Exhibit 10.33.1
MEMBER TRANSMISSION SERVICE AGREEMENT
between
GEORGIA TRANSMISSION CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP GENERATION & TRANSMISSION CORPORATION)
dated as of
March 1, 1997
TABLE OF CONTENTS
Page
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RECITALS...............................................................1
1. DEFINED TERMS; SERVICES................................................2
1.1 Definitions.....................................................2
1.2 Purchase and Sale of Network Transmission Service...............2
1.2.1 Purchase and Sale........................................2
1.2.2 Initial Term.............................................3
1.2.3 Reduction in Service.....................................3
1.3 Purchase and Sale of Point-To-Point Transmission Service........3
1.3.1 Purchase and Sale........................................3
1.3.3 After Initial Term.......................................4
1.4 Comparability...................................................4
2. RECEIPT AND DELIVERY POINTS; DIRECT
ASSIGNMENT FACILITIES....................................4
2.1 Receipt and Delivery Points.....................................4
2.2 New Transmission Customer-Owned Facilities......................4
3. REPRESENTATIONS, WARRANTIES, AND COVENANTS.............................4
3.1 Mutual Representations..........................................4
3.2 Covenants of the Transmission Customer..........................5
3.3 Covenants of GTC................................................5
3.3.1 Prudent Utility Practice.................................5
3.3.2 Non-Discrimination.......................................5
4. RATES AND PAYMENT......................................................5
4.1 Rates...........................................................5
4.1.1 General; Periodic Review.................................5
4.1.2 Transmission Customer's Unconditional Obligation
to Pay...................................................6
4.1.3 Minimum Rates............................................6
4.1.4 Allocation of Payment Defaults...........................6
4.1.5 Rate Design..............................................7
4.1.6 Functional Unbundling....................................7
4.1.7 Budget...................................................7
4.2 Reasonableness of Rates.........................................7
4.2.1 Fixed Rate Contract......................................7
4.2.2 Formulaic Rate...........................................7
4.2.3 Regulatory Review........................................7
4.2.4 Conforming Amendments....................................8
4.2.5 Fixed Network Rates......................................8
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5. RIGHTS OF ACCESS, RECORDS AND ACCOUNTS.................................8
5.1 Right of Access.................................................8
5.2 Records and Accounts............................................8
5.2.1 Accounting Records.......................................8
5.2.2 Access to Books and Records..............................9
6. DEFAULTS AND REMEDIES..................................................9
6.1 Events of Default and Remedies..................................9
6.1.1 Payment Default..........................................9
6.1.2 Suspension of Service....................................9
6.1.3 Termination..............................................9
6.1.4 Transmission Customer's Obligations.....................10
6.1.5 GTC's Failure to Deliver................................10
6.1.6 Performance Default.....................................10
6.1.7 Remedies................................................10
7. TRANSFER AND ASSIGNMENT...............................................10
7.1 Reorganizations, Transfers and Sales of Assets by the
Transmission Customer..........................................10
7.1.1 Dissolution or Liquidation..............................10
7.1.2 Permitted Transactions..................................11
7.1.3 Service Territory and Distribution System...............12
7.1.4 Specific Performance....................................12
7.2 Assignments....................................................12
7.2.1 General.................................................12
7.2.2 Assignment for Security.................................13
7.2.3 Corporate Reorganization................................13
7.2.4 Receiver or Trustee in Bankruptcy.......................14
7.2.5 Express Rejection of Implied Limitations................14
8. EFFECTIVENESS AND TERM................................................14
8.1 Effective Date and Term........................................14
8.1.1 Effective Date..........................................14
8.1.2 Term....................................................14
8.1.3 Reduction in Term.......................................15
9. INDEMNIFICATION AND LIABILITY.........................................15
9.1 Force Majeure..................................................15
9.2 Indemnification................................................15
9.3 Consequential and Indirect Damages.............................15
10. MISCELLANEOUS.........................................................15
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10.1 Title and Risk of Loss................................................15
10.2 Notices...............................................................15
10.3 Communications Regarding Emergencies..................................16
10.4 Governing Law.........................................................17
10.5 Waivers and Exercise of Rights........................................17
10.5.1 Waiver.........................................................17
10.5.2 Subsequent Default.............................................17
10.5.3 Exercise of Rights.............................................17
10.6 Counterparts..........................................................17
10.7 Compliance with Legal Requirements....................................17
10.8 Severability..........................................................17
10.9 Third-Party Beneficiaries.............................................17
10.9.1 No Third-Party Beneficiaries...................................17
10.9.2 Enforcement....................................................18
10.9.3 Responsibility of Parties......................................18
10.10 No Dedication of Facilities...........................................18
10.11 Action by Affiliates..................................................18
10.12 Independent Contractors...............................................18
10.13 Rules of Construction.................................................18
10.13.1 Headings..............................................18
10.13.2 Including.............................................18
10.13.3 Singular and Plural...................................18
10.13.4 Time of the Essence...................................19
10.14 Survival..............................................................19
10.15 Amendments............................................................19
10.16 Relationship of GTC to Transmission Customer..........................19
10.17 Transmission Customer's Information Obligations.......................19
10.18 Entire Agreement......................................................19
10.19 Retail Distribution...................................................20
10.20 Periodic Review of Scheduling Procedures..............................20
Exhibit A - Definitions......................................................A-1
Exhibit B - Service Specifications...........................................B-1
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MEMBER TRANSMISSION SERVICE AGREEMENT
THIS MEMBER TRANSMISSION SERVICE AGREEMENT, dated as of March 1, 1997
(together with permitted amendments hereto, this "Agreement"), is entered into
by and between Georgia Transmission Corporation (An Electric Membership
Corporation), an electric membership corporation organized and existing under
the laws of the State of Georgia ("GTC"), and Oglethorpe Power Corporation (An
Electric Membership Generation & Transmission Corporation), an electric
membership corporation organized and existing under the laws of the State of
Georgia (the "Transmission Customer" or "OPC").
R E C I T A L S :
WHEREAS, the other GTC Members joined together, beginning in 1974, to form
OPC in order to share the benefits and costs of ownership of an entity that
would engage in providing electric capacity and energy for the benefit of its
members; and
WHEREAS, GTC was formed to separate the transmission business from the
generation business of OPC but in all other respects to retain and share the
costs and benefits of ownership of an entity that would deliver Transmission
Service for the benefit of the GTC Members; and
WHEREAS, GTC has agreed to purchase the transmission assets and business of
OPC and thus will own and operate electric transmission facilities and in the
future will construct additional electric transmission facilities or purchase or
otherwise obtain Transmission Service for the purpose, among others, of
supplying Transmission Service to the GTC Members, several of which are
borrowers from the Rural Utilities Service, as successor to the Rural
Electrification Administration (the "RUS"), and others; and
WHEREAS, GTC has adopted a Transmission Service Tariff (as amended,
supplemented or replaced from time to time, the "GTC Tariff") under which it
will provide transmission and ancillary services to all customers, including GTC
Members; and
WHEREAS, GTC has agreed to assume a portion of the secured obligations of
OPC, including a portion of the loans evidenced by mortgage notes (collectively,
the "Notes") made or guaranteed by the United States of America ( the
"Government"), acting through the Administrator of the RUS (the "Administrator")
and certain loans made by, or securities issued to, or obligations undertaken
to, others (the "Assumed Obligations"); and
WHEREAS, GTC may in the future finance construction of additional
transmission facilities in whole or in part through loans made or guaranteed by
the Government, acting through the Administrator, and loans made by, or
securities issued to, or obligations undertaken to, others, and
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may in the future obtain additional loans or issue additional securities or
obligations (the "Future Obligations"); and
WHEREAS, the Assumed Obligations and certain of the Future Obligations
(collectively, with the Assumed Obligations, the "Secured Obligations") are to
be secured by a Trust Indenture, dated as of March 1, 1997, from GTC, as
Grantor, to SunTrust Bank, Atlanta, as it may hereafter be amended,
supplemented, restated or replaced or substituted for from time to time (the
"Trust Indenture"); and
WHEREAS, this Agreement and payments due to GTC under this Agreement will
be pledged and assigned to secure the Secured Obligations to the extent provided
in the Trust Indenture; and
WHEREAS, the Government and certain other lenders are relying on this
Agreement and other transmission service agreements between GTC and the other
GTC Members to assure that the Secured Obligations are repaid and the purposes
of the Rural Electrification Act of 1936, as amended (the "RE Act"), are carried
out, and GTC and the Transmission Customer, by executing this Agreement,
acknowledge that reliance; and
WHEREAS, the Transmission Customer has determined that its interests and
the interests of its consumers will be best served by purchasing Transmission
Service from GTC on the terms and conditions of this Agreement;
WHEREAS, the Transmission Customer is undertaking to purchase from GTC, and
GTC is undertaking to sell to the Transmission Customer, Transmission Service in
accordance with and pursuant to the terms and conditions herein set forth; and
WHEREAS, notwithstanding the foregoing, as the result of GTC and OPC each
having the same members, GTC and OPC have determined that it is necessary and
appropriate for GTC to impose financial obligations on such common members
directly through their individual service agreements with GTC, rather than
indirectly through OPC, thereby requiring certain changes in the form of this
Member Transmission Service Agreement to reflect OPC's special status;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings herein contained, GTC and the Transmission Customer hereby agree as
follows:
1. DEFINED TERMS; SERVICES.
1.1 Definitions. All capitalized terms used herein shall have the
respective meanings set forth in Exhibit A attached hereto or, if not set forth
in Exhibit A, the meanings set forth in the GTC Tariff, unless the context in
which such term is used clearly requires otherwise.
