Exhibit 10.30
POWER PURCHASE AND SALE AGREEMENT
AMONG
LG&E POWER MARKETING INC.,
LG&E ENERGY CORP.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION AND TRANSMISSION CORPORATION)
Dated as of November 19, 1996
ACKNOWLEDGMENT REGARDING CONFIDENTIAL INFORMATION:
Oglethorpe Power Corporation (An Electric Membership Corporation) (the
"Company") acknowledges that certain confidential information is contained
throughout the Power Purchase and Sale Agreement and the Exhibits attached
thereto and therefore such confidential information has been omitted from the
copy filed with this Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, and an asterisk (*) has been inserted indicating such
omission at the exact place in the Agreement and the Exhibits where such
confidential information has been omitted. A copy of this Agreement without any
omission of confidential information has been filed separately with the
Secretary of the Commission as an attachment to a request for confidentiality
with respect to the omitted information.
POWER PURCHASE AND SALE AGREEMENT
AMONG
LG&E POWER MARKETING INC.,
LG&E ENERGY CORP.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION AND TRANSMISSION CORPORATION)
Table of Contents Page
Article 1
Definitions............................................................ 2
Article 2
Purchases and Sales.................................................... 3
2.1 Sales by LPM............................................... 3
2.2 Sales by OPC............................................... 4
2.2.1 Must Run Resources............................... 4
2.2.2 Dispatchable OPC Resources....................... 4
2.2.3 Manner of Request. ............................. 5
2.3 Remedy for Breach of MW Representation..................... 5
2.4 Customer Choice Load....................................... 5
2.5 Failure to Deliver or Receive.............................. 6
2.6 Stranded Costs............................................. 7
Article 3
OPC Resources.......................................................... 7
3.1 OPC Contracts.............................................. 7
3.2 Information on OPC Resources and System.................... 8
3.3 Allocation of OPC Resources................................ 8
3.4 RESERVED................................................... 8
3.5 Dispersed Generation....................................... 8
3.6 Load Management............................................ 8
3.7 Xxxxxxxx Fuel.............................................. 9
3.8 Coal....................................................... 9
3.8.1 [_____]*
3.8.2 [_____]*
3.8.3 [_____]*
3.9 SEPA Energy................................................ 10
3.10 Block Power Sale Agreements................................ 10
3.11 New Resources.............................................. 10
3.12 Emission Allowances........................................ 10
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-i-
Article 4
Transmission........................................................... 10
4.1 Transmission and Scheduling................................ 10
4.2 Title and Risk of Loss..................................... 11
4.3 Scheduling................................................. 11
4.4 Delivery Points............................................ 11
4.5 Transformer and Transmission Loss Adjustments.............. 12
4.6 Imbalances and Regulation Deviation Errors................. 13
4.7 Non-Territorial Contractual Delivery Obligations........... 13
4.8 Control Area............................................... 14
4.9 Other OPC or GTC Responsibilities.......................... 14
Article 5
Price.................................................................. 14
5.1 OPC's Contract Price....................................... 14
5.2 [_____]*
5.3 LPM's Contract Price....................................... 14
5.4 Amounts Due to OPC and LPM................................. 15
5.4.1 [_____]*
5.4.2 RESERVED......................................... 15
5.4.3 Rocky Mountain "True-Up" Adjustment.............. 15
5.4.4 RESERVED......................................... 16
5.4.5 [_____]*
5.4.6 [_____]*
5.4.7 [_____]*
5.4.8 [_____]*
5.5 RESERVED................................................... 18
5.6 Levelized Payments......................................... 18
Article 6
Term................................................................... 18
6.1 Term....................................................... 18
6.2 [_____]*
Article 7
Confidential Information............................................... 19
7.1 Prior Confidentiality Agreement Superseded; Authorization
to Use Information................................................ 19
7.2 Authorized Disclosure...................................... 19
7.3 Return of Confidential Information......................... 20
7.4 Right to Remedies.......................................... 20
7.5 Georgia Trade Secrets Act.................................. 20
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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Article 8
Billing, Payment and Records........................................... 20
8.1 Billing Statements......................................... 20
8.2 Offset of Payment Obligations.............................. 20
8.3 Payments................................................... 21
8.4 Audit Rights............................................... 21
8.5 Subsequent Payment Adjustments............................. 21
8.6 Records.................................................... 22
Article 9
Taxes.................................................................. 22
9.1 Seller's Obligation........................................ 22
9.2 Buyer's Obligation......................................... 22
9.3 Exemption Certificates..................................... 22
9.4 [_____]*
Article 10
Indemnification and Remedies........................................... 23
10.1 General Indemnity.......................................... 23
10.2 Limitation on Remedies..................................... 23
10.3 Duty to Mitigate........................................... 23
10.4 DISCLAIMER................................................. 23
10.5 [_____]*
Article 11
Conditions Precedent to Extension of Term.............................. 24
11.1 Regulatory Authorizations.................................. 24
11.2 OPC Restructuring.......................................... 24
11.3 Administrative Procedures.................................. 24
Article 12
Representations and Warranties......................................... 24
12.1 Mutual Representations..................................... 24
12.2 Additional OPC Representations............................. 25
12.3 Additional LG&E Parties Representations.................... 25
12.4 Mutual Assistance.......................................... 26
12.5 Good Title................................................. 26
12.6 Power Quality.............................................. 26
12.7 Other Contracts............................................ 26
12.8 Continuing Representations and Warranties.................. 26
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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Article 13
Defaults and Remedies.................................................. 27
13.1 Events of Default.......................................... 27
13.2 Early Termination; Remedies................................ 27
13.3 [ ]*
13.4 Failure to Pay............................................. 28
13.5 Effect of Regulation....................................... 28
13.6 Notice to LEC.............................................. 28
Article 14
Arbitration............................................................ 28
14.1 Applicability; Selection of Arbitrators.................... 28
14.2 Discovery, Hearing......................................... 29
14.3 Decision................................................... 30
14.4 Expenses................................................... 30
Article 15
Force Majeure.......................................................... 30
15.1 Effect of Force Majeure.................................... 30
Article 16
Material Changes....................................................... 30
16.1 [_____]*
16.2 [_____]*
Article 17
Miscellaneous.......................................................... 32
17.1 Assignment................................................. 32
17.1.1 General.......................................... 32
17.1.2 Assignment for Security.......................... 32
17.2 Notices.................................................... 32
17.3 Applicable Law............................................. 33
17.4 Survival of Obligations.................................... 33
17.5 Entire Agreement........................................... 33
17.6 No Partnership............................................. 33
17.7 Amendment.................................................. 33
17.8 Third Parties.............................................. 33
17.9 Waiver..................................................... 33
17.10 Character of Sales by OPC.................................. 33
17.11 Severability............................................... 33
17.12 RESERVED................................................... 34
17.13 Headings................................................... 34
17.14 Counterparts............................................... 34
17.15 LEC Obligations............................................ 34
17.15.1 Failure of Performance of LPM................... 34
17.15.2 Further Covenants of LEC........................ 34
17.15.3 No Discharge.................................... 35
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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17.16 Administration............................................. 35
17.17 Scheduling Members......................................... 35
17.18 Further Assurances......................................... 35
17.19 RUS Approval............................................... 36
17.20 Other...................................................... 36
-v-
Schedule A
Exhibits
1.25(iii) Energy Costs for Certain OPC Resources
1.25(iv) Energy Costs for Qualifying Facilities
1.43 Level B-1 Diagram
1.62 EMC Customers
2.1 Off-System Sales Contracts
2.2.1 [_____]*
2.2.2 [_____]*
3.2(i) OPC Resources
3.2(ii) [_____]*
3.3 LPM's Share of OPC Resources
3.8.1 [_____]*
3.8.3 [_____]*
4.1(b) [_____]*
5.3 LPM Sales Price
5.4.1(a) [_____]*
5.4.1(b) [_____]*
5.4.5 [_____]*
5.4.6 [_____]*
5.4.7(a) [_____]*
5.4.7(b) [_____]*
5.4.8(a) [_____]*
5.4.8(b) [_____]*
17.2 Notices and Payment
17.17 Lists of Scheduling Members
18 Map of EMC Service Territory
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-vi-
POWER PURCHASE AND SALE AGREEMENT
AMONG
LG&E POWER MARKETING INC.
LG&E ENERGY CORP.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION AND TRANSMISSION CORPORATION)
This Power Purchase and Sale Agreement dated as of November 19, 1996,
together with permitted amendments ("Agreement") is entered into by and among
Oglethorpe Power Corporation (An Electric Membership Generation and Transmission
Corporation), a corporation organized and existing under Title 46 of the
Official Code of Georgia Annotated, together with any permitted successor or
assign ("OPC"), LG&E Energy Corp., a corporation organized and existing under
the laws of the Commonwealth of Kentucky, together with any permitted successor
or assign ("LEC"), and LG&E Power Marketing Inc., a corporation organized and
existing under the laws of the State of California, together with any permitted
successor or assign ("LPM") (collectively, LEC and LPM are referred to herein as
"LG&E Parties").
WITNESSETH
WHEREAS, OPC is an electric generation corporation which operates on a
cooperative basis and which supplies certain electric requirements of its member
cooperatives for electric power and energy supplied to their wholesale and
retail customers;
WHEREAS, LPM is a power marketer authorized by the Federal Energy
Regulatory Commission to purchase and sell electric energy for resale at
negotiated, market-based rates;
WHEREAS, LPM is an indirect, wholly owned subsidiary of LEC;
WHEREAS, the existing OPC Resources are demonstrably insufficient to supply
the anticipated peak electric requirements of OPC and its member cooperatives in
1998, in light of the 1996 Official Load Forecast, and the termination of
uneconomic existing power purchase resources;
WHEREAS, OPC has reasonably determined that it is not economically
efficient at this time for OPC to plan for the construction or acquisition of
additional generating facilities to supply the electric requirements of OPC and
its member cooperatives, and that the native load electric requirements of its
cooperative members can economically and efficiently be supplied through the
purchase from a power marketer of such requirements for electric energy;
WHEREAS, in accordance with such strategic plan for serving its member
cooperatives, OPC has requested bids from various power marketers, and LPM has
been selected as a successful bidder to supply certain electric requirements of
its member cooperatives;
WHEREAS, the Parties recognize that OPC's right to require LPM to procure
coal for OPC's fossil resources in accordance with the terms contemplated herein
represents a material part of the consideration to OPC for execution of this
Agreement;
WHEREAS, LPM desires to purchase Electric Energy from OPC for resale (i) to
OPC at prices consistent with this Agreement and (ii) to third parties at such
prices as LPM shall determine;
WHEREAS, the Parties believe that their respective objectives can be
achieved if OPC sells to LPM a portion of the Electric Energy that OPC is
obligated to take or purchase from Must Run Resources and offers to sell to LPM
certain other Electric Energy which OPC is entitled to take or purchase, as more
specifically set forth herein, and LPM agrees to supply OPC at wholesale with
Electric Energy it has purchased from OPC or from other sources;
WHEREAS, the Parties recognize that this Agreement is one of two power
purchase and sales agreements OPC is currently arranging with power marketers in
order to supply certain electric requirements of its member cooperatives, and
that the administration and implementation of this Agreement will require
coordination with the administration and implementation under the other
agreement; and
WHEREAS, the Parties recognize that Scheduling Members may enter into
purchase and sale agreements with power marketers;
WHEREAS, the Parties recognize that OPC may in the future enter into
additional agreements with power marketers to serve Customer Choice Load or
other load growth not served under this Agreement; provided, that such
additional agreements shall not interfere with OPC's ability to perform under
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, and for other good and valuable consideration, OPC and the LG&E
Parties hereby agree as follows:
Article 1
Definitions
All capitalized terms used herein and not otherwise defined, whether
singular or plural, shall have the respective meanings set forth in Schedule A.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural number the singular. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
Any reference in this Agreement to "Section," "Article," "Exhibit" or "Schedule"
shall be references to this Agreement. Unless the context requires otherwise,
any reference in this Agreement to any document shall mean such document and all
schedules, exhibits, and attachments thereto as amended and in effect from time
to time. Unless otherwise stated, any reference in this Agreement to any person
shall include its permitted successors and assigns and, in the case of any
governmental authority, any person succeeding to its functions and capacities.
The words "hereof," "herein," "hereto" and "hereunder" and words of similar
import when used in this Agreement shall, unless otherwise expressly specified,
refer to this Agreement as a whole and not to any particular provision of this
Agreement. Whenever the term "including" is used herein in connection with a
listing of items included within a prior reference, such listing shall be
interpreted to be illustrative only, and
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shall not be interpreted as a limitation on or exclusive listing of the items
included within the prior reference.
In the event of a conflict between the text of this Agreement and any
Exhibit or Schedule, the terms of the Agreement shall prevail. The Parties
acknowledge that each Party and its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
Article 2
Purchases and Sales
2.1 Sales by LPM. (a) In each Interval of the Term, LPM shall sell and
deliver, or cause to be delivered, and OPC shall purchase and receive, or cause
to be received, an amount of Electric Energy equal to the sum of (i) LPM's Share
of OPC Load in that Interval, plus (ii) LPM's Share of OPC Off-System Sales in
that Interval, plus (iii) LPM's Share of Customer Choice Load in that Interval.
This Agreement shall constitute the single agreement under which LPM is
obligated to supply at wholesale Electric Energy to serve LPM's Share of OPC
Load, LPM's Share of Customer Choice Load, and LPM's Share of OPC Off-System
Sales in accordance with the terms hereof, and no further request, schedule or
agreement by OPC is needed.
(b) The Parties recognize and agree that (i) [ ]*
(iii) neither of the foregoing shall entitle LPM to avoid its obligations
hereunder or to adjust the LPM Sales Price, except as expressly permitted
under the provisions of this Agreement.
