EXHIBIT 10.5
PPL EnergyPlus, LLC Original Sheet Xx. 0
Xxxx Xxxxxxxx XXXX Xx. 0
GENERATION SUPPLY AGREEMENT
BETWEEN
PPL ELECTRIC UTILITIES CORPORATION
AND
PPL ENERGYPLUS, LLC
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
1
PPL EnergyPlus, LLC Original Sheet No. 2
Rate Schedule FERC No. 9
TABLE OF CONTENTS
ARTICLE 1: DEFINITION OF TERMS .............................................. 7
1.1 Affiliate .......................................................... 7
1.2 Alternate Supplier ................................................. 7
1.3 Assumed Ongoing POLR Revenues ...................................... 7
1.4 Bankrupt ........................................................... 7
1.5 Business Day ....................................................... 8
1.6 Capacity Deficiency Changes ........................................ 8
1.7 CDS ................................................................ 8
1.8 Collateral Termination Payment ..................................... 8
1.9 Collateral Threshold ............................................... 8
1.10 Company Use Energy ................................................. 9
1.11 Credit Rating ...................................................... 9
1.12 Cross Default Amount ............................................... 9
1.13 Delivery Point ..................................................... 9
1.14 Early Termination Date ............................................. 9
1.15 EGS ................................................................ 9
1.16 Energy ............................................................. 9
1.17 Equitable Defenses ................................................. 10
1.18 FERC ............................................................... 10
1.19 Firm ............................................................... 10
1.20 FitchIBCA .......................................................... 10
1.21 Force Majeure ...................................................... 10
1.22 Generation Shopping Credits ........................................ 10
1.23 Good Utility Practice .............................................. 11
1.24 Gross Receipts Tax ................................................. 11
1.25 Guarantor .......................................................... 11
1.26 Imbalance Charges .................................................. 11
1.27 Interest Rate ...................................................... 11
1.28 Letter of Credit ................................................... 12
1.29 Load Management Actions ............................................ 12
1.30 Load Management Energy ............................................. 12
1.31 Load Management Energy Cost ........................................ 12
1.32 Market Value of Energy and Unforced Capacity ....................... 12
1.33 Monthly Generation Revenue ......................................... 13
1.34 Moody's ............................................................ 13
1.35 Performance Assurance .............................................. 13
1.36 PJM ................................................................ 13
1.37 PJM Ancillary Services ............................................. 13
1.38 PJM Standards ...................................................... 14
1.39 PJM Tariff ......................................................... 14
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
2
PPL EnergyPlus, LLC Original Sheet Xx. 0
Xxxx Xxxxxxxx XXXX Xx. 0
0.00 XXXX or Provider of Last Resort .................................... 14
1.41 POLR Capacity Obligation ........................................... 14
1.42 POLR Service ....................................................... 14
1.43 POLR Supply Amount ................................................. 15
1.44 PPL Electric Call Option ........................................... 15
1.45 PPL Electric Downgrade ............................................. 15
1.46 PPL EnergyPlus ..................................................... 16
1.47 PPL Zone ........................................................... 16
1.48 Primary Supplier ................................................... 16
1.49 PUC ................................................................ 16
1.50 RAA ................................................................ 16
1.51 Replacement Price .................................................. 16
1.52 Restructuring Settlement ........................................... 17
1.53 Retail Customers ................................................... 17
1.54 Retail Tariff ...................................................... 17
1.55 RFP ................................................................ 17
1.56 S&P ................................................................ 17
1.57 Sales Price ........................................................ 17
1.58 Schedule ........................................................... 18
1.59 Supplier Downgrade Event ........................................... 18
1.60 Supplier's Percentage .............................................. 18
1.61 Taxes .............................................................. 18
1.62 Termination Payment ................................................ 18
1.63 Third-Party Ancillary Services ..................................... 19
1.64 Transmission Provider .............................................. 19
1.65 Unforced Capacity .................................................. 19
ARTICLE 2: TERM ............................................................. 19
2.1 Term ............................................................... 19
2.2 Provisions Surviving Termination ................................... 19
ARTICLE 3: DESCRIPTION OF SERVICES .......................................... 20
3.1 Energy ............................................................. 20
3.2 Unforced Capacity .................................................. 20
3.3 Transmission Service ............................................... 22
3.4 Ancillary Services ................................................. 23
3.5 Primary Supplier ................................................... 23
3.6 Supply to Customers Under New Rate Schedules or Rate Riders ........ 23
ARTICLE 4: FORECASTING AND SCHEDULING ....................................... 24
4.1 Energy Forecasts ................................................... 24
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
3
PPL EnergyPlus, LLC Original Sheet No. 4
Rate Schedule FERC No. 9
4.2 Reliance on Forecasts .............................................. 24
4.3 Scheduling ......................................................... 24
ARTICLE 5: TAXES ............................................................ 25
5.1 Taxes .............................................................. 25
ARTICLE 6: RECONCILIATIONS AND PAYMENTS ..................................... 25
6.1 Reconciliation with PJM ............................................ 25
6.2 Payment of Monthly Generation Revenue .............................. 26
6.3 Transition Periods ................................................. 26
6.4 Advance Payment .................................................... 27
6.5 Distribution of Capacity Deficiency Revenues ....................... 27
6.6 PPL Electric Resettlement Process .................................. 28
6.7 Payment Disputes ................................................... 28
ARTICLE 7: FORCE MAJEURE .................................................... 28
7.1 Force Majeure ...................................................... 28
7.2 Force Majeure Event ................................................ 29
7.3 Transmission Service ............................................... 29
7.4 Force Majeure Procedures ........................................... 29
ARTICLE 8: CREDITWORTHINESS AND SECURITY .................................... 30
8.1 Supplier Creditworthiness and Security ............................. 30
8.2 PPL Electric Creditworthiness and Security ......................... 32
ARTICLE 9: REPRESENTATIONS AND WARRANTIES ................................... 34
9.1 Representations .................................................... 34
9.2 Duration ........................................................... 35
ARTICLE 10: EVENTS OF DEFAULT AND REMEDIES .................................. 35
10.1 Parties - Events of Default ........................................ 35
10.2 Guarantors - Events of Default ..................................... 36
10.3 Remedies ........................................................... 36
10.4 Declaration of an Early Termination Date and Calculation
Of Termination Payment ............................ 37
10.5 Failure to Deliver/Accept .......................................... 38
ARTICLE 11: DISAGREEMENTS ................................................... 39
11.1 Informal Resolution ................................................ 39
11.2 Arbitration ........................................................ 39
11.3 FERC Jurisdiction .................................................. 40
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
4
PPL EnergyPlus, LLC Original Sheet No. 5
Rate Schedule FERC No. 9
ARTICLE 12: INDEMNIFICATION AND LIABILITY ................................... 41
12.1 Title Transfer ..................................................... 41
12.2 Supplier's Indemnification of PPL Electric ......................... 41
12.3 PPL Electric's Indemnification of Supplier ......................... 42
12.4 Indemnification Procedures ......................................... 42
12.5 Limitation of Liability ............................................ 42
12.6 Limitation of Liability for Retail Tariff Actions .................. 43
12.7 Limitation of Liability for Outages and Reliability Actions ........ 44
12.8 RFP Information .................................................... 44
ARTICLE 13: AUDITING AND CONFIDENTIALITY .................................... 45
13.1 Auditing ........................................................... 45
13.2 PJM Requirements ................................................... 45
13.3 Confidentiality .................................................... 45
ARTICLE 14: ASSIGNMENT ...................................................... 46
14.1 Assignment ......................................................... 46
14.2 Release of Rights .................................................. 46
14.3 Non-complying Transfers ............................................ 47
14.4 Successors and Assigns ............................................. 47
ARTICLE 15: REGULATORY ...................................................... 47
15.1 Regulatory Approvals ............................................... 47
15.2 EGS Status ......................................................... 48
15.3 Future Laws ........................................................ 48
15.4 Regulatory Risk .................................................... 48
15.5 Sections 205 and 206 of the Federal Power Act ...................... 49
ARTICLE 16: GENERAL PROVISIONS .............................................. 49
16.1 Governing Law and Venue ............................................ 49
16.2 Notices ............................................................ 49
16.3 Relationship ....................................................... 50
16.4 Entire Agreement ................................................... 50
16.5 Waiver ............................................................. 51
16.6 Interpretation of Agreement ........................................ 51
16.7 Counterparts ....................................................... 51
16.8 Severability ....................................................... 51
16.9 No Third Party Beneficiaries ....................................... 52
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
5
PPL EnergyPlus, LLC Original Sheet Xx. 0
Xxxx Xxxxxxxx XXXX Xx. 0
GENERATION SUPPLY AGREEMENT
BETWEEN
PPL ELECTRIC UTILITIES CORPORATION
AND
PPL ENERGY PLUS, LLC
PREAMBLE
This GENERATION SUPPLY AGREEMENT ("Agreement") is made and entered into
this 20th day of June, 2001, between PPL ELECTRIC UTILITIES CORPORATION, a
Pennsylvania corporation ("PPL Electric"), and PPL ENERGY PLUS, LLC, a
Pennsylvania limited liability company ("Supplier") (PPL Electric and Supplier
are sometimes referred to herein individually as a "Party" and collectively as
the "Parties").
RECITALS
WHEREAS, the Pennsylvania Public Utility Commission approved a
settlement of PPL Electric's restructuring proceeding in Docket No. R-00973954
on August 27, 1998, which among other things required that PPL Electric serve as
the Provider of Last Resort ("POLR") until December 31, 2009 for retail electric
customers in PPL Electric's service territory that do not take service from
other suppliers;
WHEREAS, the sale of PPL Electric's generating facilities and other
assets require that PPL Electric obtain from a third party the capacity and
energy necessary to meet its POLR obligations;
WHEREAS, Supplier has or is willing to secure the wholesale capacity
and energy necessary to meet one hundred percent (100%) of PPL Electric's POLR
obligations;
WHEREAS, PPL Electric desires to purchase and Supplier desires to sell
to PPL Electric the wholesale capacity and energy necessary to meet one hundred
percent 100% of PPL Electric's POLR obligation; and
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
6
PPL EnergyPlus, LLC Original Sheet Xx. 0
Xxxx Xxxxxxxx XXXX Xx. 0
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, and intending to be legally bound, the Parties agree as
follows:
ARTICLE 1: DEFINITION OF TERMS
1.1 Affiliate means, with respect to any person or entity, any other
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person or entity (other than an individual) that, directly or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person or entity.
For this purpose, there shall be a rebuttable presumption that
"control" is established by the direct or indirect ownership of ten
percent or more of the outstanding capital stock or other equity
interests having ordinary voting power.
1.2 Alternate Supplier means an EGS that is providing retail generation
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service to a PPL Electric customer that has elected a new supplier.
1.3 Assumed Ongoing POLR Revenue means the value of Monthly Generation
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Revenue for the period used to determine the Collateral Termination
Payment, as established by agreement of the Parties pursuant to
Section 1.8.
1.4 Bankrupt means with respect to any entity, such entity: (a) files a
--------
petition or otherwise commences, authorizes or acquiesces in the
commencement of a proceeding or cause of action under any bankruptcy,
insolvency, reorganization or similar law, or has any such petition
filed or commenced against it; (b) makes an assignment or any general
arrangement for the benefit of creditors; (c) otherwise becomes
bankrupt or insolvent (however evidenced); (d) has a liquidator,
administrator, receiver, trustee, conservator or similar official
appointed with respect to it or any substantial portion of its
property or assets; or (e) is generally unable to pay its debts as
they fall due.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
7
PPL EnergyPlus, LLC Original Sheet Xx. 0
Xxxx Xxxxxxxx XXXX Xx. 0
1.5 Business Day means any day except a Saturday, Sunday, or a Federal
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Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close
at 5:00 p.m. local time for the relevant Party's principal place of
business. When evaluating the Business Day on which notice, payment or
delivery must be sent, the relevant Party shall be the Party from whom
the notice, payment or delivery is being sent. When evaluating the
Business Day on which notice, payment or delivery must be received,
the relevant Party shall be the Party by whom the notice or payment or
delivery is to be received.
