AMENDMENT NO. 1
TO
STATION AGREEMENT
Amendment dated as of October 1, 1973, to Station Agreement
dated as of January 1, 1968, among OHIO POWER COMPANY, an Ohio
corporation (herein called "Ohio"), BUCKEYE POWER, INC., an Ohio
corporation not for profit (herein called "Buckeye"), and
CARDINAL OPERATING COMPANY, an Ohio corporation (herein called
"Operating Company").
W I T N E S S E T H :
WHEREAS Ohio is an electric utility company organized and
existing under the laws of the State of Ohio and is engaged in
the generation, transmission and distribution of electric energy
in said State; and
WHEREAS Buckeye is a corporation not for profit organized
and existing under the laws of the State of Ohio which provides a
source of electric power and energy for transmission,
distribution and use within the State of Ohio by its membership,
which presently consists of twenty-eight cooperatively organized
non-profit electric companies operating in said State; and
WHEREAS Ohio is the owner of a steam electric generating
unit at the Cardinal Station located near Brilliant, Ohio and
Buckeye is the owner of a second steam electric generating unit
at the Cardinal Station and Ohio and Buckeye own as tenants in
common certain interests in real property and general facilities
at the Cardinal Station; and
WHEREAS Operating Company is a corporation organized under
the laws of the State of Ohio by Ohio and Buckeye to operate and
maintain the Cardinal Station; and
WHEREAS Ohio, Buckeye and Operating Company have entered
into a Station Agreement dated as of January 1, 1968 with respect
to the operation of the Cardinal Station; and
WHEREAS by deed dated October 4, 1973 Ohio has conveyed to
Buckeye a certain parcel of land at the Cardinal Station upon
which an additional steam electric generating unit, to be owned
by Buckeye, is being constructed; and
WHEREAS, Ohio, Buckeye and Operating Company desire to amend
the Station Agreement in connection with the development of
arrangements for the construction of the additional steam
electric generating unit at the Cardinal Station and the
operation of the Cardinal Station prior to, and after, the
completion of construction of such generating unit;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto do hereby
agree as follows:
ARTICLE ONE.
Definitions.
1. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Section 1.1 of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
1.1 The following terms when used herein shall have the
meanings specified:
Additional Cardinal Station means the aggregate of (a)
Buckeye's Additional Land, (b) Buckeye's Additional Unit, (c)
Additional Common Facilities, and (d) Buckeye's Additional
Substation Facilities.
Additional Cardinal Station Coal Stock means the tons
of coal in storage at the Cardinal Station for the Additional
Cardinal Station.
Additional Common Facilities means all items of
property associated with Buckeye's Additional Unit which are
useful and/or necessary for operation of the then existing
Cardinal Station generating units, including replacements and/or
additions from time to time made in respect thereof, and which
cannot be properly associated specifically with the Initial
Units, Buckeye's Additional Unit, the Initial Substation
Facilities or Buckeye's Additional Substation Facilities.
Additional Common Facilities are more specifically described in
Part VII of Appendix A hereto, which description may be modified
or supplemented from time to time by mutual agreement among the
parties hereto.
Additional Plans means the drawings and descriptions
relating to the Additional Cardinal Station that are listed in
Appendix B hereto.
Additional Unit Monthly Coal Requirement means the
amounts of coal (tons) allocable to the Total Net Generation of
the Additional Cardinal Station during such month.
Additional Unit Monthly Fuel Handling Costs means the
total monthly costs incurred by Operating Company for such month
for handling all fuels and ashes for the Additional Cardinal
Station, excluding coal unloading and storing costs but including
the net costs of (or credit for amount realized from) the
disposal of ashes or other by-products of combustion.
Agreement means the Station Agreement, dated as of
January 1, 1968, among Ohio, Buckeye and Operating Company, as
the same shall from time to time be amended, modified, revised
and/or supplemented.
Back-up Energy means energy determined to be associated
with Back-up Power supplied in accordance with the provisions of
Article Nine.
Back-up Power means any capacity and associated energy
supplied by Ohio pursuant to Section 9.2(a) of this Agreement to
firm up Buckeye's Total Firm Reservation.
Bonds mean the bonds which have been, and from time to
time may in the future be, issued pursuant to the provisions of
the Buckeye Mortgage.
Buckeye Additional Cardinal Station Facilities means
the aggregate of (a) Buckeye's Additional Land, (b) Buckeye's
Additional Unit, (c) Buckeye's Additional Substation Facilities,
and (d) the respective portions of the Common Land, the Initial
Cardinal Station Common Facilities and the Additional Common
Facilities allocable to Buckeye's Additional Unit.
Buckeye's Additional Land means the parcels of land
described as Buckeye's Additional Land in the description of the
Cardinal Station Site contained in Part I of Appendix A hereto,
which descriptions may be modified or supplemented from time to
time by mutual agreement among the parties hereto.
Buckeye's Additional Substation Facilities means all
items of property owned by Buckeye which are located at Cardinal
Station appurtenant to Buckeye's Additional Unit and which are
required and/or useful to connect Buckeye's Additional Unit
electrically with the Cardinal Station high voltage busses which
are classified under Accounts 351 through 359 and Account 397 of
the Uniform System of Accounts. Buckeye's Additional Substation
Facilities are described in Part X of Appendix A hereto, which
description may be modified or supplemented from time to time by
mutual agreement among the parties hereto.
Buckeye's Additional Unit means the nominally rated
615,000 kw steam electric generating unit to be located on
Buckeye's Additional Land.
Buckeye's Additional Unit is described in Part IV of
Appendix A hereto, which description may be modified or
supplemented from time to time by mutual agreement among the
parties hereto.
Buckeye's Additional Unit Capacity Reservation for any
month means the amount of capacity that Buckeye must reserve from
Buckeye's Additional Unit after Buckeye's Initial Cardinal
Station Capacity Reservation is equal to 86.9565% of the then
Buckeye's Contractual Net Capability of Buckeye's Initial Unit,
in order that Buckeye's total reservation of capacity from the
generating units owned by it, up to Buckeye's maximum entitlement
thereto, shall not be less than the Buckeye Cardinal Peak Demand
established in any month prior to and including such month.
Buckeye's Additional Unit Capacity Reservation shall be
determined in accordance with the provisions of Section 8.4.
Buckeye Additional Unit Monthly Carrying Charge means
an amount equal to (A) the sum of the fixed charges applicable to
Buckeye's investment in Buckeye Additional Cardinal Station
Facilities (including in the case of additions and/or
replacements effected in accordance with Section 3.2 the cost of
any such additions and the net cost of any such replacements to
the extent not covered by insurance or by amounts recovered from
third parties, but excluding working capital and investments in
fuel stock, materials and supplies and spare parts) for any month
represented by (i) an amount equal to the portion properly
allocable to such month of the amount which Buckeye shall be
obligated pursuant to the Second Supplemental Indenture
comprising a part of the Buckeye Mortgage to apply to the
redemption or retirement of long term indebtedness of Buckeye
evidenced by Bonds (not exceeding $204,500,000) actually required
and employed to finance Buckeye Additional Cardinal Station
Facilities, or which Buckeye shall be obligated to apply to the
purchase, redemption or retirement of Bonds issued subsequent to
the date of the acquisition by Buckeye of Buckeye's Additional
Land upon refunding of any long term indebtedness then issued to
finance any portion of Buckeye Additional Cardinal Station
Facilities as aforesaid and outstanding; provided that the
maturity of the mortgage bonds so issued upon any such refunding
shall not be prior to January 1, 2010 and that the sinking fund,
if any, provided for the purchase, redemption or retirement of
such mortgage bonds shall not result in a retirement of such
mortgage bonds in an amount in any year greater than that which
would be effected under levelized debt service of such mortgage
bonds over a period commencing with the date of the
authentication and delivery thereof and terminating on the later
of (1) January 1, 2010 and (2) the date of the maturity of such
mortgage bonds, (ii) the amounts of interest properly chargeable
by Buckeye to Accounts 427 and 431 of the Uniform System of
Accounts in respect of Buckeye's long term indebtedness referred
to in subclause (i) of this clause (A), (iii) the amounts of
amortization of debt discount or premium and expenses properly
chargeable by Buckeye to Accounts 428 and 429 in respect of
Buckeye's long term indebtedness referred to in subclause (i) of
this clause (A), and (iv) the amounts of taxes and insurance
properly chargeable by Buckeye to Accounts 408 and 924 as
applicable to Buckeye's Additional Cardinal Station Facilities,
plus (B) an amount equal to the sum of (i) an amount as a credit
in respect of any capital invested by Buckeye in Buckeye's
portion of Buckeye Additional Cardinal Station Facilities in
excess of the capital invested therein evidenced by Buckeye's
long term indebtedness referred to in subclause (A)(i) above
(including in the case of additions and/or replacements effected
in accordance with Section 3.2 the cost of any such additions and
the net cost of any such replacements to the extent not covered
by insurance or by amounts recovered from third parties, but
excluding working capital and investments in fuel stock,
materials and supplies and spare parts) computed on the basis of
a thirty-five year semi-annual capital recovery factor as shown
in Column 6 under the heading "Partial Payment" in the Financial
Compound Interest and Annuity Tables published by the Financial
Publishing Company, Fourth Edition, 1969, for a rate of eight and
one-half per cent per annum, plus (ii) an amount sufficient to
reimburse Buckeye for any amount of taxes determined to be
attributable to receipt by Buckeye of that portion of the amount
computed as provided in subclause (i) of this clause (B)
applicable to capital contributed to Buckeye by the Buckeye
Members and invested by Buckeye in the Buckeye Additional
Cardinal Station Facilities as aforesaid, after giving effect to
any allowable deductions, and properly chargeable by Buckeye to
Account 409 of the Uniform System of Accounts, so as to enable
Buckeye, after provision for such taxes, to realize the net
amount included in the amount so computed in respect of such
contributed capital, minus (C) the amount of interest and
dividend income properly credited by Buckeye for such month to
Account 419 or Account 421 of the Uniform System of Accounts in
respect of amounts accumulated for payment of principal, premium
and interest on the long term indebtedness of Buckeye referred to
in subclause (A)(i) above.
Buckeye's Additional Unit Monthly Energy for any month means
that portion of the Total Net Generation of Buckeye's Additional
Unit allocated to Buckeye for such month in accordance with the
principles set forth in Article Eight hereof.
Buckeye Cardinal Hourly Demand for any hour means the
kilowatt demand at the Cardinal Station's high-voltage busses
which is equal to the product obtained by multiplying (a) the
Power Delivery Facilities Hourly Demand plus the Ohio Edison
Transfer Points Hourly Demand (in each case as defined in the
Power Delivery Agreement) for such hour by (b) the applicable
Transmission Loss Correction Factor (determined as provided in
the Power Delivery Agreement) for Ohio's Bulk Transmission
Facilities for such hour.
Buckeye Cardinal Hourly Energy for any hour means an amount
of kilowatthours of electric energy at the Cardinal Station
high-voltage busses which is numerically equal to the Buckeye
Cardinal Hourly Demand for such hour.
Buckeye Cardinal Monthly Demand for any month means the
kilowatt demand at the Cardinal Station high-voltage busses which
is equal to the maximum Buckeye Cardinal Hourly Demand for such
month.
Buckeye Cardinal Peak Demand for any month means the maximum
Buckeye Cardinal Monthly Demand established in any month prior to
and including such month.
Buckeye's Contractual Net Capability of Buckeye's Initial
Unit and Buckeye's Additional Unit at any time means an amount
equal to the average Total Net Capability thereof as determined
in accordance with the procedure set forth in Appendix C hereto
for the then effective Ohio Maximum Peak Requirement Quarter.
Buckeye's Excess Supplementary Power Demand means an amount
of capacity, as of the high-voltage Cardinal Station busses, to
be furnished to Buckeye by Ohio in excess of the maximum
permissible amount of Buckeye's Supplementary Power Demand,
determined as provided in Section 10.3(b).
Buckeye's Initial Cardinal Station Capacity Reservation
means an amount of capacity, as of the high-voltage Cardinal
Station busses, which shall be determined in accordance with the
provisions of Section 8.4.
Buckeye's Initial Land means the parcel of land described as
Buckeye's Initial Land in the description of the Cardinal Station
Site contained in Part I of Appendix A hereto, which description
may be modified or supplemented from time to time by mutual
agreement among the parties hereto.
Buckeye's Initial Substation Facilities means the items of
property to be located at the Initial Cardinal Station described
in Part IX of Appendix A hereto, which description may be
modified or supplemented from time to time by mutual agreement
among the parties hereto.
Buckeye's Initial Unit means the nominally rated 615,000 kw
steam electric generating unit, which commenced commercial
operation on July 1, 1967. Buckeye's Initial Unit is described in
Part III of Appendix A hereto, which description may be modified
or supplemented from time to time by mutual agreement among the
parties hereto.
Buckeye Initial Unit Monthly Carrying Charge means an amount
equal to (A) the sum of the fixed charges applicable to Buckeye's
investment in Buckeye's Portion of the Initial Cardinal Station
(including in the case of additions and/or replacements effected
in accordance with Section 3.2 the cost of any such additions and
the net cost of any such replacements to the extent not covered
by insurance or by amounts recovered from third parties, but
excluding working capital and investments in fuel stock,
materials and supplies and spare parts) for any month represented
by (i) an amount equal to the portion properly allocable to such
month of the amount which Buckeye shall be obligated pursuant to
Section 8.01 of the Buckeye Mortgage to apply to the redemption
or retirement of long term indebtedness of Buckeye evidenced by
Bonds of the 1997 Series issued under the Buckeye Mortgage, or
which Buckeye shall be obligated to apply to the purchase,
redemption or retirement of any long term indebtedness of Buckeye
evidenced by mortgage bonds issued subsequent to June 27, 1968
upon refunding of any long term indebtedness then issued and
outstanding as aforesaid; provided that the maturity of the
mortgage bonds so issued upon any such refunding shall not be
prior to April 1, 1997 and that the sinking fund, if any,
provided for the purchase, redemption or retirement of such
mortgage bonds shall not result in a retirement of such mortgage
bonds in an amount in any year greater than that which would be
effected under levelized debt service of such mortgage bonds over
a period commencing with the date of the authentication and
delivery thereof and terminating on the later of (1) April 1,
1997 and (2) the date of the maturity of such mortgage bonds,
(ii) the amounts of interest properly chargeable by Buckeye to
Accounts 427 and 431 of the Uniform System of Accounts in respect
of Buckeye's long term indebtedness referred to in subclause (i)
of this clause (A) and any other indebtedness for borrowed money
incurred by Buckeye on the Closing Date under the Purchase
Agreement dated as of January 1, 1968 between Buckeye and Ohio as
an incident to consummation of the transactions provided for
therein, (iii) the amounts of amortization of debt discount or
premium and expenses properly chargeable by Buckeye to Accounts
428 and 429 in respect of Buckeye's long term indebtedness
referred to in subclause (i) of this clause (A), (iv) the amounts
of taxes and insurance properly chargeable by Buckeye to Accounts
408 and 924 as applicable to Buckeye's Portion of the Initial
Cardinal Station, and (v) during such period as shall be required
to produce an amount equal to one year's requirement of debt
service on the Bonds of the 1997 Series referred to in subclause
(i) of this clause (A), an amount equal to 10% of the sum of the
amounts specified in subclauses (i) and (ii) of this clause (A),
plus (B) an amount equal to the sum of (i) an amount as a credit
in respect of any capital invested by Buckeye in Buckeye's
Portion of the Initial Cardinal Station in excess of the capital
invested therein evidenced by Buckeye's long term indebtedness
referred to in subclause (A)(i) above (including in the case of
additions and/or replacements effected in accordance with Section
3.2 the cost of any such additions and the net cost of any such
replacements to the extent not covered by insurance or by amounts
recovered from third parties, but excluding working capital and
investments in fuel stock, materials and supplies and spare
parts) computed on the basis of a thirty-five year semi-annual
capital recovery factor as shown in Column 6 under the heading
"Partial Payment" in the Financial Compound Interest and Annuity
Tables published by the Financial Publishing Company, Third
Edition, 1961, for a rate of six and three-quarters per cent per
annum, plus (ii) an amount sufficient to reimburse Buckeye for
any amount of taxes determined to be attributable to receipt by
Buckeye of that portion of the amount computed as provided in
subclause (i) of this clause (B) applicable to capital
contributed to Buckeye by the Buckeye Members and invested by
Buckeye in Buckeye's Portion of the Initial Cardinal Station as
aforesaid, after giving effect to any allowable deductions, and
properly chargeable by Buckeye to Account 409 of the Uniform
System of Accounts, so as to enable Buckeye, after provision for
such taxes, to realize the net amount included in the amount so
computed in respect of such contributed capital, minus (C) the
amount of interest and dividend income properly credited by
Buckeye for such month to Account 419 or Account 421 of the
Uniform System of Accounts in respect of amounts accumulated for
payment of principal, premium and interest on the long term
indebtedness of Buckeye referred to in subclause (A)(i) above,
including the debt service reserve to be established as
contemplated by subclause (A)(v) above.
Buckeye's Initial Unit Monthly Energy for any month means
Buckeye's portion of the Total Net Generation of Initial Cardinal
Station for such month determined in accordance with the
principles set forth in Article Eight hereof.
Buckeye's Interim Power Reservation means an amount of
capacity, as of the high-voltage Cardinal Station busses, which
shall be determined, for any month, in accordance with the
provisions of Section 11.1.
Buckeye's Interim Power means any capacity and associated
energy supplied to Buckeye by Ohio in excess of a maximum
entitlement of Buckeye's Initial Cardinal Station Capacity
Reservation during the Interim Period as provided in Article
Eleven.
Buckeye Member means (a) any one of the twenty-eight
electric companies organized and operated not for profit on a
cooperative basis which are operating in the State of Ohio at the
date of this Agreement and which together constitute the present
membership of Buckeye, (b) any electric company similarly
organized and operated which may hereafter be or become a member
of Buckeye, and (c) any successor to any existing Buckeye Member
or Buckeye Members except (i) a successor which is at the date of
this Agreement a public utility included as such under the
definition of that term contained in Section 4905.02 of the
Revised Code of Ohio or which is a successor to any such public
utility, or (ii) Buckeye or a successor to Buckeye, or (iii) a
successor which is a political subdivision of the State of Ohio
or a municipal corporation, bureau or department organized by or
serving any such political subdivision or any other governmental
agency or any successor to any of the foregoing.
Buckeye Monthly Carrying Charge means an amount equal to the
sum of the Buckeye Initial Unit Monthly Carrying Charge and the
Buckeye Additional Unit Monthly Carrying Charge. Buckeye agrees
to maintain accounts pursuant to the requirements of the Uniform
System of Accounts: provided, however, that nothing herein
contained shall be deemed to preclude Buckeye from maintaining
such other accounts and records as it, in its sole discretion,
shall determine.
Buckeye's Monthly Energy means the sum of Buckeye's Initial
Unit Monthly Energy and Buckeye's Additional Unit Monthly Energy.
Buckeye Mortgage means the Mortgage and Deed of Trust dated
as of April 1, 1968, as amended by the First Supplemental
Indenture and by the Second Supplemental Indenture thereto, made
by Buckeye with The Ohio National Bank as Trustee. Whenever
reference is made in this Agreement to the Trustees under the
Buckeye Mortgage, or to the corporate trustee under the Buckeye
Mortgage, such terms shall mean the corporations or corporation
which shall at the time in question be acting in such capacities
or capacity under the Buckeye Mortgage.
Buckeye's Portion of the Initial Cardinal Station means the
aggregate of (a) Buckeye's Initial Land, (b) Buckeye's Initial
Unit, (c) Buckeye's Initial Substation Facilities and (d) the
respective portions of the Common Land, Joint Land, Initial
Cardinal Station General Facilities and the Initial Cardinal
Station Common Facilities allocable to Buckeye's Initial Unit.
Buckeye Power Requirement means the aggregate requirements
of Buckeye for electric power and energy from time to time for
sale and delivery to the Buckeye Members and for resale and
delivery by the Buckeye Members to customers in the State of Ohio
for ultimate consumption within the State of Ohio or use by the
Buckeye Members within said State in the operation of their
respective facilities and systems; provided, however, that
consistent with the desire and objective of all parties to
minimize any unnecessary or uneconomic duplication of facilities,
there shall not be included in the Buckeye Power Requirement any
quantity of electric power and/or energy furnished to any
consumer when the furnishing of power and/or energy to such
consumer by a Buckeye Member is proscribed by the law of the
State of Ohio reflected in Section 4905.26.1, Revised Code of
Ohio, as said Section is in effect at the date of this Agreement.
It is understood and agreed that the term "consumer" as used in
said Section 4905.26.1 applies to any customer of a power and/or
energy supplier whether served at wholesale or at retail.
Buckeye's Summer Interim Power Reservation means Buckeye's
Interim Power Reservation in a Summer Period, as determined, for
any Summer Month, in accordance with the provisions of Section
11.1.
Buckeye's Supplementary Power means the additional capacity
and associated energy to be furnished to Buckeye by Ohio in
excess of a maximum entitlement of (a) Buckeye's Initial Cardinal
Station Capacity Reservation, plus (b) Buckeye's Additional Unit
Capacity Reservation, if any, determined as provided in Sections
10.3 and 10.4.
Buckeye's Supplementary Power Demand means an amount of
capacity, as of the high-voltage Cardinal Station busses, which
is available to Buckeye in excess of 86.9565% of Buckeye's
Contractual Net Capability of Buckeye's Initial Unit and
Buckeye's Additional Unit up to 50% of the Total Net Capability
of Buckeye's Units determined as provided in Section 10.3(a).
Buckeye's Total Cardinal Station Capacity Reservation means
an amount of capacity equal to the sum of (a) Buckeye's Initial
Cardinal Station Capacity Reservation, and (b) Buckeye's
Additional Unit Capacity Reservation, if any, and (c) Buckeye's
Supplementary Power Demand.
Buckeye's Total Firm Reservation means an amount of capacity
equal to the sum of (a) Buckeye's Total Cardinal Station Capacity
Reservation, and (b) Buckeye's Excess Supplementary Power Demand.
Buckeye's Units means Buckeye's Initial Unit and Buckeye's
Additional Unit.
Buckeye's Unrecovered Excess Capacity Account at any time
means the total amount in dollars by which the cumulative total
amount of settlements by Ohio to Buckeye for Contract Excess
Capacity to such time exceeds the cumulative total amount of
settlements by Buckeye to Ohio for Buckeye's Supplementary Power
Demand associated with Buckeye's Supplementary Power, computed
from time to time pursuant to the provisions of Section 10.3 in
effect at the particular time in question.
Buckeye's Winter Interim Power Reservation means Buckeye's
Interim Power Reservation in a Winter Period, as determined, for
any Winter Month, in accordance with the provisions of Section
11.1.
Cardinal Station means the steam electric generating station
located near Brilliant, Ohio, as from time to time modified or
expanded as contemplated by this Agreement or otherwise,
including the Initial Cardinal Station and the Additional
Cardinal Station.
Cardinal Station Monthly Maintenance Cost in any month means
the total maintenance expenses allocable to the Cardinal Station
for such month.
Cardinal Station Monthly Prorated Capacity Cost in any month
means the total expense charged to Operation and Maintenance
Expense Accounts of the Uniform System of Accounts, other than
expenses for fuel and maintenance, for such month allocable to
the Cardinal Station, which shall not include any part of either
Owner's administrative expenses, but shall include Cardinal
Station overhead consisting of (a) any administrative and general
expenses which are incurred directly by Operating Company and (b)
the costs to Operating Company for special services of the
character to be rendered by American Electric Power Service
Corporation under the agreement referred to in Section 14.11.
Cardinal Station Operating Committee means the committee
established as provided in Section 15.1.
Cardinal Station Site means the several parcels of land
described as the Cardinal Station Site in the description of the
Cardinal Station Site contained in Part I of Appendix A hereto,
which descriptions may be modified or supplemented from time to
time by mutual agreement among the parties hereto.
Cardinal Units means Ohio's Initial Unit, Buckeye's Initial
Unit and Buckeye's Additional Unit.
Common Land means the parcels of land jointly owned by
Buckeye and Ohio described as the Common Land in the description
of the Cardinal Station Site contained in Part I of Appendix A
hereto, which descriptions may be modified or supplemented from
time to time by mutual agreement among the parties hereto.
Company means any one of the Ohio utility companies
(including Ohio) which is a party to the Power Delivery
Agreement.
Contract Excess Capacity in any month means an amount of
capacity by which the total Buckeye's Contractual Net Capability
of Buckeye's Units in such month is in excess of an amount of
capacity equal to the sum of (a) 115% of Buckeye's Initial
Cardinal Station Capacity Reservation and (b) 115% of Buckeye's
Additional Unit Capacity Reservation, if any.
Date of Commercial Operation means February 1, 1967 in the
case of Ohio's Initial Unit, July 1, 1967 in the case of
Buckeye's Initial Unit, and such date as shall be determined (in
accordance with the Uniform System of Accounts) by mutual
agreement between Ohio and Buckeye in the case of Buckeye's
Additional Unit.
Effective Date of Amendment No. 1 to the Station Agreement
means the date on which Amendment No. 1 to the Station Agreement,
dated as of October 1, 1973, became effective pursuant to Section
18.1 of said Amendment No. 1.
General Facilities means all items of property at Cardinal
Station that comprise the Initial Cardinal Station General
Facilities, the Initial Cardinal Station Common Facilities and
the Additional Common Facilities.
Initial Cardinal Station means the aggregate of (a) Ohio's
Land, Buckeye's Initial Land and the Joint Land, (b) Buckeye's
Initial Unit, (c) Ohio's Initial Unit, (d) the Initial Cardinal
Station General Facilities, (e) Buckeye's Initial Substation
Facilities, (f) Ohio's Substation Facilities, including the
Substation Land, and (g) the respective portions of the Common
Land and the Initial Cardinal Station Common Facilities allocable
to Buckeye's Initial Unit and Ohio's Initial Unit.
Initial Cardinal Station Coal Stock means the tons of coal
in storage at the Cardinal Station for the Initial Cardinal
Station.
