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EXHIBIT 10.29
INTALCO ALUMINUM CORPORATION
AND
BRITISH COLUMBIA
POWER EXCHANGE CORPORATION
POWER SALE AGREEMENT
1995
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR ALL MARKED PORTIONS CONTAINED
HEREIN. SUCH PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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TABLE OF CONTENTS
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1. DEFINITIONS..............................................................................................1
2. TERM.....................................................................................................4
3. POWER SALE...............................................................................................4
4. NON-FIRM POWER OPTION....................................................................................6
5. INTEGRATED RESOURCES.....................................................................................8
6. SCHEDULING...............................................................................................8
7. LOAD CONTROL AREA SERVICES..............................................................................10
* * .......................................................................................12
9. POINT OF DELIVERY.......................................................................................14
10. TRANSMISSION REQUIREMENTS...............................................................................15
11. PAYMENTS................................................................................................17
12. FORCE MAJEURE...........................................................................................22
13. CURTAILMENTS............................................................................................24
14. REMARKETING OPTION......................................................................................24
15. AUTHORIZED REPRESENTATIVE...............................................................................26
16. ARBITRATION.............................................................................................26
17. ASSIGNMENT OF AGREEMENT AND MERGER......................................................................29
18. NOTICES.................................................................................................29
19. APPROVALS...............................................................................................30
20. LIABILITY FOR BREACH....................................................................................31
21. EVENTS OF DEFAULT AND TERMINATION.......................................................................34
22. REPRESENTATIONS AND WARRANTIES..........................................................................36
23. WAIVERS.................................................................................................36
24. ENTIRE AGREEMENT AND AMENDMENT..........................................................................37
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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25. GOVERNING LAW...........................................................................................37
26. SEVERABILITY............................................................................................37
27. WAIVER OF SOVEREIGN IMMUNITY............................................................................37
28. CONFIDENTIALITY.........................................................................................37
29. SIGNATURE CLAUSE........................................................................................38
APPENDIX A
APPENDIX B
APPENDIX C
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This Agreement is entered into as of the 1st day of October, 1995 by
and between British Columbia Power Exchange Corporation ("Powerex"), a British
Columbia corporation and Intalco Aluminum Corporation ("Intalco"), a Delaware
corporation. Intalco and Powerex are hereinafter sometimes referred to
individually as "Party" and collectively as "Parties".
R E C I T A L S
WHEREAS Intalco is a wholly owned subsidiary of Alumax Inc., an
integrated producer of aluminum products, and operates the aluminum smelter at
Ferndale, WA.; and
WHEREAS the smelter at Ferndale, WA is majority owned indirectly by
Alumax Inc. with the parent companies of the other owners, including Mitsui and
Co., Ltd., Tostem Corporation and Yoshida Kogyo KK (collectively, the "Owners");
and
WHEREAS Powerex has agreed to deliver and sell, and Intalco has agreed
to receive and purchase at the Point of Delivery, Firm Power and LCA Services to
Intalco's full load during the Term of this Agreement, under the terms and
conditions contained herein; and
WHEREAS Powerex and Intalco wish to enter into a long term power
(twenty year) supply relationship but require further negotiation and approvals
before agreement on a sale of Firm Power for longer than 5 years;
NOW THEREFORE, the Parties agree as follows:
1. DEFINITIONS
Whenever used in this Agreement, the following terms, when capitalized,
shall have the meanings set out in this Section 1. The singular of any
definition shall include the plural and the plural shall include the
singular.
1.1. AGREEMENT
This Power Sale Agreement as it may be amended.
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1.2. AUTHORIZED REPRESENTATIVE
The representative designated by each Party pursuant to
Section 15 to act on that Party's behalf with respect to those
matters specified in this Agreement to be the functions of the
Authorized Representative.
1.3. BC HYDRO
British Columbia Hydro and Power Authority and its
successors or assigns.
1.4. BPA
The Bonneville Power Administration and its successors or
assigns.
1.5. CONTRACT YEAR
The 12-month period beginning on October 1 and ending
September 30.
1.6. CUSTER SUBSTATION
The 500 kV bus at BPA's Custer substation.
1.7. DELIVERED DEMAND
The maximum rate of delivery of Firm Power to Intalco at the
Point of Delivery as specified in subsection 3.2.2.
1.8. DELIVERED QUANTITY
The monthly quantity of Firm Power to be delivered to and
accepted by Intalco at the Point of Delivery as specified in
subsection 3.2.1.
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1.9. FIRM POWER
Firm capacity and firm energy including Nonfirm Power, except
where the context of Section 4 may require a distinction, to
be sold by Powerex to Intalco pursuant to this Agreement.