1.6 Capacity Deficiency Charges shall have the meaning set forth in the
---------------------------
RAA. Capacity Deficiency Charges shall be deemed to include any
successor charges approved by PJM, and those successor charges shall
have the meaning established by PJM.
1.7 CDS means the Competitive Default Service provided by a POLR other
---
than PPL Electric in accordance with the terms and conditions of the
Restructuring Settlement.
1.8 Collateral Termination Payment shall mean Supplier's Percentage of the
------------------------------
absolute difference between the Assumed Ongoing POLR Revenue and the
Market Value of Energy and Unforced Capacity required to meet the POLR
Supply Amount and the POLR Capacity Obligation, as calculated for the
remaining term of this Agreement on any day that a Party evaluates the
other Party's compliance with Article 8 to this Agreement. Within 30
days of the date of this Agreement, the Parties shall agree upon the
method by which the Collateral Termination Payment, Assumed Ongoing
POLR Revenue, and Market Value of Energy and Unforced Capacity are
calculated and the information used in such calculation.
1.9 Collateral Threshold shall be, in the case of Supplier, an amount
--------------------
equal to $100 million dollars and, in the case of PPL Electric, an
amount equal to $150 million dollars.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
8
PPL EnergyPlus, LLC Original Sheet No. 9
Rate Schedule FERC No. 9
1.10 Company Use Energy means the actual hourly Energy used at or by the
------------------
facilities and operations of PPL Electric and certain Affiliates,
including substations, operating headquarters, construction and
maintenance facilities, office buildings, customer service operations,
communications facilities and towers.
1.11 Credit Rating means, with respect to any entity, the rating then
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assigned to such entity's unsecured, senior long-term debt obligations
(not supported by third party credit enhancements) or if such entity
does not have a rating for its senior unsecured long-term debt, the
rating then assigned to such entity as an issues rating by S&P,
Moody's, FitchIBCA or any other rating agency agreed by the Parties.
1.12 Cross Default Amount shall be an amount equal to $100 million dollars
--------------------
with respect to both Supplier and PPL Electric.
1.13 Delivery Point means the PPL Zone as defined herein.
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1.14 Early Termination Date means the day designated by the Non-Defaulting
----------------------
Party as the day this Agreement is terminated due to an Event of
Default by the Defaulting Party. The Early Termination Date shall be
no earlier than the day notice of an Early Termination Date is
effective and no later than 20 days after such notice is effective.
1.15 EGS means an electric generation supplier that is licensed by the PUC
---
to provide retail electricity services to end-use customers.
1.16 Energy means the electrical output of an electric generating unit,
------
usually stated in kilowatt-hours or megawatt-hours.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
9
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.17 Equitable Defenses means any bankruptcy, insolvency, reorganization
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and other laws affecting creditors' rights generally, and with regard
to equitable remedies, the discretion of the court before which
proceedings to obtain same may be pending.
1.18 FERC means the Federal Energy Regulatory Commission or any successor
----
government agency.
1.19 Firm means that quality of electric service that requires the Supplier
----
to provide Unforced Capacity and Energy without interruption or
curtailment, except in circumstances qualifying as a Force Majeure
event under this Agreement.
1.20 FitchIBCA means Fitch, Inc. or its successor.
---------
1.21 Force Majeure shall have the meaning set forth in Article 7.
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1.22 Generation Shopping Credits mean the rates and charges billed to
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Retail Customers for capacity and energy under the Retail Tariff
(including Gross Receipts Taxes), pursuant to the Restructuring
Settlement, the Retail Tariff and the PUC procedures and rules in
effect as of the date of this Agreement and as modified during the
term of this Agreement by the PUC, including any changes to those
rates and charges that are contemplated by the Restructuring
Settlement, but excluding any changes to those rates and charges that
are not contemplated by the Restructuring Settlement. For purposes of
this section, changes contemplated by the Restructuring Settlement
shall include changes to those rates and charges made pursuant to
Section C of the Restructuring Settlement, and changes not
contemplated by the Restructuring Settlement shall include changes to
those rates and charges made pursuant to the qualified rate order
entered by the PUC on May 21, 1999 at Docket No. R-00994637 (Exhibit
A, Paragraph 37). The Generation Shopping Credits in effect at the
commencement of this Agreement are contained in the Retail Tariff.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
10
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.23 Good Utility Practice means the practices, methods and acts engaged in
---------------------
or approved by a significant portion of the electric power industry
during the relevant time period, or the practices, methods and acts
which, in the exercise of reasonable judgment in light of the facts
known at the time the decision was made, could have been expected to
accomplish the desired result consistent with reliability, safety,
expedition, the requirements of governmental agencies having
jurisdiction and, if appropriate or relevant under the transaction in
question, at the lowest reasonable cost. Good Utility Practice is not
intended to be limited to the optimum practice, method or act to the
exclusion of all others, but rather to constitute a spectrum of
acceptable practices, methods or acts.
1.24 Gross Receipts Tax means the Pennsylvania state tax that is collected
------------------
by PPL Electric and is levied on every dollar of retail revenue
collected by PPL Electric, as amended or modified from time to time.
1.25 Guarantor means an entity that provides a corporate guaranty on one
---------
Party's behalf in a form acceptable to the other Party.
1.26 Imbalance Charges shall include any scheduling penalties, imbalance
-----------------
penalties, or unauthorized overrun penalties, congestion charges,
additional transmission charges, cash out charges, oversupply charges,
undersupply charges, spot or balancing market charges, emergency
energy charges, banking charges or similar penalties, fees or charges
assessed by PJM, an independent system operator, Regional Transmission
Organization or Transmission Provider for failure to satisfy balance,
nomination or scheduling requirements.
1.27 Interest Rate means, for any date, the lesser of: (a) the per annum
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rate of interest equal to the prime lending rate as may from time to
time be published in The Wall Street Journal under "Money Rates" on
such day (or if not published on such day on the most recent preceding
day on which
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
11
PPL EnergyPlus, LLC Original Sheet No. 12
Rate Schedule FERC No. 9
published), plus two percent (2%); and (b) the maximum rate permitted
by applicable law.
1.28 Letter of Credit means one or more irrevocable, transferable standby
----------------
letters of credit issued by a U.S. commercial bank or a foreign bank
with a U.S. branch, with such bank having a credit rating of at least
"A-" from S&P or "A3" from Moody's, in a form acceptable to the Party
requiring the Letter of Credit.
1.29 Load Management Actions mean load interruptions for economic and
-----------------------
emergency load control pursuant to the Interruptible Service Rate
provisions of the Retail Tariff and/or the cancellation of Demand Free
Days pursuant to Rate Schedules LP-5 and/or LP-6 of the Retail Tariff.
1.30 Load Management Energy means the hourly amount of Energy consumed by
----------------------
Retail Customers during the hours the Load Management Action was
requested by Primary Supplier that would not have been consumed had
PPL Electric instituted the Load Management Action as directed by
Primary Supplier.
1.31 Load Management Energy Cost means the sum of the products of the
---------------------------
hourly PPL Zonal locational marginal price, as reported by PJM, and
the Load Management Energy. Primary Supplier shall not be required to
utilize or change its utilization of its owned or controlled assets,
including contractual assets, or market positions to minimize PPL
Electric's liability for Load Management Energy.
1.32 Market Value of Energy and Unforced Capacity means the sum of the
--------------------------------------------
market values, respectively, of the POLR Supply Amount and POLR
Capacity Obligation for the period used to determine the Collateral
Termination Payment, as established by agreement of the Parties
pursuant to Section 1.8.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
12
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.33 Monthly Generation Revenue means the amount of revenue attributable to
--------------------------
all Retail Customers that were billed by PPL Electric for energy and
capacity during a particular month, whether or not such billed amounts
have actually been paid by such Retail Customers, net of the
following: (a) Gross Receipts Tax; (b) any revenue collected under the
State Tax Adjustment Surcharge; and (c) the amount owed to PPL
EnergyPlus for purchases under the PPL Electric Call Option; provided
that any change in Tax rates from those in effect on the date of this
Agreement, and/or the imposition of any Tax not currently in effect,
shall not operate to change the Monthly Generation Revenue, and
further provided that if any customer or class of customers that would
have been served under a rate schedule or rate rider in effect on the
date of this Agreement, is required by an order of the PUC to be
served either under (a) a different rate schedule or rate rider; or
(b) a rate schedule or rate rider that is not in effect as of the date
of this Agreement, then the Monthly Generation Revenue shall be
calculated to include the revenues that would have been attributable
to such customer or class of customers had such order not been issued.
1.34 Moody's means Xxxxx'x Investor Services, Inc. or its successor.
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1.35 Performance Assurance means collateral in the form of either cash,
---------------------
Letter(s) of Credit, or other security acceptable to the Party
requesting the Performance Assurance. Notwithstanding any provision in
this Agreement to the contrary, either Party shall be entitled to
require Letters of Credit or other Performance Assurance in an amount
not to exceed $300 million dollars.
1.36 PJM means the PJM Interconnection, L.L.C., the PJM Office of
---
Interconnection, and any successor entities, including a Regional
Transmission Organization.
1.37 PJM Ancillary Services means the services (or their successors)
----------------------
defined as "Ancillary Services" under the PJM Tariff, as modified from
time to time, including the following: PJM Scheduling, System Control
and Dispatch Service Charges; RTO Scheduling, System Control Dispatch
Service Charges; Reactive Supply and Voltage Control from Generation
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
13
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
Sources Service; Regulation and Frequency Response; Energy Imbalance;
Operating Reserves--Spinning Reserve Service; Operating
Reserves--Supplemental Reserve Service; and Ramapo PAR Facilities.
1.38 PJM Standards mean all criteria, rules and standards, billing system
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procedures, operating procedures, manuals, tariffs and market rules
adopted by PJM, as amended from time to time, and any successor
standards.
1.39 PJM Tariff means the PJM Open Access Transmission Tariff, including
----------
any schedules, appendices or exhibits attached thereto, as amended and
revised from time-to-time, and any successor transmission tariff.
1.40 POLR or Provider of Last Resort means the entity satisfying the
-------------------------------
obligations set forth in the Pennsylvania Electricity Generation
Customer Choice and Competition Act and the Restructuring Settlement.
1.41 POLR Capacity Obligation means the amount of Unforced Capacity,
------------------------
expressed in megawatts, equal to: (a) the actual amount of PPL
Electric's Unforced Capacity requirements with respect to all Retail
Customers as determined by PJM under the RAA and PJM Standards; minus
(b) the actual amount of Unforced Capacity, if any, supplied to PPL
Electric by PPL EnergyPlus under the PPL Electric Call Option. It is
understood that the POLR Capacity Obligation may change over time as a
result of several factors, including: changes in peak load
responsibility; changes in Unforced Capacity requirements; the
requirement that certain residential customers be assigned to CDS; and
customer decisions regarding whether to take retail service from PPL
Electric (as POLR), a CDS supplier, or an Alternate Supplier.
