Information contained herein, marked with [***], is being filed pursuant to a
request for confidential treatment.
POWER PURCHASE AND SALE CONTRACT
BETWEEN
JIAOZUO WAN FANG POWER COMPANY LIMITED
AND
HENAN ELECTRIC POWER CORPORATION
Dated as of April 25, 1996
TABLE OF CONTENTS
Page
Section 1. Definitions And Explanation Of Terms.....................1
Section 2. Term Of Contract.........................................5
Section 3. Conditions To Obligations................................5
Section 4. Sale And Purchase........................................5
Section 5. Operation And Maintenance................................7
Section 6. Outages..................................................7
Section 7. Emergencies..............................................7
Section 8 Interconnection..........................................8
Section 9. Measurement Of Electric Energy...........................8
Section 10. Change Of Law............................................10
Section 11. Method Of Payment........................................10
Section 12. Force Majeure............................................11
Section 13. Events Of Default........................................12
Section 14. Waiver...................................................13
Section 15. Conciliation And Arbitration.............................14
Section 16. Representations, Warranties And Undertakings.............15
Section 17. Liability Of Parties.....................................16
Section 18. Assignment...............................................17
Section 19. Amendment Of Contract....................................17
Section 20. Language.................................................17
Section 21. Notices..................................................17
Section 22. Applicable Law...........................................18
Section 23. Severability.............................................18
Section 24. Entire Agreement.........................................19
Section 25. No Third Party Beneficiaries.............................19
Appendix A Pricing
Appendix B Point Of Interconnection
Appendix C Technical Limits
Appendix D Capacity Test Procedures
(i)
POWER PURCHASE AND SALE CONTRACT
This Power Purchase and Sale Contract (this 'Contract') is entered
into as of April 25, 1996, by and between HENAN ELECTRIC POWER CORPORATION
('Purchaser') and JIAOZUO WAN FANG POWER COMPANY LIMITED ('Seller').
RECITALS
--------
A. Seller intends to construct, finance, own, manage, operate and
maintain a coal-fired electric generating facility to be located in Jiaozuo
City, Henan Province, China, consisting of two 125 megawatt coal-fired electric
generating units.
B. Seller wishes to make available and sell and Purchaser desires to
receive and purchase a portion of the energy produced by the Facility.
SECTION 1
DEFINITIONS AND EXPLANATION OF TERMS
As used in this Contract, the following capitalized terms (in the
English version hereof) and underlined terms (in the Chinese version hereof)
shall have the meanings set forth below.
'Aluminum Company' means Jiaozuo Aluminum Mill, a Chinese enterprise
registered with the Jiaozuo Municipal Administration of Industry and Commerce
with its principal office located at 31 Tanan Road, Jiaozuo City, Henan
Province, China.
'Aluminum Mill Power Supply Contract' means the contract between
Seller and the Aluminum Company pursuant to which Seller agrees to sell, and the
Aluminum Company agrees to purchase, a portion of the energy produced by the
Facility.
'Bankruptcy' means, with respect to a party, (i) a party makes a
general assignment for the benefit of its creditors; (ii) a party takes any
action for its winding-up or liquidation or for the appointment of a receiver,
trustee or similar officer of it or of any of its revenues and assets; or (iii)
a party consents to any of the actions described in clause (ii) being taken
against it.
'Business Day' means any day on which the Industrial and Commercial
Bank of China is open for business in Jiaozuo City, Henan Province, China.
1
'Change in Law' has the meaning given such term in Section 10.
'Commercial Operation Date' or 'COD' means either or both of the Unit
One COD and the Unit Two COD.
'Construction Contract' means the Contract for Engineering,
Procurement and Construction Services to be entered into for the design,
engineering and construction of the Facility.
'Dispatch Contract' has the meaning given that term in Section 3.
'Dollar' or '$' means the lawful currency of the United States of
America.
'Emergency' means a condition on Purchaser's electrical system under
which continued deliveries of energy from the Facility will materially harm the
safe and reliable operation of such system or result in disruption of its
electric service or create a danger to persons or property.
'Energy Payment' means the Energy Payment described in Appendix A.
'Facility' means the coal-fired electric generating facility to be
constructed, financed, owned and operated by Seller and located in Jiaozuo City,
Henan Province, China consisting of two coal boilers and two steam turbine
generating units each with an expected capacity of approximately 125 megawatts
and an aggregate expected capacity of approximately 250 megawatts as well as all
associated fuel handling and transport and generation equipment and components.
'Facility Site' means the land located in Jiaozuo City, Henan
Province, China on which the Facility is to be located.
'FORCE MAJEURE' means any of the following events, which causes either
or both of the parties to be unable to perform its or their obligations under
this Contract: war, hostility, public disturbance, strikes, other labor disputes
and work stoppages, failure or interruption of transportation or other
utilities, epidemic, fire, flood, earthquake, storm, tidal wave or other acts of
nature, and all other similar events beyond the control of the parties affected
thereby.
'Governmental Instrumentality' means the government of the People's
Republic of China or any province, municipality or other political subdivision,
instrumentality, ministry, department, agency, court, authority, corporation
which has authority to exercise governmental functions or commission under the
direct or indirect control of any such body.
'Grid' means the power grid under the control of the Henan Electric
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[***] Filed separately with the Commission pursuant to a request for
confidential information Power Corporation.
'Joint Venture Contract' means the Cooperative Joint Venture Contract
for the Jiaozuo Wan Fang Power Company Limited between the Aluminum Company and
Jiaozuo Power Partners, L.P. ('Jiaozuo Power').
'Minimum Take' means (i) for the period beginning on the Unit One
Testing Date and ending on the date immediately preceding the Unit Two Testing
Date, the kilowatt-hour amount equal to the sum of all energy produced by the
second 125 megawatt unit of the Facility to be completed and delivered to
Purchaser plus the product of (x) [***] megawatts MULTIPLIED by (y) [***]%
MULTIPLIED by (z) the number of hours in this period; (ii) for the period
beginning on the Unit Two Testing Date (if such date is not the first day of a
calendar year) and ending on the last day of the calendar year in which the Unit
Two Testing Date occurs, the kilowatt-hour amount equal to the product of (x)
[***] megawatts MULTIPLIED by (y) [***]% MULTIPLIED by (z) the number of hours
in this period; and (iii) for each calendar year thereafter, the kilowatt-hour
amount equal to the product of (x) [***] megawatts MULTIPLIED by (y) [***]
hours, except that for the calendar year during which the expiration date of
this Contract occurs (if such expiration date is not the last day of such
calendar year), the Minimum Take means the kilowatt-hour amount equal to the
product of (x) [***] megawatts MULTIPLIED by (y) [***]% MULTIPLIED by (z) the
number of hours in such calendar year prior to the expiration date; provided
that Seller may adjust the Minimum Take for any year by adjusting the megawatt
numbers in clauses (i), (ii) and (iii) above so long as Seller notifies
Purchaser in writing of such adjustment at least twelve months before such
adjustment takes effect. In addition, the Minimum Take shall be adjusted
pursuant to Section 4.1 (C) hereof or Section 4.2 of the Dispatch Contract.
