EXHIBIT 10.27
MASTER POWER PURCHASE AND SALE AGREEMENT
BETWEEN
ENRON POWER MARKETING, INC.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION)
Dated as of January 3, 1996
ACKNOWLEDGEMENT REGARDING CONFIDENTIAL INFORMATION:
Oglethorpe Power Corporation (An Electric Generation & Transmission
Corporation) (the "Company") acknowledges that certain confidential information
is contained throughout the Master Power Purchase and Sale Agreement and the
Exhibits attached thereto and therefore such confidential information has been
omitted from the copy filed with this Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, and an asterisk (*) has been inserted indicating
such omission at the exact place in the Agreement and the Exhibits where such
confidential information has been omitted. A copy of this Agreement without any
omission of confidential information has been filed separately with the
Secretary of the Commission as an attachment to a request for confidentiality
with respect to the omitted information.
MASTER POWER PURCHASE AND SALE AGREEMENT
BETWEEN
ENRON POWER MARKETING, INC.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION)
TABLE OF CONTENTS PAGE
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 SCOPE OF AGREEMENT AND TERM. . . . . . . . . . . 2
2.1 Transactions . . . . . . . . . . . . . . . . . . 2
2.2 Confirmations. . . . . . . . . . . . . . . . . . 2
2.3 Effective Date . . . . . . . . . . . . . . . . . 3
ARTICLE 3 TRANSACTIONS . . . . . . . . . . . . . . . . . . 3
3.1 General Obligations of Seller and Buyer. . . . . 3
3.2 Transmission and Scheduling. . . . . . . . . . . 4
3.3 Title and Risk of Loss . . . . . . . . . . . . . 4
3.4 Failure to Deliver or Receive. . . . . . . . . . 4
3.5 Sales by OPC . . . . . . . . . . . . . . . . . . 5
3.6 Sales by EPMI. . . . . . . . . . . . . . . . . . 9
3.7 Transformer and Transmission Loss Adjustments. . 9
3.8 SEPA Energy. . . . . . . . . . . . . . . . . . . 10
3.9 Imbalances and Regulation Deviation Errors . . . 10
3.10 Non-Territorial Contractual Delivery Obligations 11
ARTICLE 4 PRICE. . . . . . . . . . . . . . . . . . . . . . 11
4.1 OPC's Contract Price . . . . . . . . . . . . . . 11
4.2 EPMI's Contract Price. . . . . . . . . . . . . . 11
4.3 Amounts Due to OPC and EPMI. . . . . . . . . . . 11
4.4 Netting of Payment Obligations . . . . . . . . . 14
4.5 Amendments, Modifications of OPC Contracts . . . 15
ARTICLE 5 CONFIDENTIAL INFORMATION . . . . . . . . . . . . 15
5.1 Prior Confidentiality Agreement
Superseded; Authorization to Use
Information . . . . . . . . . . . . . . . . . 15
5.2 Authorized Disclosure. . . . . . . . . . . . . . 15
5.3 Return of Confidential Information . . . . . . . 16
5.4 Right to Remedies. . . . . . . . . . . . . . . . 16
5.5 Georgia Trade Secrets Act. . . . . . . . . . . . 17
ARTICLE 6 RECORDS. . . . . . . . . . . . . . . . . . . . . 17
6.1 Records of Transactions. . . . . . . . . . . . . 17
ARTICLE 7 BILLING AND PAYMENT. . . . . . . . . . . . . . . 17
7.1 Billing Statements . . . . . . . . . . . . . . . 17
7.2 Offset of Payment Obligations. . . . . . . . . . 17
7.3 Payments . . . . . . . . . . . . . . . . . . . . 18
7.4 Audit Rights . . . . . . . . . . . . . . . . . . 18
7.5 Subsequent Payment Adjustments . . . . . . . . . 18
ARTICLE 8 TAXES. . . . . . . . . . . . . . . . . . . . . . 19
8.1 Seller's Obligation. . . . . . . . . . . . . . . 19
8.2 Buyer's Obligation . . . . . . . . . . . . . . . 19
8.3 Exemption Certificates . . . . . . . . . . . . . 19
ARTICLE 9 INDEMNIFICATION AND REMEDIES . . . . . . . . . . 19
9.1 General Indemnity. . . . . . . . . . . . . . . . 19
9.2 Limitation on Remedies . . . . . . . . . . . . . 19
9.3 Duty to Mitigate . . . . . . . . . . . . . . . . 20
9.4 DISCLAIMER . . . . . . . . . . . . . . . . . . . 20
[ ]*
ARTICLE 10 REPRESENTATIONS AND WARRANTIES . . . . . . . . . 20
10.1 Mutual Representations . . . . . . . . . . . . . 20
10.2 Additional OPC Representations . . . . . . . . . 21
10.3 Additional EPMI Representations. . . . . . . . . 21
10.4 Good Title . . . . . . . . . . . . . . . . . . . 21
10.5 Continuing Representations and Warranties. . . . 22
ARTICLE 11 DEFAULTS AND REMEDIES. . . . . . . . . . . . . . 22
11.1 Events of Default. . . . . . . . . . . . . . . . 22
11.2 Early Termination; Remedies. . . . . . . . . . . 22
11.3 Special Early Termination Right. . . . . . . . . 23
11.4 Failure to Pay . . . . . . . . . . . . . . . . . 23
11.5 Effect of Regulation . . . . . . . . . . . . . . 23
ARTICLE 12 FORCE MAJEURE. . . . . . . . . . . . . . . . . . 24
12.1 Effect of Force Majeure. . . . . . . . . . . . . 24
ARTICLE 13 MISCELLANEOUS. . . . . . . . . . . . . . . . . . 24
13.1 Assignment . . . . . . . . . . . . . . . . . . . 24
13.2 Notices. . . . . . . . . . . . . . . . . . . . . 24
13.3 Applicable Law . . . . . . . . . . . . . . . . . 25
13.4 Survival of Obligations. . . . . . . . . . . . . 25
13.5 Entire Agreement . . . . . . . . . . . . . . . . 25
13.6 No Partnership . . . . . . . . . . . . . . . . . 25
13.7 Amendment. . . . . . . . . . . . . . . . . . . . 25
13.8 Third Parties. . . . . . . . . . . . . . . . . . 25
13.9 Waiver . . . . . . . . . . . . . . . . . . . . . 25
13.10 Character of Transactions. . . . . . . . . . . . 25
13.11 Severability . . . . . . . . . . . . . . . . . . 25
13.12 Interpretation . . . . . . . . . . . . . . . . . 26
13.13 Headings . . . . . . . . . . . . . . . . . . . . 26
13.14 Counterparts . . . . . . . . . . . . . . . . . . 26
EXHIBITS
- --------------------
* Indicates information that has been filed separately with the Secretary of the
Commission as an attachment to a request for confidentiality with respect to the
omitted information.
-ii-
MASTER POWER PURCHASE AND SALE AGREEMENT
BETWEEN
ENRON POWER MARKETING, INC.
AND
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION)
This Master Power Purchase and Sale Agreement dated as of January
3, 1996 ("Master Agreement," and together with all Transactions, collectively,
this "Agreement"), is entered into by and between Oglethorpe Power Corporation
(An Electric Membership Generation & Transmission Corporation), a corporation
organized and existing under Title 46 of the Official Code of Georgia Annotated
("OPC"), and Enron Power Marketing, Inc., a corporation organized and existing
under the laws of the State of Delaware ("EPMI").
WITNESSETH
WHEREAS, OPC is an electric generation and transmission corporation
which operates on a cooperative basis and which supplies the electric
requirements of the EMCs for the operation of their respective electric
distribution systems pursuant to the EMC Contracts;
WHEREAS, OPC also has entered into OPC Off-System Sales Contracts listed
on Exhibit 3.5.2 and may, subject to the terms of this Agreement, enter into
additional OPC Off-System Sales Contracts with third parties from time to time;
WHEREAS, EPMI is a power marketer authorized by the Federal Energy
Regulatory Commission to purchase and sell electric energy for resale at
negotiated rates pursuant to EPMI's Rate Schedule No. 1 under orders issued in
ENRON POWER MARKETING, INC., 65 FERC PARA 61,305 (1993) and 66 FERC PARA 61,244
(1994);
WHEREAS, OPC desires to purchase Electric Energy in order to supply the
electric requirements of the EMCs pursuant to the terms of the EMC Contracts and
to satisfy its obligations under the OPC Off-System Sales Contracts and, after
soliciting proposals from various potential suppliers and duly evaluating their
proposals, has selected EPMI for such purpose during the Term of this Agreement;
WHEREAS, EPMI desires to purchase Electric Energy from OPC for resale
(i) to OPC at prices consistent with this Agreement and (ii) to third parties at
negotiated prices;
WHEREAS, the Parties believe that their respective objectives can be
achieved if OPC sells to EPMI all of the Electric Energy OPC is obligated to
take or purchase from Must
Run Resources and offers to sell to EPMI all of the other Electric Energy which
OPC is entitled to take or purchase, as more specifically set forth herein, and
EPMI agrees to supply OPC with Electric Energy it has purchased from OPC or from
other sources;
WHEREAS, the Parties understand and acknowledge that EPMI shall have and
shall use Confidential Information in the course of satisfying its obligations
under, and in implementing the terms and conditions of, this Agreement and the
Parties desire to protect the Confidential Information in accordance with the
provisions of this Master Agreement instead of pursuant to that certain
Confidentiality Agreement entered into by the Parties, dated as of December 8,
1995; and
WHEREAS, EPMI and OPC desire that with respect to the subject matter of
this Agreement, this Agreement shall supersede and replace any and all prior
agreements between them, including that certain Interchange Agreement dated
March 1, 1995, and that certain agreement dated November 17, 1995.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and for other good and valuable consideration, OPC and EPMI
hereby agree as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in Appendix A hereto.
ARTICLE 2
SCOPE OF AGREEMENT AND TERM
2.1 TRANSACTIONS. The Parties shall enter into Transactions for the
purchase or sale of Electric Energy hereunder. Each Transaction shall be
effectuated and evidenced in accordance with this Master Agreement and shall
constitute a part of this Agreement. The Parties are relying upon the fact that
all Transactions, together with this Master Agreement, shall constitute a single
integrated agreement, and that the Parties would not otherwise enter into any
Transactions. Any conflict between this Master Agreement and a Transaction
shall be resolved in favor of this Master Agreement. This Master Agreement
shall govern all Transactions between the Parties from and after the Effective
Date unless expressly stated otherwise.
2.2 CONFIRMATIONS. Each Transaction shall be effectuated and
evidenced by (i) a recorded telephone conversation between the Parties whereby
an offer and acceptance
-2-
shall constitute the agreement of the Parties or (ii) a Transaction Agreement
executed by the Parties (including by facsimile or counterparts). The specific
terms to be established and agreed upon by the Parties shall include the Period
of Delivery, the Contract Price, the Delivery Point(s), the Contract Quantity
and such other terms as the Parties shall agree that are not in conflict with
this Master Agreement; PROVIDED, HOWEVER, that the Parties may modify the
Contract Price, Contract Quantity and Delivery Points with respect to the
purchase and sale of Electric Energy pursuant to the terms of this Master
Agreement. EPMI may confirm a Transaction by forwarding to OPC a Confirmation
substantially in the form of Exhibit 2.2 hereto, which shall be executed by OPC
(with any objections noted thereon) and returned to EPMI within two Business
Days or else be deemed correct as sent; PROVIDED, HOWEVER, that failure to send
a Confirmation shall not invalidate any Transaction agreed to by the Parties.
The Parties agree not to contest or assert any defense to the validity or
enforceability of telephonic Transactions entered into in accordance with this
Master Agreement under Laws relating to whether certain agreements are to be in
writing or signed by the Party to be thereby bound, or the authority of any
employee of such Party to enter into a Transaction. Each Party consents to the
recording of its representatives' telephone conversations without any further
notice. All recordings may be introduced into evidence to prove oral agreements
between the Parties.
2.3 EFFECTIVE DATE. This Master Agreement shall become effective on
the date first written above (the "Effective Date"), provided that the delivery
of Electric Energy pursuant to this Master Agreement shall commence at one
minute prior to 12:01 a.m. EPT on January 4, 1996 ("Commencement Date"), and
shall remain in effect until one second prior to 12:00 midnight EPT on April 30,
1996 (the "Termination Date") unless earlier terminated pursuant to this Master
Agreement (the "Term"); PROVIDED, HOWEVER, that all Transactions shall terminate
no later than the Termination Date. The Term may be extended upon terms
mutually agreeable to the Parties and subject to approval of the RUS, if
required. The applicable provisions of this Master Agreement shall continue in
effect after the Termination Date in accordance with Section 13.4 hereof.
ARTICLE 3
TRANSACTIONS
3.1 GENERAL OBLIGATIONS OF SELLER AND BUYER. With respect to each
Transaction, Seller shall sell and deliver, or cause to be delivered, and Buyer
shall receive, or cause to be received, at the Delivery Point(s) the Contract
Quantity, and Buyer shall pay Seller the Contract Price, as adjusted in
accordance with Article 4 hereof. Except as otherwise specifically addressed in
Section 3.7 hereof, Seller
-3-
shall be responsible for any costs or charges imposed on or associated with the
delivery of the Contract Quantity (including control area services, transmission
losses and loss charges relating to the transmission of the Contract Quantity)
up to the Delivery Point. Except as otherwise specifically addressed in Section
3.7 hereof, Buyer shall be responsible for any costs or charges imposed on or
associated with the Contract Quantity (including control area services,
transmission losses and loss charges relating to the transmission of the
Contract Quantity) at and from the Delivery Point.