1.42 POLR Service means retail electric service provided to Retail
------------
Customers that do not take service from Alternate Suppliers or CDS
suppliers, subject to the terms and conditions set forth in the
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
14
PPL EnergyPlus, LLC Original Sheet No. 15
Rate Schedule FERC No. 9
Pennsylvania Electricity Generation Customer Choice and Competition
Act, the Retail Tariff and the Restructuring Settlement.
1.43 POLR Supply Amount means the amount of Energy, expressed in kilowatts
------------------
per hour, equal to: (a) the actual hourly Energy, including all
losses, necessary to serve all Retail Customers; plus (b) Company Use
Energy; minus (c) the actual hourly Energy, if any, supplied to PPL
Electric by PPL EnergyPlus under the PPL Electric Call Option. It is
understood that the POLR Supply Amount may change over time as a
result of several factors, including: seasonal factors; load
fluctuation; increased or decreased usage; transmission or
distribution outages; extremes in weather; the requirement that
certain residential customers be assigned to CDS; and customer
decisions regarding whether to take retail service from PPL Electric
(as POLR), a CDS supplier, or an Alternate Supplier.
1.44 PPL Electric Call Option means the contractual right of PPL Electric
------------------------
to purchase an amount of Energy and Unforced Capacity from PPL
EnergyPlus, under Article 4 of the Power Sales Agreement between PPL
Electric and PPL EnergyPlus designated as PPL EnergyPlus' FERC
Electric Rate Schedule No. 4.
1.45 PPL Electric Downgrade Event means any of the following: (a) the
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Credit Rating of PPL Electric or its Guarantor(s) by S&P is below
"BBB-"; (b) the Credit Rating of PPL Electric or its Guarantor(s) by
Xxxxx'x is below "Baa3"; (c) the Credit Rating of PPL Electric or its
Guarantor(s) by FitchIBCA below "BBB-"; (d) neither PPL Electric's nor
its Guarantor(s) Credit Rating has a Credit Rating by either S&P,
Moody's, or FitchIBCA; or (e) with respect to PPL Electric or its
Guarantor(s), the occurrence and continuation of a default or other
similar condition or event under one or more agreements or
instruments, individually or collectively, relating to indebtedness
for borrowed money which in aggregate is in excess of the Cross
Default Amount, which results in such indebtedness becoming
immediately due and payable.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
15
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.46 PPL EnergyPlus means PPL EnergyPlus, LLC.
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1.47 PPL Zone shall have the meaning set forth in the PJM Tariff. If the
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PJM Tariff does not establish a meaning for the PPL Zone, or if PJM
otherwise eliminates the PPL Zone, then the PPL Zone shall mean the
collection of buses constituting the PPL Electric system.
1.48 Primary Supplier means the Supplier designated by PPL Electric to
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exercise management responsibility for Load Management Actions. The
Primary Supplier shall be permitted to use the ALM credits allowed to
PPL Electric pursuant to and as calculated under the RAA in such
manner, as in its sole discretion, it shall determine.
1.49 PUC means the Pennsylvania Public Utility Commission and any successor
---
government agency.
1.50 RAA means the Reliability Assurance Agreement Among Load Serving
---
Entities in the PJM Control Area, or any successor agreement.
1.51 Replacement Cost means the cost at which PPL Electric, acting in a
----------------
commercially reasonable manner, purchases a replacement for Unforced
Capacity and Energy specified in this Agreement but not delivered by
Supplier, plus: (a) costs reasonably incurred by PPL Electric in
purchasing such substitute Unforced Capacity and Energy; (b)
additional transmission and congestion charges, if any, reasonably
incurred by PPL Electric; and (c) any penalties, ratcheted demand or
similar charges, including Imbalance Charges. Alternatively, at PPL
Electric's option, Replacement Cost shall mean the market price for
the Unforced Capacity and Energy not delivered, as determined by PPL
Electric in a commercially reasonable manner. PPL Electric shall not
be required to utilize or change its utilization of its owned or
controlled assets, including contractual assets, or market positions
to minimize Supplier's liability.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
16
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.52 Restructuring Settlement means the settlement of PPL Electric's
------------------------
restructuring proceeding approved by the PUC in Docket No. R-00973954
on August 27, 1998, including all appendices, attachments, or exhibits
thereto.
1.53 Retail Customers means the end-use electric customers in PPL
----------------
Electric's service territory that take POLR Service from PPL Electric
under the Retail Tariff, excluding any and all customers taking
service under Rate Schedule LPEP.
1.54 Retail Tariff means the schedules of terms, conditions and rates
-------------
pursuant to which PPL Electric intends to xxxx all retail customers,
excluding any and all customers under Rate Schedule LPEP, during the
term of this Agreement, as may be amended from time to time subject to
PUC approval.
1.55 RFP means the PPL Electric Request for Proposals that led to this
---
Agreement.
1.56 S&P means the Standard & Poor's Rating Group (a division of
---
XxXxxx-Xxxx, Inc.) or its successor.
1.57 Sales Price means the price at which Supplier, acting in a
-----------
commercially reasonable manner, resells any Unforced Capacity and
Energy not accepted by PPL Electric, deducting from such proceeds any:
(a) costs reasonably incurred by Supplier in reselling such Unforced
Capacity and Energy; (b) additional transmission and congestion
charges, if any, reasonably incurred by Supplier in delivering such
Unforced Capacity and Energy to the third party purchasers; and (c)
any penalties, ratcheted demand or similar charges. Alternatively, at
Supplier's option, Sales Price shall mean the market price for such
Unforced Capacity or Energy not accepted, as determined by Supplier in
a commercially reasonable manner. Supplier shall not be required to
utilize or change its utilization of its owned or controlled assets,
including contractual assets, or market positions to minimize PPL
Electric's liability.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
17
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
1.58 Schedule(ing) means the actions of Supplier or its designated
-------------
representatives, including Transmission Providers if applicable, of
notifying, requesting and confirming to each other and any other
necessary entities of the quantity of Unforced Capacity and Energy to
be delivered on any given hour during the term of this Agreement.
1.59 Supplier Downgrade Event shall mean any of the following: (a) the
------------------------
Credit Rating of Supplier's Guarantor(s) by S&P is below "BBB-"; (b)
the Credit Rating of Supplier's Guarantor(s) by Xxxxx'x is below
"Baa3"; (c) the Credit Rating of Supplier's Guarantor(s) by FitchIBCA
is below "BBB-"; (d) Supplier's Guarantor(s) has no Credit Rating by
either S&P, Moody's, or FitchIBCA; or (e) with respect to Supplier or
its Guarantor(s), the occurrence and continuation of a default or
other similar condition or event under one or more agreements or
instruments, individually or collectively, relating to indebtedness
for borrowed money which in aggregate is in excess of the Cross
Default Amount, which results in such indebtedness becoming
immediately due and payable.
1.60 Supplier's Percentage shall mean one hundred percent (100%).
---------------------
1.61 Tax(es) means all ad valorem, property, occupation, utility, gross
-------
receipts, sales use, excise, and other taxes or governmental charges,
licenses, permits, and assessments, other than taxes based on net
income or net worth.
1.62 Termination Payment shall have the meaning provided below depending on
-------------------
whether Supplier or PPL Electric is the Defaulting Party. Where
Supplier is the Defaulting Party, Termination Payment shall mean the
sum of: (a) the amount of any damages under Section 10.5 for any
failure to deliver prior to (and including) the Early Termination
Date; plus (b) any amount due to PPL Electric under Section 3.2.4.
Where PPL Electric is the Defaulting Party, Termination Payment shall
mean the sum of: (a) the amount of any damages under Section 10.5 for
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
18
PPL EnergyPlus, LLC Original Sheet No. 19
Rate Schedule FERC No. 9
any failure to accept prior to (and including) the Early Termination
Date; plus (b) all amounts owed but not yet paid by PPL Electric,
whether or not such amounts are then due, for performance provided
prior to the Early Termination Date under this Agreement.
1.63 Third-Party Ancillary Services means all services or requirements
------------------------------
necessary to support the transmission of capacity and Energy from
resources to loads while maintaining reliable operation of any
third-party transmission systems (other than the PJM transmission
system) in accordance with Good Utility Practice, including:
Scheduling, System Control and Dispatch Service Charges; Reactive
Supply and Voltage Control from Generation Service; Regulation and
Frequency Response; Energy Imbalance; Operating Reserves--Spinning
Reserve Service; and Operating Reserves--Supplemental Reserve Service.
1.64 Transmission Provider means an entity transmitting Energy to the
---------------------
Delivery Point.
1.65 Unforced Capacity shall have the meaning set forth in the RAA.
-----------------
Unforced Capacity shall be deemed to include a successor product
approved by PJM, and that successor product shall have the meaning
established by PJM.
ARTICLE 2: TERM
2.1 Term. The term of this Agreement shall commence at 0000 hours on
----
January 1, 2002, and shall terminate automatically at 2400 hours on
December 31, 2009, unless terminated earlier pursuant to Article 10 or
15.
2.2 Provisions Surviving Termination. The provisions of Articles 5-8,
--------------------------------
10-13 and 16 and Section 15.4 shall survive any termination of this
Agreement, including any definitions under Article 1 applicable to the
surviving Articles and Sections.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
19
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
ARTICLE 3: DESCRIPTION OF SERVICES
3.1 Energy. For every hour during the term of this Agreement, Supplier
------
shall provide and sell, and PPL Electric shall accept and purchase, an
amount of energy equal to Supplier's Percentage of the POLR Supply
Amount, rounded upward to the nearest kilowatt-hour. Supplier shall
provide its fixed percentage of the POLR Supply Amount on a Firm,
continuous and hourly basis.
3.1.1 Actual Energy Required. Supplier is responsible for
----------------------
providing the amount of Energy equal to its percentage of
the POLR Supply Amount.
3.1.2 Character of Energy. All energy delivered under this
-------------------
Agreement shall be in the form of three-phase alternating
current having a nominal frequency of sixty cycles per
second.
3.1.3 PPL Electric Call Option. PPL Electric shall purchase Energy
------------------------
under the PPL Electric Call Option during each hour of every
day during the term of this Agreement. Energy purchased
under the PPL Electric Call Option shall be accounted for as
provided for under Section 1.43.
3.2 Unforced Capacity. Supplier shall provide and sell, and PPL Electric
-----------------
shall accept and purchase, an amount of Unforced Capacity equal to
Supplier's Percentage of the POLR Capacity Obligation. Supplier shall
provide Unforced Capacity on the same basis (daily, seasonal or any
other basis) as PJM requires PPL Electric to provide Unforced Capacity
under the RAA, and may meet the Unforced Capacity obligations in this
Agreement through any mechanism acceptable to PJM.
3.2.1 Actual Unforced Capacity Required. Supplier is also
---------------------------------
responsible for providing the amount of Unforced Capacity
equal to its percentage of the POLR Capacity.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
20
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
3.2.2 PPL Electric Call Option. PPL Electric shall purchase
------------------------
Unforced Capacity under the PPL Electric Call Option every
day during the term of this Agreement, and such Unforced
Capacity shall be accounted for as provided under Section
1.41.
3.2.3 PJM Requirements. Supplier shall take all action, including
----------------
cooperating with PPL Electric so PPL Electric can take any
necessary action, required to ensure that the Unforced
Capacity that the Supplier is responsible for providing
under this Agreement is available to PPL Electric to be
credited against PPL Electric's Unforced Capacity obligation
as determined by PJM. Supplier will allow PPL Electric
reasonable access to and the opportunity to comment on data
submitted by Supplier to PJM relating to Supplier's
provision of Unforced Capacity. The obligation of
confidentiality provided in Article 13 will apply to all
data and information to which Supplier provides PPL Electric
access.