'Permit' means any permit, license, approval, consent, waiver,
authorization or other requirement required in connection with the Project from
any Governmental Instrumentality under applicable laws or regulations.
'Permit Event' means (i) any Permit not being granted upon application
having been duly made; (ii) any Permit ceasing to remain in full force and
effect, or not being renewed upon application having been duly made or being
renewed upon terms and conditions which are less favorable to Seller than those
originally imposed; (iii) the attachment to any Permit subsequent to its grant
of any terms or conditions which adversely affect any of Seller's rights or the
performance by Seller of any of its obligations; or (iv) the requirement of any
Permit not required as of the date of this Contract.
'Point of Interconnection' means the physical point as described in
Appendix B at which interconnection is made between the Facility and Purchaser's
transmission facilities.
'Project' means the Facility, the Facility Site, and all other
equipment and property that may become part of either of the foregoing.
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'Prudent Electrical Practices' means those codes, rules and
regulations stipulated by the Ministry of Electric Power of the People's
Republic of China, other relevant Governmental Instrumentality or other relevant
bodies duly authorized by the government in respect of power plant operation and
maintenance, control or other related matters. Where there are no such codes,
rules and regulations, 'Prudent Electrical Practices' means those practices that
are generally accepted for use in the international electric utility industry
and commonly used in safe and prudent electric utility engineering and
operations to design, engineer, construct, test, operate and maintain equipment.
'Purchaser Energy Payment' means the Energy Payment per kilowatt hour
described in Appendix A times the number of kilowatt hours delivered for the
relevant period as measured pursuant to Section 9.
'Rated Capacity' means the capacity (expressed in kilowatts (kW)) of
the two 125 megawatt units of the Facility to generate energy, as determined in
a completed performance test conducted for each such unit prior to its COD in
accordance with the test procedures contained in Appendix D.
'RMB or Renminbi' means the lawful currency of the People's Republic
of China.
'Scheduled Outage' means a planned interruption of the Facility's
generating capability that has been scheduled in advance in the manner provided
in the Dispatch Contract and is for inspection, testing, preventive maintenance,
repairs or replacement.
'Technical Limits' means the limits and constraints relating to the
operation and maintenance of the Facility, as described in Appendix C.
'Testing Date' means either or both of the Unit One Testing Date and
the Unit Two Testing Date.
'Testing Period' means, for each unit of the Facility, the period
commencing on the date on which, in the opinion of Seller and as set forth in a
certificate to be delivered by Seller to Purchaser, such unit is capable of
producing energy for sale to Purchaser and ending on the Commercial Operation
Date for such unit.
'Unit One Commercial Operation Date' or 'Unit One COD' means the first
date following the Testing Period for the first unit of the Facility to be
completed on which such unit, in the opinion of Seller and as evidenced by the
completion of a performance test during the Testing Period, is capable of
producing and delivering, and does produce, energy for sale to Purchaser
pursuant to the terms and conditions of this Contract, as set forth in a
certificate to be delivered by Seller to Purchaser.
'Unit One Testing Date' means the date on which the Testing Period for
the first unit of the Facility to be completed commences.
'Unit Two Commercial Operation Date' or 'Unit Two COD' means the first
date following the Testing Period for the second unit of the Facility to be
completed on which such unit, in the opinion of Seller and as evidenced by the
completion of a performance test during the Testing Period, is capable of
producing and delivering, and does produce, energy for sale to Purchaser
pursuant to the terms and conditions of this Contract, as set forth in the
certificate to be delivered by Seller to Purchaser.
'Unit Two Testing Date' means the date on which the Testing
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[***] Filed separately with the Commission pursuant to a request for
confidential information Power Corporation.
Period for the second unit of the Facility to be completed commences.
SECTION 2
TERM OF CONTRACT
This Contract shall become effective upon signing by the parties.
Unless terminated pursuant to Section 13, this Contract shall continue in effect
until the date that is [***] years after the Business License (as defined
in the Joint Venture Contract) is issued to Seller.
SECTION 3
CONDITIONS TO OBLIGATIONS
The obligations of Purchaser and Seller under this Contract are
conditioned upon (i) execution of a mutually satisfactory Dispatch and
Interconnection Contract in respect of the Facility (the 'Dispatch Contract')
between Seller and Dispatcher (as defined therein) and (ii) receipt of all
applicable approvals from all relevant Governmental Instrumentalities of the
electricity pricing formula set forth in Appendix A and, if required, of this
Contract and the Dispatch Contract.
SECTION 4
SALE AND PURCHASE
4.1 (A) In accordance with the terms and conditions of this Contract, Seller
agrees to sell, and Purchaser agrees to purchase, energy produced and delivered
to the Point of Interconnection by the Facility. From and after the Unit One
Testing Date, Purchaser shall pay Seller for energy by making Purchaser Energy
Payments in accordance with Section 11 and Appendix A.
(B) The parties acknowledge that the minimum output of energy to be
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[***] Filed separately with the Commission pursuant to a request for
confidential information Power Corporation.
purchased by Purchaser will not be less than the Minimum Take. If for any reason
(except a Force Majeure event affecting Purchaser) Purchaser does not purchase
the Minimum Take in any period, Purchaser shall nevertheless be obligated to
make Purchaser Energy Payments to Seller in the amounts which would have been
due had Purchaser purchased the Minimum Take in such period, i.e., Purchaser
shall still pay the Purchaser Energy Payment in respect of the amount of such
shortfall, provided that when calculating such shortfall Purchaser Energy
Payment, the Energy Payment shall not include any amounts in respect of the Fuel
Charge (as defined in Appendix A). The amount of such shortfall payment shall be
calculated and made within 30 days after the end of a relevant Minimum Take
period. If during the course of any period it could be reasonably expected that
Seller may have difficulty delivering the Minimum Take as a result of Force
Majeure, Change in Law or an Emergency, Purchaser shall, in cooperation with
Dispatcher, revise the dispatch schedule so as to permit Seller to deliver as
much energy as possible in order to achieve the Minimum Take.
(C) If Seller is unable to deliver capacity to Purchaser pursuant to the
dispatch curves specified in the dispatch schedule because the Aluminum Company
is taking capacity (in kilowatts) in excess of its entitlement specified in the
Aluminum Mill Power Supply Contract, such excess amount of energy (i.e., the
amount of energy in kilowatt hours equal to the product of the excess capacity
multiplied by the number of hours the Aluminum Company is taking such excess
capacity) taken by the Aluminum Company shall be deducted in computing the
Minimum Take. Seller shall provide one month prior written notice to Purchaser
of any planned increase or decrease in the Aluminum Company's use of electricity
exceeding 10 megawatts.