Initial Cardinal Station Common Facilities means all items
of property associated with the Initial Cardinal Station which
are useful and/or necessary for operation of the Cardinal Units
and which cannot be properly associated specifically with Ohio's
Initial Unit. Buckeye's Initial Unit, Ohio's Substation
Facilities, Buckeye's Initial Substation Facilities or Buckeye's
Additional Substation Facilities. The Initial Cardinal Station
Common Facilities are more specifically described in Part Vl of
Appendix A hereto, which description may be modified or
supplemented from time to time by mutual agreement among the
parties hereto.
Initial Cardinal Station General Facilities means all items
of property associated with the Initial Cardinal Station which
are useful and/or necessary for operation of the Initial Units
but not Buckeye's Additional Unit, and which cannot be properly
associated specifically with Ohio's Initial Unit. Buckeye's
Initial Unit, Ohio's Substation Facilities or Buckeye's Initial
Substation Facilities. The Initial Cardinal Station General
Facilities are more specifically described in Part V of Appendix
A hereto, which description may be modified or supplemented from
time to time by mutual agreement among the parties hereto.
Initial Plans mean the drawings and descriptions relating to
the Initial Cardinal Station that are listed in Appendix B
hereto.
Initial Unit means either Ohio's Initial Unit or Buckeye's
Initial Unit.
Initial Units Monthly Coal Requirement in any month means
the amounts of coal (tons) allocable to the Total Net Generation
of the Initial Cardinal Station during such month.
Initial Units Monthly Fuel Handling Cost in any month means
the total monthly costs incurred by Operating Company for such
month for handling all fuels and ashes for the Initial Cardinal
Station, excluding coal unloading and storing costs but including
the net cost of (or credit for amount realized from) the disposal
of ashes or other by-products of combustion.
Interim Period means, with respect to any period prior to
the Date of Commercial Operation of Buckeye's Additional Unit,
the period commencing on the date on which the balance of dollars
in Buckeye's Unrecovered Excess Capacity Account shall become
zero, and terminating on the earlier of (i) the Date of
Commercial Operation of Buckeye's Additional Unit or (ii) October
31, 1977.
Joint Land means the parcels of land jointly owned by
Buckeye and Ohio described as Joint Land in the description of
the Cardinal Station Site contained in Part I of Appendix A
hereto, which descriptions may be modified or supplemented from
time to time by mutual agreement among the parties hereto.
Major Spare Parts means the spare parts usable at the
Cardinal Station listed in Appendix E hereto and in any
subsequent addition to said Appendix E made in accordance with
the provisions of Section 4.1.
Maximum Permissible Continuous Loading means the maximum
continuous loading capability of any generating unit as
established in accordance with the procedure set forth in
Appendix C hereto.
Ohio Additional Unit Monthly Energy for any month means that
portion of the Total Net Generation of Buckeye's Additional Unit
allocated to Ohio for such month in accordance with the
principles set forth in Article Eight.
Ohio Associate means any company (other than (i) Ohio and
(ii) a company of which 50% or less of the outstanding voting
securities of which is owned, directly or indirectly, by American
Electric Power Company, Inc.) in the holding company system of
American Electric Power Company, Inc., as the term "holding
company system" is defined in the Public Utility Holding Company
Act of 1935.
Ohio's Average Excess Capacity Cost at any date means the
average adjusted cost to Ohio for Contract Excess Capacity at
such date determined as provided in Section 10.3(g).
Ohio's Back-up Stations means Ohio Generating Stations and
Ohio's Initial Unit.
Ohio's Bulk Transmission Facilities means the 138-kv, 345-kv
and 765-kv transmission facilities owned by Ohio, and such higher
voltage transmission facilities as Ohio may install and own
subsequent to the date hereof, which are to be made available by
Ohio within the State of Ohio pursuant to the Power Delivery
Agreement.
Ohio Generating Stations means Ohio's presently operating
Tidd Station, Philo Station and Muskingum River Station and the
Gavin Station presently under construction and owned by Ohio
Electric Company, a wholly owned subsidiary of Ohio. Other
future additions made to the major generating capacity of Ohio or
any wholly owned subsidiary of Ohio located within the State of
Ohio will be included as Ohio Generating Stations as of the first
day of the month following the month in which the date of
commercial operation of such new generating capacity shall occur;
provided, however, that new generating capacity installed by Ohio
which is substantially different in design and operating
characteristics from then existing steam generating capacity
constituting Ohio Generating Stations or which shall have been
installed by Ohio as a result of unusual circumstances shall not
be included as Ohio Generating Stations for purposes of this
Agreement except by mutual agreement between Ohio and Buckeye.
Generating capacity transferred to others or retired by Ohio or
held in cold reserve and generating capacity determined by mutual
agreement between Ohio and Buckeye no longer to constitute part
of the major generating capacity of Ohio within the State of Ohio
shall be excluded as Ohio Generating Stations.
Ohio's Initial Unit means the nominally rated 615,000 kw
steam electric generating unit which generating unit commenced
commercial operation on February 1, 1967. Ohio's Initial Unit is
described in Part 11 of Appendix A hereto, which description may
be modified or supplemented from time to time by mutual agreement
among the parties hereto.
Ohio's Initial Units Monthly Energy for any month means
Ohio's portion of the Total Net Generation of the Initial
Cardinal Station for such month determined in accordance with the
principles set forth in Article Eight hereof.
Ohio's Land means the parcel of land described as Ohio's
Land in the description of the Cardinal Station Site contained in
Part I of Appendix A hereto, which description may be modified or
supplemented from time to time by mutual agreement among the
parties hereto.
Ohio Maximum Peak Requirement in effect for any month means
the largest Ohio Monthly Peak Demand established in any month up
to and including such month.
Ohio Maximum Peak Requirement Quarter at any time means that
period of three consecutive calendar months which includes the
month in which the Ohio Maximum Peak Requirement then in effect
was established, the month immediately preceding and the month
immediately following, and shall become effective as of the month
in which such Ohio Maximum Peak Requirement was established.
Ohio's Monthly Energy means the sum of Ohio's Initial Units
Monthly Energy and Ohio Additional Unit Monthly Energy.
Ohio Monthly Peak Demand for any month means the largest
kilowatt demand of Ohio for such month as reported by the
American Electric Power Service Corporation in its Daily Summary
of Generation and Load for Ohio under the caption or heading
"Ohio System Load" or on such other form as may hereafter be used
by Ohio or the American Electric Power Service Corporation in
lieu thereof to report such information.
Ohio Stations Average Fuel and Maintenance Cost for any
month shall be determined for such month by dividing (a) the sum
of (i) the aggregate fuel expenses for the Ohio Back-up Stations
as recorded on line 2 of Form S-68 for each such station,
prepared by the Statistical Department of American Electric Power
Service Corporation, or its successor, and (ii) the aggregate
maintenance expenses at the Ohio Back-up Stations as recorded on
line 8 of such Form S-68 for each such station, by (b) the
aggregate net kilowatthour generation recorded for such month for
the Ohio Back-up Stations as recorded on line 7 of the AEP System
Power Production and Control Generating Plant Performance Data
Report for each such station. The Form S-68 and the AEP System
Power Production and Control Generating Plant Performance Data
Report, and the lines thereof, referred to in this paragraph
shall be deemed to include any form or reports, and the lines
thereof, which may be substituted therefor which contains
information from which such data can be derived.
Ohio's Substation Facilities means the items of property
located at the Initial Cardinal Station described in Part VIII of
Appendix A hereto, which description may be modified or
supplemented from time to time by mutual agreement among the
parties hereto.
Operating Company means Cardinal Operating Company, an Ohio
corporation organized by Ohio and Buckeye to operate Cardinal
Station as herein provided.
Owner means either Ohio or Buckeye or their respective
successors in interest at the Cardinal Station, as the case may
be.
Owners means Ohio and Buckeye or their respective successors
in interest at the Cardinal Station collectively.
Power Delivery Agreement means that certain agreement dated
as of January 1, 1968 among the Ohio utility companies (including
Ohio) named therein and Buckeye, relating, among other things, to
the delivery of electric power and energy to Buckeye for sale by
Buckeye to the Buckeye Members.
Property Unit means either (i) a unit of property as such
units are defined in the Retirement Unit List, or (ii) an item of
property, the investment in which at the time of commercial
operation thereof is in excess of $25,000, unless the Owners
shall mutually agree that such item of property shall not be a
Property Unit.
Replacement Power means power which Ohio shall supply,
pursuant to the provisions of Section 9.2(d) of this Agreement,
during any period in a calendar year when (i) the capability of
Buckeye's Initial Unit and/or Buckeye's Additional Unit shall be
curtailed, and/or Buckeye's Initial Unit and/or Buckeye's
Additional Unit shall be removed from service, for any reason,
including preventative maintenance and/or repairs, shortages of
fuels, or as a result of laws and/or rules and regulations
affecting emissions of pollutants, discharge of wastes, or other
environmental conditions, and (ii) Buckeye shall not have any
entitlement to Back-up Power under Section 9.2(a) of this
Agreement.
Retirement Unit List means the publication listing
retirement units for steam production property kept by Ohio in
accordance with applicable requirements of regulatory authorities
and heretofore delivered to Buckeye by Ohio or any revised
Retirement Unit List substituted therefor pursuant to Section
3.4.
Summer Month means any calendar month in a Summer Period.
Summer Period means the period from May 1 through October 31
of any year.
Substation Land means the parcel of land described as
Substation Land in the description of the Cardinal Station Site
contained in Part I of Appendix A hereto, which description may
be modified or supplemented from time to time by mutual agreement
among the parties hereto.
Surplus Capacity in any month means an amount of capacity by
which 85% of the sum of Buckeye's Initial Cardinal Station
Capacity Reservation and Buckeye's Additional Unit Capacity
Reservation as in effect for such month is in excess of the
maximum Buckeye Cardinal Monthly Demand established in any month
during the 15 month period ending with and including such month:
provided, however, that there shall not be taken into account in
determining the quantity of Surplus Capacity in any month any
reduction in Buckeye's demand for electric power and energy for
sale and delivery by Buckeye to the Buckeye Members hereunder
resulting from the sale or other disposition of facilities or the
abandonment of facilities by a Buckeye Member or from other
action voluntarily taken by a Buckeye Member which has the effect
of reducing its requirements for electric power and energy,
whether or not the sale, disposition or abandonment of facilities
or other action resulting in such reduction in demand was
consented to by Buckeye.
Total Net Available Capability of any unit at the
Cardinal Station for any hour means the Total Net Capability of
such unit, adjusted for circulating water temperature, fuel
quality, equipment condition and outages and other factors
affecting capability that may prevail in such hour.
Total Net Capability of any generating unit or
combination of generating units means the total net capability of
such unit or units in kilowatts as of the high voltage Cardinal
Station busses determined in accordance with the provisions of
Appendix C hereto.
Total Net Generation in any month, as applied to any
generating unit or combination of generating units, means the net
electrical output of such unit or units during such month as of
the high-voltage busses of Cardinal Station, determined in
accordance with the provisions of Appendix C hereto.
Uniform System of Accounts means the uniform system of
accounts prescribed for Ohio by the Public Utilities Commission
of the State of Ohio as in effect on January 1, 1968.
Winter Month means any calendar month in a Winter
Period.
Winter Period means the period from November 1 of any
year through April 30 of the succeeding year.
provided, however, that notwithstanding the foregoing provisions
of this Section 1 of Amendment No. 1 to the Station Agreement,
the definitions contained in Section 1.1 of the Station
Agreement, dated as of January 1, 1968, among Ohio Buckeye and
Operating Company, shall be used during the period between the
Effective Dale of Amendment No. 1 to the Station Agreement and
the Date of Commercial Operation of Buckeye's Additional Unit for
the purpose of making allocations and effecting determinations
pursuant to the provisions of Articles Four, Five, Seven, Eight,
Nine and Ten of the Station Agreement.
ARTICLE TWO.
Ownership of Facilities.
2. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Section 2.1, 2.2, 2.3, 2.4, 2.5,
2.6, 2.7, 2.8, 2.9 and 2.10 of the Station Agreement in their
entirety and in lieu thereof substitute the following:
2.1 (a) Buckeye's Initial Land and Buckeye's Initial Unit
located thereon and Buckeye's Additional Land and Buckeye's
Additional Unit to be located thereon shall be owned by Buckeye
and Buckeye's Initial Unit and Buckeye's Additional Unit shall be
operated by Operating Company in accordance with the provisions
of this Agreement.
(b) Ohio's Land and Ohio's Initial Unit located thereon
shall he owned by Ohio, and Ohio's Initial Unit shall be operated
by Operating Company in accordance with the provisions of this
Agreement.
(c) Substation Land shall be owned by Ohio subject to the
right of Buckeye to own any of Buckeye's Initial Substation
Facilities and Buckeye's Additional Substation Facilities located
thereon.
(d) Buckeye's Initial Substation Facilities and Buckeye's
Additional Substation Facilities shall be owned by Buckeye and
shall be located on Buckeye's Initial Land, Buckeye's Additional
Land, Joint Land and Substation Land.
(e) Ohio's Substation Facilities shall be owned by Ohio and
shall be located on Ohio's Land, Joint Land and Substation Land.
(f) The Joint Land and the Initial Cardinal Station General
Facilities shall be owned by Buckeye and Ohio as tenants in
common of the whole thereof, and each of them shall have an
undivided one-half interest therein. The ownership of the
Initial Cardinal Station General Facilities, the Initial Cardinal
Station Common Facilities and the Additional Common Facilities,
by Buckeye and Ohio as tenants in common shall exist regardless
of whether in fact any one or more parts of the Initial Cardinal
Station General Facilities, the Initial Cardinal Station Common
Facilities or the Additional Common Facilities shall be affixed
to real property owned by either Buckeye or Ohio.
(g) The Common Land, the Initial Cardinal Station Common
Facilities and the Additional Common Facilities shall be owned by
Buckeye and Ohio as tenants in common of the whole thereof. Ohio
shall have an undivided one-half interest in the Common Land, the
Initial Cardinal Station Common Facilities and the Additional
Common Facilities and Buckeye shall have an undivided one-half
interest in the Common Land, the Initial Cardinal Station Common
Facilities and the Additional Common Facilities. Buckeye and
Ohio recognize that, although each is to have an undivided
one-half ownership interest in the Additional Common Facilities,
the property constituting such Additional Common Facilities will
not only be useful and/or necessary for operation of Buckeye's
Additional Unit, but will also be useful and/or necessary for
operation of Buckeye's Initial Unit and/or Ohio's Initial Unit,
and accordingly agree that the construction costs of such
Additional Common Facilities will be allocated between Buckeye
and Ohio in such manner as will reflect the relationships of such
Additional Common Facilities to the three generating units
involved.
(h) Ohio and Buckeye will execute and deliver any and all
such instruments and documents as may from time to time be
reasonably requested by one from the other to confirm their
respective property rights and interests in and to the several
parcels of real property constituting the Cardinal Station Site
and in and to the facilities constituting the Cardinal Station,
or any of them, including requisite easements for access thereto,
as contemplated by the Power Delivery Agreement or as herein
provided.
2.2 Buckeye and Ohio hereby agree to grant to each other
appropriate permanent easements to utilize such coal storage
facilities, circulating water tunnels, salt storage basins, water
treatment facilities and such other facilities as may be the
property of one Owner and are necessary for the operation of the
other Owner's Initial Unit and/or Buckeye's Additional Unit, to
the extent that such use will not impair the operation of either
Owner's Initial Unit and/or Buckeye's Additional Unit.
2.3 Ohio hereby agrees to grant to Buckeye and/or Operating
Company from time to time easements permitting Buckeye to come
upon lands owned by Ohio and constituting part of the site of
Ohio's existing Tidd Station for purposes of ingress or egress to
or from the Cardinal Station and/or for such other purposes as
may be necessary and/or useful to either of them, as the case may
be, for carrying out their respective responsibilities in respect
of ownership and/or operation of any facilities at the Cardinal
Station, provided that such entering upon such lands owned by
Ohio shall not interfere with the placement of any facilities by
Ohio upon such lands or with the operation of the Tidd Station.
2.4 Buckeye hereby agrees to grant to Ohio from time to time
easements permitting Ohio to place upon portions of the Cardinal
Station Site owned by Buckeye or by Buckeye and Ohio as tenants
in common, such ash disposal lines, water wells and water lines
and sewerage and/or drain lines as may be necessary and/or useful
in connection with the operation of Ohio's existing Tidd Station,
and to come upon any such parts of the Cardinal Station Site for
the purposes of ingress or egress to or from the Tidd Station
and/or for the operation of the Tidd Station, provided that the
placement of any such facilities and the entering by Ohio upon
such lands shall not interfere with the operation of any
facilities owned by Buckeye, or by Buckeye and Ohio as tenants in
common, at the Cardinal Station.
2.5 Neither Ohio nor Buckeye shall, so long as this
Agreement shall remain in effect, bring any action for partition
in respect of the Joint Land, the Common Land and/or the property
described in Appendix A as Initial Cardinal Station General
Facilities, as Initial Cardinal Station Common Facilities, and as
Additional Common Facilities.
2.6 (a) Ohio shall pay any property taxes applicable to
Ohio's Land, and to its improvements thereon, and Buckeye shall
pay any property taxes applicable to Buckeye's Initial Land and
Buckeye's Additional Land, and to its improvements thereon. Ohio
and Buckeye shall pay the property taxes applicable to their
respective ownership interests in the Joint Land, the Common
Land, and any improvements thereon, and in the General
Facilities. Ohio shall pay any property taxes applicable to the
Substation Land and to its improvements thereon, and Buckeye
shall pay any property taxes applicable to its improvements
located on the Substation Land.
(b) Each Owner agrees adequately to insure its respective
properties and property interests at the Cardinal Station,
whether held by it in its individual capacity or as tenant in
common with the other, with mutually agreeable coverage against
public liability losses resulting from fire, machinery breakdown,
explosion of pressure vessels and other risks customarily insured
against in the case of comparable power plant facilities and each
policy of insurance obtained by either Owner shall name the other
Owner and Operating Company as persons insured thereunder.
2.7 In the event that any adverse claim should be asserted
by any third party against the Cardinal Station Site or any part
thereof, whether owned by Ohio or Buckeye or Ohio and Buckeye as
tenants in common, which is based or purports to be based on an
alleged defect in title to the property constituting the subject
of such claim, Ohio and Buckeye shall cooperate in taking such
action as may be required to defend against such claim and shall
share equally all costs and expenses incurred in connection with
such claim and defense.
2.8 (a) In the event that the quantity of Surplus Capacity
which Ohio shall become obligated to purchase from Buckeye
pursuant to Section 10.2 shall equal or exceed 25% of Buckeye's
Additional Unit Capacity Reservation at the time in effect and if
at the beginning of any calendar quarter the sum of the Buckeye
Cardinal Monthly Demands for the preceding twelve calendar months
is less than 75% of the sum of the Buckeye Cardinal Monthly
Demands for the twelve calendar months ending with the month in
which the then effective Buckeye Cardinal Peak Demand was
established, then Ohio shall have the right and option,
exercisable at any time during the calendar quarter at the
beginning of which the aforesaid conditions existed to acquire
the property, property interests and facilities owned by Buckeye
and constituting part of the Cardinal Station at a price
determined as provided in subsection (e) of this Section. In the
event that the right and option granted to Ohio by this
subsection (a) shall mature at the beginning of any calendar
quarter and shall not be exercised by Ohio prior to the end of
such calendar quarter as herein provided, then the right to
exercise such right and option by reason of the conditions
existing at the beginning of such calendar quarter shall expire,
but the failure of Ohio to exercise such right and option on the
basis of conditions existing at the beginning of any particular
calendar quarter shall not affect its right to exercise such
right and option on the basis of conditions existing at the
beginning of any subsequent calendar quarter. The right and
option granted to Ohio by this subsection (a) shall terminate
upon termination of the obligation of Ohio to purchase Surplus
Capacity hereunder, whether such obligation be terminated by
termination of this Agreement, by mutual agreement between Ohio
and Buckeye, pursuant to Section 10.2 of this Agreement, or
otherwise, and, if Buckeye shall release Ohio from its obligation
to purchase Surplus Capacity hereunder, then Ohio may not, so
long as such release shall remain in effect, exercise the right
and option granted to it by this subsection (a). If the quantity
of Surplus Capacity to be purchased by Ohio hereunder shall equal
or exceed 25% of any theretofore established Buckeye Cardinal
Peak Demand, Buckeye may at any time and from time to time
release Ohio from its obligation to purchase such Surplus
Capacity, upon delivery of notice in writing to Ohio not less
than thirty nor more than ninety days prior to the effective date
of such notice, and any such release by Buckeye shall remain in
effect for not less than thirty-six months from the effective
date of the notice so given and may be terminated only by notice
in writing to Ohio not less than thirty-six months from the date
specified by Buckeye for termination thereof. In the event that
Ohio shall exercise the right and option granted to it by this
subsection (a) as herein provided, settlement shall be made, or
performance tendered, within sixty days after the date of such
exercise.
(b) In the event that either Buckeye's Initial Unit or
Buckeye's Additional Unit, or both, including associated
facilities, owned by Buckeye at the Cardinal Station is no longer
being utilized and is no longer intended to be utilized for the
purpose of furnishing electric power and energy required by the
Buckeye Members, and Buckeye shall have notified Ohio to that
effect and to the effect that it desires to dispose thereof, then
Ohio shall have the right and option, exercisable at any time
during the twelve-month period following the date of such notice,
to acquire such generating unit or units and associated
facilities at a price determined as provided in subsection (e) of
this Section; provided, however, that if at the date of any
notice given by Buckeye to Ohio as aforesaid all or any part of
the generating unit or units, including associated facilities, to
which such notice relates, is subject to the lien of the Buckeye
Mortgage or to any other lien securing indebtedness of Buckeye
for money borrowed, then such notice shall further state that
such generating unit or units and any such associated facilities
will be transferred and conveyed by Buckeye to Ohio upon exercise
by Ohio of the right and option granted to Ohio by this
subsection (b) free and clear of the lien of the Buckeye Mortgage
or of any such other lien; and provided further that the failure
of Buckeye to transfer such generating unit or units and such
associated facilities free and clear of the lien of the Buckeye
Mortgage or of any such other lien shall render null and void any
notice given by Buckeye to Ohio as aforesaid so that both Ohio
and Buckeye shall be restored to their respective positions prior
to the giving of such notice in all respects as though such
notice had not been given. In the event that the right and option
granted to Ohio by this subsection (b) shall mature as to any
generating unit owned by Buckeye at the Cardinal Station and
shall not be exercised by Ohio within the twelve-month period
herein specified for that purpose, then such right and option
shall terminate as to such generating unit following expiration
of said twelve-month period. The right and option granted to
Ohio by this subsection (b) shall run with the generating units
and associated facilities owned by Buckeye at the Cardinal
Station, shall be binding upon successors in title, shall survive
the termination of this Agreement for any reason and shall
continue in full force and effect until terminated as provided in
subsection (g) of this Section.
(c) In the event that the net worth of Buckeye shall, at any
time, fail to equal at least the amount, if any, by which the
price payable by Ohio for the property, property interests and
facilities properly recorded by Buckeye in Account 101 of the
Uniform System of Accounts determined as provided in subsection
(e) of this Section shall be less than the total amount
(including accrued interest, if any) which Buckeye would then be
required to pay to redeem, at the principal amount thereof and
the then applicable Regular Redemption Premium (as such term is
defined in the Buckeye Mortgage), all the bonds outstanding under
the Buckeye Mortgage, Ohio shall have the right and option,
exercisable within 150 days after the later of (i) the occurrence
of such event, and (ii) the date on which Ohio shall receive from
Buckeye the balance sheet or other financial statements referred
to below indicating the occurrence of such event, to purchase all
of the property, property interests and facilities owned by
Buckeye and recorded in said Account 101 at a price determined as
provided in subsection (e) of this Section; provided, however,
that this right and option shall not be exercisable by Ohio (I)
unless Ohio has first given written notice to Buckeye that it
proposes to exercise such option and Buckeye shall not have
established to the reasonable satisfaction of Ohio within 90 days
after receipt of such notice from Ohio that the deficiency in the
net worth of Buckeye giving rise to the right to exercise such
right and option has been remedied by Buckeye or (II) during any
period of time when Ohio is in default in the performance of its
obligations under any agreement to which it is a party and which
is part of the property mortgaged and pledged under the Buckeye
Mortgage and provided further that for the purposes of this
subsection (c) "net worth of Buckeye" shall mean as of any time
of computation, an amount equal to the aggregate amounts properly
recorded by Buckeye in the Proprietary Capital Accounts of the
Uniform System of Accounts after giving effect to the aggregate
of the credits or debits properly transferable from Accounts 433,
434, 435, 436, 437 and 438, exclusive of any charges arising from
amounts recorded in Account 114 by reason of acquisition of
Buckeye's Initial Unit by Buckeye as may be prescribed or allowed
by regulatory authority. The amount of income to be periodically
transferred to the Proprietary Capital Accounts is to be
calculated after provision for depreciation expense on the basis
of straight line depreciation of depreciable property at the rate
of three per cent per annum from the time of acquisition of such
property by Buckeye. Buckeye shall within 120 days after the end
of each fiscal year deliver to Ohio a balance sheet of Buckeye as
at the end of such fiscal year, certified by an independent
certified public accountant to have been prepared in accordance
with the Uniform System of Accounts, and accompanied by a
certificate of such independent certified public accountant
specifying the net worth of Buckeye as at the end of such fiscal
year, and shall also deliver to Ohio copies of all financial
statements delivered to the holders of bonds outstanding under
the Buckeye Mortgage pursuant to the Bond Purchase Agreements
dated April 1, 1968 between Buckeye and the purchasers of such
Bonds substantially concurrently with the delivery thereof by
Buckeye to such holders. In the event that Ohio shall exercise
the right and option granted to it by this subsection (c) as
herein provided settlement shall he made, or performance
tendered, within thirty days after the date of such exercise.