1.10. INTALCO SUBSTATION
The 13.8 kV bus at the Intalco substation in existence on the
date of execution of this Agreement or such other point of
interconnection with Intalco's smelter as the Parties may
agree.
1.11. LCA SERVICES
The load control area services to be provided by
Powerex to Intalco as described in Section 7.
1.12. PACIFIC TIME
The time prevailing in Portland, Oregon, on the date in
question. In this Agreement, all times are given as Pacific
Time.
1.13. POINT OF DELIVERY
The location for delivery of Firm Power as specified
in Section 9.
1.14. TERM
The term of this Agreement as defined in Section 2.2.
1.15. TRANSMISSION AGREEMENT
The transmission agreement with BPA providing for delivery of
the Delivered Quantity from the Point of Delivery to the
Custer Substation as referred to in Section 10.1.
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1.16. In this Agreement, all monetary amounts, including mills, are
referred to and are stated in United States currency.
2. TERM
2.1. The Parties agree that delivery of Firm Power under this
Agreement commenced on October 1, 1995, notwithstanding the
actual date of execution of this Agreement. Upon execution of
this Agreement, its terms shall govern deliveries of Firm
Power initially made pursuant to a letter agreement between
the Parties dated September 29, 1995 and any subsequent short
term delivery arrangements and the Parties shall make
appropriate adjusting payments.
2.2. The Term of this Agreement commenced at 0000 hours Pacific
Time on October 1, 1995 and will continue until 2400 hours
Pacific Time on September 30, 2000, unless terminated earlier
as provided in this Agreement. All liabilities accrued under
this Agreement prior to termination shall be preserved until
satisfied.
3. POWER SALE
3.1. FIRM POWER
Subject to and in accordance with the terms of this Agreement
and for the duration of the Term, Powerex shall deliver and
sell and Intalco shall accept and purchase Firm Power at the
Delivered Demand rate and in the Delivered Quantity amount.
3.2. DELIVERED QUANTITY AND DELIVERED DEMAND
3.2.1. DELIVERED QUANTITY
The monthly Delivered Quantity in MWh for
the Term shall be:
CONTRACT YEAR CONTRACT YEAR CONTRACT YEAR
1 2,3 & 4 5
Oct. * * *
Nov. * * *
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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Dec * * *
Jan * * *
Feb * * *
Mar * * *
Apr * * *
May * * *
Jun * * *
Jul * * *
Aug * * *
Sept * * *
plus an amount equal to the transmission losses from
the Custer Substation to the Intalco Substation.
3.2.2. DELIVERED DEMAND
The Delivered Demand for the Term shall be:
Oct. 1, 1995 to March 31, 1996 - *
Apr. 1, 1996 to Sept. 30, 2000 - *
plus an amount necessary to deliver transmission
losses from the Custer Substation to the Intalco
Substation, except for the period April 16 to July 15
inclusive in each Contract Year when the Delivered
Demand shall be *
3.3. REDUCED CONTRACT YEAR
If the last Contract Year of this Agreement is less than 365
days (366 days in the case of Contract Year 5), the Delivered
Quantity for that Contract Year shall be reduced in
proportion to the number of days that Contract Year is less
than 365 (or 366 days in the case of Contract Year 5).
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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4. NON-FIRM POWER OPTION
4.1. POTLINE INTERRUPTION TESTS
Intalco may elect to perform experiments to determine the
ability of the potlines to withstand temporary interruptions
of power supply. Powerex shall co-operate on a reasonable
efforts basis with Intalco in the performance of such tests,
provided there is no material unreimbursed cost to Powerex as
a result.
Following the performance of such tests and thereafter no more
than once each Contract Year, Intalco shall advise Powerex of
the duration and frequency of permitted curtailments, if any,
under which Intalco would be willing to accept Nonfirm Power
and the quantity of Nonfirm Power Intalco would be willing to
accept. Based on this information Powerex shall determine and
offer Intalco a price for Nonfirm Power for the following
Contract Year. Pricing for Nonfirm Power, once determined and
offered pursuant to this subsection 4.1 and if accepted by
Intalco, shall be contained in Appendix A and shall be
applicable only to the following Contract Year. The Parties
acknowledge there is no assurance that the price determined
and offered by Powerex for Nonfirm Power will be less than the
price provided in this Agreement for Firm Power.
4.2. NONFIRM POWER
If a price and quantity for Nonfirm Power and the duration and
frequency of permitted curtailments have been agreed between
the Parties, Intalco may elect to take the specified quantity
of the Delivered Quantity and Delivered Demand as Nonfirm
Power by providing Powerex with notice on or before September
1 of any Contract Year for the following Contract Year. The
remainder of the Delivered Quantity and Delivered Demand shall
continue to be provided as Firm Power pursuant to this
Agreement.