(D) Seller may sell and Purchaser may purchase energy in addition to the
Minimum Take at the price set forth in Appendix A. Starting from the Unit One
Testing Date, for each kilowatt-hour of such additional energy purchased by
Purchaser above the Minimum Take, Seller shall pay an Excess Generation Fee to
Purchaser equal to [***]% of the profits, as specified in the pricing formula,
prior to paying income taxes from sales of energy to Purchaser above and beyond
the Minimum Take. If the Seller is required by relevant government authorities
to pay any taxes, including income taxes, or any amount put into the reserve
funds, including income taxes on the amounts put into the reserve funds, on
account of the amount paid to Purchaser as an Excess Generation Fee, then the
total of such taxes and reserve fund payments shall be subtracted in calculating
the Excess Generation Fee. The amount of such payment by Seller to Purchaser
shall be calculated and such payment shall be made within 60 days after the end
of each Minimum Take period. If such payment is not made in full to Purchaser
prior to the end of this 60-day period, a late fee will be payable by Seller
equal to 0.04% of such unpaid amount for each day in the first 60 days such
amount remains unpaid and equal to 0.08% for each day thereafter. Any payment of
such unpaid amounts shall be applied first to payment of the late payment
interest charge and then to the principal amount outstanding.
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[***] Filed separately with the Commission pursuant to a request for
confidential information Power Corporation.
4.2 To the extent energy is generated prior to the Unit One Testing Date, Seller
agrees to sell and Purchaser agrees to purchase all such energy. Purchaser shall
pay the Purchaser Energy Payment for such energy. Seller shall pay to Purchaser
a per kWh fee for coordinating receipt of such energy equal to RMB [***] yuan
within 20 days after the end of any month in which such energy is purchased. If
such payment is not made in full to Purchaser prior to the end of this 20-day
period, a late fee will be payable by Seller equal to 0.04% of such unpaid
amount for each day in the first 60 days such amount remains unpaid and equal to
0.08% for each day thereafter. Any payment of such unpaid amounts shall be
applied first to payment of the late payment interest charge and then to the
principal amount outstanding.
4.3 Purchaser may reject and choose not to make any payment for energy that is
produced by Seller in willful violation of the Dispatch Contract.
SECTION 5
OPERATION AND MAINTENANCE
5.1 Seller shall be subject to dispatch by Dispatcher pursuant to the Dispatch
Contract.
5.2 Seller shall cause the Facility to be operated and maintained in accordance
with Prudent Electrical Practices and this Contract.
5.3 Seller shall establish and provide to Purchaser a copy of the initial
Technical Limits 30 days prior to the expected Unit One Testing Date and shall
notify Purchaser as soon as practicable of any change to the Technical Limits.
SECTION 6
OUTAGES
Provisions regarding outages of the Facility and power supply for
starting, testing and restarting the Facility shall be specified in the Dispatch
Contract. To the extent Seller needs power from Purchaser, Purchaser shall
provide such power to Seller pursuant to a power sale agreement to be entered
into between Seller and Purchaser.
SECTION 7
EMERGENCIES
Emergencies shall be handled pursuant to provisions of the Dispatch
Contract.
7
SECTION 8
INTERCONNECTION
8.1 Energy produced by Seller and sold to Purchaser pursuant to this Contract
shall be made available and delivered by Seller to Purchaser at the Point of
Interconnection.
8.2 Purchaser shall design, control, operate and own all interconnection
equipment (necessary for its system to accept capacity and energy from Seller)
located at the Point of Interconnection. Such equipment shall be designed and
constructed pursuant to an interconnection construction contract. Seller shall
provide Purchaser a loan in the amount of [RMB 82 million] yuan for such work.
The term and interest rate for such loan, together with other relevant
provisions, shall be specified in a separate agreement to be entered into
between Seller and Purchaser. Such interconnection will be completed and capable
of transmitting electricity at least 150 days prior to the Unit One Testing
Date. The cost of additions or changes to any of Purchaser's substations,
transformers, transmission lines, or any other portions of Purchaser's electric
system as a result of Purchaser's load additions or other changes required by
Purchaser shall be borne entirely by Purchaser. Purchaser shall also cooperate
with Seller and the Aluminum Company in order to switch the lines which
currently provide power to the Aluminum Company to Seller's lines so that the
Aluminum Company can accept power directly from Seller starting from the Unit
One Testing Date.
8.3 Subject to the provisions of the Construction Contract, Seller shall be
responsible at its own expense for the engineering, design and construction of
the interconnection from the Facility to the Point of Interconnection.
8.4 Purchaser shall be responsible at its own expense for making all changes to
its system necessary to accept capacity and energy from Seller. Purchaser shall
at its own expense design, construct, maintain and repair all interconnection
facilities from its system to the Point of Interconnection.
SECTION 9
MEASUREMENT OF ELECTRIC ENERGY
9.1 All measurements of energy delivered by Seller to Purchaser shall be made at
various outlet lines at the high-voltage side of the Point of Interconnection by
suitable kilowatt and dual-direction active and reactive power kilowatt-hour
meters. Seller shall install, own and operate two sets of meters in conformity
with Purchaser's metering standards and operating procedures and Prudent
Electrical Practices (except that Purchaser shall be responsible for reading the
meters at midnight 12 o'clock on the last day of each month with
8
representatives of Seller being present). Purchaser's representative shall sign
a written statement of each meter reading at the time of reading the meters. One
set of such meters will be the primary meters and the other set will be the
back-up meters. Readings on the primary meters will be the measurement of energy
delivered. Testing, calibrating and recalibrating of metering equipment will be
in accordance with Prudent Electrical Practices and performed jointly by
representatives of Purchaser and Seller under the supervision and direction of
the electric energy measurement authority of Henan Province, China. Neither
Seller nor Purchaser may change the metering facilities for the Facility without
the consent of the other party.
9.2 If either party disputes a meter's accuracy or condition, it shall so advise
the other party in writing. The other party shall, within 15 days after
receiving such notice, advise the disputing party in writing as to its position
concerning the meter's accuracy. If the parties are unable to resolve their
disagreement, then they shall engage either the electric energy measurement
authority of Henan Province, China or an unaffiliated, qualified third party to
test the meter. Should the meter be found in good order and registering
accurately (within the standard set forth in Section 9.4), the disputing party
shall bear the cost of inspection; otherwise the cost shall be borne by the
owner of the meter.
9.3 Seller agrees to repair and recalibrate any malfunctioning meter at its own
expense as soon as reasonably possible.
