EXHIBIT 10.29
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RETAIL ELECTRICITY SUPPLY
CONTRACT
This Retail Electricity Supply Contract ("Retail Contract") between PPL
EnergyPlus, LLC ("PPL") with principal offices at 00 Xxxxx Xxxxx Xxxx, Xxxxx,
XX, 00000 and the customer specified below ("Customer") is effective as of
December 11, 2001, and sets forth the conditions under which PPL will provide
electric energy to the Customer. Customer and PPL may hereinafter be referred to
collectively as "Parties" or singularly as "Party". This Retail Contract,
together with any Attachments and/or Exhibits incorporated herein by reference,
is hereinafter referred to collectively as the "Agreement."
Customer: Stillwater Mining Company ("SMC")
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Primary Contact: Xxxxx X. Xxxxxx, Vice President and CFO
Phone Number: 000-000-0000
Fax Number: 000-000-0000
The specific Customer accounts to be served by PPL and made part of this
Agreement are identified on Exhibit A -Account Information attached to the
Purchasing Attachment(s).
1. DEFINITIONS - Certain capitalized terms are defined in the body of the
Agreement. In addition, the following definitions apply to the following
words used in this Agreement:
"Commencement Date" means that date described in Section 3 of this
Agreement.
"Electric Distribution Company" or "EDC" means the company, or its
successor(s), that currently provides the electric lines, both above ground
and below ground, that deliver the Electricity to the Facilities.
"Electric Transmission Provider" or "ETP" means the company, or its
successor(s), and/or a Regional Transmission Organization (RTO), that
provide the electric transmission lines, both above ground and below
ground, that deliver the Electricity to the EDC.
"Electricity" means the electricity that Customer is purchasing from PPL
pursuant to this Agreement and that will be delivered to the Facilities by
the EDC and/or ETP.
"Facilities" means the commercial and/or industrial facilities of Customer
as defined in Exhibit A - Account Information to the Purchasing
Attachment(s) and as defined by the transmission agreement referenced in
the Transmission Agency Agreement attached hereto.
"Termination Date" means that date described in Section 3 of this
Agreement.
"kWh" means kilowatt-hour or 1,000 xxxxx for one hour.
"kW" means kilowatt or 1,000 xxxxx. This is usually measured over a 15-,
30-, or 60-minute time period, specified by the EDC and/or ETP, then
expressed as the Maximum Demand over a time period, again, specified by the
EDC and/or ETP. Kilowatt, kW is often referred to as demand or active
demand.
"MWh" means megawatt-hour or 1,000 kilowatts for one hour.
"MW" means megawatt or 1,000 kilowatts. This is usually measured over a
15-, 30- or 60-minute time period, specified by the EDC and/or ETP. MW is
often referred to as demand or active demand.
"Maximum Peak Demand" means the average number of kilowatts supplied during
the 15-, 30- or 60-minute period of maximum use during the time periods
designated as On-Peak or Peak by Customer's EDC and/or ETP. In the event
that Customer's EDC and/or ETP does not designate an On-Peak period, then
the Maximum Peak Demand means
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RETAIL ELECTRICITY SUPPLY
CONTRACT
the average number of kilowatts supplied during the 15-, 30-, or 60-minute
period of maximum use during the billing period.
"On-Peak" means the On-Peak hours defined by the Customer's EDC and/or
ETP, unless otherwise specified in the applicable Purchasing Attachment.
"Off-Peak" means all hours that are not On-Peak, unless otherwise specified
in the applicable Purchasing Attachment.
"Purchasing Attachment" shall be the attachment signed by PPL and Customer
that sets forth the terms and conditions for the purchase and sale of
Electricity that are in addition to or modify the terms and conditions set
forth herein.
"Utilization Rate" equals Customer's actual total monthly kWh, purchased
from PPL as appropriately metered by Customer's EDC during the billing
period, divided by the product of Customer's maximum kWh use during any
On-Peak hour and the total hours in the month's billing cycle. (Actual kWh
use)/[maximum on-peak use X billing cycle hours].