With respect to any Nonfirm Power, Powerex shall have
curtailment rights as follows:
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Amount: To be determined pursuant to subsection 4.1
Duration: To be determined pursuant to subsection 4.1
Frequency: To be determined pursuant to subsection 4.1
Curtailments shall be scheduled in accordance with Section 6
by Powerex no later than the day preceding the curtailment.
4.3. PREDELIVERY AND MAKE-UP ENERGY
If Powerex curtails deliveries of Nonfirm Power, Intalco shall
accept the same amount of energy as if the curtailment had not
occurred. The amount of curtailed energy shall be delivered to
Intalco in addition to the Delivered Demand during the hours
preceding the curtailment and immediately following the
curtailment. The maximum rates of delivery and other
scheduling provisions shall be agreed by the parties and
included in Appendix A as part of the terms and conditions of
Nonfirm Power. Any transmission charges in excess of the
transmission charges applicable to the Delivered Demand for or
resulting from delivery of curtailed energy from the Point of
Delivery to the Custer Substation shall be for Intalco's
account.
4.4. ADDITIONAL ENERGY
Recognizing that Intalco may wish to purchase additional
energy to recover from a curtailment under this Section 4,
Powerex agrees to consider any requests from Intalco for
additional energy under terms, conditions and charges as
applicable in this Agreement. Any transmission charges in
excess of the transmission charges applicable to the Delivered
Demand for transmission service to deliver the additional
energy from the Point of Delivery to the Custer Substation
shall be for Intalco's account.
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5. INTEGRATED RESOURCES
Under mutually beneficial terms and conditions to be negotiated,
Powerex may agree to integrate Intalco's power purchases from other
suppliers pursuant to a further agreement between Intalco and Powerex.
Such agreement may take the form of a purchase-resale contract, an
assignment of an existing contract, or a transmission access contract.
Integrated resources amounts, if any, shall be in addition to the
Delivered Quantity and Delivered Demand.
6. SCHEDULING
6.1. GENERAL PROVISIONS
Except as provided in this Section 6, schedule changes shall
be by agreement. The Parties' schedulers may, by agreement,
waive any requirements of this Section 6 from time to time for
a period not to exceed seven days. The scheduling procedures
contained in this Section 6 may be amended in writing by the
Authorized Representatives.
All records kept of transactions hereunder shall be based on
scheduled hourly quantities at the Point of Delivery, except
that when deliveries are changed for any reason these
schedules shall be altered after the fact to reflect such
changes. In the event that scheduled deliveries and receipt of
energy are not maintained for an entire hour, deliveries shall
be prorated on an agreed basis. The Parties shall maintain
records of hourly energy schedules for accounting and
operating purposes.
If there is a requirement to schedule losses for the
transmission of the Delivered Quantity from the Point of
Delivery to the Intalco Substation, then Powerex shall arrange
such schedule and deliver the energy pursuant to such
schedule. Responsibility for losses on the transmission from
the Point of Delivery to the Intalco Substation shall be
allocated as stated in Section 10.
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On or before the first day of each Contract Year the Parties
shall exchange a schedule of non working days.
6.2. WITHOUT LCA SERVICES
Until the date that Powerex provides LCA Services to Intalco,
deliveries by Powerex to Intalco will be scheduled in
accordance with this subsection 6.2.
Intalco shall notify Powerex of the preliminary 24-hour Firm
Power schedule for the following 1 to 7 days by 0830 hours
Pacific Time, and of the final schedule by 0900 hours Pacific
Time, of the workday prior to the first day of the schedule or
such other scheduling times as are consistent with BPA's
requirements for scheduling under the Transmission Agreement.
On or before 0830 hours Pacific Time of the last workday prior
to any non working day observed by either Party, Intalco shall
notify Powerex of the preliminary 24-hour Firm Power schedule
for the non working days through to the next workday observed
by both Parties and the final schedules by or before 0900
hours Pacific Time of the last workday prior to any non
working day observed by either Party, or such other scheduling
times as are consistent with BPA's requirements for scheduling
under the Transmission Agreement.
6.3. WITH LCA SERVICES
Commencing on the date that Powerex provides LCA Services to
Intalco, deliveries by Powerex to Intalco will be the combined
supply of the Delivered Quantity and power required to provide
LCA Services.
