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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Year Ended December 31, 1996 Commission File Number 33-59960
SITHE/INDEPENDENCE FUNDING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3677475
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
450 Lexington Avenue, New York, NY 10017
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (212) 450-9000
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
Delaware 33-0468704
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
450 Lexington Avenue, New York, NY 10017
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (212) 450-9000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
7.90% Secured Notes due 2002
8.50% Secured Bonds due 2007
9.00% Secured Bonds due 2013
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. [X] Yes [ ] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will be contained, to the best
of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
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SITHE/INDEPENDENCE FUNDING CORPORATION
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
ANNUAL REPORT ON FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1996
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Page
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PART 1
<S> <C> <C>
ITEMS 1, 2 AND 3. Business, Properties and Legal Proceedings 3
ITEM 4. Submission of Matters to a Vote of Security Holders 12
PART II
ITEM 5. Market for the Registrant's Common Stock and
Related Stockholder Matters (Not applicable) --
ITEM 6. Selected Financial Data 13
ITEM 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 14
ITEM 8. Financial Statements and Supplementary Data 16
ITEM 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 16
PART III
ITEM 10. Directors and Executive Officers of the Registrants 16
ITEM 11. Executive Compensation 18
ITEM 12. Security Ownership of Certain Beneficial Owners and
Management 18
ITEM 13. Certain Relationships and Related Transactions 19
PART IV
ITEM 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 19
Signatures 25
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PART I
ITEMS 1, 2 AND 3. BUSINESS, PROPERTIES AND LEGAL PROCEEDINGS
THE PARTNERSHIP
Sithe/Independence Power Partners, L.P. (the "Partnership") was formed
to develop, construct and own a natural gas-fired cogeneration facility having a
design capacity of approximately 1,000 megawatts ("MW") located in the Town of
Scriba, County of Oswego, New York (the "Project"). Cogeneration is a power
production technology that provides for the sequential generation of two or more
useful forms of energy (in the Project's case, electricity and thermal energy)
from a single primary fuel source (in the Project's case, natural gas). The
Partnership is a Delaware limited partnership formed in November 1990 by
Sithe/Independence, Inc. (the "General Partner"), its sole general partner. The
overall strategy of the Partnership is to operate the Project as one of the most
reliable, economically efficient and environmentally clean fossil-fueled
electrical power plants in the United States. The Project began commercial
operation for financial reporting purposes on December 29, 1994.
The General Partner is an indirect wholly-owned subsidiary of Sithe
Energies, Inc. ("Sithe Energies"). The limited partners of the Partnership are
Sithe Energies and certain of its direct and indirect wholly-owned subsidiaries
(the "Limited Partners"). The General Partner and the Limited Partners are
referred to herein as the "Partners." Sithe Energies, which was founded in 1984,
is an independent power producer engaged in the development, construction,
ownership and operation of electric generating facilities throughout the United
States and in selected international power markets. At December 31, 1996, Sithe
Energies owned or leased, through its subsidiaries, 22 operating power plants,
in addition to the Project, in the United States and Canada with an installed
capacity of 752 MW. As of December 31, 1996, Sithe Energies' approximately 160
MW Smithfield gas-fired cogeneration project outside Sydney, Australia was under
construction with commercial operation anticipated in the second quarter of
1997. Sithe Energies has several projects under development in the United States
and is actively pursuing a number of development projects in numerous
international power markets including Australia, Thailand, the Philippines,
Pakistan and South America and in China through its Asian joint venture with the
AIG Asian Infrastructure Fund and the Government of Singapore Investment
Corporation.
Sithe Energies owns, directly or indirectly, 100% of the partnership
interests in the Partnership. The following chart sets forth the organizational
structure of the Partners in the Partnership and of the other affiliates of
Sithe Energies involved with the Partnership.
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Sithe Energies, Inc.
- ----------------------------- (Limited Partner)
| -------------------------------------------
| | |
| 100% 100%
| Sithe Energies U.S.A., Inc. Energy Factors, Inc.
| (Limited Partner)
| ----------------------------------- ---------------------
| | | | |
| 100% | 100% 100%
| Mitex, Inc. | Sithe/Independence, Inc. Sithe Energies Power
| (Limited Partner) | (General Partner) Services, Inc.
| | | | (Operator)
| | | |
| | | |
45% 10% 44% 1%
| | | |
- ----------- The Partnership -------
|
100%
Sithe/Independence
Funding Corporation
Sithe Energies is privately owned 61.3% by Compagnie Generale des Eaux
("CGE"), 27.6% by Marubeni Corporation ("Marubeni"), and 11.1% by its other two
founders. CGE is one of France's leading municipal services companies and the
world's largest water distribution company. Marubeni is one of Japan's leading
general trading companies.
Sithe/Independence Funding Corporation ("Sithe Funding"), a Delaware
corporation, was established for the sole purpose of issuing the 7.90% Notes due
2002, the 8.50% Bonds due 2007 and the 9.00% Bonds due 2013 (collectively, the
"Securities") for its own account and as agent acting on behalf of the
Partnership. Sithe Funding loaned the proceeds of the sale of the Securities to
the Partnership (the "Loans"), which applied the proceeds of such Loans to the
development and construction of the Project. The terms of the Loans are
identical to the terms of the Securities. The Loans are the only assets of Sithe
Funding.
The Securities are not guaranteed by or otherwise obligations of Sithe
Energies, CGE or Marubeni or any affiliate of Sithe Energies, CGE or Marubeni
other than Sithe Funding and the Partnership.
THE PROJECT
The Project is a natural gas-fired cogeneration facility having a
design capacity of approximately 1,000 MW. The Project is located on an
approximately 340-acre site adjacent to the Alcan Aluminum Corporation (doing
business as Alcan Rolled Products Company ("Alcan")) plant in the Town of
Scriba, County of Oswego, New York, approximately two miles northeast of Oswego,
New York. The Project consists of four General Electric Model MS7001FA
combustion gas turbine generators designed to generate approximately 160 MW each
at their design point conditions, four heat recovery steam generators ("HRSG"),
two steam turbines designed to generate 208 MW each and air quality control
systems to reduce the nitrous oxide and other emissions of the Project.
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The majority of the capacity and electric energy generated by the
Project is sold to Consolidated Edison Company of New York, Inc. ("Con Edison")
and Alcan with the remainder of the electric energy being sold to Niagara Mohawk
Power Corporation ("Niagara Mohawk"). The electric energy sold to Con Edison is
transported by Niagara Mohawk through Niagara Mohawk's electric transmission
system. Thermal energy generated by the Project is sold to Alcan. Natural gas
supplies to fuel the Project are provided by Enron Power Services, Inc. ("Enron
Power Services"), an indirect wholly-owned subsidiary of Enron Corp., and are
transported to the Project by seven separate pipeline companies. Each of the
principal contracts entered into by the Partnership (other than the Construction
Contract) has a term of 20 years or longer from the date the Project was placed
into commercial operation.
For the portion of the capacity not already committed, the Project may,
from time to time, enter into short- or long-term capacity sales of electricity
to Con Edison, Niagara Mohawk or others, subject to certain restrictions set
forth in the Trust Indenture dated as of January 1, 1993 entered into by Sithe
Funding, the Partnership and IBJ Schroder Bank & Trust Company (the
"Indenture").
The Partnership has designed the Project as a qualifying facility ("QF"
or "Qualifying Facility") under the Public Utilities Regulatory Policies Act of
1978 ("PURPA") and the regulations promulgated thereunder. Accordingly, the
Project must satisfy certain annual operating and efficiency standards in order
to maintain QF status.
The Project was designed, constructed, equipped and tested pursuant to
a fixed-price (approximately $505 million, including change orders) turnkey
design and construction agreement (the "Independence Construction Contract")
among Raytheon Constructors Inc. and General Electric Company (collectively, the
"Independence Contractors") and the Partnership. The Independence Contractors
and the Partnership are currently discussing remaining punchlist items and the
amount of liquidated damages and performance bonuses which may be payable or
receivable, respectively, in final settlement under the Independence
Construction Contract.
OPERATIONS AND MAINTENANCE
The Project is operated by Sithe Energies Power Services, Inc.
(the "Operator"), a wholly-owned subsidiary of Sithe Energies, pursuant
to an Operations and Maintenance Agreement. The Operations and
Maintenance Agreement terminates on October 31, 2014.
The Operator has agreed to operate the Project, to provide all
operations and maintenance services necessary or advisable in order to
efficiently operate and maintain the Project, and to be liable for all expenses
relating to operating, maintaining and managing the Project. The Partnership
pays the Operator an annual management fee of $525,000, escalating at 5% per
annum, and reimburses the Operator on a monthly basis for all direct and
indirect necessary costs and expenses reasonably incurred by the Operator in
fulfilling its obligations under the Operations and Maintenance Agreement.
SALE OF CAPACITY AND ELECTRICITY
The majority of the capacity and electric energy generated by the
Project is sold to Con Edison and Alcan, with the remainder of the electric
energy being sold to Niagara Mohawk. Accordingly, the Partnership depends on one
purchaser for a major portion of the Project's capacity, on one purchaser
currently for all energy required to maintain the status of the Project as a
Qualifying Facility and currently on two electric energy purchasers for
substantially all of the electricity to be produced by the Project.
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Con Edison
Pursuant to the terms of the Con Edison Energy Purchase Agreement, Con
Edison is obligated to purchase for a term of 40 years following the Date of
Commercial Operation of the Project 740 MW of the Project's capacity and all of
the electrical energy to be derived therefrom up to a maximum in any hour
produced by the Project at a temperature-adjusted summer dependable maximum net
capacity ("Summer DMNC") level of 740 MW plus two percent. During the first five
years of the operation of the Project (the "First Period"), Con Edison is
obligated to pay for the first 6.6 billion kilowatt-hours ("KWH") of electricity
delivered to Con Edison in any Annual Period at a price equal to the sum of (a)
100% of Actual Con Edison Avoided Energy Costs and (b) $0.026/KWH. For each KWH
in excess of 6.6 billion KWH in any Annual Period, Con Edison is obligated to
pay a price equal to 93.75% of Actual Con Edison Avoided Energy Costs. The
payments for electricity during the remainder of the contract are equal to
93.75% of Actual Con Edison Avoided Energy Costs in years six through 20 of the
contract term (the "Second Period") and 88.75% of Actual Con Edison Avoided
Energy Costs in years 21 through 40 of the contract term (the "Third Period").
In addition to payments for electricity delivered to Con Edison, during the
Second Period, Con Edison will be obligated to make monthly capacity payments in
an amount equal to the product of (a) the Summer DMNC of the Dedicated Plant
applicable to such month, (b) the Equivalent Availability Ratio applicable to
such month and (c) a fixed capacity charge equal to $6.7455/kilowatt ("KW").
During the Third Period, Con Edison will be obligated to make monthly capacity
payments in an amount equal to the product of (a) the Summer DMNC of the
Dedicated Plant applicable to such month, (b) the Equivalent Availability Ratio
applicable to such month and (c) a fixed capacity charge equal to $3.3727/KW.
During the Second Period, Con Edison will also be obligated to make payments for
operation and maintenance at a price equal to $0.01/KWH during calendar year
2000 escalating on the first day of each calendar year thereafter during the
remainder of the Second Period with the index contained in the Con Edison Energy
Purchase Agreement. During the Third Period, Con Edison will also be obligated
to make payments for operation and maintenance at a price equal to one-half of
the per KWH price during the last calendar year of the Second Period escalating
on the first day of each calendar year during the Third Period with the index
contained in the Con Edison Energy Purchase Agreement. Con Edison has the option
to terminate the power sales contract with the Partnership upon satisfaction of
certain conditions including assuming all of the Partnership's financial and
contractual obligations related to the Project and paying an amount to the
Partnership determined by a formula based on estimated future revenues and
expenses under the contract. (Terms not defined in this section have the
respective meanings set forth in the Con Edison Energy Purchase Agreement.)
Niagara Mohawk
Under the Niagara Mohawk Power Purchase Agreement, Niagara Mohawk will
purchase all of the electricity delivered to Niagara Mohawk by the Project, up
to a maximum of three million megawatthours ("MWH") of electricity in any
calendar year (provided the Project does not deliver electricity at a rate in
excess of 300 MW in any hourly period, or such greater amount as may be accepted
by Niagara Mohawk). The Niagara Mohawk Power Purchase Agreement has a term of 20
years from the date on which the Partnership commences deliveries of commercial
quantities of electricity to Niagara Mohawk on a continuous basis. Niagara
Mohawk will purchase electricity at its "energy only" rate, which is Niagara
Mohawk's Public Service Commission of the State of New York ("PSC") filed tariff
for the purchase of electricity from on-site generators, such as the
Partnership, in effect at the time of delivery of electrical energy to Niagara
Mohawk. Niagara Mohawk has no right of first refusal for any additional
electricity or capacity to be sold by the Partnership.
