AMENDED AND RESTATED
INTER-COMPANY POWER AGREEMENT
DATED AS OF MARCH 13, 2006
AMONG
OHIO VALLEY ELECTRIC CORPORATION,
ALLEGHENY ENERGY SUPPLY COMPANY, LLC
APPALACHIAN POWER COMPANY,
THE CINCINNATI GAS & ELECTRIC COMPANY,
COLUMBUS SOUTHERN POWER COMPANY,
THE DAYTON POWER AND LIGHT COMPANY,
FIRSTENERGY GENERATION CORP.,
INDIANA MICHIGAN POWER COMPANY,
KENTUCKY UTILITIES COMPANY,
LOUISVILLE GAS AND ELECTRIC COMPANY,
MONONGAHELA POWER COMPANY,
OHIO POWER COMPANY, and
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
AMENDED AND RESTATED
INTER-COMPANY POWER AGREEMENT
THIS AGREEMENT, dated as of March 13, 2006, by and
among Ohio Valley Electric Corporation (herein called OVEC),
Allegheny Energy Supply Company, LLC (herein called Allegheny),
Appalachian Power Company (herein called Appalachian), The
Cincinnati Gas & Electric Company (herein called Cincinnati),
Columbus Southern Power Company (herein called Columbus), The
Dayton Power and Light Company (herein called Dayton),
FIRSTENERGY GENERATION CORP. (herein called FirstEnergy), Indiana
Michigan Power Company (herein called Indiana), Kentucky
Utilities Company (herein called Kentucky), Louisville Gas and
Electric Company (herein called Louisville), Monongahela Power
Company (herein called Monongahela), Ohio Power Company (herein
called Ohio Power), and Southern Indiana Gas and Electric Company
(herein called Southern Indiana, and all of the foregoing, other
than OVEC, being herein sometimes collectively referred to as the
Sponsoring Companies and individually as a Sponsoring Company)
hereby amends and restates in its entirety, the Inter-Company
Power Agreement dated as of July 10, 1953 as amended from time to
time (herein called the Original Agreement), by and among OVEC,
Appalachian, Cincinnati, Columbus, Dayton, Indiana, Kentucky,
Louisville, Monongahela Ohio Edison Company, Ohio Power,
Pennsylvania Power Company, The Potomac Edison Company, Southern
Indiana, The Toledo Edison Company and West Penn Power Company.
Witnesseth That:
Whereas, the Original Agreement was amended by
Modification No. 1, dated as of June 3, 1966; Modification No. 2,
dated as of January 7, 1967; Modification No. 3, dated as of
November 15, 1967; Modification No. 4, dated as of November 5,
1975; Modification No. 5, dated as of September 1, 1979;
Modification No. 6, dated as of August 1, 1981; Modification No.
7, dated as of January 15, 1992; Modification No. 8, dated as of
January 19, 1994; Modification No. 9, dated as of August 17,
1995; Modification No. 10, dated as of January 1, 1998;
Modification No. 11, dated as of April 1, 1999; Modification No.
12, dated as of November 1, 1999; Modification No. 13, dated as
of May 24, 2000; Modification No. 14, dated as of April 1, 2001;
and Modification No. 15, dated as of April 30, 2004 (the
Modifications); and
Whereas, OVEC designed, purchased, and constructed, and
continues to operate and maintain two steam-electric generating
stations, one station (herein called Ohio Station) consisting of
five turbo-generators and all other necessary equipment, at a
location on the Ohio River near Cheshire, Ohio, and the other
station (herein called Indiana Station) consisting of six
turbogenerators and all other necessary equipment, at a location
on the Ohio River near Madison, Indiana, (the Ohio Station and
the Indiana Station being herein called the Project Generating
Stations); and
Whereas, OVEC also designed, purchased, and
constructed, and continues to operate and maintain necessary
transmission and general plant facilities (herein called the
Project Transmission Facilities) and OVEC established or cause to
be established interconnections between the Project Generating
Stations and the systems of certain of the Sponsoring Companies;
and
Whereas, OVEC entered into an agreement, attached
hereto as Exhibit A, with Indiana-Kentucky Electric Corporation
(herein called IKEC), a corporation organized under the laws of
the State of Indiana as a wholly owned subsidiary corporation of
OVEC, which has been amended and restated as of the date of this
Agreement and embodies the terms and conditions for the ownership
and operation by IKEC of the Indiana Station and such portion of
the Project Transmission Facilities which are to be owned and
operated by it; and
Whereas, transmission facilities were constructed by
certain of the Sponsoring Companies to interconnect the systems
of such Sponsoring Companies, directly or indirectly, with the
Project Generating Stations and/or the Project Transmission
Facilities, and the Sponsoring Companies have agreed to pay for
Available Power, as hereinafter defined, as may be available at
the Project Generating Stations; and
Whereas, pursuant to East Central Area Reliability
Group ("ECAR") Document No. 2, entitled DAILY OPERATING RESERVE,
as revised August 8, 1996 ("ECAR Document No. 2"), Corporation is
required to have available spinning reserve equal to a percentage
of its internal load as well as supplemental reserve equal to a
percentage of its internal load, which supplemental reserve is
expected to be provided by the Sponsoring Companies in proportion
to their respective Power Participation Ratios as defined in
subsection 1.0120; and
Whereas, the parties hereto desire to amend and restate
in their entirety, the Original Agreement and all of the
Modifications, to define the terms and conditions governing the
rights of the Sponsoring Companies to receive Available Power
from the Project Generating Stations and the obligations of the
Sponsoring Companies to pay therefor.
Now, Therefore, the parties hereto agree with each
other as follows:
ARTICLE 1
Definitions
1.01. For the purposes of this Agreement, the following
terms, wherever used herein, shall have the following meanings:
1.011 "Affiliate" means, with respect to a specified person,
any other person that directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common
control with, such specified person; provided that "control" for
these purposes means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
1.012 "Arbitration Board" has the meaning set forth in
Section 9.10.
1.013 "Available Energy" of the Project Generating Stations
means the energy associated with Available Power.
1.014 "Available Power" of the Project Generating Stations at
any particular time means the total net kilowatts at the 345-kV
busses of the Project Generating Stations which Corporation in
its sole discretion will determine that the Project Generating
Stations will be capable of safely delivering under conditions
then prevailing, including all conditions affecting capability.
1.015 "Corporation" means OVEC, IKEC, and all other
subsidiary corporations of OVEC.
1.016 "Decommissioning and Demolition Obligation" has the
meaning set forth in Section 5.03(f) hereof.
1.017 "ECAR Emergency Energy" means energy sold by
Corporation from its Spinning Reserve during an ECAR Reserve
Sharing Period.
1.018 "ECAR Reserve Sharing Period" means any period of time
during which any control area within ECAR ("ECAR Member") is
experiencing a system contingency which requires implementation
of ECAR's reserve sharing procedures.
1.019 "Effective Date" means March 13, 2006, or to the extent
necessary, such later date on which Corporation notifies the
Sponsoring Companies that all conditions to effectiveness,
including all required waiting periods and all required
regulatory acceptances or approvals, of this Agreement have been
satisfied in form and substance satisfactory to the Corporation.
1.0110 "Election Period" has the meaning set forth in Section
9.183(a) hereof.
1.0111 "Minimum Generating Unit Output" means 80 MW (net) for
each of the Corporation's generation units; provided that such
"Minimum Generating Unit Output" shall be confirmed from time to
time by operating tests on the Corporation's generation units and
shall be adjusted by the Operating Committee as appropriate
following such tests.
1.0112 "Minimum Loading Event" means a period of time during
which one or more of the Corporation's generation units are
operating at below the Minimum Generating Output as a result of
the Sponsoring Companies' failure to schedule and take delivery
of sufficient Available Energy.