Commencing on the date that Powerex provides LCA Services to
Intalco, Intalco shall provide or cause to be provided to
Powerex:
6.3.1. a schedule of the scheduled power deliveries
directly to Intalco from suppliers other
than Powerex;
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6.3.2. a real time signal of the power delivered directly
to Intalco from suppliers other than Powerex which
varies on a real time basis; and
6.3.3. a real time signal of Intalco's load;
such that Powerex will have the load and supply information
needed to provide LCA Services.
Intalco shall notify Powerex of the preliminary 24-hour direct
supply power schedule for the following 1 to 7 days by 1000
hours Pacific Time, and of the final schedule by 1100 hours
Pacific Time, of the workday prior to the first day of the
schedule.
On or before 1000 hours Pacific Time of the last workday prior
to any non working day observed by either Party, Intalco shall
notify Powerex of the preliminary 24-hour direct supply power
schedule for the non working days through to the next workday
observed by both Parties and the final schedules by or before
1100 hours Pacific Time of the last workday prior to any non
working day observed by either Party.
7. LOAD CONTROL AREA SERVICES
7.1. COMMENCEMENT
Commencing on October 1, 1996 or 8 months after Intalco gives
Powerex notice that it is able to accept LCA Services from
Powerex, whichever is later, or as otherwise agreed, Powerex
shall provide Intalco with LCA Services from the BC Hydro
system for all the Intalco load, including load not served by
Firm Power under this Agreement except that, for load not
served by Firm Power under this Agreement, the operating
reserves shall not be provided by Powerex. Powerex shall cause
BC Hydro to take Intalco into its load control area and BC
Hydro shall operate in accordance with
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*
to provide Intalco with LCA Services.
7.2. LCA SERVICES AGREEMENT
On or before the commencement date for LCA Services, the
Parties shall enter into a separate LCA Services Agreement, to
the extent necessary to clarify procedures associated with
providing LCA Services and which shall include detailed
specifications of the Parties' responsibilities and
requirements to implement LCA Services.
7.3. LOAD REGULATION REQUIREMENT
Intalco's load regulation requirements are
expected to be as follows and are priced on this
basis:
1) Instantaneous variations * = * % of Intalco's
full load
2) * minute average = * % of Intalco's full load
3) Monthly high to monthly low * = * % of Intalco's
full load
4) Up to * times per Contract Year a * drop by up to
* The Parties shall use reasonable efforts to ensure
that load variations referred to above have a net
nil effect on the Delivered Quantity during any
month. To the extent such load variations cause
energy delivered to differ from the
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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Delivered Quantity in minimal amounts, the Parties
shall keep an account of such variations and make
appropriate adjustments annually.
7.4. CHARGES FOR LCA SERVICES
7.4.1. Except as provided in subsection 7.4.2. the price for
providing LCA Services is included in the price
specified in Appendix A; provided that Intalco shall
pay Powerex for any material variation in load
greater than specified in subsection 7.3. an
additional amount equal to * and any additional BPA
transmission costs to supply this additional load
variation. If there is any material and sustained
variation in load greater than specified in
subsection 7.3 then the price specified in
Appendix A shall be adjusted to include * and BPA
transmission costs to provide for such variation.
7.4.2. * Intalco shall purchase and install at its cost at
the Intalco Substation and Intalco smelter equipment
Powerex reasonably determines is necessary to
provide LCA Services. In addition, Intalco shall pay
BPA all amounts, for which BPA requires payment, to
purchase and install the equipment and to purchase
the services necessary from BPA, if any, for Powerex
to provide the LCA Services and to remove Intalco
from BPA's control area.
*
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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*
*Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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*
9. POINT OF DELIVERY
9.1. The Point of Delivery shall be the points of interconnection
where BC. Hydro's 500 kV lines interconnect with BPA's 500 kV
lines at the U.S. - Canadian border at or near Blaine and such
additional or other delivery points as the Parties agree.
The Parties shall not unreasonably withhold agreement to
change or to add points to the Point of Delivery if there is
an advantage to one or both Parties and no material adverse
impact to either Party. At a Party's request, the other Party
will provide the requesting Party with all relevant
information pertaining to any
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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anticipated advantage and any anticipated material adverse
impact from any proposed change or addition.
9.2. Intalco shall take title to the Firm Power delivered under
this Agreement at the Point of Delivery and shall take the
risk of curtailment of transmission from the Point of Delivery
to the Intalco Substation.
9.3. If * pursuant to subsection 8.4, which interconnect, directly
or indirectly, with the Intalco Substation then the Point of
Delivery shall be changed to the point at which such *
10. TRANSMISSION REQUIREMENTS
10.1. INTALCO OBLIGATION TO PROVIDE TRANSMISSION
The Parties acknowledge that Intalco has entered into a firm
transmission agreement with BPA (BPA Contract No. 95MS-95076),
for transmission of the Delivered Quantity and associated
losses from the Point of Delivery to the Custer Substation and
transmission from the Point of Delivery to the Custer
Substation necessary for Powerex to provide LCA Services.