2. PURCHASE AND SALES AGREEMENT - Customer agrees to purchase from PPL the
quantities of Electricity during the Term(s), as defined in the Purchasing
Attachment(s). PPL shall deliver all such Electricity to the EDC and/or ETP
for Customer's account for delivery to the Facilities.
3. TERM - The term of this Agreement shall commence on December 11, 2001 (the
"Commencement Date") and may not be terminated before the later of (i)
thirty (30) days following the receipt by either Party of the other Party's
written notice of termination; or (ii) the completion of all obligations
pursuant to any executed Purchasing Attachment(s) to this Agreement (the
"Termination Date").
4. PRICE
a) PRICES - The prices to be paid by Customer to PPL for all Electricity
purchased hereunder shall be as set forth in the Purchasing
Attachment(s) to this Agreement.
b) APPLICATION - Unless otherwise agreed to in writing and executed by
both Parties, Customer shall be responsible for the applicable
transmission, distribution and other fees charged by the EDC and ETP.
Distribution and transmission charges remain subject to regulations
and are not provided by PPL.
c) OTHER TAXES OR FEES - PPL shall be responsible for all applicable
taxes imposed on, or with respect to, the Electricity prior to
delivery to the EDC and/or ETP at the Point of Delivery set forth in
the Purchasing Attachment(s). Customer shall pay, or cause to be paid,
all EDC and ETP tariff imposed fees for transmission of the
Electricity and all other taxes or fees imposed on, or with respect
to, the Electricity upon and after its delivery to the EDC and/or ETP
at the Point of Delivery set forth in the Purchasing Attachment(s),
including, without limitation, any and all federal, state, or local
taxes or fees that may be imposed by any valid taxing authority. If
any such taxes that are the responsibility of Customer are required to
be paid by PPL, Customer agrees to promptly reimburse PPL for such
payment.
5. ELECTRIC DISTRIBUTION AND TRANSMISSION SERVICE - During the term of this
Agreement, Customer agrees to make and maintain the necessary arrangements
so that Electricity is delivered to the Facilities by the EDC and ETP.
Customer expressly acknowledges that PPL has no financial obligation
relating to any such arrangements.
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6. TRANSMISSION AGENCY AGREEMENT ATTACHMENT - If Customer has contracted for
its own transmission rights directly with the ETP, the Customer may elect,
as indicated below, to (i) schedule its own transmission rights with the
ETP to serve its Facility(s) or (ii) request PPL, on behalf of the
Customer, to schedule Customer's transmission rights with the ETP to serve
Customer's Facility(s). If Customer elects PPL, as indicated below, to
schedule such transmission rights to serve its Facilities, the Parties
agree that such service shall be provided pursuant to those terms and
conditions included in the Transmission Agency Agreement Attachment (the
"TAA").
[X] PPL TO SCHEDULE CUSTOMER'S TRANSMISSION RIGHTS [TAA IS ATTACHED]
[ ] CUSTOMER TO SCHEDULE CUSTOMER'S TRANSMISSION RIGHTS [TAA IS NOT
ATTACHED]
7. PAYMENT - Customer agrees that, on a monthly basis, PPL and/or the EDC
and/or ETP shall render to Customer a statement for each of Customer's
Facilities served under this Agreement. Payment shall be made within
fifteen (15) days from date of invoice. PPL will charge Customer $25 for
any check returned for any reason. If Customer should fail to remit any
amounts in full when due hereunder, including any amounts in dispute, (i)
interest on such unpaid amounts shall accrue from the date due at a rate
equal to one and one-half percent (1.5%) per month; provided, however, the
rate shall never exceed the maximum rate permitted by law, and (ii)
Customer shall be liable for any and all costs of collection (including
reasonable attorneys' fees) to which PPL is entitled to recover. In
addition to all other remedies available to PPL, as provided hereunder, and
upon ten (10) days prior written notice, PPL may discontinue delivery of
Electricity to the Facilities and terminate this Agreement and all
then-outstanding Purchasing Attachments if Customer fails to pay, in full,
amounts properly due to PPL.
