contract Quantity 4.3 Charges for Electrical Supply in excess of Contract Quantity (a) For incremental quantities of monthly Energy in excess of the Fnergy component of the monthly Contract Quantity. Buyer shall pay to TransCanada an amount equal to the corresponding incremental quantity of Supplied Energy multiplied by the greater of: (i) the Contract Price, or (ii) the average of the New England hourly Real -Time Locational Marginal Prices for Buyer's Load Zone for the month, plus 326/MWh. (b) For any month in which incremental quantities of Buyer's Capacity Obligation exceed the Capacity Allowance component of the monthly Contract Quantity (the "Excess Capacity Obligation"), Buyer shall pay to TransCanada an amount equal to the Excess Capacity Obligation multiplied by the monthly Capacity Market Price. This Section 43(b) is not applicable if Buyer is responsible for Capacity Charges pursuant to Section 4.5 and as specifically referenced in a Confirmation executed under this Agreement. (c) Any amounts calculated tinder this Section 4.3 must be supported with full source documentation for all pricing parameters. 4.4 Charges for Congestion Buyer shall pay all Congestion Costs, wihere Congestion Cost means the positive average of the difference in hourly Day -Ahead Locational Marginal Prices between the Buyer's Load Zone and the New England flub over a Billing Cycle multiplied by the quantity of Supplied Energy consumed by the Buyer over the same Billing Cycle. This Section 4.4 is applicable only if specifically referenced in a Confirmation executed under this Agreement. 4.5 Charges for Capacity Buyer shall pay all costs incurred by TransCanada to satisfy Buyer's Capacity Obligation provided however, Buyer shall have no obligation to pay TransCanada an amount greater then the product of the Buyer's Capacity Obligation and the Capacity Market Price. This Section 4.5 is applicable only if specifically referenced in a Confirmation executed under this Agreement. 4.6 Charges for Daily RMR Buyer shall pay all Daily RMR costs, whore Daily RMR Cost means the Day -Ahead and Real -Time Local Second Contingency Protection Resource NCPC Charges, as defined in LSO -NE Rules, incurred by TransCanada to serve Buyet. This Section 4.6 is applicable only if specifically referenced in a Confirmation executed under this Agreement. 4.7 Charges for Consumption below Net Consumption Minimum Resulting from On -Site Generation If, after the commercial operation date of On -Site Generation, (i) the On - Site Generation has the installed capability to reduce the Energy in excess of the Generation Allowance, and (ii) the aggregate Energy of Buyer falls below the Net Consumption Minimum as set out in any Confirmation, then Buyer may be subject to charges equal to [the Net Consumption Minimum less the quantity of F,nergy for the month] multiplied by (the difference between the Contract Price and the average of the New England hourly Real -Time Locational Marginal Prices for Buyer's Load Tone for the month, plus any incremental capacity costs not recovered by TransCanada in Section 4.5) (The "Mitigated Contract Price"), when the "Mitigated Contract Price" is greater than zero. Article S - Performance 5.1 Scheduling and Operations (a) TransCanada shall enroll Buyer's electric accounts (as specified in the Confirmation) with the applicable Transmitting Utility(s) as accounts for which retail service will be provided by TransCanada, Master 7C'PM PPA MA Jan10l I and Buyer shall take retail service from TransCanada at the Service Point(s). (b) TransCanada is responsible for any costs resulting from the physical loss of energy during the transmission and delivery of Electrical Supply to the Service Point up to the Contract Quantity. For any Transaction in which Section 4.4 is applicable as specifically referenced in a Confirmation executed under this Agreement, then TransCanada will be responsible for any costs resulting from the physical loss of energy during the transmission and delivery of Electrical Supply to the Delivery Point up to the Contract Quantity, and Buyer shall be responsible for any such losses from the Delivery Point to the Service Point. 5.2 Regulatory Arrangements TransCanada shall maintain its good standing as a Licensed Competitive Supplier ("Supplier") under the Rules Governing the Rostructuring of the Electric Industry of the Commonwealth of Massachusetts, 220 CMR 11.00 and all other approvals or licensing now or hereafter required under Massachusetts or Federal law in order for it to perform under this Agreement. TransCanada shall provide proof of its standing as a Supplier as requested by the Buyer. 5.3 Independent Contractor. TransCanada is, and will perform as, an independent contractor under this Agreement. Except as otherwise provided in this Agreement, neither Party has the authority to execute documents that purport to bind the other and nothing herein shall be construed to constitute a joint venture, fiduciary relationship, partnership, or other joint undertaking Article 6 - invoicing 6.1 Billing and Payment (a) TransCanada is responsible for measuring or arranging with the Transmitting Utility for measurement of Buyer's Capacity Obligation and deliveries of Energy, if it is impractical to obtain the Energy or actual Buyer's Capacity Obligation for billing purposes, TransCanada shall estimate such measurements based upon the Transmitting Utility's estimates or Buyer's historical usage. TransCanada shall adjust any discrepancy between estimated volumes and actual volumes consumed by Buyer in a subsequent invoice. (b) The Buyer shall pay TransCanada through the Transmitting Utility's supplier billing option, Through such consolidated billing, invoicing for Electrical Supply provided under this Agreement shall be included on the Buyer's Transmitting Utility invoice. Payment shall be made in accordance with the Transmitting Utility's tariff and