10.2. Intalco shall keep Powerex informed about and shall consult
with Powerex on all matters pertaining to the Transmission
Agreement and any proposed amendments to it, actions taken
pursuant to it, renewals of it or otherwise and shall take
directions from Powerex with respect to the Transmission
Agreement insofar as it affects Powerex's rights and
obligations under this Agreement; provided that to
do so would not adversely affect Intalco's rights and
obligations under this Agreement or the Transmission
Agreement.
10.3. The Parties agree that any costs or other charges incurred by
Intalco pursuant to the Transmission Agreement for exceeding
transmission demand shall be for Intalco's account.
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
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10.4. POWEREX CREDIT FOR TRANSMISSION CHARGES
Powerex shall credit Intalco fully for transmission charges
during the Term to deliver the Delivered Quantity, Delivered
Demand and associated losses, (including transmission demand
charges for April through July each Contract Year if any) and
to provide LCA Services from the Point of Delivery to the
Custer Substation and shall provide to BPA without cost to
Intalco the associated losses in energy for the amount of
transmission necessary to deliver the Delivered Quantity from
the Point of Delivery to Custer Substation. Transmission
charges for Intalco's account shall be only the Ancillary
Services and Reactive Power charges charged by BPA to Intalco
under the Transmission Agreement which BPA would not charge to
Powerex if Powerex held the Transmission Agreement in its own
name. Each month Powerex shall estimate the transmission
charges from the Point of Delivery to the Custer Substation
and Powerex shall credit Intalco such amount against the
amount owed to Powerex in the current month. Intalco shall
provide Powerex with satisfactory evidence of Intalco's
payment for the transmission charges from the Point of
Delivery to the Custer Substation at the time of payment. Any
difference between the estimated and actual transmission
charges shall be corrected on the following month's invoice.
All transmission charges to deliver the Delivered Quantity,
Delivered Demand and associated losses and to provide LCA
services from the Custer Substation to the Intalco Substation
shall be for Intalco's account.
10.5. ALTERNATE TRANSMISSION
Powerex shall have the option to arrange for transmission of
Firm Power under this Agreement from the Point of Delivery to
the Custer Substation, in lieu of its obligation described in
subsection 10.4 to credit Intalco for transmission from the
Point of Delivery to the Custer Substation. In exercising this
option, Powerex will co-operate with Intalco to ensure that
this change does not have any material adverse impact on
Intalco.
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10.6. In the future event that the IN rate applicable to the
Transmission Agreement is included in BPA's network rate,
Intalco shall at Powerex's request exercise all rights Intalco
has and otherwise use reasonable efforts to have transmission
from the Point of Delivery to the Custer Substation included
in its FPT contract with BPA that provides for transmission
from the Custer Substation to the Intalco Substation. In that
event, Powerex shall credit Intalco for the increase to
Intalco's transmission charges based on transmission from the
Point of Delivery to the Custer Substation.
11. PAYMENTS
11.1. GENERAL
Charges in Appendix A and B are the total delivered price per
MWh to the Custer Substation. The total cost to Intalco shall
be the applicable charges in Appendix A and B multiplied by
the Delivered Quantity, plus additional costs which shall be
limited to:
11.1.1. U.S. federal, U.S. state or U.S. local taxes, U.S.
duties or other U.S. levies applicable to the Firm
Power on or after the Point of Delivery;
11.1.2. the applicable BPA transmission charges or other
charges for delivery from the Custer
Substation to the Intalco Substation; and
11.1.3. other charges and costs expressed by this Agreement
to be for Intalco's account.
These additional costs, if any, shall be paid by Intalco. To
the extent that Powerex may be required by law to charge and
collect from Intalco any of the amounts referred to in
subsection 11.1.1 above, Intalco shall fully indemnify and
hold Powerex harmless from any liability for any such amounts
and for failure to charge and collect any such amounts. To the
extent Powerex does charge and collect
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such amounts, Powerex shall fully indemnify and hold Intalco
harmless for failure to remit any such amounts to the
appropriate governmental authorities.
*
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
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*
11.3. ENERGY CHARGE
11.3.1. Commencing on the first business day of November,
1995, and on the first business day of each month
thereafter during the Term, Powerex shall charge and,
pursuant to subsection 11.4, Intalco shall pay
an amount equal to the portion of the Delivered
Quantity expressed in MWh delivered by Powerex to
the Point of Delivery during the immediately
preceding calendar month multiplied by the
applicable firm, * and nonfirm energy charges
specified in Appendix A or calculated in accordance
with Appendix B.