(c) In lieu of selling or buying Electric Energy, LPM reserves the right to
broker Electric Energy from or to Louisville Gas and Electric Company and OPC
agrees to accept or supply such Electric Energy pursuant to its Interchange
Agreement or other existing contracts with Louisville Gas and Electric Company
in complete satisfaction of LPM's obligations hereunder; provided, that any such
arrangements shall be performed at a price and under terms and conditions that
are the same as those specified herein; and provided, further, that OPC shall
have no obligation to participate in any such arrangement unless LPM establishes
to OPC's satisfaction that Louisville Gas and Electric Company has all requisite
regulatory authorization to perform in accordance with the foregoing.
(d) LPM shall be obligated within [____]* hours after OPC's request to
bid on a case by case basis to serve all of the requirements of [____]* and in
excess of the [____]* referenced in Section 2.1(e). To the extent OPC accepts
such bid, then LPM shall be obligated to serve 100% of such excess requirements
in accordance with such bid, and such excess requirements shall be
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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included in LPM's Share of OPC Load. Notwithstanding anything to the contrary
contained in this Agreement, OPC or [____]* shall have the right to seek and
accept bids from third parties to serve all the excess requirements described in
this paragraph (d).
(e) LPM shall be obligated to supply at the LPM Sales Price up to 100% of
[____]*. Such load may be served by OPC through sales directly to [____]* or
indirectly through sales by OPC to [____]*. Such sales shall be included in
LPM's Share of OPC Load.
2.2 Sales by OPC. OPC shall on a real time basis inform LPM of LPM's Share
of OPC Resources, including Must Run Resources and Dispatchable Resources, that
are available for the delivery of OPC Energy, in accordance with the terms of
this Agreement, the OPC Contracts and the Administrative Procedures.
2.2.1 Must Run Resources. In each Interval of the Term, OPC shall sell
and LPM shall purchase all of the OPC Energy from LPM's Share of OPC
Resources associated with Must Run Resources (other than purchased power
resources) that are actually available during such Interval. OPC represents
that the Must Run Resources are currently as of the Effective Date and
shall, except for Allowed Must Run Outage Hours, remain during each
Interval of the Term capable of the production and sale of at least [____]*
set forth in Exhibit 3.2(i). Exhibit 2.2.1 sets forth by calendar quarter,
the number of hours ("Allowed Must Run Outage Hours") for which the Must
Run Resources may generate [_____]* set forth in Exhibit 3.2(i).
2.2.2 Dispatchable OPC Resources. (a) With respect to Dispatchable
Resources, OPC hereby offers to sell to LPM on an exclusive basis, and LPM
has the exclusive right, but not the obligation, to purchase from OPC any
OPC Energy from LPM's Share of OPC Resources associated with Dispatchable
Resources which is available during each Interval of the Term. OPC
represents that the Dispatchable Resources (other than purchased power
resources) are currently as of the Effective Date and shall, except for
Allowed Dispatchable Outage Hours, remain during each Interval of the Term
capable of the production and sale [_____]* set forth in Exhibit 3.2(i),
and that LPM shall have the right, during each Interval during the Term to
Schedule Electric Energy from each Dispatchable Resource to the extent of
its availability. Exhibit 2.2.2 sets forth by Summer and Non-Summer Period
designation the number of hours ("Allowed Dispatchable Outage Hours") for
which the Dispatchable Resources may generate [_____]* set forth in Exhibit
3.2(i).
(b) LPM shall effect the acceptance of an OPC offer made pursuant to
paragraph (a) of this Section 2.2.2 by complying with the provisions of
2.2.3 and the Scheduling procedures set forth in Article 4. OPC shall sell
and LPM shall purchase all such Electric Energy Properly Requested by LPM.
2.2.3 Manner of Request. LPM shall Properly Request OPC Energy from
LPM's Share of OPC Resources through (i) a recorded telephone conversation
between the Parties,
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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or (ii) such other method of communication, including electronic
communication, as the Administrative Committee may determine is
appropriate. Such requests shall be confirmed in the manner, if any,
established by the Administrative Committee for the type of communication
in question. The Parties agree not to contest or assert any defense to the
validity or enforceability of telephonic requests under Laws relating to
whether certain agreements are to be in writing or signed by the party to
be thereby bound, or the authority of any employee of such Party to make
such communication. Each Party consents to the recording of its
representatives' telephone conversations without any further notice. All
recordings or electronic communications may be introduced into evidence to
prove oral agreements between the Parties.
2.3 Remedy for Breach of MW Representation. If at any time during the Term
either OPC's representation set forth in Section 2.2.1 or Section 2.2.2(a)
ceases to be correct (i.e. the OPC Resource is not capable of producing the
required Mws), [_____]*
2.4 Customer Choice Load. (a) Subject to paragraph (b) below, LPM shall be
obligated to serve [_____]* of the requirements for Electric Energy of any
Customer Choice Customer [_____]*; provided, that such obligation shall not
entitle LPM to serve any portion of such requirements, and OPC or the EMC
Customers shall have the right to seek and accept bids from third parties for
all or any portion of such requirements; and provided further, that LPM shall
have the option but not the obligation to submit a bid to serve a greater
percentage than that designated above of any such Customer Choice Customer's
requirements on such price and other terms as may be mutually agreeable with OPC
or the affected EMC.
(b) LPM shall be obligated within [_____]* hours after OPC's request to bid
on a case by case basis to serve all of the requirements of (i) any Customer
Choice Customer [_____]* and (ii) any Customer Choice Customer whose load is
[_____]*, at such price and on such other terms as may be acceptable to LPM. To
the extent OPC accepts such bid, then LPM shall be obligated to serve 100% of
such Customer Choice Customer's requirements in accordance with such bid, and
such requirements shall be included in LPM's Share of Customer Choice Load.
Notwithstanding anything to the contrary contained in this Agreement, OPC or an
EMC shall have the right to seek and accept bids from third parties to serve all
of the requirements of the Customer Choice Customers described in this paragraph
(b).
(c) The aggregate of all Customer Choice Load that LPM either is obligated
to serve, or agrees to serve, as the case may be, shall be LPM's Share of
Customer Choice Load.
(d) The price applicable to LPM's Share of Customer Choice Load shall be
the Customer Choice Price; provided, that if LPM offers, other than pursuant to
this Agreement, to directly serve a Customer Choice Customer at a price that is
less than the applicable Customer Choice Price, then LPM shall be obligated to
serve 100% of the requirements of such Customer Choice Customer under this
Agreement at a comparable price.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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2.5 Failure to Deliver or Receive. (a) Unless excused by Force Majeure or
the unexcused failure of Buyer's performance, if Seller fails to deliver, or
cause to be delivered, the Contract Quantity, [_____]*
(b) Unless excused by Force Majeure or the unexcused failure of Seller's
performance, if Buyer fails to receive, or cause to be received, the Contract
Quantity, [_____]*
(c) The parties recognize that GSOC shall be responsible for maintaining
the stability and reliability of OPC's generation and GTC's transmission system.
OPC or its designee, GSOC, shall use commercially reasonable efforts to provide
LPM with advance notice of possible transmission constraints, voltage
deterioration, or similar system events or occurrences that might result in a
prospective failure by, or inability of OPC to Schedule or deliver Electric
Energy Properly Requested by LPM, such that LPM, to the extent practicable,
shall be able to determine whether or not to modify the OPC Resources from which
it desires to receive Electric Energy or the amount thereof or to bear the risk
associated with its original request, and OPC and LPM shall each use
commercially reasonable efforts to discuss and agree upon the necessary
redispatching. In the event OPC and LPM are unable to agree in advance, and OPC
or its designee determines in good faith that in order to assure the stability
and reliability of OPC's generation and GTC's transmission system, it is
necessary in accordance with Prudent Utility Practice to deliver Electric Energy
from an OPC Resource other than the OPC Resource associated with Electric Energy
Properly Requested by LPM, then the further provisions of this paragraph 2.5(c)
shall apply. The Administrative Committee shall review all relevant facts
concerning the alternative delivery Scheduled and dispatched by OPC or its
designee. If the Administrative Committee determines unanimously that the
actions taken by both OPC and LPM were consistent with Prudent Utility Practice
and their respective obligations under this Section 2.5(c), then any additional
costs associated [_____]*. If the Administrative Committee does not so
determine, then the Party determined unanimously by the Administrative Committee
to be at fault shall bear [_____]*. If the Administrative Committee cannot in
good faith reach a unanimous decision, then the matter shall be subject to
arbitration under Article 14.
(d) The provisions of this Section 2.5 shall not apply to the circumstances
in which adjustments have been made pursuant to Section 5.4.
2.6 Stranded Costs. In the event retail wheeling is instituted in Georgia,
for whatever reason, and OPC or the EMC Customers may be entitled to receive
compensation associated with stranded generating or other assets, the LG&E
Parties shall have no claim or entitlement to any such compensation, nor shall
the LG&E Parties have any obligation or liability for the payment of any such
compensation, attributable to OPC Resources.
Article 3
OPC Resources
3.1 OPC Contracts. (a) OPC shall be responsible for compliance with the OPC
Contracts. In connection therewith, OPC shall be permitted to make OPC
Off-System Sales to
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* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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comply with the OPC Off-System Sales Contracts, which Electric Energy for LPM's
Share of OPC Off-System Sales shall be provided to OPC by LPM pursuant to
Section 2.1 and at the prices set forth in Section 5.3. OPC shall have the right
during the Term to enter into new contracts or other agreements to make sales,
purchases or exchanges of Electric Energy, without the prior consent of LPM,
including new contracts for (i) sales of capacity and Electric Energy from
resources not included within OPC Resources, (ii) purchases and sales of
capacity and Electric Energy to serve Customer Choice Customers as provided in
Section 2.4, (iii) sales of capacity and Electric Energy under the EMC
Contracts, and (iv) purchases and sales of capacity and Electric Energy as
required to serve OPC Load not included within LPM's Share of OPC Load, or to
serve LPM's Share of OPC Load after the Term, and (v) as expressly set forth
elsewhere in this Agreement; provided, that such contracts or agreements shall
not adversely affect or otherwise interfere with OPC's ability to perform its
obligation to sell Electric Energy to or to purchase Electric Energy from LPM
hereunder.
(b) Nothing in this Agreement shall be construed to assign, impose or
otherwise transfer any rights or obligations under the OPC Off-System Sales
Contracts to the LG&E Parties, and OPC shall retain all of its rights and
obligations, including its obligation to maintain, or cause to be maintained,
generation and transmission system stability and reliability. Notwithstanding
any other provision of this Agreement, OPC shall not be required to take any
action inconsistent with its rights and obligations under the OPC Contracts.
Notwithstanding any other provision of this Agreement, no Party shall be
required to take any action inconsistent with its rights and obligations under
the NERC or SERC guidelines. Nothing in this Agreement shall affect the rights
or obligations of the parties to the EMC Contracts. OPC shall have the right to
terminate, amend, or otherwise modify the OPC Contracts, subject to the
provisions of Section 16.1.
3.2 Information on OPC Resources and System. (a) OPC acknowledges and
agrees that LPM requires information concerning OPC Contracts, OPC Resources,
OPC Load and Energy Cost in order to satisfy LPM's obligations hereunder.
(b) OPC has delivered to LPM the following information: (i) a list of all
OPC Resources and OPC Contracts, which list is attached as Exhibit 3.2(i); (ii)
a statement of the expected availability and current transformer loss factor of
each OPC Resource, including nuclear generating units, which statement is
attached as Exhibit 3.2(ii); and (iii) a schedule of forecast OPC Load, which
was delivered to LPM on February 7, 1996. OPC hereby agrees to update such
information promptly as new information becomes available to OPC during the Term
and to promptly provide such updated information to LPM.
3.3 Allocation of OPC Resources. (a) LPM's Share of OPC Resources is
specified in Exhibit 3.3. LPM shall not be entitled to purchase OPC Energy in
excess of the quantity of Electric Energy associated with the OPC Resource, or
portion thereof (in the case of certain OPC Resources comprised of more than one
generating unit) designated in such Exhibit; provided, that with respect to any
OPC Resource with a minimum operating level under the applicable OPC Contracts
that exceeds the amount of Electric Energy associated with such percentage, LPM
shall be entitled to purchase such minimum level under the terms of this
Agreement, but only if such purchase is in accordance with the Administrative
Procedures and necessary to commit such OPC Resource.
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(b) OPC shall have the right to expand, retrofit, upgrade, or otherwise
modify the OPC Resources, subject to the provisions of Section 16.1; provided,
that such expansion, retrofit, upgrade, or other modification shall not
adversely affect or otherwise interfere with OPC's ability to perform its
obligation to sell Electric Energy to or to purchase Electric Energy from LPM
hereunder. OPC shall bear the costs of such expansion, retrofit, upgrade, or
other modification, and any incremental or expanded capacity and Electric Energy
associated with such activity, shall not be included within OPC Resources.
3.4 RESERVED.
3.5 Dispersed Generation. Generating facilities currently owned by
individual EMCs will not be an OPC Resource, but will remain the property of
each such EMC which may use such generating facilities as it shall determine
from time to time.
3.6 Load Management. Load management switching equipment and any other
demand side management of individual EMCs will not be an OPC Resource, but will
remain the property of such EMCs which may use, or direct OPC on such EMC's
behalf to coordinate the use of such load management switching equipment or
other demand side management as it shall determine from time to time.
3.7 Xxxxxxxx Fuel. LPM will provide fuel to generate the Electric Energy it
purchases associated with Xxxxxxxx, in accordance with the fuel procurement
provisions of that certain agreement between OPC and Xxxxxxxx Energy Limited
Partnership, dated June 12, 1992.
3.8 Coal. Coal for Plant Xxxxxxx and/or for Plant Xxxxxxx shall be procured
in accordance with this Section 3.8.
[_____]*
[_____]*
[_____]*
3.9 SEPA Energy. Each of the EMC Customers is presently entitled to an
allocation of hydro-electric power from SEPA, the cost of which is billed
directly by SEPA to each EMC. As provided in the definition of OPC Load in
Schedule A, LPM's Share of OPC Load does not include requirements supplied by
SEPA Energy Scheduled for delivery to the EMC Customers pursuant to the SEPA
Contracts; provided, however, that OPC shall Schedule delivery of SEPA Energy to
the EMC Customers as requested by LPM, to the extent permitted by SEPA under the
SEPA Contracts and consistent with the CSA.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-8-
3.10 Block Power Sale Agreements. OPC has canceled Block 3 of the Georgia
Power Block Power Sale Agreement, and OPC has given timely notice to Georgia
Power to cancel Block 4 as of August 31, 1997 and Block 2 as of August 31, 1998.