(d) In the event of the occurrence of a completed default
under the Buckeye Mortgage as such term is therein defined (other
than a completed default under subdivision (i) of Section 11.01
of the Buckeye Mortgage or default by Ohio in the performance of
its obligations under any agreement to which it is a party and
which is part of the property mortgaged and pledged under the
Buckeye Mortgage), Ohio shall have the right and option,
exercisable at any time during a period of thirty days commencing
with the sixty-first day and ending at the close of business on
the ninetieth day (or at the close of business on the next
business day following the ninetieth day if such day shall not he
a business day in either of New York City or Columbus, Ohio)
following the date of receipt by Ohio of a written notice from
(i) the Trustees under the Buckeye Mortgage, or either of them,
or (ii) any holder or holders of a majority in principal amount
of any series of bonds outstanding under the Buckeye Mortgage,
whichever such notice shall be earlier received, that said
Trustees, or either of them, propose to sell, or foreclose and
sell, all or a substantial part of the property, property
interests or facilities mortgaged and pledged under the Buckeye
Mortgage pursuant to the provisions of the Buckeye Mortgage, or
the provisions of applicable law, or otherwise, or that a
receiver, trustee in bankruptcy or comparable entity proposes to
sell all or a substantial part of the property, property
interests and facilities of Buckeye at public or private sale, to
acquire all of the property, property interests and facilities
owned by Buckeye at the Cardinal Station at a price determined as
provided in subsection (e) of this Section; provided, however,
that if at the date of receipt by Ohio of said written notice
Buckeye shall be contesting in good faith and by appropriate
legal proceedings the occurrence of such completed default under
the Buckeye Mortgage or the right of said Trustees, or either of
them, or such receiver, trustee in bankruptcy or comparable
entity, to sell all or any such part of such property, property
interests and facilities and shall give written notice to Ohio to
that effect not later than fifteen days after delivery of the
aforesaid notice from said Trustees, then the right and option
granted to Ohio by this subsection (d) shall be exercisable at
any time during a period of ninety days following the date of
receipt by Ohio of written notice from (a) said Trustees, or
either of them, or (b) any holder or holders of a majority in
principal amount of any series of bonds outstanding under the
Buckeye Mortgage, whichever notice shall be earlier received,
that (i) such proceedings have been terminated prior to the entry
of a final order therein under circumstances which will enable
the Trustees, or either of them, or such receiver, trustee in
bankruptcy or comparable entity, to proceed with such sale or
foreclosure and sale and that the Trustees, or either of them,
propose so to do, or (ii) an order in such proceedings
establishing the right of the Trustees, or either of them, or
such receiver, trustee in bankruptcy or comparable entity, to
proceed with such sale or foreclosure and sale, has become final
and is not subject to appeal, and that the Trustees, or either of
them, or such receiver, trustee in bankruptcy or comparable
entity, propose to proceed with such sale or such foreclosure and
sale; and provided, further, that, subject to the provisions of
subsection (g) of this Section, the right and option of Ohio
granted by this subsection (d) shall be automatically suspended
and shall not thereafter be exercisable on the basis of the
completed default or defaults under the Buckeye Mortgage giving
rise to the existence thereof in the event that prior to any
election by Ohio to exercise such option all such defaults under
the Buckeye Mortgage shall have been cured and full rights to
possession and use of such property shall have been restored to
Buckeye. In the event that Ohio shall exercise the right and
option granted to it by this subsection (d) as herein provided,
settlement shall be made, or performance tendered, within thirty
days after the date of such exercise.
(e) The price to be paid by Ohio for any property, property
interests and facilities acquired by it from Buckeye upon
exercise of any of the rights and options granted by subsections
(a), (b), (c) or (d) of this Section shall be that amount which
is equal to the sum of (i) the cost to Buckeye of any
non-depreciable assets included in the property, property
interests and facilities so to be acquired, and (ii) the
depreciated value, determined as provided in Appendix F hereto,
of the depreciable assets included therein. In the event that
Ohio does so purchase any such property, property interests or
facilities it shall also purchase Buckeye's fuel stock and
inventory of materials and supplies on hand at the Cardinal
Station at a price equal to the cost thereof to Buckeye. The
amounts payable by Ohio in respect of any of the foregoing
transactions shall be reduced by such amount as may be required
adequately to provide for the payment of any sales, excise or
documentary stamp taxes payable in connection therewith which are
required by law to be paid by Ohio, and all such taxes not so
required to be paid by Ohio shall be paid by Buckeye.
(f) Following termination of the right and option granted to
Ohio by subsection (b) of this Section as to any generating unit
owned by Buckeye at the Cardinal Station, whether by reason of
lapse of time or otherwise as provided in said subsection (b),
and so long thereafter until terminated as provided in subsection
(g) of this Section as Buckeye shall own one or more generating
units at the Cardinal Station, Ohio shall have a "right of first
refusal" in respect of any such generating unit, including
associated facilities, for which Buckeye shall have received an
offer to purchase by a third party which Buckeye is willing to
accept. In order to make effective the aforesaid "right of first
refusal", it is understood that any such offer to purchase (i)
must be submitted to Ohio on the basis of a purchase price
measured in dollars, payable either wholly in cash or permitting
of payment partly in cash and partly on a deferred cash payment
basis, (ii) must be accompanied when submitted to Ohio by a
representation of Buckeye that an offeror is prepared to enter
into a binding contract for the purchase of such facilities on
the terms stated, and (iii) shall specify the condition of title
to be delivered, except that if at the date such offer is
submitted by Buckeye to Ohio all or any part of the generating
unit or units, including associated facilities, to which such
offer relates is subject to the lien of the Buckeye Mortgage or
to any other lien securing indebtedness of Buckeye for money
borrowed, then the submission thereof to Ohio shall further
specify that such generating unit or units and any such
associated facilities will be transferred and conveyed by Buckeye
to Ohio upon exercise by Ohio of the "right of first refusal"
granted to Ohio by this subsection (f) free and clear of the lien
of the Buckeye Mortgage or of any such other lien, and, in such a
case, the failure of Buckeye to transfer such generating unit or
units and such associated facilities free and clear of the lien
of the Buckeye Mortgage or of any such other lien shall render
null and void any submission and notice by Buckeye to Ohio
relating thereto made as herein provided, so that both Ohio and
Buckeye shall be restored to their respective positions prior to
such submission and notice in all respects as though such
submission and notice had not been given. If and when Buckeye
shall receive an offer on terms of the character referred to
above which it is willing to accept, Buckeye shall notify Ohio to
that effect, specifying in detail the terms of such offer, and
Ohio shall have sixty days thereafter within which it may elect
to purchase the generating unit or units and associated
facilities to which such offer relates upon the same terms,
except as otherwise provided in this subsection (f). If Ohio
shall elect to purchase such generating unit or units and
associated facilities it shall notify Buckeye to that effect
within such sixty-day period and delivery of such notice by Ohio
to Buckeye shall constitute a binding contract between Buckeye
and Ohio for the sale and purchase thereof upon the terms
submitted to Ohio by Buckeye as aforesaid. The "right of first
refusal" granted to Ohio by this subsection (f) shall survive the
termination of this Agreement for any reason and shall continue
in full force and effect until terminated as provided in
subsection (g) of this Section.
(g) Notwithstanding any of the provisions contained in
subsections (a), (b), (c), (d) and (f) of this Section, the
rights and options granted to Ohio thereby shall have no force or
effect (i) from and after the expiration of the period beginning
at the date of this Agreement and ending at a date 21 years after
the death of the last survivor of the following named persons, to
wit:
Deborah Ann Manning.................. Coshocton, Ohio
Tammy Wyckoff........................ Hillsboro, Ohio
Edson G. Kindler..................... Lancaster, Ohio
Andrew P. Mone....................... Columbus, Ohio
Kevin Erman.......................... Coshocton, Ohio
Michelle Legg........................ Hillsboro, Ohio
Victoria Lynn Wuchnick............... North Canton, Ohio
Valerie Lynn Fowler.................. Tiffin, Ohio
Linda Colloredo...................... Minerva, Ohio
Michael Scott Terry.................. Findlay, Ohio
Barry Smith.......................... Lima, Ohio
Mark Schonhar........................ Newark, Ohio
or (ii) from and after that date on which the right and option of
Ohio under subsection (d) of this Section shall expire in
accordance therewith; provided, however, that if the right and
option conferred upon Ohio by said subsection (d) shall be
suspended under the conditions therein specified, or if the
Trustees under the Buckeye Mortgage or a receiver, trustee in
bankruptcy or comparable entity shall not sell all or a
substantial part of the property, property interests and
facilities of Buckeye as proposed in the written notice delivered
to Ohio as therein provided for the reason that all completed
defaults under the Buckeye Mortgage shall have been cured or
waived in writing prior to completion of such sale, then the
rights and options granted to Ohio by subsections (a), (b), (c),
(d) and (f) of this Section shall again become effective and
shall continue in full force and effect in accordance with the
provisions of said subsections unless or until terminated as
provided in clause (i) or clause (ii) of this subsection.
(h) Buckeye agrees that it will not dispose of any
generating unit or units owned by it at the Cardinal Station
except (i) to Ohio upon exercise of either of the rights and
options granted to it by subsections (a), (b), (c) and (d) of
this Section or (ii) to Ohio in accordance with Ohio's "right of
first refusal" described in subsection (f) of this Section, or
(iii) to the offeror in accordance with the terms of an offer
first submitted to Ohio pursuant to Ohio's aforesaid "right of
first refusal" but not accepted by Ohio. If Ohio does not elect
to accept any offer submitted to it pursuant to Ohio's aforesaid
"right of first refusal" and the offeror fails thereafter to
complete the purchase on the terms specified in the notice
relating thereto given by Buckeye to Ohio within a period of one
year, then Buckeye shall notify Ohio to that effect and Ohio's
"right of first refusal" shall thereafter be effective in
accordance with the provisions of subsection (f) of this Section
in respect of such offer or any other offer to purchase the same
facilities upon terms which Buckeye may be willing to accept,
whether by such offeror or by another third party. The
provisions of this subsection shall not apply to the mortgaging
of the property, property interests and facilities of Buckeye
under the Buckeye Mortgage including the mortgaging of any such
property, property interests and facilities pursuant to the
after-acquired property clauses of the Buckeye Mortgage.
(i) Buckeye agrees that, concurrently with the acquisition
by Ohio from Buckeye of any property, property interests or
facilities upon exercise by Ohio of any of the rights and options
provided for in subsections (a), (c) and (d) of this Section,
Buckeye will make such payments to the Trustees under the Buckeye
Mortgage and will take such other and further action as may be
required to effect the release of such property, property
interests and facilities from the lien of the Buckeye Mortgage.
In the event that Buckeye should fail to make any such payment or
to take any such action, then Ohio shall be entitled, at its
election, (1) to make such payment or to take such action for the
account and on behalf of Buckeye and as attorney-in-fact for
Buckeye, its authorization and appointment to act as such
attorney-in-fact being hereby irrevocably confirmed, or (2) to
assume (provided that unsecured fixed interest obligations of
Ohio then constitute, under the New York Insurance Law,
permissible investments for mutual life insurance companies
domiciled in the State of New York (other than subdivision 17 of
Section 81 thereof or any other so-called "basket" or "leeway"
provisions thereof), by an instrument in writing delivered to the
Trustees under the Buckeye Mortgage on the settlement date, the
obligations of Buckeye to pay when due the principal of, premium,
if any, and accrued interest on all bonds outstanding under the
Buckeye Mortgage and to pay any other amount required to be paid
by Buckeye under the Buckeye Mortgage; provided that such
instrument shall be in form and substance satisfactory to the
holders of 66 2/3% in principal amount of each series of Bonds
outstanding under the Buckeye Mortgage and that the Trustees
under the Buckeye Mortgage shall have received (I) an opinion of
counsel in form and substance and of counsel satisfactory to such
holders that such instrument has been duly authorized, executed
and delivered by Ohio and constitutes the valid and binding
obligation of Ohio enforceable in accordance with its terms
(subject to applicable bankruptcy, insolvency or other laws
affecting creditors' rights generally) and (II) evidence in form
and substance satisfactory to such holders that unsecured fixed
interest obligations of Ohio then constitute, under the New York
Insurance Law, permissible investments for mutual life insurance
companies domiciled in the State of New York (other than
subdivision 17 of Section 81 thereof or any other so-called
"basket" or "leeway" provisions thereof). In the event that Ohio
shall, in any such case, assume pursuant to this subsection (i)
the obligations of Buckeye to pay when due the principal of,
premium, if any, and accrued unpaid interest on all bonds
outstanding under the Buckeye Mortgage and to pay any other
amount required to be paid by Buckeye under the Buckeye Mortgage,
(A) there shall be credited against the amount otherwise payable
by Ohio for the property, property interests, facilities, fuel
stock and inventory of materials and supplies to be acquired by
Ohio, determined as provided in subsection (e) of this Section,
the total amount (including premium, if any, and any accrued
interest) which Buckeye would then be required to pay to redeem,
pursuant to the provisions of the Buckeye Mortgage applicable in
the circumstances then obtaining, all of the bonds outstanding
under the Buckeye Mortgage and to effect the satisfaction and
discharge of the Buckeye Mortgage pursuant to the terms thereof,
such full amount being referred to below in this subsection (i)
as "Ohio's purchase price credit" and (B) Buckeye shall, upon
request by Ohio so to do, assign, transfer and convey to Ohio on
the settlement date subject to the rights of the Trustees, or
either of them, under the Buckeye Mortgage, all the right, title
and interest of Buckeye in, to and under, and in and to any funds
due or to become due under, this Agreement, the Power Delivery
Agreement, the Wholesale Power Agreements (as such term is
defined in the Power Delivery Agreement), the Buckeye Mortgage
and/or the bonds issued thereunder. Ohio shall be entitled to
recover from Buckeye and Buckeye shall be obligated to pay to
Ohio the full amount of any payment made by Ohio pursuant to
clause (1) above and the full amount of all expenses reasonably
incurred by Ohio in connection with the making of such payment or
the taking of any other action on behalf of Buckeye to effect the
release of the property, property interests and facilities so
acquired by Ohio from the lien of the Buckeye Mortgage pursuant
to the authority conferred upon Ohio hereby or in the event that
Ohio shall assume the obligations of Buckeye specified in clause
(2) above as therein provided and Ohio's purchase price credit
shall exceed the amount otherwise payable by Ohio for the
property, property interests, facilities, fuel stock and
inventory of materials and supplies so acquired by Ohio,
determined as provided in subsection (e) of this Section, the
full amount of such excess. Buckeye further agrees that it will
not, so long as the right and option granted to Ohio by
subsection (c) of this Section shall remain in effect, make any
distribution or other payment to any Buckeye Member under
circumstances such that the effect thereof will be to reduce the
net worth of Buckeye to an amount such that the right and option
granted to Ohio by said subsection (c) would then become
exercisable by Ohio and that, if Buckeye shall become obligated
to make any payment or payments to the Trustees under the Buckeye
Mortgage or to Ohio as provided in this subsection (i), it will
not make any distribution or other payment to any Buckeye Member
until all payments so required to be made shall have been paid in
full.
(j) The rights and options provided for in subsections (a),
(b), (c), (d) and (f) of this Section are and shall be subject
and subordinate in all respects to the lien of the Buckeye
Mortgage and, subject only to the condition that, in the case of
the right and option provided for in subsection (d) of this
Section, the subordination thereof to the lien of the Buckeye
Mortgage shall not be effective in the event that Ohio shall fail
to receive a written notice from the Trustees under the Buckeye
Mortgage, or either of them, or the holders of bonds outstanding
thereunder as specified in said subsection (d) in respect of any
proposed sale of all or a substantial part of the property
mortgaged and pledged under the Buckeye Mortgage, and the Buckeye
Mortgage shall constitute a lien on, and security interest in,
all of the property mortgaged and pledged thereunder until (i)
such property or part thereof shall be released from the lien of
the Buckeye Mortgage pursuant to the terms and provisions
thereof, or (ii) the Buckeye Mortgage shall be satisfied and
discharged as therein provided. This subsection shall be
self-operative and no further instrument evidencing the aforesaid
subordination shall be required. In confirmation of such
subordination, Ohio shall promptly execute and deliver any
instrument that the Trustees, or either of them, under the
Buckeye Mortgage may reasonably request to evidence such
subordination and Ohio hereby irrevocably appoints each said
Trustee the attorney-in-fact of Ohio to execute and deliver such
instrument on behalf of Ohio, should Ohio refuse or fail to do so
promptly after request. If the Trustees, or either of them, or a
receiver, trustee in bankruptcy or comparable entity, shall enter
into or take possession of the property, property interests and
facilities owned by Buckeye at the Cardinal Station under any
provision of the Buckeye Mortgage or of applicable law or
otherwise, such entering into or taking of possession shall not,
of itself, affect the options and rights provided for in
subsections (a), (b), (c), (d) and (f) of this Section, and,
provided that Ohio shall have complied with all terms and
conditions of this Agreement on Ohio's part to be kept, observed
and performed, Ohio shall continue to be entitled to the benefits
of said options and rights upon all the terms, covenants and
conditions set forth in this Agreement until termination thereof
as provided in subsection (g) of this Section.
(k) If the Buckeye Mortgage shall be executed, delivered and
recorded, and written notice of the assignment by Buckeye of this
Agreement to the corporate trustee under the Buckeye Mortgage
shall be delivered to Ohio, Ohio shall (unless it shall be
notified in writing by the corporate trustee under the Buckeye
Mortgage that the Buckeye Mortgage has been satisfied and
discharged of record) make any payment (Buckeye hereby consenting
to any such payment by Ohio) required to be made by Ohio pursuant
to the exercise by Ohio of any of the rights and options granted
by subsections (a), (b), (c), (d) and (f) of this Section
directly to such corporate trustee and, in such event, Ohio shall
not be responsible to Buckeye for any misuse or misapplication by
said corporate trustee of any funds so paid by Ohio directly to
said corporate trustee.
ARTICLE THREE.
Retirements, Replacements and Additions.
3. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Sections 3.1, 3.2, 3.3 and 3.4 of
the Station Agreement in their entirety and in lieu thereof
substitute the following:
3.1 (a) When a Property Unit is retired from service, the
investment in such Property Unit shall for the purpose of all
computations under this Agreement be removed from the applicable
plant investment account of the Owner thereof or the Owners, as
the case may be, and from any related reserve for depreciation,
as of the out-of-service date of such Property Unit.
(b) When a Property Unit is placed in service replacing a
retired Property Unit, or when a Property Unit is placed in
service but not as a replacement, the original investment in such
replacement or additional Property Unit, as the case may be,
shall for the purpose of all computations made under this
Agreement be added to the plant investment of the Owner thereof
or the Owners, as the case may be, as of the in-service date of
such Property Unit.
(c) A removal, change or supplement of an item of property
which, of itself, consists of less than an entire Property Unit
shall not be deemed to constitute a retirement, replacement or
addition of a Property Unit, and any expense involved therein
shall constitute maintenance expense.
3.2 Operating Company shall, from time to time, recommend to
the Owners action to be taken in connection with the retirement,
replacement or addition of Property Units to any portion of the
Cardinal Station and shall have the right, on behalf of the
Owners, to make or cause to be made recommended retirements,
replacements or additions of Property Units in their respective
portions of the Cardinal Station; provided, however, that no
single retirement, replacement or addition of a Property Unit
involving an investment exceeding $50,000 in amount shall be made
by Operating Company except with the prior approval of the Owner
or Owners, as the case may be, which approval shall not be
unreasonably withheld. Each Owner shall be obligated to make
such replacements and additions as shall be required by law. In
addition, either Owner may make other retirements, replacements
or additions of Property Units in its portion of the Cardinal
Station on its own responsibility and at its own expense, subject
to approval thereof by the other Owner. The cost of any
retirement, replacement or addition of a Property Unit in any
portion of the Cardinal Station other than the jointly owned
General Facilities shall be borne by the Owner thereof. The cost
of any retirement,replacement or addition of a Property Unit in
the General Facilities shall be shared by the Owners in
proportion to their then respective interests in the General
Facilities.
3.3 Any removal, change or supplement involving an item of
property which is not a Property Unit shall be the responsibility
of Operating Company and any expense involved therein shall
constitute maintenance expense.
3.4 Upon any revision of the Retirement Unit List, the
revised Retirement Unit List shall be substituted for the
Retirement Unit List then in effect unless Buckeye shall, within
twenty days after delivery to it of notice of such revision,
advise Ohio that it objects thereto.
ARTICLE FOUR
Major Spare Parts.
4. Effective as of the Date of Commercial Operation of
Buckeye's Additional Unit, delete Sections 4.1, 4.2, 4.3, 4.4,
4.5, 4.6 and 4.7 of the Station Agreement in their entirety and
in lieu thereof substitute the following:
4.1 Ohio shall purchase and own Major Spare Parts
interchangeable, to the extent specified in Appendix E hereto,
with equivalent parts of Ohio's Initial Unit and Buckeye's
Initial Unit and/or Buckeye's Additional Unit, and shall also
purchase and own such other spare parts as Ohio and Buckeye may
from time to time mutually agree to include in the category of
Major Spare Parts. Buckeye agrees that its approval of any such
inclusion shall not be unreasonably withheld.
4.2 Ohio agrees that, if and when any Ohio Associate
constructs and owns a generating unit (or units) for which parts
are interchangeable with the Major Spare Parts, or if and when
Ohio constructs and owns a generating unit (or Units) for which
parts are interchangeable with the Major Spare Parts, it will
arrange to interchange Major Spare Parts owned by it with such
interchangeable parts owned by such Ohio Associate so that
duplication of investment in expensive spare parts may be
minimized. Accordingly, when a Major Spare Part is owned by an
Ohio Associate, Ohio shall not be obligated under Section 4.1 to
purchase and own a duplicate thereof.
4.3 Ohio hereby extends to Buckeye the right to use any of
the Major Spare Parts for Buckeye's Units and it will extend to
Buckeye its rights and obligations in respect of any major spare
parts arrangements from time to time existing between Ohio and
Ohio Associates. Buckeye hereby agrees to accept such rights and
obligations, which it is understood shall be as follows.
(a) If at any time Buckeye has need of a Major Spare
Part to replace an equivalent item which has been damaged, the
owner of such Major Spare Part shall make such Major Spare Part
available for Buckeye's use (at the location where such Major
Spare Part is stored) as expeditiously as possible; provided,
however, that if Ohio or an Ohio Associate also develops a need
for such Major Spare Part prior to the time of the actual
installation thereof in one of the Buckeye Units, the owner of
the generating unit having the highest net capability for which
such Major Spare Part is required shall have prior claim to the
use of such Major Spare Part, and in the event such net
capabilities are equal, the owner of the item equivalent to such
Major Spare Part which was damaged earliest shall have prior
claim to the use of such Major Spare Part.
(b) If an Owner uses a Major Spare Part to replace an
equivalent item which has been damaged, such Owner shall have an
obligation to cause the repair of such damaged item, or to
acquire a new item in place thereof, if necessary, as
expeditiously as possible, and to transfer the repaired item, or
new item, as the case may be, to the original owner for such
Major Spare Part at its original location.
(c) If the damaged item can be repaired, the cost of
loading, freighting, unloading and freight charges in respect of
such Major Spare Part and/or damaged item, and the costs of
removal of, and repairs made to, such damaged item, together with
all incidental expenses related thereto, shall be a part of the
Cardinal Station Monthly Maintenance Cost.
(d) If the damaged item has been damaged beyond repair,
and if such damaged item is a Property Unit, the entire cost of
the retirement and replacement of such damaged item shall be
borne by Ohio and Buckeye in proportion to their respective
ownership interests in such Property Unit; if, however, such
damaged item is less than a Property Unit, the costs associated
with its removal, and the acquisition of a new item in place
thereof, shall be a part of the Cardinal Station Monthly
Maintenance Cost.
4.4 (a) Buckeye shall pay to Ohio in respect of the rights
extended by Ohio as provided in Section 4.3 a monthly charge for
each Major Spare Part associated with Buckeye's Initial Unit
equal to the product of (i) 0.011042, (ii) the total gross
investment (i.e., the aggregate purchase price including freight,
excise taxes, etc.) of Ohio and Ohio Associates in such Major
Spare Part, (iii) the quotient obtained by dividing the sum of
(A) 115% of Buckeye's Initial Cardinal Station Capacity
Reservation and (B) 115% of Buckeye's Supplementary Power Demand,
if any, by (C) the Total Net Capability of Buckeye's Initial
Unit, and (iv) the quotient of (D) one, divided by (E) the total
number of generating units of Ohio and any Ohio Associate which
are then in commercial operation, for which such Major Spare Part
is interchangeable, plus one.
(b) Commencing with the Date of Commercial Operation of
Buckeye's Additional Unit, Buckeye shall pay to Ohio in respect
of the rights extended by Ohio as provided in Section 4.3 a
monthly charge for each Major Spare Part associated with
Buckeye's Additional Unit equal to the product of (i) 0.011042,
(ii) the total gross investment (i.e., the aggregate purchase
price including franchise, excise taxes, etc.) of Ohio and Ohio
Associates in such Major Spare Part, (iii) the quotient obtained
by dividing the sum of (A) 115% of Buckeye's Additional Unit
Capacity Reservation and (B) 115% of Buckeye's Supplementary
Power Demand, if any, by (C) the Total Net Capability of
Buckeye's Additional Unit, and (iv) the quotient for such month
of (D) the number of items of equipment at the Additional
Cardinal Station which can be interchanged with a particular
Major Spare Part, divided by (E) the total number of the items of
equipment at the generating units of Ohio and any Ohio Associate
and at the Additional Cardinal Station which can be interchanged
with such Major Spare Part.