1.0113 "Minimum Loading Event Costs" means the sum of the
following costs caused by one or more Minimum Loading Events: (i)
the actual costs of any of the Corporation's generating units
burning fuel oil; and (ii) the estimated actual additional costs
to the Corporation resulting from Minimum Loading Events,
including without limitation the incremental costs of additional
emissions allowances, reflected in the schedule of charges
prepared by the Operating Committee and in effect as of the
commencement of any Minimum Loading Event, which schedule may be
adjusted from time to time as necessary by the Operating
Committee.
1.0114 "Month" means a calendar month.
1.0115 "Nominal Power Available" means an individual
Sponsoring Company's Power Participation Ratio share of the
Corporation's current estimate of the maximum amount of Available
Power available for delivery at any given time.
1.0116 "Offer Notice" means the notice required to be given to
the other Sponsoring Companies by a Transferring Sponsor offering
to sell all or a portion of such Transferring Sponsor's rights,
title and interests in, and obligations under this Agreement. At
a minimum, the Offer Notice shall be in writing and shall contain
(i) the rights, title and interests in, and obligations under
this Agreement that the Transferring Sponsor proposes to
Transfer; and (ii) the cash purchase price and any other material
terms and conditions of such proposed transfer. An Offer Notice
may not contain terms or conditions requiring the purchase of any
non-OVEC interests.
1.0117 "OVEC Emergency Energy" means energy purchased by
Corporation during an ECAR Reserve Sharing Period pursuant to the
provisions of ECAR Document No. 2.
1.0118 "Permitted Assignee" means a person that is (a) a
Sponsoring Company or its Affiliate whose long-term unsecured non-
credit enhanced indebtedness, as of the date of such assignment,
has a Standard & Poor's credit rating of at least BBB- and a
Moody's Investors Service, Inc. credit rating of at least Baa3
(provided that, if the proposed assignee's long-term unsecured
non-credit enhanced indebtedness is not currently rated by one of
Standard & Poor's or Moody, such assignee's long-term unsecured
non-credit enhanced indebtedness, as of the date of such
assignment, must have either a Standard & Poor's credit rating of
at least BBB- or a Moody's Investors Service, Inc. credit rating
of at least Baa3); or (b) a Sponsoring Company or its Affiliate
that does not meet the criteria in subsection (a) above, if the
Sponsoring Company or its Affiliate that is assigning its rights,
title and interests in, and obligations under, this Agreement
agrees in writing (in form and substance satisfactory to
Corporation) to remain obligated to satisfy all of the
obligations related to the assigned rights, title and interests
to the extent such obligations are not satisfied by the assignee
of such rights, title and interests; provided that, in no event
shall a person be deemed a "Permitted Assignee" if counsel for
the Corporation reasonably determines that the assignment of the
rights, title or interests in, or obligations under, this
Agreement to such person could cause a termination, default, loss
or payment obligation under any security issued, or agreement
entered into, by the Corporation prior to such transfer.
1.0119 "Postretirement Benefit Obligation" has the meaning set
forth in Section 5.03(e) hereof.
1.0120 "Power Participation Ratio" as applied to each of the
Sponsoring Companies refers to the percentage set forth opposite
its respective name in the tabulation below:
Company Power Participation
Ratio-Percent
Allegheny 9.00
Appalachian 15.69
Cincinnati 9.00
Columbus 4.44
Dayton 4.90
FirstEnergy 20.50
Indiana 7.85
Kentucky 2.50
Louisville 5.63
Monongahela 3.50
Ohio Power 15.49
Southern Indiana 1.50
-----
Total 100.0
1.0121 "Spinning Reserve" means unloaded generation which is
synchronized and ready to serve additional demand within ten
minutes.
1.0122 "Supplemental Reserve" means a combination of spinning
reserve, qualified interruptible load, qualified quick-start
generating capacity or pre-scheduled assistance from another
system which can be fully utilized within ten minutes.
1.0123 "Third Party" means any person other than a Sponsoring
Company or its Affiliate.
1.0124 "Total Minimum Generating Output" means the product of
the Minimum Generating Unit Output times the number of the
Corporation's generation units available for service at that
time.
1.0125 "Transferring Sponsor" has the meaning set forth in
Section 9.183(a) hereof.
1.0126 "Uniform System of Accounts" means the Uniform System
of Accounts prescribed by the Federal Energy Regulatory
Commission as in effect on January 1, 2004.
ARTICLE 2
Transmission Facilities
2.01. Limited Burdening of Corporation's Transmission
Facilities. Transmission facilities owned by the Corporation,
including the Project Transmission Facilities, shall not be
burdened by power and energy flows of any Sponsoring Company to
an extent which would impair or prevent the transmission of
Available Power, ECAR Emergency Energy or OVEC Emergency Energy.
ARTICLE 3
ECAR and OVEC Emergency Energy
3.01. In order to enable Corporation to fulfill its
obligation under ECAR Document No. 2 to maintain Supplemental
Reserve equal to a percentage of Corporation's internal load,
each Sponsoring Company shall stand ready to supply its Power
Participation Ratio of OVEC's Supplemental Reserve obligation to
other members of ECAR during any ECAR Reserve Sharing Period. It
is understood, however, that the amount which each Sponsoring
Company may charge for its share of such Supplemental Reserve
shall be such Sponsoring Company's FERC filed emergency energy
charge.
3.02. In order to enable Corporation to fulfill its
obligation under ECAR Document No. 2 to provide some or all of
the energy available from OVEC's Spinning Reserve to an ECAR
Member which is in need of ECAR Emergency Energy, the Sponsoring
Companies shall stand ready to purchase from Corporation the
energy available from its Spinning Reserve, or any portion
thereof, for their own emergency use or for resale to or for
another ECAR Member which is experiencing an emergency and shall
also stand ready to transmit such energy to or for another ECAR
Member which is experiencing an emergency.
3.03. In the event that Corporation is required to purchase,
and pay other entities for, OVEC Emergency Energy, each
Sponsoring Company shall pay its share, in accordance with its
Power Participation Ratio, of the full amount paid by Corporation
for OVEC Emergency Energy in accordance with the applicable FERC
filed emergency energy charge; provided, however, that
Corporation shall credit any payments which Corporation owes to
any Sponsoring Company for ECAR Emergency Energy against the
amounts otherwise payable by such Sponsoring Company for OVEC
Emergency Energy.
ARTICLE 4
Available Power Supply
4.01. Operation of Project Generating Stations. Corporation
shall operate and maintain the Project Generating Stations in a
manner consistent with safe, prudent, and efficient operating
practice so that the Available Power available from said stations
shall be at the highest practicable level attainable consistent
with OVEC's obligations under ECAR Document No. 2 throughout the
term of this Agreement.
4.02. Available Power Entitlement. The Sponsoring Companies
collectively shall be entitled to take from Corporation and
Corporation shall be obligated to supply to the Sponsoring
Companies any and all Available Power and Available Energy
pursuant to the provisions of this Agreement. Each Sponsoring
Company's Available Power Entitlement hereunder shall be its
Power Participation Ratio, as defined in subsection 1.0120, of
Available Power.
4.03. Available Energy. Corporation shall make Available
Energy available to each Sponsoring Company in proportion to said
Sponsoring Company's Power Participation Ratio. No Sponsoring
Company, however, shall be obligated to avail itself of any
Available Energy. Available Energy shall be scheduled and taken
by the Sponsoring Companies in accordance with the following
procedures:
4.031 Each Sponsoring Company shall schedule the delivery of
all or any portion (in whole MW increments) of its entitlement to
Available Energy in accordance with scheduling procedures
established by the Operating Committee from time to time.
4.032 In the event that any Sponsoring Company does not
schedule the delivery of all of its Power Participation Ratio
share of Available Energy, then each such other Sponsoring
Company may schedule the delivery of all or any portion (in whole
MW increments) of any such unscheduled share of Available Energy
(through successive allotments if necessary) in proportion to
their Power Participation Ratios.