[_____]*
3.11 New Resources. OPC shall have the right during the Term to construct,
purchase, lease, or otherwise acquire additional generating or purchased power
resources, including entering into agreements with Qualifying Facilities, which
resources shall not be included within OPC Resources; provided, that such
construction, purchase, lease or other arrangement shall not adversely affect or
otherwise interfere with OPC's ability to perform its obligation to sell
Electric Energy to or to purchase Electric Energy from LPM hereunder.
3.12 Emission Allowances. [_____]*
Article 4
Transmission
4.1 Transmission and Scheduling. (a) [_____]*
(b) [_____]*
4.2 Title and Risk of Loss. As between LPM and OPC, Seller shall be deemed
to be in exclusive control (and responsible for any damages or injury caused
thereby) of the Contract Quantity prior to the Delivery Point, and Buyer shall
be deemed to be in exclusive control (and responsible for any damages or injury
caused thereby) of the Contract Quantity at and from the Delivery Point. Title
to and risk of loss of Electric Energy shall transfer from Seller to Buyer at
and from the Delivery Point.
4.3 Scheduling. OPC and LPM agree to adopt and maintain reasonable
procedures to facilitate LPM's ability on an hourly basis to (i) supply LPM's
Share of OPC Load and (ii) purchase OPC Energy associated with LPM's Share of
OPC Resources. The Parties shall also establish procedures whereby (a) OPC shall
communicate to LPM on a same-time basis the availability of, and estimated
Energy Cost for, each OPC Resource, as such availability and Energy Cost may
change from time to time, and the projected LPM's Share of OPC Load; and (b) LPM
shall provide all necessary Scheduling information, including the duration of
proposed transactions, [_____]*. Upon communication of such information, LPM
shall Properly Request the amounts of Electric Energy that LPM desires to
purchase from each such OPC Resource within LPM's Share of OPC Resources.
[_____]*
4.4 Delivery Points. (a) LPM shall specify one or more Delivery Points for
(i) OPC Energy Scheduled and purchased by LPM from OPC and (ii) Electric Energy
Scheduled and sold by LPM to OPC. [
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-9-
]*
(b) [_____]*
4.5 Transformer and Transmission Loss Adjustments. (a) With respect to LPM
purchases of OPC Energy from an OPC Resource that is a generating plant which
interconnects directly into the ITS, [_____]*
(b) For purposes of supplying OPC with Electric Energy to serve LPM's Share
of OPC Load and LPM's Share of Customer Choice Load, [_____]*
(c) For purposes of supplying OPC with Electric Energy to satisfy LPM's
Share of OPC's Off-System Sales obligations, [_____]*
(d) For purposes of supplying Electric Energy to satisfy LPM's sales to
third parties that accept delivery on the ITS or for delivery at Points of
Interconnection, [_____]*
(e) For purposes of supplying Electric Energy to permit OPC to pump water
to the upper reservoir at the Rocky Mountain Pumped Storage Hydroelectric
Generating Facility ("Rocky Mountain"), [_____]*
(f) The Parties agree and understand [_____]*
4.6 Imbalances and Regulation Deviation Errors. (a) The Parties recognize
that actual LPM's Share of OPC Load, LPM's Share of Customer Choice Load, and
LPM's Share of OPC Off- System Sales may vary in any Interval even when the
foregoing have been reasonably forecast by LPM and Electric Energy has been
Scheduled as Properly Requested by LPM. [_____]*
(b) [_____]*
4.7 Non-Territorial Contractual Delivery Obligations. For purposes of
supplying Electric Energy to satisfy OPC's sales obligations to LPM of Electric
Energy to be resold by LPM to third parties that accept delivery on the ITS or
delivery at Points of Interconnection, [_____]*
4.8 Control Area. OPC reserves the right, at any point during the Term, to
establish and operate a Control Area, or to contract with others to establish
and operate a Control Area. Such Control Area would be utilized pursuant to 18
C.F.R. Part 35 to match Electric Energy input and output within the electric
system, maintain scheduled interchange with other Control Areas, maintain the
frequency of the Electric Energy system within reasonable limits and provide
sufficient generating capacity to maintain operating services.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-10-
4.9 Other OPC or GTC Responsibilities. In addition to the above, OPC or GTC
shall also be responsible for the following:
(a) all communications with other owners of the ITS and for
discharging all obligations for the Oglethorpe Power System under the ITSA,
except for ITS related costs otherwise expressly addressed herein.
(b) OPC, or GTC, as the case may be, shall be responsible for
responding to any transmission requests filed under its open access
transmission tariff or pursuant to Section 211 of the Federal Power Act, or
other applicable legal requirements. OPC, or GTC, as the case may be, shall
represent such interest before FERC or any other regulatory agency or
court.
Article 5
Price
5.1 OPC's Contract Price. Subject to Section 5.4, the Contract Price for
Electric Energy sold by OPC to LPM shall be the Energy Cost for OPC Energy that
LPM Properly Requests.
5.2 [_____]*
5.3 LPM's Contract Price. Subject to Section 5.4, (i) with respect to
sales of Electric Energy by LPM to OPC relating to LPM's Share of OPC Load,
the Contract Price shall be, during each calendar year of the Term, the LPM
Sales Price [ ]* as set forth in Exhibit 5.3; (ii) with respect to
LPM's Share of Customer Choice Load which LPM is required to serve, the
Contract Price shall be the Customer Choice Price; (iii) with respect to
LPM's Share of Customer Choice Load served at a price quoted by LPM, the
Contract Price shall be the price quoted by LPM; and (iv) with respect to
sales of Electric Energy by LPM to OPC relating to LPM's Share of OPC
Off-System Sales, the Contract Price shall be as agreed to by the Parties
(the "LPM Off-System Sales Price"); provided, [_____]*
5.4 Amounts Due to OPC and LPM. Each month OPC shall charge LPM an
amount equal to the aggregate Energy Costs attributable to the OPC Energy
that is Properly Requested by and delivered to LPM. Each month LPM shall
charge OPC an amount equal to the sum of the following products: (i) the
LPM's Share of OPC Load [ ]* purchased by and delivered to OPC
during the month, multiplied by the LPM Sales Price applicable to the
respective EMC Customer, as set forth in Exhibit 5.3; (ii) LPM's share of
Customer Choice Load attributable to a Customer Choice Customer and purchased
by and delivered to OPC during the month, multiplied by the applicable
Customer Choice Price; (iii) each OPC Off-System Sales quantity purchased by
and delivered to OPC from LPM during the month, multiplied by the LPM
Off-System Sales Price applicable to each such OPC Off-System Sale; provided,
that the amounts so determined shall be subject to the following adjustments:
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-11-
5.4.1 [_____]*
(b) Exhibit 5.4.1(b) sets forth an example of the intended operation
of this Section.
(c) [_____]*
5.4.2 RESERVED.
5.4.3 Rocky Mountain "True-Up" Adjustment. On January 1, 1997 OPC
shall determine the water level in the upper reservoir of Rocky Mountain.
On the date of termination of this Agreement LPM shall be responsible for
replacing to the same level as on January 1, 1997 its proportionate share
of such water; provided, that if such replacement is not physically
possible prior to termination, [_____]*
5.4.4 RESERVED.
5.4.5 [_____]*
5.4.6 [_____]*
5.4.7 [_____]*
(b) Exhibit 5.4.7(b) sets forth an example of the intended operation
of this Section.
(c) [_____]*
5.4.8 [_____]*
(b) Exhibit 5.4.8(b) sets forth an example of the intended operation
of this Section.
(c) [_____]*
5.5 RESERVED.
5.6 Levelized Payments. The Parties recognize that an important objective
of OPC and the EMC Customers is to spread cost savings associated with an
extension of this Agreement across the Term. If the Term is extended, as
provided in Section 6.1(b), then to accomplish this objective, the individual
LPM Sales Price applicable to each EMC Customer as set forth in Exhibit 5.3 may
be levelized. [_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-12-
Article 6
Term
6.1 Term. (a) This Agreement shall become effective on the date first
written above (the "Effective Date"), provided that the delivery of Electric
Energy pursuant to this Agreement shall commence at 00:00:01 CPT on January 1,
1997, and shall remain in effect until 24:00 CPT on December 31, 1997 (the
"Termination Date"), subject to Section 6.1(b), [_____]* (the "Term"). The
applicable provisions of this Agreement shall continue in effect after the
Termination Date in accordance with the provisions of Section 17.4.
(b) In the event the conditions precedent set forth in Article 11 are
satisfied on or before June 1, 1997, then the Term shall be extended until 24:00
CPT on December 31, 2011, [_____]* and the Term shall be deemed to include any
such extension. OPC shall provide LPM with written notice promptly following the
satisfaction of the conditions precedent described in Article 11, which notice
shall specify the date ("Long Term Commencement Date") on which such conditions
precedent were satisfied. In the event a condition precedent set forth in
Article 11 has not been satisfied on or before June 1, 1997, then the extension
provision in this Section 6.1(b) shall be of no further force and effect,
[_____]*
6.2 [_____]*
(b) [_____]*
Article 7
Confidential Information
7.1 Prior Confidentiality Agreement Superseded; Authorization to Use
Information. The Parties expressly agree that the Confidentiality Agreement
entered into by OPC, LPM and Cooperative Power, Inc. ("CPI") dated as of
February 6, 1996, as amended, automatically and immediately and with no further
action by the Parties shall terminate as of the Effective Date of this
Agreement. OPC represents that in connection with such termination it is duly
authorized to act on behalf of and to bind CPI. OPC expressly authorizes and
grants its consent to LPM to use Confidential Information, whether acquired
before or after the Effective Date, pertaining to, without limitation, OPC, OPC
Resources, OPC Load, OPC Off-System Sales and the EMC Customers, for the purpose
of exercising LPM's rights under this Agreement, including LPM's right to buy
Electric Energy from OPC or any other person and to sell Electric Energy to OPC
or any other person, whether Electric Energy is produced by or attributable to
OPC Resources or other resources. Each Party agrees that it shall not disclose
Confidential Information whether acquired before or after the Effective Date, to
any third party other than each Party's officers, directors, employees, advisors
or representatives, or each Party's Affiliates (or as to OPC, the EMCs), their
officers, directors, employees, advisors or representatives who need to know and
agree to maintain the confidentiality of the Confidential Information
(collectively, "Representatives") during the Term and for a period of not more
than three (3) years after the Termination Date. Each Party shall be responsible
for any breach of this Agreement by its Representatives.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-13-
7.2 Authorized Disclosure. Notwithstanding anything contained in this
Article 7, Confidential Information may be disclosed to any governmental,
judicial or regulatory authority requiring such Confidential Information,
provided that: (i) such Confidential Information is submitted under applicable
provisions, if any, for confidential treatment by such governmental, judicial or
regulatory authority; (ii) prior to such disclosure, the Party who supplied the
information is given notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention in any proceeding
and the seeking of an injunction to prohibit such disclosure; and (iii) the
Party subject to the governmental, judicial or regulatory authority endeavors to
protect the confidentiality of any Confidential Information to the extent
reasonable under the circumstances and to use its good faith efforts to prevent
the further disclosure of any Confidential Information provided to any
governmental judicial or regulatory authority.
7.3 Return of Confidential Information. Upon (i) the termination of this
Agreement and (ii) the request of a Party, the other Party shall return all
written Confidential Information (including written confirmation of oral
communications) provided by the requesting Party which was stamped
"confidential" and shall not retain any copies of such written Confidential
Information. In the event of such request, all documents, analyses,
compilations, studies or other materials prepared by the returning Party or its
Representatives that contain or reflect Confidential Information (other than
computer archival and backup tapes or archival and backup files (collectively
"Computer Tapes") and billing and trading records (collectively, "Other
Records")) shall be destroyed and no copy thereof shall be retained (such
destruction to be confirmed in writing by a duly authorized officer of the
returning Party). Computer Tapes and Other Records shall be kept confidential in
accordance with the terms of this Agreement.
7.4 Right to Remedies. In the event of an unauthorized disclosure to a
third party, the limitations on remedies contained in Section 10.2 shall not
apply, and in the event of a breach no Party will have an adequate remedy at law
and accordingly shall, in addition to any other available legal or equitable
remedies, be entitled to an injunction against such breach without any
requirement to post a bond as a condition of such relief.
7.5 Georgia Trade Secrets Act. Except as expressly provided in Article 7 of
this Agreement, including OPC's consent to the use by LPM of Confidential
Information in its trading operations pursuant to this Agreement, the rights of
the Parties under this Agreement are in addition to and not in lieu of their
rights under Georgia law, including the Georgia Trade Secrets Act of 1990.
Nothing in this Article 7 shall be construed as a waiver on the part of any
Party of any privilege or objection of any kind to the disclosure or use of
Confidential Information.
Article 8
Billing, Payment and Records
8.1 Billing Statements. OPC shall deliver to LPM no later than on the tenth
(10th) day of each month (or the first Business Day thereafter), a statement
(the "Statement") setting forth for the immediately prior month the amounts of
Electric Energy purchased by OPC from LPM at the
-14-
applicable LPM Sales Price, the respective LPM Off-System Sales Prices, and the
respective Customer Choice Prices, all as adjusted pursuant to Section 5.4, and
the amounts of Electric Energy purchased by LPM from OPC at the applicable
Energy Cost. To the extent that OPC has not yet received or been able to compile
the applicable Energy Cost figures as of such date, OPC may set forth on such
Statement its good-faith estimate of the Energy Cost of an OPC Resource, for
such OPC Resource; and provided, that OPC shall compile the actual Energy Costs
and "true-up" such estimates as promptly as practicable pursuant to Section 8.5.