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1.2 Purchase and Sale of Network Transmission Service.
1.2.1 Purchase and Sale. GTC shall provide, and the Transmission
Customer shall purchase, Network Transmission Service under the GTC Tariff, as
now in effect or as it may hereafter be amended, in accordance with the terms of
this Agreement.
1.2.2 Initial Term. During the Initial Term, GTC shall be the
sole provider of Transmission Service to deliver the capacity and energy
required to serve the Transmission Customer's Native Load Customers located
within the Georgia Territory.
1.2.3 Reduction in Service. After the end of the Initial Term or
the end of the First Additional Term, the Transmission Customer may reduce its
obligation to purchase Network Transmission Service from GTC to 1553 kilowatts
(1553 kW) or any greater amount of Network Load. The Transmission Customer shall
provide GTC with written notice of its intent to reduce its obligation to
purchase Network Transmission Service (and the amount of Network Load) no later
than December 31, 2005 if it wishes to implement such reduction at the
expiration of the Initial Term and December 31, 2015 if it wishes to implement
such reduction at the end of the First Additional Term. Upon receiving such
notice, the Board of Directors of GTC shall determine the estimated cost to GTC
of the reduction in the Transmission Customer's obligation. Such amount shall be
determined based on the net investment in transmission facilities which has been
made (or is expected to be made) by GTC, including construction work in
progress, from the commencement of the Initial Term until the effective date of
such reduction (i.e., at the end of the Initial Term or at the end of the First
Additional Term), excluding Direct Assignment Facilities. Upon receipt of such
estimate, the Transmission Customer shall be entitled to withdraw its notice. If
the Transmission Customer reduces its obligation, to the extent that
responsibility for the annual expense, including margins, determined by the
Board of Directors from time to time to be associated with such transmission
facility net investment will be shifted to other Transmission Customers after
the effective date of any such notice, the Transmission Customer shall remain
responsible for those expenses to the extent that those expenses exceed any
payments received by GTC pursuant to the ITSA resulting from the reduced Network
Load. To the extent that the net growth of Network Load by all other
Transmission Customers after the effective date of such notice offsets a
reduction in Network Load by the Transmission Customer (and any other
Transmission Customers that elect to reduce their obligations to purchase
Network Transmission Service), such other Transmission Customers shall
thereafter assume responsibility for such expenses. GTC shall at all times
maintain written policies for the orderly receipt and administration of the
notices, estimates and obligations to pay that are provided for in this Section
1.2.3.
1.3 Purchase and Sale of Point-To-Point Transmission Service.
1.3.1 Purchase and Sale. GTC shall provide, and the Transmission
Customer shall purchase, Point-To-Point Transmission Service under the GTC
Tariff in accordance with the terms of and at the rates provided for in this
Agreement.
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1.3.2 Initial Term. During the Initial Term, GTC shall be the
sole provider of Point-To-Point Transmission Service for the Transmission
Customer, and GTC shall be the sole provider of Transmission Service to deliver
or receive capacity and energy using the Transfer Capability.
1.3.3 After Initial Term. After the Initial Term, the
Transmission Customer shall have no obligation to purchase Point-To-Point
Transmission Service from GTC.
1.4 Comparability. Notwithstanding any change in the GTC Tariff, GTC
shall provide Transmission Service to the Transmission Customer on a basis that
is comparable to the use of the Transmission System by other GTC Members.
Comparable basis refers to the utilization of the legal standard developed by
the FERC in determining that there has been no undue discrimination as between
the owner of a facility and others that have the right to use the facility. GTC
shall ensure that the Transmission Customer's Network Transmission Service for
the delivery on a firm basis of power from Network Resources to Network Loads
and the Transmission Customer's Firm Point-To-Point Transmission Service (other
than at secondary Receipt Points and Delivery Points) will have priority over
all non-firm uses of the Transmission System.
2. RECEIPT AND DELIVERY POINTS; DIRECT ASSIGNMENT FACILITIES.
2.1 Receipt and Delivery Points. Network Resources, Network Loads,
Receipt Points, Delivery Points and all Direct Assignment Facilities for GTC's
service to the Transmission Customer pursuant to this Agreement are set forth in
Exhibit B to this Agreement, as such Exhibit may be supplemented from time to
time in accordance with the GTC Tariff.
2.2 New Transmission Customer-Owned Facilities. To the extent that the
Transmission Customer desires to add with its own funds a newly constructed
interconnection point with the ITS or to provide newly constructed substations
or other facilities that would otherwise be Direct Assignment Facilities, the
Transmission Customer shall provide GTC with as much advance notice as
reasonably practicable. GTC shall interconnect such new point as requested by
the Transmission Customer unless GTC reasonably determines that the Transmission
System cannot reliably accommodate such new interconnection point or facilities.
GTC shall promptly provide the engineering and technical specifications that are
required by NERC, SERC or the ITSA, or that are otherwise required to reliably
accommodate such interconnection point or facilities. GTC or its Designated
Agent shall be the sole operator of the transmission portion of such Facilities,
regardless of their ownership.
3. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
3.1 Mutual Representations. As of the Effective Date, each Party
represents and warrants to the other Party that: (i) it is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation; (ii) it has all requisite power and authority to own, operate,
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and lease its properties and to carry on its business as now conducted; (iii) it
has all regulatory authorizations, including any required authorization from the
RUS, necessary for it to legally perform its obligations under this Agreement;
(iv) the execution, delivery and performance of this Agreement is within its
power, has been duly authorized by all necessary action and does not violate any
of the terms or conditions of its governing documents, any contract or any other
agreement to which it is a party or any law applicable to it; (v) this Agreement
constitutes a legal, 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; and (vii) there are no Legal Proceedings that would be
reasonably likely to materially affect its ability to perform this Agreement.
Each Party covenants that it will cause the representations and warranties in
clauses (i) through (v) to be true and correct throughout the term of this
Agreement, and each Party shall promptly inform the other Party of any Legal
Proceedings that would cause the representations and warranties in clause (vii)
to be not true and correct after the Effective Date.
3.2 Covenants of the Transmission Customer. The Transmission Customer
covenants and agrees to establish, maintain and collect rates and charges for
the service of its electric system, and to conduct its business, in a manner
that shall produce revenues and receipts at least sufficient to enable the
Transmission Customer to pay to GTC, when due, all amounts payable by the
Transmission Customer under this Agreement and to pay any and all other amounts
payable from, or that might constitute a charge and a lien upon, the revenues
and receipts derived from its electric system, including all operation and
maintenance expenses and the principal of, premium, if any, and interest on all
indebtedness related to the Transmission Customer's electric system.
3.3 Covenants of GTC.
3.3.1 Prudent Utility Practice. GTC covenants and agrees that it
will plan, construct, operate and maintain the Transmission System or cause the
same to be planned, constructed, operated and maintained in accordance with
Prudent Utility Practice.
3.3.2 Non-Discrimination. GTC covenants and agrees that there
shall be no undue discrimination in carrying out its obligations under this
Agreement relating to the Transmission Customer as compared to other GTC Members
or to other customers under the GTC Tariff.
4. RATES AND PAYMENT.
4.1 Rates.
4.1.1 General; Periodic Review. The Transmission Customer shall
pay GTC for Transmission Service and, if applicable, Ancillary Services at the
rates and on the terms and conditions set forth herein and in the applicable
tariffs, as in effect from time to time. GTC at such intervals as it shall deem
appropriate, but in any event not less frequently than once in each Contract
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Year, shall review the rates for Transmission Service and Ancillary Services
furnished hereunder and under similar Transmission Service Agreements with the
other GTC Members, and, if necessary shall revise such rates so that such rates
shall produce revenues that shall be sufficient, but only sufficient, with the
revenues of GTC from all other sources, to meet all of GTC's costs, to cover all
payments on account of indebtedness of GTC, to provide for the establishment and
maintenance of reasonable reserves, and to comply with all financial
requirements contained in the Trust Indenture or in any indenture, mortgage, or
contract relating to any indebtedness or other financial obligations of GTC as
they may exist from time to time.
4.1.2 Transmission Customer's Unconditional Obligation to Pay.
The Transmission Customer shall make all payments for Transmission Service and
Ancillary Services that are required pursuant to this Agreement in a timely
manner, whether or not (i) Transmission Service or Ancillary Services have been
or are being delivered to the Transmission Customer hereunder, (ii) GTC's
facilities or any part thereof are completed, delayed, terminated, available,
operable, operating, retired, sold, leased, transferred, or otherwise disposed
of, (iii) the construction or operation of GTC's facilities or any part thereof
is suspended, interrupted, interfered with, reduced, curtailed or terminated,
(iv) GTC is able to purchase or otherwise obtain Transmission Service or
Ancillary Services from any source, or (v) any similar contract with any other
GTC Member is invalid, in each such case for any reason whatsoever and whether
or not due to the conduct, acts or omissions of GTC. Such payments by the
Transmission Customer shall not be subject to any reduction, whether by offset,
recoupment or otherwise, and shall not be conditioned upon performance by the
other GTC Members or GTC under this Agreement or any other agreement or
instrument. This Section 4.1.2 shall not be construed to release GTC from the
performance of any of its obligations expressed in this Agreement or, except to
the extent expressly provided in this Agreement, prevent or restrict the
Transmission Customer from asserting any rights that it may have against GTC or
any other person under this Agreement or any other agreement or under any
provision of law or prevent or restrict the Transmission Customer, at its own
cost and expense, from prosecuting or defending any action or proceeding against
or by third parties or taking any other action to secure or protect its rights
under this Agreement.