9.4 If the primary meter used to measure energy fails to register, the back-up
meter will be used to measure energy. If the difference in measurements made by
the primary meter and the back-up meter exceeds 0.5 percent of the energy
measured by the primary meter in any month, the meters shall be repaired and
recalibrated and an adjustment shall be made correcting all measurements made by
the inaccurate or defective meter for the amount of the inaccuracy in that
month, in the following manner:
(A) As may be agreed upon by the parties, or
(B) In the event that the parties cannot agree on the amount of the
adjustment necessary to correct the measurements made by any inaccurate or
defective meter, the parties shall use the back-up meter, if installed and
registering accurately, to determine the amount of such inaccuracy, provided,
however, that such meter is tested in the same manner as the primary meter. In
the event that the back-up meter is also found to be inaccurate by more than 0.5
percent, then the parties shall use the Purchaser's meter on the far end of the
interconnection line, if such meter is believed by the parties to be operating
properly, adjusted for reasonable line losses. In the event there is not
agreement as to the accuracy of this set of meters, the parties shall estimate
the amount of the necessary adjustment referring to operating data maintained in
the Facility's control system.
(C) In the event the parties cannot agree on the actual period during
9
which the inaccurate measurements were made, the period for which the
measurements are to be adjusted shall be the last one-half of the period from
the last previous test of the meter.
(D) To the extent the adjustment period covers a period of deliveries for
which payment has already been made by Purchaser, Seller shall use the corrected
measurements to recompute the amount due and Seller or Purchaser, as applicable,
shall make up the difference between the paid and recomputed amounts. Payment of
such difference by the owing party shall be made not later than 30 days after
such party receives notice of the amount due. If such payment is not made in
full prior to the end of this 30-day period, a late fee will be payable by the
owing party equal to 0.04% of such unpaid amount for each day in the first 60
days such amount remains unpaid and equal to 0.08% for each day thereafter. Any
payment of such unpaid amounts shall be applied first to payment of the late
payment interest charge and then to the principal amount outstanding.
SECTION 10
CHANGE OF LAW
If a Change in Law occurs which requires new capital expenditures for
the Project, increases Seller's operating costs of the Project, imposes
restrictions upon Seller's operation of the Project which deny Seller the full
economic benefit of this Contract or interferes with Seller's performance of its
obligations hereunder, the price of energy shall be adjusted pursuant to the
formula set forth in Appendix A so as to place Seller in the same economic
position as if such Change in Law had not occurred. A certificate of Seller
setting forth the basis for determination of such payment adjustment shall be
delivered to Purchaser. As used herein, 'Change in Law' shall mean any Permit
Event, any change in any law, statute, ordinance, rule, regulation or Prudent
Electrical Practices (including the adoption of any new law, statute, ordinance,
rule, regulation or Prudent Electric Practices) or interpretation thereof by any
Governmental Instrumentality from those in effect on the date of execution of
this Contract, or any prohibition or acts by government or public agency which
causes either or both of the parties to be unable to perform its or their
obligations hereunder.
SECTION 11
METHOD OF PAYMENT
11.1 On or before the fifth Business Day of each calendar month beginning with
the first full calendar month after the Unit One Testing Date, Seller shall
submit to Purchaser a billing statement showing the amount payable by Purchaser
hereunder as Purchaser Energy Payments, and the calculation thereof, with
respect to the immediately preceding month. Purchaser shall pay
10
such amounts within 20 calendar days after Purchaser's receipt of the billing
statement. Payment shall be made by transfer to Seller's account in a bank to be
designated by Seller.
11.2 Notwithstanding the foregoing, if a Purchaser Energy Payment is not paid in
full to Seller on or before the close of business on the date due, a late fee
will be payable by Purchaser equal to 0.04% of such unpaid amount for each day
in the first sixty days such amount remains unpaid or equal to 0.08% for each
day thereafter. Any payments of such unpaid amount shall be applied first to
payment of any late payment interest charge and then to the principal amount
outstanding.
11.3 In the event Purchaser disputes all or any portion of any billing
statement, Purchaser shall nevertheless pay the full amount when due and shall
give written notice of the dispute to Seller. Such notice shall identify the
disputed bill and contain a detailed statement of the amount and nature of the
dispute. No adjustment shall be made for disputed amounts unless notice is given
together with a detailed statement of the claim. A billing statement shall be
deemed final and not subject to dispute by Purchaser if Purchaser has not
delivered a notice disputing such billing statement within three months after
Purchaser's receipt of such billing statement. Seller shall give prompt
consideration to any dispute and shall notify Purchaser of its position within
30 days following receipt of Purchaser's written notice. If Seller shall not
have responded to Purchaser within such 30 day period, Seller shall be deemed to
have accepted Purchaser's position. Upon final determination of the correct
amount and all necessary adjustments, any overpayment by Purchaser (together
with interest thereon at a rate of 0.04% per day), shall be credited to
Purchaser in the monthly billing statement next submitted to Purchaser.
11.4 All payments under this Contract shall be made in Renminbi.
SECTION 12
FORCE MAJEURE
12.1 If a party is wholly or partially unable to perform its obligations arising
under this Contract due to Force Majeure, the party claiming Force Majeure shall
give the other party written notice describing the Force Majeure event together
with a certificate stating that such party is wholly or partially unable to
perform its obligations under this Contract as a result of such Force Majeure
event.
12.2 If, as a result of Force Majeure, a party is rendered wholly or partially
unable to perform its obligations under this Contract, that party shall be
excused to the extent so affected; provided that:
(A) the suspension of performance shall be of no greater scope and of no
longer duration than is required by the Force Majeure event;
11
(B) no obligations under this Contract which shall have arisen before the
Force Majeure event shall be excused as a result of the Force Majeure event;
(C) no payment obligations shall be excused as a result of the Force
Majeure event; and
(D) the party claiming Force Majeure shall use its reasonable efforts to
remedy its inability to perform.
SECTION 13
EVENTS OF DEFAULT
13.1 Purchaser may give a notice of termination of this Contract upon the
occurrence and continuance of any of the following events of default:
(A) Bankruptcy of Seller;
(B) Seller abandons the Project for a period of 12 consecutive months; or
(C) Seller fails to perform any of its material obligations under this
Contract which continues unremedied for 30 days after notice from Purchaser (or
if such failure cannot be remedied within 30 days, such longer period not to
exceed six months as may be reasonably necessary to remedy such failure);
provided, however, that Purchaser may not terminate this Contract as a result of
any event listed above which is caused directly or indirectly by any action or
omission by Purchaser or any Governmental Instrumentality (including breach by
Purchaser of its obligations under this Contract or breach by Dispatcher of its
obligations under the Dispatch Contract).
13.2 Seller may give a notice of termination of this Contract upon the
occurrence and continuance of any of the following events of default:
(A) Bankruptcy of Purchaser;
(B) a Permit Event;
(C) any Governmental Instrumentality fails to perform or repudiates any of
its obligations under any of the documents set forth in Section 3 or any Permit;
(D) any Governmental Instrumentality expropriates or threatens to
expropriate Seller or any assets or rights of Seller or takes other action that
adversely affects the enjoyment by Seller of its rights, or the performance by
Seller of any of its obligations under this Contract;
12
(E) Purchaser fails to pay when due any amount payable by Purchaser under
this Contract;
(F) Purchaser fails to perform any of its material obligations (other than
payment obligations referred to in clause (E) above) under this Contract which
continues unremedied for 30 days after notice from Seller; or
(G) any Governmental Instrumentality imposes restrictions prohibiting or
materially limiting Seller's or its principals' ability to repatriate profits or
revenues from the Project outside China.