billing procedures. All payment terms in the applicable tariff' shall apply. In the event that the Transmitting Utility fails to issue an invoice within twenty (20) days of the completion of the Billing Cycle, TransCanada reserves the rightto invoice the Buyer directly for Electrical Supply. (c) The billing period and payment requirements for Electrical Supply will be the same as those used by the Transmitting Utility. These requirements are described in the terms and conditions for delivery service of the Transmitting Utility on file with the Massachusetts Department of Public Utilities. (d) if Buyer disputes any fortion of TransCanada's charges on an invoice, Buyer shall nevertheless pay the entire amount shown on the invoice. Such payment does not prejudice Buyer's right to dispute or question the correctness of the invoice_ if applicable, Buyer shall notify TransCanada in -writing within thirty (30) days following receipt of an invoice of any dispute or question concerning the cottectness ofthe invoice. The Parties shall attempt to resolve any disputes among themselves provided however if they are unable to resolve such disputes within thirty (30) days of Buyer's notification to TransCanada, either Party may initiate any remedy available to it in law or equity, including but not limited to, mediation services available through the Massachusetts Department of Public Utilities pursuant to the Massachusetts General Laws c. 164, § 1 F(2) and 220 CMR 11.07(4). Upon resolution of the dispute, any disputed amount that TransCanada is required to reimburse to Buyer is to be paid within fifteen (15) days, together with interest thereon at an annual rate of interest equal to the Prime Rate plus two (2) percent per annum accruing from the time such amount was paid until it is reimbursed. (e) Any invoices issued by TransCanada in accordance with Section 6.1(b) shall be sent to the address(cs) specified in the Confirmation. Page 4 of 16 6.2 Taxes TransCanada shall pay or cause to be paid all Taxes, fees and other charges lawfully levied on TransCanada, or otherwise to be borne by TransCanada, and applicable to the Electrical Supply prior to its delivery to Buyer at the Delivery Point_ Buyer shall pay or cause to be paid all 'Faxes, firs and other charges lawfully levied on Buyer. or otherwise to be bome by Buyer, and applicable to the Electrical Supply at and after deliver to the Delivery Point Any such tastes, fees and other charges will not form any component of the Contract Price. Notwithstanding the foregoing, TransCanada shall collect, and Buyer shall pay to TransCanada, all applicable sales taxes, Article 7 - Force Majeure 7.1 Force Majeure If by reason of force Majeure a Party is not reasonably able to fulfil an obligation, other than an obligation to make a payment in accordance with the terms of this Agreement, then such Parry: (a)s hall, as soon as practicable, notify the other Parry of the Force Majeure in writing or orally (confirmed in writing), which notice must provide reasonably full particulars ofsuch Force Majeure, (b) is relieved from fulfilling the obligation or obligations during the continuance of such Force Majeure but only to the extent of the inability to perform so caused, from and after the occurrence of such Force Majeure; (c)s hall employ all reasonable commercial means to reduce the consequences of the Force Majeure (however, the foregoing is not to be construed as requiring a Party to accede to the demands of its opponents in any strike, lockout or other labor disturbance); (d) shall begin as soon as reasonably possible after the Force Majcure to fulfil or resume fulfilling its obligations under this Agreement; (e),sh all provide the other Party with prompt notice of the cessation or partial cessation of the Fora Majeurc; and (f) is not responsible or liable to the other Parry for any loss or damage that the other party may suffer or incur as a result of the Force Majeure. Article 8 -Financial Information and Assurances 8.1 Financial information of Buyer 1f TransCanada does not otherwise have access to Buyer's, or Buyer's guarantor's, as applicable, financial statements, Buyer shall provide TransCanada with its or its guarantor's, as applicable, most recent quarterly and/or annual financial statements, audited as applicable, no later than five (5) Business Days after a reasonable request by TransCanada. 8.2 Financial Assurances [fat any time during the Term of this Agreement: (a)Trans Canada has a reasonable basis to believe that Buyer's creditworthiness or its ability to perform its obligations under any Transaction has become unsatisfactory. (b) Buyer fails to provide financial statements in accordance with Section 8.1; (c)any Performance Assurance held by TransCanada has, in its reasonable discretion, become unsatisfactory; (d) Buyer has, on two or more occasions, remedied a Section 9.1 (e) default within the time provided for under Section 9.2(a) without the prior consent of TransCanada; or (c)Trans Canada's credit insurance provider determines that Buyer shall no longer be covered under its credit insurance policy; then TransCanada shall be entitled to request that Buyer provide TransCanada with Performance Assurance (including additional or replacement Performance Assurance, as applicable) and Buyer shall have five (5) Business Days from such request to provide TransCanada with the requested Performance Assurance. Article 9 - Remedies for Failure to Perform 9.1 Eventsol'Default Subject to Section 9.2 below, the following events shall constitute a default under this Agreement: (a)ci they Party has experienced an Insolvency Event; (b) either Parry consolidates or amalgamates with or merges with or into. or transfers all or substantially all of its assets to, another Person and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee Person fails to assume all the obligations of such Party under this Agreement or