3.2.4 Capacity Deficiency Charges. If PPL Electric fails to
---------------------------
satisfy fully its Unforced Capacity obligation under the RAA
for a period for which an Unforced Capacity obligation is
established, and Supplier has failed to meet its obligations
under this Agreement pursuant to Sections 3.2 and 3.2.1 to
provide Unforced Capacity for such period, then Supplier
shall pay to PPL Electric a dollar amount equal to the sum
of: (1) the Capacity Deficiency Charges assessed by PJM for
such period attributable to the Supplier's failure to meet
its obligations to provide Unforced Capacity; and (2) the
distribution of capacity deficiency revenues that PPL
Electric would have received from PJM for such period had
PPL Electric fully satisfied its Unforced Capacity
obligation under the RAA for such period. In the event that
a person or persons other than Supplier was obligated to PPL
Electric to provide Unforced Capacity for a period, and such
other person(s) failed to provide all of the Unforced
Capacity each was obligated to provide, the amount payable
under (2) above shall be apportioned among Supplier and all
other persons failing to provide Unforced Capacity for such
period in proportion to the amount of Unforced Capacity that
each had failed to provide. For purposes of this section, a
period for which an Unforced Capacity obligation is
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
21
PPL EnergyPlus, LLC Original Sheet No. 22
Rate Schedule FERC No. 9
established shall mean an interval, portion of an interval,
or such other period established by the RAA as amended from
time to time. In the event that any persons other than
Supplier are obligated to PPL Electric to provide Unforced
Capacity for a period, Supplier shall not be obligated to
make the payment under (2) above, unless all such persons
are under the same obligation as Supplier to make such
payments.
3.2.5 Successor Unforced Capacity Requirements. Supplier and PPL
----------------------------------------
Electric agree that the intent of this Article is for
Supplier to provide a fixed percentage, equal to Supplier's
Percentage, of the POLR Capacity Obligation, which is
currently measured by the Unforced Capacity requirements
determined by PJM under the RAA and PJM Standards. If PJM
Standards or the RAA relating to Unforced Capacity are
modified, Supplier will comply with the modified PJM
Standards and RAA and will remain obligated to provide the
required amount of Unforced Capacity. Should Unforced
Capacity be replaced with some other service or product,
then Supplier shall provide and sell, and PPL Electric shall
accept and purchase, an amount of such replacement product
or service equal to Supplier's Percentage of PPL Electric's
requirements for such replacement product or service
associated with POLR Service. In that event, the provisions
of this Agreement relating to Unforced Capacity shall apply
to the replacement product or service instead of Unforced
Capacity.
3.3 Transmission Service. Supplier shall be responsible for all
--------------------
transmission service necessary to deliver the Energy and Unforced
Capacity supplied under this Agreement to the Delivery Point. PPL
Electric shall be responsible for transmission service at and from the
Delivery Point to the points at which PPL Electric delivers energy to
its customers, including network integration transmission service, or
its successor, under the PJM Tariff.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
22
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
3.4 Ancillary Services.
-------------------
3.4.1 PJM Ancillary Services. PPL Electric or its agent/contractor
----------------------
shall be responsible for securing and providing the
following Ancillary Services, or their successors as defined
by PJM, required to deliver the POLR Supply Amount within
PJM: PJM Scheduling, System Control and Dispatch Service
Charges; PPL Electric's RTO Scheduling, System Control
Dispatch Service Charges; Reactive Supply and Voltage
Control from Generation Sources Service; Regulation and
Frequency Response; Operating Reserves--Spinning Reserve
Service; Operating Reserves--Supplemental Reserve Service;
and Ramapo PAR Facilities. Supplier shall be responsible for
all other services and their costs within PJM, ancillary or
otherwise, necessary to meet its obligations to provide
Energy and Unforced Capacity at the Delivery point,
including Energy Imbalance.
3.4.2 Third-Party Ancillary Services. Supplier will be responsible
------------------------------
for all Ancillary Services and any other services required
to deliver its share of the POLR Supply Amount across any
transmission system other than the PJM transmission system.
3.5 Primary Supplier. Supplier shall also serve as PPL Electric's Primary
----------------
Supplier and shall have the responsibilities and benefits of the
Primary Supplier as provided herein.
3.6 Supply to Customers Under New Rate Schedules or Rate Riders. The
-----------------------------------------------------------
Parties agree to negotiate, in good faith, for Supplier to provide the
Energy and Unforced Capacity necessary to serve any customer or class
customers that are required by an order of the PUC to be served under
a rate schedule or rate rider of the Retail Tariff that is not in
effect as of the date of this Agreement.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
23
PPL EnergyPlus, LLC Original Sheet No. 24
Rate Schedule FERC No. 9
ARTICLE 4: FORECASTING AND SCHEDULING
4.1 Energy Forecasts. Each Business Day during the term of this Agreement,
----------------
PPL Electric shall provide Supplier a seven-day, hourly forecast of
the POLR Supply Amount. The daily forecasts shall be provided
electronically each Business Day. At all times during the term of this
Agreement, PPL Electric shall provide Supplier a real-time data signal
providing a general indication of the POLR Supply Amount, based on
currently available metered interchange data and bilateral
transactions.
4.2 Reliance on Forecasts. Supplier has the option of independently
---------------------
generating forecasts of its Unforced Capacity and Energy obligations
or utilizing the forecasts provided by PPL Electric. Supplier and PPL
Electric acknowledge and agree that all forecasts provided by PPL
Electric under this Agreement and as part of the RFP process are based
on large numbers of assumptions and are subject to significant
uncertainties and contingencies, many of which are outside the control
of PPL Electric. Therefore, Supplier and PPL Electric also agree that
the forecasts provided under this Agreement and the RFP process are
non-binding and PPL Electric shall not have any liability for any
information contained, or not contained, in those forecasts. Nothing
in this Article, and no amount of reliance on the forecasts described
herein, reduces or eliminates Supplier's obligation to meet its
percentage of the POLR Supply Amount and the POLR Capacity Obligation
as set out in this Agreement.
4.3 Scheduling. Supplier shall be responsible for all Scheduling
----------
requirements necessary to ensure the delivery of the Unforced Capacity
and Energy delivered under this Agreement. In accordance with PJM
Standards, PPL Electric shall cooperate to establish an account for
Supplier with PJM. Supplier shall utilize this account to Schedule
with PJM, on PPL Electric's behalf, a load forecast reflecting
Supplier's proportionate responsibility for the POLR Supply Amount.
This load forecast may be based on the forecasts provided by PPL
Electric or Supplier's independently generated forecasts, but in
either event, Supplier retains all responsibility for the load
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
24
PPL EnergyPlus, LLC Original Sheet No. 25
Rate Schedule FERC No. 9
forecast it submits to PJM. Supplier shall also use its account to
Schedule with PJM all transmission service and generation services,
including Unforced Capacity and Energy, that Supplier is required to
provide under this Agreement. Supplier shall comply with all PJM
Standards when submitting data to and Scheduling with PJM.
ARTICLE 5: TAXES
5.1 Taxes. Supplier shall pay or cause to be paid all Taxes imposed by any
-----
government authority on or with respect to the Unforced Capacity and
Energy provided under this Agreement that arise prior to the Delivery
Point ("Supplier's Taxes"). New Taxes or changes in Tax rates imposed
directly on Supplier shall be borne by Supplier. PPL Electric shall
pay or cause to be paid all Taxes imposed by any government authority
on or with respect to the Unforced Capacity and Energy that arise at
and from the Delivery Point, other than ad valorem, franchise or
income taxes which are related to the sale of Unforced Capacity and
Energy under this Agreement and are, therefore, the responsibility of
the Supplier ("PPL Electric's Taxes"). If Supplier is required by law
or regulation to remit or pay PPL Electric's Taxes, PPL Electric shall
promptly reimburse Supplier for such Taxes. If PPL Electric is
required by law or regulation to remit or pay Supplier's Taxes,
Supplier shall promptly reimburse PPL Electric for such Taxes, and PPL
Electric may deduct the amount of any such Taxes from the sums due to
Supplier under Article 6 of this Agreement. Nothing shall obligate or
cause a Party to pay or be liable to pay any Taxes imposed by any
government authority for which it is exempt under the law. Both
Parties shall use reasonable efforts to administer this Agreement and
implement the provisions in accordance with their intent to minimize
Taxes.
ARTICLE 6: RECONCILIATIONS AND PAYMENTS
6.1 Reconciliation with PJM. The Parties acknowledge and agree that
-----------------------
Supplier shall be responsible for all reconciliations and settlements
required by PJM and associated with the sale of Unforced Capacity and
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
25
PPL EnergyPlus, LLC Original Sheet No. 26
Rate Schedule FERC No. 9
Energy under this Agreement, including the reconciliations required in
the real-time and balancing markets, or their successors, as defined
by PJM. Supplier shall be solely responsible for any credits and
charges, including Imbalance Charges, in connection with or relating
to the PJM reconciliations and settlements. To the extent any of these
credits and charges are assessed to PPL Electric's PJM account, rather
than Supplier's account, Supplier and PPL Electric agree to cooperate
so that PJM can make the appropriate adjustment in the next PJM
reconciliation to transfer the charges or credits to Supplier's
account. If PJM Standards relating to reconciliation, settlements, the
real-time market or the balancing market are modified, Supplier shall
comply with the modified PJM Standards and shall remain responsible
for all reconciliations and settlements with PJM. These provisions
shall not apply to any reconciliations or settlements required as part
of PJM's market for the Regulation Ancillary Service, or its
successor.
6.2 Payment of Monthly Generation Revenue. For each calendar month during
-------------------------------------
the term of this Agreement, PPL Electric shall remit to Supplier the
dollar amount equal to Supplier's Percentage of the Monthly Generation
Revenue, net of any payments due PPL Electric under Section 3.2.4. The
remission of Monthly Generation Revenue shall occur as soon as
practicable following the end of the calendar month to which the
Monthly Generation Revenue applies. The Parties recognize and agree
that in calculating the Monthly Generation Revenue, PPL Electric shall
pro rate by kilowatt-hour adjusted by time-use Supplier's portion of
the Monthly Generation Revenue, to the extent that Supplier supplied
only a portion of its obligations under this Agreement. PPL Electric
shall include with each payment of Monthly Generation Revenue an
accounting of the amount of kilowatt-hours by rate schedule or rate
rider that forms the basis of that month's payment.
6.3 Transition Periods. The Parties recognize that, during the first two
------------------
months of the term of this Agreement, the Monthly Generation Revenue
distributed by PPL Electric to Supplier will include revenue
attributable to service provided in December of 2001 and not under the
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
26
PPL EnergyPlus, LLC Original Sheet No. 27
Rate Schedule FERC No. 9
terms of this Agreement. As soon as practicable, PPL Electric shall
prorate the Monthly Generation Revenue remitted to Supplier during the
first two months of this Agreement such that Supplier receives only
those revenues associated with service provided on those days that
fall within the term of this Agreement. The Parties further recognize
that the initial Monthly Generation Revenue distributed by PPL
Electric to Supplier for December of 2009 will not include all revenue
attributable to service provided during that month. As soon as
practicable, PPL Electric shall remit to Supplier the remainder of the
Monthly Generation Revenue attributable to service provided in
December of 2009 such that Supplier receives all revenues associated
with service provided on those days that fall within the term of this
Agreement.
6.4 Advance Payment. In addition to the payment of Monthly Generation
---------------
Revenue, on or before January 1, 2002, PPL Electric shall remit to
Supplier for performance under this Agreement, the following amount:
$89,769,000.00.
