Exhibit 10.13
AMENDMENT NO. 1 TO THE CAPACITY AGREEMENT
This Amendment No. 1 to the Capacity Agreement (this "Amendment") is
made and entered into as of February 15, 2002 by and between Duquesne Light
Company, a Pennsylvania corporation ("DLC"), and FirstEnergy Solutions Corp., an
Ohio corporation (the "Supplier"). DLC and the Supplier are referred to
individually as a "Party" and collectively as the "Parties." In addition,
capitalized terms that are used, but not otherwise defined, herein shall have
the meanings ascribed to such terms in the Capacity Agreement (as defined
below).
WITNESSETH:
WHEREAS, the Parties are parties to that certain Capacity Agreement
dated as of December 18, 2001 relating to certain capacity and energy
obligations (the "Capacity Agreement");
WHEREAS, in connection with executing the Capacity Agreement, the
Parties acknowledged that (i) contemporaneously with the negotiation of the
Capacity Agreement, DLC was negotiating the POLR Supplier Capacity Agreement,
(ii) the Parties were executing the Capacity Agreement prior to the final
negotiation and execution of the POLR Supplier Capacity Agreement, and (iii) the
Parties have an interest in causing the material provisions of the POLR Supplier
Capacity Agreement and the material provisions of the Capacity Agreement to be
consistent with one another;
WHEREAS, also in connection with executing the Capacity Agreement, the
Parties agreed that if DLC later notified the Supplier that one or more material
provisions of the POLR Supplier Capacity Agreement were no longer consistent
with the correlative provisions of the Capacity Agreement, then the Parties
would negotiate in good faith such amendments to the Capacity Agreement as would
be necessary to render such provisions of the Capacity Agreement consistent with
those provisions of the POLR Supplier Capacity Agreement (any such amendments,
the "Required Amendments");
WHEREAS, DLC completed negotiating and definitively executed the POLR
Supplier Capacity Agreement on February 15, 2002 and notified the Supplier that
certain Required Amendments are necessary to the Capacity Agreement; and
WHEREAS, in furtherance of the foregoing, the Parties intend to hereby
amend the Capacity Agreement to reflect the Required Amendments, as more fully
contemplated by this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and agreements hereinafter set forth, and intending to be
legally bound hereby, the Parties agree as follows:
1. Section 1.1 of the Capacity Agreement is hereby amended by adding
the following definition thereto:
"FE Congestion Charge" means, for each hour, a charge equal to the FE
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Supply Amount for that hour multiplied by $.10/MWh.
2. Section 3.4 of the Capacity Agreement is hereby amended by
restating the second sentence thereof in its entirety to read as follows:
Beginning on the Effective Date and continuing through the term of this
Agreement, the Supplier shall, within ten (10 days) following the end of
each calendar month, invoice DLC for all FE Congestion Charges imposed
under Section 4.8 hereof, all Transmission Congestion Charges associated
with the Swap Amount and FE Charges imposed under Section 4.5 (a) hereof
(and credit DLC for any FE Credits imposed under Section 4.5(a) hereof)
attributable to the preceding calendar month, which invoice shall, as
necessary, also adjust one or more prior months' invoices based on
information then available to the Supplier.
3. Section 4.2 of the Capacity Agreement is hereby amended by
restating the second sentence thereof in its entirety to read as follows:
Beginning on the calendar day immediately preceding the Effective Date and
continuing through the term of this Agreement, on a daily basis, the
Supplier shall schedule on a day-ahead basis, pursuant to the PJM West
Protocols, the FE Supply Amounts to the "DLC Load Zone" as defined under
and pursuant to the PJM West Protocols, provided, that any portion of any
FE Supply Amount not so scheduled on a day-ahead basis shall be scheduled,
pursuant to the PJM West Protocols, by the Supplier using the day-after
E-schedules, if any, then permitted under, and according to such rules and
procedures as may be then required by, the PJM West Protocols.
4. Section 4.3 of the Capacity Agreement is hereby amended by
restating the second sentence thereof in its entirety to read as follows:
Beginning at one minute after 11:59 p.m. (eastern time) on the day prior to
the Effective Date and continuing through the term of this Agreement, the
Supplier shall deliver to DLC each hour, on a continuous basis, the FE
Supply Amount for such hour at the "DLC Load Zone" as defined under and
pursuant to the PJM West Protocols.
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5. Article IV of the Capacity Agreement is hereby amended by adding a
new Section 4.8 thereto which shall read in its entirety as follows:
4.8 FE Congestion Charges. For each hour during which the Supplier delivers
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the FE Supply Amount for such hour as contemplated by Section 4.3 hereof,
DLC shall pay to the Supplier, in accordance with Section 3.4 of this
Agreement, the FE Congestion Charge for that hour.
6. This Amendment may be executed in more than one (1) counterpart,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, each of DLC and the Supplier has caused this
Amendment to be executed as of the date first above written.
DUQUESNE LIGHT COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
FIRSTENERGY SOLUTIONS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President
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