any Transaction by operation of law or pursuant to an agreement reasonably satisfactory to the other Party; (c) any representation or warranty made by a Party herein is, at any applicable time, false or misleading in any material respect; (d) Buyer fails to provide Performance Assurance in accordance with Section 8.2; (e) Buyer has failed to pay any invoice under Section 6.1(1c); (f) Buyer terminates or requests TransCanada to terminate service to any Service Point under a Confirmation prior to the end of the Supply Term and the interests and obligations with respect to the terminated Transaction(s) have not been assigned in accordance with Section 10.1 or 102; or (g) either Parry has otherwise failed to perform its material obligations under this Agreement or any Transaction The Party in default above shall be referred to as the "Defaulting Parry", and the other Party the "Non -Defaulting Party" for purposes of Article 9. 91 Notice of Default (a) Before exercising any of the remedies set forth in Section 9.3 which arise out of a Section 9.1(e) default, the Non -Defaulting Party, shall provide the Defaulting Party with written notice of the alleged default and the Defaulting Party shall have a period of three (3) Business Days from receipt of the notice in which to remedy the default. (b) Before exercising any of the nxncdics set forth in Section 9.3 which arise out of a Section 9.1(g) default, the Non -Defaulting Party, shall provide the Defaulting Party with written notice of the alleged dcfault and the Defaulting Party shall have a period of fifteen (IS) days from receipt of the notice in which to remedy the default. (c) The notice provided under Sections 9.2(a) and (b) shall be entitled "Notice of Default" on its face and shall provide reasonable particulars of the alleged default. 9.3 Remedies for Default If a default under Section 9.1 has not been remedied by the Defaulting Party within the period(s) specified in Section 9.2, or not otherwise excused by the Non -Defaulting Party, then the Non -Defaulting Parry shall be entitled to do one or both ofthe following' (i) suspend the provision or receipt of service, as applicable, under any or all Transactions until such time as the Defaulting Parry is no longer in default under Section 9.1; or (ii) terminate all Transactions without further notice to and receive liquidated damages from the Defaulting Party calculated in accordance with Section 9.4 provided that at the time an election is made to terminate, the Defaulting Party continues to be in default under Section 9.1. 9.4 Liquidated Damages Liquidated Damages are to be determined as follows: If the Non -Defaulting Party terminates all Transactions pursuant to Section 9.3, the Non -Defaulting Party shall calculate the Liquidated Damages from the notice date of termination. "Liquidated Damages" as used in this Article 9, means the present value of the economic loss suffered by a Party as a result of the termination of the Transactions. Where TransCanada is the Non -Defaulting Party, TransCanada may recover from the Buyer the Liquidation Quantity multiplied by the amount equal to the positive difference between the Contract Price and the then current cost of Electrical Supply as determined by TransCanada in a reasonable manner. Where Buyer is the Non -Defaulting Party, Buyer may recover from TransCanada the Liquidation Quantity multiplied by the amount equal to the negative difference between the Contract Price and the price Buyer would have to pay to obtain the same service from a third patty for the lowest commercially reasonable price. Notwithstanding any of the foregoing, the Non -Defaulting Party shall not be required to enter into a replacement contract. The Non -Defaulting Party shall set-off or aggregate, as applicable, against the Liquidated Damages: (i) any amounts due and owing by the Defaulting Party to the Non -Defaulting Party under this Agreement, whether or not such amounts have been invoiced; (ii) any amounts due and owing by the Non -Defaulting Party to the Defaulting Parry under this Agreement, whether or not such amounts have been invoiced; and (iii) any reasonable costs incurred by the Non -Defaulting Parry including reasonable external legal fees relating to the calculation of the Termination Payment (as defined below). The resulting net amount (the "Termination Payment") shall be payable by one Party to another and the Non -Defaulting Parry shall pay to, or receive from the Defaulting Perry, as applicable. if the Non -Defaulting Master TCPM PPA_AMA Jan2011 Page 5 of 16 Party is required to pay the Termination Payment to the Defaulting Party, then the Non -Defaulting Party may, at its option and in its discretion, set off against the Termination Payment any amounts payable, due and owing by the Defaulting Party to the Non -Defaulting Party under any other agreements, instruments or undertakings between the Panics. The Non -Defaulting Party shall prepare an invoice explaining in reasonable detail the calculation of the Termination Payment and shall deliver the invoice to the Defaulting Party no later than ten (10) Business Days following the termination of the Transactions. The Termination Payment shall be paid by the applicable Party within three (3) Business Days upon receipt of the invoice. The remedy provided for in this Section 9.4 is without prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which any Parry is at any time otherwise entitled (whether by operation of law, contract or otherwise). The Panics acknowledge that damages are difficult or impossible to determine, obtaining an adequate remedy is inconvenient and that the Liquidated Damages provided for herein constitute a reasonable pre -estimate of damages. 