4.1.3 Minimum Rates. Notwithstanding any other provision of this
Agreement, the rate, including any budget related thereto, shall be set at all
times at a level that will enable GTC to comply with the Trust Indenture and
other financial requirements contained in any other indenture, mortgage or
contract relating to any indebtedness or financial obligations of GTC as they
may exist from time to time.
4.1.4 Allocation of Payment Defaults. The Transmission Customer
and GTC expressly acknowledge the right of GTC to increase the rates of all GTC
Members except OPC pro rata as necessary to recover revenue shortfalls resulting
from a Payment Default by the Transmission Customer or any other GTC Member or
Members or any other customer of GTC. OPC is excluded from such increase because
its members are already directly obligated to GTC. GTC shall at all times
provide in the applicable service schedule for Network Integration Transmission
Service a mechanism by which GTC shall allocate any unrecovered costs resulting
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from a Payment Default by the Transmission Customer or a Payment Default of any
other GTC Member or any other customer of GTC and a mechanism for recovering the
otherwise unrecovered costs resulting from such default from each such
non-defaulting GTC Member, other than OPC, in the proportion of its Network Load
at the time of such Payment Default to the aggregate Network Load of all
non-defaulting GTC Members, other than OPC, at such time.
4.1.5 Rate Design. The rates and terms and conditions of service
provided by GTC hereunder, including changes from time to time in the applicable
tariffs, shall be just and reasonable and not unduly discriminatory, but shall
at all times be sufficient to comply with the requirements of Section 4.1.3.
Notwithstanding the foregoing, it is the intent of the Parties that the
commitment of GTC herein not be construed as an acceptance by GTC of a standard
for its treatment of non-GTC Members higher than that required by Sections 211
and 212 of the Federal Power Act.
4.1.6 Functional Unbundling. GTC shall account for its direct and
indirect costs so that the charge for each service GTC provides to one or more
GTC Members recovers all direct costs and a share of indirect costs for each
service, including administrative and general expenses and margins, allocated in
accordance with Accounting Requirements.
4.1.7 Budget. GTC shall prepare or cause to be prepared and
deliver to the Transmission Customer each Contract Year an annual system budget
for Transmission Service during the following Contract Year. GTC shall also
prepare each year a five (5) year capital expenditure projection describing the
transmission facilities, including Direct Assignment Facilities, that are to be
constructed or acquired during such five (5) year period.
4.2 Reasonableness of Rates.
4.2.1 Fixed Rate Contract. GTC was organized by the Transmission
Customer and the other electric membership corporations in Georgia to provide
collectively for transmission service for their electric capacity and
requirements. This Agreement was established between the Parties, taking into
account the present and projected needs for Transmission Service and Ancillary
Services of the GTC Members, the costs of the services subject to and
contemplated by this Agreement and the alternatives thereto. The Parties agree
that the rates established hereunder are just and reasonable under the current
circumstances and reflect their determination of what would be just and
reasonable under future conditions reasonably contemplated by them. The rates
take into account specific benefits achieved by the Parties through this
Agreement and not otherwise available to the Parties, and reflect the sharing of
those benefits without undue discrimination against any current or future
customer of GTC.
4.2.2 Formulaic Rate. The charges to be paid by the Transmission
Customer to GTC for services provided under this Agreement are intended to be
adjusted only pursuant to and in accordance with the formulaic rates specified
in the GTC Tariff, as such formulae may be revised from time to time. If GTC's
rates are not established pursuant to such a formulaic rate mechanism
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as changed from time to time, the Transmission Customer shall have the right to
file any applications relating to rates as may be permitted by law.
4.2.3 Regulatory Review. Nothing contained in this Agreement
shall be construed as affecting in any way the right of GTC unilaterally to file
an application for a change in any part of the GTC Tariff to any Governmental
Authority having jurisdiction, including the FERC under Section 205 of the
Federal Power Act and pursuant to the FERC's rules and regulations promulgated
thereunder, upon approval of the change by GTC in a manner consistent with
Section 4 herein. The Transmission Customer shall not protest or contest (i) an
initial declaratory order petition filed with the FERC by GTC seeking
confirmation that the GTC Tariff meets the FERC's reciprocity requirement, (ii)
an initial application filed by GTC with the FERC pursuant to Section 205 of the
Federal Power Act to provide service pursuant to the GTC Tariff, or (iii) any
filing to conform GTC's documents to a FERC pro forma tariff. The Transmission
Customer may protest or contest any other filings referred to in this Section
4.2.3 or any filings made by any other GTC Member to change the formulatory rate
mechanism contained in the GTC Tariff and the Member does not waive any rights
it may have with respect to such filings.
4.2.4 Conforming Amendments. Certain provisions of this
Agreement, including without limitation Section 3.3 and Articles 9 and 10, and
certain definitions set forth in Exhibit A, are commercial terms substantially
similar to provisions contained in the GTC Tariff and standard form of
Non-Member Transmission Service Agreement (Attachment B to the GTC Tariff). A
change made by GTC to any provision of the GTC Tariff, including the standard
forms of agreements, shall automatically result in the same or substantially
similar change to any corresponding provision of this Agreement, provided that
such changed provision of the GTC Tariff, including the standard form of service
agreement, is applicable to both GTC Members and non-GTC Members and has been
accepted for filing and permitted to go into effect by the FERC or otherwise
declared by the FERC to be just and reasonable and not unduly discriminatory in
a proceeding in which the Transmission Customer is given actual notice and the
opportunity to intervene or protest. The GTC Member shall not contest any change
that conforms to a provision in a FERC pro forma tariff.
4.2.5 Fixed Network Rates. It is the intent of the Parties hereto
that any such Governmental Authority having jurisdiction shall not, on its own
motion or after petition by any person other than GTC, replace the rates
contained in the applicable Service Schedule for Network Transmission Service
with any other rate except upon finding that such Service Schedule is contrary
to the public interest.
5. RIGHTS OF ACCESS, RECORDS AND ACCOUNTS.
5.1 Right of Access. Duly authorized representatives of either
Party shall be permitted to enter the premises of the other Party at all
reasonable times in order to carry out the provisions hereof.
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5.2 Records and Accounts.
5.2.1 Accounting Records. GTC shall keep accurate records and
accounts in accordance with Accounting Requirements. Promptly after the close of
each fiscal year (and not later than one hundred twenty (120) days after the end
of each fiscal year), GTC shall cause such records and accounts and all
transactions of GTC with respect to such fiscal year to be subject to an annual
audit by a firm of independent certified public accountants experienced in
electric utility accounting and possessing a national reputation in accounting
and auditing. GTC shall without delay provide a copy of each such annual audit,
including all written comments and recommendations of such accountants to the
Transmission Customer.
5.2.2 Access to Books and Records. The Transmission Customer
shall at all times have reasonable access during business hours to examine any
and all of the books, records and supporting worksheets and data of GTC as may
be appropriate to determine the accuracy of any charges or payments required to
be made by the Transmission Customer to GTC. If such books, records and
supporting worksheets and data of GTC contain information about another GTC
Member, GTC shall excise any identification of a specific member or members or
provide such information to an independent certified public accountant or other
independent representative of the Transmission Customer under a confidentiality
agreement. In the event that after an examination of GTC's records, there is
still a dispute as to the accuracy of any charge and the Transmission Customer
proceeds with mediation, arbitration or litigation, only requirements of
confidentiality imposed by a mediator, arbitrator or court shall be applied.
6. DEFAULTS AND REMEDIES.
6.1 Events of Default and Remedies.
6.1.1 Payment Default. If the Transmission Customer fails to make
full payment to GTC when required to be made under the provisions of this
Agreement, and such failure continues for a period of ten (10) business days,
GTC shall give or cause to be given written notice to the Transmission Customer.
If the Transmission Customer does not, within ten (10) business days from the
date of the mailing of such notice, pay the full amount then due to GTC,
together with interest thereon, at the Interest Rate, from the date it became
due, then such failure shall constitute a "Payment Default" on the part of the
Transmission Customer. GTC shall promptly provide written notice to the other
GTC Members of the Payment Default.
6.1.2 Suspension of Service. Upon a Payment Default, GTC may
suspend service to the Transmission Customer for all or any part of the period
of continuing default. GTC's right to suspend service shall not be exclusive,
but in addition to all other remedies available to GTC at law or in equity. No
suspension of service or termination of this Agreement or recovery of additional
revenues from other Transmission Customers shall relieve the Transmission
Customer of its obligations hereunder, which are absolute and unconditional. GTC
shall credit the obligations of the Transmission Customer during any suspension
of service with the monies actually received
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by GTC from sales of Transmission Service and Ancillary Services that would have
been available to serve the Transmission Customer, but GTC shall not be
responsible for failure to mitigate the consequences of the Transmission
Customer's failure to pay in absence of gross negligence or willful misconduct.
6.1.3 Termination. GTC may terminate this Agreement if (i) a
Payment Default shall have occurred and be continuing and (ii) such termination
is approved by seventy-five percent (75%) of GTC's Board of Directors and
seventy-five percent (75%) of the non-defaulting GTC Members.
6.1.4 Transmission Customer's Obligations. The fact that other
Transmission Customers have paid increased rates and charges shall not relieve
the Transmission Customer of its liability for the amount owed by it to GTC, and
any other GTC Member, either individually or as a member of a group, shall have
such a right of recovery from the Transmission Customer as may be provided by
law. GTC or any GTC Member as their interests may appear, jointly or severally,
may commence such suits, actions or proceedings, at law or in equity, including
suits for specific performance, as may be necessary or appropriate to enforce
the obligations of the Transmission Customer under this Agreement.