Nothing in this Section 13 shall preclude Seller from exercising its rights
under Section 10, if applicable, or any other rights or remedies hereunder.
13.3 Any termination notice shall specify the event of default giving rise to
the termination notice. Following the termination notice, the parties shall
consult for a period of up to 90 days as to what steps shall be taken. At the
expiration of the 90 day period and unless the parties shall have otherwise
agreed or the event of default giving rise to the termination notice shall have
been remedied, the party having given the termination notice may terminate this
Contract by giving written notice to the other party, whereupon this Contract
shall terminate on the date specified for termination in such notice.
13.4 Following termination of this Contract by Seller due to Purchaser's default
hereunder, Purchaser shall, to the extent permitted by law, transmit any energy
produced by Seller to any entity designated by Seller which is interconnected
with Purchaser. Purchaser shall be paid its reasonable costs for transmitting
such energy.
13.5 In the event of any breach or default under this Contract other than a
default referred to in Section 13.1, Purchaser shall not be relieved of any of
its liabilities or obligations hereunder, including its obligation to make
Purchaser Energy Payments whether becoming due before or after such breach or
13.6 The rights upon default provided herein are cumulative and not exclusive of
any other rights upon default available under Chinese law; provided that neither
party shall have any right to terminate this Contract except as expressly
provided in this Section 13.
SECTION 14
WAIVER
Failure by either party to exercise any of its rights under this
Contract shall not constitute a waiver of such rights. Neither party shall be
deemed to
13
have waived any right resulting from any failure to perform by the other party
unless it has made such waiver specifically in writing.
SECTION 15
CONCILIATION AND ARBITRATION
15.1 Dispute Settlement. Except as otherwise provided in this Contract, the
parties shall attempt to settle any dispute arising out of or in connection with
this Contract through friendly consultation between themselves. Such
consultation shall begin promptly after one party has delivered to the other
party a written request for such consultations. If the parties do not reach an
amicable solution within 30 days of receipt of such notice, either party may,
with notice to the other party, submit the dispute for binding arbitration in
Beijing, China, under the auspices of the China international Economic and Trade
Arbitration Commission ('CIETAC') in accordance with the CIETAC Arbitration
Rules as in effect on the date of this Contract (except to the extent this
Section 15 specifies different procedures, in which event such procedures shall
govern the arbitration, including the selection of the arbitration panel). The
parties agree that any dispute arising out of or in connection with this
Contract shall be submitted exclusively to arbitration as provided in this
Section 15. Any settlement and award rendered through such an arbitration
proceeding shall be final and binding upon the parties if the decision is in
writing and contains a reasoned analysis explaining the arbitrators' reasons for
rendering the award. The parties agree that the arbitral award may be enforced
against the parties or their assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any court having jurisdiction
thereof. Accordingly, the parties irrevocably agree that any action to enforce
such judgment may be instituted wherever appropriate and each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may have now or hereafter to the laying of the venue or the jurisdiction or
the convenience of the forum of any such action and irrevocably submits
generally and unconditionally to the jurisdiction of any such court in any such
action.
15.2 Language. The arbitration shall be conducted in English and Chinese and the
arbitration shall refer to the English and Chinese texts of this Contract.
15.3 Arbitrators. There shall be three arbitrators. The parties shall each
select one arbitrator within 30 days after giving or receiving the demand for
arbitration. The two arbitrators selected by the parties shall select the third
arbitrator. If a party does not appoint an arbitrator who has consented to
participate within 30 days after the selection of the first arbitrator, the
relevant appointment shall be made by the arbitrating body. The costs of the
arbitration shall be borne by the parties as determined by the arbitration
tribunal, taking into account the relative merits of the positions of the
parties.
14
15.4 Submission to Jurisdiction; Defenses. Each party is subject to civil and
commercial law and irrevocably agrees that this Contract is a commercial rather
than a public or governmental activity and neither party is entitled to claim
immunity from legal proceedings with respect to itself or any of its assets on
the grounds of sovereignty or otherwise under any law or in any jurisdiction
where an action may be brought for the enforcement of any of the obligations
arising under or relating to this Contract. To the extent that a party or any of
its assets has or hereafter may acquire any right to immunity from any set-off,
legal proceedings, attachment or execution of judgment on the grounds of
sovereignty or otherwise, each party hereby irrevocably waives such right to
immunity in respect of its obligations arising under or relating to this
Contract.
15.5 Continued Performance. The parties hereby agree to carry out their
respective obligations under this Contract, including without limitation all
payment obligations, notwithstanding any pending dispute or controversy.
SECTION 16
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
16.1 Seller represents and warrants as follows:
(A) it is a Sino-foreign cooperative joint venture duly organized and
existing under the laws of the People's Republic of China;
(B) it has full legal right, power and authority to execute, deliver and
perform this Contract and the contracts and documents referred to in this
Contract to which it is a party;
(C) it has taken all appropriate and necessary action to authorize the
execution, delivery and performance of this Contract and the contracts and
documents referred to in this Contract to which it is a party; and
(D) it has obtained all consents, approvals and authorizations necessary
for the valid execution, delivery and performance of this Contract and the
contracts and documents referred to in this Contract to which it is a party,
provided, however, that Appendix A to this Contract is subject to the approval
of the relevant price approval authorities before this Contract shall become
effective.
16.2 Purchaser represents and warrants as follows:
(A) it is a Chinese enterprise duly organized and existing under the laws
of the People's Republic of China;
(B) it has full legal right, power and authority to execute, deliver and
perform this Contract and the contracts and documents referred to in this
Contract to which it is a party;
15
(C) it has taken all appropriate and necessary action to authorize the
execution, delivery and performance of this Contract and the contracts and
documents referred to in this Contract to which it is a party; and
(D) it has obtained all consents, approvals and authorizations necessary
for the valid execution, delivery and performance of this Contract and the
contracts and documents referred to in this Contract to which it is a party,
provided, however, that Appendix A to this Contract is subject to the approval
of the relevant price approval authorities before this Contract shall become
effective.
16.3 If from time to time a financial institution which is proposing to extend
loan facilities or credit support to Seller reasonably requests any financial or
other information, Purchaser will promptly provide such information.
SECTION 17
LIABILITY OF PARTIES
17.1 Seller shall indemnify Purchaser and its officers, principals, directors,
agents and employees from and against all direct damages to the extent arising
from third party claims and losses for damage to property or injury to or death
of persons arising from the negligence, bad faith or willful misconduct of
Seller or its officers, principals, directors, agents or employees in connection
with the performance of Seller's duties under this Contract or Seller's breach
of this Contract. Such indemnity shall not apply to the extent that any claims
or losses are caused by or arise out of any intentional or negligent act or
omission, bad faith or willful misconduct by Purchaser or its officers,
principals, directors, employees or agents.