(c) In addition, Buckeye shall pay to Ohio an amount in
dollars sufficient to reimburse Ohio for any amounts paid or
payable by it as sales, excise or similar taxes (other than taxes
based on or measured by net income) in respect of the total
amount paid by Buckeye pursuant to this Section and to enable
Ohio, after provision for such taxes, to realize the net amount
payable by Buckeye as herein provided. Buckeye shall also make
available to the extent that it is practicable to do so space
within its portion of Cardinal Station for the storage of Major
Spare Parts. In the event that any amounts paid or payable by
Buckeye to Ohio pursuant to this Section shall at any time become
subject to any income or similar tax based on or measured by net
income levied by any State or subdivision thereof, then the
amount payable hereunder shall be increased by an additional
amount which, after provision for the payment of such tax, will
net the amount otherwise payable hereunder.
4.5 Ohio shall invoice Buckeye promptly for the monthly
charge to be paid by Buckeye pursuant to Section 4.4 and such
invoices shall be paid within fifteen (15) days after receipt
thereof by Buckeye. Interest shall be paid by Buckeye at the
rate of 6% per annum on any amount overdue.
4.6 Buckeye agrees that it will purchase and maintain a
suitable stock of spare parts for Buckeye's Initial Substation
Facilities and Buckeye's Additional Substation Facilities in
accordance with the practices employed by Ohio for the
maintenance of spare parts for comparable substation facilities
at other generating stations of Ohio.
ARTICLE FIVE.
Working Capital Requirements.
5. Effective as of the Date of Commercial Operation of
Buckeye's Additional Unit, delete Sections 5.1, 5.2, 5.3 and 5.4
of the Station Agreement in their entirety and in lieu thereof
substitute the following:
5.1 The Owners shall provide the funds required for use as
working capital in meeting payrolls and other expenses incurred
in the operation and maintenance of the Cardinal Station, and in
buying materials and supplies, and the Owners hereby authorize
Operating Company as their agent to draw upon such funds for
expenditures on their behalf necessary to operate and maintain
Cardinal Station.
5.2 Buckeye shall provide its appropriate share of working
capital requirements, other than for fuel, in the ratio of the
sum of (a) 115% of Buckeye's Initial Cardinal Station Capacity
Reservation and (b) 115% of Buckeye's Additional Unit Capacity
Reservation to the Total Net Capability of the Cardinal Units
and, subject to Section 5.3, Ohio shall provide the balance.
Each Owner shall make the requisite funds available by cash
payments directly to Operating Company, by deposits to bank
accounts established by Operating Company, by investing in
materials and supplies, by prepayments, by purchase of spare
parts, or by a combination of such methods as may be agreed to
between the Owners from time to time.
5.3 During any period in which Buckeye shall be purchasing
Buckeye's Supplementary Power from Ohio hereunder, Buckeye shall
provide, in addition to the portion of working capital
requirements to be provided by it pursuant to Section 5.2, a
further portion of such working capital requirements, other than
for fuel, in the ratio of 115% of Buckeye's Supplementary Power
Demand and Buckeye's Excess Supplementary Power Demand, if any,
to the Total Net Capability of the Cardinal Units, and Ohio shall
provide the balance in excess of the total of the amounts
provided by Buckeye in accordance with Section 5.2 and this
Section 5.3.
ARTICLE SIX.
Investment in Fuel.
6. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Sections 6.1, 6.2, 6.3, 6.4 and 6.5
of the Station Agreement in their entirety and in lieu thereof
substitute the following:
6.1 It is recognized by the Owners that a reasonable amount
of coal in stock is desirable for the Cardinal Station at all
times in order to provide adequate fuel reserves against
interruptions of normal fuel supply. The Owners agree to
establish and maintain such reserves of coal in stock of such
quality and in such quantities as Operating Company shall
determine to be required for that purpose, including reserves
required to be established prior to the Date of Commercial
Operation of Buckeye's Additional Unit.
6.2 Each Owner shall invest directly in a portion of coal in
stock for the Initial Cardinal Station as follows:
(a) Buckeye shall make such monthly investments in the
Initial Cardinal Station Coal Stock as are necessary to maintain
its ownership, after taking into account the consumption by
Buckeye of its share of the Initial Units Monthly Coal
Requirement, of that number of tons of coal in the storage pile
or piles equal to the product of (i) the ratio of the total
Buckeye's Initial Unit Monthly Energy for the preceding
twelve-month period to the Total Net Generation of the Initial
Units for the preceding twelve-month period, and (ii) the total
tons of coal in the Initial Cardinal Station Coal Stock.
(b) Ohio shall make such monthly investments in the
Initial Cardinal Station Coal Stock as are necessary to maintain
its ownership, after taking into account the consumption by Ohio
of its share of the Initial Units Monthly Coal Requirement, of
that number of tons of coal in the storage pile or piles equal to
the product of (i) the ratio of the total Ohio Initial Units
Monthly Energy for the preceding twelve-month period to the Total
Net Generation of the Initial Units for the preceding
twelve-month period, and (ii) the total tons of coal in the
Initial Cardinal Station Coal Stock.
6.3 Each Owner shall invest directly in a portion of coal in
stock for the Additional Cardinal Station as follows:
(a) Buckeye shall make such monthly investments in the
additional Cardinal Station Coal Stock as are necessary to
maintain its ownership, after taking into account the consumption
by Buckeye of its share of the Buckeye's Additional Unit Monthly
Coal Requirement, of that number of tons of coal in the storage
pile or piles equal to the product of (i) the ratio of the total
Buckeye's Additional Unit Monthly Energy for the preceding
twelve-month period to the Total Net Generation of Buckeye's
Additional Unit for the preceding twelve-month period, and (ii)
the total tons of coal in the Additional Cardinal Station Coal
Stock. In addition, Buckeye shall make the total investment in
the coal required for the generation of power by Buckeye's
Additional Unit during the test period prior to the Date of
Commercial Operation of Buckeye's Additional Unit.
(b) Ohio shall make such monthly investments in the
Additional Cardinal Station Coal Stock as are necessary to
maintain its ownership, after taking into account the consumption
by Ohio of its share of Buckeye's Additional Unit Monthly Coal
Requirement, of that number of tons of coal in the storage pile
or piles equal to the product of (i) the ratio of the total Ohio
Additional Unit Monthly Energy for the preceding twelve-month
period to the Total Net Generation of Buckeye's Additional Unit
for the preceding twelve-month period, and (ii) the total tons of
coal in the Additional Cardinal Station Coal Stock.
6.4 The parties recognize that under certain circumstances
it may be more equitable to establish the number of tons of coal
in stock for Buckeye and Ohio on the basis of twelve-month
forecasts of Buckeye's Initial Unit Monthly Energy and Buckeye's
Additional Unit Monthly Energy requirements and Ohio's Initial
Units Monthly Energy and Ohio Additional Unit Monthly Energy
requirements, respectively, instead of on the basis of the
preceding twelve-month period, and agree that the Operating
Company may from time to time employ such alternative method.
6.5 Fuel oil reserves and fuel oil charged to operation
shall be owned and accounted for between the Owners in the same
manner as coal by converting the quantities and costs of such
fuel oil to the basis of equivalent tons of coal.
6.6 Operating Company shall take such steps as are necessary
to keep the Initial Cardinal Station Coal Stock separate and
apart from the Additional Cardinal Coal Stock and shall keep
separate records of the respective investments of the Owners
therein.
ARTICLE SEVEN.
Apportionment of Station Costs.
7. Effective as of the Date of Commercial Operation of
Buckeye's Additional Unit, delete Sections 7.1, 7.2, 7.3, 7.4,
7.5 and 7.6 in their entirety and in lieu thereof substitute the
following:
7.1 Operating Company shall keep books of record and
accounts, on the same basis for each Owner, covering the sums of
money expended for the account of each Owner in operating and
maintaining Cardinal Station. The allocation of expenses between
the Owners shall be made in the manner set forth in Sections 7.2,
7.3 and 7.4, the actual allocation to be made by Operating
Company.
7.2 The allocation of all costs with respect to fuel supply
for the Cardinal Station shall be accounted for separately for
the Initial Cardinal Station and for the Additional Cardinal
Station.
(a) With respect to the Initial Cardinal Station:
(i) All coal delivered to each Owner during a calendar
month shall be charged to such Owner's fuel in stock at the
average delivered unit cost of all coal delivered to Initial
Cardinal Station during such month, and, in addition, each
Owner's fuel in stock shall be charged in each month with the
total coal unloading costs incurred by Operating Company for such
month in the ratio of tons of coal delivered for each Owner.
Each Owner's fuel in stock shall also be charged in each month
with the total coal storage costs incurred by Operating Company
in such month in the ratio of tons of coal in stock for each
Owner at the end of such month.
(ii) The Initial Units Monthly Coal Requirement shall
be divided between Buckeye and Ohio in the same ratio for each
month as Buckeye's Initial Unit Monthly Energy and Ohio's Initial
Units Monthly Energy, respectively, bear to the Total Net
Generation of the Initial Units for such month. Each Owner's
share of the Initial Units Monthly Coal Requirement shall be
separately converted into a dollar amount by using the average
cost per ton of coal in such Owner's fuel in stock at the close
of such month and such dollar amount will then be credited to
such Owner's fuel in stock and charged to such Owner's fuel
consumed.
(iii) The Initial Units Monthly Fuel Handling Costs
will be divided between Buckeye and Ohio in the same ratio for
each month as Buckeye's Initial Unit Monthly Energy and Ohio's
Initial Units Monthly Energy, respectively, bear to the Total Net
Generation of the Initial units for such month. Each Owner's
fuel consumed will be charged at the close of such month with
each Owner's share of the Initial Units Monthly Fuel Handling
Costs.
(b) With respect to the Additional Cardinal Station:
(i) All coal delivered to each Owner during a calendar
month shall be charged to such Owner's fuel in stock at the
average delivered unit cost of all coal delivered to the
Additional Cardinal Station during such month, and, in addition,
each Owner's fuel in stock shall be charged in each month with
the total coal unloading costs incurred by Operating Company for
such month in the ratio of tons of coal delivered for each Owner.
Each Owner's fuel in stock shall also be charged in each month
with the total coal storage costs incurred by Operating Company
in such month in the ratio of tons of coal in stock for each
Owner at the end of such month.
(ii) The Additional Unit Monthly Coal Requirement
shall be divided between Buckeye and Ohio in the same ratio for
each month as Buckeye's Additional Unit Monthly Energy and Ohio
Additional Unit Monthly Energy, respectively, bear to the Net
Generation of Buckeye's Additional Unit for such month. Each
Owner's share of the Additional Unit Monthly Coal Requirement
shall be separately converted into a dollar amount by using the
average cost per ton of coal in such Owner's fuel in stock at the
close of such month and such dollar amount will then be credited
to such Owner's fuel in stock and charged to such Owner's fuel
consumed.
(iii) The Additional Unit Monthly Fuel Handling Costs
will be divided between Buckeye and Ohio in the same ratio for
each month as Buckeye's Additional Unit Monthly Energy and Ohio
Additional Unit Monthly Energy, respectively, bear to the total
Net Generation of Buckeye's Additional Unit for such month. Each
Owner's fuel consumed will be charged at the close of such month
with each Owner's share of the Additional Unit Monthly Fuel
Handling Costs.
(c) Fuel oil reserves will be accounted for in the same
manner as coal stock, and fuel oil consumed will be charged to
the Owners in the same manner as coal consumed, by converting the
quantities and costs of such fuel oil to the basis of equivalent
tons of coal.
7.3 The Cardinal Station Monthly Maintenance Cost will be
divided between Buckeye and Ohio in the same ratio for each month
as Buckeye's Monthly Energy and Ohio's Monthly Energy,
respectively, bear to the Total Net Generation of the Cardinal
Units for such month; provided, however, that a recomputation
shall be made on a running twelve-months average basis which will
divide the aggregate Cardinal Station Monthly Maintenance Cost
for such twelve month period between Buckeye and Ohio in the same
ratios for such twelve month period as Buckeye's Monthly Energy
and Ohio's Monthly Energy, respectively, bear to the Total Net
Generation of the Cardinal Units for such period, and an
appropriate credit or charge will be made to each Owner to adjust
the aggregate of such Owner's twelve month charges hereunder over
such twelve month period to conform with the recomputation on
such twelve months basis. Any proceeds of insurance received by
either Owner in respect of any item of expense constituting
maintenance expense included or includible in the Cardinal
Station Monthly Maintenance Cost for any month shall be credited
thereto in the month in which such proceeds are received.
7.4 The Cardinal Station Monthly Prorated Capacity Cost will
be divided between the Owners so that Buckeye's share will be in
the ratio for each month of (a) the sum of (i) 115% of Buckeye's
Initial Cardinal Station Capacity Reservation and (ii) 115% of
Buckeye's Additional Unit Capacity Reservation and (iii) 115% of
Buckeye's Supplementary Power Demand, if any, and (iv) 115% of
Buckeye's Excess Supplementary Power Demand, if any, to (b) the
Total Net Capability of the Cardinal Units, and Ohio's share will
be the balance.
ARTICLE EIGHT.
Operation of Cardinal Station.
8. Effective as of the Date of Commercial Operation of
Buckeye's Additional Unit, delete Sections 8.1, 8.2, 8.3, 8.4,
8.5, 8.6 and 8.7 of the Station Agreement in their entirety and
in lieu thereof substitute the following:
8.1 The Cardinal Station shall be operated and maintained by
Operating Company as a single station in accordance with good
commercial practices, employed in a manner consistent with the
operating procedures employed by Ohio at the Ohio Generating
Stations, and otherwise in conformity with the terms and
conditions of this Agreement and the Power Delivery Agreement.
8.2 The Entitlement of Ohio and Buckeye in and to the use of
the Total Net Capability of the Cardinal Station shall be
determined as follows:
(a) Buckeye shall be entitled at any time to that
portion of the generating capacity then available at the Cardinal
Station to the extent required to supply the total amount of the
Buckeye Power Requirement at such time, up to a maximum
entitlement equal to 86.9565% of the total Buckeye's Contractual
Net Capability of Buckeye's Initial Unit and Buckeye's Additional
Unit.
(b) Ohio shall be entitled at any time to that portion
of the generating capacity then available at the Cardinal Station
in excess of the entitlement of Buckeye thereto at such time,
subject, however, to the rights of Buckeye to receive therefrom
Back-up Power and Buckeye's Supplementary Power as provided in
Articles Nine and Ten of this Agreement.
(c) In no event shall the entitlement of Buckeye
determined pursuant to subsection (a) above exceed the
requirements of the Buckeye Members for electric power and energy
to be consumed within the State of Ohio or the entitlement of
Ohio determined pursuant to subsection (b) above exceed the total
load of its retail customers within the State of Ohio.
8.3 In each hour during the term of this Agreement there
shall be delivered hereunder to Ohio's Bulk Transmission
Facilities for the account of Buckeye, to the extent that the
total output of electric power by the Cardinal Station in such
hour shall be sufficient for that purpose and otherwise subject
to the provisions of this Agreement, that number of kilowatts of
electric power equal to the lesser of (a) Buckeye's Total Firm
Reservation, or (b) the Buckeye Cardinal Hourly Demand for such
hour. Operating Company shall operate the Cardinal Station in
accordance with the provisions set forth in Sections 8.6 and 8.7.
8.4 Buckeye shall establish from time to time reservations
of capacity out of its entitlement in and to the use of the Total
Net Capability of the Cardinal Units as follows:
(a) Buckeye's Initial Cardinal Station Capacity
Reservation shall equal Buckeye's Cardinal Peak Demand as of the
first day of the month in which such Buckeye's Cardinal Peak
Demand is established; provided, however, that in no event shall
Buckeye's Initial Cardinal Station Capacity Reservation exceed at
any time 86.9565% of the then Buckeye's Contractual Net
Capability of Buckeye's Initial Unit. Buckeye shall use its best
efforts to inform Ohio at least 90 days in advance of any
anticipated increase in Buckeye's Initial Cardinal Station
Capacity Reservation.
(b) After the later of (1) the Date of Commercial
Operation of Buckeye's Additional Unit and (2) the Date when
Buckeye's Initial Cardinal Station Capacity Reservation shall
equal 86.9565% of the then Buckeye's Contractual Net Capability
of Buckeye's Initial Unit, Buckeye's Additional Unit Capacity
Reservation shall equal Buckeye's Cardinal Peak Demand less
Buckeye's Initial Cardinal Station Capacity Reservation;
provided, however, that in no event shall Buckeye's Additional
Unit Capacity Reservation exceed at any time 86.9565% of the then
Buckeye's Contractual Net Capability of Buckeye's Additional
Unit. In such circumstances, Buckeye's total reservation of
capacity at the Cardinal Station shall be the sum of (i)
Buckeye's Initial Cardinal Station Capacity Reservation and (ii)
Buckeye's Additional Unit Capacity Reservation, and Buckeye will
increase Buckeye's Additional Unit Capacity Reservation to the
extent necessary so that such sum shall not be less, for any
month, than Buckeye's Cardinal Peak Demand established at any
time prior to and including such month.
(c) In the event that Buckeye shall subsequent to June
27, 1968 arrange to obtain a supply of electric power and energy
from any source other than Buckeye's Initial Unit or Buckeye's
Additional Unit, then Buckeye's Total Cardinal Station Capacity
Reservation from and after the date on which such other source of
electric power and energy shall become available to Buckeye shall
for all purposes of this Agreement equal 86.9565% of the
Buckeye's Contractual Net Capability of Buckeye's Initial Unit
and Buckeye's Additional Unit as of such date without regard to
the amount of any Buckeye Cardinal Peak Demand established prior
to such date.
8.5 Ohio and Buckeye hereby agree that the Cardinal Station
shall be loaded in any calendar year, insofar as it may be
physically possible to do so consistent with good and safe
commercial practice, so that the ratio obtained by dividing (a)
the sum of (i) the Total Net Generation of Buckeye's Initial Unit
and Buckeye's Additional Unit, for such year and (ii) the Total
Net Generation of Ohio's Initial Unit for such year by (b) the
product of (i) the average combined Total Net Capability of all
such units for such year and (ii) 8,760, is not less than the
ratio obtained by dividing (c) the sum of (i) the total Buckeye
Initial Unit Monthly Energy for such year and (ii) the total
Buckeye Additional Unit Monthly Energy for such year and (iii)
the total Back-up Energy for such year, by (d) the product of (i)
the average of the Buckeye Cardinal Peak Demands in effect for
each month during such year and (ii) 8,760.
8.6 Subject to the provisions of Section 8.5 above, Ohio and
Buckeye agree that the Cardinal Units shall be loaded in any hour
as directed by Ohio, between the minimum and maximum operating
limits set forth in this Section and insofar as it may be
physically possible to do so consistent with good and safe
commercial practice according to principles of economic dispatch
employed by Ohio at the Ohio Generating Stations. The maximum
operating limit of each of the Cardinal Units shall be equal to
the Total Net Available Capability of such unit. The minimum
operating limit of each of the Cardinal Units shall be the lowest
level of operation that insures stability of combustion in the
steam generator of such unit at low firing rates.
8.7 Energy generated each month by Buckeye's Units, in
accordance with the provisions of Sections 8.5 and 8.6 shall be
allocated between Buckeye and Ohio as follows:
(a) Buckeye's Initial Unit Monthly Energy for any month
shall be determined by multiplying (i) Buckeye's total energy
requirement for such month (adjusted to the high voltage busses
at the Cardinal Station) less Back-up Energy, if any, less energy
associated with Replacement Power, if any, less energy associated
with Buckeye's Supplementary Power and Buckeye's Excess
Supplementary Power, if any, and, if Buckeye shall have arranged
to obtain a supply of electric power and energy from any source
other than Buckeye's Initial Unit and/or Buckeye's Additional
Unit, as contemplated by Section 8.4(c), less energy associated
with such supply, by (ii) the ratio of the Total Net Generation
of Buckeye's Initial Unit for that month to the sum of the Total
Net Generation of Buckeye's Units for such month.
(b) Buckeye's Additional Unit Monthly Energy for any
month shall be determined by multiplying (i) Buckeye's total
energy requirement for such month (adjusted to the high voltage
busses at the Cardinal Station) less Back-up Energy, if any, less
energy associated with Replacement Power, if any, less energy
associated with Buckeye's Supplementary Power and Buckeye's
Excess Supplementary Power, if any, and, if Buckeye shall have
arranged to obtain a supply of electric power and energy from any
source other than Buckeye's Initial Unit and/or Buckeye's
Additional Unit, as contemplated by Section 8.4(c), less energy
associated with such supply, by (ii) the ratio of the Total Net
Generation of Buckeye's Additional Unit for that month to the sum
of the Total Net Generation of Buckeye's Units for such month.
(c) Ohio's allocation of energy from Buckeye's Initial
Unit for any month shall be determined by deducting Buckeye's
Initial Unit Monthly Energy for that month from the Total Net
Generation of Buckeye's Initial Unit for such month.
(d) Ohio's allocation of energy from Buckeye's
Additional Unit for any month shall be determined by deducting
Buckeye's Additional Unit Monthly Energy for that month from the
Total Net Generation of Buckeye's Additional Unit for such month.
8.8 It is recognized that when Buckeye's Total Cardinal
Station Capacity Reservation reaches 86.9565% of the total
Buckeye's Contractual Net Capability of Buckeye's Initial Unit
and Buckeye's Additional Unit, and prior to the time when Buckeye
shall have depleted Buckeye's Unrecovered Excess Capacity
Account, Buckeye will be required to consider arrangements to
obtain an additional source or sources of electric power and
energy in order to enable it to satisfy the requirements of the
Buckeye Members therefor. Accordingly, reasonably in advance of
the time when forecasts prepared by Buckeye indicate that such
additional source or sources of electric power and energy may be
required. Buckeye may:
(a) negotiate with Ohio for another Buckeye generating
unit at a steam-electric generating station owned by Ohio in the
State of Ohio, or at a steam-electric generating station to be
built by Ohio in the State of Ohio; or
(b) negotiate and arrange to obtain electric power and
energy for delivery to the Buckeye Members (in excess of
Buckeye's then maximum entitlement in and to the use of the
capacity provided by the Cardinal Station) from any other source
or sources.
In the event that Buckeye shall enter into arrangements to obtain
an additional source or sources for the generation of electric
power and energy located within the State of Ohio, but otherwise
than with Ohio, as contemplated by subsection (b) of this
Section, and if in the judgment of Ohio and Buckeye it is
physically and economically feasible to operate such additional
source or sources for the generation of electric power and energy
in parallel with the Cardinal Station and Ohio's Bulk
Transmission Facilities, then Ohio and Buckeye will discuss and
explore such proposed parallel operation and attempt to negotiate
an agreement by which such parallel operation may be accomplished
on terms mutually acceptable to Ohio and Buckeye.
ARTICLE NINE.
Back-up of Buckeye Power Requirements.
9. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Section 9.2 of the Station
Agreement in its entirety and in lieu thereof substitute the
following Section 9.2 of the Station Agreement. Effective as of
the Date of Commercial Operation of Buckeye's Additional Unit,
delete Sections 9.1, 9.3, 9.4, 9.5, 9.6, 9.7 and 9.8 of the
Station Agreement in their entirety and in lieu thereof
substitute Sections 9.1, 9.3, 9.4 and 9.5 of the Station
Agreement as follows:
9.1 In order to assure that the Buckeye Power Requirement
may be supplied upon a basis which shall be as reliable as may
reasonably be provided, Ohio agrees to deliver Back-up Power from
the Ohio Back-up Stations upon the terms and conditions set forth
in this Article Nine.
9.2 Back-up Power and Back-up Energy (which term, during the
period between the Effective Date of Amendment No. 1 to the
Station Agreement and the Date of Commercial Operation of
Buckeye's Additional Unit shall, for purposes of this Article
Nine, include the terms Cardinal Station Back-up Energy and Ohio
System Back-up Energy, determined in accordance with the
provisions of Section 9.6 and Appendix D of this Agreement) shall
be provided by Ohio as follows:
(a) Ohio shall furnish Back-up Power, to the full extent
that it backs up firm contract demands of its own customers,
during such period or periods of time during any calendar year
when the capability of Buckeye's Initial Unit and/or Buckeye's
Additional Unit shall he curtailed and/or Buckeye's Initial Unit
and/or Buckeye's Additional Unit shall be removed from service,
for any reason, including preventative maintenance and/or
repairs, shortages of fuels, or as a result of laws and/or rules
and regulations affecting emissions of pollutants, discharge of
wastes or other environmental conditions, and no capacity charge
shall be made by Ohio to Buckeye for Back-up Power furnished
pursuant to the provisions of this subsection (a); provided,
however, that in no event shall Ohio be obligated to supply
Back-up Power during any one calendar year which in the aggregate
exceeds a number of kilowatthours of Back-up Energy equal to the
sum of (A) the product of (i) 0.130435, (ii) Buckeye's
Contractual Net Capability of Buckeye's Initial Unit, and (iii)
8760, and (B) the product of (i) the Applicable Percentage, (ii)
Buckeye's Contractual Net Capability of Buckeye's Additional
Unit, and (iii) 8760, except that when in any calendar year the
Back-up Energy furnished by Ohio to Buckeye shall aggregate a
number of kilowatthours that is less than the sum of (A) and (B)
above, the deficiency shall be carried forward to the succeeding
calendar year and added to the amount of Back-up Power which Ohio
shall be obligated, if required, to furnish in such year, and any
such amount of Back-up Power not being so supplied by Ohio in
such subsequent year shall be similarly carried forward into the
next succeeding subsequent calendar year until such deficiency
shall have been exhausted. The term Applicable Percentage, as
used in this subsection (a): (I) during the period between the
Date of Commercial Operation of Buckeye's Additional Unit and
December 31 of the first full calendar year succeeding such date
shall mean the product of (X) 0.130435 and (Y) a fraction the
denominator of which shall be 12 and the numerator of which shall
be the number of full calendar months between the Date of
Commercial Operation of Buckeye's Additional Unit and the
December 31 of the third full calendar year succeeding the Date
of Commercial Operation of Buckeye's Additional Unit, (II) during
the periods between January 1 and December 31 of the second, and
of the third, full calendar year succeeding the Date of
Commercial Operation of Buckeye's Additional Unit shall mean
0.000000 subject to the provision of this subsection (a)
permitting unused amounts applicable to prior years to be
accumulated and carried forward to subsequent years, and (III)
during each of the calendar years in the period subsequent to
December 31 of the third full calendar year succeeding the Date
of Commercial Operation of Buckeye's Additional Unit shall mean
0.130435 subject to the provisions of this subsection (a)
permitting unused amounts applicable to prior years to be
accumulated and carried forward to subsequent years.