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A petition requesting permission to curtail (i.e., limit or suspend)
purchases of power from independent power producers was filed by Niagara Mohawk,
and the PSC instituted a proceeding to consider the merits of the petition. In
August 1996, the PSC issued a notice inviting comments regarding whether and
when utilities should be permitted to curtail purchases from independent power
producers. In December 1996, the Partnership submitted comments to the PSC with
respect to this matter but the PSC has not yet issued an order. The
Partnership's power sales contract with Niagara Mohawk covers up to
approximately 300MW in any hourly period. A decision by the PSC permitting
Niagara Mohawk to implement curtailment could adversely affect the operating
revenue of the Project.
Alcan
Alcan, a subsidiary of Alcan Aluminum Limited, owns and operates an
aluminum production facility adjacent to the Project site. The Alcan facility
engages in the production and recycling of aluminum alloys and rolled aluminum
which are used principally in the beverage container industry.
Pursuant to the terms of the Alcan Energy Sales Contract, the
Partnership has agreed for a period of 22 years from the commencement of
commercial operation of the Project to sell to Alcan up to 44 MW of the
Project's capacity and associated energy. In addition, the Partnership has
agreed to supply and, subject to the terms and provisions of the Alcan Energy
Sales Contract, Alcan has agreed to purchase thermal energy on a firm,
non-interrupted basis in an amount equal to 1.618 trillion British Thermal Units
("Btus") per year of operation.
On September 8, 1994, the PSC issued a certificate of public convenience
and necessity ("CPCN") permitting the Partnership to make retail sales of
electricity to Alcan and to a containerboard recycling facility being developed
by a partnership of paper industry companies, and invited comment on an
appropriate and equitable equalization fee that would be paid by the Partnership
to Niagara Mohawk. On September 29, 1994, the PSC issued an order establishing
an equalization fee with a present value of $19.6 million, which the Partnership
has elected to pay in equal annual amounts of approximately $3 million for ten
years, beginning on December 31, 1995. The order establishing the equalization
fee also contains provisions for the amount of such fee to be reconsidered if
the containerboard facility or a facility of comparable economic development is
not developed.
ELECTRICAL INTERCONNECTION AND TRANSMISSION
Niagara Mohawk's transmission lines have been interconnected to the
Project through the construction of the facilities necessary to effect the
transfer of electricity produced at the Project into Niagara Mohawk's
transmission system (the "Interconnection Facilities"). Pursuant to the
Interconnection Agreement between the Partnership and Niagara Mohawk, the
Partnership has agreed to reimburse Niagara Mohawk for all reasonable costs
incurred by Niagara Mohawk in connection with operation and maintenance of the
Interconnection Facilities. The Interconnection Agreement will terminate 20
years from the Date of Commercial Operation.
Pursuant to the Transmission Services Agreement, Niagara Mohawk has
agreed to provide transmission services from the Project to the point of
interconnection between Niagara Mohawk's transmission system and Con Edison's
transmission system (the "Con Edison Interconnection") for a period of 20 years
from the Date of Commercial Operation. The agreement specifies that Niagara
Mohawk will be obligated to transmit up to 805 MW of electricity to the Con
Edison Interconnection, subject to interruption if required to meet the demands
of its retail customers, its current wholesale customers and its obligations to
the New York Power Pool. The Partnership has the ability to increase this amount
by up to 2% per annum, up to a maximum of 853 MW of electricity. To the extent
that Niagara Mohawk has excess capacity on its transmission system, it has
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agreed to accommodate the Project's additional transmission requirements. On
March 29, 1995, the Partnership filed a petition with the Federal Energy
Regulatory Commission (the "FERC") alleging that Niagara Mohawk has been
overcharging the Partnership for the transmission of electricity in violation of
FERC policy by calculating transmission losses on an incremental basis. The
Partnership believes that transmission losses should be calculated on an average
basis. The Partnership has been recording its transmission expense at the
disputed, higher rate. As of December 31, 1996, the Partnership estimates it was
owed approximately $5.6 million for transmission overcharges. The Partnership
requested that FERC order Niagara Mohawk to recalculate the transmission losses
beginning in October 1994, when it began wheeling power from the Project. In
September 1996, the FERC issued an order dismissing the Partnership's complaint
and requiring Niagara Mohawk to provide the Partnership with information
regarding the calculation of transmission losses. In October 1996, the
Partnership filed a request for rehearing of the FERC's order. The FERC has yet
to act on this request.
GAS SUPPLY AGREEMENT
Natural gas for the Project is supplied by Enron Power Services
pursuant to the Gas Supply Agreement (the "Gas Supply Agreement") between Enron
Power Services and the Partnership. The Gas Supply Agreement provides that, for
a period of 20 years following the Date of Commercial Operation, Enron Power
Services is obligated to deliver to the Partnership up to a maximum of 192,291
million Btus ("MMBtus") of natural gas per day, which represents the Project's
daily fuel requirement when operating at design conditions. The Partnership is
obligated to purchase a sufficient amount of natural gas each month so that its
daily average for the month is at least 159,600 MMBtus and the Partnership is
obligated to purchase a sufficient amount of natural gas each year so that its
daily average for the year is at least 173,061 MMBtus of natural gas. During the
First Period, the price to be paid by the Partnership for 116,000 MMBtus of
natural gas per day (the "Tier I" gas) is fixed on an increasing-rate basis as
specified in the Gas Supply Agreement. During the remainder of the term of the
Gas Supply Agreement, the price of Tier I gas will fluctuate based on Actual Con
Edison Avoided Energy Costs, as well as the price paid by Con Edison to the
Project. The remaining 76,291 MMBtus of gas per day will be priced in relation
to Niagara Mohawk's "energy only" electric rate.
Enron Power Services will maintain a notional tracking account to
account for differences between the contract price and spot gas prices, except
that there will be no such tracking with respect to the Tier I gas during the
first five years of the Gas Supply Agreement. The tracking account would be
increased if the then current spot gas price is greater than the contract price
and would be decreased if the then current spot gas price is lower than the
contract price. The tracking account bears interest at 1% over prime. Enron
Power Services has been given a security interest in the plant, which is
subordinated to payments for the Securities and certain letter of credit
reimbursement obligations, to secure any tracking account balance. If at any
time the tracking account balance exceeds 50% of the plant's then fair market
value, the Partnership will be required to reduce the tracking account balance
by paying to Enron Power Services the lesser of (a) the amount necessary to
reduce the tracking balance to 50% of the plant's fair market value and (b) (i)
during years 6 through 15 of the Gas Supply Agreement, all incremental revenues
as defined in the Gas Supply Agreement and (ii) thereafter 50% of qualifying
cash flows also as defined in the Gas Supply Agreement plus all incremental
revenues. If a positive balance exists in the tracking account at the end of the
contract term, the Partnership will be required to either pay the balance in the
tracking account or to convey to Enron Power Services an equity ownership in the
Project based on the ratio of the tracking account balance to the plant's fair
market value at such time.
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GAS TRANSPORTATION AGREEMENTS
The Partnership has entered into gas transportation agreements with
seven pipeline companies in order to transport, on a firm basis, the natural gas
purchased pursuant to the Gas Supply Agreement. Each of the gas transportation
agreements entered into by the Partnership has a 20-year term from the Date of
Commercial Operation, and together the agreements will provide for sufficient
transportation capacity to supply the Project with all of its anticipated
natural gas requirements. In addition to Niagara Mohawk, the other parties to
the gas transportation agreements are Union Gas Limited, Panhandle Eastern
Pipe Line Company, ANR Pipeline Company, Empire State Pipeline, Great Lakes
Gas Transmission Limited Partnership and TransCanada Pipelines Limited.
COMPETITION
Many organizations, including equipment manufacturers and subsidiaries
of utilities and contractors, as well as other organizations similar to Sithe
Energies, have entered the cogeneration market. The resultant increased
competition has reduced the price utilities are willing to pay to independent
power producers for electrical capacity and energy. These factors may adversely
affect the price the Partnership may be paid under the Energy Purchase
Agreements (due to potential declines in a utility's long run avoided cost).
BUSINESS
GENERAL
The Partnership's sole business is the ownership of the Project. The
Partnership has long-term contracts to sell capacity and electricity produced by
the Project to Con Edison and Alcan, electricity to Niagara Mohawk and thermal
energy to Alcan. The Project is located on an approximately 340-acre site,
located in the Town of Scriba, County of Oswego, New York, approximately two
miles northeast of Oswego, New York. The site is bounded on the north by Lake
Ontario. Alcan owns and operates a facility adjacent to the site for the
production of rolled aluminum stock which is used principally in the production
of beverage containers.
The Project consists of the following equipment, systems and
facilities:
* Four General Electric Model MS7001FA combustion gas turbine
generators, each able to produce approximately 160 MW of
electricity under design point conditions;
* Four Henry Vogt Machine Company HRSGs which create thermal energy
using heat from the turbine exhaust;
* Two General Electric steam turbines which are able to produce an
additional 208 MW each of electricity under design point
conditions from the thermal energy generated by the HRSGs;
* Air quality control systems; and
* Various associated equipment and improvements, including a
demineralization system to produce high purity water for use in
creating steam, wastewater collection and treatment facilities and
two 345kV transmission circuits.
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The Project was designed to have an average net electrical output
available to customers of 963 MW and an average steam flow of up to 235,000
lbs./hr. The performance of the Project is dependent on ambient conditions,
which affect the combustion turbine efficiency and capacity. Ambient conditions
also affect the steam turbine cycle efficiency by affecting the operation of the
cooling tower and the circulating water temperature, and therefore the condenser
pressure.
EMPLOYEES
The Partnership has no employees. The Operator provides operations and
maintenance services and certain management and administrative support for the
Project.
As of December 31, 1996, the Operator employed 43 individuals in
connection with the Project.
LEGAL PROCEEDINGS
Other than the Partnership's petition with FERC alleging that Niagara
Mohawk has been overcharging the Partnership for the transmission of
electricity, neither Sithe Funding nor the Partnership is a party to any legal
proceedings.
REGULATION
ENERGY REGULATION
PURPA. PURPA and the regulations promulgated thereunder provide an
electric generating project with rate and regulatory incentives if the project
is a Qualifying Facility. A cogeneration facility is a Qualifying Facility if it
(i) sequentially produces both electricity and a certain quantity of useful
thermal energy which is used for industrial, commercial, heating or cooling
purposes, (ii) meets certain energy efficiency standards when oil or natural gas
is used as a fuel source and (iii) is not more than 50% owned by an electric
utility, electric utility holding company or an entity or person owned by either
of the above.
Under PURPA and the regulations promulgated thereunder, Qualifying
Facilities receive two primary benefits. First, PURPA and the regulations
promulgated thereunder exempt Qualifying Facilities from the Public Utility
Holding Company Act of 1935 ("PUHCA"), most provisions of the Federal Power Act
(the "FPA") and certain state laws relating to securities, rate and financial
regulation. Second, FERC's regulations promulgated under PURPA require that (i)
electric utilities purchase electricity generated by Qualifying Facilities,
construction of which commenced on or after November 9, 1978, at a price based
on the purchasing utility's full "avoided costs," and (ii) the utilities sell
supplementary, back-up, maintenance and interruptible power to the Qualifying
Facility on a just and reasonable and non-discriminatory basis. PURPA and the
regulations promulgated thereunder define "avoided costs" as the "incremental
costs to an electric utility of electric energy or capacity or both which, but
for the purchase from the qualifying facility or qualifying facilities, such
utility would generate itself or purchase from another source". Utilities may
also purchase power at prices other than "avoided costs" pursuant to
negotiations with potential suppliers as provided by FERC regulations.
The Project currently meets all of the criteria for a Qualifying
Facility under PURPA and the regulations promulgated thereunder. If at any time
the Project were to fail to meet such criteria, the Partnership may become
subject to regulation as a public utility company under PUHCA, the FPA and state
utility laws.
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PUHCA. PUHCA provides that any corporation, partnership or other entity
or organized group which owns, controls or holds power to vote 10% of the
outstanding voting securities of a "public utility company" or a company which
is a "holding company" of a public utility company is subject to registration
with the Securities and Exchange Commission (the "Commission") and PUHCA
regulation, unless eligible for an exemption or unless a Commission order
declaring it not to be a holding company is granted. PUHCA requires registration
for a holding company of a public utility company, and requires a public utility
holding company to limit its utility operations to a single integrated utility
system and to divest any other operations not functionally related to the
operation of the utility system. In addition, a public utility company which is
a subsidiary of a registered holding company under PUHCA is subject to financial
and organizational regulation, including approval by the Commission of its
financing transactions.