17.2 Purchaser shall indemnify Seller and its principals, officers, directors,
employees and agents from and against all direct damages to the extent arising
from third party claims and losses for damage to property or injury to or death
of persons arising from the negligence, bad faith or willful misconduct of
Purchaser or its officers, principals, directors, employees or agents in
connection with the performance of Purchaser's duties under this Contract or
Purchaser's breach of this Contract. Such indemnity shall not apply to the
extent that any claims or losses are caused by or arise out of any intentional
or negligent act or omission, bad faith or willful misconduct by Seller or its
principals, officers, directors, employees or agents.
17.3 Neither party nor its officers, principals, directors, employees or agents
shall be liable to the other party or its officers, principals, directors,
employees or agents for claims for incidental, consequential or indirect damages
to persons or property, whether arising in tort, contract or otherwise,
connected with or resulting from performance or non-performance under this
Contract.
16
SECTION 18
ASSIGNMENT
Assignments by either party of this Contract shall require the consent
of the other party, provided, however, such consent shall not be unreasonably
withheld.
SECTION 19
AMENDMENT OF CONTRACT
This Contract may be amended or modified only by an instrument in
writing signed by both parties.
SECTION 20
LANGUAGE
This Contract will be executed in four counterparts in both Chinese
and English versions. Each version shall be of equal force and effect.
SECTION 21
NOTICES
Any notice required or permitted to be given hereunder shall be in
writing and shall be (i) personally delivered, (ii) transmitted by postage
prepaid registered mail (airmail if international), (iii) transmitted by
internationally recognized courier service, or (iv) transmitted by facsimile to
the parties as follows, as elected by the party giving such notice:
(A) In the case of Purchaser, to:
Henan Electric Power Corporation
No. 11 South Songshan Road
Zhengzhou, Henan, China 450052
Attention: Xu Xing Long
Facsimile No.: 86-371-790-5034
Telephone No.: 86-371-790-5015
17
(B) In the case of Seller, to:
Jiaozuo Wan Fang Power Company Limited
Dai Wang Zheng
Jiaozuo City, Henan, China
Attention: Edward C. Hall III
Facsimile No.: N/A
Telephone No.: N/A
and
AES China Generating Co., Ltd.
9/F, Allied Capital Resources Building
32-38 Ice House Street
Central, Hong Kong
Attention: Paul Hanrahan
Facsimile No.: 852-2530-1673
Telephone No.: 852-2842-5111
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been duly given on (i) the date of receipt if delivered
personally, (ii) 7 days after the date of posting if transmitted by mail, (iii)
3 days after delivery to the courier if transmitted by courier, or (iv) the date
of transmission with confirmed answer back if transmitted by facsimile,
whichever shall first occur. Any party may change its address for purposes
hereof by notice to the other party. All notices hereunder shall be in English
and Chinese.
SECTION 22
APPLICABLE LAW
This Contract shall be governed by and construed in accordance with
the laws of the People's Republic of China.
SECTION 23
SEVERABILITY
The invalidity of any provision or portion of this Contract will not
affect the validity of the remainder of this Contract.
18
SECTION 24
ENTIRE AGREEMENT
This Contract contains the complete agreement between the parties with
respect to the matters contained herein and supersedes all other agreements,
whether written or oral, with respect to the matters contained herein.
SECTION 25
NO THIRD PARTY BENEFICIARIES
Except as otherwise expressly stated herein, this Contract is intended
to be solely for the benefit of Purchaser and Seller and their respective
successors and permitted assigns and is not intended to and shall not confer any
rights or benefits on any third party not a signatory hereto.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Contract to be executed by their duly authorized representatives as
of the day and year written above.
HENAN ELECTRIC POWER CORPORATION
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------
Name:
Title:
JIAOZUO WAN FANG POWER COMPANY
LIMITED
By: /s/ Edward C. Hall, III
-------------------------------
Name:
Title:
19
APPENDIX A
Unless otherwise defined herein, capitalized terms (in the English version
hereof) and underlined terms (in the Chinese version hereof) used but not
defined in this Appendix A shall have the same meanings set forth in the Power
Purchase and Sale Contract to which this Appendix A is attached.
Energy Payment ('SP') shall be expressed in RMB per kilowatt hour. For each
Base Output Period, as herein defined, the Energy Payment shall be calculated
annually on the date which is 60 days prior to the end of each Calendar Year and
shall be in accordance with the following formula:
SP = (PC + FC + EC + QC + TC) x [1 + VAT Rate x (1 + OT Rate)]
(1) 'PC' is the Unit Production Charge which shall be expressed in RMB per
kilowatt hour and shall be caluclated pursuant to the following formula:
PC = RMB Operation and Maintenance Costs + ($ Operation and Maintenance Costs x
Conversion Factor)
- --------------------------------------------------------------------------------
Base Output
+ Annual Depreciation Amount + Fuel Expenses
--------------------------------------------
Base Output
Where:
The Unit Production Charge does not include VAT credit.
'Operation and Maintenance Costs' shall be, for each period referred to in the
definition of Base Output below (each such period, a 'Base Output Period'), all
RMB and Dollar operation and maintenance costs of the Project for such period
and shall include, without limitation, all costs of salaries, wages and benefits
for the Chinese and foreign employees (including trade union contributions and
relevant allocations not covered in After Tax Enterprise Profit Retention),
management (including the management of Seller), maintenance, water, ash
disposal, materials, dispatch service fee, environmental compliance, insurance
premiums, land use, administration, ratable funding for major maintenance
overhauls, interest on working capital, costs associated with the exchange of
RMB for Dollars, and amortization of deferred expenses*. All costs will include
estimates of price escalation for the applicable period.
Operation and Maintenance Costs will be separated into costs budgeted to be
actually incurred and payable in RMB (RMB Operation and Maintenance Costs) and
in Dollars ($ Operation and Maintenance Costs) to be used in the formula for the
Unit Production Charge.
1
[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
- ----------
* Deferred expenses will include costs to establish Seller, etc.
'Fuel Expenses' shall be, for each Base Output Period, budgeted amounts for all
fuel costs, including all costs of fuel supply, transportation, exchange and
storage, necessary for the Facility to produce the Base Output. All costs will
include estimates of price escalation for the applicable period. The budgets for
Fuel Expenses will include assumptions of the coal price per ton, the plant
average consumption rate (in grams/kWh), coal quality and heat content and
assumptions of the oil price per ton, oil quality and heat content and the
annual oil consumption determined by the number of annual unit starts and other
operations requiring oil.
