Exhibit 10.8.5
SUPPLEMENTAL AGREEMENT TO THE AMENDED
AND RESTATED WHOLESALE POWER CONTRACT
THIS SUPPLEMENTAL AGREEMENT TO THE AMENDED AND RESTATED WHOLESALE POWER
CONTRACT, dated as of March 1, 1997 (together with permitted amendments hereto,
this "Supplement"), is entered into by and between OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION), an electric
membership corporation organized and existing under the laws of the State of
Georgia (the "Seller"), and COWETA-FAYETTE ELECTRIC MEMBERSHIP CORPORATION, an
electric membership corporation organized and existing under the laws of the
State of Georgia (the "Member").
R E C I T A L S:
WHEREAS, the Seller and the Member have entered into that certain Amended
and Restated Wholesale Power Contract, dated as of August 1, 1996 (together with
permitted amendments thereto, the "Wholesale Power Contract"), under which the
Seller agrees to sell and the Member agrees to purchase certain quantities of
electric capacity and energy;
WHEREAS, for the benefit of the Member and 36 of the Seller's 38 other
members (the "Participating Members"), the Seller has entered into that certain
Power Purchase and Sale Agreement , dated as of November 19, 1996, among LG&E
Power Marketing Inc. ("LPM"), LG&E Energy Corp. and the Seller (as supplemented
by any arbitration, mediation, amendment, administrative procedure or other
method of implementing and administering such contract permitted under the
provisions of such contract, the "LPM Contract");
WHEREAS, the Seller has entered into that certain Power Purchase and Sale
Agreement, dated as of January 1, 1997, among LPM, LG&E Power Inc. and the
Seller (as supplemented by any arbitration, mediation, amendment, administrative
procedure or other method of implementing and administering such contract
permitted under the provisions of such contract, the "LPM2 Contract"), a
contract similar to the LPM Contract, but for the benefit of the remaining two
members of the Seller (the "LPM2 Members");
WHEREAS, under the LPM Contract the Seller will purchase electric capacity
and energy from LPM for resale to the Participating Members and has agreed to
sell to LPM certain electric energy that LPM schedules or is obligated to take;
and
WHEREAS, to effect such transaction, (i) the Member wishes to exercise its
right not to include in the Seller's energy and capacity pool and separately to
schedule the capacity and associated energy committed in the LPM Contract and
(ii) the Seller and the Member desire to agree to other terms and conditions as
provided herein;
WHEREAS, to effect the LPM2 Contract transaction the Seller will be
entering into an agreement with each of the LPM2 Members that is similar to this
Supplement;
NOW THEREFORE, in consideration of the premises and the mutual promises
herein contained, the Seller and the Member hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein that are defined in the
Wholesale Power Contract, as well as the term "member," shall have their
respective meanings set forth in the Wholesale Power Contract, unless the
context in which such term is used clearly requires otherwise. All other
capitalized terms used herein shall have the respective meanings set forth
below.
"Customer Choice Load" shall have the meaning set forth in the LPM
Contract.
"Excluded Customer Choice Load" means the Member's Customer Choice
Load that is not included in LPM's Share of Customer Choice Load.
"Exhibit 3" is as defined in Section 3.1.
"Law" shall have the meaning set forth in the LPM Contract.
"LPM" is as defined in the Second Recital.
"LPM Contract" is as defined in the Second Recital.
"LPM Contract Date" means November 19, 1996.
"LPM2 Contract" is as defined in the Third Recital.
"LPM2 Members" is as defined in the Third Recital.
"LPM Future Resource" is the Future Resource in which the Member is
allocated a PCR in Exhibit 3.
"LPM Power Sales Resource" is the Power Sales Resource in which an
allocation is made to the Member in Exhibit 3.
"LPM's Share of Customer Choice Load" shall have the meaning set forth
in the LPM Contract.
"Member Load" means, as of a particular interval, fifty percent (50%)
of the total energy requirements of the Member (including the requirements of
any retail customer with a choice of supplier under applicable Law, which
customer is being served by the Member as of the LPM Contract Date), measured at
the metering point, after reducing such requirements to reflect (i) the Member's
purchases from SEPA (ii) the Seller's purchases under contracts with QFs entered
into after the LPM Contract Date; provided, that Member Load shall not include
requirements for sales for resale by the Member, other than to load physically
located within the service territory assigned to the Member as of the LPM
Contract Date.
"Rate Schedule A" means Rate Schedule A to the Wholesale Power
Contract.
"Wholesale Power Contract" is defined in the First Recital.
"Participating Members" is defined in the Second Recital. All
Participating Members are allocated PCRs in Exhibit 3.
"QF" means a qualifying small power production or cogeneration
facility as defined in Section 210 of the Public Utilities Regulatory
Policy Act of 1978, as amended, and applicable FERC regulations promulgated
thereunder.