(b) Buckeye shall pay Ohio for Back-up Energy furnished
in any month an amount equal to the product of (i) the total
kilowatthours of such Back-up Energy for such month, and (ii)
Ohio Stations Average Fuel and Maintenance Cost.
(c) Back-up Energy, for any hour, shall, subject to the
provisions of subsection (c) of Section 11.1 of this Agreement,
be equal to the amount by which (i) Buckeye's Cardinal Hourly
Demand exceeds (ii) the sum of (A) Total Net Available Capability
of Buckeye's Units for such hour, (B) energy associated with
Buckeye's Supplementary Power, if any, for such hour as
determined by the provisions of Section 10.3(j) of this
Agreement, and (C) energy associated with Buckeye's Excess
Supplementary Power, if any, for such hour as determined by the
provisions of Section 10.3(k) of this Agreement. Back-up Energy,
as determined for each hour, shall be accumulated and billed on a
calendar month basis.
(d) In the event that, at any time, in any calendar year
(i) the capability of Buckeye's Initial Unit and/or Buckeye's
Additional Unit shall be curtailed, and/or Buckeye's Initial Unit
and/or Buckeye's Additional Unit shall be removed from service
for any reason, including preventative maintenance and/or
repairs, shortages of fuels, or as a result of laws and/or rules
and regulations affecting emissions of pollutants, discharge or
wastes, or other environmental conditions, and (ii) Ohio shall
not at such time be obligated to furnish Back-up Power pursuant
to the provisions of subsection (a) of this Section 9.2. Ohio
shall, to the extent that it determines that it has electric
power and energy available from its own sources or can obtain
electric power and energy from systems with which it is directly
or indirectly interconnected, supply Replacement Power, and the
energy associated therewith, to the extent required to supply, in
addition to other power and energy then supplied by Ohio to
Buckeye under this Agreement, the Buckeye Power Requirement, and
Buckeye shall pay to Ohio for such Replacement Power and such
energy (i) if supplied from sources of Ohio, or an Ohio
Associate, the sum of (X) the product of (A) $4.00 and (B) the
largest number of kilowatts during any hour in such month when
Replacement Power, and such energy, shall be supplied from such
source by which the Buckeye Cardinal Hourly Demand for any hour
exceeds the sum of (i) the Total Net Available Capability of
Buckeye's Units during such hour, (ii) Buckeye's Supplementary
Power Demand, if any, during such hour, and (iii) Buckeye's
Excess Supplementary Power Demand during such hour and (Y) the
out-of-pocket costs which Ohio incurs in supplying such energy;
or (II) if obtained by Ohio from interconnected systems other
than the system of Ohio or the systems of Ohio Associates the sum
of (XX) the out-of-pocket costs which Ohio incurs for any demand
or capacity charges payable to such other systems in supplying
such Replacement Power and (YY) 1.15 times the out-of-pocket
costs which Ohio incurs for any energy charges payable to such
other systems in supplying energy associated with Replacement
Power. For purposes of this subsection, after Buckeye shall have
depleted Buckeye's Unrecovered Excess Capacity Account, Buckeye
Cardinal Hourly Demand shall not exceed a number of kilowatts
equal to 86.9565% of Buckeye's Contractual Net Capability of
Buckeye's Units.
(e) Energy associated with Replacement Power, for any
hour in which Ohio is not obligated to furnish Back-up Power,
shall, if Ohio supplies energy associated with Replacement Power,
subject to the provisions of subsection (c) of Section 11.1 of
this Agreement, be equal to the amount by which (i) Buckeye's
Cardinal Hourly Demand exceeds (ii) the sum of (A) Total Net
Available Capability of Buckeye's Units for such hour, (B) energy
associated with Buckeye's Supplementary Power, if any, for such
hour as determined by the provisions of Section 10.3(j) of this
Agreement, and (C) energy associated with Buckeye's Excess
Supplementary Power, if any, for such hour as determined by the
provisions of Section 10.3(k) of this Agreement. Energy
associated with Replacement Power, as determined for each hour,
shall he accumulated and billed on a calendar month basis.
9.3 If Buckeye's Initial Unit or Buckeye's Additional Unit
is out of service during any hour the auxiliary power
requirements, if any, for such unit shall be deemed to have been
supplied for such hour from the remaining Buckeye Unit if such
unit is in service during such hour and from the Ohio Back-up
Station if both Buckeye Units are out of service during that
hour.
9.4 In addition to any amounts to be paid by Buckeye
pursuant to this Article Nine, Buckeye shall pay to Ohio an
amount in dollars sufficient to reimburse Ohio for any amounts
paid or payable by it as sales, excise or similar taxes (other
than taxes based on or measured by net income) in respect of the
total amounts paid by Buckeye hereunder and to enable Ohio, after
provision for such taxes, to realize the net amounts payable by
Buckeye as herein provided.
9.5 As soon as practical after the end of any month in which
any Back-up Energy, and/or energy associated with Replacement
Power, is provided hereunder for which Buckeye is required to pay
Ohio, a statement in respect thereof will be rendered to Buckeye
by Operating Company on behalf of Ohio. Ohio shall furnish
Operating Company such computations as shall be necessary to
permit Operating Company to prepare such statement. Buckeye
shall pay Ohio within fifteen (15) days after the receipt of such
statement the amount charged therein. Interest shall be charged
by Ohio to Buckeye at the rate of 6% per annum on any overdue
amount.
ARTICLE TEN.
Excess, Surplus and Supplementary Capacity.
10. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Section 10.2 of the Station
Agreement in its entirety and in lieu thereof substitute the
following Section 10.2 of the Station Agreement. Effective as of
the Date of Commercial Operation of Buckeye's Additional Unit,
delete Sections 10.1, 10.3, 10.4, 10.5, 10.6 and 10.7 of the
Station Agreement in their entirety and in lieu thereof
substitute the following Sections 10.1, 10.3, 10.4, 10.5 and 10.6
of the Station Agreement:
10.1 The Total Net Capability of the Buckeye Units in excess
of the Buckeye Cardinal Hourly Demand for any hour shall be made
available to Ohio at any and all times subsequent to the Date of
Commercial Operation of Buckeye's. Additional Unit and Ohio
shall effect settlements with Buckeye for Contract Excess
Capacity as follows: Subsequent to and on the date on which
commercial operation of Buckeye's Additional Unit, shall
commence, Ohio shall effect settlements in the form of a dollar
amount of money, monthly, equal to the sum of (a) the product of
(i) Buckeye's Monthly Carrying Charge, and (ii) the ratio of
Contract Excess Capacity to the sum of Buckeye's Contractual Net
Capability of Buckeye's Initial Unit and Buckeye's Additional
Unit, and (b) an amount in dollars sufficient to reimbursement
Buckeye for any amounts paid or payable by it as sales, excise or
similar taxes (other than taxes based on or measured by net
income) in respect of the total amount paid by Ohio pursuant to
this section and to enable Buckeye, after provision for such
taxes, to realize the net amount payable by Ohio as herein
provided.
10.2 If at the beginning of any calendar month the sum of
the Buckeye Cardinal Monthly Demands for the preceding twelve
calendar months is less than 85% of the sum of the Buckeye
Cardinal Monthly Demands for the twelve calendar months ending
with the month in which the then effective Buckeye Cardinal Peak
Demand was established, Ohio will purchase from Buckeye any
Surplus Capacity available from Buckeye's Units during such
calendar month and will pay to Buckeye therefor, in addition to
any amount which Ohio may be obligated to pay to Buckeye as
provided in Section 10.1 for Contract Excess Capacity made
available to Ohio in such calendar month, a dollar amount of
money equal to the sum of (i) the product of the Buckeye Monthly
Carrying Charge, or before the Date of Commercial Operation of
Buckeye's Additional Unit, Buckeye Initial Unit Monthly Carrying
Charge, less the sum of (x) the amount included as a credit in
respect of contributed capital pursuant to clause (B) of the
definition of Buckeye Initial Unit Monthly Carrying Charge and
after the Date of Commercial Operation of Buckeye's Additional
Unit (y) the amount included as a credit in respect of
contributed capital pursuant to clause (B) of the definition of
Buckeye Additional Unit Monthly Carrying Charge, and the ratio of
the Surplus Capacity available during such calendar month from
Buckeye's Units to Buckeye's Contractual Net Capability of
Buckeye's Units, and (ii) an amount in dollars sufficient to
reimburse Buckeye for any amounts paid or payable by it as sales,
excise or similar taxes (other than taxes based on or measured by
net income) in respect of the total amount so paid by Ohio to
Buckeye and to enable Buckeye, after provision for such taxes, to
realize the net amount payable by Ohio for Surplus Capacity as
provided in this Section. After the date which is the earlier of
(a) the date on which 115% of Buckeye's Additional Unit Capacity
Reservation equals Buckeye's Contractual Net Capability of
Buckeye's Additional Unit, and (b) the date on which Buckeye's
Total Cardinal Station Capacity Reservation shall equal 86.9565%,
of the Buckeye's Contractual Net Capability of Buckeye's Initial
Unit and Buckeye's Additional Unit, Ohio shall have no further
obligation under this Agreement to acquire Surplus Capacity from
Buckeye or to pay Buckeye therefor.
10.3 Ohio shall make available to Buckeye from Ohio's
Initial Unit and/or the Ohio Generating Stations or any
combination of such sources, and Buckeye shall be entitled to
purchase from Ohio, Buckeye's Supplementary Power, and energy
associated therewith, on the following terms and conditions:
(a) Buckeye will establish after the Date of Commercial
Operation of Buckeye's Additional Unit and thereafter from time
to time increase Buckeye's Supplementary Power Demand to the
extent necessary to provide Buckeye's Supplementary Power, on
notice to Ohio as herein prescribed, to a maximum of 50% of the
Total Net Capability of Buckeye's Units. Buckeye shall use its
best efforts to keep Ohio informed at least 90 days in advance of
any anticipated increase in Buckeye's Supplementary Power Demand.
In the event that the Buckeye Cardinal Monthly Demand at the
Cardinal Station's high-voltage busses exceeds for any month
Buckeye's Total Cardinal Station Capacity Reservation then in
effect by one or more megawatts, then Buckeye's Supplementary
Power Demand shall be increased by the amount of such excess (up
to the maximum amount specified herein) beginning with the month
in which such excess occurred.
(b) In the event that Buckeye's Supplementary Power
Demand is increased to its maximum permissible amount (50% of the
Total Net Capability of Buckeye's Units) pursuant to subsection
(a) above, Buckeye may continue to obtain Buckeye's Supplementary
Power hereunder until such time as the entitlement of Buckeye
thereto shall terminate pursuant to the provisions of Section
10.4 and Ohio shall make available to Buckeye in any month as
Buckeye's Excess Supplementary Power Demand that number of
kilowatts of capacity which, when added to the sum of (i)
Buckeye's Initial Cardinal Station Capacity Reservation and (ii)
Buckeye's Additional Unit Capacity Reservation, and (iii)
Buckeye's maximum entitlement to Buckeye's Supplementary Power
Demand, shall establish Buckeye's Total Firm Reservation at not
less than Buckeye's Cardinal Peak Demand established in any month
prior to and including such month. Buckeye shall use its best
efforts to keep Ohio informed at least 90 days in advance of any
anticipated increase in Buckeye's Excess Supplementary Power
Demand. In the event that the Buckeye Cardinal Monthly Demand
exceeds for any month Buckeye's Total Firm Reservation in effect
as of the beginning of such month by one or more megawatts,
Buckeye's Excess Supplementary Power Demand shall be increased by
the amount of such excess beginning with the month in which such
excess occurred.
(c) Operating Company shall make a record at the close
of every month after the Date of Commercial Operation of
Buckeye's Additional Unit in which Contract Excess Capacity
and/or Surplus Capacity is provided to Ohio hereunder of (i) the
total number of kilowatt-months of Contract Excess Capacity that
were made available to Ohio in such month, (ii) the total dollar
amount payable by Ohio to Buckeye for that number of
kilowatt-months of Contract Excess Capacity specified in (i)
above, (iii) the total number of kilowatt-months of Surplus
Capacity purchased by Ohio in such month, and (iv) the total
dollar amount payable by Ohio to Buckeye for Surplus Capacity
purchased in such month. During the term of this Agreement,
Operating Company shall maintain permanent cumulative records of
(v) the total number of kilowatt-months of Contract Excess
Capacity made available to Ohio, (vi) the total dollar amount
paid by Ohio to Buckeye for such Contract Excess Capacity, and
(vii) the total number of kilowatt-months of Surplus Capacity
purchased by Ohio pursuant to Section 10.2.
(d) Operating Company shall make a record at the close
of every month in which Buckeye's Supplementary Power Demand is
required by Buckeye pursuant to subsection (a) above of (i) the
total kilowatts of Buckeye's Supplementary Power Demand in effect
for such month, and (ii) the total dollar amount payable by
Buckeye to Ohio in respect of Buckeye's Supplementary Power
Demand as provided in subsection (e) of this Section. During the
term of this Agreement, Operating Company shall maintain
permanent cumulative records of (iii) the total number of
kilowatt-months of Buckeye's Supplementary Power Demand required
by Buckeye pursuant to subsection (a) above and (iv) the dollar
amounts payable monthly by Buckeye to Ohio in respect of
Buckeye's Supplementary Power Demand.
(e) Buckeye shall pay Ohio for Buckeye's Supplementary
Power Demand in effect for any month after the Date of Commercial
Operation of Buckeye's Additional Unit an amount of dollars equal
to the sum of (i) the product of (A) Ohio's Average Excess
Capacity Cost (determined as provided in subsection (g) of this
Section) for such month, and (B) 115% of Buckeye's Supplementary
Power Demand in effect for such month, and (ii) an amount in
dollars sufficient to reimburse Ohio for any amounts paid or
payable by it as sales, excise or similar taxes (other than taxes
based on or measured by net income) in respect of the total
amount paid by Buckeye pursuant to this subsection (e) and to
enable Ohio, after provision for such taxes, to realize the net
amount payable by Buckeye as herein provided.
(f) Operating Company shall maintain a cumulative record
after Date of Commercial Operation of Buckeye's Additional Unit
wherein it shall deduct, monthly, the amount in dollars payable
by Buckeye to Ohio for Buckeye's Supplementary Power Demand
pursuant to subsection (e) above from the cumulative total amount
in dollars payable by Ohio to Buckeye for Contract Excess
Capacity as recorded pursuant to subsection (c) above, and the
balance remaining at any time in such record account shall
constitute Buckeye's Unrecovered Excess Capacity Account at such
time.
(g) Ohio's Average Excess Capacity Cost at any time
shall be determined by dividing (i) the total dollar amount paid
by Ohio to Buckeye for Contract Excess Capacity shown in the
cumulative record maintained by Operating Company pursuant to
clause (vi) of subsection (c) above, by (ii) the total number of
kilowatt-months of Contract Excess Capacity made available to
Ohio after the Date of Commercial Operation of Buckeye's
Additional Unit, as shown in the cumulative record maintained by
Operating Company pursuant to clause (v) of subsection (c) above
less the total number of kilowatt-months of Surplus Capacity
purchased by Ohio after the Date of Commercial Operation of
Buckeye's Additional Unit, as shown in the cumulative record
maintained by Operating Company pursuant to clause (vii) of
subsection (c) above.
(h) Buckeye shall pay Ohio for Buckeye's Excess
Supplementary Power Demand in effect for any month an amount in
dollars equal to the sum of (i) the product of (A) 1.1042% of
Ohio's average investment in the Ohio Generating Stations
(computed as provided in subsection (i) of this Section) for such
month, and (B) 115% of Buckeye's Excess Supplementary Power
Demand in effect for such month, and (ii) an amount in dollars
sufficient to reimburse Ohio for any amounts paid or payable by
it as sales, excise or similar taxes (other than taxes based on
or measured by net income) in respect of the total amount paid by
Buckeye pursuant to this subsection (h) and to enable Ohio, after
provision for such taxes, to realize the net amount payable by
Buckeye as herein provided.
(i) Ohio's average investment in the Ohio
Generating Stations for any month shall be computed as follows,
using values as of the end of the next preceding month:
(i) There shall be determined the sum of Ohio's
investment at each of the Ohio Generating Stations as shown by
Accounts 310 through 316 and Accounts 389 through 398 of the
Uniform System of Accounts.
(ii) There shall be determined the sum of the net
capability of each of the Ohio Generating Stations as reported by
the Statistical Department of American Electric Power Service
Corporation.
(iii) Ohio's average investment in the Ohio
Generating Stations will be equal to the sum determined pursuant
to clause (i) above divided by the sum determined pursuant to
clause (ii) above.
(j) Energy associated with Buckeye's Supplementary
Power in any month shall be determined for each hour and
accumulated on a calendar month basis and shall equal, for any
hour, the amount by which Buckeye Cardinal Hourly Demand exceeds
the sum of Total Net Available Capability of Buckeye's Units for
that hour, but shall not be greater than Buckeye Supplementary
Power Demand then effective. Buckeye shall pay Ohio for energy
associated with Buckeye's Supplementary Power Demand in any month
an amount equal to the product of (i) the total kilowatt hours of
such energy for such month, and (ii) Ohio Stations Average Fuel
and Maintenance Cost.
(k) Energy associated with Buckeye's Excess
Supplementary Power in any month shall be determined for each
hour and accumulated on a calendar month basis and shall equal,
for any hour, the amount by which Buckeye's Cardinal Hourly
Demand exceeds the sum of (i) Total Net Available Capability of
Buckeye's Units for that hour and (ii) Buckeye's Supplementary
Power Demand then effective, but shall not be greater than
Buckeye's Excess Supplementary Power Demand then effective.
Buckeye shall pay Ohio for energy associated with Buckeye's
Excess Supplementary Power Demand in any month an amount equal to
the product of (i) the total kilowatt hours of such energy for
such month, and (ii) Ohio Stations Average Fuel and Maintenance
cost.
10.4 Buckeye's right to obtain Buckeye's Supplementary Power
under the terms and conditions of this Agreement shall terminate
on the date after the Date of Commercial Operation of Buckeye's
Additional Unit when the balance of dollars in Buckeye's
Unrecovered Excess Capacity Account shall become zero, as to any
entitlement of Buckeye to Buckeye's Supplementary Power
theretofore established, and, upon the occurrence of such event,
Operating Company shall close out the cumulative records
maintained by Operating Company pursuant to the provisions of
subsection (c) of Section 10.3. Upon any such termination of the
right of Buckeye to obtain Buckeye's Supplementary Power
hereunder, Buckeye shall not thereafter have any right to obtain
any of Buckeye's Supplementary Power.
10.5 As soon as practicable after the end of any month in
which Contract Excess Capacity is made available by Buckeye to
Ohio hereunder, a statement in respect thereof will be rendered
to Ohio by Operating Company on behalf of Buckeye. Buckeye shall
furnish Operating Company such computations as shall be necessary
to permit Operating Company to prepare such statement. Ohio
shall pay Buckeye within fifteen (15) days after receipt of such
statement the amount specified as payable therein. Interest
shall be charged by Buckeye to Ohio at the rate of 6% per annum
on any overdue amount.
10.6 As soon as practicable after the end of any month in
which Buckeye's Supplementary Power or Buckeye's Excess
Supplementary Power is made available hereunder for which Buckeye
is required to pay Ohio, a statement in respect thereof will be
rendered to Buckeye by Ohio. Buckeye shall reimburse Ohio within
fifteen (15) days after receipt of any such statement for the
amounts specified as payable therein. Interest shall be charged
by Ohio to Buckeye at the rate of 6% per annum on any overdue
amounts.
ARTICLE ELEVEN.
Buckeye's Interim Power.
11. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Article Eleven of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
11.1 Ohio shall make available to Buckeye from Ohio's
Initial Unit or the Ohio Generating Stations or any combination
of such sources, and Buckeye shall purchase from Ohio, Buckeye's
Interim Power on the following terms and conditions:
(a) Buckeye's Summer Interim Power Reservation shall be
initially established in the first Summer Month in the Interim
Period and shall be equal to the amount by which Buckeye's
Cardinal Monthly Demand in such month exceeds 86.9565% of
Buckeye's Contractual Net Capability of Buckeye's Initial Unit in
such month. In each succeeding Summer Month during the Interim
Period, Buckeye's Summer Interim Power Reservation shall equal
the greater of (i) Buckeye's Summer Interim Power Reservation for
the previous Summer Month or (ii) the difference between
Buckeye's Cardinal Monthly Demand in such month and 86.9565% of
Buckeye's Contractual Net Capability of Buckeye's Initial Unit in
such month.
(b) Buckeye's Winter Interim Power Reservation shall be
initially established in the first Winter Month in the Interim
Period and shall be equal to the amount by which Buckeye's
Cardinal Monthly Demand in such month exceeds 86.9565% of
Buckeye's Contractual Net Capability of Buckeye's Initial Unit in
such month. In each succeeding Winter Month during the Interim
Period. Buckeye's Interim Power Reservation shall equal the
greater of (i) Buckeye's Winter Interim Power Reservation for the
previous Winter Month or (ii) the difference between Buckeye's
Cardinal Monthly Demand in such month and 86.9565% of Buckeye's
Contractual Net Capability of Buckeye's Initial Unit in such
month.
(c) Buckeye's Interim Power shall be supplied by Ohio
to Buckeye, and Buckeye shall purchase Buckeye's Interim Power
from Ohio, during each month within the Interim Period to the
extent of Buckeye's Interim Power Reservation in such month.
Buckeye's Interim Power, and the energy associated therewith,
shall be purchased by Buckeye from Ohio, and shall be supplied by
Ohio to Buckeye, for such amount of money as, at any time in
question, results from the application to the billing
determinants of Buckeye of the then effective rate provisions of
any tariff or service schedule of Ohio, filed with and made
effective by the Federal Power Commission under the Federal Power
Act, for the supply by Ohio of "limited term power" from its
system to another electric system, as shall then be designated by
Ohio.
The energy associated with Buckeye's Interim Power for
any hour during the Interim Period shall equal the amount by
which the Buckeye Cardinal Hourly Demand exceeds 86.9565 percent
of Buckeye's Contractual Net Capability of Buckeye's Initial Unit
for that hour, but will not be greater than Buckeye's Interim
Power Reservation then effective.
For the purposes of classifying energy delivered during
the period between the Effective Date of Amendment No. 1 to the
Station Agreement and the Date of Commercial Operation of
Buckeye's Additional Unit, energy associated with Replacement
Power, as determined by the provisions of Article Nine of this
Agreement, shall be reduced in any month during the Interim
Period by the sum of the kilowatthours, for all hours of such
month, of energy associated with Buckeye's Interim Power; Ohio
System Back-up Energy, as determined by the provisions of
Appendix D hereto, shall be reduced in any month during the
Interim Period by the sum of the kilowatthours, for all hours of
such month, by which energy associated with Buckeye's Interim
Power exceeds the kilowatthours, for all hours of such month, of
energy associated with Replacement Power; Cardinal Station
Back-up Energy, as determined by the provisions of Appendix D
hereto, shall be reduced in any month during the Interim Period
by the sum of the kilowatthours, for all hours of such month, by
which energy associated with Buckeye's Interim Power exceeds the
sum of the kilowatthours, for all hours of such month, of energy
associated with Replacement Power and Ohio System Back-up Energy,
as determined by the provisions of Appendix D hereto; Buckeye's
Initial Unit Monthly Energy, as determined by the provisions of
Appendix D hereto, shall be reduced in any month during the
Interim Period by the sum of kilowatthours, for all hours of such
month, by which energy associated with Buckeye's Interim Power
exceeds the sum of energy associated with Replacement Power, Ohio
System Back-up Energy and Cardinal Station Back-up Energy, as
determined by the provisions of Appendix D hereto; Ohio's Initial
Unit Monthly Energy, as determined by the provisions of Appendix
D hereto, shall be increased in any month during the Interim
Period by the sum of kilowatthours, for all hours of such month,
by which energy associated with Buckeye's Interim Power exceeds
the sum of energy associated with Replacement Power, Ohio System
Back-up Energy and Cardinal Station Back-up Energy as determined
by the provisions of Appendix D hereto.
(d) In the event the Interim Period commences on a date
other than the first day of a calendar month, or terminates on a
date other than the last day of a calendar month, then Buckeye
shall be obligated to purchase, and Ohio shall be obligated to
sell, Interim Power only for the portion of such month that is
within the Interim Period, and the amount to be paid for such
Interim Power, determined in accordance with subsection (c)
above, shall be appropriately prorated.
ARTICLE TWELVE.
Delivery Service.
12. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Article Twelve of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
12.1 Buckeye agrees that, notwithstanding the provisions of
subsection (c) of Section 4.3 of the Power Delivery Agreement,
Buckeye will not, in light of the obligations assumed by Ohio
hereunder, without the consent of Ohio, designate any location in
an area served by Ohio as a Delivery Point (as defined in said
Power Delivery Agreement) under the Power Delivery Agreement for
the purpose of meeting the requirements of a Buckeye Member
resulting from load growth and/or prospective load growth in the
affected area at such point of delivery where the Delivery Point
Monthly Demand (as defined in said Power Delivery Agreement),
will be less than 1,000 kw at the time such additional Delivery
Point is established; provided that, where in a particular case
the imposition of such a limitation is likely to limit unduly the
ability of such Buckeye Member to meet its requirements for its
load growth and/or its prospective load growth in such area, the
Delivery Point Monthly Demand may be less than 1,000 kw but not
less than 750 kw at the time such additional Delivery Point is
established.