3.2 TRANSMISSION AND SCHEDULING. (a) Seller shall arrange and be
responsible for transmission service to the Delivery Point and shall Schedule or
arrange for Scheduling services with its Transmission Providers to deliver the
Contract Quantity to the Delivery Point. Buyer shall arrange and be responsible
for transmission service at and from the Delivery Point and shall Schedule or
arrange for Scheduling services with its Transmission Providers to receive the
Contract Quantity at the Delivery Point. Each Party shall designate authorized
representatives to effect the Scheduling of the Contract Quantity required to be
delivered and received pursuant to a Transaction. Each Party shall promptly
notify the other of any differences between Scheduled quantities and actual
quantities delivered and received.
(b) Notwithstanding the foregoing, with respect to Transactions
involving or relating to transmission service on the ITS, OPC shall be
responsible for transmission service and shall arrange for any Scheduling with
Georgia Power Company in accordance with EPMI's requests. For Delivery Points
which are Points of Interconnection, at EPMI's request OPC shall Schedule [
]* transfer capability of OPC's allocation entitlement at each
interface set forth on Exhibit 3.2.
3.3 TITLE AND RISK OF LOSS. As between the Parties, Seller shall be
deemed to be in exclusive control (and responsible for any damages or injury
caused thereby) of the Contract Quantity prior to the Delivery Point and Buyer
shall be deemed to be in exclusive control (and responsible for any damages or
injury caused thereby) of the Contract Quantity at and from the Delivery Point.
Title to and risk of loss of the Contract Quantity shall transfer from Seller to
Buyer at the Delivery Point.
3.4 FAILURE TO DELIVER OR RECEIVE. (a) Unless excused by Force
Majeure or the failure of Buyer's performance, if Seller fails to deliver, or
cause to be delivered, the Contract Quantity, Seller shall pay Buyer, on the
date payment would otherwise be due, an amount for each MWh of such deficiency
equal to the positive difference, if any, obtained by subtracting (i) the
Contract Price for that portion of the Contract Quantity which was not delivered
from (ii) the Replacement Price.
- ------------------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-4-
"Replacement Price" means the price at which Buyer, acting in a commercially
reasonable manner, purchases substitute Electric Energy not delivered by Seller
(plus any additional transmission charges incurred by Buyer, if any, to the
Delivery Point), including, for example, charges incurred by the Buyer in
respect of purchases of Electric Energy pursuant to Section 3.4(c) hereof, or
absent a purchase, the market price for such quantity at the Delivery Point as
determined by Buyer in a commercially reasonable manner.
(b) Unless excused by Force Majeure or the failure of Seller's
performance, if Buyer fails to receive, or cause to be received, the Contract
Quantity, Buyer shall pay Seller, on the date payment would otherwise be due, an
amount for each MWh of such deficiency equal to the positive difference, if any,
obtained by subtracting (i) the Sales Price from (ii) the Contract Price for
that portion of the Contract Quantity which was not received. "Sales Price"
means the price at which Seller, acting in a commercially reasonable manner,
resells the Electric Energy not received by Buyer (less any additional
transmission charges incurred by Seller, if any, from the Delivery Point to the
point of sale), including, for example, charges incurred by Seller in respect of
sales of Electric Energy pursuant to the CSA, or, absent a resale, the market
price for such quantity at the Delivery Point, as determined by Seller in a
commercially reasonable manner.
(c) If the Electric Energy supplied by EPMI in any hour is
less than OPC Load or if the Electric Energy supplied by OPC in any hour is less
than the amount of OPC Energy Properly Requested by EPMI, the deficiency may be
corrected by a purchase by OPC from Georgia Power Company pursuant to the
applicable schedule of the CSA. Unless excused by Force Majeure, the charge for
such purchase shall be borne by OPC if the deficiency is caused by OPC's failure
to make available the OPC Energy that EPMI Properly Requested, or by EPMI if the
deficiency is caused by EPMI's failure to make available from sources other than
OPC Resources the difference between the OPC Load and OPC Energy that EPMI
Properly Requested to be delivered to OPC.
3.5 SALES BY OPC. For each hour of the Term, OPC shall promptly inform
EPMI of the OPC Resources that are available for the delivery of OPC Energy,
including nuclear OPC Resources and other "must run" resources which are listed
on Exhibit 3.5 hereto ("Must Run Resources") and dispatchable resources.
3.5.1 MUST RUN RESOURCES. OPC shall sell and EPMI shall
purchase all of the OPC Energy associated with Must Run Resources that
are available during each hour of the Term. OPC shall use commercially
reasonable efforts to make Must Run Resources available for the
production and sale of OPC Energy to EPMI during the Term, subject
-5-
to the terms, conditions and limitations, if any, contained in the OPC
Contracts.
3.5.2 DISPATCHABLE OPC RESOURCES. With respect to OPC
Resources other than Must Run Resources, OPC shall offer to sell to EPMI
on an exclusive basis and EPMI shall have the exclusive right, but not
the obligation, to purchase from OPC any OPC Energy that is available
during each hour of the Term; PROVIDED, HOWEVER, that OPC shall be
permitted to make OPC Off-System Sales pursuant to the OPC Off-System
Sales Contracts, which Electric Energy shall be provided to OPC by EPMI
pursuant to Section 3.6 and at the prices set forth in Section 4.2
hereof. OPC shall use commercially reasonable efforts to make such
dispatchable OPC Resources available for the production and sale of OPC
Energy to EPMI during the Term, subject to the terms, conditions and
limitations, if any, contained in the OPC Contracts. EPMI shall effect
the acceptance of an OPC offer pursuant to the first sentence of this
Section 3.5.2 by complying with the procedures set forth in Section 2.2
hereof. Except with respect to the power purchasers under the OPC Off-
System Sales Contracts listed on Exhibit 3.5.2, OPC shall not be
permitted to make off-system sales of Electric Energy during the Term to
parties other than EPMI without the prior consent of EPMI.
3.5.3 OPC CONTRACTS, RESOURCES AND COSTS. OPC shall be
responsible for compliance with the OPC Contracts and shall take such
rights and obligations into consideration when entering into
Transactions to sell Electric Energy to EPMI. Nothing in this Agreement
shall be construed to assign, impose or otherwise transfer any rights or
obligations under such agreements to EPMI and OPC shall retain all of
its rights and obligations, including but not limited to its obligation
to maintain generation and transmission system stability and
reliability. Notwithstanding any other provision of this Agreement, OPC
shall not be required to take any action inconsistent with its rights
and obligations under either the OPC Contracts or the NERC or SERC
guidelines. Nothing in this Agreement shall affect the rights or
obligations of the parties to the EMC Contracts. OPC acknowledges and
agrees that EPMI requires information concerning OPC Contracts, OPC
Resources, OPC Load and Energy Cost in order to satisfy EPMI's
obligations hereunder. OPC has delivered to EPMI the following
information: (i) a list of all OPC Resources and OPC Contracts and any
proposed or pending amendments to the OPC Contracts, which list is
attached as Exhibit 3.5.3(i) hereto; (ii) a statement of the expected
availability and the transformer loss factor of each OPC Resource,
including nuclear generating units, which statement is
-6-
attached as Exhibit 3.5.3(ii) hereto; and (iii) a schedule of the Energy
Costs expected to apply to Electric Energy produced by each OPC Resource
during the Term ("Forecast Energy Costs"), which schedule is attached as
Exhibit 3.5.3(iii) hereto. OPC hereby agrees to update such information
promptly as new information becomes available to OPC during the Term and
to promptly provide such updated information to EPMI.
3.5.4 SCHEDULING. The Parties agree to adopt procedures to
facilitate EPMI's ability on an hourly basis to purchase OPC Energy.
The Parties shall also establish procedures whereby OPC shall
communicate to EPMI on an hourly basis the availability of, and
estimated Energy Cost for, each OPC Resource, as such availability and
Energy Cost may change from time to time and the projected OPC Load.
Upon communication of such information, EPMI shall Properly Request the
amounts of Electric Energy that EPMI desires to purchase from each such
OPC Resource in excess of its obligation to purchase OPC Energy from
Must Run Resources. In each hour of the Term, OPC shall sell and
deliver, or cause to be delivered, and EPMI shall purchase and receive,
or cause to be received, the sum of (i) OPC Energy that is attributable
to Must Run Resources and (ii) other OPC Energy that EPMI Properly
Requests for purchase during that hour. The Period of Delivery for OPC
Energy purchased by EPMI from OPC Resources other than Must Run
Resources shall be as specified by EPMI. OPC shall be responsible for
Scheduling transmission service as provided in Section 3.2 hereof.
3.5.5 DELIVERY POINTS. EPMI, in its reasonable discretion,
shall specify one or more Delivery Points for the OPC Energy for each
Transaction in which EPMI is Buyer. OPC shall use commercially
reasonable efforts to accommodate Delivery Point designations by EPMI
consistent with OPC's interests and rights in the ITS and the terms,
conditions and limitations, if any, under the OPC Contracts. OPC shall
promptly inform EPMI of any transmission constraints or other
impediments to satisfying EPMI's Delivery Point designations so that
EPMI may notify OPC of appropriate changes to, or the amount of OPC
Energy to be delivered at, such Delivery Points.
3.5.6 DEEMED ENERGY COST IN THE EVENT OF OPC FAILURE TO
DELIVER FROM CERTAIN OPC RESOURCES. In the event that an OPC Resource
is available for the production of OPC Energy during an hour, EPMI
Properly Requests OPC Energy therefrom and, contrary to EPMI's request,
OPC delivers OPC Energy to EPMI from another OPC Resource, then the
Energy Cost for the OPC Energy made
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available shall be deemed [
]*. The foregoing
provision shall not apply in the event that OPC shall demonstrate
(either before or after the fact) that its failure to deliver OPC Energy
from the OPC Resource Properly Requested by EPMI is or was a direct
result of a reasonable determination made by OPC, acting in good faith
after consultation with EPMI to the extent reasonably practicable, that
failure to comply with EPMI's request was reasonably required to assure
the stability and reliability of OPC's generation and transmission
system; [
]*. OPC shall use commercially
reasonable efforts to provide EPMI with advance notice of possible
transmission constraints, voltage deterioration or similar system events
or occurrences that might result in a prospective failure by, or
inability of, OPC to Schedule or deliver OPC Energy Properly Requested
by EPMI, either as a result of EPMI's request for OPC Energy or
otherwise, such that EPMI, to the extent practicable, shall be able to
select whether to modify the OPC Resources from which it desires to
receive OPC Energy (or the amount thereof) consistent with the
good-faith and reasonable stability or reliability concerns of OPC or,
alternatively, to bear the risk of acquiring OPC Energy from its
originally designated OPC Resource; PROVIDED, HOWEVER, that it is
specifically agreed by the Parties that in the event EPMI affirms its
originally designated request for OPC Energy from a specific OPC
Resource or does not modify its request consistent with the good-faith
and reasonable recommendations of OPC and, as a result thereof, OPC
incurs additional incremental costs that would not have been incurred in
the absence of OPC complying with EPMI's request, such amounts
(including charges under the CSA) shall be reimbursed by EPMI to OPC.
3.5.7 EMISSION ALLOWANCES. At no cost to EPMI, OPC shall
remain responsible for the surrender of all emission allowances required
to operate the Hal B. Wansley Plant (Units 1 and 2) and other jointly-
owned OPC generating resources and to effect the purchase of energy
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* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-8-
under the block power purchase and sale agreement between OPC and
Georgia Power Company. EPMI shall not be deemed to have acquired any
sulfur-free generation for use in a reduced utilization plan by reason
of entering into this Agreement.
3.6 SALES BY EPMI. In each hour of the Term, EPMI shall sell and
deliver, or cause to be delivered, and OPC shall purchase and receive, or cause
to be received, an amount of Electric Energy equal to the sum of the OPC Load
and the OPC Off-System Sales in that hour. EPMI's obligation to supply OPC with
Electric Energy for the purpose of serving OPC Load shall be treated as a single
agreement for which no further authorization or request by OPC other than this
Master Agreement shall be required; PROVIDED, HOWEVER, that OPC shall be
responsible for providing certain ongoing load following, Scheduling and related
ancillary services necessary to effect the sales of Electric Energy by EPMI to
OPC.
3.6.1 DELIVERY POINTS. EPMI, in its reasonable discretion,
shall specify one or more Delivery Points for the Electric Energy for
each Transaction in which EPMI is Seller. OPC shall use commercially
reasonable efforts to accommodate Delivery Point designations by EPMI
consistent with OPC's interests and rights in the ITS and the terms,
conditions and limitations, if any, under the OPC Contracts. OPC shall
promptly inform EPMI of any transmission constraints or other
impediments to satisfying EPMI's Delivery Point designations so that
EPMI may notify OPC of appropriate changes to, or the amount of Electric
Energy to be delivered at, such Delivery Points.
3.7 TRANSFORMER AND TRANSMISSION LOSS ADJUSTMENTS.
(a) With respect to Transactions in which EPMI purchases OPC
Energy from an OPC Resource that is a generating plant which interconnects
directly into the ITS, EPMI shall provide for the transformer losses from the
generator to Level B-1. This shall be effected by EPMI's purchase from OPC of
an amount of MWh equal to the MWh that OPC delivers to Level B-1 divided by the
loss factor stated on Exhibit 3.5.3(ii) for that particular OPC Resource.