The Energy Policy Act of 1992 (the "Policy Act") contains amendments to
PUHCA that may allow the Partnership to operate its business without becoming
subject to PUHCA in the event the Project loses its status as a Qualifying
Facility. Under the Policy Act, a company engaged exclusively in the business of
owning and/or operating a facility used for the generation of electric energy
exclusively for sale at wholesale may be exempted from PUHCA. In order to
qualify for such an exemption, a company must apply to the FERC for a
determination of eligibility, pursuant to implementing rules that the FERC will
promulgate. Although the Policy Act and its implementing rules may exempt the
Partnership from PUHCA in the event that Qualifying Facility status is lost, the
Policy Act may also encourage greater competition in wholesale electricity
markets, which could result in a decline in long-term rates to be paid by
electric utilities such as Con Edison and Niagara Mohawk.
FPA. Under the FPA, FERC has exclusive rate-making jurisdiction over
wholesale sales of electricity and transmission in interstate commerce. These
rates may be based on a cost of service approach or may be determined through
competitive bidding or negotiation. If the Project were to lose its Qualifying
Facility status, the rates set forth in each of the Energy Purchase Agreements
would have to be filed with FERC and would be subject to review by FERC under
the FPA. The Con Edison Energy Purchase Agreement and the Niagara Mohawk Power
Purchase Agreement contain provisions for a reduction in the rates to be paid
for electric energy in such event.
State Regulation. The Project, by virtue of being a Qualifying
Facility, is exempt from New York State rate, financial and organizational
regulations which are applicable to a public utility. The PSC's general
supervisory powers relating to environmental and safety matters apply to
Qualifying Facilities.
Wheeling and Interconnection. Under Section 201 of the FPA, FERC
regulates the rates, terms and conditions for the transmission of electric
energy in interstate commerce. This has been interpreted to mean that FERC has
jurisdiction when the transmission system is interconnected and capable of
transmitting energy across a state boundary, even if the utility has no direct
connection with another utility outside its state but is interconnected with
another utility which in turn has interstate connections with other utilities.
Accordingly, the rates to be paid by the Partnership to Niagara Mohawk under the
Transmission Services Agreement are subject to the jurisdiction of FERC under
the FPA. Niagara Mohawk has obtained approval by FERC of the Transmission
Services Agreement under the FPA, but has reserved the right to apply for future
changes in rates under the FPA. The Interconnection Agreement, which is subject
to review under Sections 205 and 206 of the FPA, was accepted by the FERC in the
fall of 1993.
The FERC's authority under the FPA to require electric utilities to
provide transmission service to Qualifying Facilities and other wholesale
electricity producers has been significantly expanded by the Policy Act.
Pursuant to the Policy Act, the Partnership may apply to the FERC for an order
requiring a utility to provide transmission services. The FERC may issue such an
order provided that the reliability of the affected electric systems would not
be unreasonably impaired.
11
<PAGE>
The Policy Act may enhance the Partnership's ability to obtain transmission
access necessary to sell electric energy or capacity to purchasers other than
Con Edison or Niagara Mohawk. However, there is no assurance that the rates for
such transmission service would be economical for the Partnership. The Policy
Act may also result in greater competition among wholesale electric energy
producers.
IDA AGREEMENTS
The Partnership has leased the Project site to the County of Oswego
Industrial Development Agency (the "IDA") pursuant to a ground lease between the
Partnership and the IDA (the "IDA Lease"). The IDA has leased the site back to
the Partnership pursuant to a sublease agreement between the Partnership and the
IDA (the "IDA Sublease"). The IDA's participation in the Project exempts the
Project from certain mortgage recording taxes, certain state and local real
property taxes and certain sales and use taxes within New York State. The
Partnership has also entered into an agreement whereby the Partnership will be
required to make payments in lieu of property taxes during the term of the IDA
Lease and IDA Sublease.
The IDA is a corporate governmental agency, constituting a public
benefit corporation of the State of New York. It is authorized to promote,
attract, encourage and develop economically sound commerce and industry for the
purpose of preventing unemployment and economic deterioration. The IDA is
authorized to lease real property interests and industrial and commercial
facilities and may exercise appropriate financing powers, including the granting
of mortgages and indentures of mortgage.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the security holders of the
Partnership during the fourth quarter of 1996.
12
<PAGE>
PART II
ITEM 6. SELECTED FINANCIAL DATA
The Partnership was in the development stage from its inception in
November 1990 through December 29, 1994. All construction costs and all project
development costs incurred subsequent to obtaining the Con Edison Energy
Purchase Agreement in 1991 were capitalized. Statement of Operations Data is
presented for 1996, 1995, 1994 and 1993 only since the Partnership did not have
expenses or income prior to 1993.
The selected financial data have been derived from the audited
consolidated financial statements of the Partnership.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------
1996 1995 1994 1993
---- ---- ---- ----
(in thousands)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA (a)
Revenue $379,024 $335,844 $ 2,749 $ --
Operating income 120,211 89,886 1,064 --
Non-operating income and expense:
Interest (expense) (63,441) (64,261) (13,910) (33,969)
Interest and other income, net 4,187 4,525 5,704 13,703
Net income (loss) 60,957 30,150 (7,142) (20,266)
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
(in thousands)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Property, plant and equipment $723,188 $737,716 $752,820 $490,272 $163,753
Total assets 867,471 845,888 794,063 779,977 167,363
Long-term debt 688,201 698,405 702,333 717,241 --
Partners' capital (deficiency) 123,699 62,734 (7,631) (266) --
<FN>
- --------------------
(a) The Partnership commenced commercial operation for financial reporting
purposes on December 29, 1994. The net losses for 1994 and 1993 are
attributable to the net interest expense resulting from the excess of the
8.65% weighted average interest rate on the Securities over the rate
earned on the investment of the unspent construction funds which was
required to be charged against income.
</TABLE>
13
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
The Partnership was formed to develop, construct and own the Project.
The Partnership was in the development stage from its inception, November 1,
1990, through December 29, 1994, when the Project commenced commercial operation
for financial reporting purposes.
RESULTS OF OPERATIONS -- 1996, 1995 AND 1994
Revenue and cost of sales for 1996 increased by $43.1 million (13%) and
$12.9 million (5%), respectively, over 1995. Revenue increased as a result of
higher avoided cost based tariff prices on energy deliveries to Con Edison, a
1995 tariff adjustment payment from Con Edison, overall higher plant
availability and incremental revenue from selling gas instead of generating
electricity at certain times during 1996. The increase in cost of sales was
primarily attributable to higher fuel costs reflecting higher quantities and the
scheduled increase in the price of gas associated with energy deliveries to Con
Edison. As a result of these factors, operating income for 1996 increased by
$30.3 million (34%) over 1995.
Interest expense for 1996 decreased by $.8 million (1%) from
1995 as a result of lower outstanding amounts of long-term debt.
Interest and other income, net, for 1996 consisted of interest income.
Interest and other income, net for 1995 consisted of $2.6 million of interest
income, $2.1 million of income from a natural gas arbitrage transaction and $.2
million of realized losses on short-term investments designated for
construction.
For the period December 29, 1994 through December 31, 1994, the
Partnership had revenues of $2.7 million, costs of sales of $1.7 million and
operating income of $1.1 million. Net interest expense subsequent to December
28, 1994 was $.5 million.
Results of operations for 1994 were affected by the recognition of
interest expense required with respect to the "negative interest arbitrage"
associated with the financing and construction of the Project. The net interest
expense resulting from the excess of the 8.65% weighted average interest rate on
the Securities over the rate earned on the investment of the unspent
construction funds is required to be charged against income. In 1994, this net
interest expense amounted to $7.7 million. The Indenture restricts the
investment of unspent construction funds to high quality, short-term financial
instruments.
LIQUIDITY AND CAPITAL RESOURCES
Financing for the Project consisted of a loan to the Partnership by
Sithe Funding of the proceeds of its issuance of $717.2 million of notes and
bonds and $60 million of capital contributions by the Partners. In addition, the
Partners obtained a credit facility under which one or more letters of credit
may be issued in connection with their obligations pursuant to certain Project
contracts, and, as of December 31, 1996, letters of credit aggregating $16.1
million were outstanding in connection with such obligations. Also, the
Partnership secured the Project's debt service obligations with a letter of
credit in the amount of $50 million and as of December 31, 1996 had sufficient
restricted cash on hand to meet its cumulative additional debt service reserve
and major overhaul reserve funding requirements as of such date of $22.0 million
and $5.1 million, respectively. To secure the Partnership's obligation to pay
any amounts drawn under the debt service letter of credit, the letter of credit
14
<PAGE>
provider has been assigned a security interest and lien on all of the
collateral in which the holders of the Securities have been assigned a security
interest and lien.
The Partnership presently believes that funds available from cash on
hand, restricted funds, operations and the debt service letter of credit will be
more than sufficient to liquidate Partnership obligations as they come due, pay
1997 Project debt service and make 1997 required contributions to project
reserve accounts.
Although the Partnership's net income could decline over the next three
years due largely to Tier I gas pricing increasing at a greater rate than
increases in the energy component of billings to Con Edison, the Partnership
believes that cash flow will be more than sufficient to pay scheduled debt
service.
15
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO FINANCIAL STATEMENTS
The index to financial statements appears on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
All management functions of the Partnership are the responsibility of
the General Partner.
The following table sets forth certain information with respect to
directors and executive officers of Sithe Funding and the General Partner:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
William Kriegel 51 Chairman of the Board, Chief
Executive Officer and President
Bruce J. Wrobel 39 Executive Vice President
Steven D. Burton 49 Secretary, General Counsel and
Director
Richard J. Cronin III 50 Chief Financial Officer, Senior
Vice President and Director
Frank J. Donohoue 49 Senior Vice President for Construction
Ralph J. Grutsch 64 Senior Vice President for Operations
Sandra J. Manilla 45 Treasurer and Vice President
W. Harrison Wellford 56 Director
</TABLE>
William Kriegel founded Sithe Energies in 1984 and has been Chairman of
the Board, President and Chief Executive Officer of Sithe Energies since that
time. Mr. Kriegel also serves in such capacities for each of the Limited
Partners and the Operator. Prior to coming to the United States in 1984, Mr.
Kriegel co-founded an unaffiliated French energy company that within three years
of its formation in 1980 became France's largest privately-owned company engaged
in the development of small hydroelectric projects. In 1978, he co-founded
S.I.I.F., S.A., an unaffiliated company specializing in the purchase and
rehabilitation of residential buildings and historical properties in France.
Bruce J. Wrobel has served as Executive Vice President in charge of
project development and finance activities for Sithe Energies since January
1986. Mr. Wrobel also serves in such capacity for each of the Limited Partners
and the Operator. From 1980 to 1986, he was Vice President for business
development and project finance at Mitex, an alternative energy development
company which was co-founded by Mr. Wrobel and acquired by Sithe Energies in
1986. Prior to 1980, he was with Temple, Barker & Sloan as a member of its
Energy Strategy and Management Group.
16
<PAGE>
Steven D. Burton has been Secretary and General Counsel of Sithe
Energies since January 1987. Mr. Burton also serves in such capacities for each
of the Limited Partners and the Operator. From 1984 to 1986, he was a consultant
to Sithe Energies while he was a Vice President and General Counsel of
Winner/Wagner & Associates, Inc., a communications and political consulting firm
which specializes in energy related issues. Prior to entering private practice,
he served as Chief Counsel to the California Air Resources Board. Mr. Burton is
a director of the National Independent Energy Producers Association, a trade
association working with companies committed to shaping the long-term future of
competitive electric power generation, and served as its Chairman from April
1991 to April 1993. He is also President of the Independent Power Producers of
New York. He has served as a sub-committee Vice Chairman of the Energy Committee
of the Bar Association of the City of New York and as a Vice Chairman of the
American Bar Association's Special Committee on Energy Finance.
Richard J. Cronin III has been Senior Vice President since September
1996 and Chief Financial Officer and Vice President of Sithe Energies since
September 1990. Mr. Cronin also serves in such capacities for each of the
Limited Partners and the Operator. From September 1986 to September 1990, Mr.
Cronin was Vice President and Director of Financial Reporting at Drexel Burnham
Lambert, Inc., a financial services company. His prior financial experience, in
reverse chronology, includes eight years at Freeport-McMoRan, Inc., three years
at American Electric Power, Inc. and five years at Coopers & Lybrand.
Frank J. Donohue joined Sithe Energies as Senior Vice President for
Construction in March 1992. Mr. Donohue has over 18 years of experience in heavy
industrial construction and construction contract negotiation and management.