6.1.5 GTC's Failure to Deliver. If GTC fails to provide
Transmission Service or Ancillary Services as a result of the breach of the
duties imposed on it under Section 3.3, GTC shall be liable to the Transmission
Customer for the cost of transmission service or ancillary services required to
replace such Transmission Service or Ancillary Services, if such transmission
service is available, but the Transmission Customer shall not be entitled to
terminate this Agreement or withhold payments required to be made pursuant to
this Agreement.
6.1.6 Performance Default. If either Party fails to comply with
any of the other terms, conditions and covenants of this Agreement (and such
failure does not constitute a Payment Default by the Transmission Customer), the
non-defaulting Party shall give the defaulting Party written notice of the
default (a "Performance Default"), the defaulting Party shall have a period of
thirty (30) days after receipt of such notice to commence reasonable efforts to
cure such Performance Default, and it shall have an additional thirty (30) days
to cure such Performance Default. Thereafter, if the Performance Default is
continuing, the non-defaulting Party, subject to Section 6.1.7, shall have all
of the rights and remedies provided at law and in equity, other than termination
of this Agreement.
6.1.7 Remedies. No remedy conferred upon or reserved to GTC or
the Transmission Customer under this Agreement is intended to be exclusive of
any other remedy or remedies available hereunder or now or hereafter existing
and every such remedy shall be cumulative and shall be in addition to every
other such remedy, provided that no Performance Default by GTC shall permit the
Transmission Customer to terminate this Agreement or relieve the Transmission
Customer of its obligation to make payments pursuant to this Agreement, which
obligation shall be absolute and unconditional.
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7. TRANSFER AND ASSIGNMENT.
7.1 Reorganizations, Transfers and Sales of Assets by the Transmission
Customer.
7.1.1 Dissolution or Liquidation. The Transmission Customer shall
not dissolve, liquidate or otherwise wind up its affairs without the approval in
writing of GTC.
7.1.2 Permitted Transactions. The Transmission Customer shall not
consolidate or merge with any other Person or reorganize or change the form of
its business organization from an electric membership corporation or sell,
transfer, lease or otherwise dispose of all or substantially all of its assets
(each, a "Member Transaction") to any Person (or make any agreement therefor),
whether in a single transaction or series of transactions unless either:
(a) Such Member Transaction is expressly approved in writing
by GTC; or
(b) All of the following conditions are satisfied:
(i) The Transferee shall be an entity organized
and existing under the laws of the United States of America or
any State or the District of Columbia; and
(ii) No default or breach of this Agreement shall
have occurred or be continuing; and
(iii) If the Transferee is not the Transmission
Customer, the Transferee shall execute and deliver to GTC an
instrument supplemental hereto in form reasonably satisfactory to
GTC containing an assumption by the Transferee of the performance
and observance of every covenant and condition of this Agreement
required to be performed or observed by the Transmission
Customer; and
(iv) A firm of independent certified public
accountants shall prepare for the two calendar years immediately
preceding the Member Transaction a set of pro forma financial
statements that assume the consummation of the Member Transaction
throughout the applicable determination period and that are
prepared in accordance with generally accepted accounting
principles. Based on such pro forma financial statements, such
accountants must certify that:
(A) the Transferee's Debt Service Coverage Ratio
is at least 1.25 and Times Interest Earned Ratio is at least 1.50
for each of the two
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immediately preceding calendar years (assuming such Member Transaction
had been consummated at the beginning of such two-year period);
(B) the Transferee's Equity equals at least 27% of
its Total Assets after giving effect to such Member Transaction; and
(C) the ratio of the Transferee's Net Utility
Plant to its Long-Term Debt is at least 1.0 after giving effect
to such Member Transaction.
The specification of conditions in Section 7.1.2 shall not be construed to
establish minimum standards under which the Transmission Customer may effect a
Member Transaction, the purpose of such conditions being to establish when GTC's
approval need not be obtained. In the event the Transmission Customer seeks
GTC's approval of a Member Transaction, GTC may withhold such approval only upon
a determination by the GTC Board of Directors that the Member Transaction could
reasonably be expected to have a material adverse effect on the Transmission
Customer's ability to perform its obligations under this Agreement.
7.1.3 Service Territory and Distribution System. The Transmission
Customer shall not convey, transfer, lease, or otherwise dispose of any part of
its electric distribution system (if any), or assigned service territory (if
any) or voluntarily transfer or assign to another Person any customer of the
Transmission Customer (each, a "Conveyance") if such Conveyance, considered
together with (i) all prior Conveyances, and (ii) all prior additions (by
construction, conveyance, transfer or lease to the Transmission Customer) to its
electric distribution system, assigned service territory, or customers could
reasonably be expected to have a material adverse affect on the Transmission
Customer's ability to perform its obligations under this Agreement.
7.1.4 Specific Performance. The Transmission Customer and GTC
agree that the failure or threatened failure of the Transmission Customer to
comply with the terms of this Article 7 will cause irreparable injury to GTC,
which cannot properly or adequately be compensated by the mere payment of money.
The Transmission Customer agrees, therefore, that in the event of a breach or
threatened breach of this Article 7 by the Transmission Customer, GTC, in
addition to any other remedies that may be available to GTC, shall have the
right to obtain from any competent court a decree enjoining such breach or
threatened breach of this Article 7 or providing that the terms of this Article
7 be specifically enforced.
7.2 Assignments.
7.2.1 General.
(a) This Agreement shall be binding upon and inure to the
benefit of the permitted successors and permitted assigns of each Party,
except that this Agreement may not be assigned by either Party unless prior
consent to such assignment is given in writing by the other Party and, if
either Party is then an RUS borrower, the Administrator.
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Any assignment made without a consent required hereunder shall be void and
of no force or effect as against the non-consenting Party.
(b) No sale, assignment, transfer or other disposition
permitted by this Agreement shall affect, release or discharge either Party
from its rights or obligations under this Agreement, except as may be
expressly provided by this Agreement.
7.2.2 Assignment for Security.
(a) Notwithstanding any other provision of this Agreement, a
Party, without the other Party's consent but, if such assigning Party is
then a borrower of the RUS, only with the consent of the Administrator, may
assign, transfer, mortgage or pledge its interest in this Agreement as
security (an "Assignment for Security") for any obligation secured by any
indenture, mortgage or similar lien on its system assets without limitation
on the right of the secured party to further assign this Agreement,
including, without limitation, the assignment by the Transmission Customer
or GTC to create a security interest for the benefit of the Government,
acting through the Administrator, or for the benefit of any third party.
(b) After any Assignment for Security to the Administrator
or other secured party (including any indenture trustee under any indenture
securing the obligations of GTC), the Administrator, or other such other
secured party, without the approval of the other Party to this Agreement,
may (i) cause this Agreement to be sold, assigned, transferred or otherwise
disposed of to a third party pursuant to the terms governing such
Assignment for Security, or (ii) if the Administrator or other secured
party first acquires this Agreement, sell, assign, transfer or otherwise
dispose of this Agreement to a third party; provided, however, that in
either case the Party who made the Assignment for Security is in default of
its obligations to the Administrator or other secured party that are
secured by such security interest.
7.2.3 Corporate Reorganization.
(a) GTC may assign any or all of its rights and
delegate any or all of its duties under this Agreement in connection with
any reorganization, merger or consolidation of GTC with another entity in
which GTC is not the surviving entity if (i) such merger or consolidation
is (A) approved by seventy-five percent (75%) of the Board of Directors of
GTC and seventy-five percent (75%) of the GTC Members, or (B) approved by a
majority of the Board of Directors of GTC and a majority of the GTC Members
if a payment default under the Indenture shall have occurred and be
continuing and (ii) the surviving entity shall expressly assume by written
agreement executed and delivered to the Transmission Customer the
performance and observance of the provisions of this Agreement required to
be performed or observed by GTC.
- 13 -
(b) GTC may, in its sole discretion, at any time and
from time to time, retire, sell, transfer, lease, terminate or otherwise
dispose of any transmission facility; provided, that GTC shall not sell,
transfer, lease or otherwise dispose of all or substantially all of its
transmission facilities (each a "GTC Transaction") to any Person (or make
any agreement therefor), whether in a single transaction or a series of
transactions, unless such GTC Transaction is either: (a) approved by
seventy-five percent (75%) of GTC's Board of Directors and seventy-five
percent (75%) of the GTC Members, or (b) approved by a majority of the
Board of Directors of GTC and a majority of the GTC Members if a payment
default under the Indenture shall have occurred and be continuing.
7.2.4 Receiver or Trustee in Bankruptcy. The Parties intend that
the obligations of the Transmission Customer under this Agreement shall not be
affected by a receiver, a trustee in bankruptcy, a mortgagee or an indenture
trustee taking charge of the assets or business of GTC, and that such receiver,
trustee, mortgagee or indenture trustee may exercise all of the rights of, and
make all of the determinations provided to be made in this Agreement by, the
Board of the Directors of GTC.
7.2.5 Express Rejection of Implied Limitations. The Parties
intend that this Agreement shall be assignable in accordance with the provisions
of this Article 7 without regard to any other provisions of this Agreement, the
nature of the Person to which this Agreement is assigned, or the issues raised
in the case, In the Matter of Wabash Valley Power Ass'n, Inc., 72 F.3d 1305 (7th
Cir. 1995). Consequently, the Parties agree that this Agreement may be assigned
to any Person (including any receiver or trustee in bankruptcy) pursuant to this
Article 7 without regard to the fact that (i) such Person is not a cooperative;
(ii) the Board of Directors of such Person, if any, is not chosen by a vote in
which the Transmission Customer participates; or (iii) such Person is not
operated on a not-for-profit basis. Further, no other provision of this
Agreement shall restrict the assignment of this Agreement pursuant to this
Article 7. In the event an assignment is made to a Person that is not an
electric membership corporation (or other form of electric cooperative), all
provisions of this Agreement requiring approval of the GTC Members or the Board
of Directors of GTC shall cease to be applicable, and in such instances such
assignee may act in its discretion. References in this Agreement to an
assignment of this Agreement shall mean and include either or both of an
assignment of rights or a delegation of duties.