9.5 Limitation of Liability (a) Each Party shall indemnify, defend and hold harmless the other Party from and against: (i) any losses, injuries, claims, liabilities or damages resulting from any wrongful act or breach of obligation of the indemnifying Parry; (ii) any Taxes for which such Pang is responsible for under Section 6.2. (b) FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES iS PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE PARTIES 1S LIMITED AS SET FORTII IN THAT PROVISION, AND ALL OTHER DAMAGES OR REMEDIES ARF. WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED, THE LIABILITY OF THE PARTIES IS LIMITED TO DIRECT DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE WAIVED. IN NO EVENT IS EITHER PARTY LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL. INCIDENTAL, PUNITiVE:, F.XF.MPLARY OR INDIRECT DAMAGES iN TORT, TRANSACTION OR OTHERWISE. Article 10 Miscellaneous 10.1 Assignment This Agreement may not be assigned by a Party without the prior written consent of the other Party, which consent may not be unreasonably withheld. 10.2 Sale of Facilities If any of the Buyer's facilities listed in Section 4 of any Confirmation under this Agreement are intended to be sold by the Buyer ("Sold Facility") to any Person ("New Owner"), then Buyer shall provide TransCanada with fifteen (15) days prior written notice of the potential sale transaction. On the closing of such sale, Buyer may delete the Sold Facility from the Agreement upon the following conditions! (a)Buy er may assign its interests and obligations under this Agreement regarding such Sold Facility ("Relevant Terns") to the New Owner subject to TransCanada's prior written acceptance of the creditworthiness of the New Owner, and the New Owner's assumption of all of the relevant obligations. Upon such assignment Buyer and TransCanada shall execute an amendment to this Agreement to reflect such assignment, to make appropriate adjustments to Buyer's Contract Quantities to reflect sale of the Sold Facility and providing for the release of Buyer from the obligations imposed on it or (b) if the interests and obligations are not assigned to the New Owner, then Buyer agrees to pay liquidated damages, as calculated in accordance with Section 9.4, with the exception that for the purposes of this section liquidation Quantity shall equal the Electrical Supply anticipated to be provided by TransCanada to the Sold Facility over the retraining Supply Term. 10.3 Enurement This Agreement is binding upon and enures to the benefit of the successors and permitted assigns of the Parties. 10.4 Amendments Amendments to this Agreement are valid only if they are in writing and signed by the Parties. 10-5 Entire Agreement This Agreement is the entire agreement between Buyer and TransCanada with regard to the subject matter, and all other prior or existing written or oral agreements or correspondence regarding its subject matter arc superseded 10.6 Time of Essence Time is of the essence of this Agreement. W Notices of General and hfaterial Changes (a) All notices and statements (which must be in writing) must be delivered personally, by courier, by overnight mail, by electronic mail, or by facsimile to the address of service of the Panics as set out on the Cover Sheet. Any notice sent by facsimile is deemed to have been received by the close of business on the Business Day on which it was transmitted or such earlier time as is confirmed by the receiving party. Notice by overnight mail'or courier is deemed to have been received two Business Days atter being sent, or such earlier time as may be confirmed by the receiving party. (b) Buyer acknowledges that TransCanada has taken into account and relied upon the Buyer's historical usage and metered consumption for all Service Points at the time of entering into the Agreement. As such, Buyer steal I provide TransCanada prior written notice as soon as possible by facsimile and electronic mail of any Material Change at the Service Points. A "Material Change" shall mean an event or circumstance that Buyer knows or should know may impact the usage at the Service Points by either increasing it or decreasing it for a period of at least 7 days and by an amount greater than 25% of the Energy or Demand usage for such Service Points. Material Changes include, but arc not limited to, installation of On -Site Generation, equipment outages, shutdowns or replacements, closing Service Points and changes in operating hours of a Service Point. (e) Buyer shall provide TransCanada prior written notice as soon as possible of. (i) modifications to the electrical connections of Buyer's end use equipment to it Service Point that results in the addition of a new and/or additional meter; or (ii) a change in the account number assigned by the Transmitting Utility to a Service Point TransCanada and Buyer agree to add the new meter and/or Transmitting Utility account number as a new Service Point under the applicable Confirmation with no change to the Contract Quantity wherein the same charges for Electrical Supply will apply. 10.8 Waiver The failure of either Pavy to enforce or insist upon compliance with or strict petforptance of any of the terms or conditions of this Agreement, or to take advantage of any of its rights hereunder, shall not constitute a waiver or relinquishment of any such terms, conditions, or rights, but the same shall be and remain at all times in full force and effect. 10.9 Audit Each Parry may at its cost and expense, and with reasonable prior notice to the other Party and at reasonable times, examine the books and records of the other Parry to the extent reasonably necessary to verify the accuracy of any statement, notice, claim, demand, charge, payment, cost, expense or computation made or incurred by such Party 'under this Agreement_ The right(s) of the Parties described in this Section continue for a period of one year following the occurrence of each event or transaction that triggers the exercise of such right(s), and not thereafter. 