11.3.2. If at the end of each calendar month the quantity of
energy (in MWh) purchased during that calendar month
under this Agreement is less than the Delivered
Quantity applicable to that month, except to the
extent the failure to deliver or accept energy is
excused by Force Majeure, Powerex shall charge, and
in accordance with subsection 11.4, Intalco shall pay
an amount equal to the difference between the
quantity of energy purchased and the Delivered
Quantity applicable to that month multiplied by
the applicable firm, * and nonfirm energy charge,
unless the quantity of energy purchased is reduced
due to Force Majeure conditions which limited the
ability to deliver or the ability to accept delivery
of the full
*Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securites Exchange Act of
1934, as amended.
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Delivered Quantity. Under such conditions the
take or pay obligation is reduced in accordance
with this Agreement.
11.4. BILLING AND PAYMENT
11.4.1. Powerex shall submit invoices to Intalco by fax
approximately 5 days after the end of each month in
which power is delivered under this Agreement.
Invoices shall be deemed to have been received by
Intalco when sent by fax, with a receipt confirmation
and followed by a mailed copy, from Powerex.
11.4.2. Payment by Intalco is due within 20 days of receipt
of the invoice. If the due date is on a weekend or
holiday as observed by either Powerex's bank or
Intalco's bank, then the due date shall be deemed to
be the next business day as observed by both
Powerex's bank and Intalco's bank. Payment shall be
made by direct wire transfer to:
Bank of Montreal
Main Branch
595 Burrard Street
Vancouver, B.C.
Canada V7X 1L5
for credit to Powerex Account No. 4625-335. More
detailed information and procedures to be followed
for making direct wire transfers will be
provided by Powerex and updated as necessary. Intalco
shall notify Powerex of its bank and may
change such notice from time to time.
Invoices which are not paid within 20 days after
receipt shall accrue interest charged at a rate of
18% per annum, calculated monthly, until payment is
received. These charges shall be based on the number
of overdue days incurred until payment is received.
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Invoices to Intalco shall be submitted to:
Intalco Aluminum Corporation
P.O. Box 937
Ferndale, WA
98248
USA
Fax Number: (360) 384-6185
Each Party may, by written notice change the
designation or addresses specified by them for
receipt of payments and invoices.
11.4.3. In the event of a disputed billing, full payment
shall be rendered by Intalco and the disputed amount
noted. Disputed amounts are subject to the interest
described in subsection 11.4.2. If it is determined
by agreement of the Parties, by arbitration or by a
court of competent jurisdiction that Intalco is
entitled to the disputed amount, Powerex shall refund
the disputed amount, with interest determined
pursuant to subsection 11.4.2.
11.4.4. In the event of non-payment by Intalco, Powerex shall
give written notice to Intalco of non-payment. From
the date of receipt of the written notice of
non-payment Intalco shall have seven days to make
payment. If after seven days from the receipt of the
written notice Powerex has not received payment from
Intalco, Powerex may suspend deliveries to Intalco
and initiate action under Section 21.
11.4.5. Any net payment due by Powerex to Intalco shall be
made on a similar basis as payments by Intalco to
Powerex, as provided in this subsection 11.4. In this
event, Intalco shall provide Powerex with particulars
of its bank account and any other necessary payment
particulars in a timely manner.
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12. FORCE MAJEURE
12.1. In the event either Party is rendered unable, by an event of
Force Majeure, to carry out wholly or in part its obligations
under the provisions hereunder, it is agreed that if such
Party gives notice and full particulars of such event
of Force Majeure to the other Party as soon as practicable
after the occurrence of the cause relied on, then the
obligations of the Party affected by such event of Force
Majeure and any corresponding obligation of the other Party,
other than the obligation to make payments then due or
accrued but not yet due and payable hereunder, shall be
suspended but only insofar as it is unable to carry out its
obligations due to such event from the inception and
throughout the period of continuance of any such inability so
caused, but for no longer period, and such event of Force
Majeure shall, so far as practicable, be remedied with all
reasonable dispatch.