4.033 Notwithstanding any Available Energy schedules made in
accordance with this Section 4.03 and the applicable scheduling
procedures, (i) the Corporation shall adjust all schedules to the
extent that the Corporation's actual generation output is less
than or more than the expected Nominal Power Available to all
Sponsoring Companies; and (ii) immediately following a Minimum
Loading Event, any Sponsoring Company causing (in whole or part)
such Minimum Loading Event shall have its Available Energy
schedules increased after the schedules of the Sponsoring
Companies not causing such Minimum Load Event, in accordance with
the estimated ramp rates associated with the shutdown and start-
up of the Corporation's generation units as reflected in the
schedules prepared by the Operating Committee and in effect as of
the commencement of any Minimum Loading Event, which schedules
may be adjusted from time to time as necessary by the Operating
Committee.
4.034 Each Sponsoring Company availing itself of Available
Energy shall be entitled to an amount of energy (herein called
billing kilowatt-hours of Available Energy) equal to its portion,
determined as provided in this Section 4.03, of the total
Available Energy after deducting therefrom such Sponsoring
Company's proportionate share, as defined in this Section 4.03,
of all losses as determined by the Operating Committee which
would be incurred in transmitting the total of such Available
Energy from the 345-kV busses of the Project Generating Stations
to the applicable delivery points, as scheduled pursuant to
Section 9.01, of all Sponsoring Companies availing themselves of
Available Energy. The proportionate share of all such losses
that shall be so deducted from such Sponsoring Company's portion
of Available Energy shall be equal to all such losses multiplied
by the ratio of such portion of Available Energy to the total of
such Available Energy. Each Sponsoring Company shall have the
right, pursuant to this Section 4.03, to avail itself of
Available Energy for the purpose of meeting the loads of its own
system and/or of supplying energy to other systems in accordance
with agreements, other than this Agreement, to which such
Sponsoring Company is a party.
4.035 To the extent that, as a result of the failure by one
or more Sponsoring Companies to take its respective Power
Participation Ratio share of the applicable Total Minimum
Generating Output during any hour, a Minimum Loading Event shall
occur, then such one or more Sponsoring Companies shall be
assessed charges for any Minimum Loading Event Costs in
accordance with Section 5.05.
ARTICLE 5
Charges for Available Power, ECAR and OVEC Emergency Energy, and
Minimum Loading Event Costs
5.01. Total Monthly Charge. The amount to be paid to
Corporation each month by the Sponsoring Companies for Available
Power and Available Energy supplied under this Agreement shall
consist of the sum of an energy charge, a demand charge and, if
applicable, an emergency energy charge, all determined as set
forth in this Article 5.
5.02. Energy Charge. The energy charge to be paid each month
by the Sponsoring Companies for Available Energy shall be
determined by Corporation as follows:
5.021 Determine the aggregate of all expenses for fuel
incurred in the operation of the Project Generating Stations, in
accordance with Account 501 (Fuel), Account 506.5 (Variable
Reagent Costs Associated With Pollution Control Facilities) and
509 (Allowances) of the Uniform System of Accounts.
5.022 Determine for such month the difference between the
total cost of fuel as described in subsection 5.021 above and the
sum of (i) the total cost of fuel used to generate ECAR Emergency
Energy, and (ii) the total cost of fuel included in any Minimum
Loading Event Costs payable to the Corporation for such month
pursuant to Section 8.04. For the purposes hereof the difference
so determined shall be the fuel cost allocable for such month to
the total kilowatt-hours of energy generated at the Project
Generating Stations for the supply of Available Energy. For
Available Energy availed of by the Sponsoring Companies, each
Sponsoring Company shall pay Corporation for each such month an
amount obtained by multiplying the ratio of the billing kilowatt-
hours of such Available Energy availed of by such Sponsoring
Company during such month to the aggregate of the billing
kilowatt-hours of all Available Energy availed of by all
Sponsoring Companies during such month times the total cost of
fuel as described in this subsection 5.022 for such month.
5.03. Demand Charge. During the period commencing with the
Effective Date and for the remainder of the term of this
Agreement, demand charges payable by the Sponsoring Companies to
Corporation shall be determined by the Corporation as provided
below in this Section 5.03. Each Sponsoring Company's share of
the aggregate demand charges shall be the percentage of such
charges represented by its Power Participation Ratio.
The aggregate demand charge payable each month by the
Sponsoring Companies to Corporation shall be equal to the total
costs incurred for such month by Corporation resulting from its
ownership, operation, and maintenance of the Project Generating
Stations and Project Transmission Facilities determined as
follows:
As soon as practicable after the close of each calendar
month the following components of costs of Corporation
(eliminating any duplication of costs which might
otherwise be reflected among the corporate entities
comprising Corporation) applicable for such month to
the ownership, operation and maintenance of the Project
Generating Stations and the Project Transmission
Facilities, including additional facilities and/or
spare parts (such as fuel processing plants, flue gas
or waste product processing facilities, and facilities
reasonably required to enable the Corporation to limit
the emission of pollutants or the discharge of wastes
in compliance with governmental requirements) and
replacements necessary or desirable to keep the Project
Generating Stations and the Project Transmission
Facilities in a dependable and efficient operating
condition, and any provision for any taxes that may be
applicable to such charges, to be determined and
recorded in the following manner:
(a) Component (A) shall consist of fixed charges made up of
(i) the amounts of interest properly chargeable to Accounts 427,
430 and 431, less the amount thereof credited to Account 432, of
the Uniform System of Accounts, including the interest component
of any purchase price, interest, rental or other payment under an
installment sale, loan, lease or similar agreement relating to
the purchase, lease or acquisition by Corporation of additional
facilities and replacements (whether or not such interest or
other amounts have come due or are actually payable during such
Month), (ii) the amounts of amortization of debt discount or
premium and expenses properly chargeable to Accounts 428 and 429,
and (iii) an amount equal to the sum of (I) the applicable amount
of the debt amortization component for such month required to
retire the total amount of indebtedness of Corporation issued and
outstanding, (II) the amortization requirement for such month in
respect of indebtedness of Corporation incurred in respect of
additional facilities and replacements, and (III) to the extent
not provided for pursuant to clause (II) of this clause (iii), an
appropriate allowance for depreciation of additional facilities
and replacements.
(b) Component (B) shall consist of the total operating expenses
for labor, maintenance, materials, supplies, services, insurance,
administrative and general expense, etc., properly chargeable to
the Operation and Maintenance Expense Accounts of the Uniform
System of Accounts (exclusive of Accounts 501, 509, 555, 911,
912, 913, 916, and 917 of the Uniform System of Accounts), minus
the total of all non-fuel costs included in any Minimum Loading
Event Costs payable to the Corporation for such month pursuant to
Section 8.04, and plus any additional amounts which, after
provision for all income taxes on such amounts (which shall be
included in Component (C) below), shall equal any amounts paid or
payable by Corporation as fines or penalties with respect to
occasions where it is asserted that Corporation failed to comply
with a law or regulation relating to the emission of pollutants
or the discharge of wastes.
(c) Component (C) shall consist of the total expenses for
taxes, including all taxes on income but excluding any federal
income taxes arising from payments to Corporation under Component
(D) below, and all operating or other costs or expenses, net of
income, not included or specifically excluded in Components (A)
or (B) above, including tax adjustments, regulatory adjustments,
net losses for the disposition of property and other net costs or
expenses associated with the operation of a utility.
(d) Component (D) shall consist of an amount equal to the
product of $2.089 multiplied by the total number of shares of
capital stock of the par value of $100 per share of Ohio Valley
Electric Corporation which shall have been issued and which are
outstanding on the last day of such month.
(e) Component (E) shall consist of an amount to be sufficient
to pay the costs and other expenses relating to the
establishment, maintenance and administration of life insurance,
medical insurance and other postretirement benefits other than
pensions attributable to the employment and employee service of
active employees, retirees, or other employees, including without
limitation any premiums due or expected to become due, as well as
administrative fees and costs, such amounts being sufficient to
provide payment with respect to all periods for which Corporation
has committed or is otherwise obligated to make such payments,
including amounts attributable to current employee service and
any unamortized prior service cost, gain or loss attributable to
prior service years ("Postretirement Benefit Obligation");
provided that, the amount payable for Postretirement Benefit
Obligations during any month shall be determined by the
Corporation based on, among other factors, the Statement of
Financial Accounting Standards No. 106 (Employers' Accounting For
Postretirement Benefits Other Than Pensions) and any applicable
accounting standards, policies or practices as adopted from time
to time relating to accruals with respect to all or any portion
of such Postretirement Benefit Obligation.