(b) For purposes of supplying OPC with Electric Energy to
serve OPC Load, EPMI shall provide for transmission losses which shall be
effected by EPMI delivering, or causing to be delivered, to OPC at one or more
Delivery Points an amount of MWh equal to OPC Load divided by 1 minus the ITS
Loss Factor, as determined pursuant to the ITSA, in effect at the time of each
delivery. EPMI shall not be responsible for any other costs or charges imposed
or associated with the delivery of Electric Energy pursuant to this
Section 3.7(b).
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(c) For purposes of supplying OPC with Electric Energy to
satisfy OPC's Off-System Sales obligations, EPMI shall provide for transmission
losses which shall be effected by EPMI delivering, or causing to be delivered,
to OPC at one or more Delivery Points an amount of MWh equal to OPC Off-System
Sales divided by 0.97.
(d) For purposes of supplying Electric Energy to satisfy
EPMI's sales obligations to third parties that accept delivery on the ITS or for
delivery at Points of Interconnection, EPMI shall provide for transmission
losses which shall be effected by EPMI delivering, or causing to be delivered,
to OPC at one or more Delivery Points on the ITS an amount of MWh equal to the
amount EPMI desires to receive at the Delivery Point divided by 0.97.
(e) For purposes of supplying Electric Energy to permit OPC to
pump water to the upper reservoir at the Rocky Mountain Pumped Storage
Hydroelectric Generating Facility ("Rocky Mountain"), EPMI shall provide for
transmission losses which shall be effected by EPMI delivering, or causing to be
delivered, to OPC at one or more Delivery Points an amount of MWh equal to the
amount delivered to Rocky Mountain divided by 0.97.
Except as set forth in this Section 3.7, EPMI shall not be responsible for other
transmission costs or charges for ancillary services.
3.8 SEPA ENERGY. Each of the EMCs is entitled to an allocation of
hydroelectric power from SEPA, the cost of which is billed directly by SEPA to
each EMC. OPC and EPMI agree that EPMI's obligation to serve the power supply
requirements of OPC pursuant to this Agreement shall be reduced by the SEPA
Energy Scheduled for delivery to the EMCs pursuant to the SEPA Contracts;
PROVIDED, HOWEVER, that OPC shall Schedule delivery of SEPA Energy to the EMCs
as requested by EPMI consistent with the CSA.
3.9 IMBALANCES AND REGULATION DEVIATION ERRORS. (a) The Parties
recognize that the actual OPC Load may vary in any hour even when the OPC Load
has been reasonably forecast by EPMI and Electric Energy has been Scheduled as
Properly Requested by EPMI. Such variances are expected to be accounted for
pursuant to the CSA (which accounts for various types of imbalances and
regulation deviation errors). If such imbalances and regulation deviation
errors occur, EPMI shall pay the additional charges for which OPC is responsible
pursuant to the CSA as a result thereof, and EPMI shall receive the benefit, if
any, of any revenue or credit received by OPC pursuant to the CSA; PROVIDED,
HOWEVER, that OPC shall be solely responsible for, and shall pay for charges,
credits and revenues, if any, resulting from imbalances
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and regulation deviation errors resulting from a failure to supply Electric
Energy as Properly Requested from EPMI.
(b) In the event that OPC determines that there are material
imbalances and regulation deviation errors which are causing problems in
relationships between OPC and Georgia Power Company, OPC shall so notify EPMI,
and the chief executive officers of OPC and EPMI shall meet to establish
procedures to correct such problems.
3.10 NON-TERRITORIAL CONTRACTUAL DELIVERY OBLIGATIONS.
For purposes of supplying Electric Energy to satisfy EPMI's sales obligations to
third parties that accept delivery on the ITS or delivery at Points of
Interconnection, EPMI shall be responsible for and shall pay charges arising
from any Non-Territorial Contractual Delivery Obligations in the event and to
the extent such charges are imposed on and paid by OPC pursuant to the ITSA.
ARTICLE 4
PRICE
4.1 OPC'S CONTRACT PRICE. Subject to Section 4.3 hereof, the Contract
Price for Electric Energy sold by OPC to EPMI shall be the Energy Cost for OPC
Energy that EPMI Properly Requests.
4.2 EPMI'S CONTRACT PRICE. Subject to Section 4.3 hereof, (i) with
respect to sales of Electric Energy by EPMI to OPC relating to OPC Load, the
Contract Price shall be equal to [ ]*, as adjusted pursuant to
Exhibit 4.2 hereto if the ITS Loss Factor is reduced from 4.1931% to 3.7271%
("EPMI Sales Price"), and (ii) with respect to sales of Electric Energy by EPMI
to OPC relating to OPC Off-System Sales, the Contract Price shall be as agreed
to by the Parties (the "EPMI Off-System Sales Price"); PROVIDED, HOWEVER, that
if the ITS Loss Factor is adjusted to be other than 4.1931% or 3.7271%, then
EPMI and OPC agree to promptly negotiate in good faith an acceptable adjustment
to the EPMI Sales Price; and PROVIDED, FURTHER, that with respect to the OPC
Off-System Sales Contracts listed on Exhibit 3.5.2 hereto, EPMI and OPC have
agreed that the Contract Price shall be equal to [
]*.
4.3 AMOUNTS DUE TO OPC AND EPMI. Each month OPC shall charge EPMI an
amount equal to the aggregate Energy Costs attributable to the OPC Energy that
is Properly Requested by EPMI, including amounts, if any, owing under the CSA.
Each month EPMI shall charge OPC an amount equal to the product of (i) the OPC
Load purchased by OPC during the month and (ii) the EPMI Sales Price, PLUS an
amount equal to the product of (i) each OPC Off-System Sales quantity purchased
by OPC from EPMI during the month and (ii) the EPMI Off-System Sales Price
applicable to each
- -------------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-11-
such OPC Off-System Sale; PROVIDED, HOWEVER, that the amounts so determined
shall be subject to the following adjustments:
4.3.1 AVAILABILITY OF NUCLEAR OPC RESOURCES. (a) The EPMI
Sales Price has been computed based upon certain assumptions relating to
the expected availability of the nuclear OPC Resources during the Term.
Such price assumes cumulative availability (measured in MWh) of
1,055,419 MWh for Plant Hatch (Units 1 and 2 combined) and 1,597,982 MWh
for Plant Vogtle (Units 1 and 2 combined) for such period, as reflected
on Exhibit 4.3.1 hereof. Adjustments to the amounts otherwise due to
EPMI or OPC shall be made to reflect and to take into account any
deviation between the expected availability of Plant Hatch and Plant
Vogtle, respectively, and the actual availability of such nuclear OPC
Resources. If Plant Hatch or Plant Vogtle generates Electric Energy in
excess of the assumed MWh availability, additional amounts (as described
below) shall be payable by EPMI to OPC; alternatively, if Plant Hatch or
Plant Vogtle generates Electric Energy less than the expected MWh
availability, then OPC shall owe additional amounts (as described below)
to EPMI.
(b) If the total actual OPC nuclear generation (in MWh) ("Total
Actual OPC Nuclear Generation") for Plant Hatch or Plant Vogtle,
respectively, shall exceed the total expected OPC nuclear generation (in
MWh) ("Total Expected OPC Nuclear Generation") for the respective
generation facilities ("Excess Generation"), then EPMI shall pay to OPC
an amount equal to the product of: (i) the amount of such Excess
Generation and (ii) [ ]* if the nuclear OPC Resource
that shall have experienced Excess Generation is Plant Hatch and
[ ]* if the nuclear OPC Resource that shall have experienced
Excess Generation is Plant Vogtle. If the Total Actual OPC Nuclear
Generation for Plant Hatch or Plant Vogtle is less than the Total
Expected OPC Nuclear Generation for the respective plants ("Generation
Shortfall"), regardless of whether the Generation Shortfall results from
or is the result of a scheduled or forced outage, a limited load
operating condition or other event or condition that adversely affects
the availability of such nuclear OPC Resource, then OPC shall pay to
EPMI an amount equal to the product of: (i) the Generation Shortfall
and (ii) [ ]* if the nuclear OPC Resource that shall have
suffered a Generation Shortfall is Plant Hatch and [ ]* if the
nuclear OPC Resource that shall have suffered a Generation Shortfall is
Plant Vogtle.
(c) The Total Actual OPC Nuclear Generation for Plant Hatch and
Plant Vogtle shall be compared to the
- -----------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-12-
Total Expected OPC Nuclear Generation for Plant Hatch and Plant
Vogtle, respectively, computed on a cumulative basis from the
Commencement Date; PROVIDED, HOWEVER, that as set forth on Exhibit 4.3.1
hereof, the differences between the Total Actual OPC Nuclear Generation
and the Total Expected Nuclear Generation at the end of each month
during the Term shall be settled financially between OPC and EPMI on a
monthly basis.
(d) Exhibit 4.3.1 sets forth the intended operation of this
Section 4.3.1, reflecting possible variances in availability (in MWh) on
a month-to-month basis, resulting in payments between the Parties on
account of Excess Generation in certain months and Generation Shortfalls
in others.
4.3.2 DEVIATION FROM FORECAST ENERGY COSTS. As soon as
reasonably practicable after the end of each month, OPC shall compare
the actual average monthly Energy Cost for each of the OPC Resources
with the Forecast Energy Cost for each such OPC Resource as shown on
Exhibit 3.5.3(iii) hereto. If the actual average monthly Energy Cost
exceeds [ ]* of the Forecast Energy Cost for any of the OPC
Resources during the month, then the amount otherwise due EPMI pursuant
to this Section 4.3 shall be increased by an amount equal to the product
of (i) the amount of the actual average monthly Energy Cost of any OPC
Resource in excess of [ ]* of the Forecast Energy Cost of such OPC
Resource for such month and (ii) the Electric Energy Properly Requested
by EPMI from such OPC Resource during such month. No adjustment shall
be made to the extent that the actual average monthly Energy Cost does
not exceed [ ]* of the Forecast Energy Cost for an OPC Resource
during any month. EPMI may, from time to time, provide for the cost of
fuel for the account of OPC in order to permit the owner of Hartwell
Units 1 and 2 ("Hartwell") to produce Electric Energy and, consequently,
no adjustment shall be made to Energy Cost under this Section 4.3.2 for
Hartwell.
4.3.3 FIXED MONTHLY PAYMENTS BY EPMI TO OPC. EPMI shall
pay to OPC an amount equal to the Fixed Monthly Payment for the
applicable month during the Term, as specified on Exhibit 4.3.3 hereof,
which payments shall be payable in accordance with Section 7.3 hereof
without regard to, INTER ALIA, the source of Electric Energy Properly
Requested or purchased by EPMI pursuant to Section 3.5 hereof or the
amount of Electric Energy sold by EPMI to OPC pursuant to Section 3.6
hereof. The Fixed Monthly Payments are intended to pay the estimated
variable operation and maintenance expenses of OPC; PROVIDED, HOWEVER,
that if OPC's actual variable operation and maintenance expenses exceed
the amount of
- --------------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-13-
the Fixed Monthly Payments, EPMI shall have no liability with respect to
such excess expenses.
4.3.4 ROCKY MOUNTAIN "TRUE-UP" ADJUSTMENT. On the
Commencement Date and at the end of the Term, OPC shall determine the
water level in the upper reservoir of Rocky Mountain to determine the
estimated megawatt hours of generation in storage in accordance with
Exhibit 4.3.4, column 1 (Upper Reservoir Level Ft.) and column 4
(estimated MWh in Storage Generating). In the event that the beginning
megawatt hours minus the ending megawatt hours is positive, then EPMI
shall pay OPC this difference (in MWh) times the EPMI Sales Price in
effect for the last month of the Term. In the event that the beginning
megawatt hours minus the ending megawatt hours is negative, then OPC
shall pay EPMI an amount equal to this difference (in MWh) times the
EPMI Sale Price in effect for the last month of the Term.
4.3.5 LPMI CONTRACT ADJUSTMENT. Pursuant to Section 4.2
hereof, EPMI has agreed to sell Electric Energy to OPC at a Contract
Price equal to the price at which OPC is obligated to sell Electric
Energy to LPMI pursuant to that certain power purchase and sale
agreement between LPMI and OPC listed on Exhibit 3.5.2 hereto. In
consideration thereof, OPC shall pay to EPMI the sum of [ ]*;
[ ]* of which shall be payable for the month of January and
[ ]* shall be payable for the month of February. Such amounts
shall be credited to EPMI in the form of an offset against the
amounts of the Fixed Monthly Payments due to OPC from EPMI pursuant
to Section 4.3.3 hereof for the months of January and February, 1996.
4.3.6 CERTAIN SALES FOR RESALE. The Parties understand and
agree that the EPMI Sales Price applies to all Electric Energy required
to enable OPC to satisfy its obligations under the EMC Contracts to meet
the requirements of each of the EMCs for the operation of their electric
distribution systems, including serving the "customer choice" customers
which are not situated within the territorial service area of any such
EMC; PROVIDED, HOWEVER, that if, on or after the Effective Date, an EMC
enters into a contract with a customer for the sale of Electric Energy
for resale, the EPMI Sales Price for Electric Energy sold to OPC to
serve such wholesale sale by such EMC shall be adjusted to cover the
actual cost of such Electric Energy. OPC and EPMI shall negotiate to
determine the actual cost of providing such Electric Energy.
4.4 NETTING OF PAYMENT OBLIGATIONS. The Parties shall satisfy their
respective financial obligations to each other by
- -------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-14-
netting the amounts due to OPC from EPMI against amounts due to EPMI from OPC
hereunder, subject to the provisions of Section 7.2.