8.2 Offset of Payment Obligations. The Parties shall discharge their
obligations to pay through netting, in which case the Party, if any, owing the
greater aggregate amount shall pay to the other Party the difference between the
amounts owed, as set forth in Section 8.3. Each Party reserves to itself all
rights, setoffs, counterclaims and other remedies and defenses, consistent with
Article 10, which such Party has or may be entitled to arising from or out of
this Agreement. All outstanding obligations to make payments under this
Agreement may be offset against each other, set-off or recouped therefrom.
8.3 Payments. The Party owing the other shall pay the amount owing under
the Statement, which payment shall be due on or before the later of the
following: (i) the tenth (10th) Business Day after receipt of the Statement or
(ii) the twentieth (20th) day of the month in which the Statement is received
(or the first Business Day thereafter). Payment shall be made by wire transfer
to the payment address provided in Exhibit 17.2. If either Party, in good faith,
disputes any part of any Statement, it shall provide a written explanation of
the basis for the dispute and pay the portion of such Statement conceded to be
correct no later than the due date as calculated in accordance with the
preceding sentence. If any amount disputed is determined to be due to the other
Party, it shall be paid within ten (10) days of such determination, along with
interest calculated at the Interest Rate from the original due date until the
date paid. Absent such a good faith dispute, overdue payments shall bear
interest from, and including, the due date to, but excluding, the date of
payment at a rate equal to the Interest Rate.
8.4 Audit Rights. (a) Each Party or any third party representative of a
Party shall have the right, at its sole expense and during normal working hours,
to examine the records of the other Party to the extent reasonably necessary to
verify the accuracy of any Statement, charge or computation made pursuant to
this Agreement. If requested, a Party shall provide to the other Party
statements evidencing the quantities of Electric Energy delivered at the
Delivery Point. With respect to records held in the custody of a third party
pursuant to a confidentiality provision of an OPC Contract, if an audit is
requested by a Party, the Parties shall select an independent auditor to perform
the audit consistent with the rights of OPC under the contract and such
confidentiality arrangements as may be required by the contract in question.
Subject to any additional limitations that may be imposed under the OPC Contract
in question, such examinations by an independent auditor shall not be performed
more frequently than once each calendar year. The Party requesting the audit
shall pay all costs, including those of the independent auditor, associated with
the audit.
(b) If any such examination reveals any inaccuracy in any statement, the
necessary adjustments in such statement and the payments thereof will be
promptly made and shall bear
-15-
interest calculated at the Interest Rate from the date the overpayment or
underpayment was made; provided, however, that no adjustment for any statement
or payment will be made unless objection to the accuracy thereof was made prior
to the lapse of two (2) years from the rendition thereof; and provided, further,
that this provision of this Agreement will survive any termination of this
Agreement for a period of two (2) years from the date of such termination for
the purpose of such statement and payment objections.
8.5 Subsequent Payment Adjustments. The Parties understand that in certain
cases monthly xxxxxxxx will need to be made on an estimated basis, including
with respect to the calculation of Energy Cost for each of the OPC Resources. In
addition, the Parties understand that after the fact adjustments to amounts owed
or revenues received may be made pursuant to the CSA or other OPC Contracts,
which adjustments may affect the Energy Cost and associated amounts payable by
LPM to OPC under this Agreement. Each Party shall cooperate in good-faith with
the other Party to obtain the requisite information and perform the necessary
computations so as to "true-up" or otherwise adjust any estimated or adjusted
xxxxxxxx promptly.
8.6 Records. Each Party shall keep such records as may be needed to afford
a clear history of the Scheduled purchases and sales hereunder. In maintaining
such records, OPC and LPM may rely upon the logs and other meter information
routinely recorded by Transmission Providers or utilities responsible for
coordination of the purchases and sales.
Article 9
Taxes
9.1 Seller's Obligation. Seller is liable for and shall pay, or cause to be
paid, or reimburse Buyer if Buyer has paid, all Taxes applicable to the sale of
Electric Energy arising prior to the Delivery Point(s). If Buyer is required to
remit any such Tax, the amount shall be deducted from any sums becoming due to
Seller. Seller shall indemnify, defend and hold harmless Buyer from any Claims
for such Taxes.
9.2 Buyer's Obligation. Buyer is liable for and shall pay, cause to be
paid, or reimburse Seller if Seller has paid, all Taxes applicable to a purchase
of Electric Energy arising at and from the Delivery Point(s), including any
Taxes imposed or collected by a taxing authority with jurisdiction over Buyer.
Buyer shall indemnify, defend and hold harmless Seller from any Claims for such
Taxes.
9.3 Exemption Certificates. Either Party, upon written request of the
other, shall provide a certificate of exemption or other reasonably satisfactory
evidence of exemption if either Party or a purchase or sale is exempt from
Taxes, and shall use reasonable efforts to obtain and cooperate with obtaining
any exemption from or reduction of any Taxes. Each Party shall use reasonable
efforts to administer this Agreement and implement the provisions in accordance
with the intent to minimize Taxes.
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9.4 [_____]*
Article 10
Indemnification and Remedies
10.1 General Indemnity. Subject to Section 10.2, Seller and Buyer shall
each indemnify, defend and hold harmless the other Party from any Claims or
other losses arising from (i) any act or incident occurring when title to the
Contract Quantity is vested in the indemnifying Party pursuant to Section 4.2
and (ii) any Event of Default.
10.2 Limitation on Remedies. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES
AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL
PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR
MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL
BE THE SOLE AND EXCLUSIVE REMEDY, THE RESPONSIBLE PARTY'S LIABILITY SHALL BE
LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW
OR IN EQUITY ARE WAIVED REGARDLESS OF THE FAULT, NEGLIGENCE OR STRICT LIABILITY
OF THE PARTY WHOSE LIABILITY IS RELEASED OR LIMITED THEREBY. IF NO REMEDY OR
MEASURE OF DAMAGES IS EXPRESSLY HEREIN PROVIDED, THE RESPONSIBLE PARTY'S
LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES (INCLUDING INTEREST AS
PERMITTED BY APPLICABLE LAW) ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE
AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, NO PARTY SHALL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR INDIRECT DAMAGES,
LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR IN
CONTRACT UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE
PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF
DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE
NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT,
OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER
ARE LIQUIDATED, INCLUDING DAMAGES PROVIDED IN SECTION 2.5 AND 4.4, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OTHERWISE
OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT, AND THE LIQUIDATED DAMAGES
CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
10.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate
damages and covenants that it will use commercially reasonable efforts to
minimize any damages it may incur as a result of the other Party's performance
or nonperformance of this Agreement.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-17-
10.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OPC, WITH RESPECT TO
THE SALE OF ELECTRIC ENERGY TO LPM, AND LPM, WITH RESPECT TO THE SALE OF
ELECTRIC ENERGY TO OPC, EXPRESSLY NEGATES ANY OTHER REPRESENTATION OR WARRANTY,
WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO CONFORMITY TO MODELS OR SAMPLES,
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
10.5 [_____]*
Article 11
Conditions Precedent to Extension of Term
11.1 Regulatory Authorizations. The Parties' obligations to commence
delivery of Electric Energy under the long term arrangement contemplated by
Section 6.1(b) of this Agreement shall be subject to receipt of any governmental
consents or approvals required to perform this Agreement, including approval by
the RUS without modification of this Agreement and the OPC Restructuring.
11.2 OPC Restructuring. The Parties' obligations to commence delivery of
Electric Energy under the long term arrangement contemplated by Section 6.1(b)
of this Agreement shall be subject to completion of the OPC Restructuring, and
execution of new wholesale power contracts with OPC, as contemplated pursuant to
such OPC Restructuring, by EMCs (whose total requirements in the aggregate
represent at least eighty (80) percent of OPC Load).
11.3 Administrative Procedures. The Parties' obligations to commence
delivery of Electric Energy under this Agreement shall be subject to the
development of mutually acceptable Administrative Procedures on or before
January 1, 1997. The Parties agree to use good faith efforts to promptly develop
the Administrative Procedures.
Article 12
Representations and Warranties
12.1 Mutual Representations. On the Effective Date, January 1, 1997, the
Long Term Commencement Date, and the date of entering into each purchase or sale
of Electric Energy, each Party represents and warrants to the other Party: (i)
it is duly organized, validly existing and in good standing under the laws of
the state of its incorporation and, in the case of LPM, is doing business as a
foreign corporation in the State of Georgia; (ii) it has all requisite corporate
power to own, operate and lease its properties and carry on its business as now
conducted; (iii) it has all regulatory authorizations, including any required
authorization from the Rural Utilities Service of the United States Department
of Agriculture ("RUS"), necessary for it to legally perform its obligations
under this Agreement; (iv) the execution, delivery and performance of this
Agreement are within its powers, have been duly authorized by all necessary
action and do not violate any of the terms or
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-18-
conditions in its governing documents, any contract or other agreement to which
it is a party or any Law applicable to it; (v) this Agreement constitutes each
Party's legally valid and binding obligation enforceable against it in
accordance with the terms thereof, subject to any Equitable Defenses; (vi) there
are no Bankruptcy Proceedings pending or being contemplated by it or, to its
knowledge, threatened against it; (vii) there are no Legal Proceedings that
would be reasonably likely to materially adversely affect its ability to perform
this Agreement; and (viii) it has knowledge and experience in financial matters
and in the electric industry that enable it to evaluate the merits and risks of
this Agreement.
12.2 Additional OPC Representations. (a) OPC further represents and
warrants that on the Effective Date, January 1, 1997, the Long Term Commencement
Date and the date of entering into each purchase or sale of Electric Energy
hereunder: (i) the EMC Contracts are and will be in full force and effect
throughout the Term and will not be amended so as to adversely affect OPC's
ability to perform its obligations under this Agreement; (ii) Exhibit 3.2(i)
sets forth a true and complete list of each OPC Resource and each material
written OPC Contract; (iii) correct and complete copies of the OPC Contracts
listed on Exhibit 3.2(i) have previously been delivered to LPM by OPC; (iv)
except as stated on Exhibit 3.2(i), no amendments to the OPC Contracts are
proposed or pending as of the Effective Date; (v) each OPC Contract is valid,
binding and in full force and effect and enforceable by or against the
respective parties thereto in accordance with its terms; (vi) OPC has fulfilled,
and will continue to fulfill during the Term, all of its obligations under each
OPC Contract; (vii) there has not occurred any default by OPC or any event
which, with the lapse of time or the giving of notice or both will become a
default of OPC under any of the OPC Contracts; (viii) OPC is not in arrears in
respect of the performance or satisfaction of the terms or conditions to be
performed or satisfied by it under any of the OPC Contracts, and, to the best
knowledge of OPC, no waiver of any of such terms or conditions has been granted
thereunder by any of the parties thereto; and (ix) OPC shall maintain or cause
to be maintained the OPC Resources which are generating facilities owned by OPC,
in accordance with Prudent Utility Practice.
(b) OPC further represents and warrants that Exhibit 3.2(ii) and the
schedule of forecast load described in Section 3.2(b) reflect its best
RUS-approved forecasts and estimates as of the Effective Date of the matters
reflected therein and that any updates of such Exhibits required to be provided
hereunder shall be its best forecasts and estimates of the matters reflected
therein as of the date that the same are updated from time to time.
(c) OPC further represents and warrants that the power purchase and sales
agreement with Power Marketer shall contain (i) a representation and warranty at
least as favorable to LPM as the representation set forth in Section 12.3(b),
(ii) a covenant on the part of Power Marketer to act in good faith in the
development of the Administrative Procedures, and (iii) no terms, conditions or
covenants that are inconsistent with OPC's obligations hereunder or which would
reasonably be expected to adversely affect LPM's ability to perform hereunder.
12.3 Additional LG&E Parties Representations. (a) LPM further represents
and warrants that on the Effective Date, January 1, 1997, the Long Term
Commencement Date, and the date of entering into each purchase or sale of
Electric Energy hereunder (i) LPM is a power marketer
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authorized by the FERC to purchase and sell Electric Energy at negotiated,
market-based rates pursuant to its Rate Schedule on file with and approved by
the FERC; (ii) neither LPM nor any of its Affiliates or subsidiaries will,
during the Term, take any action that could reasonably be anticipated to cause
LPM to lose its authority as a power marketer under the Federal Power Act to
make wholesale sales of power at market-based, negotiated rates; and (iii) LPM
will, at all times during the Term, act in accordance with Prudent Utility
Practice and will comply with all applicable regulatory requirements including
SERC/NERC guidelines.
(b) LPM represents and warrants that it will cooperate with the Power
Marketer regarding administrative matters during the Term.
(c) LEC represents that neither it nor any of its affiliates or
subsidiaries will, during the Term, take any action that could reasonably be
anticipated to (i) cause LPM to lose its authority as a power marketer under the
Federal Power Act to make wholesale sales of power at market-based, negotiated
rates; or (ii) impair LPM's ability to perform its obligations under this
Agreement, or LEC's ability to perform its obligations under Section 17.15.
(d) LEC further represents and warrants that as of the Effective Date and
January 1, 1997, it is not a "public utility" within the meaning of the Federal
Power Act, as amended.
12.4 Mutual Assistance. Each Party represents and warrants that it will
assist the other to the extent practicable with (i) obtaining all required
Regulatory Approvals associated with this Agreement; (ii) defending transmission
capacity reservations; and (iii) defending Qualifying Facility avoided cost
calculations.
12.5 Good Title. Each of OPC and LPM represents and warrants that it will
deliver to the other good title to Electric Energy delivered hereunder, free and
clear of all liens, claims and encumbrances arising prior to transfer of title
at the Delivery Point.
12.6 Power Quality. Each of OPC and LPM represents and warrants that it
will deliver to the other Electric Energy at the Delivery Point that is three
phase, sixty hertz, and at system nominal voltages.
12.7 Other Contracts. Neither OPC nor LPM nor any of its Affiliates or
subsidiaries will, during the Term, take any action, enter into any contracts or
otherwise incur obligations that could reasonably be anticipated to interfere
with or adversely affect its ability to perform its obligations under this
Agreement.
12.8 Continuing Representations and Warranties. Each Party covenants that
it will cause these representations and warranties to be materially true and
correct throughout the Term.