(f) Component (F) shall consist of an amount that may be
incurred in connection with the decommissioning, shutdown,
demolition and closing of the Project Generating Stations when
production of electric power and energy is discontinued at such
Project Generating Stations, which amount shall include, without
limitation the following costs (net of any salvage credits): the
costs of demolishing the plants' building structures, disposal of
non-salvageable materials, removal and disposal of insulating
materials, removal and disposal of storage tanks and associated
piping, disposal or removal of materials and supplies (including
fuel oil and coal), grading, covering and reclaiming storage and
disposal areas, disposing of ash in ash ponds to the extent
required by regulatory authorities, undertaking corrective or
remedial action required by regulatory authorities, and any other
costs incurred in putting the facilities in a condition necessary
to protect health or the environment or which are required by
regulatory authorities, or which are incurred to fund continuing
obligations to monitor or to correct environmental problems which
result, or are later discovered to result, from the facilities'
operation, closure or post-closure activities ("Decommissioning
and Demolition Obligation") provided that, the amount payable for
Decommissioning and Demolition Obligations during any month shall
be calculated by Corporation based on, among other factors, the
then-estimated useful life of the Project Generating Stations and
any applicable accounting standards, policies or practices as
adopted from time to time relating to accruals with respect to
all or any portion of such Decommissioning and Demolition
Obligation, and provided further that, the Corporation shall
recalculate the amount payable under this Component (F) for
future months from time to time, but in no event later than five
(5) years after the most recent calculation.
5.04. ECAR and OVEC Emergency Energy. The amount to be paid
to Corporation for ECAR Emergency Energy supply under this
Agreement shall be 98.74 mills per kilowatt hour (plus
transmission charges calculated in accordance with applicable
law). The amount to be paid to Corporation for OVEC Emergency
Energy purchased by Corporation under this Agreement shall be the
applicable FERC filed emergency energy charge per kilowatt hour
(plus any applicable transmission charges calculated in
accordance with applicable law).
5.05. Minimum Loading Event Costs. To the extent that, as a
result of the failure by one or more Sponsoring Companies to take
its respective Power Participation Ratio share of the applicable
Total Minimum Generating Output during any hour, a Minimum
Loading Event shall occur, then the sum of all Minimum Loading
Event Costs relating to such Minimum Loading Event shall be
charged to such Sponsoring Company or group of Sponsoring
Companies that failed take its respective Power Participation
Ratio share of the applicable Total Minimum Generating Output
during such period, with such Minimum Loading Event Costs
allocated among such Sponsoring Companies on a pro-rata basis in
accordance with such Sponsoring Company's MWh share of the MWh
reduction in the delivery of Available Energy causing any Minimum
Loading Event. The applicable charges for Minimum Loading Event
Costs as determined by the corporation in accordance with Section
5.05 shall be paid each month by the applicable Sponsoring
Companies.
ARTICLE 6
Metering of Energy Supplied
6.01. Measuring Instruments. The parties hereto shall own
and maintain such metering equipment as may be necessary to
provide complete information regarding the delivery of power and
energy to or for the account of any of the parties hereto; and
the ownership and expense of such metering shall be in accordance
with agreements among them. Each party will at its own expense
make such periodic tests and inspections of its meters as may be
necessary to maintain them at the highest practical commercial
standard of accuracy and will advise all other interested parties
hereto promptly of the results of any such test showing an
inaccuracy of more than 1%. Each party will make additional
tests of its meters at the request of any other interested party.
Other interested parties shall be given notice of, and may have
representatives present at, any test and inspection made by
another party.
ARTICLE 7
Costs of Replacements and Additional Facilities;
Payments for Employee Benefits;
Decommissioning, Shutdown, Demolition and Closing Charges
7.01. Replacement Costs. The Sponsoring Companies shall
reimburse Corporation for the difference between (a) the total
cost of replacements chargeable to property and plant made by
Corporation during any month prior thereto (and not previously
reimbursed) and (b) the amounts received by Corporation as
proceeds of fire or other applicable insurance protection, or
amounts recovered from third parties responsible for damages
requiring replacement, plus provision for all taxes on income on
such difference; provided that, to the extent that the
Corporation arranges for the financing of any replacements, the
payments due under this Section 7.01 shall equal the amount of
all principal, interest, taxes and other costs and expenses
related to such financing during any month. Each Sponsoring
Company's share of such payment shall be the percentage of such
costs represented by its Power Participation Ratio. The term
cost of replacements, as used herein, shall include all
components of cost, plus removal expense, less salvage.
7.02. Additional Facility Costs. The Sponsoring Companies
shall reimburse Corporation for the total cost of additional
facilities and/or spare parts purchased and/or installed by
Corporation during any month prior thereto (and not previously
reimbursed), plus provision for all taxes on income on such
costs; provided that, to the extent that the Corporation arranges
for the financing of any additional facilities and/or spare
parts, the payments due under this Section 7.02 shall equal the
amount of all principal, interest, taxes and other costs and
expenses related to such financing during any month. Each
Sponsoring Company's share of such payment shall be the
percentage of such costs represented by its Power Participation
Ratio.
7.03. Payments for Employee Benefits. Not later than the
effective date of termination of this Agreement, each Sponsoring
Company will pay to Corporation its Power Participation Ratio
share of additional amounts, after provision for any taxes that
may be applicable thereto, sufficient to cover any shortfall if
the amount of the Postretirement Benefit Obligation collected by
the Corporation prior to the effective date of termination of the
Agreement is insufficient to permit Corporation to fulfill its
commitments or obligations with respect to both postemployment
benefit obligations under the Statement of Financial Accounting
Standards No. 112 and postretirement benefits other than
pensions, as determined by Corporation with the aid of an actuary
or actuaries selected by the Corporation based on the terms of
the Corporation's then-applicable plans.
7.04. Decommissioning, Shutdown, Demolition and Closing. The
Sponsoring Companies recognize that a part of the cost of
supplying power to it under this Agreement is the amount that may
be incurred in connection with the decommissioning, shutdown,
demolition and closing of the Project Generating Stations when
production of electric power and energy is discontinued at such
Project Generating Stations. Not later than the effective date
of termination of this Agreement, each Sponsoring Company will
pay to Corporation its Power Participation Ratio share of
additional amounts, after provision for any taxes that may be
applicable thereto, sufficient to cover any shortfall if the
amount of the Decommissioning and Demolition Obligation collected
by the Corporation prior to the effective date of termination of
the Agreement is insufficient to permit Corporation to complete
the decommissioning, shutdown, demolition and closing of the
Project Generating Stations, based on the Corporation's
recalculation of the Decommissioning and Demolition Obligation in
accordance with Section 5.03(f) of this Agreement no earlier than
twelve (12) months before the effective date of termination of
this Agreement.
ARTICLE 8
Billing and Payment
8.01. Available Power, and Replacement and Additional
Facility Costs. As soon as practicable after the end of each
month Corporation shall render to each Sponsoring Company a
statement of all Available Power and Available Energy supplied to
or for the account of such Sponsoring Company during such month,
specifying the amount due to the Corporation therefor, including
any amounts for reimbursement for the cost of replacements and
additional facilities and/or spare parts incurred during such
month, pursuant to Articles 5 and 7 above. Such Sponsoring
Company shall make payment therefor promptly upon the receipt of
such statement, but in no event later than fifteen (15) days
after the date of receipt of such statement. In case any factor
entering into the computation of the amount due for Available
Power and Available Energy cannot be determined at the time, it
shall be estimated subject to adjustment when the actual
determination can be made.