4.5 AMENDMENTS, MODIFICATIONS OF OPC CONTRACTS. The Parties agree and
understand that the EPMI Sales Price is based upon and reflects the OPC
Contracts in effect on the Effective Date and the pending or proposed amendments
thereto, if any, which are listed on Exhibit 3.5.3(i). In the event that
additional amendments or modifications to the OPC Contracts become effective
and, as a result thereof, the economic return anticipated to be derived by EPMI
pursuant to this Agreement would reasonably be expected to be materially and
adversely affected, EPMI and OPC agree to negotiate in good faith modifications
to this Agreement in order to substantially preserve the economic return that
would have been derived by EPMI in the absence of such amendments or
modifications.
ARTICLE 5
CONFIDENTIAL INFORMATION
5.1 PRIOR CONFIDENTIALITY AGREEMENT SUPERSEDED; AUTHORIZATION TO USE
INFORMATION. The Parties expressly agree that that certain Confidentiality
Agreement entered into by the Parties dated as of December 8, 1995,
automatically and immediately and with no further action by the Parties shall
terminate as of the Effective Date of this Master Agreement. OPC expressly
authorizes and grants its consent to EPMI to use Confidential Information,
whether acquired before or after the Effective Date, pertaining to, without
limitation, OPC, OPC Resources, OPC Load, OPC Off-System Sales and the EMCs, for
the purpose of exercising EPMI's rights under this Agreement, including EPMI's
right to buy Electric Energy from OPC or any other person and to sell Electric
Energy to OPC or any other person, whether Electric Energy is produced by or
attributable to OPC Resources or other resources. Each Party agrees that it
shall not disclose Confidential Information whether acquired before or after the
Effective Date, to any third party other than each Party's officers, directors,
employees, advisors or representatives, or each Party's Affiliates (or as to
OPC, the EMCs), their officers, directors, employees, advisors or
representatives who need to know and agree to maintain the confidentiality of
the Confidential Information (collectively, "Representatives") during the Term
and for a period of not more than three (3) years after the Termination Date.
Each Party shall be responsible for any breach of this Agreement by its
Representatives.
5.2 AUTHORIZED DISCLOSURE. Notwithstanding anything contained in this
Article 5, Confidential Information may be disclosed to any governmental,
judicial or regulatory authority requiring such Confidential Information,
provided that: (i) such
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Confidential Information is submitted under applicable provisions, if any, for
confidential treatment by such governmental, judicial or regulatory authority;
(ii) prior to such disclosure, the Party who supplied the information is given
notice of the disclosure requirement so that it may take whatever action it
deems appropriate, including intervention in any proceeding and the seeking of
an injunction to prohibit such disclosure; and (iii) the Party subject to the
governmental, judicial or regulatory authority endeavors to protect the
confidentiality of any Confidential Information to the extent reasonable under
the circumstances and to use its good faith efforts to prevent the further
disclosure of any Confidential Information provided to any governmental judicial
or regulatory authority. In addition to, and without limiting the foregoing,
the Parties agree and understand that EPMI may, in its discretion, seek to
obtain a ruling from or the formal or informal approval of a governmental agency
or agencies, including the Securities and Exchange Commission, with respect to
this Agreement or the effect thereof on certain business activities of EPMI. In
connection therewith, such governmental agency may require EPMI to submit the
Agreement or a description of the terms and conditions thereof to such
governmental agency. OPC hereby consents to the disclosure of such documents or
information to such governmental agencies, provided that EPMI shall request such
governmental agency to keep such submitted information confidential.
5.3 RETURN OF CONFIDENTIAL INFORMATION. Upon (i) the termination of
this Agreement and (ii) the request of a Party, the other Party shall return all
written Confidential Information (including written confirmation of oral
communications) provided by the requesting Party which was stamped
"confidential" and shall not retain any copies of such written Confidential
Information. In the event of such request, all documents, analyses,
compilations, studies or other materials prepared by the returning Party or its
Representatives that contain or reflect Confidential Information (other than
computer archival and backup tapes or archival and backup files (collectively
"Computer Tapes") and billing and trading records (collectively, "Other
Records")) shall be destroyed and no copy thereof shall be retained (such
destruction to be confirmed in writing by a duly authorized officer of the
returning Party). Computer Tapes and Other Records shall be kept confidential
in accordance with the terms of this Agreement.
5.4 RIGHT TO REMEDIES. In the event of an unauthorized disclosure to
a third party, the limitations on remedies contained in Section 9.2 shall not
apply, and in the event of a breach neither Party will have an adequate remedy
at law and accordingly shall, in addition to any other available legal or
equitable remedies, be entitled to an injunction against such breach without any
requirement to post a bond as a condition of such relief.
-16-
5.5 GEORGIA TRADE SECRETS ACT. Except as expressly provided in
Article 5 of this Agreement, including OPC's consent to the use by EPMI of
Confidential Information in its trading operations pursuant to this Agreement,
the rights of the Parties under this Agreement are in addition to and not in
lieu of their rights under Georgia law, including but not limited to the Georgia
Trade Secrets Act of 1990. Nothing in this Article 5 shall be construed as a
waiver on the part of any Party of any privilege or objection of any kind to the
disclosure or use of Confidential Information.
ARTICLE 6
RECORDS
6.1 RECORDS OF TRANSACTIONS. Each Party shall keep such records as may
be needed to afford a clear history of the Scheduled deliveries and Transactions
hereunder. In maintaining such records, OPC and EPMI may rely upon the logs and
other meter information routinely recorded by Transmission Providers or
utilities responsible for coordination of the Transactions.
ARTICLE 7
BILLING AND PAYMENT
7.1 BILLING STATEMENTS. OPC shall deliver to EPMI no later than on the
tenth (10th) day of each month, a statement (the "Statement") setting forth the
amounts of Electric Energy purchased by OPC from EPMI at the applicable EPMI
Sales Price and the respective EPMI Off-System Sales Prices as adjusted pursuant
to Section 4.3, and the amounts of Electric Energy purchased by EPMI from OPC at
the applicable Energy Cost. To the extent that OPC has not yet received or been
able to compile the applicable Energy Cost figures as of such date, OPC may set
forth on such Statement its good-faith estimate of the Energy Cost of an OPC
Resource, PROVIDED that in no event shall such estimate exceed [ ]* of the
corresponding Forecast Energy Cost for such OPC Resource; and PROVIDED, FURTHER,
that OPC shall compile the actual Energy Costs and "true-up" such estimates as
promptly as practicable pursuant to Section 7.5 hereof.
7.2 OFFSET OF PAYMENT OBLIGATIONS. The Parties shall discharge their
obligations to pay through netting, in which case the Party, if any, owing the
greater aggregate amount shall pay to the other Party the difference between the
amounts owed, as set forth in Section 7.3. Each Party reserves to itself all
rights, setoffs, counterclaims and other remedies and defenses, consistent with
Article 9, which such Party has or may be entitled to arising from or out of
this Agreement. All outstanding Transactions and obligations to make payment in
connection therewith or under this Agreement or any other
- ---------------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-17-
agreement between the Parties may be offset against each other, set-off or
recouped therefrom.
7.3 PAYMENTS. EPMI shall pay to OPC on the tenth (10th) day of each
month of the Term the applicable Fixed Monthly Payment stated on Exhibit 4.3.3,
less the amount set forth in Section 4.3.5 hereof. Other than payments for
Fixed Monthly Payments, all other payments shall be due on or before the later
of the following: (i) the tenth (10th) Business Day after receipt of the
Statement or (ii) the twentieth (20th) day of the month in which the Statement
is received. The Party owing to the other shall render by wire transfer
payments of the amount due for Transactions during the preceding month. Payment
shall be made to the payment address provided in Exhibit 13.2 hereto. If either
Party, in good faith, disputes any part of any statement, it shall provide a
written explanation of the basis for the dispute and pay the portion of such
statement conceded to be correct no later than the due date as calculated in
accordance with the preceding sentence. If any amount disputed is determined to
be due to the other Party, it shall be paid within ten days of such
determination, along with interest calculated at the Interest Rate from the
original due date until the date paid. Absent such a good faith dispute,
overdue payments shall bear interest from, and including, the due date to, but
excluding, the date of payment at a rate equal to the Interest Rate.
7.4 AUDIT RIGHTS. Each Party or any third party representative of a
Party shall have the right, at its sole expense and during normal working hours,
to examine the records of the other Party to the extent reasonably necessary to
verify the accuracy of any statement, charge or computation made pursuant to
this Agreement. If requested, a Party shall provide to the other Party
statements evidencing the quantities of Electric Energy delivered at the
Delivery Point. If any such examination reveals any inaccuracy in any
statement, the necessary adjustments in such statement and the payments thereof
will be promptly made and shall bear interest calculated at the Interest Rate
from the date the overpayment or underpayment was made; PROVIDED, HOWEVER, that
no adjustment for any statement or payment will be made unless objection to the
accuracy thereof was made prior to the lapse of two (2) years from the rendition
thereof; and PROVIDED, FURTHER, that this provision of this Agreement will
survive any termination of this Agreement for a period of two (2) years from the
date of such termination for the purpose of such statement and payment
objections.
7.5 SUBSEQUENT PAYMENT ADJUSTMENTS. The Parties understand that in
certain cases monthly billings will need to be made on an estimated basis,
including with respect to the calculation of Energy Cost for each of the OPC
Resources. Each Party shall cooperate in good-faith with the other Party to
obtain the requisite information and perform the necessary computations so as to
"true-up" any estimated billings promptly.
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ARTICLE 8
TAXES
8.1 SELLER'S OBLIGATION. Seller is liable for and shall pay, or cause
to be paid, or reimburse Buyer if Buyer has paid, all Taxes applicable to a
Transaction arising prior to the Delivery Point(s). If Buyer is required to
remit any such Tax, the amount shall be deducted from any sums becoming due to
Seller. Seller shall indemnify, defend and hold harmless Buyer from any Claims
for such Taxes.
8.2 BUYER'S OBLIGATION. Buyer is liable for and shall pay, cause to be
paid, or reimburse Seller if Seller has paid, all Taxes applicable to a
Transaction arising at and from the Delivery Point(s), including any Taxes
imposed or collected by a taxing authority with jurisdiction over Buyer. Buyer
shall indemnify, defend and hold harmless Seller from any Claims for such Taxes.
8.3 EXEMPTION CERTIFICATES. Either party, upon written request of the
other, shall provide a certificate of exemption or other reasonably satisfactory
evidence of exemption if either Party or a Transaction is exempt from Taxes, and
shall use reasonable efforts to obtain and cooperate with obtaining any
exemption from or reduction of any Taxes. Each Party shall use reasonable
efforts to administer this Agreement and implement the provisions in accordance
with the intent to minimize Taxes.
ARTICLE 9
INDEMNIFICATION AND REMEDIES
9.1 GENERAL INDEMNITY. Subject to Section 9.2 hereof, Seller and Buyer
shall each indemnify, defend and hold harmless the other Party from any Claims
or other losses arising from (i) any act or incident occurring when title to the
Contract Quantity is vested in the indemnifying Party pursuant to Section 3.3
hereof and (ii) any Event of Default.
9.2 LIMITATION ON REMEDIES. THE PARTIES CONFIRM THAT THE EXPRESS
REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE
ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE
LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW
OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY HEREIN
PROVIDED, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES
ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL
OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY
HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR
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CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS
OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR IN CONTRACT UNDER
ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE
LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE
LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE
TO DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE
LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
9.3 DUTY TO MITIGATE. Each Party agrees that it has a duty to mitigate
damages and covenants that it will use commercially reasonable efforts to
minimize any damages it may incur as a result of the other Party's performance
or non-performance of this Agreement.
9.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, OPC, WITH
RESPECT TO THE SALE OF ELECTRIC ENERGY TO EPMI, AND EPMI, WITH RESPECT TO THE
SALE OF ELECTRIC ENERGY TO OPC, EXPRESSLY NEGATES ANY OTHER REPRESENTATION OR
WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY REPRESENTATION OR WARRANTY WITH RESPECT TO CONFORMITY TO MODELS OR SAMPLES,
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
[ ]*
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 MUTUAL REPRESENTATIONS. On the date hereof, the Effective Date
and the date of entering into each Transaction, each Party represents and
warrants to the other Party: (i) it is duly organized, validly existing and in
good standing under the laws of the state of its incorporation and, in the case
of EPMI, is doing business as a foreign corporation in the State of Georgia;
(ii) it has all requisite corporate power to own, operate and lease its
properties and carry on its business as now conducted; (iii) it has all
regulatory authorizations, including any required authorization from the Rural
Utilities Service of the United States Department of Agriculture ("RUS"),
necessary for it to legally perform its obligations under this Agreement and
each Transaction; (iv) the execution, delivery and performance of this Agreement
and each Transaction are within its
- ---------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with respect to
the omitted information.
-20-
powers, have been duly authorized by all necessary action and do not violate any
of the terms or conditions in its governing documents, any contract or other
agreement to which it is a party or any Law applicable to it; (v) each of this
Master Agreement and each Transaction when entered into in accordance with this
Agreement constitutes its legally valid and binding obligation enforceable
against it in accordance with its terms, subject to any Equitable Defenses;
(vi) there are no Bankruptcy Proceedings pending or being contemplated by it or,
to its knowledge, threatened against it; (vii) there are no Legal Proceedings
that would be reasonably likely to materially adversely affect its ability to
perform this Agreement and each Transaction; and (viii) it has knowledge and
experience in financial matters and in the electric industry that enable it to
evaluate the merits and risks of this Agreement and each Transaction.