From 1977 until 1992, he was with Century Contractors West, Inc. where, as Vice
President of Operations, he had direct responsibility for construction projects,
including nine cogeneration projects representing over 1,500 MW of capacity.
Ralph J. Grutsch is Senior Vice President for Operations and has been
with Sithe Energies since its acquisition in 1988 of Energy Factors,
Incorporated, which was a publicly-held independent energy producer and of which
he was a co-founder. Mr. Grutsch also serves in such capacity for each of the
Limited Partners and the Operator. Mr. Grutsch served as President and Chief
Operating Officer of Energy Factors immediately prior to its acquisition by
Sithe Energies. From 1964 until 1983, Mr. Grutsch was with Solar Turbines,
Incorporated where he held numerous management positions ultimately serving as
Senior Vice-President-Marketing and director of that company.
Sandra J. Manilla joined Sithe Energies in September 1986 and has been
Vice President since September 1996 and Treasurer since May 1990. Ms. Manilla
also serves in such capacities for each of the Limited Partners and the
Operator. From 1979 until 1986, she worked in Deloitte & Touche's consulting
group where she managed several financial consulting engagements with the
Government. From 1976 until 1979, Ms. Manilla was Assistant to the Special
Deputy Comptroller of New York City and, prior to that, spent three years on
Citicorp's internal audit staff.
W. Harrison Wellford is currently a partner in the law firm of Latham &
Watkins and specializes in energy, trade, and environmental law. During the
transition from the Bush to Clinton administration, he served as White House
transition adviser and as a member of the Economic Policy Group. From 1977 to
1981, he served as Executive Director of the Office of Management and Budget in
the White House. Mr. Wellford is also a fellow of the National Academy of Public
Administration.
17
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
No cash compensation or non-cash compensation was paid in 1996 or is
proposed to be paid in the current calendar year to any of the executive
officers listed under Item 10. "DIRECTORS AND EXECUTIVE OFFICERS OF THE
REGISTRANT" for their services to Sithe Funding, the Partnership or the General
Partner. Operations and maintenance services for the Project are performed on a
cost reimbursement basis by the Operator pursuant to the Operations and
Maintenance Agreement. In addition, the Operator receives a $525,000 annual fee,
which escalates at the rate of 5% per annum, for certain management and
administrative services provided by it. See Item 13.
"CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS".
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following information is given with respect to the Partners of the
Partnership:
<TABLE>
<CAPTION>
AMOUNT AND NATURE PERCENTAGE
NAME AND ADDRESS OF BENEFICIAL OWNERSHIP
TITLE OF CLASS OF BENEFICIAL OWNER OWNERSHIP (1)(2) INTEREST
-------------- ------------------- ---------------- --------
<S> <C> <C> <C>
Partnership Interest Sithe/Independence, Inc. General Partner 1%
450 Lexington Avenue
New York, NY 10017
Partnership Interest Sithe Energies, Inc. Limited Partner 45%
450 Lexington Avenue
New York, NY 10017
Partnership Interest Sithe Energies U.S.A., Inc. Limited Partner 44%
450 Lexington Avenue
New York, NY 10017
Partnership Interest Mitex, Inc. Limited Partner 10%
450 Lexington Avenue
New York, NY 10017
<FN>
- ------------
(1) None of the persons listed has the right to acquire beneficial
ownership of Securities as specified in Rule 13d-3(d)(1) under the
Securities Exchange Act of 1934.
(2) Sithe Energies is the direct or indirect beneficial owner of each
of the other Partners.
</TABLE>
Except as specifically provided or required by law, Limited Partners
may not participate in the management or control of the Partnership. Thus,
although the General Partner has the smallest interest in the Partnership, it
has sole responsibility for management of the Partnership. The General Partner
is an indirect wholly-owned subsidiary of Sithe Energies, a Limited Partner. See
Item 13. "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS".
The Partnership is limited partnership wholly-owned by its
Partners. Beneficial interests in the Partnership are not available to any
persons other than the Partners.
18
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Operation and maintenance services for the Project are provided on a
cost reimbursement basis by the Operator pursuant to an Operations and
Maintenance Agreement, dated as of August 15, 1992, between the Partnership and
the Operator. The Operator receives a $525,000 annual fee, which escalates at a
rate of 5% per annum, for certain management and administrative services
provided by it. See Items 1, 2 and 3. "BUSINESS, PROPERTIES AND LEGAL
PROCEEDINGS -- The Project -- Operations and Maintenance." Management and
administrative services performed by the Operator, with the prior consent of the
Partnership, include collecting of all sums payable to or due the Partnership
under the Project Documents and accounting for and depositing all such funds in
the operating account; obtaining such insurance as is necessary to protect the
interest of the Partnership and complying with the provisions of the Project
Documents; estimating and advising the Partnership of all federal, state and
local taxes payable by the Partnership that are attributable to the ownership
and operation of the Project; and determining and recommending to the
Partnership any necessary or desirable improvements, modifications or
alterations to the Project. Upon the occurrence of any transfer, assignment or
reassignment of the Partnership's interest in the Project wherein neither the
Partnership nor any affiliate of the Partnership (other than the Operator)
retains an interest in the Project, the continuance of the Operator's duties
and obligations under the Operations and Maintenance Agreement are expressly
conditioned upon the renegotiation of the Operator's compensation.
Mr. Wellford is a partner in the law firm of Latham & Watkins, which
firm from time to time serves as outside legal counsel for Sithe Energies and
the Partnership.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(A) THE FOLLOWING DOCUMENTS ARE FILED AS PART OF THIS REPORT:
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
FINANCIAL STATEMENTS
Independent Auditors' Report
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Partners' Capital
(Deficiency)
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
(B) REPORTS ON FORM 8-K.
There were no reports on Form 8-K filed during the three
months ended December 31, 1996.
(C) EXHIBITS
19
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<S> <C>
3.1 -----Certificate of Incorporation of Sithe/Independence Funding Corporation ("Sithe Funding") *
3.2 -----By-laws of Sithe Funding *
3.3 -----Certificate of Limited Partnership of Sithe/Independence Power Partners, L.P. (the "Partnership") *
3.4 -----Amendment to Certificate of Limited Partnership of the Partnership *
3.5 -----Agreement of Limited Partnership of Sithe/Independence Power Partners, L.P., among
Sithe/Independence, Inc. (the "General Partner"), Sithe Energies, Inc., Sithe Energies U.S.A., Inc.
and Mitex, Inc. *
3.6 -----Certificate of Incorporation of the General Partner *
3.7 -----Amendment to Certificate of Incorporation of the General Partner *
3.8 -----By-laws of the General Partner *
4 -----Indenture
4.1 -----Indenture dated as of January 1, 1993 among Sithe Funding,
the Partnership and IBJ Schroder Bank & Trust Company, as trustee (the "Trustee") *
4.2 -----First Series Supplemental Indenture dated as of January 1, 1993 among Sithe Funding, the
Partnership and the Trustee *
10.1 -----Credit Facilities
10.1.1 -----Loan Agreement among Sithe Energies, Inc., Energy Factors,
Incorporated, Sithe Energies, U.S.A., Inc., Sithe International,
Inc., Sithe Energies Development Corporation, Bank of Montreal,
Banque Nationale de Paris (Los Angeles Agency) and the additional
Financial Institutions set forth therein on Appendix I dated as of
August 3, 1993, Restated and Amended as of December 28, 1994. ***
10.1.2 -----Amended and Restated Letter of Credit and Reimbursement Agreement among the Partnership, the Banks
named therein and the Sumitomo Bank, Limited, New York Branch, dated September 28, 1994. ***
10.2 -----Construction Contracts
10.2.1 -----Turnkey Design and Construction Agreement (the "Construction Contract"), dated as of April 30,
1992, by and among the Partnership, Ebasco Constructors Inc. (now Raytheon Constructors Inc.,
"EBASCO") and General Electric Company ("GE") *
10.2.2 -----Contractor Letter Agreement, dated as of October 15, 1992, among the Partnership, EBASCO and GE *
10.2.3 -----Contractor Supplemental Letter dated as of December 9, 1992 among the Partnership, EBASCO and GE *
10.2.4 -----Contractor Letter Agreement, dated as of January 24, 1994 among the Partnership, EBASCO and GE **
10.2.5 -----Amendment No. 1 to Turnkey Design and Construction Agreement dated as of October 15, 1992 among
EBASCO, GE and the Partnership *
10.2.6 -----Amendment No. 2 to Turnkey Design and Construction Agreement dated as of February 25, 1993 among
EBASCO, GE and the Partnership *
10.2.7 -----Amendment No. 3 to Turnkey Design and Construction Agreement dated as of January 24, 1994 among
EBASCO, GE and the Partnership **
10.2.8 -----Form of EBASCO Parent Guarantee effective as of November 6, 1992 by Ebasco Services Incorporated in
favor of the Partnership *
10.3 -----Power Purchase Agreements
10.3.1 -----Energy Purchase Agreement, dated May 20, 1991, by and between Consolidated Edison Company of New
York, Inc. ("Con Ed") and Lake View, Inc. *
10.3.2 -----Supplement No. 1 to Contract No. 403, dated September 27, 1991, by and between Con Ed and Tamarac
Properties (Lake View, Inc.) *
</TABLE>
20
<PAGE>
<TABLE>
<S> <C>
10.3.3 -----Assignment and Assumption of Energy Purchase Agreement, dated
as of December 9, 1992, entered into by the General Partner
(formerly named Lake View, Inc.), Con Ed and the Partnership *
10.3.4 -----Amendment to Energy Purchase Agreement, dated as of December
9, 1992, entered into between the Partnership and Con Ed *
10.3.5 -----Amendment to Energy Purchase Agreement dated as of April 5, 1993 between the Partnership and Con
Ed *
10.3.6 -----Power Purchase Agreement, dated as of July 24, 1992, between the Partnership and Niagara Mohawk
Power Corporation ("Niagara Mohawk") *
10.3.7 -----First Amendment to the Power Purchase Agreement, dated as of November 16, 1992, between the
Partnership and Niagara Mohawk *
10.3.8 -----Energy Sales Contract, dated as of November 18, 1992, between the Partnership and Alcan Aluminum
Corporation d/b/a Alcan Rolled Products Company ("Alcan") *
10.3.9 -----Letter Agreement dated January 29, 1993 between Alcan and the
Partnership regarding Sections 9.12 and 9.13 of the Alcan Energy
Sales Contract *
10.3.10 -----Amendment No. 1 to the Energy Sales Contract dated as of
February 3, 1993 between Alcan and the Partnership *
10.3.11 -----Written notice dated March 10, 1993 from Alcan to the Partnership
exercising the Fixed Price Option for Energy Sales Contract *
10.3.12 -----Fixed Price Option for Energy Sales Contract between Alcan and the Partnership *
10.3.13 -----Amendment No. 2 to the Energy Sales Contract dated March 21, 1996 between the Partnership and Alcan
*****
10.4 -----Amended and Restated Operations and Maintenance Agreement, dated as of August 25, 1992, between the
Partnership and Sithe Energies Power Services, Inc. *
10.5 -----Transmission Agreements
10.5.1 -----Transmission Services Agreement, dated as of November 5, 1991, between Niagara Mohawk and Lake
View, Inc. *
10.5.2 -----Assignment, Assumption and Amendment of Transmission Services
Agreement, dated as of March 9, 1992, between Niagara Mohawk, the
General Partner and the Partnership *
10.6 -----Interconnection Agreements
10.6.1 -----Interconnection Agreement, dated as of March 9, 1992, between the Partnership and Niagara Mohawk *
10.6.2 -----Supplement to Interconnection Agreement, dated as of March 10, 1992, between the Partnership and
Niagara Mohawk *
10.6.3 -----Amendment No. 1 to Interconnection Agreement, dated as of July 24, 1992, between the Partnership
and Niagara Mohawk *
10.6.4 -----Amendment No. 2 to the Interconnection Agreement, dated as of November 17, 1992, entered into by
Niagara Mohawk and the Partnership **
10.7 -----Gas Supply Agreements
10.7.1 -----Amended and Restated Base Gas Sales Agreement, dated as of October 26, 1992, between the
Partnership and Enron Power Services, Inc. ("Enron") *
10.7.2 -----First Amendment to Amended and Restated Base Gas Sales Agreement,
dated as of December 1, 1992, between the Partnership and Enron *
10.7.3 -----Second Amendment to Amended and Restated Base Gas Sales Agreement
dated as of August 1, 1992 between the Partnership and Enron **
10.7.4 -----Third Amendment to Amended and Restated Base Gas Sales Agreement
dated as of December 31, 1993 between the Partnership and Enron **