6.5 Distribution of Capacity Deficiency Revenues. If PPL Electric receives
--------------------------------------------
a distribution of capacity deficiency revenues from PJM pursuant to
Schedule 11 of the RAA or any success thereto, and Supplier has met
its obligations under this Agreement pursuant to Sections 3.2 and
3.2.1 to provide Unforced Capacity for the period covered by such
capacity deficiency revenues, then PPL Electric shall distribute to
Supplier Supplier's Percentage of the capacity deficiency revenues
received from PJM. If PPL Electric would have received such a
distribution of capacity deficiency revenues but did not receive such
revenues because PPL Electric did not fully satisfy its Unforced
Capacity obligation under the RAA for the period covered by such
capacity deficiency revenues, and Supplier has met its obligations
under this Agreement pursuant to Sections 3.2 and 3.2.1 to provide
Unforced Capacity for such period, then PPL Electric shall calculate
and pay to Supplier the dollar amount equal to Supplier's Percentage
of the distribution of capacity deficiency revenues that PPL Electric
would have received from PJM had PPL Electric fully satisfied its
Unforced Capacity obligation under the RAA for such period.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
27
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
6.6 PPL Electric Resettlement Process. The Parties recognize that from
---------------------------------
time to time during the term of this Agreement, Retail Customers may
not be billed or may be billed incorrectly for POLR Service. As these
incorrect xxxxxxxx are discovered and corrected by PPL Electric, PPL
Electric shall account for such corrections in the next Monthly
Generation Revenue payment and will either remit or charge Supplier
according to the corrected billing.
6.7 Payment Disputes. In the event any portion of any payment is in
----------------
dispute, PPL Electric shall pay the undisputed amount to Supplier and
shall submit a detailed written explanation of the basis for the
dispute. The Parties shall use their best efforts to attempt to
resolve such disputes on a timely basis. Upon determination of the
correct payment amount, the adjusted payment shall be paid promptly
after such determination with interest at the Interest Rate and
computed from the date payment was originally due to the date payment
is made. If the Parties are unable to resolve the dispute, either
Party may exercise its available administrative or legal remedies,
including those set forth in Article 11.
ARTICLE 7: FORCE MAJEURE
7.1 Force Majeure. To the extent either Party is prevented by Force
-------------
Majeure from carrying out, in whole or part, its obligations under
this Agreement and such Party (the "Claiming Party") has complied with
the procedures in Section 7.4, then the Claiming Party shall be
excused from the performance of its obligations with respect to this
Agreement (other than the obligation to make payments then due or
becoming due with respect to performance prior to the Force Majeure).
The Claiming Party shall remedy the Force Majeure with all reasonable
dispatch. The non-Claiming Party shall not be required to perform or
resume performance of those obligations that correspond to the
obligations of the Claiming Party excused by Force Majeure; provided,
however, that the non-Claiming Party shall only be excused from
performing or resuming performance to the same extent that the
Claiming Party is excused by Force Majeure.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
28
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
7.2 Force Majeure Event. Force Majeure means an event or circumstance that
-------------------
prevents one Party from performing its obligations under this
Agreement, which event or circumstance was not foreseeable as of the
date this Agreement was agreed to, which is not within the reasonable
control of, or the result of the negligence of, the Claiming Party,
and which, by the exercise of due diligence, the Claiming Party is
unable to overcome or avoid or cause to be avoided. Force Majeure
shall not be based on: (a) PPL Electric's inability economically to
use or resell the services purchased hereunder; (b) the loss, failure
or cost of Unforced Capacity and Energy needed by Supplier to meet its
obligations under this Agreement; or (c) Supplier's ability to sell
the Unforced Capacity and Energy at a price greater than the payment
specified in this Agreement.
7.3 Transmission Service. Supplier may not raise a claim of Force Majeure
--------------------
based in whole or in part on curtailment or interruption by a
Transmission Provider unless: (a) Supplier has contracted for firm
transmission with a Transmission Provider for the Unforced Capacity
and Energy to be delivered to or accepted at the Delivery Point; (b)
equivalent amounts of Unforced Capacity and Energy are otherwise
unavailable to Supplier for delivery to the Delivery Point; (c) such
curtailment or interruption is due to "force majeure" or
"uncontrollable force" or a similar term as defined under the
Transmission Provider's transmission tariff; provided, however, that
existence of the foregoing factors shall not be sufficient to
conclusively or presumptively prove the existence of a Force Majeure
absent a showing of other facts and circumstances which in the
aggregate with such factors establish that a Force Majeure, as defined
in Section 7.2, has occurred.
7.4 Force Majeure Procedures. Upon the occurrence of an event of Force
------------------------
Majeure, the Claiming Party shall: (a) provide prompt written notice
of such Force Majeure event to the other Party, including an
estimation of its expected duration and the probable impact on the
performance of its obligations hereunder; (b) exercise all reasonable
efforts in accordance with Good Utility Practice to continue to
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
29
PPL EnergyPlus, LLC Original Sheet No. 30
Rate Schedule FERC No. 9
perform its obligations under this Agreement; (c) expeditiously take
action to correct or cure the event or condition excusing performance,
provided, however, that settlement of labor disputes will be
completely within the sole discretion of the Party affected by such
labor dispute; (d) exercise all reasonable efforts to mitigate or
limit damages to the other Party; and (e) provide prompt notice to the
other Party of the cessation of the event or condition giving rise to
its excuse from performance. Any obligation under this Agreement shall
be suspended only to the extent caused by such Force Majeure event and
only during the continuance of any inability of performance caused by
such Force Majeure event but for no longer period.
ARTICLE 8: CREDITWORTHINESS AND SECURITY
8.1 Supplier Creditworthiness and Security.
---------------------------------------
8.1.1 Financial Information. If requested by PPL Electric,
---------------------
Supplier or any Guarantor shall deliver: (a) within 120 days
following the end of each fiscal year, a copy of their
respective annual reports containing audited consolidated
financial statements for such fiscal year; and (b) within 60
days after the end of each of their respective first three
fiscal quarters of each fiscal year, a copy of their
quarterly reports, containing unaudited consolidated
financial statements for such fiscal quarter. In all cases,
the statements shall be for the most recent accounting
period and prepared in accordance with generally accepted
accounting principles; provided, however, that should any
such statements not be available on a timely basis due to a
delay in preparation or certification, such delay shall not
be an Event of Default so long as Supplier and any Guarantor
diligently pursue the preparation, certification and
delivery of the statements.
8.1.2 Collateral Threshold. If at any time and from time to time
--------------------
during the term of this Agreement (and notwithstanding
whether an Event of Default has occurred), the Collateral
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
30
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
Termination Payment exceeds the Collateral Threshold, then,
on any Business Day, PPL Electric may request Supplier to
provide Performance Assurance in an amount equal to the
amount by which the Collateral Termination Payment exceeds
the sum of the relevant Collateral Threshold (rounding
upwards for any fractional amount to the next $200,000) plus
any amounts owed but not yet paid by PPL Electric, whether
or not such amounts are then due, for performance provided
under this Agreement prior to such request. The Performance
Assurance shall be delivered within two Business Days of the
date of such request. No more frequently than weekly, the
Supplier, at its sole cost, may request that the posted
Performance Assurance be reduced to the amount by which the
Collateral Termination Payment then exceeds the relevant
Collateral Threshold (rounding upwards for any fractional
amount to the next $200,000).
8.1.3 Downgrade Event. If at any time there shall occur a Supplier
---------------
Downgrade Event in respect of Supplier's Credit Rating, then
PPL Electric may require Supplier to establish and maintain
for so long as the Supplier Downgrade Event is continuing,
Performance Assurance in an amount determined by PPL
Electric in a commercially reasonable manner. In the event
Supplier shall fail to provide such Performance Assurance or
a guaranty or other credit assurance acceptable to PPL
Electric within three Business Days of receipt of notice,
then an Event of Default shall be deemed to have occurred
and PPL Electric shall be entitled to the remedies set forth
in Article 10 of this Agreement. Supplier shall provide PPL
Electric with written notice of the occurrence of any
Supplier Downgrade Event, within two Business Days of such
occurrence.
8.1.4 Credit Assurances. In addition to the Downgrade Events
-----------------
specified in the previous section, if PPL Electric has
reasonable grounds to believe that Supplier's
creditworthiness or performance under this Agreement will
become unsatisfactory, PPL Electric will provide Supplier
with written notice requesting Performance Assurance in an
amount determined by PPL Electric in a commercially
reasonable manner. Upon receipt of such notice, Supplier
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PPL EnergyPlus, LLC Original Sheet No. 32
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shall have three Business Days to remedy the situation by
providing such Performance Assurance to PPL Electric. In the
event that Supplier fails to provide such Performance
Assurance, or a guaranty or other credit assurance
acceptable to PPL Electric within three Business Days of
receipt of notice, then an Event of Default under Article 10
will be deemed to have occurred and PPL Electric will be
entitled to the remedies set forth in Article 10 of this
Agreement.
8.1.5 Grant of Security Interest. To secure its obligations under
--------------------------
this Agreement and to the extent Supplier delivers
Performance Assurance hereunder, Supplier hereby grants to
PPL Electric a present and continuing security interest in,
and lien on (and right of setoff against), and assignment
of, all Performance Assurance, cash collateral and cash
equivalent collateral and any and all proceeds resulting
therefrom or the liquidation thereof, whether now or
hereafter held by, on behalf of, or for the benefit of, PPL
Electric, and Supplier agrees to take such action as PPL
Electric reasonably requires in order to perfect PPL
Electric's first-priority security interest in, and lien on
(and right of setoff against), such collateral and any and
all proceeds resulting therefrom or from the liquidation
thereof.
8.2 PPL Electric Creditworthiness and Security.
------------------------------------------
8.2.1 Financial Information. If requested by Supplier, PPL
---------------------
Electric and any Guarantor shall deliver: (a) within 120
days following the end of each fiscal year, a copy of their
respective annual reports containing audited consolidated
financial statements for such fiscal year; and (b) within 60
days after the end of each of their respective first three
fiscal quarters of each fiscal year, a copy of their
quarterly reports, containing unaudited consolidated
financial statements for such fiscal quarter. In all cases,
the statements shall be for the most recent accounting
period and prepared in accordance with generally accepted
accounting principles; provided, however, that should any
such statements not be available on a timely basis due to a
delay in preparation or certification, such delay shall not
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Vice President - Energy Marketing and Trading
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32
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
be an Event of Default so long as PPL Electric and any
Guarantor diligently pursue the preparation, certification
and delivery of the statements.
8.2.2 Collateral Threshold. If at any time and from time to time
--------------------
during the term of this Agreement (and notwithstanding
whether an Event of Default has occurred), the Collateral
Termination Payment exceeds the Collateral Threshold, then,
on any Business Day, Supplier may request PPL Electric to
provide Performance Assurance, in an amount equal to the
amount by which the Collateral Termination Payment exceeds
the relevant Collateral Threshold (rounding upwards for any
fractional amount to the next $200,000). The Performance
Assurance shall be delivered within two Business Days of the
date of such request. No more frequently than weekly, PPL
Electric, at its sole cost, may request that the posted
Performance Assurance be reduced to the amount by which the
Collateral Termination Payment then exceeds the relevant
Collateral Threshold (rounding upwards for any fractional
amount to the next $200,000).