12.2 Buckeye agrees that, notwithstanding the provisions of
subsection (b) of Section 4.4 of the Power Delivery Agreement,
Buckeye will, in light of the obligations assumed by Ohio
hereunder, if requested by Ohio, mutually agree with Ohio that
Delivery Service (as defined in said Power Delivery Agreement) to
a new Delivery Point designated by Buckeye in an area served by
Ohio shall be provided at a voltage of 138 kv, and Ohio agrees
that if requested by Buckeye, it will provide Delivery Service to
a new Buckeye Delivery Point in the area served by Ohio at a
voltage of 138 kv if such delivery voltage is reasonably
available and can be provided without undue burden to Ohio taking
into account the proximity of existing 138 kv transmission
facilities, physical conditions, costs and the requirements of
good engineering practices.
12.3 The parties hereto agree that, notwithstanding any
provision of Section 4.3 of the Power Delivery Agreement to the
contrary, if at any time Buckeye shall designate a location
(referred to in this Section 12.3 as the "Designated Location")
within the State of Ohio as a proposed new Delivery Point, or
shall request Ohio to establish at such Designated Location an
additional Ohio Edison Delivery Point by mutual agreement between
Ohio and Ohio Edison Company, and (1) such location is in an area
in which transmission and/or distribution facilities of Ohio
Edison Company are located, and (2) Ohio Edison Company shall,
upon being requested by Ohio to provide an additional Ohio Edison
Delivery Point at such Designated Location, advise Ohio that Ohio
Edison Company will take such action only under conditions where
Ohio pays, or agrees to pay, Ohio Edison Company special
compensation in addition to the facilities use charge payable by
Ohio to Ohio Edison pursuant to Section 8 of the agreement, dated
as of June 20, 1968, between Ohio and Ohio Edison Company, then:
(a) Ohio shall agree to pay to Ohio Edison Company upon
the establishment of such additional Ohio Edison Company Delivery
Point the special compensation requested by Ohio Edison Company,
and Buckeye shall, if requested by Ohio, reimburse Ohio for
one-half (1/2) of the special compensation payable by Ohio to
Ohio Edison Company forthwith upon payment, or any installment
thereof, unless (b) Ohio or, if Ohio shall have requested Buckeye
to reimburse Ohio for one-half (1/2) of the special compensation
payable by Ohio to Ohio Edison Company, Buckeye, shall consider
the amount and/or the terms of payment of such special
compensation to be unreasonable, then a Delivery Point shall be
established at the Designated Location, or at a point on the
Power Delivery Facilities of Ohio, or adjacent to Ohio's Bulk
Transmission Facilities (i) on such terms as shall be determined
by mutual agreement of Buckeye and Ohio, or (ii) failing such
mutual agreement, on such terms, fairly sharing the benefits and
burdens associated with the rendition of Delivery Service at such
Designated Location and taking into account all pertinent factors
including but not limited to costs, reliability of service, good
engineering practice, environmental factors and the long-range
plans of the parties, as shall be determined by arbitration
pursuant to Section 17.6 of this Agreement; provided, however,
that nothing contained in this subsection (b) or in Section 17.6
of this Agreement shall be deemed to preclude, in any such case,
Buckeye or Ohio from taking, in lieu of or to supersede an
arbitration proceeding (1) such action before The Public
Utilities Commission of Ohio in Case No. 34574, or otherwise, (2)
such action before the United States Atomic Energy Commission
pursuant to any condition contained in any operating license
issued by the United States Atomic Energy Commission to Ohio
Edison Company, or to Ohio Edison Company and one or more other
licensees, under the Atomic Energy Act of 1954, as amended, or
otherwise, (3) such action before the Federal Power Commission
pursuant to applicable provisions of the Federal Power Act, as
amended, or otherwise, (4) such action before the Power Siting
Commission of Ohio pursuant to Section 4906 of the Revised Code
of Ohio, as amended, or otherwise, (5) such action before such
other governmental agency or agencies having jurisdiction in the
premises, and/or (6) such action to institute, or participate in,
a proceeding or proceedings in court to review any order or
orders of any such agency or agencies, as may be considered
necessary or appropriate by Buckeye or Ohio, as the case may be,
to cause an additional Ohio Edison Delivery Point, or a new
Delivery Point, to be established, operated and maintained on
reasonable terms;
and provided that Ohio, recognizing that a case-by-case
arrangement evolved pursuant to the foregoing provisions of
subsections (a) and (b) of this Section 12.3 may not necessarily
afford, in Buckeye's view, the most desirable method, from a
system planning standpoint, of establishing Delivery Service in
the areas where transmission and distribution facilities of Ohio
Edison Company are located, agrees that, upon the request of
Buckeye, Ohio will consider, and negotiate in good faith with
respect to, alternative arrangements for providing on a long term
basis Delivery Service to Buckeye Members in such areas.
ARTICLE THIRTEEN
Classification of Energy.
13. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Article Thirteen of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
13.1 It is the intention of the parties hereto that
operations hereunder and under the Power Delivery Agreement shall
be so conducted that (a) electric energy supplied to Buckeye or
the Buckeye Members from Cardinal Station shall be consumed
wholly within the State of Ohio, (b) electric energy supplied to
Buckeye or the Buckeye Members by Ohio pursuant to Articles Nine
and Ten hereof otherwise than from Cardinal Station shall be
supplied wholly from generation by Ohio or a wholly owned
subsidiary of Ohio within the State of Ohio, (c) electric energy
supplied to Buckeye or the Buckeye Members by Ohio under the
circumstances referred to in subsection (b) of this Section shall
be consumed wholly within the State of Ohio, and (d) electric
energy supplied to Ohio from Cardinal Station shall be consumed
wholly within the State of Ohio.
13.2 In accordance with the intention of the parties set
forth in Section 13.1, Ohio and Buckeye hereby agree that, during
any applicable period of measurement:
(a) Electric energy delivered to Buckeye and/or the
Buckeye Members as contemplated by this Agreement and by the
Power Delivery Agreement, plus transmission losses applicable
thereto, shall be classified as electric energy generated at
Cardinal Station whenever the aggregate of such electric energy
plus the aggregate of such losses is equal to or less than Total
Net Generation at the Cardinal Station.
(b) Electric energy delivered by Ohio to Buckeye and/or
the Buckeye Members pursuant to Articles Nine, Ten and Eleven of
this Agreement otherwise than from Cardinal Station, i.e.,
electric energy supplied to the extent required when the
aggregate of the electric energy delivered to Buckeye and/or the
Buckeye Members, plus transmission losses applicable thereto, is
greater than Total Net Generation at the Cardinal Station, shall
be classified as electric energy generated at other generating
stations of Ohio located within the State of Ohio.
(c) Electric energy delivered to Ohio from Cardinal
Station as contemplated by this Agreement shall be classified as
electric energy delivered to retail customers of Ohio within the
State of Ohio.
13.3 Ohio and Buckeye shall establish and carry out such
procedures as may be necessary to effectuate the provisions of
this Article Thirteen and to make any determination requisite for
that purpose.
ARTICLE FOURTEEN.
Functions of Operating Company.
14. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Article Fourteen of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
14.1 Operating Company shall operate and maintain the
Cardinal Station in accordance with the provisions of this
Agreement and in conformity with the provisions of the Power
Delivery Agreement. In operating and maintaining the Cardinal
Station as aforesaid, Operating Company shall act without
compensation and only as agent for the Owners. All funds
received and disbursements made by Operating Company in
connection with the operation and maintenance of the Cardinal
Station shall be for the account of the Owners as their interests
and obligations shall appear hereunder.
14.2 Each Owner has purchased at the par value thereof 250
shares of capital stock of Operating Company, representing 50% of
the authorized number of such shares. Neither Owner shall sell,
assign or otherwise dispose of its share interest in Operating
Company except as an entirety to a successor to substantially all
its assets, property and business or to the other Owner for cash
in the amount of the par value thereof or, in the case of
Buckeye, to the Trustees, or either of them, under the Buckeye
Mortgage.
14.3 Each Owner shall be entitled to designate such number
of nominees for election as directors of Operating Company as
shall represent one-half of the authorized number of such
directors and shall also be entitled to designate nominees for
election to succeed any director previously nominated by it and
elected as contemplated hereby. Each Owner agrees that, in any
election of directors of Operating Company, including the
election of directors to fill vacancies from time to time
existing on the Board of Directors of Operating Company, it will
vote the shares of capital stock of Operating Company owned by it
for the election of the nominees designated by the other Owner to
the end that the Board of Directors of Operating Company shall at
all times consist equally of directors nominated by the
respective Owners.
14.4 Operating Company shall keep all necessary books of
record, books of account and memoranda of all transactions
involving the Cardinal Station and shall make daily, monthly and
annual computations and allocations on behalf of the respective
Owners as required under this Agreement and the Power Delivery
Agreement. The books of record, books of account and memoranda
shall be kept by Operating Company on the same basis for each of
the Owners and in such manner as to enable either of them to
conform, where so required, to the Uniform System of Accounts,
and to the rules and regulations of any regulatory body or bodies
having jurisdiction.
14.5 Operating Company shall perform all necessary invoicing
on behalf of the respective Owners as herein provided (whether
such invoicing shall be to the other Owner or to a third party)
when requested by them so to do.
14.6 Operating Company shall keep the Owners accurately
informed (by telephone communication in the case of emergencies)
of any operating conditions at the Cardinal Station which may
adversely affect its efficiency and reliability as a source of
power.
14.7 Operating Company shall maintain the metering equipment
at the Cardinal Station. Each Owner may, at its option and
expense, install check metering. Operating Company shall make
periodic tests and inspections of the meters (in accordance with
policy established by the Cardinal Station Operating Committee)
and shall adjust the meters as may be necessary to maintain the
same at the highest practicable commercial standard of accuracy.
Operating Company will advise the Owners promptly of the results
of any meter tests. Operating Company will give the Owners
notice of all tests and inspections, and the Owners shall be
entitled to have representatives present when such tests and
inspections are made. Operating Company shall make additional
tests of any of the meters at the request of either Owner. If
the periodic or additional tests to be made by Operating Company
do not show any meter to be less accurate than 1% slow or fast,
no correction shall be made in the various information and
statements therefore furnished to the Owners hereunder. If any
such tests show that a meter is inaccurate by more than 1% slow
or fast, corrections shall be made in the information and
statements based on readings derived therefrom furnished to the
Owners for the previous month and for the elapsed period in the
month during which the test was made, or from the date of the
latest test if within the previous month.
14.8 Funds required by Operating Company for performance of
its functions under this Agreement shall be provided by Buckeye
and Ohio in accordance with the provisions of Article Five
hereof. Operating Company shall establish such bank accounts as
it may from time to time require.
14.9 (a) As soon as practicable after the end of each month,
Operating Company shall furnish to Buckeye and to Ohio a
statement setting forth in reasonable detail the amounts to be
paid by Buckeye and Ohio to or for the account of Operating
Company hereunder. Buckeye and Ohio shall pay the amounts
respectively to be paid by them within fifteen (15) days after
receipt of such statement.
(b) Buckeye and Ohio recognize that as much as fifteen
(15) days may be required after the close of each calendar month
to assemble all the data required to compute and render a final
statement. Accordingly, Operating Company may, at its option, or
shall upon request by the Owners, render an estimated statement
to the Owners promptly after the close of each month, using the
then available data. In such event, any necessary adjustments to
conform such estimated statement to the final statement shall be
submitted at the time when the estimated statement is rendered
for the next succeeding month.
(c) In addition to any amounts required to be paid by
them to Operating Company hereunder, Buckeye and Ohio shall pay
Operating Company such amounts in dollars as shall be sufficient
to reimburse Operating Company for any amounts paid or payable by
Operating Company as sales, excise or similar taxes (other than
taxes based on or measured by net income) in respect of the total
amounts respectively paid by Ohio and Buckeye hereunder and to
enable Operating Company, after provision for such taxes, to
realize the net amounts payable by Ohio and Buckeye as herein
provided.
14.10 Buckeye and Ohio shall have the right, at any
reasonable times during the term of this Agreement, and any
extensions thereof, and for five years thereafter, to inspect all
books, records and accounts pertaining to the operations of
Cardinal Station for five years immediately preceding such
inspection, and to make such audits thereof as Buckeye and Ohio
may deem necessary in their respective interests.
14.11 Operating Company has entered into an agreement dated
as of January 1, 1968 with American Electric Power Service
Corporation, an Ohio Associate, to obtain special services
required as an incident to the operation of Cardinal Station.
14.12 Operating Company is hereby authorized to obtain
materials, labor and such other services as it considers
necessary in connection with the performance of the functions to
be performed by it hereunder from such sources or through such
subagents as it may designate.
ARTICLE FIFTEEN.
Cardinal Station Operating Committee.
15. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, delete Article Fifteen of the Station
Agreement in its entirety and in lieu thereof substitute the
following:
15.1 There is established hereunder a Cardinal Station
Operating Committee consisting of five members to exercise the
responsibilities specified in Section 15.5 and to perform such
other duties as may from time to time be assigned to it by the
Board of Directors of Operating Company.
15.2 Each Owner shall appoint two authorized representatives
to act as members of the Cardinal Station Operating Committee and
shall designate alternates who may act in the absence of such
representatives, and each Owner shall, in alternate years,
appoint the fifth member, who shall serve as the Committee
Chairman. Each Owner shall evidence such appointments by written
notice to the other Owner and, by similar notice, either Owner
may change its representatives or its alternates on such
Committee at any time. Each member of the Cardinal Station
Operating Committee may invite one other person, who need not be
a member of his organization but shall be acting, as his personal
advisor, to attend certain meetings of the Cardinal Station
Operating Committee as such advisor for the purpose of assisting
him in respect of matters scheduled to be considered thereat by
prearranging such attendance with the Committee Chairman.
15.3 The expenses of each member of the Cardinal Station
Operating Committee shall be borne by the Owner he represents.
15.4 The Cardinal Station Operating Committee shall hold
regularly scheduled monthly meetings and may meet at other times
upon call of the Chairman of the Committee. Any regularly
scheduled meeting of the Committee may be omitted but only by
unanimous consent of all members thereof.
15.5 The responsibilities of the Cardinal Station Operating
Committee shall include periodic reviews of Cardinal Station
operation and performance with the plant manager thereof,
including any problems encountered by plant management in
connection therewith, review of the load patterns of Buckeye and
Ohio and load forecasts furnished by Buckeye and the Buckeye
Members and the collection of statistical data and other
information which will be of assistance in connection with
scheduling for increases in Buckeye's Total Cardinal Station
Capacity Reservation or Buckeye's Total Firm Reservation.
15.6 Operating Company shall make available to the Cardinal
Station Operating Committee studies, reports and recommendations
received upon the performance of engineering and special services
obtained by Operating Company pursuant to Section 14.11 and
14.12.
ARTICLE SIXTEEN
Term of Agreement.
16. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, add in the Station Agreement immediately
following Article Fifteen thereof the following:
16.1 This Agreement shall continue for an initial term from
the date on which the Effective Date of Amendment No. 1 to the
Station Agreement shall occur to and until the close of business
on June 27, 2003; provided, however, that in the event that the
Date of Commercial Operation of Buckeye's Additional Unit shall
occur before January 1, 1979, then said initial term shall
continue for a period of thirty-five (35) years from such Date of
Commercial Operation of Buckeye's Additional Unit and, if such
Date of Commercial Operation of Buckeye's Additional Unit shall
occur on or after January 1, 1979, then said initial term shall
continue to January 1, 2014. Buckeye and Ohio shall commence
negotiations in respect of the extension of the initial term, or
termination, of this Amendment not less than seven (7) years
prior to the end of such initial term.
16.2 Notwithstanding the provisions of Section 16.1, this
Agreement shall terminate and be of no further force and effect
(a) upon purchase by Ohio of the property, property interests and
facilities owned by Buckeye at the Cardinal Station pursuant to
exercise by Ohio of any of the rights and options granted to it
by Buckeye in Section 2.8 and, if the Buckeye Mortgage shall then
constitute a lien on any property, property interests and
facilities so purchased, either the concurrent or substantially
concurrent satisfaction and discharge of the Buckeye Mortgage or
release of the property, property interests and facilities so
purchased from the lien thereof, or (b) at the election of Ohio,
upon purchase by Ohio of the property, property interests and
facilities owned by Buckeye at the Cardinal Station and the
assumption by Ohio pursuant to subsection (i) of Section 2.8, in
connection therewith, of the obligations of Buckeye to pay when
due the principal of, premium, if any, and accrued interest on
all bonds outstanding under the Buckeye Mortgage and to pay any
other amount required to be paid by Buckeye under the Buckeye
Mortgage and compliance with the conditions specified in said
subsection (i) relating to such assumption.
ARTICLE SEVENTEEN
General.
17. Effective as of the Effective Date of Amendment No. 1 to
the Station Agreement, add in the Station Agreement immediately
following Article Sixteen thereof the following:
17.1 The parties hereto recognize that this Agreement, the
Power Delivery Agreement, and any tariff or rate schedule which
shall embody or supersede either, are in certain respects subject
to the jurisdiction of The Public Utilities Commission of Ohio,
and in certain respects subject to the jurisdiction of the
Federal Power Commission under the Federal Power Act, and are
subject to such lawful action as any regulatory authority having
jurisdiction shall hereafter take with respect thereto. The
performance of any obligation of any party hereto shall be
subject to the receipt from time to time as required of such
authorizations or approvals of regulatory authorities having
jurisdiction as shall be required by law.
17.2 Ohio agrees to pay Buckeye for electric service
furnished to Ohio by Buckeye and for the right to receive the
same, and Buckeye agrees to pay Ohio for electric service
furnished to Buckeye and for the right to receive the same, in
accordance with the provisions of this Agreement, or any
applicable superseding tariff or rate schedule(s) accepted for
filing and made effective by such regulatory agency or agencies
as shall have jurisdiction in the premises, each of which is
incorporated herein by reference thereto, and service under this
Agreement, and/or under any such applicable superseding tariff or
rate schedule(s) shall be subject to all of the provisions of
this Agreement as the same may be changed or modified by any such
superseding tariff or rate schedule(s). It is expressly
understood that any party hereto shall be entitled, at any time
and from time to time, to make application for, or to take other
action, to submit for filing to any regulatory agency having
jurisdiction in the premises any tariff or rate schedule(s)
designed to supersede, in whole or in part, any provision of this
Agreement, or of any prior superseding tariff or rate
schedule(s), applicable to any electric service furnished under
this Agreement by such party to this Agreement to any other party
to this Agreement.
17.3 The parties hereto agree that, in the event that any
term or condition of this Agreement shall become the subject
(other than at the instance of a party to this Agreement) of a
proceeding before any regulatory agency, the parties will
cooperate and use their best efforts to defend the same;
provided, however, that if, after the Effective Date of Amendment
No. 1 to the Station Agreement, any term or condition of this
Agreement or the Power Delivery Agreement or any term or
condition under which electric service shall be provided by Ohio
to Buckeye, or by Buckeye to Ohio, shall be required to be
changed in any such proceeding pursuant to final order of a
regulatory authority having jurisdiction, then the parties hereto
shall, at the request of Buckeye or of Ohio, review the terms and
conditions of this Agreement and of the Power Delivery Agreement
in the light of such change and shall negotiate in good faith
with respect to any additional change or changes which either
Buckeye or Ohio shall consider necessary or desirable to restore,
in the light of such change, the relative relationships between
benefits and burdens under all of the interrelated conditions of
this Agreement and the Power Delivery Agreement which existed
prior to such change; and provided further that, in the event
that the parties hereto shall not agree to any additional change
or changes so requested, then any party hereto shall, upon
delivery of prior written notice to each other party hereto, be
entitled to take such action before, or make such filings with,
any regulatory authority having jurisdiction with respect to any
term or condition of this Agreement or of the Power Delivery
Agreement as such party shall deem appropriate and, in the event
of any such action by any party, the terms and conditions under
which service shall be rendered by any party hereto shall be the
terms and conditions as so changed or shall result from any
ensuing action by or before any regulatory authority having
jurisdiction.
17.4 All notices under this Agreement shall be in writing
and, if to Ohio, shall be sufficient in all respects if delivered
in person to its President, Executive Vice President or Vice
President or sent by registered mail or certified mail addressed
to it at its office at 301 Cleveland Avenue, S. W., Canton, Ohio
44702, or at any subsequent address of which Ohio may notify
Buckeye in writing; if to Buckeye, shall be sufficient in all
respects if delivered in person to its Executive Manager, or sent
by registered mail or certified mail to its office at 4302
Indianola Avenue, Columbus, Ohio 43214, or any subsequent address
of which Buckeye may notify Ohio in writing; and, if to Operating
Company, shall be sufficient in all respects if delivered in
person to its President or sent by registered mail or certified
mail to such address as Operating Company shall provide to
Buckeye and Ohio by notice given as herein provided.
17.5 If, at any time, there shall be a dispute or difference
of opinion between Buckeye and Ohio in respect of the amount of
any payment to be made by either of them hereunder, then on or
prior to the date herein fixed for such payment the billed party
shall pay the amount thereof which it admits to be due and at the
same time (a) may pay to the billing party under protest all or
any part of any amount in dispute, and (b) shall deliver to the
billing party a written statement of the reasons why any amount
claimed by the billing party to be due is disputed, and the
issues in connection therewith shall be submitted to arbitration
in accordance with the terms of Section 17.6. Upon determination
of the dispute, the billing party shall refund any portion of the
amount in dispute paid by the billed party in excess of the
amount held to have been due, and the billed party shall pay to
the billing party any amount by which the disputed amount paid,
if any, was less than the amount held to have been due. Interest
at 6% per annum shall be paid from the payment date to the date
of any subsequent payment or refund, as the case may be. The
payment by the billed party of any amount or disputed amount, or
the acceptance by the billing party of any amount or disputed
amount, as contemplated hereby prior to such arbitration shall
not be regarded as a waiver by either of them and shall not in
any way prejudice the rights of either of them to additional
payment or refund, as the case may be. No payment made or
received under this Section 17.5 shall be construed to effect a
waiver or release by any party or to prejudice the rights of any
party to additional payment or refund, as the case may be.
17.6 Any controversy, claim, counterclaim, defense, dispute,
difference or misunderstanding arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration
before three arbitrators one of whom shall be named by Buckeye,
one of whom shall be named by Ohio and the third of whom shall be
named by the two arbitrators appointed by Buckeye and Ohio,
respectively. In the event that the two arbitrators so appointed
shall fail to name a third arbitrator within thirty (30) days
after the date of the appointment of the second of them, then any
party to the arbitration proceeding may upon written notice to
the other party or parties thereto apply to the person who is the
senior acting judge of the United States Court of Appeals for the
6th Judicial Circuit for the appointment of a third arbitrator;
provided, however, that if, for any reason, there shall be no
such senior acting judge or if such a senior acting judge shall
fail, within thirty (30) days after such application, to make
such appointment, then the third arbitrator shall be appointed by
the American Arbitration Association. The arbitration proceeding
shall be conducted in accordance with the Rules of the American
Arbitration Association then in effect, and judgment upon any
award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. This provision shall survive the
termination of this Agreement. The parties expressly agree that
this provision shall constitute a condition precedent to the
institution of any proceeding in any court relating to the
subject matter hereof, provided, however, that nothing herein
contained shall (a) preclude, or be deemed to preclude, any party
to this Agreement from taking action contemplated by this
Agreement before, or making such filings with, any regulatory
authority having jurisdiction with respect to any term or
condition of this Agreement or of the Power Delivery Agreement as
such party shall deem appropriate, or (b) require, or be deemed
to require, any such party to institute, or complete, an
arbitration proceeding under this Section 17.6 prior to the
taking of such action before, or the making of such filing with,
any such regulatory authority.
17.7 The failure of any party hereto to insist in any one or
more instances upon strict performance of any of the provisions
of this Agreement or to take advantage of its rights hereunder,
shall not be construed as a waiver of any such provisions, or the
relinquishment of any such rights, but the same shall continue to
remain in full force and effect.
17.8 (a) Ohio shall not be held responsible or liable for
any loss or damage to Buckeye or any Buckeye Member on account of
its failure to perform any obligation to be performed by it
hereunder at any time, caused by Act of God, fire, flood,
explosion, strike, civil or military authority, governmental
action or inaction, insurrection or riot, enemy attack, malicious
mischief, act of the elements, failure of equipment, or any other
cause beyond its control or failure of any portion of the Power
Delivery Facilities and/or Ohio's Bulk Transmission Facilities;
provided, however, that Ohio shall use its best efforts to resume
with utmost dispatch the performance of any obligation hereunder,
the performance of which is excused by this subsection. Failure
of Ohio to furnish Back-up Power and/or Replacement Power because
of the aforesaid conditions shall not relieve Buckeye of its
obligation to make available to Ohio the amounts of capacity
specified in Article Ten hereof and failure of Ohio to furnish
Buckeye's Supplementary Power because of the aforesaid conditions
shall not relieve Buckeye of its obligation to make available to
Ohio the amounts of capacity specified in Article Ten hereof.
(b) Buckeye shall not be held responsible or liable for
any loss or damage to Ohio on account of its failure to perform
any obligation to be performed by it hereunder at any time,
caused by Act of God, fire, flood, explosion, strike, civil or
military authority, governmental action or inaction, insurrection
or riot, enemy attack, malicious mischief, act of the elements,
failure of equipment, or any other beyond its control or failure
of any portion of its facilities of any Buckeye Member; provided,
however, that Buckeye shall use its best efforts to resume with
utmost dispatch the performance of any obligation hereunder, the
performance of which is excused by this subsection. Failure of
Buckeye to make capacity available to Ohio hereunder because of
the aforesaid conditions of this Agreement shall not relieve Ohio
of its obligations to furnish Back-up Power or Buckeye's
Supplementary Power or to make payments to Buckeye as herein
provided.
(c) Operating Company shall not be held responsible or
liable for any loss or damage to Ohio, Buckeye or to any Buckeye
Member on account of its failure to perform any obligation to be
performed by it hereunder at any time, caused by Act of God,
fire, flood, explosion, strike, civil or military authority,
governmental action or inaction, insurrection or riot, enemy
attack, malicious mischief, act of the elements, failure of
equipment, or any other cause beyond its control, or failure of
any portion of the Power Delivery Facilities and/or Ohio's Bulk
Transmission Facilities; provided, however, that Operating
Company shall use its best efforts to resume with utmost dispatch
the performance of any obligation hereunder, the performance of
which is excused by this subsection.