8. EFFECTIVENESS AND TERM.
8.1 Effective Date and Term.
8.1.1 Effective Date. This Agreement is dated as of the date
specified in the introductory paragraph and shall become effective upon: (i)
execution and delivery hereof by GTC and the Transmission Customer, (ii)
approval in writing by the Administrator and (iii) the acquisition by GTC of
OPC's transmission and distribution assets substantially as an entirety. The
date this Agreement becomes effective shall be the "Effective Date."
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8.1.2 Term. The initial term of this Agreement shall begin on the
Effective Date and end on December 31, 2006 (the "Initial Term"). Thereafter,
this Agreement shall automatically be extended for two additional terms, the
first ending December 31, 2016 (the "First Additional Term"), and the second
ending December 31, 2025 (the "Second Additional Term"). Thereafter, this
Agreement shall continue from year to year unless terminated by either Party
after giving not less than two (2) years' prior written notice of its intention
to terminate.
8.1.3 Reduction in Term. In the event GTC prepays all of its
obligations to the United States of America, the term of this Agreement will be
shortened to coincide with the latest maturity of any then outstanding
indebtedness, including any indebtedness issued to finance the amount of the
prepayment, if such latest maturity occurs prior to December 31, 2025; provided,
however, that in no event shall the term of this Agreement be shortened to a
date prior to the expiration of any sale-leaseback, lease-leaseback or similar
Transaction, the performance of which depends upon the continued existence of
this Agreement.
9. INDEMNIFICATION AND LIABILITY.
9.1 Force Majeure. Neither GTC nor the Transmission Customer will be
considered in default as to any obligation under the GTC Tariff if prevented
from fulfilling the obligation due to an event of Force Majeure. However, a
Party whose performance under the GTC Tariff is hindered by an event of Force
Majeure shall make all reasonable efforts to perform its obligations under the
GTC Tariff.
9.2 Indemnification. The Transmission Customer shall at all times
indemnify, defend, and save GTC harmless from, any and all damages, losses,
claims, including claims and actions relating to injury to or death of any
person or damage to property, demands, suits, recoveries, costs and expenses,
court costs, attorney fees, and all other obligations by or to third parties,
arising out of or resulting from GTC's performance of its obligations under the
GTC Tariff on behalf of the Transmission Customer, except in cases of negligence
or intentional wrongdoing by GTC.
9.3 Consequential and Indirect Damages. To the fullest extent
permitted by law, neither Party shall have liability to the other Party for any
indirect, consequential, multiple or punitive damages unless such damages are
the result of the Party's bad faith, gross negligence, or willful misconduct.
10. MISCELLANEOUS.
10.1 Title and Risk of Loss. As between the Parties, GTC shall be
deemed to be in exclusive control (and responsible for any injury and damage
caused thereby) of the transmission of capacity and energy, and of the
transmission and distribution facilities, after the Receipt Point and prior to
the Delivery Point, and Transmission Customer shall be deemed to be in exclusive
control (and responsible for any damages or injury caused thereby) of the
transmission or distribution of
- 15 -
capacity and energy, and of the transmission and distribution facilities, at and
to the Receipt Point and at and from the Delivery Point.
10.2 Notices. All notices, requests, statements or payments provided
for, required or permitted by this Agreement shall be sufficient for any and all
purposes under this Agreement when transmitted by facsimile, first class United
States Mail, hand delivery, or a private express delivery service to the
facsimile numbers or addresses provided below or as otherwise designated in
writing by the applicable Party:
GTC:
Georgia Transmission Corporation
2100 East Exchange Place
P. O. Box 2088
Tucker, GA 30085-2088
Attention: Chief Operating Officer
FAX: (770) 270-7872
Transmission Customer:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: President and CEO
FAX: (770) 270-7872
10.3 Communications Regarding Emergencies. Any communications
regarding operational emergencies or other operational problems may be made
orally or in any other manner reasonable under the circumstances and should be
directed to the persons specified below, or to such other person or address as
may have been designated in a written notice given to the other persons by or on
behalf of the person entitled to receive notice. In the event the person
entitled to receive notice cannot be found, notice may be given to any other
responsible person.
If to GTC:
Georgia Transmission Corporation
2100 East Exchange Place
P.O. Box 2088
Tucker, GA 30085-2088
Attention: System Operator (Georgia System Operations Corporation)
FAX: (770) 270-7320
- 16 -
If to Transmission Customer:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: Preference Power Coordinator
FAX: (770) 270-7590
10.4 Governing Law. The validity, interpretation and performance of
the GTC Tariff and this Agreement and each of their respective provisions shall
be governed by the laws of the State of Georgia.
10.5 Waivers and Exercise of Rights.
10.5.1 Waiver. GTC may waive any provision of the GTC Tariff when
it determines that doing so is in the best interests of the GTC Members.
10.5.2 Subsequent Default. Any waiver at any time by GTC of its
rights with respect to any matter arising in connection with the GTC Tariff or
this Agreement shall not be considered a waiver with respect to any subsequent
default or matter.
10.5.3 Exercise of Rights. No failure or delay on the part of
either Party in exercising any right, power or privilege under the GTC Tariff or
this Agreement and any related agreement, and no course of dealing between the
Parties, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
10.6 Counterparts. This Agreement may be executed in as many
counterparts as may be required, and it shall not be necessary that the
signatures of or on behalf of each Party appear on each counterpart, but it
shall be sufficient that the signature of or on behalf of each Party appear on
one or more of the counterparts. All counterparts shall collectively constitute
a single agreement. Each executed counterpart shall have the same force and
effect as an original instrument, and it shall not be necessary in any proof of
the Agreement to produce or account for more than the number of counterparts
containing the respective signatures of or on behalf of each of the Parties.
10.7 Compliance with Legal Requirements. Each Party shall cooperate in
taking whatever action may be required to comply with all Legal Requirements of
any Governmental Authority having jurisdiction over the GTC Tariff in accordance
with Prudent Utility Practice.
10.8 Severability. If any part of any provision of the GTC Tariff,
this Agreement, and any other agreement, document, or writing given pursuant to
or in connection with such tariffs, agreements and schedules shall be invalid or
unenforceable under applicable law, said part shall be
- 17 -
ineffective to the extent of such invalidity only, without in any way affecting
the remaining parts of said provision or the remaining provisions.
10.9 Third-Party Beneficiaries.
10.9.1 No Third-Party Beneficiaries. This Agreement is intended
solely for the benefit of the Parties, and nothing in the GTC Tariff or this
Agreement will be construed to create any duty to, or standard of care with
reference to, or any liability to, any person not a Party hereto.
10.9.2 Enforcement. It is the intention of the Parties that no
person or entity other than the Parties shall have any right to bring any action
to enforce any provision of the GTC Tariff, this Agreement, and related
agreements against either of the Parties, and that the covenants, undertakings
and agreements set forth in the aforementioned documents shall be solely for the
benefit of, and shall be enforceable only by, the Parties or their respective
permitted successors and assigns.
10.9.3 Responsibility of Parties. Each of the Parties will be
responsible for its own conduct and neither will be responsible for the conduct
of the other. The GTC Tariff and this Agreement do not create a contractual
relationship or duty of GTC with or to the customers of the Transmission
Customer.
10.10 No Dedication of Facilities. GTC's agreement to provide service
under the provisions of the GTC Tariff or this Agreement shall not constitute
the dedication of GTC's electric system or the ITS, or any portion thereof, to
the Transmission Customer or the public. GTC's obligations to the Transmission
Customer under any provisions of the GTC Tariff or this Agreement will cease
upon termination of the GTC Tariff or the Agreement. GTC's provision of service
under the GTC Tariff or this Agreement does not constitute a sale, lease,
rental, transfer, or conveyance of an ownership interest in or to any facilities
of any kind.
10.11 Action by Affiliates. Failure by either Party to perform fully
any obligation required by the GTC Tariff, this Agreement, and any related
agreements, shall not be excused by reason of the fact that such performance was
prevented by any action or inaction of an Affiliate unless such Affiliate's
actions or inactions are the result of a Force Majeure or are taken pursuant to
the GTC Tariff and are not unduly discriminatory.
10.12 Independent Contractors. The Parties to this Agreement are
independent contractors, and nothing contained in the GTC Tariff, the Service
Schedules, or the Agreement will be deemed to create an association, joint
venture, partnership, principal-agent or any other kind of fiduciary
relationship between the Parties.
10.13 Rules of Construction.
- 18 -
10.13.1 Headings. The descriptive headings of the various
articles, sections and subsections of the GTC Tariff have been inserted for
convenience of reference only and should not be construed as to define, expand,
or restrict the rights and obligations of the Parties.
10.13.2 Including. Wherever the term "including" is used in the
GTC Tariff or the Service Schedules, such term shall not be construed as
limiting the generality of any statement, clause, phrase or term.
10.13.3 Singular and Plural. The terms defined in the GTC Tariff
and this Agreement shall be applicable to the plural as well as the singular and
the singular as well as the plural.