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Article 13
Defaults and Remedies
13.1 Events of Default. An "Event of Default" shall mean with respect to a
Party ("Defaulting Party"):
13.1.1 The failure by the Defaulting Party to make, when due, any
payment required if such failure is not remedied within five (5) Business
Days after written notice of such failure is given to the Defaulting Party
by the other Party ("Notifying Party"); provided, that the payment is not
the subject of a good faith dispute as described in Section 8.3; or
13.1.2 Any representation or warranty made by the Defaulting Party
herein shall prove to have been false or misleading in any material respect
when made or deemed to be repeated; or
13.1.3 The failure by the Defaulting Party to perform any obligation
or covenant set forth in this Agreement (other than its obligations to make
any payment or obligations which are otherwise specifically covered in this
Section 13.1 as a separate Event of Default, or its obligations to deliver
or receive Electric Energy, a remedy for which is provided in Section 2.5)
and such failure is not excused by Force Majeure or cured within five (5)
Business Days after written notice thereof to the Defaulting Party;
13.1.4 The Defaulting Party shall be subject to a Bankruptcy
Proceeding; or
13.1.5 LPM's loss of FERC authorization to charge the prices for the
sale of Electric Energy included in this Agreement or otherwise to perform
its obligations hereunder in accordance with the terms of this Agreement.
13.2 Early Termination; Remedies. If an Event of Default occurs with
respect to a Defaulting Party at any time during the Term, the other party
("Non-Defaulting Party") may, for so long as the Event of Default is continuing,
(i) establish a date (which date shall be between five (5) and ten (10) Business
Days after the Non-Defaulting Party delivers notice to the Defaulting Party)
("Early Termination Date") on which this Agreement shall terminate and (ii)
withhold any payments due to the Defaulting Party under this Agreement;
provided, however, that if the Event of Default is that the Defaulting Party
becomes subject to a Bankruptcy Proceeding, then this Agreement shall
automatically terminate without notice and without any other action by either
Party as if an Early Termination Date had been immediately declared prior to
such Event of Default. Regardless of whether an Early Termination Date is
declared, if an Event of Default shall have occurred, the Non-Defaulting Party
shall be entitled to exercise any remedy available at law or equity consistent
with Article 10 to recover its damages, including attorneys' fees, resulting
from any Event of Default.
13.3 [_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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13.4 Failure to Pay. Notwithstanding any other provision of this Agreement,
if either Party fails to pay the other any amounts when due, the other Party
shall have the right to (i) suspend performance under this Agreement until such
amounts plus interest have been paid and/or (ii) exercise any remedy available
at law or in equity to enforce payment of such amount plus interest; provided,
however, that if the Defaulting Party, in good faith, shall dispute the amount
of any such billing or part thereof and shall pay such amounts as it concedes to
be correct, no suspension shall be permitted.
13.5 Effect of Regulation. In the event OPC is or becomes regulated by a
federal, state or local regulatory body, and (i) such body shall disallow all or
any portion of any costs incurred or yet to be incurred by OPC under any
provision of this Agreement, such action shall not operate to excuse OPC from
performance of any obligation nor shall such action give rise to any right of
OPC to any refund or retroactive adjustment of any amounts payable hereunder; or
(ii) [_____]* then the sole and exclusive remedy for such default in performance
shall be as set forth in Section 4.4(b).
13.6 Notice to LEC. OPC shall provide a copy to LEC of any notice OPC gives
LPM under the provisions of this Article.
Article 14
Arbitration
14.1 Applicability; Selection of Arbitrators. (a) Except as otherwise
expressly provided in Sections 2.5, 4.4, 7.4 and Article 13 of this Agreement,
any dispute arising out of or in connection with this Agreement, or its
performance including the existence and validity of this Agreement, which cannot
be resolved after discussion between the Parties as set forth herein shall be
submitted to binding arbitration.
(b) Prior to initiating arbitration hereunder, a Party shall provide the
other Party with a written notice of the dispute, a proposed means for resolving
the same, and the support for such position. Thereafter, representatives of the
Parties shall meet to discuss the matter and attempt in good faith to reach a
negotiated resolution of the dispute. If the Parties have not agreed upon a
resolution of the dispute within ninety (90) days after the date of the original
notice provided under this paragraph, or such other time period as the Parties
may agree in writing to allow for discussions ("Negotiation Period"), then at
any time after the end of the Negotiation Period, a Party may provide written
notice to the other declaring an impasse ("Impasse Notice") and initiating
binding arbitration in accordance with the further provisions of this Article
14.
(c) Arbitration will be deemed to be initiated when an Impasse Notice,
properly addressed and stamped, is deposited with the United States Postal
Service. The Party initiating arbitration shall nominate one (1) arbitrator at
the same time it initiates arbitration. The other Party shall nominate one (1)
arbitrator within ten (10) calendar days of receiving the notice of arbitration.
The two arbitrators shall appoint a third, neutral arbitrator. The third,
neutral arbitrator shall be
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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competent and experienced in matters involving the energy business in the United
States, with at least 15 years of electric industry experience as a practicing
attorney, and shall be unaffiliated and without prior financial alliances with
any Party, or either of the other arbitrators.
(d) If the two arbitrators are unable to agree on a third arbitrator within
thirty (30) calendar days from initiation of arbitration, then a third
arbitrator shall be selected by the CPR Institute for Dispute Resolution ("CPR")
with due regard given to the selection criteria above and input from the Parties
and other arbitrators. Parties shall undertake to request CPR to complete
selection of the third arbitrator no later than sixty (60) calendar days from
initiation of arbitration. Costs charged by CPR for this service shall be borne
equally by OPC and the LG&E Parties.
(e) In the event CPR should fail to select the third arbitrator within
sixty (60) calendar days from initiation of arbitration, then any Party may
petition a court of competent jurisdiction in Georgia to select the third
arbitrator. Due regard shall be given to the selection criteria above and input
from the Parties and other arbitrators.
(f) If prior to the conclusion of the arbitration any arbitrator becomes
incapacitated or otherwise unable to serve, then a replacement arbitrator shall
be appointed in the manner described above and applicable to the original
arbitrator being replaced.
14.2 Discovery, Hearing. Discovery and other pre-hearing procedures shall
be conducted as agreed by the parties, or if they cannot agree, as determined by
a majority of the arbitrators. Within fifteen (15) days after completion of
discovery, the Party submitting the Impasse Notice initiating arbitration shall
submit by overnight delivery to the other Party and the arbitrators a precise
statement of the dispute, means of resolving the dispute, and the factual and/or
legal support therefor. Within ten (10) days after receiving such statement, the
other Party shall submit by overnight mail to the first Party and the
arbitrators a precise statement of the alternative means of resolving the
dispute and the factual and/or legal support therefor. The Parties shall conduct
a hearing in Atlanta no later than sixty (60) days following selection of the
third arbitrator, or thirty (30) days after all prehearing discovery has been
completed, whichever is later, at which the Parties shall present such evidence
and witnesses as they may choose. Arbitration shall be conducted in accordance
with the non-administered arbitration rules and procedures of the CPR, except
where specifically modified by this Agreement.
14.3 Decision. The arbitrators shall consider the terms and conditions of
this Agreement, and any relevant evidence and testimony, and shall render their
decision within thirty (30) calendar days following conclusion of the hearing.
The arbitrators' decision will be limited to selecting one of the alternatives
specified in the statements of the Parties referred to in Section 14.2. The
decision rendered by a majority of the arbitrators, made in writing, shall be
final and binding upon the Parties. Any such decision may be filed in a court of
competent jurisdiction and may be enforced by any Party as a final judgment in
such court. The arbitrators shall have no authority to award special, exemplary,
or consequential damages.
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14.4 Expenses. The expenses of arbitration shall be borne equally by OPC
and the LG&E Parties, except that each Party shall bear the compensation and
expenses of its nominated arbitrator, own counsel, witnesses and employees;
provided further, that any costs incurred by a Party in seeking judicial
enforcement of any decision rendered in writing by the arbitrators, or a
majority of the arbitrators, shall be chargeable to and borne exclusively by the
Party against whom such court order is obtained.
Article 15
Force Majeure
15.1 Effect of Force Majeure. (a) If either OPC or LPM is rendered unable
by an event of Force Majeure to carry out, in whole or part, its obligations
hereunder and such Party gives notice and full details of the event to the other
Party as soon as practicable after the occurrence of the event, then during the
pendency of such Force Majeure but for no longer period, the obligations of the
Party affected by the event (other than the obligation to make payments then due
or becoming due with respect to performance prior to the event) shall be
canceled to the extent required, and if applicable subject to the provisions of
Section 15.1(b). The Party affected by the Force Majeure shall remedy the Force
Majeure with all reasonable dispatch.
(b) If due to Force Majeure, any portion of LPM's Share of OPC Resources is
not available, then LPM shall not be obligated to deliver the amount of Electric
Energy which is not available to LPM from LPM's Share of OPC Resources, and at
OPC's option, exercisable at the time OPC gives or receives notice of the Force
Majeure, either (i) [_____]*
Article 16
Material Changes
16.1 [_____]*
[_____]*
Article 17
Miscellaneous
17.1 Assignment.
17.1.1 General. (a) This Agreement shall be binding upon and inure to
the benefit of the permitted successors and permitted assigns of the
Parties, except that this Agreement may not be assigned by any Party unless
prior consent to such assignment is given in writing by the other Parties
and, if any Party is then an RUS borrower, the Administrator. Any
assignment made without a consent required hereunder shall be void and of
no force or effect as against the non-consenting party.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-24-
(b) No sale, assignment, transfer or other disposition permitted by
this Agreement shall affect, release or discharge any Party from its rights
or obligations under this Agreement, except as may be expressly provided by
this Agreement.
17.1.2 Assignment for Security. (a) Notwithstanding any other
provision of this Agreement, a Party, without the other Parties' consent
but, if such assigning Party is then a borrower of the RUS, only with the
consent of the Administrator, may assign, transfer, mortgage or pledge its
interest in this Agreement as security (an "Assignment for Security") for
any obligation secured by any indenture, mortgage or similar lien on its
system assets without limitation on the right of the secured party to
further assign this Agreement, including the assignment to create a
security interest for the benefit of the Government, acting through the
Administrator, or for the benefit of any third party.
(b) After any Assignment for Security to the Administrator or other
secured party (including any indenture trustee under any indenture securing
the obligations of the Seller), the Administrator or other secured party,
without the approval of the other Parties to this Agreement, may (i) cause
this Agreement to be sold, assigned, transferred or otherwise disposed of
to a third party pursuant to the terms governing such Assignment for
Security, or (ii) if the Administrator or other secured party first
acquires this Agreement, sell, assign, transfer or otherwise dispose of
this Agreement to a third party; provided, however, that in either case the
Party who made the Assignment for Security is in default of its obligations
to the Administrator or other secured party that are secured by such
security interest.
17.2 Notices. All notices, requests, statements or payments shall be made
as specified in Exhibit 17.2. Notices required to be in writing shall be
delivered by letter, facsimile or other documentary form. Notice by facsimile or
hand delivery shall be deemed to have been received by the close of the Business
Day on which it was transmitted or hand delivered (unless transmitted or hand
delivered after close, in which case it shall be deemed received at the close of
the next Business Day). Notice by overnight mail or courier shall be deemed to
have been received two (2) Business Days after it was sent. A Party may change
its address by providing notice of same in accordance herewith.
17.3 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES ARISING OUT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED,
ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
17.4 Survival of Obligations. Upon the expiration of the Parties' sale and
purchase obligations under this Agreement, any monies, penalties or other
charges due and owing Seller shall be paid, any corrections or adjustments to
payments previously made shall be determined, and any refunds due Buyer made, as
soon as practicable. All indemnity and confidentiality obligations and audit
rights shall survive the termination of this Agreement in accordance with their
respective terms. The Parties' obligations provided in this Agreement shall
remain in effect for the purpose of complying with the provisions of this
Section.
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17.5 Entire Agreement. This Agreement, together with the attached Exhibits,
constitutes the entire agreement between the Parties relating to the subject
matter contemplated by this Agreement and supersedes all prior agreements,
whether oral or written.
17.6 No Partnership. Nothing in this Agreement shall ever be deemed to
create or constitute a partnership, joint venture or association between the
Parties, or to impose a trust or partnership duty, obligation or liability on or
with regard to the Parties.
17.7 Amendment. No amendment or modification to this Agreement shall be
enforceable unless reduced to writing and executed by both Parties.
17.8 Third Parties. The provisions of this Agreement shall not impart
rights enforceable by any person or entity not a Party or not a permitted
successor or assignee of a Party bound by this Agreement.
17.9 Waiver. No waiver by any Party of any one or more defaults by the
other in the performance of any of the provisions of this Agreement shall be
construed as a waiver of any other default or defaults, whether of a like kind
or different nature.
17.10 Character of Sales by OPC. The sale by OPC to LPM of OPC Energy under
this Agreement does not constitute either a sale, lease, or the dedication of
ownership of any OPC Resource.
17.11 Severability. (a) Subject to the provisions of Article 16, should any
provision of this Agreement for any reason be declared invalid or unenforceable
by a final, non-appealable order of any court or regulatory body having
jurisdiction, such decision shall not affect the validity of the remaining
portions of the Agreement, and such portions shall remain in full force and
effect as if this Agreement had been executed without the invalid portion. In
the event any provision of this Agreement is declared invalid, the Parties shall
promptly renegotiate to restore this Agreement as near as possible to its
original intent and effect.
(b) The obligations of LEC and LPM are severable under this Agreement, such
that the invalidity or unenforceability of all or any portion of the obligations
of LPM or LEC under this Agreement shall not affect the validity or
enforceability of the obligations of the other.
17.12 RESERVED.
17.13 Headings. The headings used for the Articles are for convenience
and reference purposes only, and shall not be construed to modify, expand, or
restrict the provisions of this Agreement.
17.14 Counterparts. This Agreement may be executed in multiple counterparts
to be construed as one effective as of the Effective Date.
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17.15 LEC Obligations.