Customer agrees to make payments to PPL by Automated Clearing House
("ACH"), wire transfer to designated bank account or other generally
accepted electronic funds transfer method mutually agreed to by the
Parties. The receiving bank for PPL electronic payments is:
Address: Mellon Bank
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Mellon ACH Operations: 000-000-0000 (phone number)
Account Name: PPL SOLUTIONS, LLC
Account Number: 0-000-000
ABA Number: 000000000
DUNS Number: 00-000-0000
PPL will provide Customer at least ten (10) days advance written notice of
any changes in the electronic funds transfer information provided above.
8. WARRANTY - PPL warrants title and the right to deliver title to all
Electricity sold hereunder. As between the Parties to this Agreement, PPL
is deemed to be the owner and titleholder and is in exclusive care, custody
and control of the Electricity until it is delivered to the Delivery
Point(s) as defined in the Purchasing Attachment(s). Customer is deemed to
be the owner and titleholder of the electricity at and from the Delivery
Point(s) as defined in the Purchasing Attachment(s). Title and risk of loss
of Electricity sold hereunder shall pass at the Delivery Point(s).
CUSTOMER ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT BASED SOLELY
UPON THE EXPRESS WARRANTIES SET FORTH IN THE PRECEDING PARAGRAPH. PPL
EXPRESSLY DISCLAIMS ANY OTHER WARRANTY (WRITTEN, ORAL, EXPRESS OR IMPLIED),
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE.
9. FORCE MAJEURE -
a) Performance Excused. If either Party is prevented or delayed by an
event of Force Majeure in carrying out, in whole or part, its
obligations under this Agreement, then, during the pendency of such
Force Majeure but for no longer
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CONTRACT
period, the Party affected by the event (other than the obligation to
make payments then due or becoming due with respect to performance
which occurred prior to the event) shall be relieved of its
obligations insofar as they are affected by Force Majeure but for no
longer period. The Party affected by an event of Force Majeure shall
provide the other Party with written notice setting forth the full
details thereof as soon as practicable after the occurrence of such
event and shall take all reasonable measures to mitigate or minimize
the effects of such event of Force Majeure; provided, however, that
this provision shall not require PPL to deliver, or Customer to
receive, Electricity at points other than the Delivery Point, or
require either Party to settle labor disputes.
b) Definition. Force Majeure means an event not anticipated as of the
Commencement Date, which is not within the reasonable control of the
Party (or in the case of third party obligations or facilities, the
third party) claiming suspension (the "Claiming Party"), and which, by
the exercise of due diligence, the Claiming Party, or third party, is
unable to overcome or avoid or cause to be avoided. Events of Force
Majeure may include, but are not restricted to: acts of God; fire;
civil disturbance; labor dispute; labor or material shortage;
sabotage; action or restraint by court order or public or governmental
authority (so long as the Claiming Party has not applied for or
assisted in the application for such government action); provided,
however, that an event of Force Majeure shall not include (i)
Customer's inability economically to use Electricity hereunder; (ii)
Customer's ability to procure more economic electric supply; or (iii)
PPL's ability to sell Electricity at a more advantageous price.
10. ASSIGNMENT - Either Party may freely assign this Agreement in whole or in
part to an affiliate or partnership or joint venture in which such Party is
a participant. Any other assignment of this Agreement may be made only with
the prior written consent of the non-assigning Party which consent shall
not unreasonably be withheld or delayed.
11. NOTICES - Notices shall be sent to:
STILLWATER MINING COMPANY PPL ENERGYPLUS, LLC
000 XXXX XXXX XXXXXX 00 Xxxxx Xxxxx Xxxx
XXXXXXXX, XX 00000 Xxxxx, XX 00000
ATTENTION: Vice President and CFO ATTENTION: Director, Power Marketing & Trading
WITH A COPY TO: General Counsel WITH A COPY TO: Office of the General Counsel
12. CONDITIONS PRECEDENT/CREDIT REQUIREMENTS - This Agreement shall not be
deemed to be valid and binding upon the Parties until the occurrence of
each of the following conditions precedent: (i) credit approval of Customer
by PPL, and (ii) if applicable, Customer being selected to participate in
the retail access program of the Customer's EDC, and (iii) PPL becoming
authorized to supply electricity to Customer under the retail access
program of Customer's EDC. PPL shall have no liability for any delay in
electricity service which is due to the actions or inactions of Customer's
EDC, or which is the direct or indirect result of Customer failing to
provide PPL with true and accurate information.