10.13.4 Time of the Essence. Time is of the essence in the
performance of the obligations set forth in the GTC Tariff, the Service
Schedules and this Agreement.
10.14 Survival. The applicable provisions of the GTC Tariff and this
Agreement will continue in effect after termination or cancellation of the GTC
Tariff or this Agreement to the extent necessary to provide for final billing,
billing adjustments and payments, and with respect to liability and
indemnification from acts or events that occurred while the GTC Tariff and this
Agreement were in effect.
10.15 Amendments. No amendment to this Agreement shall be effective
unless it is in writing, executed by both Parties, and has been approved or
accepted for filing and permitted to go into effect by any Governmental
Authority having jurisdiction. Changes to the GTC Tariff shall be effective as
to the Transmission Customer when approved by GTC and not prohibited by the
express provisions of this Agreement.
10.16 Relationship of GTC to Transmission Customer. GTC and the
Transmission Customer shall each furnish to the other promptly upon request any
and all information about itself, its financial condition, business and
properties which may be necessary or desirable to facilitate any financing
undertaken by the requesting Party or any continuing disclosure obligation
incurred by the requesting Party in connection with any such financing. The
supplying Party shall be responsible only to the requesting Party for the
accuracy and completeness of the information furnished and shall have no
responsibility or liability for the manner in which such information is used or
its appropriateness for such use. The supplying Party shall have no liability to
any third party to which the requesting Party may furnish this information or
any excerpt therefrom or summary thereof, and shall be entitled to receive
appropriate assurances and indemnities from the requesting Party to that effect
as a condition to providing such information, provided that no such assurance or
indemnity shall relieve the supplying Party of liability to the requesting Party
for the accuracy and completeness of the information supplied.
10.17 Transmission Customer's Information Obligations. The
Transmission Customer is obligated to provide GTC or its agent information
concerning all transmissions of
- 19 -
energy into, out of or across the Transmission System by or on behalf of the
Transmission Customer in a manner consistent with all NERC and SERC guidelines,
and in such detail and upon such frequency as GTC or its agent reasonably
requests in connection with those services furnished by GTC to the Transmission
Customer pursuant to the GTC Tariff.
10.18 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties hereto relating to the subject matter contemplated
by this Agreement and supersedes all prior agreements, whether oral or written.
The GTC Tariff is incorporated herein by reference. All exhibits attached hereto
are incorporated herein by reference.
10.19 Retail Distribution. GTC shall not, without the consent of the
Transmission Customer, voluntarily provide transmission service directly to
retail customers within the Transmission Customer's assigned geographic area (if
any) established in accordance with the Georgia Territorial Electric Service
Act, as such statute may be amended or replaced (i) if such service is to
deliver capacity or energy for the retail customer's own use and (ii) if FERC
could not order such service as the result of Section 212(b)(2) of the Federal
Power Act. GTC may, however, provide such service if it is otherwise required by
state or federal law or is provided to an electric utility, as defined in the
Federal Power Act, for such utility's own use. GTC shall be deemed in compliance
with this Section 10.19 if it acts in reliance upon an opinion of its counsel to
the effect that GTC is required by law to provide the service in question or the
service in question is not a violation of this Section 10.19.
10.20 Periodic Review of Scheduling Procedures. GTC shall periodically
review the times for scheduling set forth in the GTC Tariff and shall amend the
GTC Tariff if necessary to keep such times consistent with times for scheduling
that are generally accepted in the region and with Prudent Utility Practice.
(Signatures on next page.)
- 20 -
IN WITNESS WHEREOF, GTC and the Transmission Customer have caused this
Agreement to be executed, attested, sealed and delivered by their respective
duly authorized officers as of the day and year first written above.
GTC:
GEORGIA TRANSMISSION CORPORATION
(An Electric Membership Corporation)
[CORPORATE SEAL] By: /s/ G. Stanley Hill
---------------------------------------
G. Stanley Hill
Interim Chief Operating Officer
ATTEST:
By: /s/ Patricia N. Nash
-----------------------------
Patricia N. Nash
Assistant Secretary
Transmission Customer:
OGLETHORPE POWER CORPORATION
(An Electric Membership Generation &
Transmission Corporation)
[CORPORATE SEAL] By: /s/ T. D. Kilgore
---------------------------------------
T. D. Kilgore
President and Chief Executive Officer
ATTEST:
By: /s/ Patricia N. Nash
-----------------------------
Patricia N. Nash
Assistant Secretary
- 21 -
Exhibit A
Definitions
"Accounting Requirements" shall mean the requirements of any system of
accounts prescribed by the RUS as long as the Government is the holder, insurer
or guarantor of any indebtedness of the Transmission Customer or, in the absence
thereof, the requirements of generally accepted accounting principles applicable
from time to time to companies similar to the Transmission Customer.
"Additional Term" is either the First Additional Term or the Second
Additional Term.
"Administrator" shall be as defined in the fifth Recital.
"Affiliate" shall mean (1) for any exempt wholesale generator, as defined
under Section 32(a) of the Public Utility Holding Company Act of 1935, as
amended, the same as provided in Section 214 of the Federal Power Act; and (2)
for any other entity, the same as provided in 18 CFR ss. 161.2(a), not including
a GTC Member.
"Agreement" shall be as defined in the first sentence of this Agreement.
"Ancillary Services" means those ancillary services that are necessary to
support the transmission of energy from resources to loads while maintaining
reliable operation of the Transmission System in accordance with Prudent Utility
Practice.
"Assignment for Security" shall be as defined in Section 7.2.2.
"Assumed Obligations" shall be as defined in the fifth Recital.
"Bankruptcy Proceeding" means, with respect to a Party, that such Party (i)
makes any general assignment or any general arrangement for the benefit of
creditors, (ii) files a petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy or similar law for the protection of creditors, or has such a
petition involuntarily filed against it and such petition is not withdrawn or
dismissed within 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.
"Contract Year" means January 1 through December 31 of each calendar year.
"Conveyance" shall be as defined in Section 7.1.3.
"Debt Service Coverage Ratio" shall mean the ratio determined as follows:
for each calendar year add (i) Patronage Capital or Margins, (ii) Interest
Expense, and (iii) Depreciation and Amortization Expense and divide the total so
obtained by an amount equal to the sum of all
- A-1 -
payments of principal and interest required to be made on account of Long-Term
Debt during such calendar year; provided, however, that in the event that any
Long-Term Debt has been refinanced during such year, the payments of principal
and interest required to be made during such year on account of such Long-Term
Debt shall be based (in lieu of actual payments required to be made on such
refinanced debt) upon the larger of (y) an annualization of the payments
required to be made with respect to the refinancing debt during the portion of
such year such refinancing debt is outstanding, or (z) the payment of principal
and interest required to be made during the following year on account of such
refinancing debt, all as computed in accordance with Accounting Requirements.
"Depreciation and Amortization Expense" shall mean an amount constituting
the depreciation and amortization, as computed pursuant to Accounting
Requirements.
"Delivery Point" means the interconnection between the Transmission System
or the ITS and the transmission, sub-transmission, or distribution system of an
adjoining utility or entity (whether the Transmission Customer or its designee)
at which GTC is to deliver capacity or energy pursuant to the GTC Tariff and
which shall be specified in a Service Agreement.
"Designated Agent" means any entity that performs actions or functions on
behalf of GTC or the Transmission Customer required under the GTC Tariff.
"Direct Assignment Facilities" means facilities that are constructed by GTC
to facilitate a specific request for service under the GTC Tariff, with costs
that are directly assigned to the Transmission Customer requesting the service.
Direct Assignment Facilities shall be specified in the Service Agreement that
governs service to the Transmission Customer.
"Effective Date" shall be as defined in Section 8.1.1.
"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.
"Equity" shall mean the total equities and margins (or, if not a
cooperative, equity), excluding Regulatory Assets, as computed pursuant to
Accounting Requirements.
"Facilities Study" means an engineering study conducted by GTC to determine
the required modifications to GTC's Transmission System, including the cost and
scheduled completion date for such modifications, that will be required to
provide a requested Transmission Service, to add a new Transmission Customer of
Network Transmission Service, to add a new Member System, or to add a Network
Resource in accordance with the results of a System Impact Study.
"FERC" means the Federal Energy Regulatory Commission or any Governmental
Authority preceding or succeeding to the power and functions thereof under the
Federal Power Act.
- A-2 -
"Firm Transmission Service" means any class of transmission service
provided to the Transmission Customer under the GTC Tariff under Service
Schedule A: Long-Term Firm Transmission Service, Service Schedule B: Short-Term
Firm Transmission Service, Service Schedule C: Peak Period Firm Transmission
Service, or any similar service schedule subsequently incorporated into the GTC
Tariff. Firm Network Integration Transmission Service is also a form of Firm
Transmission Service.
"First Additional Term" is defined in Section 8.1.2 of this Agreement.
"Force Majeure" means the occurrence or non-occurrence of any act or event
that could not reasonably have been expected and avoided by exercise of due
diligence and foresight and such act or event is beyond the reasonable control
of the Party relying thereon as justification for not performing an obligation
or complying with any condition required of such Party (or such Party's
contractors, subcontractors, or agents) pursuant to the GTC Tariff and Service
Agreement.
"Future Obligations" shall be as defined in the sixth Recital.
"Georgia Territory" means the area within (i) the State of Georgia (other
than in Chatham, Effingham, Fannin, Towns and Union Counties), or (ii) such
other counties inside or outside the State of Georgia if approved by the Joint
Committee for Planning and Operations of the Integrated Transmission System.
"Government" shall be as defined in the fifth Recital.