(d) The parties hereto hereby recognize that if either
Buckeye or Ohio shall be precluded by any of the reasons
specified in the foregoing force majeure provisions of this
Section 17.8 from carrying out its obligations under this
Agreement or any of the agreements referred to in this Agreement,
some alternative arrangement may be necessary for the delivery of
power to Buckeye Members and, in case such an alternative
arrangement becomes necessary under such conditions, it is the
intention of the parties hereto to negotiate in good faith some
alternative arrangement designed to provide for the delivery to
the Buckeye Members of their requirements in part from Buckeye's
entitlement in the Cardinal Station and in part from generating
stations of Ohio within the State of Ohio under terms
approximating, as nearly as practicable in the light of then
prevailing conditions, those contemplated herein and in the Power
Delivery Agreement.
17.9 (a) Buckeye shall make available to Ohio, and Ohio
shall purchase from Buckeye, all energy associated with test
power generated by Buckeye's Additional Unit during the test
period prior to the Date of Commercial Operation thereof.
(b) In any calendar month during such test period, Ohio
shall pay Buckeye for energy associated with test power generated
by Buckeye's Additional Unit, an amount of dollars equal to the
product of (i) the metered net kilowatthours of test power
generated by Buckeye's Additional Unit and delivered to Ohio's
Bulk Transmission Facilities during such month, and (ii) the sum
of (A) the average fuel cost per kilowatthour determined for the
Initial Cardinal Station for such month and (B) 50 percent of the
average maintenance cost per kilowatthour determined for the
Initial Cardinal Station for the twelve month period including
such month and the eleven months immediately preceding such
month.
(c) The total proceeds to Buckeye pursuant to Section
17.9(b) above shall be applied by Buckeye in reduction of costs
of construction of Buckeye's Additional Unit.
17.10 This Agreement shall not be assigned by either Buckeye
or Ohio, except to a successor to substantially all of its
assets, property and business, without the prior written consent
of the other party; provided that either Buckeye or Ohio, or
both, may assign its right, title and interest in, to and by
virtue of this Agreement, including any and all extensions,
renewals, amendments and supplements thereto, to a trustee or
trustees, individual or corporate, as security for bonds or other
obligations or securities, without such trustee or trustees
assuming or becoming in any respect obligated to perform any of
the obligations of the assignor, and, if any such trustee be a
corporation, without its being required by the parties hereto to
qualify to do business in the State of Ohio, and such trustee or
trustees may transfer, convey and assign all the right, title and
interest of the assigning party in, to or by virtue of this
Agreement in connection with any proceeding (whether or not
judicial) to realize on any security provided for said bonds or
other obligations or securities to any purchaser of any part of
such security. It is further expressly stipulated and provided
that no assignment by either Buckeye or Ohio to any other person
or party of any of their rights or interests under this contract
shall have the effect of relieving Buckeye or Ohio, as the case
may be, from full liability and financial responsibility for
performance (both before and after any such assignment) of all
the obligations and duties herein provided and imposed upon
Buckeye and Ohio, respectively, nor shall any such assignment by
Buckeye or Ohio have the effect of waiving or releasing or in any
manner altering or changing whatsoever the express restrictions
and covenants as to the use to be made of electric energy sold
and delivered hereunder as provided in this Agreement. This
Agreement shall not be assigned by Operating Company under any
circumstances without the prior written consent of Ohio and
Buckeye and of the Trustees under the Buckeye Mortgage. Subject
to the foregoing provisions of this Section, this Agreement shall
inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.
17.11 In the event of any act or omission by Buckeye which
would give Ohio the right, immediately or after lapse of a period
of time, to cancel or terminate this Agreement, Ohio shall give
written notice of such act or omission to the Trustees under the
Buckeye Mortgage and shall not exercise such right against
Buckeye if, within 60 days after the receipt of such notice by
such Trustees, the corporate trustee under the Buckeye Mortgage
shall undertake in a written notice to Ohio that, from and after
the date of such written notice to Ohio, said corporate trustee
will be responsible for the performance of all of the obligations
of Buckeye under this Agreement and, to the extent that any act
or omission by Buckeye occurring prior to the date of the
delivery by Ohio of written notice thereof to said Trustees can
be remedied, will remedy the same, and that said corporate
trustee will promptly commence the performance of such
obligations. If any act or omission by Buckeye occurring prior
to the date of delivery by Ohio of written notice thereof to the
Trustees cannot be remedied, Ohio shall look solely to Buckeye
for redress in respect of such act or omission. In the event
that, after receipt by Ohio of a written notice from the
corporate trustee under the Buckeye Mortgage that said corporate
trustee will be responsible for the performance of all of the
obligations of Buckeye under this Agreement, an act or omission
by said corporate trustee occurs which would give Ohio the right,
immediately or after lapse of a period of time, to cancel or
terminate this Agreement, Ohio shall be entitled to exercise such
right with the same consequences as if said corporate trustee had
not substituted itself for Buckeye in the performance of
Buckeye's obligations under this Agreement.
17.12 It is understood and agreed by the parties hereto that
if any one or more provisions contained herein shall be finally
determined by any court of competent jurisdiction to contravene,
or be invalid under, any applicable provision of law, such
contravention or invalidity shall not invalidate this Agreement,
but this Agreement shall be construed as if not containing such
provision or provisions and the rights and obligations of the
parties shall be construed and enforced accordingly; provided,
however, that no obligation other than those herein provided
(except for changes in rates or charges) shall thereby be imposed
on any party; and provided further that to the extent that any
such provision or provisions shall constitute a part of any
effective rate schedule, or terms and conditions thereof, on file
with any regulatory agency having jurisdiction such provision or
provisions shall remain in full force and effect (i) unless and
until modified by valid final order of such regulatory agency or
(ii) unless and until such provision or provisions in such rate
schedule, or terms and conditions thereof, shall be finally
determined by any court of competent jurisdiction to contravene,
or be invalid under, any applicable provisions of law. In the
event that an occasion shall arise requiring that this Agreement
be construed as if not containing a particular provision or
provisions as aforesaid and the effect thereof shall be to impose
on any party an obligation other than those herein provided
(except for changes in rates or charges), the parties will
negotiate in good faith to provide a substitute for such
provision or provisions.
ARTICLE EIGHTEEN.
Effective Date of Amendment No. 1 to Station
Agreement.
18.1 This Amendment No. 1 to the Station Agreement shall
become effective, and the Effective Date of Amendment No. 1 to
the Station Agreement shall occur, on the date on which the last
of the following events shall have occurred:
(a) The Rural Electrification Administration (i) shall
have approved in writing this Amendment No. 1 to the Station
Agreement and (ii) shall have determined in writing that the
Construction Agreement between Ohio and Buckeye, dated as of
October 1, 1973 and this Amendment No. 1 to the Station Agreement
complies with all applicable requirements of the Equity
Contribution Agreement dated as of December 31, 1971, between the
United States of America (acting through the Administrator of the
Rural Electrification Administration), Buckeye and each of the
Buckeye Members;
(b) The Public Utilities Commission of Ohio shall have
issued an order, in Case No. 34573 or otherwise, authorizing and
approving the arrangements provided for in this Amendment No. 1
to the Station Agreement and such order shall have become
effective in accordance with such terms and conditions as may be
therein contained;
(c) This Amendment No. 1 to the Station Agreement
and/or any rate schedule, tariff or instrument specified in the
order referred to in clause (b) of this Section 18.1 shall have
been filed with The Public Utilities Commission of Ohio;
(d) This Amendment No. 1 to the Station Agreement shall
have been filed with, and accepted for filing without condition
by, the Federal Power Commission under the Federal Power Act as a
rate schedule, or as a supplement to Rate Schedule FPC Nos. 1;
1.1; and 1.2, of Buckeye, and as a rate schedule, or as a
supplement to Rate Schedule FPC Nos. 69; 69.1; and 69.2, of Ohio
under circumstances (x) where the Federal Power Commission shall
not have suspended this Amendment No. 1 to the Station Agreement
or any part thereof, and (y) where the Federal Power Commission
shall have issued an order under the Federal Power Act that (i)
all portions of this Amendment No. 1 to the Station Agreement
which by their terms are to become effective on the Effective
Date of Amendment No. 1 to the Station Agreement shall become
effective as such rate schedule or supplement under the Federal
Power Act on the later of (A) a date not later than ninety (90)
days subsequent to the date of the issuance of such order, and
(B) the Effective Date of Amendment No. 1 to the Station
Agreement, and (ii) all portions of this Amendment No. 1 to the
Station Agreement which by their terms are to become effective on
the date of Commercial Operation of Buckeye's Additional Unit,
shall become effective as such rate schedule or supplement under
the Federal Power Act, on such date of Commercial Operation of
Buckeye's Additional Unit and (iii) did not by its terms, or in a
separate order issued substantially concurrent with such order,
institute an investigation under the provisions of Section 206 of
the Federal Power Act into the justness and reasonableness of the
provisions of Amendment No. 1 to the Station Agreement, the Power
Delivery Agreement, or any other agreement to which Buckeye and
Ohio are parties involving the construction and/or operation of
the Cardinal Station;
(e) The expiration of a period which shall be equal to
the longer of (i) the period between the date of the issuance of
the order of the Federal Power Commission referred to in clause
(d) above and a date sixty (60) days after such date; and (ii)
the period between the date of the issuance of such order and the
date specified in such order pursuant to clause (d) (y) (i)
above;
(f) If the orders of the Federal Power Commission
referred to in clause (d) above shall have been entered in a
proceeding under the Federal Power Act in which any party or
parties in addition to Buckeye, Ohio and Operating Company
participated, such orders shall have become final and not subject
to review under Section 313 of the Federal Power Act;
(g) If proceedings to review the orders referred to in
clause (d) above shall have been initiated by any party, an order
of a court of competent jurisdiction affirming such orders in all
respects shall have become final and shall not be subject to
further review;
(h) The Federal Power Commission shall have issued an
order pursuant to Section 204 of the Federal Power Act
authorizing Buckeye to issue and sell additional Bonds under the
Buckeye Mortgage, in an aggregate principal amount not exceeding
$204,500,000 and on the terms contemplated by the Buckeye
Mortgage, and said order shall have become final and not subject
to review under Section 313 of the Federal Power Act;
(i) Buckeye, Cardinal and Ohio shall each have caused
this Amendment No. 1 to the Station Agreement to be executed by
their officers thereunto duly authorized; and
(j) Buckeye shall have executed and delivered the
Second Supplemental Indenture to the Buckeye Mortgage, shall have
received pursuant to the Equity Contribution Agreement the sum of
$17,000,000 in cash, representing contributions of the Buckeye
Members to the equity capital of Buckeye; Buckeye and the
respective purchasers shall have executed and delivered a Bond
Purchase Agreement, dated October 1, 1973 (in the form heretofore
delivered to Ohio) providing for the issue and sale by Buckeye of
up to $170,000,000 principal amount of its First Mortgage Bonds,
8 3/8% Series, and Buckeye and the United States of America,
acting through the Administrator of the Rural Electrification
Administration, shall have executed and delivered a Bond Purchase
Agreement, dated October 1, 1973 (in the form heretofore
delivered to Ohio) providing for the issue and sale by Buckeye of
up to $34,500,000 principal amount of its First Mortgage Bonds,
5% Series.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing
events shall occur and that this Amendment No. 1 to the Station
Agreement shall become effective as provided in this Section 18.1
at the earliest practical date.
18.2 This Amendment No. 1 to the Station Agreement
constitutes the entire agreement between the parties hereto with
respect to the matters covered herein. If for any reason one or
more of the events specified in Section 18.1 of this Amendment
No. 1 to the Station Agreement shall not have occurred before
July 1, 1974 then and in that event this Amendment No. 1 to the
Station Agreement shall, on and after July 1, 1974, terminate
with the result that at such time the Station Agreement, dated as
of January 1, 1968 among Ohio, Buckeye and Operating Company
shall continue in accordance with the terms thereof with the same
force and effect as if this Amendment No. 1 to the Station
Agreement had never been executed and delivered by the parties
hereto.
ARTICLE NINETEEN.
Appendices.
19.1 Effective as of the Effective Date of Amendment No. 1
to the Station Agreement delete Appendix A, Appendix B, Appendix
C, Appendix E and Appendix F to the Station Agreement in their
entirety; substitute in lieu thereof Appendix A, Appendix B,
Appendix C, Appendix E and Appendix F, in each case in the form
attached to Amendment No. 1 to the Station Agreement. Effective
as of the Date of Commercial Operation of Buckeye's Additional
Unit, delete Appendix D to the Station Agreement in its entirety.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 1 to the Station Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
OHIO POWER COMPANY
BY /s/ G. V. PATTERSON
Vice President
BUCKEYE POWER, INC.
BY /s/ HOWARD A. CUMMINS
Executive Manager
CARDINAL OPERATING COMPANY
BY /s/ CHARLIE F. JACK
Vice President
AMENDMENT NO. 2
to
STATION AGREEMENT
Dated as of March 1, 1976
WHEREAS, Ohio Power Company (Ohio), Buckeye Power, Inc.
(Buckeye) and Cardinal Operating Company (Cardinal) have entered
into Amendment No. 1, dated as of October 1, 1973, to Station
Agreement dated as of January 1, 1968 (Amendment No. 1); and
WHEREAS, Buckeye proposes to execute and deliver a
Fourth Supplemental Mortgage and Deed of Trust, dated as of April
15, 1976 (the Fourth Supplemental Indenture), to the Mortgage and
Deed of Trust, dated as of April 1, 1968 between Buckeye and The
Ohio National Bank of Columbus, as Trustee, and
WHEREAS, the parties desire to modify the definitions
of certain terms as set forth in Amendment No. 1 to reflect the
execution and delivery of the Fourth Supplemental Indenture
proposed by Buckeye;
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the parties do hereby
agree as follows:
ARTICLE I
Modifications of Amendment No. 1
1. The reference in subclause (i) of clause (A) of the
definition of "Buckeye Additional Unit Monthly Carrying Charge"
contained in Section 1.1 of Amendment No. 1 to the "Second
Supplemental Indenture" shall be deemed to refer to and to
include the Second Supplemental Indenture and the Fourth
Supplemental Indenture.
2. The reference in said subclause (i) of clause (A)
to "Bonds (not exceeding $204,500,000)" shall be deemed to refer
to "Bonds" (not exceeding $269,500,000)."
3. The definition of "Buckeye Mortgage" contained in
said Section 1.1 shall be deemed to be the Mortgage and Deed of
Trust dated as of April 1, 1968, as amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture and the Fourth Supplemental
Indenture thereto, made by Buckeye with The Ohio National Bank as
Trustee.
ARTICLE II
Effective Date of Amendment No. 2
This Amendment No. 2 shall become effective on the date on
which the last of the following events shall have occurred:
(a) The Rural Electrification Administration shall have
approved in writing this Amendment No. 2;
(b) The Public Utilities Commission of Ohio shall have
issued an order authorizing and approving this Amendment No. 2,
such order shall have become effective in accordance with such
terms and conditions as may be therein contained;
(c) This Amendment No. 2 shall have been filed with,
and accepted for filing without condition or suspension by, the
Federal Power Commission under the Federal Power Act as a rate
schedule, or as a supplement to Rate Schedule FPC No. 69 of Ohio
under circumstances where the Federal Power Commission did not
institute an investigation under the provisions of Section 206 of
the Federal Power Act into the justness and reasonableness of the
provisions of this Amendment No. 2 to the Station Agreement, or
any other agreement to which Buckeye and Ohio are parties
involving the construction and/or operation of the Cardinal
Station;
(d) Buckeye, Cardinal and Ohio shall each have caused
this Amendment No. 2 to be executed by their officers thereunto
duly authorized; and
(e) Buckeye shall have executed and delivered the Fourth
Supplemental Indenture to the Buckeye Mortgage, and Buckeye and
the Louisville Bank for Cooperatives shall have executed and
delivered a Loan Agreement, dated December 5, 1975 (in the form
heretofore delivered to Ohio) providing for the issue and sale by
Buckeye of up to $65,000,000 principal amount of its First
Mortgage Bonds, LBC Series.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing
events shall occur and that this Amendment No. 2 shall become
effective as provided in this Article II at the earliest
practical date.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 2 to be executed by their officers thereunto duly authorized
as of the date first above written.
OHIO POWER COMPANY
By /s/ G.P. Maloney
Vice President
BUCKEYE POWER, INC.
By /s/ Charlie F. Jack
Chief Engineer
CARDINAL OPERATING COMPANY
By /s/ G.V. Patterson
Vice President
AMENDMENT NO. 3
to
STATION AGREEMENT
Dated as of March 1, 1977
WHEREAS, Ohio Power Company (Ohio), Buckeye Power, Inc.
(Buckeye) and Cardinal Operating Company (Cardinal) have entered
into Amendment No. 1, dated as of October 1, 1973, to Station
Agreement dated as of January 1, 1968 (Amendment No. 1) and
Amendment No. 2, dated as of March 1, 1976, to said Station
Agreement (Amendment No. 2); and
WHEREAS, Buckeye has executed and delivered a Fifth
Supplemental Mortgage and Deed of Trust, dated as of February 1,
1977 (the Fifth Supplemental Indenture), to the Mortgage and Deed
of Trust, dated as of April 1, 1968 between Buckeye and The Ohio
National Bank of Columbus, as Trustee, and
WHEREAS, the parties desire to modify the definitions of
certain terms as set forth in Amendment No. 1, as heretofore
modified by Amendment No. 2, to reflect the execution and
delivery of the Fifth Supplemental Indenture;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the parties do hereby agree as
follows:
ARTICLE I
Modifications of Amendment No. 1
as heretofore modified by Amendment No. 2
1. The reference in subclause (i) of clause (A) of the
definition of "Buckeye Additional Unit Monthly Carrying Charge"
contained in Section 1.1 of Amendment No. 1 to the "Second
Supplemental Indenture" shall be deemed to refer to and to
include the Second Supplemental Indenture, the Fourth
Supplemental Indenture and the Fifth Supplemental Indenture.
2. The reference in said subclause (i) of clause (A)
to "Bonds (not exceeding $269,500,000)" shall be deemed to refer
to "Bonds (not exceeding $310,000,000)."
3. The Definition of "Buckeye Mortgage" contained in
said Section 1.1 shall be deemed to be the Mortgage and Deed of
Trust dated as of April 1, 1968, as amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture, the Fourth Supplemental Indenture
and the Fifth Supplemental Indenture thereto, made by Buckeye
with The Ohio National Bank of Columbus, as Trustee.
ARTICLE II
Effective Date of Amendment No. 3
This Amendment No. 3 shall become effective on the date on
which the last of the following events shall have occurred:
(a) The Rural Electrification Administration shall
have approved in writing this Amendment No. 3;
(b) The Public Utilities Commission of Ohio shall have
issued an order authorizing and approving this Amendment No. 3,
and such order shall have become effective in accordance with
such terms and conditions as may be therein contained;
(c) This Amendment No. 3 shall have been filed with,
and accepted for filing without condition or suspension by, the
Federal Power Commission under the Federal Power Act as a rate
schedule, or as a supplement to Rate Schedule FPC No. 69 of Ohio
under circumstances where the Federal Power Commission did not
institute an investigation under the provisions of Section 206 of
the Federal Power Act into the justness and reasonableness of the
provisions of this Amendment No. 3 to the Station Agreement, or
any other agreement to which Buckeye and Ohio are parties
involving the construction and/or operation of the Cardinal
Station;
(d) Buckeye, Cardinal and Ohio shall each have caused
this Amendment No. 3 to be executed by their officers thereunto
duly authorized; and
(e) Buckeye shall have executed and delivered the
Fifth Supplemental Indenture to the Buckeye Mortgage, and Buckeye
and the Louisville Bank for Cooperatives shall have executed and
delivered a Loan Agreement, dated January 25, 1977 (in the form
heretofore delivered to Ohio) providing for the issue and sale by
Buckeye of up to $31,650,000 principal amount of its First
Mortgage Bonds, LBC-B Series.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing
events shall occur and that this Amendment No. 3 shall become
effective as provided in this Article II at the earliest
practical date.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 3 to be executed by their officers thereunto duly authorized
as of the date first above written.
OHIO POWER COMPANY
By /s/ Frank N. Bien
Vice President
BUCKEYE POWER, INC.
By /s/ Howard A. Cummins
Executive Manager
CARDINAL OPERATING COMPANY
By /s/ G.V. Patterson
Vice President
AMENDMENT NO. 4
to
STATION AGREEMENT
Dated as of December 1, 1977
WHEREAS, Ohio Power Company (Ohio), Buckeye Power, Inc.
(Buckeye) and Cardinal Operating Company (Cardinal) have entered
into Amendment No. 1, dated as of October 1, 1973, to Station
Agreement dated as of January 1, 1968 (Amendment No. 1), and
Amendment No. 2, dated as of March 1, 1976 (Amendment No. 2) and
Amendment No. 3, dated as of March 1, 1977 (Amendment No. 3), to
said Station Agreement; and
WHEREAS, the parties have waived the occurrence of the event
specified in paragraph (b) of Article II of Amendment No. 3,
which is hereby confirmed, and Amendment No. 3 has thereby become
effective as of September 20, 1977; and
WHEREAS, Buckeye contemplates executing and delivering a
Sixth Supplemental Indenture Mortgage and Deed of Trust, dated as
of November 15, 1977 (the Sixth Supplemental Indenture), to the
Mortgage and Deed of Trust, dated as of April 1, 1968 between
Buckeye and The Ohio National Bank of Columbus, as Trustee, and
WHEREAS, the parties desire to modify the definitions of
certain terms as set forth in Amendment No. 1, as heretofore
modified, to reflect the execution and delivery of the Sixth
Supplemental Indenture;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the parties do hereby agree as
follows:
ARTICLE I
Modifications of Amendment No. 1
as heretofore modified
1. The reference in subclause (i) of clause (A) of the
definition of "Buckeye Additional Unit Monthly Carrying Charge"
contained in Section 1.1 of Amendment No. 1, as amended by
Amendments No. 2 and No. 3 to the "Second Supplemental Indenture"
shall be deemed to refer to and to include the Second
Supplemental Indenture, the Fourth Supplemental Indenture, the
Fifth Supplemental Indenture and the Sixth Supplemental
Indenture.
2. The reference in said subclause (i) of clause (A)
to "Bonds (not exceeding $310,000,000)" shall be deemed to refer
to "Bonds (not exceeding $340,000,000)."
3. The definition of "Buckeye Mortgage" contained in
said Section 1.1 shall be deemed to be the Mortgage and Deed of
Trust dated as of April 1, 1968, as amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture, the Fourth Supplemental Indenture,
the Fifth Supplemental Indenture and the Sixth Supplemental
Indenture thereto, made by Buckeye with The Ohio National Bank of
Columbus, as Trustee.
ARTICLE II
Effective Date of Amendment No. 4
This Amendment No. 4 shall become effective on the date on
which the last of the following events shall have occurred:
(a) The Rural Electrification Administration shall
have approved in writing this Amendment No. 4;
(b) The Public Utilities Commission of Ohio shall have
issued an order authorizing and approving this Amendment No. 4
and such other shall have become effective in accordance with
such terms and conditions as may be therein contained;
(c) This Amendment No. 4 shall have been filed with,
and accepted for filing without condition or suspension by, the
Federal Energy Regulatory Commission under the Federal Power Act
as a rate schedule, or as a supplement to Rate Schedule FPC 69 of
Ohio under circumstances where the Federal Energy Regulatory
Commission did not institute an investigation under the
provisions of Section 206 of the Federal Power Act into the
justness and reasonableness of the provisions of this Amendment
No. 4 to the Station Agreement, or any other agreement to which
Buckeye and Ohio are parties involving the construction and/or
operation of the Cardinal Station;
(d) Buckeye, Cardinal and Ohio shall each have caused
this Amendment No. 4 to be executed by their officers thereunto
duly authorized; and
(e) Buckeye shall have executed and delivered the
Sixth Supplemental Indenture and shall have executed and
delivered on or more loan agreements with Louisville Bank of
Cooperatives or with another lender or lenders providing for the
issuance and sale of up to $30,000,000 principal amount of
additional first mortgage bonds maturing no earlier than the
maturity date of the LBC Series Bonds and providing for a sinking
fund or funds for the purchase, redemption or retirement of such
additional first mortgage bonds which shall not result in a
retirement of a percentage of such first mortgage bonds on any
sinking fund payment date greater than on the corresponding
sinking fund payment date for the LBC Series Bonds.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing
events shall occur and that this Amendment No. 4 shall become
effective as provided in this Article II at the earlier practical
date.
IN WITNESS WHEREOF, the parties have cause this Amendment
No. 4 to be executed by their officers thereunto duly authorized
as of the date first above written.
OHIO POWER COMPANY
By /s/ G.P. Maloney
Vice President
BUCKEYE POWER, INC.
By /s/ Ralph May
CARDINAL OPERATING COMPANY
By /s/ Frank N. Bien
Vice President
AMENDMENT NO. 5
to
STATION AGREEMENT
Amendment dated as of April 15, 1980, to Station
Agreement dated as of January 1, 1968, among OHIO POWER COMPANY,
an Ohio corporation (herein called "Ohio"), BUCKEYE POWER, INC.,
an Ohio corporation not for profit (herein called "Buckeye"), and
CARDINAL OPERATION COMPANY, an Ohio corporation (herein called
"Operating Company").