12.2. The term "Force Majeure" as employed herein shall mean any
cause of the kind not reasonably anticipated or within the
control of the Party claiming suspension and which by
the exercise of due diligence such Party could not have
prevented or is unable to overcome. Such causes shall
include acts of God; interruptions of transmission service
necessary to make delivery; exceptional natural conditions in
the Pacific Northwest and British Columbia (whether or not
combined with other events) that cause the available supply
of power including available imports into such regions to be
exceeded by demand within such regions taken together,
*; strikes; shutdowns in anticipation of strikes; accidents.
equipment breakdown; electrical disturbances and imbalances;
riots; acts of sabotage; blockades; civil disobedience; fire;
flood; wars; delays or interruptions in transportation;
materially disruptive actions or failure to act of any
government or government agency (including without limitation
any Court order or any environmental compliance order or
notice); any Court injunction or order; any Court order
voiding, impairing, or modifying the March 15, 1995 Waiver
and Release or the Transmission Agreement; inability to
purchase from Powerex under
*Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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Section 2(b) of Intalco's Power Sales Contract with
BPA, or any other disabling cause or contingency not
reasonably anticipated or within the control of the party
claiming such Force Majeure event, whether of the nature or
subject matter herein enumerated or not. Notwithstanding the
foregoing, neither BPA's rights to curtail deliveries of
power to the Intalco Substation for system stability purposes
nor any inability to accept delivery of power under this
Agreement resulting from BPA's exercise of its non-force
majeure rights to curtail deliveries of power to the Intalco
Substation shall be considered to be an event of Force
Majeure hereunder. Nothing contained herein, however, shall
be construed to require a Party to prevent or settle a strike
against its will. Economic hardship shall not constitute
Force Majeure.
12.3. If Powerex declares Force Majeure it shall use its best
efforts to estimate the specified duration of the event of
Force Majeure and the amount of the Delivered Quantity which
it will be unable to deliver due to such event. Intalco may
rely upon such specified duration and amount and may obtain a
supply of replacement power for the portion of supply Powerex
is unable to deliver for the specified duration. Intalco may,
but shall not be obligated to, accept and pay for power that
Powerex estimated it would be unable to deliver during the
specified duration but subsequently determines it can deliver.
Powerex will use all reasonable efforts to assist Intalco to
find and obtain delivery of the lowest cost replacement power.
12.4. If Intalco declares Force Majeure it shall use its best
efforts to estimate the specified duration of the Force
Majeure and the amount of the Delivered Quantity
it will be unable to accept due to such event.
Powerex may rely upon such specified duration and amount to
make commitments to sell that surplus power up to the portion
of supply Intalco is unable to accept for the specified
duration.
12.5. If either Intalco or Powerex declares Force Majeure, then
Intalco shall take all necessary actions and exercise all
rights under the Transmission Agreement to reduce or eliminate
transmission charges under the Transmission Agreement for
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the duration of the event of Force Majeure and for the
amount the affected Party is unable to deliver or accept.
13. CURTAILMENTS
13.1. NOTICE OF FORCE MAJEURE CURTAILMENT
Each Party shall notify the other as soon as possible of any
Force Majeure which may adversely affect performance under
this Agreement. Delay by a Party in giving notice to the other
Party shall not be deemed a waiver of Section 12, provided
notice is given in a reasonable time.
13.2. If any cause under Section 12 prevents Powerex from delivering
to the Point of Delivery or Intalco from receiving energy at
the Point of Delivery or transmitting such energy to Intalco's
smelter and consuming it, Powerex and Intalco shall mutually
agree to:
13.2.1. delivery of curtailed energy at a later date during
that Contract Year, in accordance with an agreed
delivery schedule to be established by the Parties
for such purpose; or
13.2.2. reduce the energy purchase requirement pursuant to
Section 3 by the amount equal to the curtailed
energy.
If Powerex and Intalco are unable to agree to the options
outlined in this subsection 13.2, the default shall be to
reduce the energy purchase requirement pursuant to Section 3
by the amount equal to the curtailed energy.
14. REMARKETING OPTION
14.1. Intalco may give notice to Powerex to remarket all or a
portion of the Delivered Quantity due to reduction in
Intalco's load. Such notice shall specify the duration and the
quantity of power to be remarketed. The quantity of power to
be remarketed shall be remarketed at 100% load factor for the
specified duration.
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Notwithstanding the foregoing, Intalco and Powerex may
agree that Powerex will remarket such power on a different
basis as to load factor and monthly amount, subject to
Intalco paying Powerex any additional agreed costs and
charges. Powerex shall use all reasonable efforts to remarket
the power specified in such notice at the market price
available once all Powerex marketing and sales obligations
which exist as of the date Intalco gives notice and for the
quantities pursuant to those marketing and sales obligations
existing as of the date Intalco gives notice are met. Any
Powerex remarketing strategy or sales decision shall be
approved by Intalco's Authorized Representative before being
implemented by Powerex. If Intalco's Authorized
Representative does not approve a sales decision then any
future sale of the power that would have been remarketed
under such decision shall be at the market price available
for such power once all Powerex marketing and sales
obligations which exist as of the date Intalco's Authorized
Representative does not approve the sales decision and for
the quantities pursuant to those marketing and sales
obligations existing as of such date are met. Intalco
* Unless agreed between the Parties, nothing in this
subparagraph 14.1, obligates Powerex at any time to remarket
power that would have been delivered to Intalco prior to that
time if Intalco had not given notice to remarket that power.