Customer hereby authorizes PPL to obtain credit information regarding
Customer from the EDC that currently provides service to Customer and its
Facilities. Customer also authorizes PPL to make such inquiries as PPL
considers to be necessary to obtain credit information and authorizes
Customer's bank, at any time and from time to time while this Agreement is
in effect, to release credit information regarding Customer. In the event
PPL makes a good faith and commercially reasonable determination that
Customer has encountered a "material adverse change" in its financial
condition, PPL reserves the right (i) to request a modification of the
terms of this Agreement, including the terms of any Purchasing Attachment,
upon written notice to Customer to account for such material adverse
change, which modifications may include without limitation increasing the
price(s) for electricity hereunder, requiring Customer to provide a letter
of credit, cash deposit, surety bond, or third party guaranty (provided in
a format and by a financial institution, insurer, or guarantor acceptable
to PPL), or (ii) to terminate this Agreement upon the provision of ten (10)
days written notice. As used in this Section 12, a "material adverse
change" shall mean (a) a downgrade of the Customer's long-term senior,
unsecured debt (not supported by third party credit enhancement) below B by
Standard & Poors or B2 by Xxxxx'x, or (b) Customer's failure to maintain
any form of performance assurance, such as cash, Letters of Credit or
surety bonds, that may be required by PPL hereunder or under any Purchasing
Attachment.
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CONTRACT
13. DAMAGES - PPL SHALL HAVE NO LIABILITY OTHER THAN FOR ITS NEGLIGENCE, GROSS
NEGLIGENCE, WILFUL MISCONDUCT OR BREACH OF ITS MATERIAL OBLIGATIONS
HEREUNDER. SPECIFICALLY, IN NO EVENT SHALL PPL BE LIABLE FOR ANY DAMAGES
RELATING TO CUSTOMER'S REVERSION TO ITS PROVIDER OF LAST RESORT FOR ITS
ELECTRICITY SUPPLY UNLESS SUCH REVERSION IS DIRECTLY DUE TO PPL'S
NEGLIGENCE, GROSS NEGLIGENCE, WILFUL MISCONDUCT OR BREACH OF ITS MATERIAL
OBLIGATIONS HEREUNDER. PPL'S LIABILITY FOR ANY CLAIM HEREUNDER OR OTHERWISE
RELATED TO THE SUPPLY OF ELECTRICITY TO CUSTOMER IS LIMITED TO DIRECT
ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR
DAMAGES AT LAW OR IN EQUITY ARE EXPRESSLY WAIVED. NEITHER PARTY WILL BE
LIABLE FOR DAMAGES OTHER THAN DIRECT ACTUAL DAMAGES NOR FOR CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION
DAMAGES. LIABILITY LIMITATIONS ARE WITHOUT REGARD TO CAUSE.
14. INDEMNITY - Each Party shall indemnify, defend and hold harmless the other
Party from and against any and all third party claims or actions,
threatened or filed and, whether groundless, false, fraudulent or
otherwise, that directly or indirectly relate to the subject matter of an
indemnity, and the resulting losses, damages, expenses, attorneys' fees and
court costs, whether incurred by settlement or otherwise, and whether such
claims or actions are threatened or filed prior to or after the termination
of this Agreement, arising from or out of any event, circumstance, act or
incident first occurring or existing during the period when control and
title to the Electricity is vested in such Party as provided in Section 8.