"Supplement Schedule A" means Schedule A, "LPM Power Marketer
Supplement Formulary Rate Application," attached hereto.
"SEPA" means the Southeastern Power Administration and any successor
agency thereto or any entity succeeding to all or substantially all of the
assets and liabilities of SEPA.
"SEPA Contract" means that certain Contract No. 991, executed as of
September 30, 1996, by and between the Member and the United States of
America, acting by and through the Administrator of SEPA, under which the
Member is entitled to purchase capacity and energy produced from
hydro-electric generating resources, and shall include any amendments, or
modifications to, or restatements of said agreement and any new agreement
in substitution of the original agreement.
"Supplement Term" is defined in Section 2.
2. SUPPLEMENT TERM. This Supplement shall be effective as of the later of
(i) the date on which the Wholesale Power Contract becomes effective and (ii)
the date on which the Administrator's approval of this Supplement is effective
and shall continue in effect until termination of the LPM Contract, whether as
the result of early termination, cancellation in the event of default prior to
the end of the fixed term, or otherwise (such period, the "Supplement Term");
provided, however, that any Party's cost or liability to the other Party
hereunder, or as the result of the LPM Contract, that arises prior to such
termination and certain rights and obligations, as expressly provided in
Sections 3.3.2, 5.3 and 7 of this Supplement, shall survive the Supplement Term.
3. FUTURE RESOURCE AND POWER SALES RESOURCE OBLIGATIONS.
3.1. New PCRs. The LPM Contract shall be treated as a Future Resource
for the purpose of the Seller's purchases thereunder and a Power Sales Resource
for purposes of the Seller's sales thereunder. The Power Sales Resource
represents the Seller's commitment of 44.178 percent of all of the capacity and
associated energy relating to the Existing Resources. The Member hereby approves
the LPM Contract and confirms that the requirements of Section
3.2.1 of the Wholesale Power Contract have been met with respect to the
allocations to the Member set forth in Exhibit 3 to Appendix 1 to "Rate Schedule
A" to the Wholesale Power Contract ("Exhibit 3"). The Member hereby acknowledges
that neither the LPM Contract nor this Supplement affects the Member's PCR with
respect to any of the Existing Resources or its allocation with respect to Power
Sales Resources listed on Exhibit 1 to Appendix 1 to "Rate Schedule A".
3.2 Cost Responsibility. The Member hereby approves the LPM Contract
for the purpose of the requirement that it be approved by seventy-five percent
(75%) of the members of the Seller and acknowledges that the LPM Contract
constitutes a Future Resource with respect to which all members of the Seller
shall become liable for a pro rata share upon a Payment Default as provided in
Section 3.5.3 of the Wholesale Power Contract. The Member acknowledges that
"Rate Schedule A" shall provide for recovery of net costs incurred by the Seller
as the result of the sales made under the LPM Contract.
3.3 Scheduling Member.
3.3.1 During the Supplement Term, the Member irrevocably elects
and the Seller waives prior notice and consents to the Member being a Scheduling
Member with respect to its PCR in the LPM Future Resource and its allocation in
the LPM Power Sales Resource (and the fifty percent (50%) of its allocation in
the underlying Existing Resources committed to such Power Sales Resource). The
Member acknowledges that the other Participating Members have made the same
elections and the Seller has consented to such elections and that the LPM Power
Sales Resource and the LPM Future Resource (and the underlying Existing
Resources committed to such Power Sales Resource) will not be included in the
Pool. For purposes of the Wholesale Power Contract, the Member irrevocably
designates its schedule of its allocation in the LPM Power Sales Resource (and
the fifty percent (50%) of its allocation in the underlying Existing Resources
committed to such Power Sales Resource) to be, in each hour, LPM's schedule of
each Existing Resource dedicated to the LPM Power Sales Resource times the
Member's Exhibit 3 PCR. Likewise, the Member irrevocably designates its schedule
of capacity and associated energy from the LPM Future Resource to be in each
hour the Member Load, less Excluded Customer Choice Load.
3.3.2 The Member's election set forth in Section 3.3.1 shall be
limited to the Supplement Term and thereafter the Member's allocation of
capacity and associated energy committed to and load served with the capacity
and energy purchased under the LPM Contract shall be removed from separate
scheduling and returned to the Pool, unless the Member has (i) previously
elected to be a Scheduling Member with respect to fifty percent (50%) of its
allocation in the underlying Existing Resources committed to the LPM Power Sale
Resource and to the Member Load or (ii) so elects in writing within six (6)
months of the unscheduled termination of the LPM Contract as the result of a
default or by mutual agreement of the Seller and LPM. If the Member so elects to
become a Scheduling Member, such election shall be effective without regard to
whether the Member is a Scheduling Member with respect to the remainder of the
Member's total energy requirements.