10.2 ADDITIONAL OPC REPRESENTATIONS. OPC further represents and
warrants that on the date hereof, the Effective Date and the date of entering
into each Transaction: (i) the EMC Contracts are and will be in full force and
effect throughout the Term and will not be amended so as to affect OPC's ability
to perform its obligations under this Agreement; (ii) except as set forth on
Exhibit 3.5.3(ii) hereto, there are no planned outages or other limitations on
the availability of any of the OPC Resources during the Term; (iii) Exhibit
3.5.3(i) hereto sets forth a true and complete list of each OPC Resource and
each material written OPC Contract; (iv) correct and complete copies of the OPC
Contracts listed on Exhibit 3.5.3(i) hereto have previously been delivered to
EPMI by OPC; (v) except as stated on Exhibit 3.5.3(i) hereto, no amendments to
the OPC Contracts are proposed or pending as of the Effective Date that would
affect this Agreement; (vi) each OPC Contract is valid, binding and in full
force and effect and enforceable by or against the respective parties thereto in
accordance with its terms; (vii) OPC has fulfilled, and will continue to fulfill
during the Term, all of its obligations under each OPC Contract; (viii) there
has not occurred any default by OPC or any event which, with the lapse of time
or the giving of notice or both will become a default of OPC under any of the
OPC Contracts; and (ix) OPC is not in arrears in respect of the performance or
satisfaction of the terms or conditions to be performed or satisfied by it under
any of the OPC Contracts, and, to the best knowledge of OPC, no waiver of any of
such terms or conditions has been granted thereunder by any of the parties
thereto.
10.3 ADDITIONAL EPMI REPRESENTATIONS. EPMI further represents and
warrants that it is a power marketer authorized by the FERC to purchase and sell
Electric Energy at negotiated rates pursuant to EPMI's Rate Schedule No. 1 (as
in effect on January 1, 1996) under orders issued in ENRON POWER MARKETING,
INC., 65 FERC PARA 61,305 (1993) and 66 FERC PARA 61,244 (1994).
10.4 GOOD TITLE. Each Party represents and warrants that it will
deliver to the other good title to Electric Energy
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delivered hereunder, free and clear of all liens, claims and encumbrances
arising prior to transfer of title at the Delivery Point.
10.5 CONTINUING REPRESENTATIONS AND WARRANTIES. Each Party covenants
that it will cause these representations and warranties to be true and correct
throughout the term of this Agreement.
ARTICLE 11
DEFAULTS AND REMEDIES
11.1 EVENTS OF DEFAULT. An "Event of Default" shall mean with respect to
a Party ("Defaulting Party"):
11.1.1 The failure by the Defaulting Party to make, when due, any
payment required if such failure is not remedied within five Business Days
after written notice of such failure is given to the Defaulting Party by
the other Party ("Notifying Party"); PROVIDED, that the payment is not the
subject of a good faith dispute as described in Section 7.3 hereof; or
11.1.2 Any representation or warranty made by the Defaulting
Party herein shall prove to have been false or misleading in any material
respect when made or deemed to be repeated; or
11.1.3 The failure by the Defaulting Party to perform any
covenant set forth in this Agreement (other than its obligations to make
any payment or obligations which are otherwise specifically covered in this
Section 11.1 as a separate Event of Default or its obligations to deliver
or receive Electric Energy, a remedy for which is provided in Section 3.4
hereof) and such failure is not excused by Force Majeure or cured within
five Business Days after written notice thereof to the Defaulting Party; or
11.1.4 The Defaulting Party shall be subject to a Bankruptcy
Proceeding.
11.2 EARLY TERMINATION; REMEDIES. If an Event of Default occurs with
respect to a Defaulting Party at any time during the Term, the other party
("Non-Defaulting Party") may, for so long as the Event of Default is continuing,
(i) establish a date (which date shall be between five and ten Business Days
after the Non-Defaulting Party delivers notice to the Defaulting Party) ("Early
Termination Date") on which any or all Transactions selected by it shall
terminate (individually, a "Terminated Transaction" and collectively the
"Terminated Transactions") and (ii) withhold any payments due to the
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Defaulting Party under this Agreement; PROVIDED, HOWEVER, that if the Event of
Default is that the Defaulting Party becomes subject to a Bankruptcy Proceeding,
then all Transactions and this Agreement shall automatically terminate without
notice and without any other action by either Party as if an Early Termination
Date had been immediately declared prior to such Event of Default. Regardless
of whether an Early Termination Date is declared, if an Event of Default shall
have occurred, the Non-Defaulting Party shall be entitled to exercise any remedy
available at law or equity consistent with Article 9 hereof to recover its
damages, including attorneys' fees, resulting from any Event of Default.
11.3 SPECIAL EARLY TERMINATION RIGHT. OPC shall have the right to
terminate this Agreement prior to the end of the Term in the event that EPMI's
failure to supply OPC with Electric Energy sufficient for OPC to service the OPC
Load results in the interruption by Georgia Power Company of the flow of
Electric Energy to the EMCs pursuant to Section 16.3 of the CSA, regardless of
whether and when such condition is subsequently cured; PROVIDED, HOWEVER, that
under no circumstances shall this provision apply if EPMI's failure to supply
Electric Energy or the interruption caused by Georgia Power Company is the
result of Force Majeure or the imposition of a rolling "brownout" or "blackout"
or other similar demand-side management controls or practices employed in the
geographical area. Neither OPC nor EPMI shall have any liability for damages in
the event OPC exercises this early termination right. Notwithstanding the
foregoing, OPC and EPMI each shall remain liable for any amounts on account of
Electric Energy furnished to the other Party prior to the effective date of such
early termination and for any other amounts accrued as of such date. EPMI and
OPC shall agree to a final accounting and settlement of their obligations to
each other as soon as practicable as provided in Section 13.4 hereof.
11.4 FAILURE TO PAY. Notwithstanding any other provision of this
Agreement, if either Party fails to pay the other any amounts when due, the
other Party shall have the right to (i) suspend performance under this Agreement
until such amounts plus interest have been paid and/or (ii) exercise any remedy
available at law or in equity to enforce payment of such amount plus interest;
PROVIDED, HOWEVER, that if the Defaulting Party, in good faith, shall dispute
the amount of any such billing or part thereof and shall pay such amounts as it
concedes to be correct, no suspension shall be permitted.
11.5 EFFECT OF REGULATION. In the event OPC is or becomes regulated by a
federal, state or local regulatory body, and such body shall disallow all or any
portion of any costs incurred or yet to be incurred by OPC under any provision
of this Agreement, such action shall not operate to excuse OPC from performance
of any obligation nor shall such action give rise to
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any right of OPC to any refund or retroactive adjustment of any amounts payable
hereunder.
ARTICLE 12
FORCE MAJEURE
13.1 EFFECT OF FORCE MAJEURE. If either Party is rendered unable by a
Force Majeure to carry out, in whole or part, its obligations hereunder and such
Party gives notice and full details of the event to the other Party as soon as
practicable after the occurrence of the event, then during the pendency of such
Force Majeure but for no longer period, the obligations of the Party affected by
the event (other than the obligation to make payments then due or becoming due
with respect to performance prior to the event) shall be suspended to the extent
required. The Party affected by the Force Majeure shall remedy the Force
Majeure with all reasonable dispatch.
ARTICLE 13
MISCELLANEOUS
13.1 ASSIGNMENT. Neither Party shall assign this Agreement or its rights
hereunder without the prior written consent of the other Party; PROVIDED,
HOWEVER, either Party may, without the consent of the other Party (and without
relieving itself from liability hereunder), (i) transfer, pledge, encumber or
assign this Agreement or the accounts, revenues, or proceeds hereof in
connection with any financing or other financial arrangements, (ii) transfer or
assign this Agreement to an Affiliate of such party, or (iii) transfer or assign
this Agreement to any person or entity succeeding to all or substantially all of
the assets of such Party; PROVIDED, HOWEVER, that in each such case, this
Agreement shall be binding upon any such assignee, such assignee shall agree in
writing to be bound by the terms and conditions hereof and each of the
representations of a Party shall be true with respect to such Party's assignee
as of the effective date of such assignment.
13.2 NOTICES. All notices, requests, statements or payments shall be made
as specified in Exhibit 13.2 hereto. Notices required to be in writing shall be
delivered by letter, facsimile or other documentary form. Notice by facsimile
or hand delivery shall be deemed to have been received by the close of the
Business Day on which it was transmitted or hand delivered (unless transmitted
or hand delivered after close, in which case it shall be deemed received at the
close of the next Business Day). Notice by overnight mail or courier shall be
deemed to have been received two Business Days after it was sent. A Party may
change its address by providing notice of same in accordance herewith.
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13.3 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES ARISING OUT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED,
ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
13.4 SURVIVAL OF OBLIGATIONS. Upon the expiration of the Parties' sale
and purchase obligations under this Agreement, any monies, penalties or other
charges due and owing Seller shall be paid, any corrections or adjustments to
payments previously made shall be determined, and any refunds due Buyer made, as
soon as practicable. All indemnity and confidentiality obligations and audit
rights shall survive the termination of this Agreement. The Parties'
obligations provided in this Agreement shall remain in effect for the purpose of
complying with the provisions of this Section.
13.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter contemplated by this
Agreement and supersedes all prior agreements, whether oral or written,
including that certain Interchange Agreement between Oglethorpe Power
Corporation and Enron Power Marketing, Inc., dated March 1, 1995.
13.6 NO PARTNERSHIP. Nothing in this Agreement shall ever be deemed to
create or constitute a partnership, joint venture or association between the
Parties, or to impose a trust or partnership duty, obligation or liability on or
with regard to the Parties.
13.7 AMENDMENT. No amendment or modification to this Master Agreement
shall be enforceable unless reduced to writing and executed by both Parties.
13.8 THIRD PARTIES. The provisions of this Agreement shall not impart
rights enforceable by any person or entity not a Party or not a permitted
successor or assignee of a Party bound by this Agreement.
13.9 WAIVER. No waiver by either Party hereto of any one or more defaults
by the other in the performance of any of the provisions of this Agreement or
terms of any Transaction shall be construed as a waiver of any other default or
defaults, whether of a like kind or different nature.
13.10 CHARACTER OF TRANSACTIONS. The sale by OPC to EPMI of OPC Energy
under this Agreement does not constitute either a sale, lease, or the dedication
of ownership of any OPC Resource.
13.11 SEVERABILITY. Any provision declared or rendered unlawful by a
court of law or regulatory agency with jurisdiction over the Parties or deemed
unlawful because of a statutory change
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will not otherwise affect the lawful obligations that arise under this
Agreement.
13.12 INTERPRETATION. The term "including" when used in this Agreement
shall not be considered in any way to be in limitation.
13.13 HEADINGS. The headings used for the Articles herein are for
convenience and reference purposes only.
13.14 COUNTERPARTS. This Master Agreement may be executed in multiple
counterparts to be construed as one effective as of the Effective Date.
IN WITNESS WHEREOF, the Parties hereto have caused this Master
Agreement to be executed by their duly authorized officers and copies delivered
to each Party.
OGLETHORPE POWER CORPORATION
By: /S/ T.D. Kilgore Attest: /S/ Patricia N. Nash
-------------------------- -----------------------------------
Title: President and CEO Title: Assistant Secretary
ENRON POWER MARKETING, INC.
By: /S/ KENNETH D. RICE Attest: /S/ ELAINE V. OVERTURF
------------------------- -----------------------------------
Title: President and Managing Title: Corporate Secretary
Director
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APPENDIX A
All capitalized terms used in this Agreement and not otherwise
defined shall have the respective meanings set forth below, whether singular or
plural.
"Affiliate" means, with respect to any person, any other person
(other than an individual) that directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such person. For this purpose, "control" means the direct or indirect ownership
interest of more than fifty (50) percent of the outstanding capital stock or
other equity interests having ordinary voting power.
"Bankruptcy Proceedings" means, with respect to a Party that such
Party (i) makes any general assignment or any general arrangement for the
benefit of creditors, (ii) files a petition or otherwise commences, authorizes
or acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy or similar law for the protection of creditors, or has such a
petition involuntarily filed against it and such petition is not withdrawn or
dismissed within 30 days after such filing, (iii) otherwise becomes bankrupt or
insolvent (however evidenced), or (iv) is unable to pay its debts as they fall
due.
"Business Day" means a day on which the Federal Reserve Member
Banks in New York City are open for business; and a Business Day shall open at
8:00 a.m. and close at 5:00 p.m. local time for each Party's principal place of
business.
"Buyer" means the Party to a Transaction who is obligated to
purchase and receive, or cause to be received, Electric Energy during a Period
of Delivery.
"Claims" means all claims or actions, threatened or filed and
whether groundless, false or fraudulent, that directly or indirectly relate to
the subject matter of an indemnity, and the resulting losses, damages, expenses,
attorneys' fees and court costs, whether incurred by settlement or otherwise,
and whether such claims or actions are threatened or filed prior to or after the
termination of this Agreement.
"Commencement Date" has the meaning specified in Section 2.3
hereof.
"Computer Tapes" has the meaning specified in Section 5.3 hereof.
"Confidential Information" means written data or information (or
an oral communication if the party requesting confidentiality for such oral
communication promptly confirms such communication in writing) which is
privileged, confidential or proprietary or which constitutes a trade secret
under the
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Georgia Trade Secrets Act of 1990, except information which (i) is a matter of
public knowledge at the time of its disclosure or is thereafter published in or
otherwise ascertainable from any source available to the public without breach
of this Agreement, (ii) constitutes information which is obtained from a third
party (who or which is not an Affiliate of one of the Parties hereto) other than
by or as a result of unauthorized disclosure, or (iii) prior to the time of
disclosure had been independently developed by the receiving Party or its
Affiliates not utilizing improper means.