15. DISPUTE RESOLUTION - Any dispute, controversy or claim arising out of or
relating to this Agreement or to a breach thereof, including its
interpretation, performance or termination, shall be finally resolved by
arbitration. The arbitration shall be conducted in accordance with the
rules of the American Arbitration Association, which shall administer the
arbitration and act as appointing authority. The arbitration, including the
rendering of the award, shall take place in
Montana and shall be the
exclusive forum for resolving such dispute, controversy or claim. For the
purposes of this arbitration, the provisions of this Agreement and all
rights and obligations thereunder shall be governed and construed in
accordance with the laws of the State of
Montana. The decision of the
arbitrators shall be binding upon the Parties hereto, and the expense of
the arbitration (including, without limitation, the award of attorneys'
fees to the prevailing Party) shall be paid as the arbitrators determine.
The decision of the arbitrators shall be executory, and judgment thereon
may be entered by any court of competent jurisdiction.
Each Party hereby agrees that the arbitration procedures set forth in the
preceding paragraph shall be the sole and exclusive means of finally
resolving any disputes that may arise between the Parties pursuant to this
Agreement, and in furtherance thereof each Party hereby waives the right to
institute judicial proceedings against the other Party or anyone acting by,
through or under such other Party in order to enforce the instituting
Party's rights hereunder.
16. AMENDMENT - This Agreement may be modified or amended only by prior written
agreement executed by both Parties.
17. CONFIDENTIALITY - Neither Party shall disclose the terms of the Agreement,
in part or in its entirety, to any third party absent the express written
permission of the other Party, except where (a) necessary to comply with
any applicable law, order, regulation or exchange rule; provided, however,
that each Party shall notify the other Party promptly upon receipt of any
request to it in any proceeding that could result in an order requiring
such disclosure and the Party subject to such request shall use reasonable
efforts to prevent or limit the disclosure, or (b) necessary to effectuate
transmission of Electricity subject to this Agreement. This Paragraph does
not apply to the Parties' responsibilities to file information with the
Federal Energy Regulatory Commission, the
Montana Public Service Commission
or other applicable regulatory agencies.
18. WAIVER - The waiver by either Party of a breach by the other Party or of
any provision of this Agreement shall not be deemed to be a waiver of any
other provision hereof or of any subsequent or continuing breach of such
provision or any other provision. Any waiver must be in writing to be
effective.
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CONTRACT
19. NO VIOLATION OF LAW - Neither Party under this Agreement shall be required
to perform any obligation hereunder that violates any state or federal law
or is prohibited by any order of any state or federal court or any order or
regulation of any state or federal agency.
20. METERING - PPL reserves the right to install metering at Customer's
facility at PPL's expense.
21. ENTIRE AGREEMENT: GOVERNING LAW - This Agreement is the entire agreement
between the Parties. It supersedes all prior agreements, and is governed by
Montana law, without regard to
Montana's choice of law rules.
22. RIGHT OF RESCISSION - This Agreement may be rescinded by Customer by
providing written notice no later than three (3) days following date of
execution.
23. INITIAL SCHEDULING - In order for PPL to initiate scheduling of the
Electricity to the Customer's Facility(ies) and complete enrollment
requirements with the EDC and/or ETP, this Agreement, and the applicable
Purchasing Attachment(s), must be executed by both Parties no later than
eight (8) business days prior to the first scheduled delivery day.
24. CONSENT TO RELEASE OF INFORMATION - Customer gives PPL permission to
release information about Customer (including Customer's name, address,
telephone number and historic billing data) to certain affiliates of PPL,
which may offer to provide energy and mechanical contracting (such as
heating and air conditioning) services to Customer. Further, Customer
agrees that PPL is released from any and all liability which might occur
due to the release of such information.
AGREED TO AND ACCEPTED BY:
FOR CUSTOMER: FOR PPL ENERGYPLUS, LLC
AUTHORIZED AUTHORIZED
SIGNATURE: SIGNATURE:
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PRINT PRINT
NAME: Xxxxx X. Xxxxxx NAME: Xxxx X. Xxxx
PRINT PRINT
TITLE: Vice President and CFO TITLE: Manager, Energy Marketing
DATE: DATE:
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TRANSMISSION AGENCY AGREEMENT
ATTACHMENT
THIS TRANSMISSION AGENCY AGREEMENT ATTACHMENT (this "Agency
Relationship") is attached to and is a part of the
Retail Electricity Supply
Contract for Firm Electricity Supply ("Retail Contract"), dated as of December
11, 2001, between PPL EnergyPlus, LLC ("PPL") and the Customer specified on the
Retail Electricity Supply Contract ("Customer"). PPL and Customer may sometimes
be referred to herein individually as "Party" and collectively as the "Parties".