4. RATES.
4.1 Application of Formula. Supplement Schedule A attached hereto and
incorporated herein by reference defines how the formulae contained in "Rate
Schedule A" are to be applied to the costs incurred and revenues received under
the LPM Contract.
4.2 Limit on Changes. The Seller may modify the definitions in
Supplement Schedule A, but only to the extent necessary to ensure that all costs
and revenues under the LPM Contract are recovered by and credited to those
Members participating in the LPM Contract; provided, however, that during the
Supplement Term, (i) the Seller shall not enter into an amendment of the LPM
Contract which modifies the Member's individual rates established under the LPM
Contract and set forth in Supplement Schedule A unless any such amendment of the
LPM Contract is negotiated to comply with the provisions of Sections 9.4, 16.1
or 16.2 of the LPM Contract or is approved by seventy-five percent (75%) of the
Participating Members, and (ii) the Seller shall not exercise its right to
terminate the LPM Contract pursuant to Section 6.2(a) of the LPM Contract except
with the approval of seventy-five percent (75%) of the Participating Members.
4.3 No Unilateral Filings. Notwithstanding Section 11.3.1 of the
Wholesale Power Contract, during the Supplement Term, (i) the Seller shall not
unilaterally file an application for a change in any part of "Rate Schedule A"
that is expressly prohibited by Section 4.2 of this Supplement and (ii) the
Member shall not protest or make any unilateral filing complaining of a change
expressly permitted by Section 4.2 of this Supplement.
4.4 Continued Justness and Reasonableness of Rate. The Seller has
provided the Member with a copy of "Rate Schedule A", as amended through
February 24, 1997. The Member confirms that the rates, terms and conditions
established under the Wholesale Power Contract, including "Rate Schedule A" are
just and reasonable and not unduly discriminatory and remain fully consistent
with the provisions of Section 11.1 of the Wholesale Power Contract.
5. PLANNING AND RESOURCE MANAGEMENT.
5.1 Member Purchases. During the Supplement Term, the Member
irrevocably designates the Seller as its exclusive supplier of capacity and
energy to meet the Member Load, less Excluded Customer Choice Load. For the
purpose of determining the Member's energy charges, the Seller shall be deemed
to have served the Member Load solely with energy purchased under the LPM
Contract, to the extent such energy is delivered by or on behalf of LPM.
5.2 Member Sales. During the Supplement Term, the Member irrevocably
waives its right to, and agrees not to, sell for resale any of the energy
purchased by the Seller under the LPM Contract and thereafter sold by the Seller
to the Member; provided, that such prohibition shall not apply to Member sales
for resale to load physically located within the service territory assigned to
the Member as of the LPM Contract Date. Likewise, during the Supplement Term,
the energy and capacity associated with fifty percent (50%) of the Member's PCR
in Existing Resources shall be unavailable for resale by the Member because it
is
committed to the LPM Power Sales Resource.
5.3 Annual Planning Report. Unless and until the Member has elected
out of all Joint Planning and Resource Management services and has designated
all capacity and energy associated with its PCRs for separate scheduling, the
Member shall continue to provide its Annual Planning Report to the Seller during
the term of the Wholesale Power Contract. This obligation shall survive the
termination of this Supplement.
6. SEPA RIGHTS.
6.1 Scheduling. The Member confirms that the Seller is designated as
the Member's scheduling agent under the SEPA Contract. The Member shall not
designate a new scheduling agent during the Supplement Term.
6.2 Contract Modification. In the event the Member renegotiates its
SEPA Contract, the Member agrees to use its best efforts to retain rights to
schedule electric capacity and energy purchased from SEPA at least as favorable
to the Member as those contained in the existing SEPA Contract. The Member
agrees to give the Seller prompt written notice of (i) any modification to the
SEPA Contract that reduces the allocation of electric capacity and energy
available to the Member for a period at least through December 31, 2001, or (ii)
the termination of the SEPA Contract. Such notice shall be given on the later to
occur of one hundred twenty (120) days prior to the effectiveness of such
modification or termination or, if undertaken unilaterally by SEPA, within ten
(10) days of the date the Member received notice from SEPA of SEPA's action.
6.3 Replacement Power. If the SEPA Contract is terminated or modified
to reduce the amount of capacity and energy available to the Member, the Member
irrevocably designates the Seller as its sole supplier, during the Supplement
Term, of fifty percent (50%) of the capacity and energy previously supplied by
SEPA. The Seller shall provide such capacity and energy in accordance with the
terms of the LPM Contract.
7. SELLER'S MARKETING AND ECONOMIC DEVELOPMENT. Section 5.4 of the
Wholesale Power Contract obligates the Seller to unbundle its charges for
services. The Member waives this obligation and agrees to pay its allocated
share of the cost of the Seller's marketing and economic development services,
including Seller's margin, notwithstanding the level of use of such services by
the Member until December 31, 1999. Such services may be performed by the
Seller, by a subsidiary of the Seller, by an affiliated company, or by a third
party who contracts with the Seller to perform such services. The Member's
allocated share shall be a percentage equal to its PCR in Existing Resources.