10.7.5 -----Base Guarantee Agreement, dated as of December 1, 1992, by Enron Corp. in favor of the Partnership
*
10.7.6 ---- Fourth Amendment to Amended and Restated Base Gas Sales Agreement dated October 31, 1994 by and
between Enron Power Services, Inc. and the Partnership. ***
10.7.7 ---- Fifth Amendment to Amended and Restated Base Gas Sales Agreement dated January 30, 1995 by and
between Enron Capital & Trade Resources Corp. and the Partnership. ***
</TABLE>
21
<PAGE>
<TABLE>
<S> <C>
10.7.8 ---- Sixth Amendment to Amended and Restated Base Gas Sales Agreement dated March 1, 1995 by and between
Enron Capital & Trade Resources Corp. and the Partnership. ***
10.7.9 -----Seventh Amendment to Amended and Restated Base Gas Sales Agreement dated March 31, 1995 by and
between Enron Capital & Trade Resources Corp. and the Independence Partnership. ****
10.8 -----Gas Transportation Agreements
10.8.1 -----Gas Transportation Agreement, dated as of March 11, 1992, by and between the Partnership and
Niagara Mohawk *
10.8.2 -----Transportation Service Agreement, dated as of May 5, 1992, by and between the Partnership and Great
Lakes Gas Transmission Limited Partnership ("Great Lakes") *
10.8.3 -----Supplemental Agreement, dated May 6, 1992, between the Partnership and Great Lakes*
10.8.4 -----Amended and Restated FTS Agreement, dated as of November 23, 1992, between the Partnership and ANR
Pipeline Company ("ANR") *
10.8.5 -----Precedent Agreement for Firm Transportation Service, dated as of March 20, 1992, between the
Partnership and Panhandle Eastern Pipe Line Company ("Panhandle") *
10.8.6 -----Discounted Rate for Firm Transportation Services Agreement, dated March 20, 1992, between the
Partnership and Panhandle *
10.8.7 -----Agreement, dated as of October 4, 1993 between the Partnership and Empire State Pipeline Company,
Inc. ("Empire"), St. Clair Pipeline Company, Inc. and Energy Line Corporation, providing for firm
transportation service (Contract No. 95000) **
10.8.8 -----Supplemental Agreement, dated as of February 28, 1992,
between Empire and the Partnership (incorporated by reference into
Agreement dated as of October 4, 1993) **
10.8.9 -----Firm Service Contract dated as of March 9, 1994, between TransCanada Pipelines, Ltd. ("TCPL") and
the Partnership re Panhandle Volumes **
10.8.10 -----Firm Service Contract dated as of March 9, 1994, between TCPL and the Partnership re ANR Volumes **
10.8.11 -----Contract No. M12012, M12 Firm Transportation Contract Dawn to Kirkwall, dated as of April 6, 1992,
between Union Gas Limited ("Union") and the Partnership *
10.8.12 -----Contract No. M12016, M12 Firm Transportation Contract Dawn to Kirkwall, Enron Corp., dated as of
April 21, 1992, between Union and the Partnership *
10.8.13 -----Contract No. M12017, M12 Firm Transportation Contract Dawn to Kirkwall, dated as of April 10, 1992,
between Union and the Partnership *
10.8.14 -----Amending Agreement for M12 Firm Transportation Contract (No. M12017) dated as of February 19, 1993
between Union and the Partnership *
10.8.15 -----Contract No. M12022, M12 Firm Transportation Contract Dawn to Kirkwall, dated as of April 20, 1992,
between Union and the Partnership *
10.8.16 -----Amending Agreement for M12 Firm Transportation Contract (No. M12022) dated as of February 19, 1993
between Union and the Partnership *
10.8.17 -----Contract No. C10018, C-1 Firm Transportation Contract Ojibway to Dawn, dated as of April 10, 1992,
between Union and the Partnership *
10.8.18 -----Amending Agreement for C-1 Firm Transportation Contract (No. C10018) dated as of February 19, 1993
between Union and the Partnership *
10.8.19 -----Contract No. C10020, C-1 Firm Transportation Contract Ojibway to Dawn, dated as of April 20, 1992,
between Union and the Partnership *
10.8.20 -----Amending Agreement for C-1 Firm Transportation Contract (No. C10020) dated as of February 19, 1993
between Union and the Partnership *
10.8.21 -----Union Supplemental Letter, dated May 26, 1992, between Union and the Partnership *
10.8.22 -----Union Supplemental Letter, dated November 4, 1992, between Union and the Partnership*
10.8.23 -----Assignment Agreement dated as of March 9, 1994 between TCPL, Union and the Partnership **
10.8.24 ---- Firm Transportation Service Agreement dated July 13, 1994 by and between Panhandle
Eastern Pipeline Company and the Partnership. ***
</TABLE>
22
<PAGE>
<TABLE>
<S> <C>
10.8.25 -----Service Agreement dated August 8, 1994 by and between Great
Lakes Gas Transmission Limited Partnership and the Partnership (FT089) ***
10.8.26 -----Service Agreement dated August 19, 1994 by and between Great
Lakes Gas Transmission Limited Partnership and the Partnership (FT056-02) ***
10.8.27 -----Gathering Agreement by ANR Pipeline Company and the Partnership dated May 1, 1994. ***
10.8.28 -----Second Amended and Restated Agreement dated August 23, 1994 by and between ANR Pipeline Company and
the Partnership. ***
10.8.29 -----FTS-1 Service Agreement dated August 23, 1994 by and between ANR Pipeline Company and the
Partnership. ***
10.9 -----Agreements re Real Property
10.9.1 -----Main Transmission Line Licensing Agreement, dated as of
November 18, 1992, between the Partnership and Alcan *
10.9.2 -----Piping and Wiring Licensing Agreement, dated as of November 18, 1992, between the Partnership and
Alcan *
10.9.3 -----Mortgage and Security Agreement, dated as of January 1, 1993,
given by County of Oswego Industrial Development Agency (the
"IDA") and the Partnership to Manufacturers and Traders Trust Company (the "Collateral Agent") *
10.9.4 -----Mortgage and Security Agreement, dated as of January 1, 1993,
given by the IDA and the Partnership to the Collateral Agent *
10.9.5 -----Mortgage and Security Agreement, dated as of January 1, 1993, given by the IDA and the Partnership
to the Collateral Agent *
10.9.6 -----Credit Line Mortgage and Security Agreement, dated as of January 1, 1993, given by the IDA and the
Partnership to the Collateral Agent *
10.9.7 -----First Building Loan Mortgage and Security Agreement, dated as of
January 1, 1993, given by the IDA and the Partnership to the Collateral Agent *
10.9.8 -----Second Building Loan Mortgage and Security Agreement, dated as of
January 1, 1993, given by the IDA and the Partnership to the Collateral Agent *
10.9.9 -----First Building Loan Agreement, dated as of January 1, 1993, among the Trustee, Sithe Funding and
the Partnership *
10.9.10 -----Second Building Loan Agreement, dated as of January 1, 1993, among
the Trustee, Sithe Funding and the Partnership *
10.9.11 -----Bill of Sale and Assignment and Assumption Agreement dated as of
August 25, 1992 between the General Partner, as assignor, and the Partnership, as assignee *
10.10 -----Water Service Agreements
10.10.1 -----Water Service Agreement, dated as of May 11, 1992, by and between the Partnership and the City of
Oswego *
10.10.2 -----Water Facilities Agreement, dated as of August 18, 1992, between the Partnership and the County of
Oswego *
10.11 -----IDA Agreements
10.11.1 -----Lease Agreement, dated as of January 22, 1993, between the IDA and the Partnership*
10.11.2 -----Ground Lease, dated as of January 22, 1993, between the IDA and the Partnership *
10.11.3 -----Payment in Lieu of Taxes Agreement dated as of January 22, 1993 between the IDA and the Partnership *
10.12 -----Security Documents
10.12.1 -----Collateral Agency and Intercreditor Agreement, dated as of January 1, 1993, among Union Bank, the
Trustee, Enron, the Partnership, Sithe Funding, the IDA and the Collateral Agent*
10.12.2 -----Security Agreement and Assignment of Contracts, dated as of January 1, 1993, made by the Partnership in
favor of the Collateral Agent *
10.12.3 -----Partner Security Agreement, dated as of January 1, 1993, among the General Partner, Sithe Energies
U.S.A., Inc., Sithe Energies, Inc., Mitex, Inc. and the Collateral Agent*
</TABLE>
23
<PAGE>
<TABLE>
<S> <C>
10.12.4 -----Equity Contribution Agreement, dated as of January 1, 1993, by the General Partner, Sithe Energies,
Inc., Sithe Energies U.S.A., Inc., Mitex, Inc. in favor of the Partnership and for the benefit of
the Collateral Agent *
27 -----Article 5 Financial Data Schedule of the Partnership for the year ended December 31,
1996*****
<FN>
- ----------------
* Incorporated herein by reference from the Registration Statement on Form S-1, file No. 33-59960, filed
with the Securities and Exchange Commission (the "SEC") by Sithe/Independence Power Partners, L.P. on
March 23, 1993, as amended.
** Incorporated herein by reference from the Annual Report on Form 10-K for the year ended December 31,
1993 for Sithe/Independence Power Partners, L.P. filed with the SEC.
*** Incorporated herein by reference from the Annual Report on Form 10-K for the year ended December 31,
1994 for Sithe/Independence Power Partners, L.P. filed with the SEC.
**** Incorporated herein by reference from the Annual Report on Form 10-K for the year ended December 31,
1995 for Sithe Independence Power Partners, L.P. filed with the SEC.
***** Filed herewith.
</TABLE>
24
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
Sithe/Independence Funding Corporation
(REGISTRANT)
March 27, 1997 /s/ Richard J. Cronin III
---------------------------
RICHARD J. CRONIN III
CHIEF FINANCIAL OFFICER AND SENIOR VICE
PRESIDENT (PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ William Kriegel Chief Executive Officer, President March 27, 1997
---------------------------------- and Director (Principal Executive
William Kriegel Officer)
/s/ Bruce Wrobel Executive Vice President and March 27, 1997
---------------------------------- Director
Bruce Wrobel
/s/ Frank Donohue Senior Vice President and Director March 27, 1997
----------------------------------
Frank Donohue
/s/ Steven D. Burton Secretary, General Counsel and March 27, 1997
---------------------------------- Director
Steven D. Burton
/s/ Richard J. Cronin III Chief Financial Officer, Senior March 27, 1997
---------------------------------- Vice President and Director
Richard J. Cronin III (Principal Financial and
Accounting Officer)
/s/ W. Harrison Wellford Director March 27, 1997
----------------------------------
W. Harrison Wellford
</TABLE>
25
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange
Act of 1934, the co-registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Sithe/Independence Power Partners, L.P.
---------------------------------------
(CO-REGISTRANT)
By: Sithe/Independence, Inc.
----------------------------------
GENERAL PARTNER
March 27, 1997 /s/ Richard J. Cronin III
---------------------------------------
RICHARD J. CRONIN III
CHIEF FINANCIAL OFFICER AND SENIOR
VICE PRESIDENT (PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ William Kriegel Chief Executive Officer, President March 27, 1997
---------------------------------- and Director (Principal Executive
William Kriegel Officer)
/s/ Bruce Wrobel Executive Vice President and March 27, 1997
---------------------------------- Director
Bruce Wrobel
/s/ Frank Donohue Senior Vice President and Director March 27, 1997
----------------------------------
Frank Donohue
/s/ Steven D. Burton Secretary, General Counsel and March 27, 1997
---------------------------------- Director
Steven D. Burton
/s/ Richard J. Cronin III Chief Financial Officer, Senior March 27, 1997
---------------------------------- Vice President and Director
Richard J. Cronin III (Principal Accounting Financial
and Officer)
/s/ W. Harrison Wellford Director March 27, 1997
----------------------------------
W. Harrison Wellford
</TABLE>
26
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
Page No.
Financial Statements
Independent Auditors' Report ..................................F-2
Consolidated Balance Sheets at December 31, 1996
and 1995 .....................................................F-3
Consolidated Statements of Operations for the Years
Ended December 31, 1996, 1995 and 1994 .......................F-4
Consolidated Statements of Partners' Capital (Deficiency) for
the Years Ended December 31, 1996, 1995 and 1994 .............F-5
Consolidated Statements of Cash Flows for the Years
Ended December 31, 1996, 1995 and 1994 .......................F-6
Notes to Consolidated Financial Statements.....................F-7
All financial statement schedules are omitted because they are not applicable,
or not required, or because the required information is included in the
Financial Statements or Notes thereto.
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
We have audited the accompanying consolidated balance sheets of
Sithe/Independence Power Partners, L.P. (a Delaware limited partnership) and
its subsidiary as of December 31, 1996 and 1995, and the related consolidated
statements of operations, partners' capital (deficiency) and cash flows for
each of the three years in the period ended December 31, 1996. These financial
statements are the responsibility of the Partnership's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Sithe/Independence Power Partners,
L.P. and its subsidiary as of December 31, 1996 and 1995 and the results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1996 in conformity with generally accepted accounting
principles.