17.15.1 Failure of Performance of LPM. (a) In the event LPM fails,
refuses, or is otherwise unable to make full and timely performance of all
obligations under this Agreement, LEC unconditionally and irrevocably
agrees to indemnify and hold harmless OPC from and against any cost,
expense or loss associated with such breach in excess of the amounts
contemplated under the Agreement. Subject to Section 10.3, OPC shall have
the right to seek replacement service from any available source. Nor shall
it be necessary for OPC, in order to enforce the performance of LEC under
this Section, to first pursue its remedies respecting the LPM obligations
under the Agreement against LPM or any other person.
(b) Alternatively, if OPC consents and LEC has previously obtained
market rate authority from FERC, LEC may assume LPM's rights, duties, and
obligations under this Agreement. OPC's approval of this alternative does
not waive LEC's obligation under Section 17.15.1(a) to indemnify and hold
harmless OPC from and against any cost, expense or loss associated with
such breach by LPM in excess of the amounts contemplated under the
Agreement.
(c) LEC acknowledges and agrees that it has received reasonable
consideration for its guarantee of LPM's performance, and the Parties
acknowledge that this consideration is unrelated to the revenue or profits
earned by LPM under this Agreement.
17.15.2 Further Covenants of LEC. (a) Any other provision of this
Agreement notwithstanding, LEC shall have neither the obligation nor the
right to engage in, control or otherwise influence any FERC jurisdictional
transactions under this Agreement unless LEC shall have previously obtained
market rate authority from FERC and approval from OPC. Except as provided
by Section 17.15.1(c) and Section 17.15.1(b) above, LEC shall not directly
derive any income from any transaction under this Agreement.
(b) LEC agrees to indemnify and hold harmless OPC from and against any
and all cost, expense, or loss in excess of amounts contemplated to be paid
by OPC under this Agreement, and which arises from any or all regulatory
consequences of LEC becoming a "public utility" within the meaning of the
Federal Power Act, as amended.
(c) In the event the FERC determines that LEC is a public utility
responsible for delivering Electric Energy to OPC under the terms of this
Agreement, then LEC agrees to take all necessary and appropriate steps to
obtain all authorizations required to perform this Agreement in accordance
with its terms, and shall indemnify and hold harmless OPC for the
difference, if any, between the Contract Price applicable for purchases by
OPC of Electric Energy under this Agreement and the rate approved by FERC.
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(d) LEC acknowledges that the provisions of this Section 17.15
constitute a material portion of the consideration to OPC for entering into
this Agreement, and that OPC is executing this agreement in reliance on the
enforceability and legality of such provisions. LEC unconditionally and
irrevocably agrees not to challenge, question, or otherwise seek to
undermine in any manner the enforceability or legality of this Section
17.15, and agrees to file and diligently prosecute such applications,
briefs, testimony, or other pleadings as may be necessary or appropriate in
connection with any Legal Proceeding to support the enforceability and
legality of this Section 17.15.
17.15.3 No Discharge. The obligations of LEC under this Section 17.15
shall, to the fullest extent permitted by law, remain in full force and
effect without regard to , and shall not be released, discharged or in any
way affected by, (i) an amendment to the Agreement; (ii) the merger or
consolidation of LEC or OPC with or into any entity, or (iii) any sale,
lease or transfer of all of the assets of LEC or OPC.
17.16 Administration. OPC and LPM recognize that Administrative Procedures
need to be developed to govern operations, such as those described in Section
4.3, under this Agreement that require coordination among OPC; LPM, and Power
Marketer, or their designees. The Administrative Committee shall be composed of
one representative of each of the foregoing, and shall meet at such times and
locations as are mutually agreed, but at least once a calendar quarter to
address all matters relating to such coordination of operations. The
Administrative Committee may also meet by conference telephone or other similar
communications method that permits all persons participating to hear each other
clearly. The Administrative Committee shall have the authority, by unanimous
vote of its members, to make such changes to the Administrative Procedures as it
deems appropriate and in accordance with Prudent Utility Practice, and to
resolve disputes concerning the application of the Administrative Procedures;
provided, however, that the Administrative Committee shall not take any action
in conflict with the terms of this Agreement or the OPC Contracts, nor otherwise
modify the terms of this Agreement.
17.17 Scheduling Members. Exhibit 17.17 lists the EMCs that are Scheduling
Members. Scheduling Members shall be allocated a portion of OPC Resources and
shall have such scheduling and other rights pertaining thereto as are provided
in the EMC Contracts.
17.18 Further Assurances. If any Party reasonably determines or is
reasonably advised that any further instruments or any other things are
necessary or desirable to carry out the terms of the Agreement, the other
Parties shall execute and deliver all such instruments and assurances and do all
things reasonably necessary and proper to carry out the terms of this Agreement.
17.19 RUS Approval. OPC shall use its best reasonable efforts to obtain RUS
approval of the long term arrangement contemplated in Section 6.1(b).
17.20 Other. LPM agrees that if at any time during the Term it is asked to
supply Electric Energy to any OPC member cooperative (other than indirectly as
contemplated herein, including
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supplies to Customer Choice Customers under Section 2.4) then LPM shall either
(i) decline to supply such Electric Energy or (ii) offer to supply such Electric
Energy through OPC or its designee.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized officers and copies delivered to each Party.
OGLETHORPE POWER CORPORATION
By: /s/ X. X. Xxxxxxx Attest: /s/ Xxxxxxxx Xxxx
----------------------------------------- ------------------------
X. X. Xxxxxxx Xxxxxxxx Xxxx
Title: President and Chief Executive Officer Title: Assistant Secretary
LG&E POWER MARKETING INC.
By: /s/ Xxxxx X. Xxxxxx, Xx. Attest: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------- ------------------------
Xxxxx X. Xxxxxx, Xx. Xxxxx X. Xxxxxxxx
Title: Director, Valuation & Title: Secretary
Competitive Analysis
LG&E ENERGY CORP.
By: /s/ Xxxxx X. Xxxx Attest: /s/ Xxxx X. XxXxxx
----------------------------------------- ------------------------
Xxxxx X. Xxxx Xxxx X. XxXxxx
Title: Chairman of the Board Title: Corporate Secretary,
Chief Executive Officer General Counsel,
Executive Vice President
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SCHEDULE A
Definitions
[_____]*
[_____]*
"Administrative Committee" means the committee described in Section 17.16.
"Administrative Procedures" mean the procedures to be developed by LPM, OPC
and Power Marketer in accordance with Section 11.3, as such procedures may be
modified from time to time pursuant to Section 17.16, which procedures will
address the Scheduling and dispatch of the OPC Resources.
"Affiliate" means, with respect to any person, any other person (other than
an individual) that directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such person. For
this purpose, "control" means the direct or indirect ownership interest of more
than fifty (50) percent of the outstanding capital stock or other equity
interests having ordinary voting power.
[_____]*
[_____]*
"Assignment for Security" has the meaning specified in Section 17.1.2.
"Bankruptcy Proceeding" means, with respect to a Party, that such Party (i)
makes any general assignment or any general arrangement for the benefit of
creditors, (ii) files a petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy or similar law for the protection of creditors, or has such a
petition involuntarily filed against it and such petition is not withdrawn or
dismissed within thirty (30) days after such filing, (iii) otherwise becomes
bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as
they fall due.
"Business Day" means a day on which the Federal Reserve Member Banks in New
York City are open for business; and a Business Day shall open at 8:00 a.m. and
close at 5:00 p.m. local time for each Party's principal place of business.
"Buyer" means either LPM or OPC, as the case may be, when it is the Party
who is obligated to purchase and receive, or cause to be received, Electric
Energy in connection with a sale hereunder.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
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"Claims" means all claims or actions, threatened or filed and whether
groundless, false or fraudulent, that directly or indirectly relate to the
subject matter of an indemnity, and the resulting losses, damages, expenses,
attorneys' fees and court costs, whether incurred by settlement or otherwise,
and whether such claims or actions are threatened or filed prior to or after the
termination of this Agreement.
"Computer Tapes" has the meaning specified in Section 7.3.
"Confidential Information" means this Agreement and any other written data
or information (or an oral communication if the party requesting confidentiality
for such oral communication promptly confirms such communication in writing)
which is privileged, confidential or proprietary or which constitutes a trade
secret under the Georgia Trade Secrets Act of 1990, except information which (i)
is a matter of public knowledge at the time of its disclosure or is thereafter
published in or otherwise ascertainable from any source available to the public
without breach of this Agreement, (ii) constitutes information which is obtained
from a third party (who or which is not an Affiliate of one of the Parties)
other than by or as a result of unauthorized disclosure, or (iii) prior to the
time of disclosure had been independently developed by the receiving Party or
its Affiliates not utilizing improper means.
"Contract Price" means the price in United States dollars (per MWh) to be
paid by Buyer to Seller for the purchase of Electric Energy that is Scheduled or
Properly Requested pursuant to this Agreement.
"Contract Quantity" means the amount of Electric Energy that Seller agrees
to sell and deliver, or cause to be delivered, to Buyer and Buyer agrees to
purchase and receive, or cause to be received, from Seller pursuant to the terms
of this Agreement.
"Control Area" means an electric power system or combination of electric
power systems to which a common automatic generation control scheme is applied.
"CPR" has the meaning specified in Section 14.1(d).
"CPT" means Central Prevailing Time and refers to the time in effect in the
Central Time Zone of the United States, whether Central Standard Time or Central
Daylight Savings Time.
"CSA" means that certain Coordination Services Agreement between Georgia
Power Company and Oglethorpe Power Corporation (An Electric Membership
Generation and Transmission Corporation), dated as of November 12, 1990, as
amended from time to time.
"Customer Choice Customer" means a retail customer or prospective customer
of an EMC Customer which has a choice of supplier under Georgia law as defined
under the Georgia Territorial Electric Services Act, whether or not such
customer exercises its rights under the applicable statute on or after the
Effective Date of this Agreement, but shall not include any such retail customer
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whose requirements are being served by an EMC Customer, under an existing
agreement or rate schedule as of the Effective Date until after expiration of
the applicable agreement or rate schedule.
"Customer Choice Load" means the Electric Energy requirements of Customer
Choice Customers.
"Customer Choice Price" means the price at which LPM will serve LPM's Share
of Customer Choice Load, as set forth in Exhibit 5.3 in the case of Customer
Choice Customers described in Section 2.4(a), and as set forth in the applicable
bid accepted by OPC in the case of Customer Choice Customers described in
Section 2.4(b). In the case of the Customer Choice Customers described in
Section 2.4(a), the applicable price set forth in Exhibit 5.3 shall be the price
stated for the EMC listed in such Exhibit in whose service territory, as
depicted in Exhibit 18, the Customer Choice Customer is located. If a Customer
Choice Customer described in Section 2.4(a) is not located in the service
territory of an EMC listed on Exhibit 5.3, including a Customer Choice Customer
within another supplier's service territory that is physically within the
boundaries of an EMC's service territory, the applicable Customer Choice
Customer Price shall be the OPC price listed in Exhibit 5.3.
"Defaulting Party" has the meaning specified Section 13.1.
[ ]*
"Dispatchable Resources" means the OPC Resources that are so designated in
Exhibit 3.2(i).
[_____]*
"Effective Date" has the meaning specified in Section 6.1.
"Electric Energy" means energy in the form of electricity expressed in
megawatt-hours (MWh) (or in kilowatt-hours when energy is measured at the points
of delivery to the EMCs).
"EMC" means an electric membership corporation as defined in Section
46-3-171(3) of the Georgia Electric Membership Corporation Act.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-32-
"EMC Contract" means one of those certain Wholesale Power Contracts between
OPC and an EMC, which contract is dated on or after December 1, 1988, as
restated and/or amended from time to time, pursuant to which OPC sells and such
EMC purchases certain Electric Energy required to meet the energy requirements
of its customers for the operation of its system.
"EMC Customer" means an electric corporation that is a member of OPC and
which is not a Scheduling Member. EMC Customers are listed in Exhibit 1.62.
"EMC Metering Point" means that certain point at which deliveries of
Electric Energy to each EMC, respectively, are measured and received pursuant to
the EMC Contracts.
"Energy Cost" with respect to the OPC Energy in question means [_____]*
"Equitable Defenses" means bankruptcy, insolvency, reorganization and other
laws affecting creditors' rights generally, and with regard to equitable
remedies, the discretion of the court before which proceedings to obtain the
same may be pending.
"Event of Default" has the meaning specified in Section 13.1.
"FERC" means the Federal Energy Regulatory Commission or any successor
agency which enforces the Federal Power Act, as amended from time to time.
"FOB the Plant" means FOB railcar or FOB truck at Plant Xxxxxxx or Plant
Xxxxxxx, as applicable, at LPM's expense for unloading by OPC at OPC's expense.
"Force Majeure" means an event which is not within the reasonable control
of the Party (or, in the case of third party obligations or facilities, the
third party) claiming suspension (the "Claiming Party"), and which by the
exercise of due diligence the Claiming Party is unable to overcome in a
commercially reasonable manner or obtain or cause to be obtained a commercially
reasonable substitute performance therefor. Force Majeure includes, but is not
restricted to: [_____]*
[_____]*
"GPC" means Georgia Power Company.
"GSOC" means Georgia System Operations Corporation, a non-profit
corporation organized under the laws of the State of Georgia, or any successor
thereto.
"GTC" means Georgia Transmission Corporation, an electric membership
corporation organized and existing under Title 46 of the Official Code of
Georgia Annotated, or any successor thereto.
"Hartwell" means the simple cycle gas turbine Units 1 and 2, as described
in the power purchase agreement between OPC and Xxxxxxxx Energy Limited
Partnership, which is listed on Exhibit 3.2(i).
"Impasse Notice" has the meaning specified in Section 14.1(b).
"Integrated Transmission System" or "ITS" means the Transmission Facilities
as defined in the Revised and Restated Integrated Transmission System Agreement
between Oglethorpe Power
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-33-
Corporation (An Electric Membership Generation & Transmission Corporation) and
Georgia Power Company, dated as of November 12, 1990, as amended from time to
time.
"Interest Rate" means the Prime Rate plus two percent, or the maximum
lawful rate permitted by applicable Law, whichever is less.