8.02. Provisional Payments for Available Power. The
Sponsoring Companies shall, from time to time, at the request of
the Corporation, make provisional semi-monthly payments for
Available Power in amounts approximately equal to the estimated
amounts payable for Available Power delivered by Corporation to
the Sponsoring Companies during each semi-monthly period. As
soon as practicable after the end of each semi-monthly period
with respect to which Corporation has requested the Sponsoring
Companies to make provisional semi-monthly payments for Available
Power, Corporation shall render to each Sponsoring Company a
separate statement indicating the amount payable by such
Sponsoring Company for such semi-monthly period. Such Sponsoring
Company shall make payment therefor promptly upon receipt of such
statement, but in no event later than fifteen (15) days after the
date of receipt of such statement and the amounts so paid by such
Sponsoring Company shall be credited to the account of such
Sponsoring Company with respect to future payments to be made
pursuant to Articles 5 and 7 above by such Sponsoring Company to
Corporation for Available Power.
8.03. ECAR and OVEC Emergency Energy. As soon as practicable
after the end of each month, Corporation shall render to each
Sponsoring Company a statement indicating all ECAR Emergency
Energy supplied to or for the account of such Sponsoring Company
during such month and all OVEC Emergency Energy supplied to
Corporation during such month, specifying the amount due to the
Corporation therefor pursuant to Article 5 above; provided,
however, that Corporation shall credit any payments which
Corporation owes to any Sponsoring Company for ECAR Emergency
Energy against the amounts otherwise payable by such Sponsoring
Company for OVEC Emergency Energy. Such Sponsoring Company shall
make payment therefor promptly upon the receipt of such
statement, but in no event later than fifteen (15) days after the
date of receipt of such statement. In case the computation of
the amount due for ECAR Emergency Energy or OVEC Emergency Energy
cannot be determined at the time, it shall be estimated subject
to adjustment when the actual determination can be made, and all
payments shall be subject to subsequent adjustment.
8.04. Minimum Loading Event Costs. As soon as practicable
after the end of each month, Corporation shall render to each
Sponsoring Company a statement indicating any applicable charges
for Minimum Loading Event Costs pursuant to Section 5.05 during
such month, specifying the amount due to the Corporation therefor
pursuant to Article 5 above. Such Sponsoring Company shall make
payment therefor promptly upon the receipt of such statement, but
in no event later than fifteen (15) days after the date of
receipt of such statement. In case the computation of the amount
due for Minimum Loading Event Costs cannot be determined at the
time, it shall be estimated subject to adjustment when the actual
determination can be made, and all payments shall be subject to
subsequent adjustment.
8.05. Unconditional Obligation to Pay Demand and Other
Charges. The obligation of each Sponsoring Company to pay its
specified portion of the Demand Charge under Section 5.03 and all
charges under Article 7 for any Month shall not be reduced
irrespective of:
(a) whether or not any Available Power or Available Energy are
supplied by the Corporation during such calendar month and
whether or not any Available Power or Available Energy are
accepted by any Sponsoring Company during such calendar month;
(b) the existence of any claim, set-off, defense, reduction,
abatement or other right (other than irrevocable payment,
performance, satisfaction or discharge in full) that such
Sponsoring Company may have, or which may at any time be
available to or be asserted by such Sponsoring Company, against
the Corporation , any other Sponsoring Company, any creditor of
the Corporation or any other Person (including, without
limitation, arising as a result of any breach or alleged breach
by either the Corporation, any other Sponsoring Company, any
creditor of the Corporation or any other Person under this
Agreement or any other agreement (whether or not related to the
transactions contemplated by this Agreement or any other
agreement) to which such party is a party); or
(c) the validity or enforceability against any other Sponsoring
Company of this Agreement or any right or obligation hereunder
(or any release or discharge thereof) at any time.
ARTICLE 9
General Provisions
9.01. Characteristics of Supply and Points of Delivery. All
power and energy delivered hereunder shall be 3-phase, 60-cycle,
alternating current, at a nominal unregulated voltage designated
for the point of delivery as described in this Article 9.
Available Power and Available Energy to be delivered between
Corporation and the Sponsoring Companies pursuant to this
Agreement shall be delivered at the points, as scheduled by the
Sponsoring Company in accordance with procedures established by
the Operating Committee and in accordance with Section 9.02,
where the transmission facilities of Corporation interconnect
with the transmission facilities of any Sponsoring Company (or
its successor or predecessor); provided that, to the extent that
a joint and common market is established for the sale of power
and energy by Sponsoring Companies within one or more of the
regional transmission organizations or independent system
operators approved by the Federal Energy Regulatory Commission in
which the Sponsoring Companies are members or otherwise
participate, then Corporation and the Sponsoring Companies shall
take such action as reasonably necessary to permit the Sponsoring
Companies to bid their entitlement to power and energy from
Corporation into such market(s) in accordance with the procedures
established for such market(s).
9.02. Modification of Delivery Schedules Based on Available
Transmission Capability. To the extent that transmission
capability available for the delivery of Available Power and
Available Energy at any delivery point is less than the total
amount of Available Power and Available Energy scheduled for
delivery by the Sponsoring Companies at such delivery point in
accordance with Section 9.01, then the following procedures shall
apply and the Corporation and the applicable Sponsoring Companies
shall modify their delivery schedules accordingly until the total
amount of Available Power and Available Energy scheduled for
delivery at such delivery point is equal to or less than the
transmission capability available for the delivery of Available
Power and Available Energy: (a) the transmission capability
available for the delivery of Available Power and Available
Energy at the following delivery points shall be allocated first
on a pro rata basis (in whole MW increments) to the following
Sponsoring Companies up to their Power Participation Ratio share
of the total amount of Available Energy available to all
Sponsoring Companies (and as applicable, further allocated among
Sponsoring Companies entitled to allocation under this Section
9.02(a) in accordance with their Power Participation Ratios): (i)
to Allegheny, Appalachian, Columbus, FirstEnergy, Indiana,
Monongahela and Ohio Power (or their successors) for deliveries
at the points of interconnection between the Corporation and
Appalachian, Columbus, Indiana or Ohio Power, or their
successors; (ii) to Cincinnati (or its successor) for deliveries
at the points of interconnection between the Corporation and
Cincinnati or its successor; (iii) to Dayton (or its successor)
for deliveries at the points of interconnection between the
Corporation and Dayton or its successor; and (iv) to Kentucky,
Louisville and Southern Indiana (or their successors) for
deliveries at the points of interconnection between the
Corporation and Louisville or Kentucky, or their successors; and
(b) any remaining transmission capability available for the
delivery of Available Power and Available Energy shall be
allocated on a pro rata basis (in whole MW increments) to the
Sponsoring Companies in accordance with their Power Participation
Ratios.
9.03. Operation and Maintenance of Systems Involved.
Corporation and the Sponsoring Companies shall operate their
systems in parallel, directly or indirectly, except during
emergencies that temporarily preclude parallel operation. The
parties hereto agree to coordinate their operations to assure
maximum continuity of service from the Project Generating
Stations, and with relation thereto shall cooperate with one
another in the establishment of schedules for maintenance and
operation of equipment and shall cooperate in the coordination of
relay protection, frequency control, and communication and
telemetering systems. The parties shall build, maintain and
operate their respective systems in such a manner as to minimize
so far as practicable rapid fluctuations in energy flow among the
systems. The parties shall cooperate with one another in the
operation of reactive capacity so as to assure mutually
satisfactory power factor conditions among themselves.
The parties hereto shall exercise due diligence and
foresight in carrying out all matters related to the providing
and operating of their respective power resources so as to
minimize to the extent practicable deviations between actual and
scheduled deliveries of power and energy among their systems.
The parties hereto shall provide and/or install on their
respective systems such communication, telemetering, frequency
and/or tie-line control facilities essential to so minimizing
such deviations; and shall fully cooperate with one another and
with third parties (such third parties whose systems are either
directly or indirectly interconnected with the systems of the
Sponsoring Companies and who of necessity together with the
parties hereto must unify their efforts cooperatively to achieve
effective and efficient interconnected systems operation) in
developing and executing operating procedures that will enable
the parties hereto to avoid to the extent practicable deviations
from scheduled deliveries.