10.10 Confidentiality Neither Party may disclose the terms of this Agreement or any Transaction to a third party (other than the Party's and its Affiliates' employees, lenders, counsel, agents or accountants) except in order to comply with any applicable law, order, regulation or exchange rule. However, each Party shall notify the other Party of any proceeding of which it is aware that may result in disclosure and use reasonable efforts to prevent or limit the disclosure. 'the Parties also agree that they must agree upon the terms of a press release regarding this Agreement or any Transaction, and that no information may be released by either Parry without the consent of the other. Unless expressly stated herein, the confidentiality obligations in this Agreement do not supersede any existing nondisclosure or confdentiality agreement entered into between the Parties with respect to the subject matter ofthis Agreement. 10.11 Representations, Warranties and Acknowledgement./ Each Party represents and warrants that it has the necessary corporate and legal authority to enter into W3 Agreement and to perform each duty and obligation imposed by this Agreement and that this Agreement, when executed by the duly authorized representatives of each Party, represents a valid, binding and enforceable legal obligation of the Party. Each Party Master TCPMPPA_AM Jan2011 Page 6 of 16 represents that each tndividual arrixmg a signature to this Agreement has been duly authorized 10 execute this Agreement on behalf of the Parry he of she represents, and that by signing the Agreement, a valid, binding and eriforccroble legal obligation of the Party has been created. Buyer acknowledges that (j) the Contract Price is a fixed price for the applicable Supply Term and will not fluctuate based on market pnces for iilectrical Supply. and (ii) it has made its own independent decision to enter into this Agrtroment and as to whether this Agreement is appropriate or proper for it based upon its own judgment and is capable and prepared to assume such risks 10.12 Furtber Assumnecs Each of the Parties shall promptly execute and deliver all such deeds, documents, instruments and assurances and do or cause to be done all such acts and things as are necessary or advisable fully to perform and carry out the provisions and intent of this Agreement. 10.13 Forward Contract The Parties agree that this Agreement constitutes a "forward contract' within the meaning of the United States Bankruptcy Code (t I U.S C. Section 101(25x2000)) and each Party represents and warrants to the other Party and agrees that it is a "fomwd contract merchant" within the mearung of the United States Bankruptcy Code (11 U.S C. Section 101(26x2000)). 10.14 Prior Agreements and Transactions All previously executed power purchase agrectmmts ("Prior Agreements") ti oven 'fratisCanade and the Buyer are hereby superseded and replaced by the terms and conditions or this Agrwmcn% provided however, that. any existing transactions ("Prior Transactions") emceed into under such Prior Agreements shall be incorporated and governed by the terms and conditions of this Agreement In the event of any conflicts between the terms and conditions of the Prior Transactions and this Agreement, the terms and conditions of this Agreement shall prevail 10.15 Counterpart Execution This Agreement may be signed and delivered in counterparts with the same effect as if both Parties had signed and delivered the same copy, and when each Party has executed and delivered a counterpart. all counterparts together constitute cert Agreement. Delivery of a copy of this Agrecimem by facsimile is good and sufficient dthvtry Signed and Per. William TOWN OF NORTH ANDOVER, Pe Per: LTA. Alaster TCPMPPA_,bU_Jan20! I Page 7 of 16 APPENDIX A POWER PURCHASE AGREEMENT CONFIRMATION December 13, 2011 This Confirmation, upon execution and delivery represents a legally binding Transaction between TransCanada Power Marketing Ltd. ("TransCanada") and Town of North Andover, Massachusetts (the "Buyer") and shall incorporate and be subject to the Cover Sheet and the Terms and Conditions of the Power Purchase Agreement dated December 13, 2011 between TransCanada and Buyer (the "Agreement" ), except to the extent expressly stated herein. This Confirmation together with the aforementioned Agreement constitute a single agreement between the Parties and any capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. 1. Supply Term The Supply Term applicable for each account specified in Section 4 of this Confirmation shall begin with the next Billing Cycle that commences after December 1, 2011 and shall end coincident with the first meter read after December 1, 2012, provided however that TransCanada shall continue to provide Electrical Supply service upon the conclusion of the Supply Term until (a) Buyer's account(s) are enrolled by another competitive supplier, (b) Buyer provides notice to TransCanada that it is discontinuing receipt of service at the next earliest opportunity or (c) 'TransCanada unenrolls Buyer's accounts (the "Automatic Extension Term"). In addition, should Buyer and TransCanada agree to the terms of a new Confirmation during the Automatic Extension Term, this Transaction shall automatically terminate upon the start of the Supply Term under such new Confirmation. 2. Charges for Electrical Supply (a) During the Supply Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be 6.995 OAWb multiplied by the Energy up to the Contract Quantity; (ii) any applicable charges under Sections 4.3, 4.7; and (iii) any applicable Taxes under Section 6.2. (b) Notwithstanding Section 2(a) of this Confirmation, during the Automatic Extension Term, Buyer agrees to pay to TransCanada, in accordance with the terms of this Agreement, the following: (i) the Contract Price, which shall be equal to that price which would have been charged by the Transmitting Utility for the provision of supplier services had the provision of service by TransCanada been discontinued; and (ii) any applicable Taxes under Section 6.2. 