8.2.3 Downgrade Event. If at any time there shall occur a PPL
---------------
Electric Downgrade Event in respect of PPL Electric, then
Supplier may require PPL Electric to establish and maintain
for so long as the PPL Electric Downgrade Event is
continuing, Performance Assurance in an amount determined by
Supplier in a commercially reasonable manner. In the event
PPL Electric shall fail to provide such Performance
Assurance or a guaranty or other credit assurance acceptable
to Supplier within three Business Days of receipt of notice,
then an Event of Default shall be deemed to have occurred
and Supplier shall be entitled to the remedies set forth in
Article 10 of this Agreement. PPL Electric shall provide
Supplier with written notice of the occurrence of any PPL
Electric Downgrade Event, within two Business Days of such
occurrence.
8.2.4 Credit Assurances. In addition to the Downgrade Events
-----------------
specified in the previous section, if Supplier has
reasonable grounds to believe that PPL Electric's
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PPL EnergyPlus, LLC Original Sheet No. 34
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creditworthiness or performance under this Agreement will
become unsatisfactory, PPL Electric will provide Supplier
with written notice requesting Performance Assurance in an
amount determined by Supplier in a commercially reasonable
manner. Upon receipt of such notice, PPL Electric shall have
three Business Days to remedy the situation by providing
such Performance Assurance to Supplier. In the event that
PPL Electric fails to provide such Performance Assurance, or
a guaranty or other credit assurance acceptable to Supplier
within three Business Days of receipt of notice, then an
Event of Default under Article 10 will be deemed to have
occurred and Supplier will be entitled to the remedies set
forth in Article 10 of this Agreement.
8.2.5 Grant of Security Interest. To secure its obligations under
--------------------------
this Agreement and to the extent PPL Electric delivers
Performance Assurance hereunder, PPL Electric hereby grants
to Supplier a present and continuing security interest in,
and lien on (and right of setoff against), and assignment
of, all Performance Assurance, cash collateral and cash
equivalent collateral and any and all proceeds resulting
therefrom or the liquidation thereof, whether now or
hereafter held by, on behalf of, or for the benefit of,
Supplier, and PPL Electric agrees to take such action as
Supplier reasonably requires in order to perfect Supplier's
first-priority security interest in, and lien on (and right
of setoff against), such collateral and any and all proceeds
resulting therefrom or from the liquidation thereof.
ARTICLE 9: REPRESENTATIONS AND WARRANTIES
9.1 Representations. As of the date this Agreement is first executed, each
---------------
Party represents and warrants to the other Party that: (a) it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation; (b) it will obtain all regulatory
authorizations necessary for it to legally perform its obligations
under this Agreement; (c) the execution, delivery and performance of
this Agreement is within its powers, have been duly authorized by all
necessary action and do not violate any of the terms and conditions in
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PPL EnergyPlus, LLC Original Sheet No. 35
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its governing documents, any contracts to which it is a party or any
law, rule, regulation, order or the like applicable to it; (d) this
Agreement constitutes its legally valid and binding obligation
enforceable against it in accordance with its terms, subject to any
Equitable Defenses; (e) it is not Bankrupt and there are no
proceedings pending or being contemplated by it or, to its knowledge,
threatened against it which would result in it being or becoming
Bankrupt; (f) there is not pending or, to its knowledge, threatened
against it or any of its Affiliates any legal proceedings that could
materially adversely affect its ability to perform its obligations
under this Agreement; (g) no Event of Default or potential Event of
Default with respect to it has occurred and is continuing and no such
event or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement; and (h) it is acting
for its own account, has made its own independent decision to enter
into this Agreement and, as to whether this Agreement is appropriate
or proper for it based upon its own judgment, is not relying upon the
advice or recommendations of the other Party in so doing, and is
capable of assessing the merits of and understanding, and understands
and accepts, the terms, conditions and risks of this Agreement. As of
the date this Agreement is first executed, Supplier represents and
warrants to PPL Electric that it has entered into this Agreement in
connection with the conduct of its business and it has the ability to
provide the Unforced Capacity and Energy referred to in this
Agreement.
9.2 Duration. The representations in this Article shall continue in full
--------
force and effect for the term of this Agreement.
ARTICLE 10: EVENTS OF DEFAULT AND REMEDIES
10.1 Parties - Events of Default. An "Event of Default" shall mean, with
---------------------------
respect to a Party (a "Defaulting Party"), the occurrence of any of
the following: (a) the failure to make, when due, any payment required
pursuant to this Agreement if such failure is not remedied within
three Business Days after written notice; (b) any representation or
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35
PPL EnergyPlus, LLC Original Sheet No. 36
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warranty made by such Party herein is false or misleading in any
material respect when made or when deemed made or repeated; (c) the
failure to perform, unless excused by Force Majeure, any material
covenant or obligation set forth in this Agreement (except to the
extent constituting a separate Event of Default); (d) such Party
becomes Bankrupt; (e) the failure to satisfy the
creditworthiness/collateral requirements, including Performance
Assurances, agreed to pursuant to Article 8; (f) such Party
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all of its assets to another entity and such
Party fails to comply with Article 14; and (g) a Force Majeure event
that prevents Supplier from delivering Unforced Capacity and Energy
for longer than seven days or multiple Force Majeure events that
prevent Supplier from delivering Unforced Capacity and Energy for a
cumulative period of fourteen days in any one year.
10.2 Guarantors - Events of Default. An "Event of Default" shall mean, with
------------------------------
respect to the Guarantor of a Party, the occurrence of any of the
following: (a) if any representation or warranty made by a Guarantor
in connection with this Agreement is false or misleading in any
material respect when made or when deemed made or repeated; (b) the
failure of a Guarantor to make any payment required or to perform any
other material covenant or obligation in any guaranty made in
connection with this Agreement and such failure shall not be remedied
within three Business Days after written notice; (c) a Guarantor
becomes Bankrupt; (d) the failure of a Guarantor's guaranty to be in
full force and effect for purposes of this Agreement (other than in
accordance with its terms) prior to the satisfaction of all
obligations of such Party under each Transaction to which such
guaranty shall relate without the written consent of the other Party;
and (e) a Guarantor shall repudiate, disaffirm, disclaim, or reject,
in whole or in part, or challenge the validity of any guaranty.
10.3 Remedies. If an Event of Default shall have occurred and be
--------
continuing, the other Party (the "Non-Defaulting Party") shall, at its
sole discretion, have the right: (a) to terminate this Agreement,
designate an Early Termination Date and accelerate all amounts owing
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Vice President - Energy Marketing and Trading
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PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
between the Parties, including the Termination Payment; (b) withhold
any payments due to the Defaulting Party under this Agreement,
including the right to setoff, recoup and counterclaim any amounts
owed under this Agreement until such time (if any) as judgment is
given against such set-off, recoupment or counterclaim; (c) suspend
performance; (d) exercise any rights and remedies, under this
Agreement or any law currently in effect, with respect to all
Performance Assurance; (e) commence an action to require the
Defaulting Party to remedy the Event of Default and specifically
perform its obligations under this Agreement; (f) seek recovery of
damages as provided under Section 10.5; (g) require the return of the
amount of any advance payments attributable to performance not
provided, to the extent such amount has not been recovered through a
Termination Payment; and (h) exercise such other remedies it may have
in equity or at law.
10.4 Declaration of an Early Termination Date and Calculation of
-----------------------------------------------------------
Termination Payment. If the Non-Defaulting Party elects to declare an
-------------------
Early Termination Date, it shall calculate, in accordance with Section
1.62, the Termination Payment by the Early Termination Date or as soon
thereafter as is reasonably practicable.
10.4.1 Notice of Payment of Termination Payment. As soon as
----------------------------------------
practicable after calculation of the Termination Payment,
notice shall be given by the Non-Defaulting Party to the
Defaulting Party of the amount of the Termination Payment
and whether the Termination Payment is due to or due from
the Non-Defaulting Party. The notice shall include a written
statement explaining in reasonable detail the calculation of
such amount. The Termination Payment shall be made by the
Party that owes it within two Business Days after such
notice is effective.
10.4.2 Disputes With Respect to Termination Payment. If the
--------------------------------------------
Defaulting Party disputes the Non-Defaulting Party's
calculation of the Termination Payment, in whole or in part,
the Defaulting Party shall, within two Business Days of
receipt of Non-Defaulting Party's calculation of the
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PPL EnergyPlus, LLC Original Sheet No. 38
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Termination Payment, provide to the Non-Defaulting Party a
detailed written explanation of the basis for such dispute;
provided, however, that the Defaulting Party shall transfer,
along with the written explanation, Performance Assurance to
the Non-Defaulting Party in an amount equal to the
Termination Payment.
10.5 Failure to Deliver/Accept. In the event that Supplier fails to sell or
-------------------------
deliver, or PPL Electric fails to accept or purchase, the Parties
shall calculate damages in the manner specified below; provided
however, that nothing in this Agreement limits the right of the
non-Defaulting Party to elect any other remedy identified in Section
10.3, in addition to or in lieu of, the damages remedy set out below.
10.5.1 Supplier Failure. If Supplier fails to schedule and/or
----------------
deliver all or part of the Unforced Capacity or Energy
required under this Agreement, and such failure is not
excused by Force Majeure, then Supplier shall pay PPL
Electric, on the earlier of the date payment would otherwise
be due in respect of the month in which the failure occurred
or within five Business Days of invoice receipt, an amount
for such deficiency equal to the positive difference, if
any, obtained by subtracting the amount of Monthly
Generation Revenue that Supplier would have received for the
undelivered Unforced Capacity or Energy from the Replacement
Cost. On the same day of the payment identified above,
Supplier shall also return to PPL Electric the amount of any
advance payment attributable performance not provided, as
calculated on a kilowatt-hour basis and adjusted for
seasonal variations. The invoice submitted by PPL Electric
for these amounts shall include a written statement
explaining in reasonable detail the calculation of such
amount.
10.5.2 PPL Electric Failure. Subject to the limitations set forth
--------------------
in Section 12.7, if PPL Electric fails to accept all or part
of the Unforced Capacity or Energy required under this
Agreement, and such failure is not excused by Force Majeure,
then PPL Electric shall pay Supplier, on the earlier of the
date payment would otherwise be due in respect of the month
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PPL EnergyPlus, LLC Original Sheet No. 39
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in which the failure occurred or within five Business Days
of invoice receipt, an amount for such deficiency equal to
the positive difference, if any, obtained by subtracting the
Sales Price from the amount of Monthly Generation Revenue
that Supplier would have received for the unaccepted
Unforced Capacity or Energy. The invoice submitted by
Supplier for such amount shall include a written statement
explaining in reasonable detail the calculation of such
amount.
ARTICLE 11: DISAGREEMENTS
11.1 Informal Resolution. Except to the extent otherwise provided in
-------------------
Section 6.7, if any disagreement arises on matters concerning this
Agreement, the disagreement shall be referred to one representative of
each Party, who shall attempt to timely resolve the disagreement. If
such representatives cannot resolve the disagreement within a
reasonable time, or a Party fails to appoint a representative within
ten days of written notice of the existence of a disagreement, then
either Party may request, but not require, that the matter proceed to
arbitration as provided below.
11.2 Arbitration. If pursuant to the previous section the Parties are
-----------
unable to resolve a disagreement arising on a matter pertaining to
this Agreement, such disagreement may be settled by arbitration,
provided that both Parties agree that the disagreement should be
resolved by arbitration; except with respect to arbitration under
Section 15.4 which shall be mandatory and shall not require the
agreement of both Parties. The arbitration shall be governed by the
United States Arbitration Act (9 U.S.C. ss.1 et seq.), and any award
issued pursuant to such arbitration may be enforced in any court of
competent jurisdiction. An agreement to arbitrate under this section,
the requirement to arbitrate under Section 15.4, and any other
agreement or consent to arbitrate entered into in accordance herewith
will be specifically enforceable under the prevailing arbitration law
of any court having jurisdiction. Notice of demand for arbitration
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Vice President - Energy Marketing and Trading
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39
PPL EnergyPlus, LLC Original Sheet No. 40
Rate Schedule FERC No. 9
must be filed in writing with the other Party to this Agreement.