"Governmental Authority" means any local, state, regional, federal, or
national administrative, legal, judicial, or executive agency, commission,
department, or other governmental entity.
"GTC" shall be as defined in the first sentence of this Agreement.
"GTC Member" means OPC and any electric membership corporation that is
presently a member of GTC and was a member of OPC as of January 1, 1996.
"GTC Tariff" shall be as defined in the fourth Recital.
"GTC Transaction" shall be as defined in Section 7.2.3.
"Indebtedness" shall mean
(1) debt incurred or assumed by GTC for borrowed money or for the
acquisition, construction or improvement of property other than goods or
services that are acquired in the ordinary course of business of GTC;
- A-3 -
(2) lease obligations of GTC that, in accordance with generally
accepted accounting principles are shown on the liability side of a balance
sheet;
(3) all debt (other than indebtedness otherwise treated as
Indebtedness hereunder) for borrowed money or the acquisition, construction
or improvement of property or capitalized lease obligations guaranteed,
directly or indirectly, in any manner by GTC, or in effect guaranteed,
directly or indirectly, by GTC through an agreement, contingent or
otherwise, to purchase any such indebtedness or to advance or supply funds
for the payment or purchase of any such indebtedness or to purchase
property or services primarily for the purpose of enabling the debtor or
seller to make payment of such indebtedness, or to insure the owner of the
indebtedness against loss, or to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether or not such property is delivered or such
services are rendered), or otherwise; or
(4) any agreement by GTC to purchase or lease power, supplies,
property or services primarily for the purpose of enabling a debtor or
seller to make payment of debt service on indebtedness, pursuant to which
GTC agrees to pay for power, supplies, property or services irrespective of
whether or not such power, supplies or property are delivered or such
services are rendered.
"Initial Term" is defined in Section 8.1.2 of this Agreement.
"Integrated Transmission System" or "ITS" means the aggregate transmission
facilities as defined in the Integrated Transmission System Agreement.
"Integrated Transmission System Agreement" or "ITSA" means the Revised and
Restated Integrated Transmission System Agreement between GTC (as assignee of
Oglethorpe Power Corporation) and Georgia Power Company, dated as of November
12, 1990, and accepted for filing by FERC in Georgia Power Company Docket No.
ER91-171-000, 57 FERC P. 61,087, order on reh'g, 57 FERC P. 61,353 (1991), as
the same may be hereafter amended, supplemented or substituted by the parties to
such agreement from time to time.
"Interest Expense" shall mean an amount constituting the interest expense
on Long-Term Debt, as computed in accordance with Accounting Requirements.
"Interest Rate" means that rate calculated in accordance with the
methodology specified for interest on refunds in FERC's regulations at 18 C.F.R.
ss. 35.19a(a)(2)(iii).
"Legal Proceeding" means any suit, proceeding, judgment, ruling or order by
or before any court or any governmental authority.
"Long-Term Debt" shall mean an amount constituting long-term debt, as
computed in accordance with Accounting Requirements.
- A-4 -
"Member System" means an Eligible Customer operating as part of a lawful
combination, partnership, association or joint action agency composed
exclusively of Eligible Customers.
"Member Transaction" shall be as defined in Section 7.1.2.
"Native Load Customers" means for GTC the GTC Members and their wholesale
and retail customers and means for the Transmission Customer those wholesale and
retail customers (if any), in either case, on whose behalf the Transmission
Customer, by statute, franchise, regulatory requirement or contract, has an
obligation to construct and operate its system reliably to meet the electric
needs of such customers, namely, the Rocky Mountain Power Plant, the OPC
headquarters buildings and any other facility that may be added in the future.
"NERC" means the North American Electric Reliability Council or any
organization succeeding to the function thereof.
"Net Utility Plant" shall mean the amount constituting the Total Utility
Plant of the Transferee, less depreciation and amortization, computed in
accordance with Accounting Requirements.
"Network Integration Transmission Service" or "Network Transmission
Service" means that service that allows a Transmission Customer to integrate,
plan, economically dispatch and regulate its Network Resources to serve its
Network Load in a manner comparable to that in which GTC utilizes its
Transmission System to serve its Native Load Customers; it also may be used by a
Transmission Customer to deliver non-firm energy purchases to its Network Load
without additional charge.
"Network Load" means the designated load of a Transmission Customer,
including the entire load of all Member Systems designated pursuant to Section
29 of the GTC Tariff, as measured at the Delivery Points. A Transmission
Customer's Network Load shall not be reduced to reflect any portion of such load
served by the output of any generating facilities owned, or generation
purchased, by the Transmission Customer or its Member Systems.
"Network Resource" means any owned or purchased generating resource or load
management device controlled or operated by GTC or its Designated Agent that is
located in the Georgia Territory or connected to the electric system of any
Transmission Customer or any Member System, with the exception of any resource,
or any portion thereof, that is committed for sale to third parties or otherwise
cannot be called upon by GTC to meet a Transmission Customer's Network Load on a
non-interruptible basis. A Transmission Customer also may designate as a Network
Resource a generating resource (or portion thereof) located in another Control
Area or power purchased by a Transmission Customer from generation located in
another Control Area, to the extent that such generating resource or purchased
power is available and may be called on to meet a Transmission Customer's
Network Load on a non-interruptible basis.
- A-5 -
"Non-Firm Transmission Service" means transmission service set forth and
described in Service Schedule D attached to the GTC Tariff.
"Notes" shall be as defined in the fifth Recital.
"Off-System Transaction" means any single energy transaction between the
Transmission Customer and another person or entity, pursuant to which the
Transmission Customer either:
(a) delivers energy, or causes or allows energy to be delivered, to a
destination that is (i) not served by the ITS or (ii) is located outside of
the Southern Control Area;
(b) takes energy, or causes or allows energy to be taken into the ITS,
from a generation facility or other resources that is (i) not
interconnected with the ITS or (ii) located outside of the Southern Control
Area; or
(c) provides, or causes or allows to be provided, transmission service
into, out of or across the ITS.
"OPC" shall be as defined in the first sentence of this Agreement.
"Party" shall mean GTC or the Transmission Customer, individually;
"Parties" shall mean GTC and the Transmission Customer, collectively.
"Patronage Capital or Margins" shall mean the amount of net patronage
capital and margins (or, if not a cooperative, net income), as computed in
accordance with Accounting Requirements.
"Payment Default" shall be as defined in Section 6.1.1 or where the context
requires similar payment default by another of the GTC Members or other
customers of GTC.
"Performance Default" shall be as defined in Section 6.1.6 of this
Agreement.
"Person" shall mean an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Point-To-Point Transmission Service" shall mean the reservation and
transmission of capacity and energy on either a firm or non-firm basis from the
Point(s) of Receipt to the Point(s) of Delivery under Part II of the GTC Tariff.
"Prudent Utility Practice" shall mean at a particular time any of the
practices, methods and acts engaged in or approved by a significant portion of
the electric utility industry prior to such time, or any of the practices,
methods and acts which, in the exercise of reasonable judgment in light of the
facts known at the time the decision was made, could have been expected to
accomplish the
- A-6 -
desired result at reasonable cost consistent with good business practices,
reliability, safety, and expedition. Prudent Utility Practice is not intended to
be limited to the optimum practice, method, or act, to the exclusion of all
others, but rather to be a spectrum of possible practices, methods, or acts
expected to accomplish the desired results, having due regard for, among other
things, manufacturers' warranties and the requirements of Governmental
Authorities of competent jurisdiction and the requirements of the GTC Tariff.
"RE Act" shall be as defined in the ninth Recital.
"RUS" shall be as defined in the third Recital.
"Receipt Point" means the interconnection between the Transmission System
or the ITS and the transmission, sub-transmission, or distribution system of an
adjoining utility or entity (whether the Transmission Customer or its designee)
at which GTC is to receive capacity or energy pursuant to the GTC Tariff and
which shall be specified in this Agreement.
"Regulatory Asset" shall mean the sum of any amounts properly recordable as
unrecovered plant and regulatory study costs or as other regulatory assets, as
computed in accordance with Accounting Requirements.
"SERC" means the Southeastern Electric Reliability Council or any regional
organization succeeding to the function thereof in which GTC participates.
"Second Additional Term" is defined in Section 8.1.2 of this Agreement.
"Secured Obligations" shall be as defined in the seventh Recital.
"Service" means service provided by GTC to the Transmission Customer
pursuant to the GTC Tariff.
"Service Agreement" means the initial agreement and any supplements thereto
entered into by the Transmission Customer and GTC for Services under the GTC
Tariff.
"Service Schedules" means the schedules attached to the GTC Tariff and
incorporated herein, which schedules set forth the Services available under the
GTC Tariff.
"Times Interest Earned Ratio" shall mean the ratio determined as follows:
For each calendar year add (i) Patronage Capital or Margins and (ii) Interest
Expense on Long-Term Debt, and divide the total so obtained by Interest Expense
on Long-Term Debt, all as computed in accordance with Accounting Requirements.
"Total Assets" shall mean an amount constituting the total assets, but
excluding any Regulatory Assets, as computed in accordance with Accounting
Requirements.
- A-7 -
"Total Utility Plant" shall mean the amount constituting the total utility
plant (gross) of the Transferee computed in accordance with Accounting
Requirements.
"Transfer Capability" means the amount of capacity or energy that can be
delivered from the ITS to the transmission system of an interconnected utility
or transferred from the transmission system of an interconnected utility to the
ITS, as determined in accordance with the ITSA.
"Transferee" shall mean the Person formed by any consolidation or that
is the survivor of any merger or reorganization or the Person that acquires or
leases all or substantially all of the electric assets of the Transmission
Customer.