In order to foster coordination of the operation and
maintenance of Corporation's transmission facilities with those
facilities of Sponsoring Companies that are owned or functionally
controlled by a regional transmission organization or independent
system operator, Corporation shall use commercially reasonable
efforts to enter into a coordination agreement with any regional
transmission organization or independent system operator approved
by the Federal Energy Regulatory Commission that operates
transmission facilities that interconnect with Corporation's
transmission facilities, and to enter into a mutually agreeable
services agreement with a regional transmission organization or
independent system operator to provide the Corporation with
reliability and security coordination services and other related
services.
9.04. Power Deliveries as Affected by Physical
Characteristics of Systems. It is recognized that the physical
and electrical characteristics of the transmission facilities of
the interconnected network of which the transmission systems of
the Sponsoring Companies, Corporation, and other systems of third
parties not parties hereto are a part, may at times preclude the
direct delivery at the points of interconnection between the
transmission systems of one or more of the Sponsoring Companies
and Corporation, of some portion of the energy supplied under
this Agreement, and that in each such case, because of said
characteristics, some of the energy will be delivered at points
which interconnect the system of one or more of the Sponsoring
Companies with systems of companies not parties to this
Agreement. The parties hereto shall cooperate in the development
of mutually satisfactory arrangements among themselves and with
such companies not parties hereto whereby the supply of power and
energy contemplated hereunder can be fulfilled.
9.05. Operating Committee. There shall be an "Operating
Committee" consisting of one member appointed by the Corporation
and one member appointed by each of the Sponsoring Companies
electing so to do; provided that, if any two or more Sponsoring
Companies are Affiliates, then such Affiliates shall together be
entitled to appoint only one member to the Operating Committee.
The "Operating Committee" shall establish (and modify as
necessary) scheduling, operating, testing and maintenance
procedures of the Corporation in support of this Agreement,
including establishing: (i) procedures for scheduling delivery of
Available Energy under Section 4.03, (ii) procedures for power
and energy accounting, (iii) procedures for the determination and
the accounting of transmission losses, (iv) the Minimum
Generating Unit Output, and (v) the form of notifications
relating to power and energy and the price thereof. In addition,
the Operating Committee shall consider and make recommendations
to Corporation's Board of Directors with respect to such other
problems as may arise affecting the transactions under this
Agreement. The decisions of the Operating Committee, including
the adoption or modification of any procedure by the Operating
Committee pursuant to this Section 9.04, must receive the
affirmative vote of at least two-thirds of the members of the
Operating Committee, regardless of the number of members of the
Operating Committee present at any meeting.
9.06. Acknowledgment of Certain Rights. For the avoidance of
doubt, all of the parties to this Agreement acknowledge and agree
that (i) as of the Effective Date of this Agreement, certain
rights and obligations of the Sponsoring Companies under the
Original Agreement will be changed, modified or otherwise
removed, (ii) to the extent that the rights of any Sponsoring
Company will be changed, modified or otherwise removed as of the
Effective Date of this Agreement, such Sponsoring Company may be
entitled to rights under applicable law, regulation, rules or
orders under the Federal Power Act or otherwise adopted by the
Federal Energy Regulatory Commission ("FERC"), (iii) as a result
of the elimination as of the Effective Date of this Agreement of
the firm transmission service previously provided during the term
of the Original Agreement to Sponsoring Companies whose
transmission systems were only indirectly connected to the
Corporation's facilities through intervening transmission systems
by certain Sponsoring Companies whose transmission systems were
directly connected to the Corporation's facilities, such
Sponsoring Companies whose transmission systems were only
indirectly connected to the Corporation's facilities through
intervening transmission systems shall be entitled to such "roll
over" firm transmission service for delivery of their entitlement
to their Power Participation Ratio share of Surplus Power and
Surplus Energy under this Agreement, to the border of such
Sponsoring Company system and intervening Sponsoring Company
system, as would be accorded a long-term firm point-to-point
transmission service reservation under the then otherwise
applicable FERC Open Access Transmission Tariff ("OATT"), (iv)
the obligation of any Sponsoring Company to maintain or expand
transmission capacity to accommodate another Sponsoring Company's
"roll over" rights to transmission service for delivery of their
entitlement to their Power Participation Ratio share of Surplus
Power and Surplus Energy under this Agreement shall be consistent
with the obligations it would have for long-term firm point-to-
point transmission service provided pursuant to the then
otherwise applicable OATT, and (v) the parties shall cooperate
with any Sponsoring Company that seeks to obtain and/or exercise
any such rights available under applicable law, regulation, rules
or orders under the Federal Power Act or otherwise adopted by the
FERC.
9.07. Term of Agreement. This Agreement shall become
effective upon the Effective Date and shall terminate upon the
earlier of: (1) March 13, 2026 or (2) the sale or other
disposition of all of the facilities of the Project Generating
Stations or the permanent cessation of operation of such
facilities; provided that, the provisions of Articles 5, 7 and 8,
this Section 9.07 and Sections 9.08, 9.09, 9.10, 9.11, 9.12,
9.14, 9.15, 9.16, 9.17 and 9.18 shall survive the termination of
this Agreement, and no termination of this Agreement, for
whatever reason, shall release any Sponsoring Company of any
obligations or liabilities incurred prior to such termination.
9.08. Access to Records. Corporation shall, at all
reasonable times, upon the request of any Sponsoring Company,
grant to its representatives reasonable access to the books,
records and accounts of the Corporation, and furnish such
Sponsoring Company such information as it may reasonably request,
to enable it to determine the accuracy and reasonableness of
payments made for energy supplied under this Agreement.
9.09. Modification of Agreement. Absent the agreement of all
parties to this Agreement, the standard for changes to provisions
of this Agreement related to rates proposed by a party, a non-
party or the Federal Energy Regulatory Commission (or a successor
agency) acting sua sponte shall be the "public interest" standard
of review set forth in United Gas Pipeline Co. v. Mobile Gas
Serv. Corp., 350 U.S. 332 (1956) and Federal Power Comm'n v.
Sierra Pacific Power Co., 350 U.S. 348 (1956).
9.10. Arbitration. Any controversy, dispute or claim arising
out of this Agreement or the refusal by any party hereto to
perform the whole or any part thereof, shall be determined by
arbitration, in the City of Columbus, Franklin County, Ohio, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association or any successor organization, except as
otherwise set forth in this Section 9.10.
The party demanding arbitration shall serve notice in
writing upon all other parties hereto, setting forth in detail
the controversy, dispute or claim with respect to which
arbitration is demanded, and the parties shall thereupon endeavor
to agree upon an arbitration board, which shall consist of three
members ("Arbitration Board"). If all the parties hereto fail so
to agree within a period of thirty (30) days from the original
notice, the party demanding arbitration may, by written notice to
all other parties hereto, direct that any members of the
Arbitration Board that have not been agreed to by the parties
shall be selected by the American Arbitration Association, or any
successor organization. No person shall be eligible for
appointment to the Arbitration Board who is an officer, employee,
shareholder of or otherwise interested in any of the parties
hereto or in the matter sought to be arbitrated.
The Arbitration Board shall afford adequate opportunity
to all parties hereto to present information with respect to the
controversy, dispute or claim submitted to arbitration and may
request further information from any party hereto; provided,
however, that the parties hereto may, by mutual agreement,
specify the rules which are to govern any proceeding before the
Arbitration Board and limit the matters to be considered by the
Arbitration Board, in which event the Arbitration Board shall be
governed by the terms and conditions of such agreement.
The determination or award of the Arbitration Board
shall be made upon a determination of a majority of the members
thereof. The findings and award of the Arbitration Board shall
be final and conclusive with respect to the controversy, dispute
or claim submitted for arbitration and shall be binding upon the
parties hereto, except as otherwise provided by law. The award
of the Arbitration Board shall specify the manner and extent of
the division of the costs of the arbitration proceeding among the
parties hereto.