Arbitration shall be conducted as follows:
11.2.1 Arbitrators. The Parties shall attempt to agree on a person
-----------
with special knowledge and expertise with respect to the
matter at issue to serve as arbitrator. If the Parties
cannot agree on an arbitrator within ten days, each shall
then appoint one person to serve as an arbitrator and the
two thus appointed shall select a third arbitrator with such
special knowledge and expertise to serve as chairperson of
the panel of arbitrators; and such three arbitrators shall
determine all matters by majority vote. Prior to
appointment, each arbitrator shall agree to conduct such
arbitration in accordance with the terms of this Agreement.
11.2.2 Arbitration Terms. To the extent not in conflict with the
-----------------
procedures set forth herein, which shall govern, such
arbitration shall be held in accordance with the prevailing
rules of the American Arbitration Association for Commercial
Arbitration in Philadelphia, Pennsylvania. The arbitrator(s)
shall have the right only to interpret and apply the terms
and conditions of this Agreement and to order any remedy
allowed by this Agreement, but may not change any term or
condition of this Agreement, deprive either Party of any
right or remedy expressly provided hereunder, or provide any
right or remedy that has been expressly excluded hereunder.
The arbitrator(s) shall give a written decision to the
Parties stating their findings of fact and conclusions of
law, and shall furnish to each Party a copy thereof signed
by the arbitrator(s) within five calendar days from the date
of their determination. The arbitrator's(s') decision shall
be final and binding upon the Parties. Each Party shall pay
the cost of the arbitrator(s) with respect to those issues
as to which they do not prevail, as determined by the
arbitrator(s).
11.3 FERC Jurisdiction. Subject to the limitations stated in Section 15.5,
-----------------
nothing in this Agreement shall preclude any Party from filing a
petition or complaint with FERC with respect to any arbitrable claim
over which FERC has exclusive jurisdiction. To the extent that FERC
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PPL EnergyPlus, LLC Original Sheet No. 41
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asserts or accepts jurisdiction over such claim, the decision,
findings of fact or order of FERC shall be final and binding, subject
to judicial review under the Federal Power Act, and any arbitration
proceedings that may have commenced with respect to such claim prior
to the assertion or acceptance of jurisdiction by FERC shall be
terminated.
ARTICLE 12: INDEMNIFICATION AND LIABILITY
12.1 Title Transfer. Title to, possession of, and risk of loss of the
--------------
Unforced Capacity and Energy scheduled and accepted or delivered
hereunder shall transfer from Supplier to PPL Electric at the Delivery
Point. Supplier warrants that at the time of delivery Supplier shall
have good title to the Unforced Capacity and Energy sold and delivered
hereunder and the right to sell such to PPL Electric.
12.2 Supplier's Indemnification of PPL Electric. Supplier hereby agrees to
------------------------------------------
indemnify, defend and hold harmless PPL Electric, its agents, servants
and Affiliates and the respective officers, directors, employees and
representatives (collectively, "PPL Electric's Indemnitees") of each,
from and against any and all losses, claims, damages or liabilities
(including reasonable attorneys' fees actually incurred, damage to
property, penalties or fines imposed by government authorities, and
injury to or death of any person) arising out of: (a) the fraud,
negligence, or willful misconduct of Supplier relating to the Unforced
Capacity and Energy delivered under this Agreement until such Unforced
Capacity and Energy has been delivered to PPL Electric at the Delivery
Point; and (b) Supplier's breach of this Agreement or failure to
perform any of the obligations hereunder. Supplier shall not be
responsible to indemnify, defend or hold harmless PPL Electric to the
extent the losses, claims, damages or liabilities are caused by the
fraud, negligence or the willful misconduct of the PPL Electric's
Indemnitees.
12.3 PPL Electric's Indemnification of Supplier. PPL Electric hereby agrees
------------------------------------------
to indemnify, defend and hold harmless Supplier, its agents, servants
and Affiliates and the respective officers, directors, employees and
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Vice President - Energy Marketing and Trading
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41
PPL EnergyPlus, LLC Original Sheet No. 42
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representatives (collectively, "Supplier's Indemnitees") of each, from
and against any and all losses, claims, damages or liabilities
(including reasonable attorneys' fees actually incurred, the loss
of/or claims for loss or damage to property, penalties or fines
imposed by government authorities, and injury to or death of any
person) arising out of: (a) the fraud, negligence, or willful
misconduct of PPL Electric relating to the Unforced Capacity and
Energy delivered under this Agreement after such Unforced Capacity and
Energy has been delivered to PPL Electric at the Delivery Point; and
(b) PPL Electric's breach of this Agreement or failure to perform any
of the obligations hereunder. PPL Electric shall not be responsible to
indemnify, defend or hold harmless Supplier to the extent the losses,
claims, damages or liabilities are caused by the fraud, negligence or
the willful misconduct of the Supplier's Indemnitees.
12.4 Indemnification Procedures. Any Party seeking indemnification under
--------------------------
this Agreement shall give the other Party prompt notice of such claim.
To the extent that the other Party will have been actually and
materially prejudiced as a result of the failure of the other Party to
provide such prompt notice, such notice will be a condition precedent
to any liability of the other Party under the indemnification
provisions contained in this Agreement. Neither Party may settle or
compromise any claim for which indemnification is sought under this
Agreement without the prior consent of the other Party, provided that
such consent shall not be unreasonably withheld or delayed. Each
Party's obligations under this Agreement towards the other Party and
the other Party's Indemnitees are conditioned upon such other Party's
Indemnitees providing such cooperation as the indemnifying Party may
reasonably request in connection with its defense or settlement of the
claim or suit against such other Party's Indemnitees.
12.5 LIMITATION OF LIABILITY. IN NO EVENT OR UNDER ANY CIRCUMSTANCES SHALL
-----------------------
EITHER PARTY (INCLUDING SUCH PARTY'S AFFILIATES AND THEIR RESPECTIVE
REPRESENTATIVES, AGENTS, SERVANTS, OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS) BE LIABLE TO THE OTHER PARTY (INCLUDING SUCH PARTY'S
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42
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES, AGENTS, SERVANTS,
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FOR ANY SPECIAL,
INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
DAMAGES IN THE NATURE OF LOST PROFITS, WHETHER SUCH LOSS IS BASED ON
CONTRACT, WARRANTY OR TORT (INCLUDING INTENTIONAL ACTS, ERRORS OR
OMISSIONS, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE).
12.6 Limitation of Liability for Retail Tariff Actions. Subject to the
-------------------------------------------------
requirements set forth in the Retail Tariff and the Restructuring
Settlement (as applied by the PUC) and Section 12.6.1 of this
Agreement, PPL Electric, or its designated agent or contractor, shall
remain the POLR for retail customers in its service territory and
shall continue to perform the retail functions, services and
customer-care responsibilities associated with PPL Electric's retail
customers, including management of the Retail Tariff's Demand Free
Days Program, Interruptible Service Rate and Price Response Service.
Accordingly, except as provided in Section 12.6.1 of this Agreement,
Supplier and PPL Electric agree that PPL Electric shall be entitled to
take those actions that PPL Electric deems appropriate, in its sole
discretion, in complying with its obligations under the Retail Tariff,
the Restructuring Settlement and the laws of the Commonwealth of
Pennsylvania. PPL Electric shall not be responsible to Supplier for
any losses, claims, damages or liabilities of any kind for those
actions it determines, in its sole discretion, are appropriate in
meeting those obligations. Except as provided in Section 12.6.1 of
this Agreement, PPL Electric shall not be responsible to Supplier for
any losses, claims, damages or liabilities of any kind for any action
or inaction taken pursuant to the load management provisions of the
Retail Tariff, including Demand Free Days Program, Interruptible
Service Rate and Price Response Service.
12.6.1 Failure to Comply With Directions of Primary Supplier. PPL
-----------------------------------------------------
Electric shall institute Load Management Actions at such
times and for such duration as directed by the Primary
Supplier. If PPL Electric fails to institute a Load
Management Action when so directed by the Primary Supplier,
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PPL EnergyPlus, LLC Original Sheet No. 44
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and the implementation of the Load Management Action would
have been consistent with the requirements of the Retail
Tariff, PPL Electric shall pay Supplier, on the earlier of
the date payment would otherwise be due in respect of the
month in which the failure to call such Load Management
Action occurred or within five Business Days of invoice
receipt, an amount equal to the positive difference, if any,
obtained by subtracting: (a) the sum of the Monthly
Generation Revenue attributable to the Load Management
Energy and the amount of any advance payment attributable to
the Load Management Energy as calculated on a kilowatt-hour
basis and adjusted for seasonal variations; from (b) the
Load Management Energy Cost. The invoice submitted by
Supplier for these amounts shall include a written statement
explaining in reasonable detail the calculation of such
amount.
12.7 Limitation of Liability for Outages and Reliability Actions. Provided
-----------------------------------------------------------
that PPL Electric manages and maintains its transmission and
distribution systems in accordance with Good Utility Practice, PPL
Electric shall not be responsible to Supplier for any losses, claims,
damages or liabilities associated with the failure to accept all or
part of the Unforced Capacity and Energy under this Agreement or the
interruption by PPL Electric of POLR Service due to: (a) outages or
failures on PPL Electric's transmission or distribution system; or (b)
actions taken by PPL Electric to protect the security and integrity of
the PPL Electric transmission or distribution system.
12.8 RFP Information. No member of PPL Electric or its representatives made
---------------
any representation or warranty as to the accuracy, reliability or
completeness of the RFP and the information contained on the RFP
Website (including forecasts), or shall have any liability for any
information, representations or omissions from the RFP and the
information contained on the RFP Website (including forecasts). Any
discussion of legislation, regulation, Retail Tariff requirements, or
Restructuring Settlement requirements in the RFP or the RFP Website
was provided for convenience, and no representation was made that the
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
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44
PPL EnergyPlus, LLC Original Sheet No. 45
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RFP or the information contained on the RFP Website provided a
complete explanation of any legislation, regulation, Retail Tariff
requirement, or Restructuring Settlement requirement.
ARTICLE 13: AUDITING AND CONFIDENTIALITY
13.1 Auditing. Each Party has the right, at its sole expense and during
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normal working hours, to examine the records of the other Party to the
extent reasonably necessary to verify the accuracy of any statement,
charge or computation made pursuant to this Agreement. If requested,
Supplier shall provide to PPL Electric statements evidencing the
quantity of Unforced Capacity provided and Energy delivered at the
Delivery Point. If any such examination reveals any inaccuracy in any
statement, the necessary adjustments in such statement and the
payments thereof will be made promptly and shall bear interest
calculated at the Interest Rate from the date the overpayment or
underpayment was made until paid; provided, however, that no
adjustment for any statement or payment will be made unless objection
to the accuracy thereof was made prior to the lapse of 12 months from
the rendition thereof, and thereafter any objection shall be deemed
waived.
13.2 PJM Requirements. In recognition of the importance of the Supplier
----------------
complying fully with all applicable PJM Standards and the potential
adverse impact on PPL Electric for failure to so comply, Supplier
agrees, consents and authorizes PPL Electric to request PJM to advise
or notify PPL Electric from time to time about the status of the
Supplier's compliance with the PJM Standards, as well as Supplier's
failure to provide or maintain during the term of this Agreement the
Unforced Capacity and Energy resources in such amounts and of such
type, nature and extent as represented to PPL Electric in this
Agreement.