1. TRANSMISSION SERVICE. Pursuant to the terms in Section 5 of the
Retail
Electricity Supply Contract, Customer is required to arrange and pay for
transmission and delivery of such electricity supply from the Delivery
Point(s), as defined in the Purchasing Attachment. Further, the Customer
has entered into a transmission agreement with an Electric Transmission
Provider ("ETP") in which the ETP will transmit, pursuant to the ETP's Open
Access Transmission Tariff ("OATT"), the electricity supply to be delivered
by PPL from the Delivery Point(s) to the Facility(ies), as identified in
the Purchasing Attachment.
2. DESIGNATION OF AGENCY. Customer hereby appoints PPL to act as its
Designated Agent, as defined in the Customer's ETP's OATT, and on its
behalf with respect to arranging and scheduling transmission and ancillary
services on the ETP's transmission system for the electricity supply
purchased by Customer from PPL. Services to be performed by PPL at
Customer's direction and on its behalf shall include without limitation:
a) acting as Customer's primary contact with Customer's ETP regarding
issues relating to or affecting Customer's transmission and ancillary
services from the ETP; and
b) reserving and scheduling Transmission Service with Customer's ETP, as
identified and defined in the ETP's OATT, including losses and
ancillary services, pursuant to and in accordance with the terms and
conditions of the ETP's OATT and the Retail Contract.
Nothing herein, however, shall prohibit Customer from obtaining ancillary
services independent of PPL.
3. CUSTOMER ARRANGEMENTS. Customer recognizes and agrees that pursuant to
Section 5 of the Retail Electricity Supply Contract, Customer is
responsible for obtaining, reviewing, negotiating and executing all
agreements, documents or other instruments required by or pursuant to the
ETP's OATT necessary for Customer to be deemed an "Eligible Customer" under
and to receive services pursuant to the ETP's OATT. PPL shall have no
obligation hereunder to assist or advise Customer with respect to such
agreements and documents. Customer shall take all actions necessary to have
PPL recognized as Customer's "Designated Agent" pursuant to the OATT.
4. PAYMENT. Customer shall be responsible for payment to the ETP for all
services provided to Customer by its ETP under the ETP's OATT, as well as
all payments for ancillary services, irrespective of how and from whom such
ancillary services are procured. Customer shall insure that all original
invoices for such services are sent by the ETP and any ancillary services
provider to Customer for payment. PPL shall not be liable to Customer's ETP
or any third party provider for any payment for any such services provided
to Customer.
5. SCHEDULING.
(a) If applicable, Customer shall notify PPL of its Scheduled Quantity
(Committed Quantity plus Additional Quantity less Surplus Power)
including transmission and distribution losses, in whole megawatt
increment(s), no later than 6:30 a.m. (Mountain Prevailing Time) of
the first business day prior to the start of the date when the
Scheduled Quantity is to be delivered to Customer. However, a request
by the Customer for Scheduled Quantities to be delivered on any
Saturday, Sunday or Monday shall be submitted to PPL no later than
6:30 a.m. (MPT) on Thursday for Saturday delivery and 6:30 a.m. (MPT)
Friday for Sunday and Monday delivery. For Holidays, Customer shall
provide notice no later than 6:30 a.m. (MPT) on the Western Systems
Coordinating Council (WSCC), or its successor(s), designated
pre-scheduling day for that Holiday. These deadlines may be revised
for changes in the WSCC, or its successor(s) scheduling practices by
written notification to Customer. At a minimum, Customer shall specify
the MW quantity and the start and end times of the delivery of the
Scheduled Quantity. Unless otherwise provided in a Purchasing
Attachment hereto, if Customer fails to notify PPL within the time
frame indicated in this paragraph, PPL is under no obligation to
provide the Scheduled Quantity requested. Customer shall notify PPL in
accordance with the Notification Procedures detailed in Section 6
below. Customer and PPL shall cooperate to ensure that schedules and
Scheduled Quantities are timely and reflect the actual expected
deliveries of electricity supply to the Customer's Facilities,
provided however, that notwithstanding such cooperation, Customer
shall be liable for all energy
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ATTACHMENT
imbalance charges and other related charges incurred as a result of
Customer's Scheduled Quantities, except to the extent caused solely by
PPL's negligence or willful misconduct.