Deloitte & Touche LLP
New York, New York
March 7, 1997
F-2
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1996 1995
---------- ----------
ASSETS
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 4 $ 942
Restricted cash and cash equivalents 73,412 56,036
Restricted investments 14,610 -
Accounts receivable - trade 39,782 35,321
Fuel, inventory and other current assets 2,887 2,862
----------- -----------
TOTAL CURRENT ASSETS 130,695 95,161
PROPERTY, PLANT AND EQUIPMENT, AT COST:
Land 5,875 5,875
Electric and steam generating facilities 755,020 750,769
----------- -----------
760,895 756,644
Accumulated depreciation (37,707) (18,928)
----------- -----------
723,188 737,716
DEBT ISSUANCE COSTS 10,265 11,350
OTHER ASSETS 3,323 1,661
----------- -----------
TOTAL ASSETS $ 867,471 $ 845,888
=========== ===========
LIABILITIES AND PARTNERS' CAPITAL
CURRENT LIABILITIES:
Trade payables $ 24,264 $ 20,190
Accrued interest 174 30,910
Current portion of long-term debt 10,202 11,382
Accrued construction costs and retentions 9,249 16,587
----------- -----------
TOTAL CURRENT LIABILITIES 43,889 79,069
LONG-TERM DEBT:
7.90% secured notes due 2002 128,753 138,957
8.50% secured bonds due 2007 150,839 150,839
9.00% secured bonds due 2013 408,609 408,609
----------- -----------
688,201 698,405
OTHER LIABILITIES 11,682 5,680
COMMITMENTS AND CONTINGENCIES
PARTNERS' CAPITAL 123,699 62,734
----------- -----------
TOTAL LIABILITIES AND PARTNERS' CAPITAL $ 867,471 $ 845,888
=========== ===========
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------
1996 1995 1994
----------- ---------- -----------
<S> <C> <C> <C>
REVENUE $ 379,024 $ 335,844 $ 2,749
----------- ---------- -----------
COST OF SALES:
Fuel 198,947 187,847 1,233
Operations and maintenance 41,087 39,333 302
Depreciation 18,779 18,778 150
----------- ---------- -----------
258,813 245,958 1,685
----------- ---------- -----------
OPERATING INCOME 120,211 89,886 1,064
NON-OPERATING INCOME (EXPENSES):
Interest expense (63,441) (64,261) (13,910)
Interest and other income, net 4,187 4,525 5,704
----------- ---------- -----------
NET INCOME (LOSS) $ 60,957 $ 30,150 $ (7,142)
=========== ========== ===========
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
CONSOLIDATED STATEMENTS OF PARTNERS' CAPITAL (DEFICIENCY)
(IN THOUSANDS)
<TABLE>
<CAPTION>
UNREALIZED TOTAL
LOSS ON PARTNERS'
GENERAL LIMITED MARKETABLE CAPITAL
PARTNER PARTNERS SECURITIES (DEFICIENCY)
------------ ---------- ------------- ----------
<S> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1994 $ - $ (266) $ - $ (266)
Net loss - (7,142) - (7,142)
Unrealized loss on
marketable securities - - (223) (223)
-------- ---------- ---------- ----------
BALANCE, DECEMBER 31, 1994 - (7,408) (223) (7,631)
Capital contribution 400 39,600 - 40,000
Net income 302 29,848 - 30,150
Change in unrealized loss
on marketable securities - - 215 215
-------- ---------- ---------- ----------
BALANCE, DECEMBER 31, 1995 702 62,040 (8) 62,734
Net income 610 60,347 - 60,957
Change in unrealized loss
on marketable securities - - 8 8
-------- ---------- ---------- ----------
BALANCE, DECEMBER 31, 1996 $1,312 $122,387 $ - $123,699
======== =========== ======== ==========
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------
1996 1995 1994
--------- --------- ---------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net income (loss) $ 60,957 $ 30,150 $ (7,142)
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation 18,779 18,778 150
Net interest costs funded by short-term
investments - - 7,722
Amortization of deferred financing costs 1,085 1,150 241
Changes in operating assets and liabilities:
Accounts receivable - trade (4,461) (24,816) (2,749)
Fuel inventory and other current assets (25) (2,598) (264)
Other assets (1,662) (1,661) -
Trade payables and other current liabilities 4,074 14,767 1,535
Accrued interest payable (30,736) 30,738 -
Other liabilities 6,002 5,680 -
---------- ---------- -----------
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES 54,013 72,188 (507)
---------- ---------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Construction costs (11,589) (65,945) (249,579)
Restricted funds (31,978) (55,643) (393)
Use of funds designated for construction - 17,792 258,152
Net interest costs funded by short-term investments - - (7,722)
---------- ---------- -----------
NET CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES (43,567) (103,796) 458
---------- ---------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal payments on secured notes (11,384) (7,454) -
Capital contribution - 40,000 -
---------- ---------- -----------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES (11,384) 32,546 -
---------- ---------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (938) 938 (49)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 942 4 53
---------- ---------- -----------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 4 $ 942 $ 4
========== ========== ===========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash payments for interest (net of amounts capitalized) $ 61,179 $ 31,031 $ 13,910
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The Partnership
Sithe/lndependence Power Partners, L.P. (the "Partnership"), in which Sithe
Energies, Inc. ("Sithe Energies") and certain of its direct and indirect
wholly-owned subsidiaries (the "Partners") hold all the partnership interests,
is a Delaware limited partnership that was formed in November 1990 for a term
of 50 years to develop, construct and own a gas fired cogeneration facility
with a design capacity of approximately 1,000 megawatts (the "Project") located
in the Town of Scriba, County of Oswego, New York. Sithe/lndependence, Inc., an
indirect wholly-owned subsidiary of Sithe Energies, is the General Partner.
Prior to the commencement of commercial operation for financial reporting
purposes on December 29, 1994, the Partnership was in the development stage and
its activities consisted of development and construction of the Project.
The Partnership has entered into a 40-year power sales contract with
Consolidated Edison Company of New York ("Con Edison"), a 20-year power sales
contract with Niagara Mohawk Power Corporation ("Niagara Mohawk') and a 22-year
contract for thermal energy and electricity sales with Alcan Aluminum
Corporation ("Alcan").
Sithe Energies is an independent energy producer engaged, through its
subsidiaries, in the development construction, ownership and operation of
non-utility electric generating facilities. At December 31, 1996, Sithe
Energies owned or leased twenty-three electric generating facilities, including
the Project, representing approximately 1,752 megawatts ("MW") of operating
capacity and its approximately 160 MW Smithfield project near Sydney, Australia
was under construction with commercial operation anticipated in the second
quarter of 1997. As of December 31, 1996, Sithe Energies is actively pursuing a
number of development projects in the United States and internationally. Sithe
Energies is presently owned 61.3% by Compagnie Generale des Eaux, 27.6% by
Marubeni Corporation and 11.1 % by its two other founders.
2. Summary of Significant Accounting Policies
The accompanying consolidated financial statements include the accounts of
the Partnership and Sithe/lndependence Funding Corporation ("Sithe Funding"), a
wholly-owned subsidiary formed by the Partnership for the purpose of issuing
debt securities in connection with financing the Project. All significant
intercompany transactions and balances have been eliminated. Certain amounts
have been reclassified to conform to the 1996 presentation.
From its inception on November 1, 1990 through December 29, 1994, the
Partnership was in the development stage. All construction costs and all
project development costs incurred subsequent to obtaining the power sales
contract with Con Edison in 1991 were capitalized.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
F-7
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Cash and cash equivalents, including restricted cash, consist of bank
deposits, commercial paper and certificates of deposit that mature within three
months of their purchase.
Restricted investments include U.S. treasury notes and other debt
securities with maturities of more than three months from the date of their
purchase.
Depreciation of electric and steam generating facilities is computed using
the straight-line method over the 40-year estimated economic life of the
Project.
Prior to the commencement of commercial operations on December 29, 1994,
all interest on qualifying construction expenditures was capitalized. All
interest costs incurred subsequent to such date have been charged to expense.
The total amount of interest costs incurred in 1996, 1995 and 1994 was $63.4
million, $64.3 million and $63.2 million, respectively, of which $49.3 million
was capitalized in 1994.
Revenue from the sale of electricity and steam is recorded based upon
output delivered and capacity provided at the payment rates as specified under
contract terms.
Revenue for 1996 consisted of $343.3 million from sales of electricity and
steam and $35.7 million from gas sale transactions. During 1996, Con Edison,
Niagara Mohawk and Alcan accounted for 92%, 5% and 3%, respectively, of the
sales of electricity and steam. During 1995, Con Edison accounted for 91% of
the Partnership's revenue, Niagara Mohawk accounted for 6% and Alcan accounted
for the remaining 3%.
The Partnership evaluates the operating and financial performance of its
long-lived assets for potential impairments in accordance with Statement of
Financial Accounting Standards No. 121 "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed Of", which
prescribes the method for measuring impairment. If an asset is determined to be
impaired, the capitalized costs are written down to fair value.
Routine maintenance and repairs are charged to expense as incurred. The
estimated cost of scheduled major equipment overhauls is normalized through
systematic charges to cost of sales.
Legal fees and other direct costs incurred in connection with the issuance
of long-term debt are being deferred and amortized to interest cost using the
interest method over the term of the long-term debt.
Since the Partnership is not an income tax paying entity, the accompanying
consolidated financial statements do not reflect any income tax effects. Sithe
Funding is a taxable entity, but has no taxable income since its interest
income is equal to its interest expense.
F-8
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. Financing
Financing for the project consisted of a loan to the Partnership by Sithe
Funding of the proceeds of its issuance of $717.2 million of notes and bonds
(the "Securities") and $60 million of capital contributions by the Partners.
Aggregate maturities of the Securities over the next five years are as follows:
$10.2 million in 1997, $18.9 million in 1998, $27.4 million in 1999, $19.3
million in 2000 and $32.4 million in 2001. The Securities are guaranteed by the
Partnership and secured by substantially all of the assets of the Partnership.
In addition, the Partners obtained a credit facility under which one or
more letters of credit may be issued in connection with their obligations
pursuant to certain Project contracts, and, as of December 31, 1996, letters of
credit aggregating $16.1 million were outstanding in connection with such
obligations. The Partnership has funded the Project's debt service reserve fund
with a letter of credit in the amount of $50 million and as of December 31,
1996 had sufficient restricted cash on hand to meet its cumulative additional
debt service reserve and major overhaul reserve funding requirements as of such
date of $22.0 million and $5.1 million, respectively. To secure the
Partnership's obligation to pay any amounts drawn under the debt service letter
of credit, the letter of credit provider has been assigned a security interest
and lien on all of the collateral in which the holders of the Securities have
been assigned a security interest and lien.
The Partnership is precluded from making distributions to the Partners
until formal notice of final construction completion is given to the trustee
for the Securities, which is expected to occur in the second quarter of 1997,
project reserve accounts are funded to specified levels, as discussed above,
and unless the required debt service coverage ratio is met, which was the case
in 1996.
4. Interest Income and Expense
Results of operations for 1994 were impacted by the recognition of
interest expense required with respect to the "negative interest arbitrage"
associated with the financing and construction of the Project. Proceeds from
the issuance of the Securities included an amount sufficient to pay interest on
the Securities during the construction period. The net interest expense
resulting from the excess of the 8.65% weighted average interest rate on the
Securities over the rate earned on the investment of the unspent funds is
required to be charged against income. Negative interest arbitrage for 1994 was
$7.7 million.
F-9
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
5. Financial Instruments
Financial instruments which potentially subject the Partnership to
concentrations of risk consist principally of temporary cash investments,
restricted funds and trade receivables. The Partnership invests its temporary
cash investments and restricted investments in U.S. government obligations and
financial instruments of highly-rated financial institutions. Trade receivables
are from major regulated electric utilities and the associated credit risks are
limited.
The carrying values reflected in the balance sheet at December 31, 1996
and 1995 reasonably approximate the fair values for cash and cash equivalents,
restricted investments, trade receivables and construction payables and
retentions. In making such assessment, the Partnership utilized credit reviews.
The Partnership estimates that the fair value of the Securities at December 31,
1996 and 1995 were $710.3 million and $735.5 million, respectively, based on
quoted market prices, which were $11.9 million and $25.7 million higher,
respectively, than the historical carrying values of $698.4 million and $709.8
million, respectively.
At December 31, 1996 and 1995, the aggregate fair value of the
Partnership's available-for-sale debt securities closely approximated the
amortized cost of such securities.