"Transmission Customer" shall be as defined in the first sentence of this
Agreement.
"Transmission Power Delivery Capacity Requirement" means the Transmission
Customer's average demand under this Agreement coincident with GTC's five (5)
highest non-holiday, weekday demands occurring during the preceding twelve (12)
months ending September 30.
"Transmission Service" means Network Transmission Service or Point-To-Point
Transmission Service provided by GTC to the Transmission Customer under the GTC
Tariff.
"Transmission System" means the facilities owned, controlled, operated, or
supported by GTC and, if applicable, the Transmission Customer (including
control arising through contractual rights to obtain service) that are used to
provide transmission service under the GTC Tariff.
"Trust Indenture" shall be as defined in the seventh Recital.
- A-8 -
Exhibit B
Service Specifications
Network Integration Transmission Service Specifications
I. The Transmission Customer agrees to purchase, and GTC agrees to provide,
Network Integration Transmission Service in accordance with the GTC Tariff
and the Agreement.
II. The Transmission Customer shall provide the following information for
Network Integration Transmission Service:
A. Network Resources
Resource Capacity Capacity Designated as Network Resource
See Exhibit B-1A, Existing Resources - Applicable to Sales to Members, for
a complete listing of all resources and capacities.
All capacities, at this time, are designated as Network Resource.
B. Network Loads
Load Transmission Voltage Level Meter
See Exhibit B-2 for a complete listing of all (distribution) loads.
Substations with the designation for that Transmission Customer will constitute
the list of loads for that Transmission Customer. At this time, all Network
loads are limited to metering points on the attached Exhibit B- 2.
C. Point(s) of Receipt and Delivering Party
The Points of Receipt are the high side of the step-up transformers of each
Network Resource listed in Exhibit B-1A that is owned or purchased by the
Transmission Customer.
D. Point(s) of Delivery and Receiving Party
The Points of Delivery are the substations and/or feeder(s) for that
Transmission Customer listed in Exhibit B-2 for that Customer. The Receiving
Party for each Point of Delivery is the Transmission Customer.
E. Reserved Capacity
There is no reserved capacity, at this time, for the Transmission Customer.
- B-1 -
F. Direct Assignment Facilities
There are no Direct Assignment Facilities, at this time, for the
Transmission Customer. The Distribution Substation Charge will be determined as
an allocated portion of the cost of all distribution substation facilities,
serving a Transmission Customer's system load and not owned by the Transmission
Customer.
G. Name(s) of Intervening Systems Providing Transmission Service
There are no intervening systems, at this time, providing any Transmission
Service for the Transmission Customer.
III. Other material terms:
Service shall begin as of the Effective Date. The Transmission Customer may
modify this list to reflect changes in accordance with this Agreement. Errors in
the above listings are assumed to be corrected and will neither increase nor
decrease the true and correct network resource rights or responsibilities of the
Transmission Customer. The Transmission Customer should provide to GTC the
correct data for these Exhibits if errors are discovered.
GTC:
GEORGIA TRANSMISSION CORPORATION
(An Electric Membership Corporation)
By: /s/ G. Stanley Hill
------------------------------------------
Name: G. Stanley Hill
-------------------------------------
Title: Interim Chief Operating Officer
------------------------------------
Transmission Customer:
Oglethorpe Power Corporation
(An Electric Membership Generation &
Transmission Corporation)
By: /s/ T. D. Kilgore
--------------------------------------------
Name: T. D. Kilgore
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
- B-2 -
Exhibit B-1A
Existing Resources - Applicable to Sales to Members
Original Scheduled Year
Nameplate Original of Retirement
Name Type Capacity Useful Life or Expiration
- ---- ---- -------- ----------- -------------
Owned Resources
- ---------------
Harrison Dam Hydro 2 50 2023
Hatch 1 Nuclear 243 40 2014
Hatch 2 Nuclear 246 40 2018
Rocky Mountain 1 PS Hydro 211 50 2027
Rocky Mountain 2 PS Hydro 211 50 2027
Rocky Mountain 3 PS Hydro 211 50 2027
Scherer 1 Coal 491 55 2022
Scherer 2 Coal 491 55 2024
Vogtle 1 Nuclear 348 40 2026
Vogtle 2 Nuclear 348 40 2028
Wansley 1 Coal 260 55 2016
Wansley 2 Coal 260 55 2018
Wansley CT Oil 15 38 2009
Purchased Resources
- -------------------
Entergy 100 10 2002
Big Rivers 100 10 2002
Georgia Power BPSA Block 1 250 12 2003
Block 2 250 12 2003
Block 3 250 5 1996
Block 4 250 6 1997
Block 5 125 12 2003
Block 6 125 12 2003
Hartwell 1 150 25 2019
Hartwell 2 150 25 2019
1997 Bridge Capacity Purchase 50 1 1997
1998 Bridge Capacity Purchase 275 1 1998
Other Independent Power Producers (1) 27 Various Various
Sales
- -----
AEC Capacity Sale (100) 7 2005
Colquitt Member/Sterling Chemical(2) (1) 10 2006
Notes: (1) Other Independent Power Producers are: Southeast Paper, Weyerhaeuser,
Southwire, Spartan Mills, Bio-Energy Partners, and Herschel Webster (2) Capacity
represents firm demand. Total demand is limited to 100 MW.
- B-3 -
Exhibit B-2
Power XFMR
Capacity
Transmission Voltage (MVA)
Customer Meter No. Metering Point Name kV) (Base/Max.)
- -------- --------- ------------------- --- -----------
Oglethorpe N/A OPC Headquarters Bldg. 25 kV N/A
Oglethorpe N/A Rocky Mountain HQ 12 kV ` N/A
- B-4 -
Point-To-Point Transmission Service Specifications
I. The Transmission Customer agrees to purchase, and GTC agrees to provide,
the following Point-To-Point Transmission Services in accordance with the
GTC Tariff and the Agreement (check all that apply):
A. Long-Term Firm Point-To-Point Transmission Service _____
B. Short-Term Firm Point-To-Point Transmission Service _____
C. Peak Period Point-To-Point Transmission Service _____
D. Non-Firm Point-To-Point Transmission Service _____
II. The Transmission Customer shall provide the following information for the
Point-To-Point Transmission Services identified above:
A. Point(s) of Receipt and Delivering Party
B. Point(s) of Delivery and Receiving Party
C. Reserved Capacity
D. Direct Assignment Facilities
E. Name(s) of Intervening Systems Providing Transmission Service
III. Other material terms:
- B-5 -
IV. Terms of individual transactions to be confirmed on the attached
Confirmation.
GTC:
GEORGIA TRANSMISSION CORPORATION
(An Electric Membership Corporation)
By:
-----------------------------------------------
Transmission Customer:
Oglethorpe Power Corporation
(An Electric Membership Generation & Transmission
Corporation)
By:
-----------------------------------------------
- B-6 -
Ancillary Service Specifications
I. The Transmission Customer agrees to purchase, and GTC agrees to provide, the
following Ancillary Services in accordance with the GTC Tariff and the Agreement
(check all that apply):
A. Scheduling, System Control and Dispatch Service -----
B. Reactive Supply and Voltage Control from
Generation Sources Service -----
C. Regulation and Frequency Response Service -----
D. Energy Imbalance Service
E. Operating Reserve - Spinning Reserve Service -----
F. Operating Reserve - Supplemental Reserve Service -----
II. Other material terms:
III. Terms of individual transactions to be confirmed on the attached
Confirmation.
GTC:
GEORGIA TRANSMISSION CORPORATION
(An Electric Membership Corporation)
By:
-----------------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Transmission Customer:
Oglethorpe Power Corporation
(An Electric Membership Generation & Transmission
Corporation)
By:
-----------------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
- B-7 -
CONFIRMATION OF TRANSMISSION TRANSACTION
Dated______________, 199___
Pursuant to the Member Transmission Service Agreement, dated March 1, 1997,
between Georgia Transmission Corporation (An Elictric Membership Corporation)
("GTC") and Oglethorpe Power Corporation (An Electric Membership Generation &
Transmission Corporation) ("Transmission Customer"), this Confirmation sets
forth the specific terms of the individual transaction agreed to by
representatives of the parties on __________________, 199___.
GTC Transmission Customer
Attn.: ------------- Attn.: -------------
Tel.: ------------- Tel.: -------------
Fax: ------------- Fax: -------------
Type of Service:
---------------------------------
Duration: [date/time] through [date/time]
----------- -------------
Hours:
---------------------------------
Quantity:
Capacity:
---------------------------------
Energy:
---------------------------------
Rates:
---------------------------------
Delivery Point(s):
---------------------------------
Receiving Party(ies):
---------------------------------
Receipt Point(s):
---------------------------------
Delivering Party(ies):
---------------------------------
Special Terms:
AGREED:
GTC Transmission Customer
By: By:
--------------------------- ----------------------------
NOTICE: IF THE PARTY RECEIVING THIS CONFIRMATION DISAGREES WITH ANY OF THE TERMS
SUMMARIZED HEREIN, IT SHALL PROMPTLY NOTIFY THE SENDING PARTY BY TELEPHONE AND
FACSIMILE TRANSMISSION. FAILURE BY THE RECIPIENT TO EXECUTE AND RETURN THIS
CONFIRMATION OR TO NOTIFY SENDER OF ITS DISAGREEMENT WITHIN ONE BUSINESS DAY OF
RECEIVING THIS CONFIRMATION CONSTITUTES THE RECIPIENT'S AGREEMENT TO THE TERMS
SET FORTH HEREIN.
- B-8 -