(b) Customer shall be responsible for providing PPL with the Scheduled
Quantity. Except to the extent caused solely by PPL's negligence or
willful misconduct, PPL shall not be liable to Customer for any
damages that may result, including the failure to schedule or reserve
sufficient transmission, if such failure was related, in whole or in
part, directly or indirectly, to inaccuracies in or the Customer's
failure to supply PPL with the Scheduled Quantity as required by
Section 5(a).
6. NOTIFICATION PROCEDURES: Each Party shall notify the other if the
Customer's ETP provides notice of a distribution or transmission outage
that will impact the Customer's Facility(ies). In the event of a planned
outage, the notifying Party shall provide notification the sooner of at
least one full business day in advance or no later than 6:30 am Mountain
Prevailing Time (MPT) of the preceding business day. In the event of any
unplanned outage, the notifying Party shall provide the other Party with
all the information received from the ETP or EDC, but at a minimum, the
amount of load/supply reduction, start time and end time.
7. REVOCATION. Notwithstanding any contrary provision, Customer and PPL shall
each have the right to revoke and terminate, upon thirty (30) day's prior
written notice, the agency relationship set forth herein. However, such
revocation shall not relieve either Party from any responsibilities
described in the Retail Electricity Supply Contract or other Attachments to
the Agreement. Upon such revocation, Customer shall notify the ETP that PPL
is no longer acting as Customer's Designated Agent.
8. MISCELLANEOUS.
(a) ASSIGNMENT. This Agency Relationship is not assignable by either Party
without the prior written consent of the non-assigning Party, which
consent shall not be unreasonably withheld, delayed or conditioned.
Any assignment without the prior approval of the non-assigning Party
is voidable by such non-assigning Party.
(b) AMENDMENT/BINDING EFFECT. This Agency Relationship may not be amended,
changed, modified, or altered unless such amendment, change,
modification, or alteration is in writing and signed by both Parties
to the Agreement or their successor in interest. This Agency
Relationship inures to the benefit of and is binding upon the Parties
and their respective successors and permitted assigns.
(c) SEVERABILITY. If any article, section, phrase or portion of this
Agency Relationship is, for any reason, held or adjudged to be
invalid, illegal or unenforceable by any court of competent
jurisdiction, such article, section, phrase, or portion so adjudged
will be deemed separate, severable and independent and the remainder
of this Agency Relationship will be and remain in full force and
effect and will not be invalidated or rendered illegal or
unenforceable or otherwise affected by such adjudication, provided the
basic purpose of this Agency Relationship and the benefits to the
Parties are not substantially impaired.
(d) ENTIRE AGENCY RELATIONSHIP. This Agency Relationship completely and
fully supersedes all other understandings or agreements, both written
and oral, including any term sheet or confirmation, between the
Parties relating to the subject matter hereof.
(e) WAIVER. No delay or omission by a Party in the exercise of any right
under this Agency Relationship shall be taken, construed, or
considered as a waiver or relinquishment thereof, and any such right
may be exercised from time to time and as often as may be deemed
expedient. If any of the terms and conditions herein are breached and
thereafter waived by a Party, such waiver is limited to the particular
breach so waived and is not deemed to waive any other breach
hereunder.
IN WITNESS WHEREOF, the Parties have caused this Agency Relationship to
be signed by their respective duly authorized representative as of the date
first set forth on the Retail Electricity Supply Contract.
CONFIRMING SIGNATURES:
For Customer For PPL EnergyPlus, LLC
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Title: Title:
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Date: Date:
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