3. Contract Quantity, Generation Allowance, and Net Consumption Minimum (a) The Contract Quantity is as follows: Contract Quantity Capacity Allowance Month Energy (kW) (kWh) Each month 525,000 1,700 (b) The Generation Allowance is: 50,000 kWh/month (refer to Sections 3.3 and 4.7 of Terms & Conditions). (set approximately equal to 15% of average monthly usage over a typical year) (c) The Net Consumption Minimum is as follows (refer to Sections 3.3 and 4.7 of Terms & Conditions) (set approximately equal to 80%oftypical usage for applicable months): Alasrer TCPMPPA_MA Jan2R11 Page 8 of 16 Month Energy kWh/month Jan Feb 275,000 Jun — Aug300,000 All other months 225,000 The Buyer hereby represents and warrants to TransCanada that there is no On -Site Generation installed at any of Buyer's Service Point(s) listed under this Confirmation. 4. Service Point(s) TransCanada shall sell, and Buyer shall purchase, the Electrical Supply at Buyer's following facilities: Master 7LPMPPA_hM4 Jon2011 Page 9 of 16 Buyer's Load Facility Location 'Lone Account 4 TCPM Account 4 Town of North Andover, MA 345 MAIN ST NEMA 4116690007 NANDOVER01 Town of North Andover, MA 566 MAIN ST NEMA 378134000 NANDOVER02 Town of North Andover, MA 33 JOHNSON ST P5196 NEMA 1611900005 NANDOVER06 Town of North Andover, MA 120R MAIN ST NEMA 5015381008 NANDOVER07 Town of North Andover, MA 364 OSGOOD ST P7 NEMA 9081726006 NANDOVER08 Town of North Andover, MA 120 MAIN ST NEMA 8753991005 NANDOVER101 Town of North Andover, MA FOXWOOD DR NEMA 6590905003 NANDOVERI10 Town of North Andover, MA SALEM BLUE RIDG ST NEMA 1609294001 NANDOVERI 1 I Town of North Andovcr, MA JOHNSON Cl NEMA 4119388004 NANDOVER112 Town of North Andover, MA 14 PALOMINO DR NEMA 9051131008 NANDOVER113 Town of North Andover, MA 1280 TURNPIKE ST NEMA 7804211002 NANDOVER114 Town of North Andover, MA SALEM/CAMPBELL RD NEMA 6573325001 NANDOVER116 Town of North Andover, MA REA'S POND NEMA 1609340008 NANDOVER117 Town of North Andover, MA 723 OSGOOD ST NEMA 378169003 NANDOVERI4 Town of North Andover, SALEM & JOHNSON MA ISCT NEMA 1629245004 NANDOVERI6 Town of North Andover, MA MAIN ST NEMA 21702009 NANDOVER17 Town of North Andover, MA HAWTHORNE PL NEMA 2873319005 NANDOVERI9 Town of North Andover, MA HOLLY RIDGE RD NEMA 9083244007 NANDOVER20 Town of North Andover, MA 1805 TURNPIKE ST NEMA 1577038004 NANDOVER22 Town of North Andover, MA FLAGSHIP DR NEMA 2816477006 NANDOVER23 Master 7LPMPPA_hM4 Jon2011 Page 9 of 16 Town of North Andover, MA TURNPIKE ST NEMA 4062065001 NANDOVER24 Town of North Andover, MA GREAT POND NEMA 380222006 NANDOVER27 Town of North Andover, MA WINTER ST PUMP STA NEMA 5364258001 NANDOVER28 Town of North Andover, MA 75 WATER ST P86/1 NEMA 7855643003 NANDOVER38 Town of North Andover, MA ROSEMONT DR NFMA 2873240005 NANDOVER46 Town of North Andover, MA PETERS ST P123 NEMA 1593093005 NANDOVER47 Town of North Andover, MA BARKER ST NEMA 2871896009 NANDOVER49 Town of North Andover, MA 420 GREAT POND RD NEMA 2519660007 NANDOVER50 Town of North Andover, 384 OSGOOD STREET 1555959004 MA NEMA NANDOVER31 5. Invoices All invoices and payments are to be sent to the following address: Town of North Andover, Massachusetts 120 Main Street North Andover, MA 01845 Attn: Mark Rees Phone: (978) 688-9510 Fax: E-mail: 6. Enrollment In accordance with Section 5.1, TransCanada shall employ its best efforts to enroll Buyer's accounts and Buyer agrees to take steps to cooperate with TransCanada's efforts to perform such enrollment, including but not limited to providing TransCanada with a copy of an electric utility bill prepared by Buyer's 'rransmitting Utility for each account specified in Section 4 of this Confirmation. TransCanada shall not be held liable to Buyer for not enrolling Buyer's accounts if such failure was due to any cause beyond TransCanada's control. 7. Mediation Service As described more fully in Section 6.1(e), in the event the Parties are unable to resolve a dispute between themselves, the Buyer may avail itself of mediation services available through the Massachusetts Department of Public Utilities pursuant to the Massachusetts General Laws c. 164, § IF(2) and 220 CMR 11.07(4). 8. Representations and Warranties Each Party represents and warrants that it has the necessary corporate and legal authority to enter into this Confirmation and to perform each duty and obligation imposed by this Confirmation and that this Confirmation, when executed by the duly authorized representatives of each Party, represents a valid, binding and enforceable legal obligation of the Party. Each Parry represents that each individual affixing a signature to this Confirmation has been duly authorized to execute this Confirmation on behalf of the Party he or she represents, and that by signing the Confirmation, a valid, binding and enforceable legal obligation of the Party has been created. Buyer acknowledges that (i) the Contract Price is a fixed price for the Supply Term and will not fluctuate based on market prices for Electrical Supply; and (ii) it has made its own independent decision to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and is capable and prepared to assume such risks. Master XPM PAA MA Jan2011 Page 10 of 16 Furiher and with respect to Buyer, Buyer represents and warrants to TransCanada, continuing throughout the term of the Agreement, with respect to the Agreement and this Confirmation, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Confirmation, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and any ordinances, bylaws or other regulations applicable to Buyer and its obligations under this Confirmation, (ii) all persons making up the governing body of the Buyer are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law, (iii) entry into and performance of this Confirmation by the Buyer are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law, (iv) the