13.3 Confidentiality. Neither Party shall disclose information obtained
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under this Agreement and designated by the other Party as
confidential, except: (a) to the Party's employees, lenders, counsel,
accountants or advisors who have a need to know such information and
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
45
PPL EnergyPlus, LLC Original Sheet No. 46
Rate Schedule FERC No. 9
have agreed to keep such terms confidential; or (b) in order to comply
with any applicable law, regulation, or any exchange, control area,
independent system operator or Regional Transmission Organization
rule, or in connection with any court or regulatory proceeding.
However, each Party shall, to the extent practicable, use reasonable
efforts to prevent or limit the disclosure and shall provide
reasonable notice to the other Party prior to the disclosure. The
Parties shall be entitled to all remedies available at law or in
equity to enforce, or seek relief in connection with, this
confidentiality obligation. Information designated as confidential and
disclosed by either Party to the other Party as part of the RFP
leading up to this Agreement shall be protected as confidential by
both Parties under this provision.
ARTICLE 14: ASSIGNMENT
14.1 Assignment. Neither Party shall assign (including a merger,
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consolidation or sale of all or substantially all of the assets of
such Party), transfer, convey, pledge, or dispose of this Agreement in
whole or in part, or any of the rights, interests, or obligations
hereunder without the prior written consent of the other Party, which
consent shall not be unreasonably withheld.
14.2 Release of Rights. No assignment (including a merger, consolidation or
-----------------
sale of all or substantially all of the assets of such Party),
transfer, conveyance, pledge or disposition of rights, interests or
obligations under this Agreement by a Party shall relieve that Party
from liability and financial responsibility for the performance
thereof after any such transfer, assignment, conveyance, pledge or
disposition unless and until: (a) the non-assigning Party has
consented in writing to such assumption and to a release of the
assigning Party from such liability, such consent not to be
unreasonably conditioned, delayed or withheld; and (b) the transferee
or assignee shall agree in writing to assume the obligations and
duties of the assigning Party under this Agreement and, in the case of
the transferee or assignee of the Supplier, certify in writing that
its Credit Rating is above or equal to "BBB-" (in the case of S&P),
"Baa3" (in the case of Xxxxx'x), and "BBB-" (in the case of
FitchIBCA).
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
46
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
14.3 Non-complying Transfers. Any assignment, transfer, conveyance, pledge
-----------------------
or disposition of this Agreement or any rights, obligations or
interests hereunder by any Party without the written consent of the
Party shall be void and of no force or effect.
14.4 Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the Parties and their valid and permitted
successors and assigns.
ARTICLE 15: REGULATORY
15.1 Regulatory Approvals.
--------------------
15.1.1 Filings. Supplier and PPL Electric will make any filings of
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this Agreement with regulatory agencies that may be
necessary to enable it to become effective, including a
filing by Supplier with FERC and, if Supplier is an
Affiliate of PPL Electric, a filing by PPL Electric with the
PUC. Supplier's filing with FERC will be made no later than
two Business Days after execution of this Agreement, unless
otherwise agreed to by the Parties. Both Parties will
reasonably cooperate with each other with respect to such
filings and provide to each other any information reasonably
required to enable compliance with applicable filing and
regulatory requirements.
15.1.2 Condition Precedent. This Agreement is expressly contingent
-------------------
on all required regulatory actions for all generation supply
agreements necessary for PPL Electric to meet its POLR
obligations from January 1, 2002 through December 31, 2009,
including: (a) the filing by suppliers with FERC of the
generation supply agreements with PPL Electric; (b) the
acceptance for filing by FERC of the generation supply
agreement, if any, between PPL Electric and an Affiliate;
and (c) the approval by the PUC of the generation supply
agreement, if any, between PPL Electric and an Affiliate. If
any of the regulatory actions identified in this section is
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
47
PPL EnergyPlus, LLC Original Sheet No. 48
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not completed by July 16, 2001, in a form that is acceptable
to the parties to the agreement subject to the required
regulatory action, PPL Electric may, at its sole discretion,
terminate and make null and void this Agreement. If
terminated, the Parties to this Agreement shall have the
option, but not the obligation, to renegotiate a new
agreement or terminate their relationship.
15.2 EGS Status. Nothing in this Agreement is intended to preclude Supplier
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from becoming an EGS or otherwise providing retail electricity
services to end-use customers in Pennsylvania.
15.3 Future Laws. This Agreement is made subject to present or future state
-----------
or federal laws, regulations, or orders properly issued by state or
federal bodies having jurisdiction.
15.4 Regulatory Risk. If the PUC issues one or more orders that have a
---------------
material adverse effect on the Monthly Generation Revenue that would
have been paid to Supplier over the life of the Agreement but for such
PUC order(s), including orders that require or approve changes to the
Retail Tariff or Restructuring Settlement (other than changes
identified in this Agreement), then the Parties shall attempt, in good
faith, to negotiate a resolution that allocates between the Parties
the impact of such PUC order(s) in a manner consistent with the
allocation of risk contemplated by the obligations of the Parties
under this Agreement prior to such PUC order(s) as affected by the
Restructuring Settlement, and the Retail Tariff and the PUC procedures
and rules in effect as of the date of this Agreement. If the Parties
are unable to reach a voluntary agreement, then either Party may
require the issue of how to allocate the impact of such PUC order(s)
in a manner consistent with the allocation of risk contemplated by the
obligations of the Parties under this Agreement prior to such PUC
order(s), as affected by the Restructuring Settlement, and the Retail
Tariff and the PUC procedures and rules in effect as of the date of
this Agreement, to be submitted to mandatory and binding arbitration
in accordance with Article 11 of this Agreement; provided that neither
Party may request that the arbitrator(s) terminate this Agreement due
to such PUC order(s).
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
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PPL EnergyPlus, LLC Original Sheet No. 49
Rate Schedule FERC No. 9
15.5 Sections 205 and 206 of the Federal Power Act. Notwithstanding any
---------------------------------------------
provision of this Agreement to the contrary, the rates and payments
for services specified herein shall remain in effect during the term
of this Agreement, and shall not be subject to change through
application to the FERC pursuant to the provisions of Sections 205 or
206 of the Federal Power Act. The Parties hereby waive any and all
rights to seek to modify the provisions of this Agreement, including
the rates and payments stated herein, under Sections 205 and 206 of
the Federal Power Act.
ARTICLE 16: GENERAL PROVISIONS
16.1 Governing Law and Venue. This Agreement and the rights and duties of
-----------------------
the Parties hereunder shall be governed by and construed, enforced and
performed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law. Any
such proceeding shall be brought in the Courts of the Commonwealth of
Pennsylvania, except to the extent that the Parties agree to
arbitration under Article 11 or the FERC has exclusive jurisdiction
over the subject matter of the proceeding. Nothing in this Agreement
is intended to confer jurisdiction, power or authority in the PUC over
this Agreement or Supplier.
16.2 Notices. Any notice, request, demand, statement, or payment provided
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for in this Agreement shall be in writing, unless otherwise noted, and
shall be sent by hand delivery, overnight courier service, or
certified mail; provided, however, that notices of interruption or
curtailment may be sent verbally, effective immediately and, upon
request, confirmed in writing. Notice by hand delivery shall be
effective at the close of business on the day actually received, if
received during business hours on a Business Day, and otherwise shall
be effective at the close of business on the next Business Day. Notice
by overnight courier service or certified mail shall be effective two
Business Days after it was sent. Notices shall be addressed to the
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
49
PPL EnergyPlus, LLC Original Sheet No. 50
Rate Schedule FERC No. 9
Parties as follows or to such other address as PPL Electric or
Supplier shall from time to time designate by letter properly
addressed:
PPL Electric:
NOTICES & CORRESPONDENCE INVOICES
------------------------ --------
PPL Electric Utilities Corporation PPL Electric Utilities Corporation
Two North Ninth Street Two North Ninth Street
Allentown, PA 18101-1179 Xxxxxxxxx, XX 00000-0000
Attn: CONTRACT ADMINISTRATION (GENA9-4) Attn: ACCOUNTS PAYABLE (GENTW-13)
Fax: 000-000-0000 Fax: 000-000-0000
Supplier:
NOTICES & CORRESPONDENCE PAYMENTS
------------------------ --------
PPL ENERGYPLUS, LLC PPL ENERGYPLUS, LLC
Two North Ninth Street Two North Ninth Street
Allentown, PA 18101-1179 Xxxxxxxxx, XX 00000-0000
Attn: CONTRACT ADMINISTRATION (GENTW-7) Attn: CASH RECEIPTS (GENTW-7)
Fax: 000-000-0000 Fax: 000-000-0000
16.3 Relationship. This Agreement shall not be construed to create an
------------
association, trust, partnership, or joint venture, or to impose a
trust or partnership duty, obligation, or liability or agency
relationship on or with regard to either Party.
16.4 Entire Agreement. This Agreement contains the complete and exclusive
----------------
agreement and understanding between the Parties as to its subject
matter, and supersedes all prior written and oral proposals,
confidentiality agreements, understandings, statements and
representations, all of which are merged herein. There are no
restrictions, promises, representations, warranties, covenants or
undertakings other than those expressly set forth or referred to
herein. This Agreement constitutes the definite agreement between the
Parties as contemplated by the confidentiality agreements entered into
as part of the RFP process.
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
50
PPL EnergyPlus, LLC Original Sheet Xx. 00
Xxxx Xxxxxxxx XXXX Xx. 0
16.5 Waiver. The failure of either Party hereto to enforce at any time any
------
provision of this Agreement shall not be construed to be a waiver of
such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of a Party thereafter to
enforce each and every such provision. A waiver under this Agreement
must be in writing and state that it is a waiver. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any
other or subsequent breach.
16.6 Interpretation of Agreement.
---------------------------
16.6.1 Headings. The headings used herein are for convenience and
--------
reference purposes only and shall in no way affect the
meaning or interpretation of the provisions of this
Agreement.
16.6.2 Experienced Parties. The Parties agree that this Agreement
-------------------
is between two commercially experienced parties. Therefore,
in the event an ambiguity or question of intent or
interpretation arises, no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of
authorship of any of the provisions of this Agreement.
16.6.3 Include. The words "include" "including" or "includes" or
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any form thereof shall be interpreted to mean "including
without limitation" or "includes without limitation"
whenever used in this Agreement.
16.7 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16.8 Severability. Except as otherwise stated herein, any provision,
------------
article or section of this Agreement that is declared or rendered
unlawful by a court of law or regulatory agency with jurisdiction over
the Parties, or deemed unlawful because of statutory change, will not
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
51
PPL EnergyPlus, LLC Original Sheet No. 52
Rate Schedule FERC No. 9
otherwise affect the lawfulness, enforceability and applicability of
the remaining provisions, articles or sections of this Agreement, nor
shall it affect the obligations that arise under this Agreement.
16.9 No Third Party Beneficiaries. This Agreement is intended to be solely
----------------------------
for the benefit of the Parties and their valid successors and
permitted assigns and is not intended to and shall not confer any
rights or benefits on any third party not a signatory hereto.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to
be effective as of the day and year first written above.
PPL Electric Utilities Corporation PPL EnergyPlus, LLC
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxx
----------------------------- -------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxxx
----------------------------- -------------------------------
Title: Title: Vice President - Energy
President Marketing and Trading
----------------------------- -------------------------------
Issued by: Xxxx X. Xxxxxx Effective: January 1, 2002
Vice President - Energy Marketing and Trading
Issued on: June 20, 2001
52