"Interruptible Load" means any load that can be interrupted in a power
control center.
"Interval" means an hour, or such other period of time as the
Administrative Committee may determine is appropriate in accordance with the
provisions of Section 17.16.
"ITS Loss Factor" means the EMC transmission loss factor determined from
time to time pursuant to the ITSA applicable to deliveries of Electric Energy
from any point on the ITS to any EMC Metering Point, [_____]*
"ITSA" means the Revised and Restated Integrated Transmission System
Agreement between Oglethorpe Power Corporation (An Electric Membership
Generation & Transmission Corporation) and Georgia Power Company, dated as of
November 12, 1980, as amended from time to time.
"Law" means any law, rule, regulation, order, writ, judgment, decree or
other legal or regulatory determination by a court, regulatory agency or
governmental authority of competent jurisdiction.
"LEC" means LG&E Energy Corp., or any successor thereto.
"Legal Proceeding" means any suit, proceeding, judgment, ruling or order by
or before any court or any governmental authority.
"Level B-1" means the high side of the step-up transformer of a generating
plant that is an OPC Resource, or other input to the transmission system (other
than Points of Interconnection), either of which interconnects directly into the
ITS. Exhibit 1.43 illustrates Level B-1.
"LG&E Parties" means LPM and LEC.
"Long Term Commencement Date" has the meaning specified in Section 6.1(b).
"LPM" means LG&E Power Marketing Inc., or any successor thereto.
"LPM Off-System Sales Price" has the meaning specified in Section 5.3.
"LPM Sales Price" means, [ ]* the price for
Electric Energy set forth for the applicable period in Exhibit 5.3.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-34-
"LPM's Share of Customer Choice Load" means the applicable percentage of
Customer Choice Load served by the EMC Customers with Electric Energy acquired
by OPC at the Contract Price established in Section 5.3(ii) or 5.3(iii), as
determined in accordance with the provisions of Section 2.4.
"LPM's Share of OPC Load" means the percentage reflected in Exhibit 1.62 of
each EMC Customer's requirements for Electric Energy.
"LPM's Share of OPC Off-System Sales" means 44.178% of OPC's Off-System
Sales under the OPC Off-System Sales Contract listed in Exhibit 2.2.2, and the
applicable percentage to which LPM commits for OPC Off-System Sales under other
OPC Off-System Sales Contracts.
"LPM's Share of OPC Resources" means the percentage of each OPC Resource,
or portion thereof, shown on Exhibit 3.3, excluding any portion of such OPC
Resources allocated to a Scheduling Member.
"Must Run Resources" means the OPC Resources that are so designated in
Exhibit 3.2(i).
"MWh" means megawatt-hour.
"Negotiation Period" has the meaning specified in Section 14.1(b).
"NERC" means the North American Electric Reliability Council.
"Non-Defaulting Party" has the meaning specified in Section 13.2.
"Non-Summer Period" has the meaning specified in Section 5.4.7.
"Non-Territorial Contractual Delivery Obligations" means an obligation,
based on a quantity of capacity, energy, or both, which an ITS participant is
contractually committed to deliver or make available from or through the ITS to
a nonterritorial entity, as further defined in the ITSA.
"Notifying Party" has the meaning specified in Section 13.1.1.
[_____]*
"OASIS" means Open Access Same-Time Information System, the information
system and standards of conduct contained in Part 37 of the FERC's regulations
(18 C.F.R. Part 37), as amended from time to time.
"OPC Contracts" means, as of a particular date, all EMC Contracts, the CSA,
other contracts, operating procedures and understandings (whether written or
oral, and if oral, written statements of
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-35-
the terms thereof) in effect on such date affecting OPC's rights and obligations
with respect to OPC Resources and to the ITS.
"OPC Energy" means all of the available Electric Energy which OPC owns,
purchases or otherwise has a right to take from OPC Resources.
"OPC Load" means, as of a particular Interval, the entire Electric Energy
requirements (including the requirements of any retail customer with a choice of
supplier under applicable Law, which customer is being served by an EMC Customer
as of the Effective Date) of the EMC Customers listed in Exhibit 1.62, measured
at each EMC Metering Point [
]*
"OPC Off-System Sales" means transactions undertaken by OPC or any EMC
Customer pursuant to the OPC Off-System Sales Contracts.
"OPC Off-System Sales Contracts" means the contract listed on Exhibit 2.2.1
and, subject to the consent of LPM as to those contracts for which LPM will
supply Electric Energy under this Agreement, contracts entered into after the
Effective Date, between OPC or an EMC Customer and third parties whose
facilities are not directly inter-connected to the facilities of either GTC or
an EMC Customer, pursuant to which OPC or an EMC Customer sells Electric Energy
to such third parties.
"OPC Resources" means the capacity entitlement or other rights with respect
to generating facilities from which, or power purchase contracts, or other
contracts or agreements, under which OPC is required or has the right to take,
purchase or otherwise acquire Electric Energy during the Term and which, are
listed in Exhibit 3.2(i).
"OPC Restructuring" means the transaction by which OPC shall restructure to
divide its business and assets into three specialized companies and, among other
things, place its transmission assets into GTC.
"Other Records" has the meaning specified in Section 7.3.
"Party" means OPC, LPM, or LEC, as applicable, including permitted
assignees of each pursuant to this Agreement.
"Plant Hatch" means the Xxxxx X. Xxxxx Nuclear Plant, consisting of two
nuclear generating facilities (and associated common facilities) having a
current name plate capacity of 810 MW for Unit 1 and 820 MW for Unit 2.
"Plant Xxxxxxx" means the Xxxxxx X. Xxxxxxx Plant, consisting of two coal
generating facilities (and associated common facilities) having a current total
name plate capacity (including interests of all owners) of 818 MW for Unit 1 and
818 MW for Unit 2.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-36-
"Plant Vogtle" means the Xxxxx X. Xxxxxx Nuclear Plant, consisting of two
nuclear generating facilities (and associated common facilities) having a
current total name plate capacity (including interests of all owners) of 1160 MW
for Unit 1 and 1160 MW for Unit 2.
"Plant Xxxxxxx" means the Xxx X. Xxxxxxx Plant, consisting of two coal
generating facilities (and associated common facilities) having a current total
name plate capacity (including interests of all owners) of 865 MW for Xxxx 0 xxx
000 XX xxx Xxxx 0.
[ ]*
"Power Marketer" means a third party who is authorized by the FERC to sell
Electric Energy at market-based, negotiated rates, and with whom OPC contracts
on a long-term basis for the purchase of Electric Energy required to supply the
portion of OPC Load not supplied under this Agreement.
"Prime Rate" means for any date, the per annum rate of interest announced
from time to time by Citibank, N.A., as its "prime" rate for commercial loans,
effective for such date as established from time to time by such bank.
"Properly Requested" or "Properly Requests" means that LPM has notified or
notifies OPC of specified amounts of OPC Energy that LPM desires to purchase
from specific OPC Resources at specified times during the Term in accordance
with Section 4.3; provided, that any such request must be consistent with the
terms of this Agreement, the OPC Contracts, and the Administrative Procedures;
and provided, further, that all Electric Energy attributable to LPM's Share of
OPC Resources that are Must Run Resources (which LPM is obligated to purchase
pursuant to Section 2.2.1) shall be deemed to be Properly Requested for purposes
of this Agreement.
"Prudent Utility Practice" means any of the practices, methods and acts
engaged in or approved by a significant portion of the electric industry during
the relevant time period, or any of the practices, methods and acts that, in the
exercise of reasonable judgment in light of the facts known at the time the
decision was made, could have been expected to accomplish the desired result at
lowest reasonable cost consistent with good business practices, reliability,
safety, and expedition. Prudent Utility Practice is not intended to be limited
to the optimum practice, method or act, to the exclusion of all others, but
rather to include a spectrum of possible practices, methods, or acts generally
acceptable in the region in light of the circumstances.
"Qualifying Facility" means a facility as defined in Section 210 of the
Public Utilities Regulatory Policy Act of 1978, as amended, and applicable FERC
regulations promulgated thereunder.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-37-
"Regulatory Approvals" means all current and future valid and applicable
orders, approvals, consents, authorizations, permits or certificates issued by
any courts or regulatory bodies (state or federal) having jurisdiction over a
Party, this Agreement, or the performance hereof.
[_____]*
"Representatives" has the meaning specified in Section 7.1.
"Rocky Mountain" means the Rocky Mountain Pumped Storage Hydroelectric
Generating Facility.
"RUS" has the meaning specified in Section 12.l(iii).
"Sales Price" has the meaning specified in Section 2.5(b).
"Scheduling," "Scheduled" or "Schedule" means or relates to the acts of
Seller, Buyer and their designated representatives, including each Party's
Transmission Providers, if applicable, of notifying, requesting and confirming
to each other the quantity of Electric Energy to be delivered in each Interval
on any given day or days at a specified Delivery Point.
"Scheduling Member" means any of the EMCs listed in Exhibit 17.17.
"Seller" means either LPM or OPC, as the case may be, when it is the Party
who is obligated to sell and deliver, or cause to be delivered, Electric Energy.
"SEPA" means the Southeastern Power Administration, a federal agency of the
United States Government, or any successor.
"SEPA Contracts" means those certain power purchase and sale agreements
between each EMC and SEPA pursuant to which each EMC Customer purchases Electric
Energy from SEPA.
"SEPA Energy" means the aggregate amount of Electric Energy Scheduled for
delivery to the EMC Customers pursuant to the SEPA Contracts.
"SERC" means the Southeastern Electric Reliability Council or any
successor.
"Statement" has the meaning specified in Section 8.1.
[_____]*
"Taxes" means any or all ad valorem, property, occupation, severance,
generation, first use, conservation, Btu or energy, transmission, utility, gross
receipts, privilege, sales, use, consumption,
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-38-
excise, lease, transaction, and other or new Taxes, governmental charges,
licenses, fees, permits and assessments, or increases therein, other than taxes
based on net income or net worth.
"Term" has the meaning specified in Section 6.1.
[_____]*
[_____]*
[_____]*
"Transmission Provider" means the entity or entities transmitting Electric
Energy on behalf of Seller or Buyer to or from the Delivery Point(s) in
connection with a particular purchase or sale.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-39-
EXHIBIT 1.25(iii)
Energy Costs for Certain OPC Resources
OPC Resource Costs Included in Energy Cost
------------ -----------------------------
Big Rivers [ ]*
GPC [ ]*
Xxxxx 0
Xxxxx 0
Xxxxx 0
Xxxxx 0
Xxxxx 6
Florida Power Corp. [ ]*
Entergy Power Inc. [ ]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 1.25(iv)
Energy Costs Paid by LPM for Certain Qualifying Facilities[_____]*
Year Energy Charges ($/MWh)
---- ----------------------
1997 [_____]*
1998 [_____]*
1999 [_____]*
2000 [_____]*
2001 [_____]*
2002 [_____]*
2003 [_____]*
2004 [_____]*
2005 [_____]*
2006 [_____]*
2007 [_____]*
2006 [_____]*
2009 [_____]*
2010 [_____]*
2011 [_____]*
[_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 1.43
Xxxxx X-0 Diagram
EXHIBIT 1.62
EMC Customers
EMC Percent of Requirements
--- -----------------------
ALTAMAHA EMC 50%
AMICALOLA EMC 50%
CANOOCHEE EMC 50%
XXXXXXX EMC 50%
CENTRAL GEORGIA EMC 50%
COASTAL EMC 50%
XXXX EMC 50%
XXXXXXXX EMC 50%
COWETA-FAYETTE EMC 0%
EXCELSIOR EMC 50%
FLINT EMC 50%
XXXXX EMC 50%
GREYSTONE POWER CORPORATION, AN EMC 50%
HABERSHAM EMC 50%
XXXX EMC 50%
XXXXX EMC 50%
XXXXXXX EMC 50%
JEFFERSON EMC 50%
XXXXX EMC 50%
LITTLE OCMULGEE EMC 50%
MIDDLE GEORGIA EMC 50%
XXXXXXXX EMC 50%
OCMULGEE EMC 50%
OCONEE EMC 50%
OKEFENOKE RURAL EMC* 50%
PATAULA EMC 50%
PLANTERS EMC 50%
XXXXX EMC 50%
SATILLA RURAL EMC 50%
SAWNEE EMC 0%
SLASH PINE EMC 50%
SNAPPING SHOALS EMC 50%
SUMTER EMC 50%
THREE NOTCH EMC 50%
TRI-COUNTY EMC 50%
XXXXX EMC 50%
XXXXX COUNTY EMC 50%
XXXXXX EMC 50%
WASHINGTON EMC 50%
*Subject to Sections 2.1(d) and (e).
EXHIBIT 2.1
Off-System Sales Contracts
Sales Agreement with Alabama Electric Cooperation ("AEC"), dated March 31, 1994.
EXHIBIT 2.2.1
[_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 2.2.2
[_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 3.2(i)
OPC Resources(1)
Type of Resource OPC Resources -----------------------------------
that are Dispatch- Minimum Maximum
able (OPC Resource) (OPC Resource)
Resources (MW) (MW)
-----------------------------------
Generating Units Rocky Mountain 1 110.0 212.0
-----------------------------------
Rocky Mountain 2 110.0 212.0
-----------------------------------
Rocky Mountain 3 110.0 212.0
-----------------------------------
Scherer1(2) 195.0 496.2
-----------------------------------
Scherer1(2) 195.0 498.0
-----------------------------------
Tallassee N/A 2.0
-----------------------------------
Xxxxxxx 1(3) 121.0 253.8
-----------------------------------
Xxxxxxx 2(3) 122.0 253.8
-----------------------------------
16.2 (summer)
-----------------------------------
Xxxxxxx XX X/X 19.8 (winter)
-----------------------------------
-----------------------------------
Minimum Minimum
(OPC Resource) (OPC Resource)
(MW) (MW)
-----------------------------------
Purchased Power GPC Block 1(4) 100 215
-----------------------------------
GPC Block 2(4) 100 215
-----------------------------------
GPC Block 4(4) 100 215
-----------------------------------
GPC Block 5(4) 0 107
-----------------------------------
----------
(1) The figures contained in this Exhibit shall not serve to limit the actual
output available from any OPC Resource.