W I T N E S S E T H :
WHEREAS Ohio, Buckeye and Operating Company have entered
into a Station Agreement dated as of January 1, 1968 and four
amendments thereto dated, respectively, as of October 1, 1973,
March 1, 1976, March 1, 1977 and December 1, 1977, with respect
to the operation of the Cardinal Station; and
WHEREAS, since the commencement of operations by Buckeye
in 1968, new Buckeye Members, including Buckeye Member
Cooperative Inc., have come into existence in addition to the
original Buckeye Members; and
WHEREAS the experience of the Buckeye Members in the
years since the commencement of operations by Buckeye in 1968
reflects, to a greater degree than originally contemplated, sharp
winter peak demands during relatively brief time periods
resulting from the increased utilization by customers of the
Buckeye Members of electric power and energy for home heating,
thus establishing Buckeye Cardinal Peak Demands under the Station
Agreement at successively higher levels while the loads served by
the Buckeye Members at other times of the year could be
substantially increased without increasing the Buckeye Cardinal
Peak Demand, and it is the desire of the Buckeye Members to sell
to the greatest extent practicable such off-peak power, and the
energy related thereto, without increasing the Buckeye Cardinal
Peak Demand, it being hoped that sales of such type could improve
Buckeye's utilization of Buckeye's Units and thereby be in the
best interests of Buckeye and its Buckeye Members; and
WHEREAS, Ohio, Buckeye and Operating Company desire to
effect further amendments to the Station Agreement to provide a
means pursuant to which the respective rights and obligations of
the parties may be further defined and clarified to facilitate,
among other purposes of the Agreement, the sale at wholesale of
off-peak power, and the energy related thereto, by the Buckeye
Members to electric utility systems;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto do hereby
agree as follows:
ARTICLE ONE
Definitions.
1.1 Effective as of the Effective Date of Amendment No. 5
to the Station Agreement and at the end of Section 1.1. of the
Station Agreement add the following additional definitions:
Adjustment Period means the period of years commencing
with the calendar in which Amendment No. 5 to the Station
Agreement becomes effective and terminating at the end of the
calendar year in which the balance of dollars in Buckeye's
Unrecovered Excess Capacity Account shall become zero.
Buckeye Adjusted Reserve Factor means, for any calendar
year during the Adjustment Period in which the Buckeye Annual
Capacity Utilization Factor is greater than 0.89, the sum of (a)
0.15 and (b) the product of (i) 1.168539 and (ii) the amount by
which the Buckeye Annual Capacity Utilization Factor for such
year exceeds 0.89.
Buckeye Annual Capacity Utilization Factor means for any
calendar year the ratio that is obtained by dividing (a) the sum
obtained by adding the Buckeye Cardinal Monthly Demand for each
month of such calendar year by (b) the sum obtained by adding the
Buckeye Cardinal Peak Demand for each month of such calendar
year.
ARTICLE TWO
Operation of Cardinal Station.
2.1 Effective as of the Effective Date of Amendment No. 5
to the Station Agreement, delete Section 8.2 of the Station
Agreement in its entirety and substitute the following:
8.2 The entitlement of Ohio and Buckeye in and to the use
of the Total Net Capability of the Cardinal Station shall be
determined as follows:
(a) Buckeye shall be entitled at any time, subject to the
provisions of Subsection (b) of this Section 8.2 and to the
provisions of Section 12.5, to that portion of the generating
capacity then available at the Cardinal Station to the extent
required to supply the total amount of the Buckeye Power
Requirement at such time, up to a maximum entitlement equal to
86.9565% of the total Buckeye's Contractual Net Capability of
Buckeye's Initial Unit and Buckeye's Additional Unit.
(b) Buckeye shall take such action as is necessary to
provide reasonable assurance that the Buckeye Annual Capacity
Utilization Factor for any calendar year during the Adjustment
Period shall not exceed 0.89, provided, however, that in the
event that the Buckeye Annual Capacity Utilization Factor for any
calendar year during the Adjustment Period shall after the end of
such year be determined to have exceeded 0.89, the following
retroactive substitutions, recalculations and billing adjustments
shall be made for such year:
(1) The sum of (a) 100% and (b) the product of (i) 100
and (ii) the Buckeye Adjusted Reserve Factor for such year shall
be substituted for the figure 115%, as included in one or more
instances in the sections and definitions listed as follows:
The definition, in Section 1.1, of Contract Excess
Capacity.
Article Four, Sections 4.4(a) and 4.4(b).
Article Five, Sections 5.2 and 5.3.
Article Seven, Section 7.4.
Article Ten, Section 10.2, 10.3(e) and 10.3(h).
Appendix F. Sections A(4) and B(19).
(2) The product of (A) 100% and (B) the ratio that is
obtained by dividing (i) unity by (ii) the sum of (a) unity and
(b) the Buckeye Adjusted Reserve Factor for such year shall be
substituted for the figure 86.9565%, as included in one or more
instances in the sections and definitions listed as follows:
The definitions, in Section 1.1., of Buckeye's
Additional Unit Capacity Reservation, Adjustment Period and
Buckeye's Supplementary Power Demand.
Article Eight, Sections 8.2(a), 8.4(a), 8.4(b),
8.4(c), 8.8.
Article Nine, Section 9.2(d).
Article Ten, Section 10.2.
(3) The difference between (A) unity and (B) the ratio
that is obtained by dividing (i) unity by (ii) the sum of (a)
unity and (b) the Buckeye Adjusted Reserve Factor for such year
shall be substituted for the figure 0.130435, as included in
three instances in Article Nine, Section 9.2(a).
(4) All computations and billings under the Station
Agreement which are affected by the substitutions provided for in
this Subsection 8.2(b) shall be retroactively recalculated for
such year to take into account the effect of such substitutions,
and any resulting billing credits or charges shall be rendered to
Ohio and Buckeye.
(c) Ohio shall be entitled at any time to that portion
of the generating capacity then available at the Cardinal Station
in excess of the entitlement of Buckeye thereto at such time,
subject, however, to the rights of Buckeye to receive therefrom
Back-up Power and Buckeye's Supplementary Power as provided in
Articles Nine and Ten of this Agreement.
ARTICLE THREE
Back-up of Buckeye Power Requirements.
3.1 Effective as of the Effective Date of Amendment
No. 5 to the Station Agreement, delete Section 9.2(c) and Section
9.2(e) of the Station Agreement in their entirety and in lieu
thereof substitute Section 9.2(c) and Section 9.2(e) of the
Station Agreement as follows:
(c) Back-up Energy, for any hour, shall be equal to
the amount by which the lesser of (i) Buckeye's Cardinal Hourly
Demand or (ii) Buckeye's Total Firm Reservation, exceeds (iii)
the sum of (A) Total Net Available Capability of Buckeye's Units
for such hour, (B) energy associated with Buckeye's Supplementary
Power, if any, for such hour as determined by the provisions of
Section 10.3(j) of this Agreement, and (C) energy associated with
Buckeye's Excess Supplementary Power, if any, for such hour as
determined by the provisions of Section 10.3(k) of this
Agreement. Back-up Energy, as determined for each hour, shall be
accumulated and billed on a calendar month basis.
* * *
(e) Energy associated with Replacement Power, for any
hour in which Ohio is not obligated to furnish Back-up Power,
shall, if Ohio supplies energy associated with Replacement Power,
be equal to the amount by which the lesser of (i) Buckeye's
Cardinal Hourly Demand or (ii) Buckeye's Total Firm Reservation,
exceeds (iii) the sum of (A) Total Net Available Capability of
Buckeye's Units for such hour, (B) energy associated with
Buckeye's Supplementary Power, if any, for such hour as
determined by the provisions of Section 10.3(j) of this
Agreement, and (C) energy associated with Buckeye's Excess
Supplementary Power, if any, for such hour as determined by the
provisions of Section 10.3(k) of this Agreement. Energy
associated with Replacement Power, as determined for each hour,
shall be accumulated and billed on a calendar month basis.
ARTICLE FOUR
Delivery Service.
4.1 Effective as of the Effective Date of Amendment No.
5 to the Station Agreement, add at the end of Article Twelve of
the Station Agreement the following new Sections 12.4 and 12.5:
12.4 (a) In order to provide for the sale of off-peak
power, and the energy related thereto, by the Buckeye Members, at
wholesale to electric utility systems within the State of Ohio,
Buckeye Bulk Power Delivery Points, in addition to Delivery
Points as defined and provided for in the Power Delivery
Agreement, may be established at points on Ohio's Bulk
Transmission Facilities in Ohio as designated in accordance with
the procedures described in Subsections 12.4(b), 12.4(c) and
12.4(d) herein.
(b) Buckeye Bulk Power Delivery Points may be
established at points on Ohio's Bulk Transmission Facilities in
Ohio at which a portion of the Buckeye Power Requirement is to be
delivered to Buckeye for the ultimate purpose of sale at
wholesale to one or more electric utility systems within the
State of Ohio by a Buckeye Member either (i) at points where
Ohio's Bulk Transmission Facilities in Ohio interconnect with
bulk transmission facilities of electric utility systems in Ohio,
including Buckeye or any Buckeye Member, which are not otherwise
interconnected with any other electric system, or (ii) at (x)
points where Ohio's Bulk Transmission Facilities in Ohio
interconnect with bulk transmission facilities of electric
utility systems in Ohio which are otherwise interconnected in
turn with still other electric utility systems, or (y) at
facilities owned by Buckeye or any Buckeye Member which are
interconnected with bulk transmission facilities of other
electric utility systems in Ohio which are in turn interconnected
with still other electric utility systems.
(c) In the case of Buckeye Bulk Power Delivery Points
to be established under conditions described in subclause (i) of
Subsection 12.4(b) each such Buckeye Bulk Power Delivery Point
shall be established only at a location in the State of Ohio;
provided however, that (i) in no case shall such Buckeye Bulk
Power Delivery Point be established where the initial demand at
such point of delivery shall be less than 1500 kilowatts, (ii) in
each case, it shall be the responsibility of Buckeye, a Buckeye
Member, or its appropriate customer, to make all arrangements
necessary for receipts of power and energy delivered by Ohio to
Buckeye under this Agreement at such Buckeye Bulk Power Delivery
Point, (iii) in each case Buckeye, a Buckeye Member, or its
appropriate customer shall make all arrangements necessary for
the construction and maintenance of any necessary substation
equipment, including such control, switching, metering and
protective equipment as the established practice of Ohio requires
at similar locations on its system, and (iv) in no case shall
Ohio be required in establishing any such Buckeye Bulk Power
Delivery Point to provide any additions to Ohio's Bulk
Transmission Facilities or any of its other facilities including
the construction or installation of any connecting span or spans
of conductors to the facilities of Buckeye or such Buckeye Member
(except under circumstances where (x) Buckeye agrees to pay the
entire cost thereof, and (y) the physical arrangements shall be
mutually agreed upon in writing by Buckeye and Ohio, which
agreement shall not unreasonably be withheld).
(d) In the case of Buckeye Bulk Power Delivery Points to
be established under conditions described in subclause (ii) of
Subsection 12.4(b) hereinabove, each such Buckeye Bulk Power
Delivery Point shall be established only at a location in the
State of Ohio; provided, however, that (i) in no case shall such
Buckeye Bulk Power Delivery Point be established where the
initial demand at such point of delivery shall be less than 5000
kilowatts, (ii) in each case, it shall be the responsibility of
Buckeye, a Buckeye Member, or its appropriate customer, to make
all arrangements necessary for receipts of power and energy
delivered by Ohio to Buckeye under this Agreement at such Buckeye
Bulk Power Delivery Point, and (iii) in no case shall Ohio be
required, in establishing such Buckeye Bulk Power Delivery Point
to provide any additions to Ohio's Bulk Transmission Facilities,
or to any of its other facilities (except under circumstances
where (x) Buckeye agrees to pay the entire cost thereof, and (y)
the physical arrangements shall be mutually agreed upon in
writing by Buckeye and Ohio, which agreement shall not
unreasonably be withheld).
(e) Buckeye may, by giving Ohio such reasonable notice as
shall be mutually agreed upon by the parties, schedule hourly
amounts of power to be delivered by Ohio to Buckeye at each of
the Buckeye Bulk Power Delivery Points established under
conditions described in subclause (ii) of Subsection 12.4(b)
hereinabove and may, by mutual agreement, schedule hourly amounts
of power to be delivered by Ohio to Buckeye at one or more of the
Buckeye Bulk Power Delivery Points established under conditions
described in subclause (i) of Subsection 12.4(b) hereinabove.
The parties shall take all steps necessary to minimize deviations
between actual and scheduled deliveries of such power and energy.
(f) Buckeye Additional Scheduled Delivery Points Hourly
Demand for any hour shall mean the sum of (a) the total number of
kilowatts of demand scheduled for such hour by Buckeye for
delivery by Ohio to Buckeye in accordance with the provisions of
Subsection 12.4(e) hereinabove at the Buckeye Bulk Power Delivery
Points established under conditions described in subclauses (i)
and (ii) of Subsection 12.4(b), and (b) the total number of
kilowatts of demand established by Buckeye during such hour as
measured by suitable metering equipment at the Buckeye Bulk Power
Delivery Points established under conditions described in
subclause (i) of Subsection 12.4(b) hereinabove. In the event
scheduled service to any of the Buckeye Bulk Power Delivery
Points established under conditions described in subclauses (i)
and (ii) of Subsection 12.4(b) is interrupted or affected in any
hour for any reason, so that the total number of kilowatts of
power scheduled by Ohio to Buckeye at such Buckeye Bulk Power
Delivery Points for such hour cannot be delivered, the Buckeye
Additional Scheduled Delivery Points Hourly Demand at such
Buckeye Bulk Power Delivery Points shall equal that portion of
the scheduled amounts of power which can be delivered in such
hour.
(g) For all purposes of the Station Agreement, Buckeye
Additional Scheduled Delivery Points Hourly Demand shall be
considered to be included in the Power Delivery Facilities Hourly
Demand (as defined in the Power Delivery Agreement).
(h) The amounts of power and the associated amounts of
energy scheduled for delivery by Ohio to Buckeye in accordance
with the provisions of Subsection 12.4(e) hereinabove at the
Buckeye Bulk Power Delivery Points established under conditions
described in subclauses (i) and (ii) of Subsection 12.4(b), as
well as the metered power and associated energy delivered by Ohio
to Buckeye at the Buckeye Bulk Power Delivery Points established
under conditions described in subclause (i) of Subsection 12.4(b)
hereinabove shall, for all purposes of this Agreement, be
considered a portion of the Buckeye Power Requirement.
12.5 In order to preserve the respective entitlements
of Ohio and Buckeye as provided hereunder, Buckeye represents,
warrants and agrees that it will use its best efforts not to
schedule, except by mutual agreement, a Buckeye Additional
Scheduled Cardinal Hourly Demand under circumstances which it
could reasonably estimate would cause, as a result of such
scheduling, a new Buckeye Cardinal Peak Demand to be established
in any hour.
ARTICLE FIVE
Effective Date of Amendment No. 5
to Station Agreement.
5.1 This Amendment No. 5 to the Station Agreement and
the Station Agreement as modified by Amendments 1 through 5 shall
become effective on the date on which the last of the following
events shall have occurred:
(a) The Rural Electrification Administration shall
have approved in writing this Amendment No. 5 to the Station
Agreement;
(b) The Public Utilities Commission of Ohio shall have
issued an order authorizing and approving the arrangements
provided for in this Amendment No. 5 to the Station Agreement and
such order shall have become effective without condition;
(c) This Amendment No. 5 to the Station Agreement
shall have been filed with, and accepted for filing without
condition by, the Federal Energy Regulatory Commission (FERC)
under the Federal Power Act as a rate schedule, or as a
supplement to a rate schedule, of Ohio; and
(d) Buckeye, Operating Company and Ohio shall each
have caused this Amendment No. 5 to the Station Agreement to be
executed by their officers thereunto duly authorized.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing
events shall occur and that this Amendment No. 5 to the Station
Agreement shall become effective as provided in this Section 5.1
at the earliest practical date.
IN WITNESS WHEREOF, the parties have caused this
Amendment No. 5 to the Station Agreement to be executed by their
officers thereunto duly authorized as of the date first above
written.
OHIO POWER COMPANY
By /s/ A. Joseph Dowd
Vice President
BUCKEYE POWER, INC.
By /s/ Robert M. Cleveland
President
CARDINAL OPERATING COMPANY
By /s/ Frank N. Bien
Vice President
AMENDMENT NO. 6
to
STATION AGREEMENT
Amendment dated as of June 1, 1981, to Station
Agreement dated as of January 1, 1968 among OHIO POWER COMPANY,
an Ohio corporation (herein called "Ohio"), BUCKEYE POWER, INC.,
an Ohio corporation not for profit (herein called "Buckeye"), and
CARDINAL OPERATING COMPANY, an Ohio corporation (herein called
"Operating Company").
W I T N E S S E T H :
WHEREAS, Ohio, Buckeye and Operating Company have
entered into a Station Agreement dated as of January 1, 1968 and
five amendments thereto dated, respectively, as of October 1,
1973, March 1, 1976, March 1, 1977, December 1, 1977 and April
15, 1980, with respect to the operation of the Cardinal Station;
and
WHEREAS, as indicated in the preambles to Amendment No.
5 to the Station Agreement, the experience of the Buckeye Members
in the years since the commencement of operations by Buckeye in
1968 reflects, to a greater degree than originally contemplated,
sharp winter peak demands during relatively brief time periods
resulting from the increased utilization by customers of the
Buckeye Members of electric power and energy for home heating,
thus establishing Buckeye Cardinal Peak Demands under the Station
Agreement at successively higher levels while the loads served by
the Buckeye Members at other times of the year could be
substantially increased without increasing the Buckeye Cardinal
Peak Demand, and it is the desire of the Buckeye Members to sell
to the greatest extent practicable such off-peak power, and the
energy related thereto, without increasing the Buckeye Cardinal
Peak Demand, it being hoped that sales of such type could improve
Buckeye's utilization of Buckeye's Units and thereby be in the
best interests of Buckeye and its Buckeye Members; and
WHEREAS, Ohio is an associate company in the holding
company system as defined in the Public Utility Holding Company
Act of 1935 (herein called the "1935 Act") of which American
Electric Power Company, Inc. (herein called "American"), a
corporation organized and existing under the laws of the State of
New York and also qualified to do business in the State of Ohio,
is the holding company; and
WHEREAS, Columbus and Southern Ohio Electric Company
(herein called "Columbus"), a corporation organized and existing
under the laws of the State of Ohio, became a subsidiary company,
as defined in the 1935 Act, of American in May 1980, and at such
time also became (i) an "associate company", as defined in the
1935 Act, in the holding company system in which American and
Ohio are, among other corporations, also associate companies and
(ii) an "Ohio Associate", as defined in the Station Agreement;
and
WHEREAS, Buckeye, Ohio, Operating Company and Columbus
desire, for the limited purpose of providing for the
establishment and operation of Buckeye Bulk Power Delivery Points
pursuant to Sections 12.4 and 12.5 of the Station Agreement, to
include the 138-kv and 345-kv transmission facilities owned by
Columbus within the State of Ohio (excluding any such facilities,
or interests therein, which are commonly owned by Columbus as a
tenant-in-common with other corporations or otherwise jointly
owned with other corporations which are not Ohio Associates as
defined in the Station Agreement) as part of the transmission
facilities which are defined as "Ohio's Bulk Transmission
Facilities" in connection with the establishment and operation of
one or more Buckeye Bulk Power Delivery Points pursuant to
Sections 12.4 and 12.5 of the Station Agreement; and
WHEREAS, Ohio, Buckeye and Operating Company desire to
effect an additional amendment to the Station Agreement to give
effect to the purpose described in the next preceding preamble of
this Amendment No. 6 to the Station Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, Ohio, Buckeye and
Operating Company do hereby agree as follows:
ARTICLE ONE
Inclusion of Bulk Transmission Facilities
of Columbus As A Part Of Ohio's Bulk
Transmission Facilities
1.1 Effective as of the date when this Amendment No. 6
to the Station Agreement shall initially become effective and (a)
so long as Columbus shall constitute an Ohio Associate, as
defined in Section 1.1 of the Station Agreement, of which this
Amendment No. 6 is a part, and (b) so long as the Station
Agreement as amended by Amendment Nos. 1 through 6, shall remain
in effect, or, if the provisions of this Amendment No. 6 to the
Station Agreement shall be amended with the prior written consent
of Columbus, so long as the Station Agreement, as so amended,
shall remain in effect, as herein provided, the 138-kv and 345-kv
transmission facilities which are owned by Columbus within the
State of Ohio (excluding any such facilities, or interests
therein, which are owned by Columbus as a tenant-in-common, or
otherwise jointly owned, with other corporations which are not
Ohio Associates) shall be, and be deemed to be, a part of Ohio's
Bulk Transmission Facilities under the Station Agreement for the
purposes of Section 12.4 and Section 12.5 of the Station
Agreement, and such other provisions of the Station Agreement as
are related to the establishment of, and operations related to
Buckeye Bulk Power Delivery Points; provided, however, that (i)
in no case shall the establishment of any Buckeye Bulk Power
Delivery Point impair the ability of Columbus or Ohio to supply
power and energy to other customers of Columbus or Ohio, and (ii)
in any case where a Buckeye Bulk Power Delivery Point involves a
connection with facilities owned by Columbus, Buckeye, or the
Buckeye Member involved, shall reimburse Columbus for such
necessary equipment (including expenses associated with the
operation of such equipment), as the established practice of
Columbus requires, to operate, control and meter delivery of
power and energy at such a Buckeye Bulk Power Delivery Point; and
provided further that, during the period between the date when
this Amendment No. 6 to the Station Agreement shall initially
become effective pursuant to Section 2.1 hereof, and the date
when this Amendment No. 6 to the Station Agreement shall become
fully effective as provided in Section 2.2 hereof, (i) no Buckeye
Bulk Power Delivery Point shall be established at any point on
Ohio's Bulk Transmission Facilities in Ohio, comprising any
138-kv and/or 345-kv transmission facilities of Columbus, which
would require any additions on any of Ohio's Bulk Transmission
Facilities, or any of its other facilities or those of Columbus,
or which would require the construction or installation of any
connecting span or spans of conductors to facilities of Buckeye,
a Buckeye Member, or a customer of either, and (ii) it shall be
the responsibility of Buckeye, a Buckeye Member, or its
appropriate customer, during such interim period to make with
Columbus all arrangements necessary for receipts of power and
energy delivered by Ohio to Buckeye under the Station Agreement
at such Buckeye Bulk Power Delivery Point, it being the purpose
and intent of Ohio, Buckeye and Operating Company that, until
Amendment No. 6 to the Station Agreement shall become fully
effective pursuant to Section 2.2 hereof, deliveries of power and
energy to Buckeye or a Buckeye Member, or to a customer of
Buckeye or such Buckeye Member, shall be effected over facilities
of Columbus which are currently interconnected with facilities of
some other electric system and which are, at the date of this
Amendment No. 6 to the Station Agreement installed and fully
capable of operation without the installation of any further
facilities of any nature; and further provided that, in the event
that this Amendment No. 6 to the Station Agreement shall not
become fully effective pursuant to Section 2.2 hereof prior to
November 1, 1981 this Amendment No. 6 shall no longer be
effective on and after November 1, 1981 except that Buckeye, any
Buckeye Member involved and Ohio shall make such arrangements and
adjustments as shall be necessary to eliminate any and all such
interconnections with the facilities of Columbus as a Buckeye
Bulk Power Delivery Point and to restore the parties, and
Columbus, to the respective positions they would have occupied if
the initial effective date of Amendment No. 6 to the Station
Agreement had never occurred. A Buckeye Bulk Power Delivery
Point established on the transmission facilities of Columbus
pursuant to the provisions of this Amendment No. 6 to the Station
Agreement shall not be deemed to be a Delivery Point established
pursuant to Article Four of the Power Delivery Agreement.
Nothing contained in this Amendment No. 6 to the Station
Agreement, however, shall be construed to restrict, limit or
waive, directly or by implication, any rights which (i) Buckeye
or (ii) Columbus or Ohio may have under the Power Delivery
Agreement.
ARTICLE TWO
Effective Date of Amendment No. 6
to Station Agreement
2.1 The initial effective date of this Amendment No. 6
to the Station Agreement shall be the date on which the last of
the following events shall have occurred:
(i) Buckeye, Operating Company and Ohio shall each
have completed the execution of this Amendment No. 6 to the
Station Agreement by their respective officers thereunto duly
authorized;
(ii) Columbus shall have completed by a duly
authorized officer the form of consent and agreement with the
foregoing provisions of this Amendment No. 6 to the Station
Agreement which is hereto attached; and
(iii) June 30, 1981.
2.2 This Amendment No. 6 to the Station Agreement, and
the Station Agreement as modified by Amendments 1 through 6,
shall become fully effective on the date on which the last of the
following events shall have occurred:
(a) The initial effective date of this Amendment No. 6
to the Station Agreement shall have occurred;
(b) The Rural Electrification Administration shall
have approved in writing this Amendment No. 6 to the Station
Agreement;
(c) The Public Utilities Commission of Ohio shall have
issued an order authorizing and approving the arrangements
provided for in this Amendment No. 6 to the Station Agreement and
such order shall have become effective without condition; and
(d) This Amendment No. 6 to the Station Agreement
shall have been filed with, and accepted for filing without
condition by, the Federal Energy Regulatory Commission under the
Federal Power Act as a rate schedule, or as a supplement to a
rate schedule, of Columbus or Ohio, or both.
Each party hereto will use its best efforts to take or cause to
be taken all action requisite to the end that the foregoing event
shall occur and that this Amendment No. 6 to the Station
Agreement shall become fully effective as provided in this
Section 2.2 at the earliest practical date.
IN WITNESS WHEREOF, the parties have caused this
Amendment No. 6 to the Station Agreement to be executed by their
officers thereunto duly authorized as of the date first above
written.
OHIO POWER COMPANY
By /s/ W.S. White
Chairman of the Board and
Chief Executive Officer
BUCKEYE POWER, INC.
By /s/ Robert N. Clinch, Jr.
President
CARDINAL OPERATING COMPANY
By /s/ Frank N. Bien
Vice President
Columbus and Southern Ohio Electric Company (herein called
"Columbus") intending to be legally bound, does hereby consent
to, and agree with, the foregoing provisions of Amendment No. 6
to the Station Agreement which is hereto attached to the same
extent as if Columbus were a party to the Station Agreement, as
so amended, on June 30, 1981.
COLUMBUS AND SOUTHERN OHIO
ELECTRIC COMPANY
By /s/ Ben T. Ray
President