9.11. Liability. The rights and obligations of all the
parties hereto shall be several and not joint or joint and
several.
9.12. Force Majeure. No party hereto shall be held
responsible or liable for any loss or damage on account of non-
delivery of energy hereunder at any time caused by an event of
Force Majeure. "Force Majeure" shall mean the occurrence or non-
occurrence of any act or event that could not reasonably have
been expected and avoided by exercise of due diligence and
foresight and such act or event is beyond the reasonable control
of such party, including to the extent caused by act of God,
fire, flood, explosion, strike, civil or military authority,
insurrection or riot, act of the elements, or failure of
equipment. For the avoidance of doubt, "Force Majeure" shall in
no event be based on any Sponsoring Company's financial or
economic conditions, including without limitation (i) the loss of
the Sponsoring Company's markets; or (ii) the Sponsoring
Company's inability economically to use or resell the Available
Power or Available Energy purchased hereunder.
9.13. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Ohio.
9.14. Regulatory Approvals. This Agreement is made subject
to the jurisdiction of any governmental authority or authorities
having jurisdiction in the premises and the performance thereof
shall be subject to the following:
(a) The receipt of all regulatory approvals, in form and
substance satisfactory to Corporation, necessary to permit
Corporation to perform all the duties and obligations to be
performed by Corporation hereunder.
(b) The receipt of all regulatory approvals, in form and
substance satisfactory to the Sponsoring Companies, necessary to
permit the Sponsoring Companies to carry out all transactions
contemplated herein.
9.15. Notices. All notices, requests or other communications
under this Agreement shall be in writing and shall be sufficient
in all respects: (i) if delivered in person or by courier, upon
receipt by the intended recipient or an employee that routinely
accepts packages or letters from couriers or other persons for
delivery to personnel at the address identified above (as
confirmed by, if delivered by courier, the records of such
courier), (ii) if sent by facsimile transmission, when the sender
receives confirmation from the sending facsimile machine that
such facsimile transmission was transmitted to the facsimile
number of the addressee, or (iii) if mailed, upon the date of
delivery as shown by the return receipt therefor.
9.16. Waiver. Performance by any party to this Agreement of
any responsibility or obligation to be performed by such party or
compliance by such party with any condition contained in this
Agreement may by a written instrument signed by all other parties
to this Agreement be waived in any one or more instances, but the
failure of any party to insist in any one or more instances upon
strict performance of any of the provisions of this Agreement or
to take advantage of any of its rights hereunder shall not be
construed as a waiver of any such provisions or the
relinquishment of any such rights, but the same shall continue
and remain in full force and effect.
9.17. Titles of Articles and Sections. The titles of the
Articles and Sections in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this
Agreement.
9.18. Successors and Assigns. This Agreement may be executed
in any number of counterparts, all of which shall constitute but
one and the same document.
9.181 This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors
and assigns, but a party to this Agreement may not assign this
Agreement or any of its rights, title or interests in or
obligations (including without limitation the assumption of debt
obligations) under this Agreement, except to a successor to all
or substantially all the properties and assets of such party or
as provided in Section 9.182 or 9.183, without the written
consent of all the other parties hereto.
9.182 Notwithstanding the provisions of Section 9.181, any
Sponsoring Company shall be permitted to, upon thirty (30) days
notice to the Corporation and each other Sponsoring Company,
without any further action by the Corporation or the other
Sponsoring Companies, assign all or part of its rights, title and
interests in, and obligations under this Agreement to a Permitted
Assignee, provided that, the assignee and assignor of the rights,
title and interests in, and obligations under, this Agreement
have executed an assignment agreement in form and substance
acceptable to the Corporation in its reasonable discretion
(including, without limitation, the agreement by the Sponsoring
Company assigning such rights, title and interests in, and
obligations under, this Agreement to reimburse the Corporation
and the other Sponsoring Companies for any fees or expenses
required under any security issued, or agreement entered into, by
the Corporation as a result of such assignment, including without
limitation any consent fee or additional financing costs to the
Corporation under the Corporation's then-existing securities or
agreements resulting from such assignment).
9.183 Notwithstanding the provisions of Section 9.181, any
Sponsoring Company shall be permitted to, subject to compliance
with all of the requirements of this Section 9.183, assign all or
part of its rights, title and interests in, and obligations under
this Agreement to a Third Party without any further action by the
Corporation or the other Sponsoring Companies.
(a) A Sponsoring Company (the "Transferring Sponsor") that
desires to assign all or part of its rights, title and interests
in, and obligations under this Agreement to a Third Party shall
deliver an Offer Notice to the Corporation and each other
Sponsoring Company. The Offer Notice shall be deemed to be an
irrevocable offer of the subject rights, title and interests in,
and obligations under this Agreement to each of the other
Sponsoring Companies that is not an Affiliate of the Transferring
Sponsor, which offer must be held open for no less than thirty
(30) days from the date of the Offer Notice (the "Election
Period").
(b) The Sponsoring Companies (other than the Transferring
Sponsor and its Affiliates) shall first have the right, but not
the obligation, to purchase all of the rights, title and
interests in, and obligations under this Agreement described in
the Offer Notice at the price and on the terms specified therein
by delivering written notice of such election to the Transferring
Sponsor and the Corporation within the Election Period; provided
that, irrespective of the terms and conditions of the Offer
Notice, a Sponsoring Company may condition its election to
purchase the interest described in the Offer Notice on the
receipt of approval or consent from such Sponsoring Company's
Board of Directors; provided further that, written notice of such
conditional election must be delivered to the Transferring
Sponsor and the Corporation within the Election Period and such
conditional election shall be deemed withdrawn (as if it had
never been provided) unless the Sponsoring Company that delivered
such conditional election subsequently delivers written notice to
the Transferring Sponsor and the Corporation on or before the
tenth (10th) day after the expiration of the Election Period that
all necessary approval or consent of such Sponsoring Company's
Board of Directors have been obtained. To the extent that more
than one Sponsoring Company exercises its right to purchase all
of the rights, title and interests in, and obligations under this
Agreement described in the Offer Notice in accordance with the
previous sentence, such rights, title and interests in, and
obligations under this Agreement shall be allotted (successively
if necessary) among the Sponsoring Companies exercising such
right in proportion to their respective Power Participation
Ratios.
(c) Each Sponsoring Company exercising its right to purchase
any rights, title and interests in, and obligations under this
Agreement pursuant to this Section 9.183 may choose to have an
Affiliate purchase such rights, title and interests in, and
obligations under this Agreement; provided that, notwithstanding
anything in this Section 9.183 to the contrary, any assignment to
a Sponsoring Company or its Affiliate hereunder must comply with
the requirements of Section 9.182.
(d) If one or more Sponsoring Companies have elected to
purchase all of the rights, title and interests in, and
obligations under this Agreement of the Transferring Sponsor
pursuant to the Offer Notice, the assignment of such rights,
title and interests in, and obligations under this Agreement
shall be consummated as soon as practical after the delivery of
the election notices, but in any event no later than fifteen
(15) days after the filing and receipt, as applicable, of all
necessary governmental filings, consents or other approvals and
the expiration of all applicable waiting periods. At the closing
of the purchase of such rights, title and interests in, and
obligations under this Agreement from the Transferring Sponsor,
the Transferring Sponsor shall provide representations and
warranties customary for transactions of this type, including
those as to its title to such securities and that there are no
liens or other encumbrances on such securities (other than
pursuant to this Agreement) and shall sign such documents as may
reasonably be requested by the Corporation and the other
Sponsoring Companies. The Sponsoring Companies or
their Affiliates shall only be required to pay cash for the
rights, title and interests in, and obligations under this
Agreement being assigned by the Transferring Sponsor.