(2) Xxxxxxx minimum could be 330 MW if Georgia Power is not taking electric
energy from its ownership share of the generating facility.
(3) Xxxxxxx minimum could be 430 if other co-owners are not taking electric
energy from their ownership share of the generating facility.
(4) 100% availability - minimum applies when energy is being scheduled under
the particular block.
EXHIBIT 3.2(i) (continued)
-----------------------------------
GPC Block 6(4) 0 108
-----------------------------------
Big Rivers 25 100
-----------------------------------
Entergy 25 100
-----------------------------------
74 (summer) 148 (summer)
-----------------------------------
Xxxxxxxx 1(5) 91 (winter) 182 (winter)
-----------------------------------
74 (summer) 148 (summer)
-----------------------------------
Xxxxxxxx 2(5) 91 (winter) 182 (winter)
-----------------------------------
Florida Power(6) 0 50 (1997)
275 (1998)
-----------------------------------
-----------------------------------
OPC Resources
that are Minimum Maximum
Must Run (OPC Resource) (OPC Resource)
Resources (MW) (MW)
-----------------------------------
Generating Units Hatch(1) N/A 234.9
-----------------------------------
Hatch(2) N/A 242.1
-----------------------------------
Vogtle(1) N/A 348.6
-----------------------------------
Vogtle(2) N/A 348.6
-----------------------------------
Purchased Power QF N/A 15.6
-----------------------------------
----------
(5) Unit minimums are governed by Section 7.2.1 of PPA: "Unit to be dispatched
at a level no less than 50% of the maximum operating levels." See Schedule
K of the Xxxxxxxx PPA for minimum and maximum capacities at certain
temperatures. If unit is on AGC, unit minimum is 100 MW and maximum is 150
MW. Xxxxxxxx unit operation constrained to no more than 2500 hours per unit
annually.
(6) Available only during 1997 and 1998 in the months of June through
September.
EXHIBIT 3.2(i) (continued)
OPC Resources and OPC Contracts
OPC Resource Operations Governed By
------------ ----------------------
Georgia Power Blocks Block Power Sale Agreement between Georgia Power
Company and OPC, dated as of November 12, 1990.
Letters dated as of December 30, 1992 and December
8, 1993, extending term of Block Power Sale
Agreement. Letter dated as of August 30, 1994,
electing to reduce capacity OPC is obligated to
purchase under Block Power Sale Agreement.
Vogtle, Units 1 & 2 Xxxxx X. Xxxxxx Nuclear Units Numbers One and Two
Purchase and Ownership Participation Agreement
among Georgia Power Company, OPC, Municipal
Electric Authority of Georgia and City of Dalton,
Georgia, dated as of August 27, 1976; Amendment,
dated as of January 18, 1977; Amendment Number
Two, dated as of February 24, 1977. Xxxxx X.
Xxxxxx Nuclear Units One and Two Operating
Agreement among Georgia Power Company, OPC,
Municipal Electric Authority of Georgia and City
of Dalton, Georgia, dated as of August 27, 1976.
Hatch, Units 1 & 2 Xxxxx X. Xxxxx Nuclear Plant Purchase and
Ownership Participation Agreement between Georgia
Power Company and OPC, dated as of January 6,
1975. Hatch Operating Agreement between Georgia
Power Company and OPC, dated as of January 6,
1975.
Xxxxxxx, Units 1 & 2 Plant Xxxxxx X. Xxxxxxx Units Numbers One and Two
Purchase and Ownership Participation Agreement
among Georgia Power Company, OPC, Municipal
Electric Authority of Georgia and City of Dalton,
Georgia, dated as of May 15, 1980; Amendment,
dated as of December 30, 1985; Amendment Number
Two, dated as of July 1, 1986; Amendment Number
Three, dated as of August 1, 1988; Amendment
Number Four, dated as of December 31, 1990. Plant
Xxxxxx X. Xxxxxxx Units Numbers One and Two
Operating Agreement among Georgia Power Company,
OPC, Municipal Electric Authority of Georgia and
City of Dalton, Georgia, dated as of May 15, 1980;
Amendment, dated as of December 30, 1985;
Amendment Number Two, dated as of December 31,
1990. Plant Xxxxxxx Managing Board Agreement among
Georgia Power Company, OPC, Municipal Electric
Authority of Georgia and City of Dalton, Georgia,
EXHIBIT 3.2(i) (continued)
dated as of December 31, 1990. Letter of Intent
re: Use of Eastern and Western Coal at Xxxxxxx,
dated as of January 16, 1992; Letter Agreement re:
Capital Modifications and Expenditures for the use
of Western Coal at Plant Xxxxxxx, dated as of July
7, 1992 (partially executed). Letter Agreement re:
Additional Amendments to the Xxxxxxx and Xxxxxxx
Agreements, dated as of December 31, 1990.
Xxxxxxx, Xxxxx 0, 0, & XX Xxxxx Xxx X. Xxxxxxx Purchase and Ownership
Participation Agreement between Georgia Power
Company and OPC, dated as of March 26, 1976; Plant
Xxx Xxxxxxx Operating Agreement between Georgia
Power Company and OPC, dated as of March 26, 1976.
Plant Xxx Xxxxxxx Combustion Turbine Agreement
between Georgia Power Company and OPC, dated as of
August 2, 1982; Amendment dated as of October 20,
1982.
Tallassee, Units 1 & 2 No Operative Documents.
Big Rivers Purchase Long Term Firm Power Purchase Agreement between
Big Rivers Electric Corporation and OPC, dated as
of December 17, 1990. Letter dated March 12, 1992.
Long Term Firm Power Purchase Agreement, dated as
of July 19, 1989, by and between OPC and Big
Rivers Electric Corporation.
Entergy Purchase Unit Capacity and Entergy Purchase Agreement
between OPC and Entergy Power, Incorporated, dated
as of October 11, 1990, Amendment dated September
29, 1992.
Xxxxxxxx Energy Limited Partnership Purchase Power Purchase Agreement
between OPC and Xxxxxxxx Energy Limited
Partnership, dated as of June 12, 1992. Agreement
for Purchase of 230KVS Switchyard and ITS
Interconnection Facilities Agreement, dated as of
August 31, 1992.
EXHIBIT 3.2(i) (continued)
Rocky Mountain Pumped
Storage Resource Rocky Mountain Pumped Storage Hydroelectric
Project Ownership Participation Agreement, dated
as of November 18, 1988, by and between OPC and
Georgia Power Company. Rocky Mountain Pumped
Storage Hydroelectric Project Operating Agreement
by and between OPC and Georgia Power Company,
dated as of November 18, 1988. Pumped Storage
Hydroelectric Project Option Agreement, dated as
of November 18, 1988. Reciprocity Letter
Agreement, dated as of November 18, 1988. Letters
Relating to Rocky Mountain (Title Defects Letter;
Xxxxx County Prepayment Letter; Letter Re: Other
Commitments; Letter Re: Cost of Construction).
QF Agreements Interconnection Policy of OPC and Members for
Cogeneration and Small Power Producers, dated as
of January, 1994. Agreement for Purchase of Power
from Georgia Waste Systems, Inc., dated January
1993. Agreement for Purchase of Power from
Southeast Paper Manufacturing Co., dated as of
February 29, 1988; Amendment, dated as of November
11, 1991. Agreement for Purchase of Power from
Spartan Xxxxx, dated as of April 6, 1992.
Agreement for Purchase of Power from Buckeye
Cellulose Corporation, executed August 6, 1983.
Amendment dated September 21, 1993; Second
Amendment dated February 11, 1985; Third Amendment
dated December 10, 1991; and Fourth Amendment
dated September 1, 1996.
EXHIBIT 3.2(i) (continued)
Other Agreements
Integrated Transmission
System Agreement Revised and Restated Integrated Transmission
System Agreement between OPC and Georgia Power
Company, dated as of November 12, 1990. ITSA,
Power Sale and Coordination Umbrella Agreement
between OPC and Georgia Power Company, dated as of
November 12, 1990.
Coordination Services Coordination Services Agreement between Georgia
Power Company and OPC, dated as of November 12,
1990.
Transmission O&M Transmission Facilities Operation and Maintenance
Contract between Georgia Power Company and OPC,
dated as of June 9, 1986.
ITS Transfer Capability Purchase of TVA ITS Interface capability from
Municipal Electric Authority of Georgia to OPC
dated December 17, 1990. Purchase of TVA ITS
Interface capability from GPC to OPC dated
November 12, 1990. Sale of FLA ITS Interface
capability to GPC and from OPC dated May 30, 1995.
SEPA SEPA Contract No. 89-00-1501-912 between SEPA and
OPC dated May 28, 1991 and amended in Supplemental
Agreement No. 1 dated November 26, 1991,
Supplemental Agreement No. 2 dated May 23, 1994,
Supplemental Agreement No. 3 dated January 30,
1995. SEPA Contract No. 89-00-1501-916 between
SEPA and OPC dated December 29, 1993 and amended
in Supplemental Agreement No. 1 dated June 17,
1994, Supplemental Agreement No. 2 dated July 28,
1995, Supplemental Agreement No. 3 dated November
24, 1995.
Operating Procedures Rocky Mountain Pumped Storage Hydroelectric Plant
Coordination Procedures Agreement between
Oglethorpe Power Corporation and Georgia Power
Company effective June 1, 1995. Plant Xxxxxxx
Units #1 and #2 Dispatch Procedures Rev. 6.
Xxxxxxxx Energy Facility Operation and Maintenance
Procedure for Unit Dispatch effective June 6,
1994. Operating Procedures for use between System
Control Center and Rocky Mountain Plant effective
November 18, 1994.
EXHIBIT 3.2(ii)
[_____]*
OPC Resource Total Forced Loss Factor
and
Scheduled
Outage Rate
-------------------------------------
Hatch 17 [ ]* [ ]*
-------------------------------------
Hatch 27 [ ]* [ ]*
-------------------------------------
Rocky Mountain
-------------------------------------
o Xxxx 0 [ ]* [ ]*
-------------------------------------
o Xxxx 0 [ ]* [ ]*
-------------------------------------
o Xxxx 0 [ ]* [ ]*
-------------------------------------
Xxxxxxx 1 [ ]* [ ]*
-------------------------------------
Xxxxxxx 2 [ ]* [ ]*
-------------------------------------
Tallassee 1 & 2 [ ]* [ ]*
-------------------------------------
Vogtle 1(7) [ ]* [ ]*
-------------------------------------
Vogtle 2(7) [ ]* [ ]*
-------------------------------------
Xxxxxxx 1 [ ]* [ ]*
-------------------------------------
Xxxxxxx 2 [ ]* [ ]*
-------------------------------------
Xxxxxxx CT [ ]* [ ]*
-------------------------------------
----------
(7) Nuclear planned outages exclude ramp down period prior to full expected
planned outages above.
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 3.3
LPM's Share of OPC Resources
Resource Percentage Share
Plant Hatch
Xxxx 0 00.000% xx xxxx
Xxxx 0 44.178% of unit
Plant Vogtle
Xxxx 0 00.000% xx xxxx
Xxxx 0 44.178% of unit
Plant Xxxxxxx
Xxxx 0 00.000% xx xxxx
Xxxx 0 44.178% of unit
Plant Xxxxxxx
Xxxx 0 00.000% xx xxxx
Xxxx 0 44.178% of unit
CT 44.178% of unit
Rocky Mountain
Unit 1 44.178% of unit
Xxxx 0 00.000% xx xxxx
Xxxx 0 44.178% of unit
Tallassee 44.178% of total plant
Xxxxxxxx-Units 1 and 2 44.178% of total plant
Big Rivers Contract 44.178% of contract entitlement
Entergy 44.178% of contract entitlement
GPC Block 1 44.178% of contract entitlement
GPC Block 2 44.178% of contract entitlement
GPC Block 4 44.178% of contract entitlement
GPC Block 5 44.178% of contract entitlement
GPC Block 6 44.178% of contract entitlement
Florida Power Corp. 44.178% of contract entitlement
Southwire Company (QF) 44.178% of contract entitlement
Xxxxxxxx Xxxxxxx (QF) 44.178% of contract entitlement
Georgia Waste Systems, Inc. (QF) 44.178% of contract entitlement
Southeast Paper Manufacturing Co. (QF) 44.178% of contract entitlement
Spartan Xxxxx (QF) 44.178% of contract entitlement
EXHIBIT 3.8.1
[_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 3.8.3
[4 pages of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 4.1(b)
[_____]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.3
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.1(a)
[4 pages of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.1(b)
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.5
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.6
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.7(a)
[4 pages of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBTI 5.4.7(b)
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.8(a)
[3 pages of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 5.4.8(b)
[1 page of omitted text]*
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 17.2
Notices and Payment
LG&E Power Marketing, Inc.:
NOTICES AND CORRESPONDENCE PAYMENTS
LG&E Power Marketing Inc. PNC Xxxx, XX
00000 Fair Lake Circle, Ste. 350 for LG&E Power Marketing, Inc.
Xxxxxxx, XX 00000-0000 [_____]*
Attn: President [_____]*
FAX # (000) 000-0000 Confirmation: LG&E Power Marketing Inc.
Credit and Collections
Attn: Accounts Payable
FAX # (000) 000-0000
[_____]*
INVOICES
LG&E Power Marketing, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Trading Accounts Payable, 7th Floor
FAX # (000) 000-0000
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
Oglethorpe Power Corporation:
NOTICES AND CORRESPONDENCE PAYMENTS
0000 Xxxx Xxxxxxxx Xxxxx XxxXxxxx Xxxx Xxxxxxx
P.O. Box 1349 for Oglethorpe Power Corporation Master
Xxxxxx, Xxxxxxx 00000-0000 Account
Attn: Manager, System Control [_____]*
FAX# (000) 000-0000 [_____]*
Confirmation: Oglethorpe Power Corporation
Xxxxxxxx Xxxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
----------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to
omitted information.
EXHIBIT 17.17
List of Scheduling Members
Coweta-Fayette EMC
Sawnee EMC