term of this Confirmation does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) Buyer shall not assert as a defense to the enforceability of this Confirmation, including without limitation to any claim for payment hereunder, that Buyer's obligations hereunder are invalid or unenforceable because they are in conflict with the terms of any bond indenture or bond ordinance to which it is a party, the Act or any relevant constitutional, organic or other governing documents and applicable law, (vi) entry into and performance of this Confirmation by the Buyer will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer that is otherwise entitled to such exclusion, and (vii)obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create. any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision ofthe Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. "Act" means the governing law specified under Section 1.3 of the Terms and Conditions. On the date of execution of the Connrmation, and as a condition to the obligations of TransCanada under this Confirmation, Buyer shall provide TransCanada with a notarized certilicate, from its duly authorized representative in the form attached as Exhibit B-1 to the Agreement, certifying the authority of the Buyer to enter into this Confirmation. 9. Execution and Effectiveness Effectiveness of this Confirmatia is dependent upon the delivery to TransCanada of an executed copy by no later than 4:00 PM on December 1p ml. Deliv a copy of this Confirmation by facsimile is good and sufficient delivery. Signed Per: Town of North Andover, Massachusetts Per: Per: MicKel E. HacheA Direc,t6tA86mdtiereial East Per: Masirr 7UPM PPA...44 Jan?oll Page If of 16 SCHEDULE "B" FOR MUNICIPAL BUYERS This Schedule B, upon execution and delivery, represents the legally binding obligations of TransCanada Power Marketing Ltd. ("TransCanada") and the Town of North Andover, Massachusetts (the "Buyer"), and shall be incorporated and be subject to the Cover Sheet and the 'Perms and Conditions of the Power Purchase Agreement dated December 12, 2011 between TransCanada and Buyer, except to the extent expressly stated herein. This Schedule B together with the aforementioned Power Purchase Agreement constitutes a single agreement between the Parties. Any capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. A. The following new definitions shalt be added to Section 1.2 of the Terms and Conditions: "Act" means the governing law specified under Section 1.3 of the Terms and Conditions. "Special Fund" means a fund or account of the Buyer set aside and or pledged to satisfy the Buyer's obligations hereunder out of which amounts shall be paid to satisfy all of the Buyer's obligations under the Agreement for the entire Term. B. The following sentence shall be added to the end of the definition of "Force Ma eurc" in Section 1.2: Notwithstanding anything to the contrary in this Agreement, if the claiming party is the Buyer, Force Majeure does not include any action taken by the Buyer in its governmental or municipal capacity. C. The Parties agree to add the following representations and warranties to Section 10.11 of the Terms and Conditions: Further and with respect to Buyer, Buyer represents and warrants to TransCanada, continuing throughout the term of this Agreement, with respect to this Agreement and each Transaction thereunder, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Agreement, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and any ordinances, bylaws or other regulations applicable to Buyer and its obligations under this Agreement, (ii) all persons making up the governing body of the Buyer are the duly elected or appointed incumbents in their positions and hold such positions it good standing in accordance with the Act and other applicable law. (iii) entry into and performance of this Agreement by the Buyer are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law, (iv) the term of this Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) Buyer shall not assert as a defense to the enforceability of this Agreement, including without limitation to any claim for payment hereunder, that Buyer's obligations hereunder are invalid or unenforceable because they are in conflict with the terms of any bond indenture or bond ordinance to which it is a parry, the Act or any relevant constitutional, organic or other governing documents and applicable law, At le, n PAS PPA tfA Jan.'01 / Page 12 or 16 (vi) entry into and performance of this Agreement and each Transaction by the Buyer will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer that is otherwise entitled to such exclusion, and (vii) obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. D. The Parties agree to the following new provisions under new Article 11 to the Terms and Conditions: Section 11.1 Buyer's Deliveries. On the date of executior. of the Agreement, and as a condition to the obligations of TransCanada under this Agreement, Buyer shall provide TransCanada with a notarized certificate from its duly authorized representative in the form attached as Exhibit B-1 to this Schedule B. Section III No Immunity Claim. Buyer warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment. Section 11.3 Buyer's Security. With respect to each Transaction, Buyer shall either (i) have created and set aside a Special Fund or (ii) upon execution of this Agreement and prior to the commencement of each subsequent fiscal year of Buyer during any Supply Term, have obtained all necessary budgetary approvals and certifications for payment of all of its obligations under this Agreement for such fiscal year. Any breach of this provision shall be deemed to have arisen during a fiscal period of Buyer for which budgetary approval or certification of its obligations under this Agreement is in effect and, notwithstanding anything to the contrary in the Agreement, TransCanada shall