"Confirmation" means a written notice confirming the specific
terms of a Transaction substantially in the form set forth on Exhibit 2.2
hereto.
"Contract Price" means the price in United States dollars (per
MWh) to be paid by Buyer to Seller for the purchase of Electric Energy that is
Scheduled or Properly Requested pursuant to a Transaction.
"Contract Quantity" means the amount of Electric Energy that
Seller agrees to sell and deliver, or cause to be delivered, to Buyer and Buyer
agrees to purchase and receive, or cause to be received, from Seller pursuant to
the terms of a Transaction.
"CSA" means that certain Coordination Services Agreement between
Georgia Power Company and Oglethorpe Power Corporation (An Electric Membership
Generation & Transmission Corporation), dated as of November 12, 1990, as
amended from time to time.
"Defaulting Party" has the meaning specified in Section 11.1
hereof.
"Delivery Point" means any point on the Integrated Transmission
System at which title to Electric Energy passes from Seller to Buyer, including
at any Point of Interconnection as shown on Exhibit 3.2.
"Early Termination Date" has the meaning specified in
Section 11.2 hereof.
"Effective Date" has the meaning specified in Section 2.3 hereof.
"Electric Energy" means energy in the form of electricity
expressed in megawatt-hours (MWh) (or in kilowatt-hours when energy is measured
at the points of delivery to the EMCs).
"EMC" means an electric membership corporation as defined in
Section 46-3-171(3) of the Georgia Electric Membership
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Corporation Act, which is a member of OPC on the Effective Date, as shown on
Exhibit 1.1 hereto.
"EMC Contract" means one of those certain Amended and
Consolidated Wholesale Power Contracts between OPC and an EMC, which contract is
dated as of December 1, 1988, as amended from time to time, pursuant to which
OPC sells and such EMC purchases all Electric Energy required to meet the energy
requirements of its customers for the operation of its system.
"EMC Metering Point" means that certain point at which deliveries
of Electric Energy to each EMC, respectively, are measured and received pursuant
to the EMC Contracts.
"Energy Cost" means the (i) actual cost of fuel (and not any
other costs), in United States Dollars (per MWh), incurred by OPC with respect
to Electric Energy produced by OPC Resources (other than the power contracts
described below in this definition), as determined pursuant to the applicable
OPC Contracts; (ii) the actual cost of fuel and variable operations and
maintenance expenses under the block power purchase and sale agreements with
Georgia Power Company; (iii) the costs described on Exhibit 3.5.3(iii) hereto
with respect to the power purchase agreements with Big Rivers Electric
Corporation and Energy Power, Incorporated; PROVIDED, HOWEVER, that the Energy
Cost with respect to Hartwell shall be deemed to be zero to the extent EPMI
arranges for the delivery of gas at its expense to such plant. The energy cost
associated with pumping water at Rocky Mountain is deemed to be at EPMI's
expense pursuant to Section 4.3.4 of this Agreement.
"EPMI Off-System Sales Price" has the meaning specified in
Section 4.2 hereof.
"EPMI Sales Price" has the meaning specified in Section 4.2
hereof.
"EPT" means Eastern Prevailing Time and refers to the time in
effect in the Eastern Time Zone of the United States, whether Eastern Standard
Time or Eastern Daylight Savings Time.
"Equitable Defenses" means bankruptcy, insolvency, reorganization
and other laws affecting creditors' rights generally, and with regard to
equitable remedies, the discretion of the court before which proceedings to
obtain the same may be pending.
"Event of Default" has the meaning specified in Section 11.1
hereof.
"Excess Generation" has the meaning set forth in Section 4.3.1
hereof.
A-3
"FERC" means the Federal Energy Regulatory Commission or any
successor agency which enforces the Federal Power Act.
"Fixed Monthly Payments" means the fixed monthly amounts
scheduled to be paid to or credited to the account of OPC pursuant to
Section 4.3.3 hereof and which are set forth on Exhibit 4.3.3 hereto.
"Force Majeure" means an event not anticipated as of the
Effective Date, which is not within the reasonable control of the Party (or, in
the case of third party obligations or facilities, the third party) claiming
suspension (the "Claiming Party"), and which by the exercise of due diligence
the Claiming Party is unable to overcome or obtain or cause to be obtained a
commercially reasonable substitute performance therefor. Force Majeure
includes, but is not restricted to: failure of transmission facilities; acts of
God; fire; civil disturbance; labor dispute; labor or material shortage;
sabotage; action or restraint by court order or public or governmental authority
(so long as the Claiming Party has not applied for or assisted in the
application for, and has opposed where and to the extent reasonable, such
government action); PROVIDED, HOWEVER, that neither (i) the loss of Buyer's
markets nor Buyer's inability economically to use or resell Electric Energy
purchased hereunder, nor (ii) the loss or failure of Seller's Electric Energy
supply, nor (iii) Seller's ability to sell Electric Energy to a market at a more
advantageous price, shall constitute an event of Force Majeure. Interruption by
a Transmission Provider shall not be deemed to be Force Majeure unless (i) the
Party contracting with such Transmission Provider shall have made arrangement
with such Transmission Provider for the firm transmission, as defined under the
Transmission Provider's tariff, of the Electric Energy to be delivered or
received hereunder and (ii) such interruption is due to a force majeure as
defined under the Transmission Provider's tariff.
"Forecast Energy Cost" has the meaning specified in Section 3.5.3
hereof, as reflected on Exhibit 3.5.3(iii) hereto.
"Generation Shortfall" has the meaning set forth in Section 4.3.1
hereof.
"Hartwell" has the meaning specified in Section 4.3.2 hereof.
"Integrated Transmission System" or "ITS" means the Transmission
Facilities as defined in the Revised and Restated Integrated Transmission System
Agreement between Oglethorpe Power Corporation (An Electric Membership
Generation & Transmission Corporation) and Georgia Power Company, dated as of
November 12, 1990, as amended from time to time.
A-4
"Interest Rate" means the Prime Rate plus two percent, or the
maximum lawful rate permitted by applicable Law, whichever is less.
"ITS Loss Factor" means the EMC transmission loss factor
determined pursuant to the ITSA applicable to deliveries of Electric Energy from
any point on the ITS to any EMC Metering Point, which loss factor is currently
4.1931%.
"ITSA" means the Revised and Restated Integrated Transmission
System Agreement between Oglethorpe Power Corporation (An Electric Membership
Generation & Transmission Corporation) and Georgia Power Company, dated as of
November 12, 1980, as amended from time to time.
"Law" means any law, rule, regulation, order, writ, judgment,
decree or other legal or regulatory determination by a court, regulatory agency
or governmental authority of competent jurisdiction.
"Legal Proceeding" means any suit, proceeding, judgment, ruling
or order by or before any court or any governmental authority.
"Level B-1" means the high side of the step-up transformer of a
generating plant that is an OPC Resource which interconnects directly into the
ITS.
"LPMI" means LG&E Power Marketing, Inc., the purchaser under that
certain power purchase and sale agreement with OPC which is listed on
Exhibit 3.5.2.
"MWh" means megawatt-hour.
"Must Run Resources" has the meaning specified in Section 3.5
hereof.
"Non-Defaulting Party" has the meaning specified in Section 11.2
hereof.
"NERC" means the North American Electric Reliability Council.
"Notifying Party" has the meaning specified in Section 11.1.1
hereof.
"Non-Territorial Contractual Delivery Obligations" means an
obligation, based on a quantity of capacity, energy, or both, which an ITS
participant is contractually committed to deliver or make available from or
through the ITS to a non-territorial entity, as further defined in the ITSA.
"OPC Contracts" means, as of a particular date, all contracts,
operating procedures and understandings (whether
A-5
written or oral, and if oral, written statements of the terms thereof) in effect
on such date affecting OPC's rights and obligations with respect to OPC
Resources and to the ITS.
"OPC Energy" means all of the available Electric Energy which OPC
owns, purchases or otherwise has a right to take from OPC Resources.
"OPC Load" means, as of a particular hour, the entire Electric
Energy requirements of the EMCs measured at each EMC Metering Point, after
reducing such requirements to reflect the EMCs' aggregate allocation of SEPA
Energy Scheduled for delivery to the EMCs.
"OPC Off-System Sales" means transactions undertaken by OPC
pursuant to the OPC Off-System Sales Contracts.
"OPC Off-System Sales Contracts" means the contracts listed on
Exhibit 3.5.2 and, subject to the consent of EPMI, contracts entered into
between OPC and third parties pursuant to which OPC sells Electric Energy to
such third parties.
"OPC Resource" means the capacity entitlement or other rights
with respect to generating facilities from which, or power purchase contracts,
interchange agreements or other contracts or agreements under which, OPC is
required or has the right to take, purchase or otherwise acquire Electric Energy
during the Term.
"Other Records" has the meaning specified in Section 5.3 hereof.
"Party" and "Parties" mean a party or the parties, respectively,
to this Agreement, including permitted assignees of each pursuant to this
Agreement.
"Period of Delivery" means the period from the date physical
delivery of the Electric Energy is to commence to the date physical delivery is
to terminate pursuant to a Transaction.
"Plant Hatch" means those two nuclear generating facilities (and
associated common facilities) having a rated capacity of 810 MW for Unit 1 and
820 MW for Unit 2.
"Plant Vogtle" means those two nuclear generating facilities (and
associated common facilities) having a rated capacity of 1160 MW for Unit 1 and
1160 MW for Unit 2.
"Point of Interconnection" means any point of interconnection
between the ITS and the transmission facilities of an interconnected utility,
electric cooperative or other transmission owner or operator, as set forth on
Exhibit 3.2.
A-6
"Prime Rate" means for any date, the per annum rate of interest
announced from time to time by Citibank, N.A., as its "prime" rate for
commercial loans, effective for such date as established from time to time by
such bank.
"Properly Requested" or "Properly Requests" means that EPMI has
notified or notifies OPC of specified amounts of OPC Energy that EPMI desires to
purchase from specific OPC Resources at specified times during the Term in
accordance with Section 2.2 hereof; PROVIDED, that all Electric Energy
attributable to Must Run Resources (which EPMI is obligated to purchase pursuant
to Section 3.5.1 hereof) shall be deemed to be Properly Requested for purposes
of this Agreement.
"Regulatory Approvals" means all current and future valid and
applicable Laws, orders, statutes, and regulations of courts or regulatory
bodies (state or federal) having jurisdiction over a Party or any Transaction.
"Replacement Price" has the meaning specified in Section 3.4(a)
hereof.
"Representatives" has the meaning specified in Section 5.1
hereof.
"Rocky Mountain" has the meaning specified in Section 3.7(e)
hereof.
"RUS" has the meaning specified in Section 10.1(iii) hereof.
"Sales Price" has the meaning specified in Section 3.4(b) hereof.
"Scheduling," "Scheduled" or "Schedule" means or relates to the
acts of Seller, Buyer and their designated representatives, including each
Party's Transmission Providers, if applicable, of notifying, requesting and
confirming to each other the quantity of Electric Energy to be delivered hourly
on any given day or days during a Delivery Period at a specified Delivery Point.
"Seller" means the Party to a Transaction who is obligated to
sell and deliver, or cause to be delivered, Electric Energy during a Period of
Delivery.
"SEPA" means the Southeastern Power Administration, a federal
agency of the United States Government.
"SEPA Energy" means the aggregate amount of Electric Energy
Scheduled for delivery to the EMCs pursuant to the SEPA Contracts.
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"SEPA Contracts" means those certain power purchase and sale
agreements between each EMC and SEPA pursuant to which each EMC purchases
Electric Energy from SEPA.
"SERC" means the Southeastern Electric Reliability Council.
"Statement" has the meaning specified in Section 7.1 hereof.
"Taxes" means any or all ad valorem, property, occupation,
severance, generation, first use, conservation, Btu or energy, transmission,
utility, gross receipts, privilege, sales, use, consumption, excise, lease,
transaction, and other or new Taxes, governmental charges, licenses, fees,
permits and assessments, or increases therein, other than taxes based on net
income or net worth.
"Term" has the meaning specified in Section 2.3 hereof.
"Terminated Transaction" has the meaning specified in
Section 11.2 hereof.
"Termination Date" has the meaning specified in Section 2.3
hereof.
"Total Actual Nuclear Generation" shall have the meaning set
forth in Section 4.3.1 hereof.
"Total Expected Nuclear Generation" shall have the meaning set
forth in Section 4.3.1 hereof.
"Transaction" means a particular transaction agreed to by the
Parties relating to the purchase and sale of Electric Energy pursuant to this
Master Agreement.
"Transaction Agreement" means a written agreement executed by the
Parties to form and effectuate a Transaction which agreement may be in
substantially the form set forth on Exhibit 1.2 hereto.
"Transmission Provider" means the entity or entities transmitting
Electric Energy on behalf of Seller or Buyer to or from the Delivery Point(s) in
a particular Transaction.