'Annual Depreciation Amount' =
------------------------------
(Fixed Asset Total Book Value) x Classified Depreciation Rate;
Where:
'Fixed Asset Total Book Value' equals the total project cost to complete the
Project including all compensation made in accordance with the construction
contracts, construction management costs, any taxes or fees imposed on the
Project, working capital, debt service reserves and all development fees
unanimously agreed to by the investors in Seller. Also included in the total
Project cost which is required for the completion of Project construction will
be the interest accrued on all debt during construction and other relevant
expenses.
'Classified Depreciation Rate' shall mean the depreciation rate determined
according to the classified service life provided in the relevant document.
'Base Output' shall mean (i) for the period beginning on the Unit One Testing
Date and ending on the date immediately preceding the Unit Two Testing Date, the
kilowatt-hour amount equal to the product of the Rated Capacity of the first
unit of the Facility multiplied by [***] % multiplied by the number of hours in
this period; (ii) for the period beginning on the Unit Two Testing Date (if such
date is not the first day of a calendar year) and ending on the last day of the
calendar year in which the Unit Two Testing Date occurs, the kilowatt-hour
amount equal to the product of the Rated Capacity of the two units of the
Facility multiplied by [***] % multiplied by the number of hours in this period;
and (iii) for each calendar year thereafter, the kilowatt-hour amount equal to
the product of the Rated Capacity of the two units of the Facility multiplied by
[***] hours, except that for the calendar year during which the expiration date
of the Power Purchase and Sale Contract occurs (if such expiration date is not
the last day of such calendar year), the Base Output shall be the kilowatt-hour
amount equal to the product of the Rated Capacity of the two units of the
Facility multiplied by [***] % multiplied by the number of hours in such
calendar year prior to the expiration date.
'Conversion Factor' shall equal
2
[*** Filed separately with the Commission pursuant to a request for confidential
treatment.]
(Average Conversion Rate(t) -
Average Conversion Rate(m - 1)
Average Conversion Rate(m) x [1 + (-------------------------------------------]
Average Conversion Rate(m - 1)
where:
(m) shall mean the 30 day period immediately preceding the date of
calculation
(t) shall mean the 12 month period immediately prior to the date of
calculation
(m - 1) shall mean the 30 day period immediately preceding the 12 month period
prior to the date of calculation
'Average Conversion Rate' shall equal the average of the Conversion Rate for
each day over the applicable period.
'Conversion Rate' shall mean the closing selling exchange rate of Renminbi for
Dollars published by the People's Bank of China (or any successor entity
publishing such rate).
At such time as the Renminbi is freely convertible and an international market
based forward rate is available, the Conversion Factor shall be set equal to
such quoted forward exchange rate of Renminbi for Dollars which is six months
from the beginning of each Base Output Period.
(2) 'FC' is the Unit Profit Charge Before Tax which shall be expressed
in RMB per kilowatt hour and shall be calculated pursuant to the following
formula:
FC = Unit Profit
--------------
1 - Income Tax Rate
Unit Profit = (Foreign Party's Annual Profit Chinese Party's
x Conversion Factor) Annual Profit
------------------------------- + ----------------------- +
Base Output Base Output
(Annual $ Debt Service Payment x Conversion Factor) + Annual RMB Debt
Service Payment
- ------------------------------------------------------------------------- +
Base Output
Annual Depreciation Loan Repayment After Tax Enterprise Profit Retention
- ------------------------------------- + -------------------------------------
Base Output Base Output
Where:
'Annual Profit' shall be the annual amounts listed on Exhibit A-1 which have
been calculated to yield a projected [***] % financial internal rate of return
on registered capital over the joint venture term of Seller.
'Registered Capital Contribution' shall be equal to the total registered
capital, denominated in RMB, provided by Seller's joint venture partners through
the Unit Two Commercial Operation Date.
3
'Annual $ Debt Service Payment' shall be an annual Dollar payment in an amount
equal to the annual amount required to pay all principal on the Dollar
denominated debt financing for the Project.
'Annual RMB Debt Service Payment' shall be an annual RMB payment in an amount
equal to the annual amount required to pay all principal on the RMB denominated
debt financing for the Project.
'After Tax Enterprise Profit Retention' shall be all amounts required pursuant
to law to be set aside by Seller from the after-tax profits of the Project
deposited in the Reserve Fund, Enterprise Development Fund and the Bonus and
Welfare Fund for Staff and Workers, and any other similar funds required to be
set up and funded by any other government entity in the future. After Tax
Enterprise Profit Retention for each annual period shall be determined for each
Base Output Period based on the amount of after-tax profits estimated by Seller
for each such year.
'Income Tax Rate' shall be the actual percentage tax rate that will be applied
to Seller in the Base Output Period.
'Annual Depreciation Loan Repayment' shall equal that portion of the annual
depreciation fund which is used to pay the principal of the debt.
(3) 'OT Rate' is the Other Tax Rate which shall be the rate payable in
respect of any taxes that Seller is obligated to pay other than VAT on
production sales. Details of this component would be established upon the
introduction of those new taxes. **
* Purchaser recognizes that the intent of this provision is to cause the Energy
Payment to Seller to be adjusted so that the net amount received after payment
of all taxes and fees other than VAT equals the net amount that would have been
received had the taxes and fees not been imposed.
(4) 'VAT Rate' shall be the actual VAT rate applicable to Seller's sales
revenues at Base Output.
(5) 'EC' is the Unit Financial Charge which shall be expressed in RMB per
kilowatt hour and shall be calculated pursuant to the following formula:
EC = Financial Expenses
------------------
Base Output
'Financial Expenses' shall mean, during the operation period of the Project, the
interest of the loan for the construction of, and expenses incurred in financing
the operations of the Project, projected on an annual basis. Financial Expenses
related to the Dollar debt shall include interest, related fees and withholding
taxes
4
[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
(grossed up for taxes payable by Seller) imposed pursuant to relevant Chinese
regulations on the Dollar denominated debt financing for the Project multiplied
by Conversion Factor, that is:
Financial Expenses related to the $ Debt Financing x Conversion Factor
RMB Financial Expenses shall include interest and related fees on RMB
denominated debt financing for the Project.
(6) 'QC' is the Unit Net Non-Business Expenditures which shall be expressed
in RMB per kilowatt hour and shall be calculated pursuant to the following
formula:
QC = Non-Business Expenditures - Non-Business Income
-----------------------------------------------
Base Output
'Non-Business Expenditures' and 'Non-Business Income' mean the amount of
expenditures and income, respectively, of Seller which have no direct relation
to the operation of the Project.
(7) The Unit True-Up Charge ('TC') shall be expressed in RMB per kilowatt
hour and shall be calculated pursuant to the following formula:
TC = Cost Recovery Balance at the Time of Price Calculation X
(1 + True-up Charge Interest Rate/2)
--------------------------------------------------------
Base Output
Where:
'Cost Recovery Balance' for any given month, shall be equal to Cost Recovery
Balance for the previous month x (1 + True-up Charge Interest Rate/12)
+ Cost Recovery for the month
- - Cost Recovery Balance that has been absorbed in the Energy Payment, pursuant
to a power price adjustment provided in this section.