be entitled to immediately terminate this Agreement without further notice as of such date wherein Buyer shall be treated as the Defaulting Party. Buyer shall have allocated to the Special Fund or its general funds a revenue base that is adequate to cover Buyer's payment obligations hereunder throughout the entire Term. This Schedule B to the Power Purchase Agreement dated December 12, 2011 between TransCanada and Buyer is signed by the authorized representatives Town of North Andover, Massachusetts Per. Per: Mover MP N PPA_M.i_ J=20I t Page 13 or 16 EXHIBIT B-1 CERTIFICATE (for Municipal Buyers) To: TRANSCANADA POWER MARUTING LTD. ("TransCanada") Re: Power Purchase Agreement dated December 12, 2011 between the Town of North Andover, Massachusetts ('Buyer") and TransCanada, including the Cover Sheet, the Terms and Conditions, any and all Confirmations and all the schedules attached thereto, including, without limitation, the Power Purchase Agreement Confirmation dated December 12, 2011 (collectively, the "Agreement") 1, Ray Sant i 11 i (Signator), HERFBY CERTIFY that I am the• Town Manager(TWel of the Buyer and that, as such, I am authorized to execute this Certificate on behalf of the Buyer and, as it relates to the Agreement, I further certify that: 1. The execution, delivery, observance and performance of the Agreement does not and will not conflict with or result in a breach or constitute a default under any of: (A) the articles, by -la -A% constitutional, organic or other relevant governing and organizational documents of the Buyer, or (B) the terr_1s or provisions of any judgment, law, decree, order, statute, rule, regulation or agreement, indenture or instrument to which the Buyer is a parry or by which the Buyer is bound or to which the Buyer is subject; 2. The person signing the Agreement has the legal authority to execute and deliver the Agreement on behalf of the Buyer, 3. The Agreement constitutes a legal, valid and binding obligation of the Buyet enforceable against the Buyer in accordance with its terns; 4. Buyer is fully aware and has acknowledged that the costs associated with capacity, and congestion, as referenced under Article 4 of the Agreement, may be significant and has agreed to be fully responsible for all such costs in accordance with the terms of the Agreement; 5. Buyer has read Section 9.4 of the Agreement and has acknowledged that the Liquidated Damages provided for under that provision constitutes a reasonable pre -estimate of damages and agrees to fully comply with such provision under the circumstances set forth therein; 6. The Buyer and the person signing the Agreement has satisfied and complied with all applicable ordinances, resolutions, public notices and other local requirements with respect to any approvals and authorizations necessary for the execution, delivery and performance of the Agreement by the Buyer; and Aloaer7t;PA4PPA AftJon2tll Pagct4or76 I am signing this Certificate with a full and complete understanding of the risks and consequences of the matters that I am certifying herein. IN WITNESS WHEREOF, I have hereunder set my hand this +"day of C'�ecv- , 2011. Name: (Signa orj;t«ryt 7 Title: ['Title) SUBSCRIBED and SWORN to me this —/,, day of,,�gX4 el 2011 Notary Public My Commission Expires: �ry� If Ltaner TCPht PPA_MA 1an20t l P)Age 15 of 16 Electricity Facts TransCanada Power Marketing Ltd. Massachusetts October 2010 Competitive Suppliers are required by the Massachusetts Department of Public Utilities to provide customers with an information disclosure label. The purpose of the label is to ensure that customers are presented with consistent information by which to evaluate services offered by Competitive Suppliers and Distribution Companies, Generation Price Power Source Known Resources System Power Total Biomass 0.1°0 0.1% Average price per kWh at different levels of use. Prices do not include Average Use per 1,000 kWh 10,000 kWh 20,000 kWh 40,000 kWh regulated charges for customer Month 0.0% _ Landfill Gas 0.4% 1 0.0% 0.4% Municipal Trash 0.0% 0.21% Average Please refer to your Purchased Power Agreement for contract service and delivery ' Price per prices. Your average electricity price may vary by time of use. 2.7% kWh Ste your most recent invoice for our month use. Contract Please refer to your Purchased Power Agreement for prices and terms for Generation Service. Power Sources 'chis electricity product in the period 4!1/09 to 3131110 was generation from the following sources: Power Source Known Resources System Power Total Biomass 0.1°0 0.1% 0.20/0assigned Coal 0.0% Si% 5.7% Hydro: Large 29.3% 0.8% 30.1% Hydro: Small +� - 0.0% 0.0% 0.0% Imported Power 0.0%1 0.0% 0.0% _ Landfill Gas 0.4% 1 0.0% 0.4% Municipal Trash 0.0% 0.21% 0.2% Natural Gas 17.5% 19.5% 37.1% Nuclear 0.0%u 17.5% 17.8% Oil inc. Diesel &Jet) 0.0% 2."O/o_ 2.7% _ _ Other 0.0% 2.90% 2.9% Other Renewable 0.00/0 0.00/0 0.0% Solar 0.00/0 0.00/0 0.010/0 Wind 2.8% -- 0.00/0 2.8% Total 50.16% 49.84% 100.0% Air Emissions Carbon dioxide (CO;), nitrogen TCPM TCP oxide (NO,), and sulfur dioxide Resource New England Portfolio o as (SCh) emission rates from these Portfolio Average % of Regional New Unit sources, relative to the regional bs/NIWh Ibs/MWh Average bs1MWb 504 895 I 56% I 760 average, and to the emission rates NO 0.39 0.82 147% 0.06 of a new generating unit. SO 0.57 _ 1.62 35% _ _ 0.02 Labor Information 59% of the electricity from Known Resources came from power sources with union contracts or that used replacement labor during disputes between 4/1/09 and 03131/10. It is not known what percentage of the electricity from System Power came from power sources with union contacts. Customer Service for questions about your invoice. please call 508-871-1850, option 3. For all other inquiries, contact your business representative directly or call TransCanada toll-free at 1-877-634-2928. Mister RTU PPA M.4 Jon2611 Page 16 of 16