The waivers and obligations set forth in this Section 7 shall survive the
termination of this Supplement.
8. NO THIRD PARTY BENEFICIARIES. Subject to the provisions of Section 11
below, the Seller and the Member agree that no other member of the Seller or any
other third party is an intended third-party beneficiary of this Supplement,
except as may be provided in a separate instrument executed by each of the
Seller and the Member.
9. RULES OF CONSTRUCTION.
9.1 Headings. The descriptive headings of the various articles,
sections and subsections of this Agreement and the Schedules attached hereto
have been inserted for convenience of reference only and shall not be construed
as to define, expand, or restrict the rights and obligations of the parties.
9.2 Including. Wherever the term "including" is used in this Agreement
and the Schedules attached hereto, such term shall not be construed as limiting
the generality of any statement, clause, phrase or term.
9.3 Plural and Singular. The terms defined in this Agreement and the
Schedule attached hereto shall include the plural as well as the singular and
the singular as well as the plural.
10. ASSIGNMENT. This Supplement and the rights and obligations hereunder
are not assignable except when assigned by either Party (i) in an Assignment for
Security along with the Wholesale Power Contract or (ii) to any assignee or
transferee that succeeds to its rights and obligations under the Wholesale Power
Contract. In each such case, this Supplement shall be assigned with the
Wholesale Power Contract and such assignee or transferee shall agree in writing
to be bound by the terms hereof. Any attempted assignment other than to the
assignee of a Party's rights and obligations under the Wholesale Power Contract
shall be void and unenforceable. This Supplement shall be binding on and inure
to the benefit of the permitted successors and permitted assigns of the Parties.
11. RUS. This Supplement shall not be effective unless and until approved
in writing by the Administrator. This Supplement is subject to the rights and
obligations of the Parties under that certain Amended and Restated Supplemental
Agreement, dated as of August 1, 1996, among the Seller, the Member, and the
Government, acting through the Administrator, in the same manner and to the same
extent as the Wholesale Power Contract.
12. GOVERNING LAW. Except to the extent governed by applicable federal law,
this Agreement shall be governed by, and construed in accordance with, the law
of the State of Georgia.
13. WAIVER. No Party shall be deemed to waive any provisions of this
Supplement unless such waiver shall be in writing and signed by the Party
charged with the waiver. No waiver shall be deemed to be a continuing waiver
unless those stated in writing.
14. AMENDMENTS. Except as permitted in Section 4.2 of this Supplement, no
change, amendment or modification of this Supplement shall be valid or binding
upon the Parties unless such change, amendment or modification shall be in
writing and duly executed by the Parties.
15. SEVERABILITY. If any provisions of this Supplement is void or
enforceable, the remainder of this Supplement shall not be affected thereby.
16. APPROVAL OF LPM2 CONTRACT. The Member hereby approves the LPM2 Contract
for the purpose of the requirement that it be approved by seventy-five percent
(75%) of the members of the Seller and acknowledges that the LPM2 Contract
constitutes a Future Resource with respect to which all members of the Seller
shall become liable for a pro rata share upon a Payment Default as provided in
Section 3.5.3 of the Wholesale Power Contract. The Member acknowledges that
"Rate Schedule A" shall provide for recovery of net costs incurred by the Seller
as the result of the sales made under the LPM2 Contract.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Seller and the Member have caused this Supplement
to be executed, attested, sealed and delivered by their respective duly
authorized officers as of the day and year first written above.
SELLER:
OGLETHORPE POWER
CORPORATION (AN ELECTRIC
MEMBERSHIP GENERATION &
TRANSMISSION CORPORATION)
[CORPORATE SEAL] By: /s/ X. X. Xxxxxxx
---------------------------
Title: President and Chief
Executive Officer
ATTEST:
/s/ Xxxxxxxx X. Xxxx
--------------------
Assistant Secretary
MEMBER:
COWETA-FAYETTE ELECTRIC
MEMBERSHIP CORPORATION
[CORPORATE SEAL] By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Title: President
ATTEST:
/s/ Xxxxxx Xxxxxxxx
-------------------
Secretary
SCHEDULE TO EXHIBIT 10.8.5
SUPPLEMENTAL AGREEMENT TO THE
AMENDED AND RESTATED
WHOLESALE POWER CONTRACT
(LPM II)
The following is a list of substantially identical Amended and Restated
Supplemental Agreements for the Electric Membership Corporations, dated March 1,
1997:
1. Sawnee EMC
The Schedule to the Supplemental Agreement is not filed herewith; however,
the Registrant hereby agrees that such Schedule will be provided to the
Commission upon request.