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EXHIBIT 1.1
ELECTRIC MEMBERSHIP CORPORATIONS
OF
OGLETHORPE POWER CORPORATION
ALTAMAHA EMC
AMICALOLA EMC
CANOOCHEE EMC
CARROLL EMC
CENTRAL GEORGIA EMC
COASTAL EMC
COBB EMC
COLQUITT EMC
COWETA-FAYETTE EMC
EXCELSIOR EMC
FLINT EMC
GRADY EMC
GREYSTONE POWER CORPORATION, AN EMC
HABERSHAM EMC
HART EMC
IRWIN EMC
JACKSON EMC
JEFFERSON EMC
LAMAR EMC
LITTLE OCMULGEE EMC
MIDDLE GEORGIA EMC
MITCHELL EMC
OCMULGEE EMC
OCONEE EMC
OKEFENOKE RURAL EMC
PATAULA EMC
PLANTERS EMC
RAYLE EMC
SATILLA RURAL EMC
SAWNEE EMC
SLASH PINE EMC
SNAPPING SHOALS EMC
SUMTER EMC
THREE NOTCH EMC
TRI-COUNTY EMC
TROUP EMC
UPSON COUNTY EMC
WALTON EMC
WASHINGTON EMC
EXHIBIT 1.2
FORM OF TRANSACTION AGREEMENT
FOR USE WITH
TRANSACTIONS TO BE EXECUTED UNDER SECTION 2.2(II)
This Transaction Agreement shall form and effectuate the current proposal
between Oglethorpe Power Corporation ("OPC") and Enron Power Marketing, Inc.
("EPMI"), regarding the purchase and sale of Electric Energy under the following
terms and conditions. ________ is to purchase and receive ("Buyer") and
__________ is to sell and deliver ("Seller"). The transaction number is
____________________.
Contract Quantity: __________________________
Delivery Point(s): __________________________
Contract Price: __________________________
Period of Delivery: __________________________
Other: __________________________
__________________________
This Transaction Agreement is being provided pursuant to and in accordance
with Section 2.2(ii) of the Master Power Purchase and Sale Agreement dated
January 3, 1996, in effect between OPC and EPMI, and constitutes part of and is
subject to all of the terms and provisions of the Master Agreement. Terms used
but not defined herein shall have the meanings ascribed to them in the Master
Agreement. Please execute this Transaction Agreement and return an executed
copy to EPMI. Your execution should reflect the appropriate party in OPC who
has the authority to cause OPC to enter into this Transaction. In the event OPC
alters the terms of this Transaction Agreement in any manner, at the option of
EPMI, there will be no Transaction pursuant to this Transaction Agreement.
OGLETHORPE POWER CORPORATION ENRON POWER MARKETING, INC.
By:______________________________ By:______________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
EXHIBIT 2.2
FORM OF CONFIRMATION
[Date]
[Address]
Attn: ______________
CONFIRMATION LETTER
This Confirmation shall confirm the agreement reached on ________ ___, 1996
between Oglethorpe Power Corporation ("OPC") and Enron Power Marketing, Inc.
("EPMI") regarding the sale/purchase of Electric Energy under the terms and
conditions as follows:
_____________ to purchase and receive ("Buyer"); ______________ to sell and
deliver ("Seller").
Contract Quantity: _______________________
Delivery Point(s): _______________________
Contract Price: _______________________
Period of Delivery: _______________________
Other: _______________________
This Confirmation is being provided pursuant to and in accordance with the
Master Agreement dated January 3, 1996 (the "Master Agreement") between OPC and
EPMI, and constitutes part of and is subject to all of the terms and provisions
of the Master Agreement. Terms used by not defined herein shall have the
meanings ascribed to them in the Master Agreement.
Please confirm that the terms stated herein accurately reflect the agreement
between OPC and EPMI by returning an executed copy of this letter by facsimile
to the sender hereof. Your response should reflect the appropriate party in
your organization who has the authority to enter into this Transaction, and
should be received by the sender hereof no later than _______________.
Notwithstanding the foregoing request that you return this Confirmation, if you
do not return this Confirmation or do not object to this Confirmation within two
Business Days of your receipt of it, you will have accepted and agreed to all of
the terms included herein, including the terms and provisions of the Master
Agreement.
OGLETHORPE POWER CORPORATION ENRON POWER MARKETING, INC.
By:________________________________ By:_______________________________
Title:_____________________________ Title:____________________________
Date:______________________________ Date:_____________________________
EXHIBIT 3.2
INTERCONNECTION POINTS WITH THE GEORGIA ITS
Alabama Electric Cooperative
Florida Power Corporation
Florida Power & Light Company
Duke Power Company
Jacksonville Electric Authority
South Carolina Electric & Gas Company
South Carolina Public Service Authority
Southern Companies
Tallahassee Electric Department
Tennessee Valley Authority
EXHIBIT 3.2 (CONTINUED)
OPC ALLOCATION OF
FIRST CONTINGENCY TOTAL TRANSFER CAPABILITY (FCTTC)
UNDER NORMAL OPERATING CONDITIONS
(EFFECTIVE JANUARY - MAY, 1996)
FCTTC (MVA)
INTERFACE WITH GEORGIA ITS TO GEORGIA ITS FROM GEORGIA ITS
- -------------------------- ----------------- ------------------
Florida 584 841
Sale to GPC 40
Sale to GPC 47 (Tentative)
Sale to Entergy (3/1/96) 25 (Tentative)
-----
729
Alabama Power 730 116
Duke Power 468 556
SC Public Service Authority 42 19
SC Electric and Gas 134 172
Savannah Power 32 0
Gulf Power 0 0
Tennessee Valley Authority 301 310
Purchase from GPC 70
Purchase from GPC 126 (Tentative)
---
497
Alabama Electric Cooperative 17 47
EXHIBIT 3.5
OPC RESOURCES(1)
Type of Resource OPC Resources
- ---------------- that are NOT
Must Run Minimum Maximum
Resources (MW) (MW)
--------- ------------------------
Generating Units Rocky Mountain 1 110.0 212.0
-----------------------
Rocky Mountain 2 110.0 212.0
-----------------------
Rocky Mountain 3 110.0 212.0
-----------------------
Scherer 1(2) 195.0 496.2
-----------------------
Scherer 2(2) 195.0 498.0
-----------------------
Tallassee N/A 2.0
----------------------
Wansley 1 121.0 253.8
-----------------------
Wansley 2 122.0 253.8
-----------------------
Wansley CT N/A 14.8
-----------------------
OPC Resources
that are
Must Run Minimum Maximum
Resources (MW) (MW)
--------- -----------------------
Generating Units Hatch 1 N/A 222.3
-----------------------
Hatch 2 N/A 229.5
-----------------------
Vogtle 1 N/A 348.6
-----------------------
Vogtle 2 N/A 348.6
-----------------------
QF N/A 27
-----------------------
- ------------------
(1) The figures contained in this Exhibit shall not serve to limit the actual
output available from any OPC Resource.
(2) Scherer minimum could be 330 MW if Georgia Power is not taking electric
energy from its ownership share of the generating facility.
EXHIBIT 3.5 (CONTINUED)
Other OPC Resources Minimum Maximum
(MW) (MW)
-----------------------
Purchased Power GPC Block 1(3) 100 215
-----------------------
GPC Block 2(3) 100 215
-----------------------
GPC Block 3(3) 100 215
-----------------------
GPC Block 4(3) 100 215
-----------------------
GPC Block 5(3) 0 107
-----------------------
GPC Block 6(3) 0 108
-----------------------
Big Rivers 25 100
-----------------------
Entergy 25 100
-----------------------
Hartwell 1 67 148
-----------------------
Hartwell 2 67 148
-----------------------
- -------------------
(3) 100% availability - minimum applies when energy is being scheduled under
the particular block.
EXHIBIT 3.5.2
POWER PURCHASE AND SALE AGREEMENTS
UNDER WHICH OPC IS OBLIGATED TO SELL ELECTRIC ENERGY
Letter of Commitment to sell power to Alabama Electric Cooperative
beginning January 1, 1996, and extending through December 31, 1996, dated as of
December 15, 1995.
Letter confirming terms and conditions of the Energy Option Agreement
between OPC and LG&E Power Marketing, Inc., dated as of November 10, 1995.(4)
- ------------------------------
(4) Pursuant to Section 4.3.5 of the Agreement, OPC is obligated to pay
[ ]* for the month of January and [ ]* for the month of February
for a total of [ ]* to EPMI, as provided therein, in consideration of
EPMI's agreement to sell Electric Energy to OPC (pursuant to Section 4.2)
to permit OPC to satisfy its obligations under its contract with LG&E Power
Marketing, Inc.
- ------------------------------
* Indicates information that has been filed separately with the Secretary
of the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
EXHIBIT 3.5.3(i)
OPC RESOURCES AND OPC CONTRACTS
OPC RESOURCE OPERATIONS GOVERNED BY
- ------------ ----------------------
Georgia Power Blocks Block Power Sale Agreement between Georgia Power
Company and OPC, dated as of November 12, 1990.
Letters dated as of December 30, 1992 and
December 8, 1993, extending term of Block Power
Sale Agreement. Letter dated as of August 30,
1994, electing to reduce capacity OPC is obligated
to purchase under Block Power Sale Agreement.
Vogtle, Units 1 & 2 Alvin W. Vogtle Nuclear Units Numbers One and Two
Purchase and Ownership Participation Agreement
among Georgia Power Company, OPC, Municipal
Electric Authority of Georgia and City of Dalton,
Georgia, dated as of August 27, 1976; Amendment,
dated as of January 18, 1977; Amendment Number
Two, dated as of February 24, 1977. Alvin W.
Vogtle Nuclear Units One and Two Operating
Agreement among Georgia Power Company, OPC,
Municipal Electric Authority of Georgia and City
of Dalton, Georgia, dated as of August 27, 1976.
Hatch, Units 1 & 2 Edwin I. Hatch Nuclear Plant Purchase and
Ownership Participation Agreement between Georgia
Power Company and OPC, dated as of January 6,
1975. Hatch Operating Agreement between Georgia
Power Company and OPC, dated as of January 6,
1975.
Scherer, Units 1 & 2 Plant Robert W. Scherer Units Numbers One and Two
Purchase and Ownership Participation Agreement
among Georgia Power Company, OPC, Municipal
Electric Authority of Georgia and City of Dalton,
Georgia, dated as of May 15, 1980; Amendment,
dated as of December 30, 1985; Amendment Number
Two, dated as of July 1, 1986; Amendment Number
Three, dated as of August 1, 1988; Amendment
Number Four, dated as of December 31, 1990. Plant
Robert W. Scherer Units Numbers One and Two
Operating Agreement among Georgia Power Company,
OPC, Municipal Electric Authority of Georgia and
City of Dalton, Georgia, dated as of May 15, 1980;
Amendment, dated as of December 30, 1985;
Amendment Number Two, dated as of December 31,
1990. Plant Scherer Managing Board Agreement
among Georgia Power Company, OPC, Municipal
Electric Authority of Georgia
EXHIBIT 3.5.3(i) (CONTINUED)
and City of Dalton, Georgia, dated as of
December 31, 1990. Letter of Intent re: Use of
Eastern and Western Coal at Scherer, dated as of
January 16, 1992; Letter Agreement re: Capital
Modifications and Expenditures for the use of
Western Coal at Plant Scherer, dated as of July 7,
1992 (partially executed). Letter Agreement re:
Additional Amendments to the Scherer and Wansley
Agreements, dated as of December 31, 1990.
Wansley, Units 1, 2, & CT Plant Hal B. Wansley Purchase and Ownership
Participation Agreement between Georgia Power
Company and OPC, dated as of March 26, 1976; Plant
Hal Wansley Operating Agreement between Georgia
Power Company and OPC, dated as of March 26, 1976.
Plant Hal Wansley Combustion Turbine Agreement
between Georgia Power Company and OPC, dated as of
August 2, 1982; Amendment dated as of October 20,
1982. Definitive Agreement Concerning Transfer
Units Under Phase I of the Clean Air Act
Amendments, dated as of October 30, 1992.
Tallassee, Units 1 & 2 No Operative Documents.
Big Rivers Purchase Long Term Firm Power Purchase Agreement between
Big Rivers Electric Corporation and OPC, dated as
of December 17, 1990. Letter dated March 12,
1992. Long Term Firm Power Purchase Agreement,
dated as of July 19, 1989, by and between OPC and
Big Rivers Electric Corporation.
Entergy Purchase Unit Capacity and Energy Purchase Agreement
between OPC and Entergy Power, Incorporated, dated
as of October 11, 1990; Amendment, dated as of
September 29, 1992. Letter Agreement Regarding
Offer to Sell Energy, dated as of April 23, 1992;
Amendment, dated as of February 25, 1993.
Hartwell Energy Limited
Partnership Purchase Power Purchase Agreement between OPC and Hartwell
Energy Limited Partnership, dated as of June 12,
1992. Agreement for Purchase of 230KVS Switchyard
and ITS Interconnection Facilities Agreement,
dated as of August 31, 1992.
EXHIBIT 3.5.3(i) (CONTINUED)
Rocky Mountain Pumped
Storage Resource Rocky Mountain Pumped Storage Hydroelectric
Project Ownership Participation Agreement, dated
as of November 18, 1988, by and between OPC and
Georgia Power Company. Rocky Mountain Pumped
Storage Hydroelectric Project Operating Agreement
by and between OPC and Georgia Power Company,
dated as of November 18, 1988. Pumped Storage
Hydroelectric Project Option Agreement, dated as
of November 18, 1988. Reciprocity Letter
Agreement, dated as of November 18, 1988. Letters
Relating to Rocky Mountain (Title Defects Letter;
Floyd County Prepayment Letter; Letter Re: Other
Commitments; Letter Re: Cost of Construction).
QF Agreements Interconnection Policy of OPC and Members for
Cogeneration and Small Power Producers, dated as
of January, 1994. Agreement for Purchase of Power
between Carroll Electric Membership Corporation
and the Southwire Company, dated as of July 14,
1986; Amendment, dated as of July 11, 1988.