'True-up Charge Interest Rate' shall equal [***] % per annum.
'Cost Recovery' shall equal the difference between the total sum of the actual
costs and the total sum of the budgeted costs of all of the components contained
in this price formula, which reflects economic changes in the underlying
assumptions contained in the price formula. Factors which affect components in
this price formula include, but are not limited to: (i) fuel price changes
affecting Fuel Expenses; (ii) raw material price changes affecting Operation and
Maintenance Costs; (iii) changes in the Conversion Rate affecting the Conversion
Factor; (iv) changes to the type or rate of taxes affecting the Other Tax Rate,
Income Tax Rate or VAT Rate, (v) changes in various funds which Seller is
5
required to maintain affecting After Tax Enterprise Profit Retention; (vi)
policy-related changes in expenditures (including a Change in Law) affecting any
of the price formula components; and (vii) any other costs not within the
control of Seller (except for increased costs due solely to operations in excess
of the Base Output).
References in this Appendix A to annual periods shall be deemed to refer to the
actual length of the relevant Base Output Period.
6
[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
APPENDIX A1
PROFIT
Chinese Party Registered Capital 132,911 (000 RMB)
Foreign Party Registered Capital 37,364 (000 USD)
Registered Capital Contribution Date 1-Jun-96
Commercial Operation Date 1-Jun-96
Return on Investment During Construction =
Registered Capital Contributed X ([***] ^L)
Where: L equals the number of years of construction
Annual Profit = (Registered Capital contributed + Return on Investment During
Construction) x IRR Factor
Where:
IRR FACTOR = 20 1
E --------------
n=1 1/(1 - [***])n
- --------------------------------------------------------------------------------
Foreign Party Annual Profit Chinese Party Annual Profit
Year Amount (000 USD) Year Amount (000 RMB)
[***] [***] [***] [***]
The above numbers shall be adjusted to reflect the actual amount of Registered
Capital Contributed, the actual date of Registered Capital Contribution and the
actual Commercial Operation Date.
APPENDIX B
POINT OF INTERCONNECTION
The Point of Interconnection shall be at the last transmission line
tower located outside the fence of the Seller's 220 kV switchyard.
APPENDIX C
TECHNICAL LIMITS
1. Electrical System Characteristics
(a) Voltage: 220 kV (equipment should be suitable for grid
voltage variations from 213 kV - 252 kV)
(b) Power Factor: Power factor operating range at the 220 kV Point
of Interconnection is 0.85 (lag) to 1.0 power
factor
(c) Grid Frequency: 50 Hertz + 1.0 Hertz to - 2.0 Hertz
2. Individual Generating Unit Characteristics. The values contained in this
Appendix C are based on acheiving an installed capacity of 115 MW net per
Unit. (Parasitic load has beed deducted)
(a) Capacity of Generating Equipment.
(i) 147 MVA generating capacity
(ii) 125 MW continuous capacity
(iii) Generator step-up transformers are rated 150 MVA.
(b) Minimum Stable Load. The Parties agree not to dispatch the Facility
below 72% load. If the performance test demonstrates that the unit
cannot maintain a stable operation at 72% dispatch without the use of
oil, the Parties will explore whether technological modifications to
the boiler are possible. If such modification is technically
certified that it will not cause damage to the operation of the
boiler, Seller shall make the technological modification to the
Facility, provided, however, if the costs of such modification exceeds
0.1% of the total investment, the Parties agree to settle the problem
through mutual negotiations in the spirit of equality and mutual
respect.
(c) Start-up Times. Start-up times are from boiler light-off to full
load, and do not include time for mobilization and purging, for which
fifteen (15) minutes minimum is required. Start-up times are minimum.
1
Normal Operation
Coal Start from Ambient 10 hours
Warm Start after 40 hours 7 hours
shutdown
Hot Start after 10 hours 4 hours
shutdown
(d) Maximum Loadong and Deloading Rates.
Mode Load Ramp Rate
(MW) (MW/min.)
---- ---- ---------
Cold 0 - 20 0.17
Cold 20 - 125 0.39
2
APPENDIX D
CAPACITY TEST PROCEDURES
1. Guidelines
----------
After a unit is sufficiently complete so that such unit and all systems
associated with it are capable of safe operation in accordance with Prudent
Electrical Practices, Seller shall conduct a capacity test as described
below. Seller shall give Purchaser and the engineer at least five days
prior written notice of the date on which a capacity test will commence.
Purchaser may for reasonable cause defer a capacity test for up to five
days fom the date requested by Seller. Seller, Purchaser and the engineer
shall each designate and make available qualified and authorized
representatives to observe a capacity test as described in this Appendix D,
and to monitor the taking of measurements to determine the level of
achievement. Testing and measuring procedures used in a capacity test shall
be in accordance with Chinese standards and codes. A capacity test may, but
is not required to be, run concurrently with the performance tests under
the construction contracts.
2. Capacity Test.
--------------
A capacity test shall establish the Rated Capacity for a Unit and shall
consist of continuous, full load operation for twenty-four hours. The
result of any capacity test shall be the net electrical capacity averaged
over the duration of the capacity test, expressed in MW and measured at the
Point of Interconnection. Upon the conclusion of the initial capacity test,
Seller may elect to either (a) within five days submit the results of such
capacity test to Purchaser, witha copy to the engineer, or (b) deliver a
notice to Purchaser with a copy to the engineer stating Seller's intention
to perform a second capacity test no earlier than two days and no later
than seven days after the Purchaser's receipt of such notice. If Seller
electes to perform such second capacity test, Seller shall, within five
days after the conclusion of such capacity test submit to Purchaser
('Sellers Notice') with a copy to the engineer, the results of either the
initial capacity test or the second capacity test, as Seller may elect.
3. Notice of Results.
------------------
If Purchaser concurs with the information in Seller's Notice, the engineer
shall, within five days of receipt of Seller's Notice, provide written
notice to Seller and Purchaser certifying the results of the test. If
Purchaser disputes any or all of the results contained in Seller's notice,
representatives of Seller, Purchaser, and the engineer shall meet at a
mutually acceptable location to review and discuss the dispute. Within
fourteen days of receipt of Seller's Notice, the engineer shall decide what
the disputed levels of capacity were.
1
Such decision shall be certified in a notice to Seller and Purchaser and
shall be binding.
4. Achievement of Testing Date.
----------------------------
The testing date of a unit shall be deemed to have occured as of the date
such unit has completed a capacity test, as certified by the engineer.
5. Disposition of Output.
----------------------
At all times during start-up, preliminary testing, capacity tests, or other
operations of a unit in furtherance of achieving the Testing Date of such
unit, Purchaser shall, at no expense to Seller, arrange for the disposition
of each unit's output of electricity.
2
Power Purchase and Sale Contract - Jiaozuo Wan Fang Power Co. Ltd. and Henan Electric Power Corp.
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