During the year ended December 31, 1995, proceeds from sales of
available-for-sale securities were $54.1 million and realized losses were $.2
million.
6. Commitments and Contingencies
Litigation and Claims
On March 29, 1996, the Partnership filed a petition with the Federal
Energy Regulatory Commission ("FERC") alleging Niagara Mohawk has been
overcharging for the transmission of electricity in violation of FERC policy by
calculating transmission losses on an incremental basis. The Partnership
believes that transmission losses should be calculated on an average basis. The
Partnership has been recording its transmission expense at the disputed, higher
rate. As of December 31, 1996, the Partnership estimates it was owed
approximately $5.6 million for transmission overcharges. The Partnership
requested that FERC order Niagara Mohawk to recalculate the transmission losses
beginning in October 1994, when it began wheeling power from the Project. In
September 1996, the FERC issued an order dismissing the Partnership's complaint
and requiring Niagara Mohawk to provide the Partnership with information
regarding the calculation of transmission losses. In October 1996, the
Partnership filed a request for rehearing of the FERC's order. The FERC has yet
to act on this request. The Partnership intends to continue to vigorously
pursue this matter.
F-10
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Gas Supply
The Partnership has entered into a 20-year gas supply agreement with Enron
Power Services, Inc. ("Enron"), and 20-year transmission services and
interconnection agreements for gas transportation with several pipeline
companies, each with a term or expected term of at least twenty years.
Aggregate minimum commitments under these contracts over the next five years
are as follows: $226.5 million in 1997, $237.0 million in 1998, $247.4 million
in 1999, $203.8 million in 2000 and $203.9 million in 2001.
The Partnership recognizes fuel expense for gas consumed at its plant
based on pricing provided for in the Project's 20-year gas supply agreement
with Enron. Pursuant to such agreement, the price for the first 116,000 MMBtu's
of natural gas per day ("Tier I" gas) is fixed for the first five years of the
agreement and thereafter fluctuates with pricing based on a pre-determined
multiple of Con Edison's actual avoided energy price as well as certain other
payments made by Con Edison to the Project. Up to an additional 76,291 MMBtu's
of gas consumed per day by the Project ("Tier II" gas) is priced based on the
pre-determined multiple applied to Niagara Mohawk's "energy only" rate.
Enron will maintain a notional tracking account to account for differences
between the contract price and spot gas prices, except that there will be no
such tracking with respect to the Tier I gas during the first five years of the
contract. The tracking account would be increased if the then current spot gas
price is greater than the contract price and would be decreased if the then
current spot gas price is lower than the contract price. The tracking account
bears interest at 1% over prime. Enron has been given a security interest in
the plant, which is subordinated to payments for secured debt service and
certain letter of credit reimbursement obligations, to secure any tracking
account balance. As of December 31, 1996, the Partnership estimates that the
balance in the tracking account amounted to approximately $56.3 million. If at
any time the tracking account balance exceeds 50% of the plant's then fair
market value, the Partnership will be required to reduce the tracking balance
by paying to Enron the lesser of (a) the amount necessary to reduce the
tracking balance to 50% of the plant's fair market value or (b) (i) during
years 6 through 15 of the contract, all incremental revenues as defined in the
contract and (ii) thereafter 50% of qualifying cash flows also as defined in
the contract plus all incremental revenues. If a positive balance exists in the
tracking account at the end of the contract term, the Partnership will be
required either to pay the balance in the tracking account or to convey to
Enron an equity ownership in the plant based on the ratio of the tracking
account balance to the facility's fair market value at such time.
At present, the Partnership's expectation based on its projection of
energy and gas prices is that there will not be a positive balance in the
tracking account at the end of the contract term and that during the term of
the contract it will not be required to make any tracking account balance
reduction payments.
F-11
<PAGE>
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
(a Delaware Limited Partnership)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Other
The Partnership's power sales contract with Con Edison includes an option
that would allow Con Edison to terminate the power sales contract with the
Partnership upon satisfaction of certain conditions including assuming all of
the Partnership's financial and contractual obligations related to the Project
and paying an amount to the Partnership determined by a formula based on
estimated future revenues and expenses under the contract.
Under the terms of the power sales contract with Con Edison, electricity
will generally be sold to Con Edison at prices based on Con Edison's actual
avoided energy costs plus a fixed price per KWH. Changes in the
avoided-cost-based energy component of billings by the Partnership to Con
Edison will impact the Partnership's profitability, particularly during the
first five years of operation when the price for gas associated with energy
deliveries to Con Edison is fixed.
A petition requesting permission to curtail (i.e., limit or suspend)
purchases of power from independent power producers was filed by Niagara
Mohawk, and the Public Service Commission of the State of New York (the "PSC")
instituted a proceeding to consider the merits of the petition. In August 1996,
the PSC issued a notice inviting comments regarding whether and when utilities
should be permitted to curtail purchases from independent power producers. In
December 1996, the Partnership submitted comments to the PSC with respect to
this matter but the PSC has not yet issued an order. The Partnership intends to
vigorously oppose any efforts by the PSC and/or individual utilities to curtail
purchases of power from independent power producers. The Partnership's power
sales contract with Niagara Mohawk covers up to approximately 300MW in any
hourly period. A decision by the PSC permitting Niagara Mohawk to implement
curtailment could adversely affect the Partnership's operating revenue.
7. Related Party Transactions
The Partnership has entered into an operations and maintenance agreement
with Sithe Energies Power Services, Inc. ("Sithe Power Services"), an indirect
wholly-owned subsidiary of Sithe Energies, under which Sithe Power Services
will provide all operations and maintenance services for the Project for twenty
years following the Date of Commercial Operation on a cost reimbursement basis.
In addition, the agreement calls for the Partnership to pay Sithe Power
Services a $525,000 annual fee, which escalates at 5% per annum, for management
and administrative services provided by Sithe Power Services to the
Partnership.
F-12
<PAGE>
- --------------------------------------------------------------------------------
AMENDMENT NO. 2
TO THE
ENERGY SALES CONTRACT
BETWEEN
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
AND
ALCAN ALUMINUM CORPORATION
d/b/a ALCAN ROLLED PRODUCTS COMPANY
Dated March 21, 1996
- --------------------------------------------------------------------------------
<PAGE>
AMENDMENT NO. 2 TO THE ENERGY SALES CONTRACT
BETWEEN SITHE/INDEPENDENCE POWER PARTNERS, L.P.
AND ALCAN ALUMINUM CORPORATION
d/b/a ALCAN ROLLED PRODUCTS COMPANY
This Amendment No. 2, dated as of March 21, 1996, to the Energy Sales
Contract ("Amendment No. 2") by and between Sithe/Independence Power Partners,
L.P. ("Independence") and Alcan Aluminum Corporation d/b/a Alcan Rolled
Products Company ("Alcan").
WITNESSETH:
WHEREAS, the parties entered into an Energy Sales Contract, dated as of
November 18, 1992 ("Energy Sales Contract"), pursuant to which Alcan shall
purchase designated amounts of electricity and steam from a cogeneration
project that Independence has developed on a site in the Town of
Scriba, New York; and
WHEREAS, the parties entered into two letter agreements, dated January 21,
1993 and January 29, 1993, which clarified and/or amended the Energy Sales
Contract;
WHEREAS, the parties entered into Amendment No. 1 to the Energy Sales
Contract dated as of February 3, 1993 ("Amendment No. 1");
WHEREAS, the parties desire to effectuate another written amendment to the
Energy Sales Contract, in accordance with Section 35.01 thereof;
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, Alcan and Independence
agree to the following:
<PAGE>
1. The defined term "Cost of Producing Electricity" is hereby deleted from
the Energy Sales Contract and replaced, wherever it appears, by the term
"Adjusted Cost of Producing Electricity," and the defined term "Calculated
Profit From Sales" is hereby amended to read as follows:
"Calculated Profit From Sales" shall mean for any month the
positive difference between (i) the average per kilowatthour price
for sales of electricity from the Project (as defined below) to
persons other than Alcan or the Alternative Steam Hosts, if any,
during such month, and (ii) the Adjusted Cost of Producing
Electricity with respect to such month.
2. Article I of the Energy Sales Contract is hereby amended by inserting
the following new defined terms:
"Adjusted Cost of Producing Electricity" shall mean for any
month the sum of (a) the Project's actual Capital Costs
(excluding any return on equity) with respect to the prior month
of operation plus (b) the Project's actual operating costs
(excluding any return on equity) including all actual fixed and
variable fuel transportation costs and expenses, all actual
minimum take or other fuel related penalties and all Fuel
Commodity Costs (as defined below) incurred by the Project
with respect to the prior month of operation, which sum shall be
divided by the difference between (a) the aggregate number of
kilowatthours produced by the Project in that prior month minus
(b) the sum of (I) the Project's actual parasitic load (expressed
in kilowatthours) with respect to such prior month plus (2) the
actual transmission losses (expressed in kilowatthours) deducted
from deliveries of electric energy by the Project to the Project's
customers during such prior month. It is acknowledged and
agreed that Alcan shall not share in or be liable for the
repayment of any cumulative tracking account balance that may
be owed to or by the Project at any time pursuant to any of its
gas supply contracts.
"Fuel Commodity Costs" shall mean for any month the product
of (a) the actual quantity of fuel (expressed in MMBtus)
2
<PAGE>
purchased by the Project with respect to the prior month of
operation multiplied by (b) the Fuel Price (expressed in
$/MMBtu) for such prior month of operation.
"Fuel Price" shall mean for any month the "Index" price
(expressed in $/MMBtu) reported in the first issue during such
Month of Inside FERC's Gas Market Report under the section
entitled "Prices of Spot Gas Delivered to Pipelines" for deliveries
to ANR Pipeline Co. in Louisiana, plus $0.0175 per MMBtu,
provided that during the period from January 1, 1996 to and
including December 31, 1999, the Fuel Price for the first
116,000 MMBtus purchased by the Project on any day during
such period (a) shall be $2.47/MMBtu during the period from
January 1, 1996 to and including December 31, 1996, (b) shall
be $2.78/MMBtu during the period from January 1, 1997 to and
including December 31, 1997, (c) shall be $3.05/MMBtu during
the period from January 1, 1998 to and including December 31,
1998, and (d) shall be $3.32/MMBtu during the period from
January 1, 1999 to and including December 31, 1999.
Quality of Electricity Criteria - shall have the meaning set forth
in Exhibit T, which is attached hereto and hereby incorporated
into the Energy Sales Contract.
3. The third sentence of Section 3.04 is hereby deleted and replaced by the
following:
At any time after the Electrical Start-Up Date, Alcan, at its
option, may designate any or all of the equipment installed as of
January 1, 1996 beyond the Delivery Points, and all spare or
back-up equipment pertaining thereto, as Alcan property and
Independence hereby agrees (i) to transfer ownership of said
equipment without the exchange of further consideration, and (ii)
to deliver to Alcan copies of all documents, drawings and
software pertaining to such equipment, spares and back-ups "As
Commissioned" in the quantity, format and media specified by
Alcan. Any custom software documentation must include the
source code. Absent exigent circumstances, the parties shall
negotiate a reasonable future date(s) for the actual transfer of
ownership, provided, however, that if the parties do not agree
within thirty (30) days of initial notification by Alcan, Alcan
3
<PAGE>
shall have the option to designate the actual date for transfer of
ownership without further negotiations.
4. Sections 9.04 and 9.05 are hereby deleted and replaced by the following:
9.04 Subject to Section 9.05, the price of Alcan Metered Usage
sold by Independence to Alcan during the first fifteen Years of
Operation shall be as follows:
Year of Operation Price ($ per kilowatthour)
----------------- -------------------------
1 $0.0446
2 $0.0447
3 $0.0480
4 $0.0510
5 $0.0515
6 $0.0512
7 $0.0530
8 $0.0550
9 $0.0565
10 $0.0615
11 $0.0625
12 $0.0665
13 $0.0679
14 $0.0699
15 $0.0738
For subsequent Years of Operation, the price of Alcan Metered
Usage shall be the Adjusted Cost of Producing Electricity. For
purposes herein, each Year of Operation shall begin on the
yearly anniversary of the Electrical Start-Up Date and terminate
on the day immediately preceding the next such yearly
anniversary.
9.05 Notwithstanding the provisions of Section 9.04, Alcan shall
have the following additional options which may affect the price
of Alcan Metered Usage:
(a) after the expiration of the fifth Year of Operation,
and upon sixty days prior written notice to
Independence, Alcan shall have the right to elect
to purchase Alcan Metered Usage at the Adjusted
4
<PAGE>
Cost of Producing Electricity, provided that any
such election shall mean the fixed prices set forth
in Section 9.04 shall not thereafter be available to
Alcan and all Alcan Metered Usage sold in
subsequent Years of Operation shall be priced at
the Adjusted Cost of Producing Electricity.