Restated Power Purchase Agreement between OPC,
Carroll EMC, and The Southwire Company dated June
1, 1995. Agreement for Purchase of Power between
Habersham Electric Membership Corporation and
Herschel Webster, dated as of July 26, 1981;
Amendment, dated as of July 8, 1985; Second
Amendment, dated as of June 1993. Agreement for
Purchase of Power from Georgia Waste Systems,
Inc., dated January 1993. Agreement for Purchase
of Power from Southeast Paper Manufacturing Co.,
dated as of February 29, 1988; Amendment, dated as
of November 11, 1991. Agreement for Purchase of
Power from Spartan Mills, dated as of April 6,
1992.
Proposed Amendments Amendment No. 1 to the CSA between GPC and OPC
dated Draft as of November 7, 1995. Proposed sale
of FLA ITS Interface capability to GPC from OPC
dated December 21, 1995. Proposed sale of FLA ITS
Interface capability to Entergy Power Inc. from
OPC dated December 29, 1995. Proposed Amendment
to Plant Hal B. Wansley Operating Agreement among
GPC, OPC, MEAG, and the City of Dalton.
EXHIBIT 3.5.3(i) (CONTINUED)
OTHER AGREEMENTS
- ----------------
Integrated Transmission
System Agreement Revised and Restated Integrated Transmission
System Agreement between OPC and Georgia Power
Company, dated as of November 12, 1990. ITSA,
Power Sale and Coordination Umbrella Agreement
between OPC and Georgia Power Company, dated as of
November 12, 1990.
Coordination Services Coordination Services Agreement between Georgia
Power Company and OPC, dated as of November 12,
1990.
Transmission O&M Transmission Facilities Operation and Maintenance
Contract between Georgia Power Company and OPC,
dated as of June 9, 1986.
ITS Transfer Capability Purchase of TVA ITS Interface capability from
Municipal Electric Authority of Georgia to OPC
dated December 17, 1990. Purchase of TVA ITS
Interface capability from GPC to OPC dated
November 12, 1990. Sale of FLA ITS Interface
capability to GPC and from OPC dated May 30, 1995.
SEPA SEPA Contract No. 89-00-1501-912 between SEPA and
OPC dated May 28, 1991 and amended in Supplemental
Agreement No. 1 dated November 26, 1991,
Supplemental Agreement No. 2 dated May 23, 1994,
Supplemental Agreement No. 3 dated January 30,
1995. SEPA Contract No. 89-00-1501-916 between
SEPA and OPC dated December 29, 1993 and amended
in Supplemental Agreement No. 1 dated June 17,
1994, Supplemental Agreement No. 2 dated July 28,
1995, Supplemental Agreement No. 3 dated November
24, 1995.
Operating Procedures Rocky Mountain Pumped Storage Hydroelectric Plant
Coordination Procedures Agreement between
Oglethorpe Power Corporation and Georgia Power
Company effective June 1, 1995. Plant Scherer
Units #1 and #2 Dispatch Procedures Rev. 6..
Hartwell Energy Facility Operation and Maintenance
Procedure for Unit Dispatch effective June 6,
1994. Operating Procedures for use between System
Control Center and Rocky Mountain Plant effective
November 18, 1994.
EXHIBIT 3.5.2
POWER PURCHASE AND SALE AGREEMENTS
UNDER WHICH OPC IS OBLIGATED TO SELL ELECTRIC ENERGY
Letter of Commitment to sell power to Alabama Electric Cooperative
beginning January 1, 1996, and extending through December 31, 1996, dated as of
December 15, 1995.
Letter confirming terms and conditions of the Energy Option Agreement
between OPC and LG&E Power Marketing, Inc., dated as of November 10, 1995.(4)
- ------------------------------
(4) Pursuant to Section 4.3.5 of the Agreement, OPC is obligated to pay
[ ]* for the month of January and [ ]* for the month of February
for a total of [ ]* to EPMI, as provided therein, in consideration of
EPMI's agreement to sell Electric Energy to OPC (pursuant to Section 4.2)
to permit OPC to satisfy its obligations under its contract with LG&E Power
Marketing, Inc.
- ------------------------------
* Indicates information that has been filed separately with the Secretary
of the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
EXHIBIT 3.5.3(ii)
EXPECTED AVAILABILITY OF EACH OPC RESOURCE
OPC RESOURCE PLANNED OUTAGES DUE TO SCHEDULED FORCED LOSS FACTOR
MAINTENANCE AFFECTING THE TERM OUTAGE RATE
From To
-------------------------------------------------------------
Hatch 1(5) March 20 May 5 7.00% 1.0000
Hatch 2(5) None 7.00% 1.0000
Rocky Mountain Jan. 21 Jan. 22 8.00% .9980
* Unit 1 Apr. 4 Ap. 26
* Unit 2 None 8.00% .9980
* Unit 3 None 8.00% .9980
Scherer 1 None 6.00% .9980
Scherer 2 Feb. 17 March 3 6.00% .9980
Tallassee 1 & 2 None 1.00% .99015
Vogtle 1(5) March 3 Apr. 16 6.00% 1.0000
Vogtle 2(5) None 6.00% 1.0000
Wansley 1 None 6.00% 1.0000
Wansley 2 Jan. 6 Feb. 4 6.00% 1.0000
Wansley CT None 11.00% 1.0000
-------------------------------------------------------------
(5) Nuclear planned outages exclude ramp down period prior to full
expected planned outages above.
EXHIBIT 3.5.3(iii)
[ ]*
- ------------------------------
* Indicates information that has been filed separately with the Secretary
of the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
EXHIBIT 4.2
[ ]*
- ------------------------------
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
EXHIBIT 4.3.1
[ ]*
- ---------------------------------
* Indicates information that has been filed separately with the Secretary
of the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
EXHIBIT 4.3.3
FIXED MONTHLY PAYMENTS
The Fixed Monthly Payments payable by EPMI to OPC are as follows:
January $ [ ]*
February [ ]*
March [ ]*
April [ ]*
--------------
Total $ [ ]*
The Fixed Monthly Payments were computed based upon the estimated variable
O&M expenses of OPC as summarized below.10
Estimated Variable O&M Expenses
(Thousands of Dollars)
OPC RESOURCE January February March April Total
----------------------------------------------------------------------
Hatch 1 [ ]* [ ]* [ ]* [ ]* [ ]*
Hatch 2 [ ]* [ ]* [ ]* [ ]* [ ]*
Rocky Mountain [ ]* [ ]* [ ]* [ ]* [ ]*
Scherer 1 [ ]* [ ]* [ ]* [ ]* [ ]*
Scherer 2 [ ]* [ ]* [ ]* [ ]* [ ]*
Tallassee [ ]* [ ]* [ ]* [ ]* [ ]*
Vogtle 1 [ ]* [ ]* [ ]* [ ]* [ ]*
Vogtle 2 [ ]* [ ]* [ ]* [ ]* [ ]*
Wansley 1 [ ]* [ ]* [ ]* [ ]* [ ]*
Wansley 2 [ ]* [ ]* [ ]* [ ]* [ ]*
Wansley CT [ ]* [ ]* [ ]* [ ]* [ ]*
----------------------------------------------------------------------
----------------------------------------------------------------------
Total [ ]* [ ]* [ ]* [ ]* [ ]*
----------------------------------------------------------------------
- ---------------------------
10 No adjustments will be made to the Fixed Monthly Payments regardless of the
actual amount of the variable O&M expenses.
* Indicates information that has been filed separately with the Secretary of
the Commission as an attachment to a request for confidentiality with
respect to the omitted information.
Upper
Lower Reservior Estimated Estimated
Upper Reservior Volume MW hrs in MW hrs Accumulated Estimated MW hrs
Reservior Level Ft. change in storage change Generation MW hrs Pumping
Level Ft (optimum) Acre Ft Generating Generating Total Pumping to full pool
- --------------------------------------------------------------------------------------------------------------------------
1392 690.5 5991.0 7696.2
1391 691.0 218 5860.4 130.6 130.6 7528.5 167.7
1390 691.6 216 5731.1 129.4 259.9 7362.3 333.9
1389 692.0 216 5601.7 129.4 389.3 7196.1 500.1
1388 692.6 216 5472.3 129.4 518.7 7029.9 666.3
1387 693.1 215 5343.6 128.8 647.4 6864.5 831.7
1386 693.6 214 5215.4 128.2 775.6 6699.8 996.4
1385 694.1 214 5087.2 128.2 903.8 6535.2 1161.0
1384 694.6 213 4959.7 127.6 1031.3 6371.3 1324.9
1383 695.1 212 4832.7 127.0 1158.3 6208.2 1488.0
1382 695.6 212 4705.7 127.0 1285.3 6045.1 1651.1
1381 696.0 212 4578.7 127.0 1412.3 5882.0 1814.2
1380 696.5 210 4453.0 125.8 1538.0 5720.4 1975.8
1379 697.0 210 4327.2 125.8 1663.8 5558.8 2137.4
1378 697.4 210 4201.4 125.8 1789.6 5397.3 2298.9
1377 697.9 209 4076.3 125.2 1914.7 5236.5 2459.7
1376 698.3 208 3951.7 124.6 2039.3 5076.4 2619.8
1375 698.8 208 3827.1 124.6 2163.9 4916.4 2779.8
1374 699.2 208 3702.5 124.6 2288.5 4756.4 2939.8
1373 699.6 206 3579.1 123.4 2411.9 4597.9 3098.3
1372 700.1 206 3455.8 123.4 2535.2 4439.4 3256.8
1371 700.5 206 3332.4 123.4 2658.6 4280.9 3415.3
1370 700.9 205 3209.6 122.8 2781.4 4123.2 3573.0
1369 701.4 204 3087.4 122.2 2903.6 3966.2 3730.0
1368 701.8 204 2965.3 122.2 3025.7 3809.2 3887.0
1367 702.2 204 2843.1 122.2 3147.9 3652.3 4043.9
1366 702.6 202 2722.1 121.0 3268.9 3496.9 4199.3
1365 703.0 202 2601.1 121.0 3389.9 3341.5 4354.7
1364 703.4 202 2480.1 121.0 3510.9 3186.0 4510.2
1363 703.8 201 2359.7 120.4 3631.3 3031.4 4664.8
1362 704.1 200 2240.0 119.8 3751.0 2877.5 4818.7
1361 704.5 200 2120.2 119.8 3870.8 2723.6 4972.6
1360 704.9 200 2000.4 119.8 3990.6 2569.8 5126.4
1359 705.2 184 1890.2 110.2 4100.8 2428.2 5268.0
1358 705.6 184 1780.0 110.2 4211.0 2286.6 5409.6
1357 705.9 183 1670.4 109.6 4320.6 2145.8 5550.4
1356 706.3 182 1561.4 109.0 4429.6 2005.8 5690.4
1355 706.6 182 1452.4 109.0 4538.6 1865.8 5830.4
1354 706.9 180 1344.6 107.8 4646.4 1727.3 5968.9
1353 707.3 180 1236.8 107.8 4754.2 1588.8 6107.4
1352 707.6 180 1129.0 107.8 4862.0 1450.3 6245.9
1351 707.9 178 1022.4 106.6 4968.6 1313.3 6382.9
1350 708.2 178 915.7 106.6 5075.3 1176.4 6519.8
1349 708.5 177 809.7 106.0 5181.3 1040.2 6656.0
1348 708.8 176 704.3 105.4 5286.7 904.8 6791.4
1347 709.1 176 598.9 105.4 5392.1 769.4 6926.8
1346 709.4 174 494.7 104.2 5496.3 635.5 7060.7
1345 709.8 174 390.5 104.2 5600.5 501.6 7194.6
1344 710.0 164 292.3 98.2 5698.7 375.5 7320.7
1343 710.3 164 194.1 98.2 5796.9 249.3 7446.9
1342 710.6 162 97.0 97.0 5894.0 124.6 7571.6
1341 710.9 162 0.0 97.0 5991.0 7696.2
- --------------------------------------------------------------------------------------------------------------------------
-51 20.4 10003 5991.0
- --------------------------------------------------------------------------------------------------------------------------
MW hrs per
Acre ft
0.599 Generating
0.769 Pumping
Conversions Factors
43,580 cu. ft = acre ft
CFS - flow = acre ft per hr
4000 330.6
4100 338.8
4200 347.1
4300 355.4
4400 363.6
4500 371.9
4600 380.2
4700 388.4
4800 396.7
4900 405.0
5000 413.2
5100 421.5
5200 429.8
5300 438.0
5400 446.3
5500 454.5
5600 462.8
5700 471.1
5800 479.3
5900 487.6
6000 495.9
6100 504.1
6200 512.4
6300 520.7
6400 528.9
6500 537.2
EXHIBIT 13.2
NOTICES AND PAYMENT
ENRON POWER MARKETING, INC.:
NOTICES AND CORRESPONDENCE PAYMENTS
Enron Power Marketing, Inc. NationsBank of Texas-Dallas
P.O. Box 4428 for Enron Power Marketing, Inc.
Houston, Texas 77210-4428 ABA Routing # 111000012
Attn: Power Contract Account # 375 04609321
Settlement Manager Confirmation: Enron Power Marketing,Inc.
FAX # (713) 646-3421 Credit and Collections
(713) 853-5667
INVOICES
Enron Power Marketing, Inc.
1400 Smith Street
P.O. Box 4428
Houston, Texas 77210-4428
OGLETHORPE POWER CORPORATION:
NOTICES AND CORRESPONDENCE PAYMENTS
2100 East Exchange Place SunTrust Bank, Atlanta
P.O. Box 1349 for Oglethorpe Power Corporation Master
Tucker, Georgia 30085-1349 Account
Attn: Manager, System Control ABA Routing #061-0001-04
FAX# (404) 270-7663 Account # 8800599634
Confirmation: Oglethorpe Power
Corporation
Samantha Cofield
(770) 270-7191