(e) To the extent that the Sponsoring Companies have not
elected to purchase all of the rights, title and interests in,
and obligations under this Agreement described in the Offer
Notice, the Transferring Sponsor may, within one-hundred and
eighty (180) days after the later of the expiration of the
Election Period or the deemed withdrawal of a conditional
election by a Sponsoring Company under Section 9.183(b) hereof
(if applicable), enter into a definitive agreement to, assign
such rights, title and interests in, and obligations under this
Agreement to a Third Party at a price no less than 92.5% of the
purchase price specified in the Offer Notice and on other
material terms and conditions no more favorable to the such Third
Party than those specified in the Offer Notice; provided that
such purchases shall be conditioned upon: (i) such Third Party
having long-term unsecured non-credit enhanced indebtedness, as
of the date of such assignment, with a Standard & Poor's credit
rating of at least BBB- and a Moody's Investors Service, Inc.
credit rating of at least Baa3 (provided that, if such Third
Party's long-term unsecured non-credit enhanced indebtedness is
not currently rated by one of Standard & Poor's or Moody, such
Third Party's long- term unsecured non-credit enhanced
indebtedness, as of the date of such assignment, must have
either a Standard & Poor's credit rating of at least BBB- or a
Moody's Investors Service, Inc. credit rating of at least Baa3);
(ii) the filing or receipt, as applicable, of any necessary
governmental filings, consents or other approvals; (iii) the
determination by counsel for the Corporation that the assignment
of the rights, title or interests in, or obligations under, this
Agreement to such Third Party would not cause a termination,
default, loss or payment obligation under any security issued, or
agreement entered into, by the Corporation prior to such
transfer; and (iv) such Third Party executing a counterpart of
this Agreement, and both such Third Party and the Sponsoring
Company which is assigning its rights, title and interests in,
and obligations under, this Agreement executing such other
documents as may be reasonably requested by the Corporation
(including, without limitation, an assignment agreement in form
and substance acceptable to the Corporation in its reasonable
discretion and containing the agreement by such Sponsoring
Company to reimburse the Corporation and the other Sponsoring
Companies for any fees or expenses required under any security
issued, or agreement entered into, by the Corporation as a result
of such assignment, including without limitation any consent fee
or additional financing costs to the Corporation under the
Corporation's then-existing securities or agreements resulting
from such assignment). In the event that the Sponsoring Company
and a Third Party have not entered into a definitive agreement to
assign the interests specified in the Offer Notice to such Third
Party within the later of one-hundred and eighty (180) days after
the expiration of the Election Period or the deemed withdrawal of
a conditional election by a Sponsoring Company under Section
9.183(b) hereof (if applicable) for any reason or if either the
price to be paid by such Third Party would be less than 92.5% of
the purchase price specified in the Offer Notice or the other
material terms of such assignment would be more favorable to such
Third Party than the terms specified in the Offer Notice, then
the restrictions provided for herein shall again be effective,
and no assignment of any rights, title and interests in, and
obligations under this Agreement may be made thereafter without
again offering the same to Sponsoring Companies in accordance
with this Section 9.183.
ARTICLE 10
Representations and Warranties
10.01. Representations and Warranties. Each Sponsoring
Company hereby represents and warrants for itself, on and as of
the date of this Agreement, as follows:
(a) it is duly organized, validly existing and in good
standing under the laws of its state of organization, with
full corporate power, authority and legal right to execute and
deliver this Agreement and to perform its obligations hereunder;
(b) it has duly authorized, executed and delivered this
Agreement, and upon the execution and delivery by all of the
parties hereto, this Agreement will be in full force and effect,
and will constitute a legal, valid and binding obligation of such
Sponsoring Company, enforceable in accordance with the terms
hereof, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally;
(c) Except as set forth in Schedule 10.01(c) hereto, no
consents or approvals of, or filings or registrations with, any
governmental authority or public regulatory authority or agency,
federal state or local, or any other entity or person are
required in connection with the execution, delivery and
performance by it of this Agreement, except for those which have
been duly obtained or made and are in full force and effect, have
not been revoked, and are not the subject of a pending appeal;
and
(d) the execution, delivery and performance by it of this
Agreement will not conflict with or result in any breach of any
of the terms, conditions or provisions of, or constitute a
default under its charter or by-laws or any indenture or other
material agreement or instrument to which it is a party or by
which it may be bound or result in the imposition of any liens,
claims or encumbrances on any of its property.
ARTICLE 11
Events of Default and Remedies
11.01. Payment Default. If any Sponsoring Company fails to
make full payment to Corporation under this Agreement when due
and such failure is not remedied within ten (10) days after
receipt of notice of such failure from the Corporation, then such
failure shall constitute a "Payment Default" on the part of such
Sponsoring Company. Upon a Payment Default, the Corporation may
suspend service to the Sponsoring Company that has caused such
Payment Default for all or part of the period of continuing
default (and such Sponsoring Company shall be deemed to have
notified the Corporation and the other Sponsoring Companies that
any Available Energy shall be available for scheduling by such
other Sponsoring Companies in accordance with Section 4.032).
The Corporation's right to suspend service shall not be
exclusive, but shall be in addition to all remedies available to
the Corporation at law or in equity. No suspension of service or
termination of this Agreement shall relieve any Sponsoring
Company of its obligations under this Agreement, which are
absolute and unconditional.
11.02. Performance Default. If the Corporation or any
Sponsoring Company fails to comply in any material respect with
any of the material terms, conditions and covenants of this
Agreement (and such failure does not constitute a Payment Default
under Section 11.01), the Corporation (in the case of a default
by any Sponsoring Company) and any Sponsoring Company (in the
case of a default by the Corporation) shall give the defaulting
party written notice of the default ("Performance Default"). To
the extent that a Performance Default is not cured within thirty
(30) days after receipt of notice thereof (or within such longer
period of time, not to exceed sixty (60) additional days, as
necessary for the defaulting party with the exercise of
reasonable diligence to cure such default), then the Corporation
(in the case of a default by any Sponsoring Company) and any
Sponsoring Company (in the case of a default by the Corporation)
shall have all of the rights and remedies provided at law and in
equity, other than termination of this Agreement or any release
of the obligation of the Sponsoring Companies to make payments
pursuant to this Agreement, which obligation shall remain
absolute and unconditional.
11.03. Waiver. No waiver by the Corporation or any Sponsoring
Company of any one or more defaults in the performance of any
provision of this Agreement shall be construed as a waiver of any
other default or defaults, whether of a like kind or different
nature.
11.04. Limitation of Liability and Damages. TO THE FULLEST
EXTENT PERMITTED BY LAW, NEITHER THE CORPORATION, NOR ANY
SPONSORING COMPANY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST REVENUES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, OR
OTHERWISE.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amended
and Restated Inter-Company Power Agreement to be duly executed
and delivered by their proper and duly authorized officers to be
effective as of March 13, 2006.
OHIO VALLEY ELECTRIC ALLEGHENY ENERGY SUPPLY
CORPORATION COMPANY, LLC
By /s/ Michael Morris By /s/ David C. Benson
Its President Its President
APPALACHIAN POWER COMPANY THE CINCINNATI GAS &
ELECTRIC COMPANY
By /s/ Henry Fayne By /s/ Michael J. Cyrus
Its President Its Executive Vice
President
COLUMBUS SOUTHERN POWER THE DAYTON POWER AND LIGHT
COMPANY COMPANY
By /s/ Henry Fayne By /s/ W. Steven Wolff
Its President Its President, Power
Production
FIRSTENERGY GENERATION CORP. INDIANA MICHIGAN POWER
COMPANY
By /s/ Donald R. Schneider By /s/ Henry Fayne
Its President Its President
KENTUCKY UTILITIES COMPANY LOUISVILLE GAS AND ELECTRIC
COMPANY
By /s/ Paul W. Thompson By /s/ Paul W. Thompson
Its Sr. Vice President - Its Sr. Vice President -
Energy Services Energy Services
MONONGAHELA POWER COMPANY OHIO POWER COMPANY
By /s/ David C. Benson By /s/ Henry Fayne
Its Vice President Its President
SOUTHERN INDIANA GAS AND
ELECTRIC COMPANY
By /s/ William S. Doty
Its President