(b) Alcan also shall have the right to elect at any time
and from time to time, upon sixty (60) days prior
written notice to Independence, to purchase all of
its electrical needs at the Oswego Works from an
electrical power supplier other than Independence;
provided that any such election to so purchase by
Alcan must be for a period of not less than five
years and, provided further, that once Alcan
exercises the option to purchase from another
electrical power supplier, any electricity
subsequently purchased from the Project shall be
priced at the Adjusted Cost of Producing
Electricity unless the alternate source of supply
involves an agreement that includes some form of
consideration acceptable to Independence, in
which case subsequent purchases of electricity by
Alcan from the Project shall be at the fixed prices
set forth in Section 9.04 for the applicable Year of
Operation.
5. Section 9.07 is deleted and replaced by the following:
9.07 (a) Except for periods during which Alcan is
purchasing electricity from the Project at the fixed
prices set forth in Section 9.04, Alcan shall be
entitled to receive a share of the net proceeds
associated with that portion of the Alcan Capacity
Entitlement which Alcan does not use in
accordance with the terms set forth below. For
purposes herein, the net proceeds of the Alcan
Capacity Entitlement which Alcan does not use
shall be equal to the product of the Net Alcan
Entitlement multiplied by the Calculated Profit
From Sales.
5
<PAGE>
(i) during any periods occurring in the first
fifteen Years of Operation in which Alcan
is purchasing its electrical needs at the
Oswego Works from Independence
pursuant to Section 9.05(a), Alcan will be
paid or credited with, on a monthly basis
50% of the net proceeds associated with
that portion of the Alcan Capacity
Entitlement which Alcan does not use.
(ii) during any periods occurring in the first
fifteen Years of Operation in which Alcan
is voluntarily purchasing some or all of its
electrical needs at the Oswego Works from
an electrical power supplier other than
Independence pursuant to Section 9.05(b),
Alcan will be paid or credited with, on a
monthly basis, 25% of the net proceeds
associated with that portion of the Alcan
Capacity Entitlement which Alcan does not
use unless the alternate source of electricity
supply for Alcan includes an agreement
that includes some form of consideration
acceptable to Independence, in which case
Alcan will be paid or credited with, on a
monthly basis, 50% of the net proceeds
associated with that portion of the Alcan
Capacity Entitlement which Alcan does not
use during the period that it is receiving
such alternate supply.
(iii) during any periods occurring in the first
fifteen Years of Operation in which Alcan
is involuntarily purchasing all or part of its
electrical needs at the Oswego Works from
an electrical power supplier other than
Independence, Alcan will be paid or
credited with, on a monthly basis, 50% of
the net proceeds associated with that
portion of the Alcan Capacity Entitlement
which Alcan does not use. For purposes of
calculating amounts due to Alcan under
6
<PAGE>
Sections 9.06 or 9.13 hereof, the fixed
prices set forth in Section 9.04 shall be
used.
(iv) beginning in the sixteenth Year of
Operation, and at all times prior to that
during which the terms of Section 9.13 are
operative, and provided that Alcan is not
then voluntarily purchasing electricity from
a third party supplier pursuant to Section
9.05(b) hereof. Alcan will be paid or
credited with, on a monthly basis, 50% of
the net proceeds associated with that
portion of the Alcan Capacity Entitlement
which Alcan does not use.
(b) For purposes of the calculation of proceeds due to
Alcan under this subsection, sales of all unused
Alcan Capacity Entitlement will be presumed,
discounted only by the Capacity Factor for the
Project. It is agreed that this clause is not
intended to, nor under any circumstances shall it,
result in Alcan reimbursing or being in any way
liable to Independence for sales by Independence
to third parties at prices that are lower than the
Adjusted Cost of Producing Electricity. The
administration of sales to third parties, including
the selection of buyer(s) of the electric capacity
and/or energy, will be the sole responsibility of
Independence. Alcan shall provide, not less than
sixty (60) days prior to the start of each calendar
year, a written, good faith estimate of its projected
annual usage for the ensuing year, it being agreed
that Alcan may designate up to the entire Alcan
Capacity Entitlement plus the capacity and energy
associated with Section 9.09 and, if applicable,
Section 9.10, for its own use, or any part thereof.
Credits inuring to Alcan's benefit under this
Section 9.07 shall be credited to Alcan in
accordance Section 15.01.
7
<PAGE>
6. The Schedule of Costs attached as Exhibit "R" to the Energy Sales
Contract is hereby declared null and void.
7. The second sentence of Section 9.09 is hereby deleted and replaced by
the following:
The price of purchases under this Section 9.09 shall be equal to
the fixed prices set forth in Section 9.04 or, if applicable,
Section 9.05, plus $0.001/kwh during the first fifteen Years of
Operation and the Adjusted Cost of Producing Electricity plus
$0.001/kwh each Year of Operation thereafter.
8. The third sentence of Section 9.02 is hereby deleted and replaced by the
following:
The quality of electricity delivered shall be at least equal to the
Quality of Electricity Criteria set forth in Exhibit T.
9. The following sentence is hereby inserted between the first and second
sentences of Section 9.06(a):
With regard to Independence's obligations pursuant to the
preceding sentence, at Alcan's request, Independence will install,
at its sole cost, any additional systems or equipment reasonably
required to ensure a maximum of one hour switch-over time to
back-up or standby electricity as soon as reasonably possible
after the first incident where a period of more than one hour was
required for such switch-over.
10. The second sentence of Section 9.06(c) is hereby deleted and replaced
by the following:
If there are more than two interruptions of electrical service from
the Project during any three month period, or if there are more
than two interruptions of Alcan process equipment during any
three month period caused solely by the supply of electricity
which does not meet the Quality of Electricity criteria, upon the
8
<PAGE>
occurrence of the third (or more) interruption Alcan shall have
the option to elect or remain on back-up or standby service, at
Independence's expense, until Independence can demonstrate to
Alcan's reasonable satisfaction that the cause (or causes) of the
interruptions has been cured provided, however, that
Independence must cure the cause (or causes) of the interruptions
within a reasonable time.
11. The following new Section 9.06(d) is hereby inserted following Section
9.06(c):
9.06 (d) With respect to Section 9.06(c) hereof, Alcan
acknowledges that its process equipment may be
affected by operating problems and interruptions
which are not caused by the quality of electricity
it receives and that Independence is not in a
position to understand the nature or causes of such
problems and interruptions. Accordingly, if any
such problems or interruptions occur which Alcan
reasonably believes are caused solely by
Independence's failure to provide electricity which
meets or exceeds the Quality of Electricity
criteria, Alcan will work with Independence to
confirm and demonstrate to Independence that any
such problem or interruption was so caused and is,
therefore, subject to the second sentence of
Section 9.06(c) hereof.
12. The Phase I equipment list attached hereto and marked as Exhibit "K" is
hereby incorporated into the Energy Sales Contract as Exhibit "K".
13. The Phase III equipment list attached hereto and marked as Exhibit "L"
is hereby incorporated into the Energy Sales Contract as Exhibit "L".
14. The drawing attached hereto and marked as Exhibit "M" to the Energy
Sales Contract, which, pursuant to the definition of Design Point Capacity in
the Energy Sales
9
<PAGE>
Contract, depicts the Design Point Capacity graph, is hereby
incorporated into the Energy Sales Contract as Exhibit "M".
15. Pursuant to Section 10.04 of the Energy Sales Contract, the Steam
Delivery Point, as actually installed, is shown as the point of connection on
Exhibit "O" attached hereto, which Exhibit "O" is hereby incorporated into the
Energy Sales Contract.
16. The documents attached hereto and entitled Electrical Equipment Beyond
Delivery Point, and marked as Exhibit "P", and Steam Equipment Beyond Delivery
Point, and marked as Exhibit "Q", are hereby incorporated into the Energy Sales
Contract as Exhibits "P" and "Q", respectively.
17. The documents attached hereto and entitled Specification For Quality
of Steam Delivered to Alcan and marked as Exhibit "S" is hereby incorporated
into the Energy Sales Contract.
18. The document attached hereto and entitled Quality of Delivered Power
and marked as Exhibit "T" is hereby incorporated into the Energy Sales
Contract.
19. The parties further agree as follows:
(a) Installation of Steam Equipment/Supply of Steam to Recycling
Facility
l. Sithe/Independence has installed two air handling
units originally planned for Alcan's Oswego
Works into Alcan's new recycling facility.
2. The aggregate annual quantities of thermal energy
to be consumed by Alcan will equal or exceed the
aggregate annual quantities of thermal energy that
Alcan would have consumed had the two air
handling units been installed as originally
10
<PAGE>
contemplated at Alcan's existing facilities. The
other provisions of the Energy Sales Contract with
respect to Alcan's thermal usage obligations shall
apply.
(b) Supply of Electricity to Recycling Facility
1. Alcan will utilize a portion of the Alcan Capacity
Entitlement, as that term is defined in the Energy
Sales Contract, to supply its additional electrical
needs at the new recycling facility and
Sithe/Independence shall supply such electricity to
Alcan pursuant to the terms of the Energy Sales
Contract provided, however, that
Sithe/Independence will provide a discount for a
portion of the actual additional electrical usage
(not to exceed (i) a maximum demand of 3 MW
in any hour or (ii) 26,280,000 kilowatthours in
any twelve month period) at the new recycling
facility for a period of three years from January 1,
1996. It is the intent of Alcan and
Sithe/Independence that none of the electric
energy purchased by Alcan for use at Alcan's
facilities (other than at the new recycling facility)
will be eligible for any discount hereunder nor
will any electric energy associated with a demand
at the new recycling facility in excess of 3 MW be
eligible for any discount hereunder. The price to
be paid during the three year period of discounts
for such portion of the actual electrical usage at
the new recycling facility eligible for a discount
shall be $.036/kwh. Such discount will be subject
to the following conditions:
(i) Alcan will be responsible for the cost of
installation of any electrical distribution
systems or any related facilities necessary
for the interconnection of the electrical
system of the new recycling facility with
the existing electrical distribution system,
provided that Sithe/Independence may
install additional electrical metering if
11
<PAGE>
reasonably required to measure the actual
usage at the new recycling facility
(ii) Alcan and Sithe/Independence will work
together to minimize such costs and agree
that billing quality meters will not be
required given that the discount for
services at the recycling facility will
remain in effect for only three years.
(iii) Alcan will provide Sithe/Independence
with reasonable access to all of the
metering data and information collected by
the electrical metering installed by Alcan at
the new recycling facility as well as any
other data or information reasonably
requested by Sithe/Independence to verify
that the discount provided hereunder is
being applied only to the electrical energy
utilized at the new recycling facility and
only to the extent that such electrical
energy is associated with a demand at the
new recycling facility of 3 MW or less.
12
<PAGE>
IN WITNESS WHEREOF, Independence and Alcan have caused this
Amendment No. 2 to be executed by their proper, duly authorized officers
SITHE/INDEPENDENCE POWER PARTNERS, L.P.
By: Sithe/Independence, Inc.,
its General Partner
Attest: By: Thomas A. Meinicke
-------------------------
By: Name: Thomas A. Meinicke
- ------------------------- -------------------------
Name: Title: Asst. Vice President
- ------------------------- -------------------------
Title: Date March 21, 1996
- ------------------------- -------------------------
ALCAN ALUMINUM CORPORATION
d/b/a ALCAN ROLLED PRODUCTS COMPANY
Attest: By: Robert L. Ball
-------------------------
By: Name: Robert L. Ball
- ------------------------- -------------------------
Name: Title President
- ------------------------- -------------------------
Title: Date: March 21, 1996
- ------------------------- -------------------------
1341.03197/MGL50
13
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheets and consolidated statements of operations found on
pages F-3 and F-4 of the Partnership's Form 10K for the year-to-date, and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000899281
<NAME> SITHE/INDEPENDENCE FUNDING CORP.
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 4
<SECURITIES> 0
<RECEIVABLES> 39782
<ALLOWANCES> 0
<INVENTORY> 2887
<CURRENT-ASSETS> 130695
<PP&E> 760895
<DEPRECIATION> 37707
<TOTAL-ASSETS> 867471
<CURRENT-LIABILITIES> 43889
<BONDS> 688201
0
0
<COMMON> 0
<OTHER-SE> 123699
<TOTAL-LIABILITY-AND-EQUITY> 867471
<SALES> 379024
<TOTAL-REVENUES> 379024
<CGS> 258813
<TOTAL-COSTS> 258813
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 63441
<INCOME-PRETAX> 60957
<INCOME-TAX> 0
<INCOME-CONTINUING> 60957
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 60957
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