14.2. Subject to subsection 14.3, this remarketing option is offered
as a service to Intalco and with the intention that Powerex
will continue to receive the applicable firm, variable and
nonfirm energy charges for the power sold and will incur no
additional cost or liability as a result of providing such
service. Therefore, Intalco
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
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hereby waives any claim it may have for losses resulting from
this remarketing option and agrees to indemnify and hold
Powerex harmless from any cost or liability Powerex may
suffer or incur thereby. In the event a purchaser of power
sold by Powerex pursuant to this remarketing option fails to
make payment when due, Powerex shall at Intalco's request
assign the claim to Intalco. Powerex agrees to consider any
requests from Intalco for alternate remarketing options under
terms, conditions and charges to be mutually agreed to at the
time of the request by Intalco.
14.3. REMARKETING CAP
In any Contract Year if the * reaches *, Intalco's obligation
to pay Powerex for the portion of the Delivered Quantity
specified to be remarketed pursuant to subsection 14.1 shall
cease for the Contract Year, and Powerex shall cease to have
an obligation to remarket power and * for the *, if any,
received for the remarketed power.
15. AUTHORIZED REPRESENTATIVE
15.1. Each Party shall designate one person as an Authorized
Representative and one person as an alternate. Each Party
shall notify the other Party within 30 days after
execution of this Agreement of the designated
Authorized Representative and alternate and shall promptly
notify the other Party of any subsequent changes in the
designations.
15.2. Except as provided in Section 6, Authorized Representatives
and alternates shall have no authority to modify any of the
provisions of this Agreement.
16. ARBITRATION
16.1. Unless otherwise expressly provided in this Agreement, if any
controversy or claim arises out of this Agreement or the
making, performance or interpretation thereof, the parties
shall use their best efforts to settle such controversy or
claim amicably
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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between themselves. Should the parties fail to agree within
30 days after a Party has notified the other Party of such
claim or controversy, any and all matters in dispute shall
finally be settled through arbitration conducted in
accordance with subsection 16.2; provided, however, that the
validity of this Agreement shall not be subject to
arbitration. Judgement upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof.
16.2. Arbitration proceedings under this Agreement shall be
conducted as follows:
16.2.1. a Party (the "Initiating Party") may invoke
arbitration by giving notice to the other Party (the
"Responding Party") stating that it is invoking
arbitration and stating the dispute to be resolved;
16.2.2. within 15 days of receiving notice, the Responding
Party shall give notice to the Initiating Party of
any additional matters in dispute that it considers
require to be resolved;
16.2.3. each Party will by notice to the other given within
30 days of the notice given under subsection 16.2.1
designate an arbitrator;
16.2.4. if a Party fails to designate an arbitrator pursuant
to and within the time specified in subsection
16.2.3, then after being given at least 10 days
notice of its failure to do so, if the Party has not
then designated an arbitrator the arbitrator
designated by the other Party shall be the sole
arbitrator and the provisions of this subsection 16.2
shall apply with necessary changes to the arbitration
by a single arbitrator;
16.2.5. the arbitrators selected by each Party will select a
third arbitrator as chair within 60 days of the
notice given under subsection 16.2.1;
16.2.6. if the two arbitrators fail to appoint the third
arbitrator within the time limited, either Party may
apply to a court of competent jurisdiction to appoint
the third arbitrator;
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16.2.7. In any arbitration, the arbitrators shall give the
parties the opportunity to present their claims, to
introduce and examine evidence and witnesses. Hearsay
evidence will not be accepted. The Parties shall
produce a list of and make available for discovery
all documents that may be relevant to the proceedings
strictly in accordance with time limits imposed by
the arbitrators. The decision of the arbitrators
shall be in writing, argumented in its main aspects
and signed by the concurring arbitrators. Any
settlement made before the arbitration panel shall be
in writing and shall be signed by the parties.
Arbitrators must render their decision by majority
vote and must render such decision in accordance with
the terms of the Agreement. The arbitrators shall
have no authority to rewrite the agreement by adding
terms not included or by deleting or rendering null
terms expressly stated but shall have the authority
to interpret it and make their award accordingly;
16.2.8. Except as provided in this Section 16, the
arbitration proceedings shall be conducted pursuant
to the rules of procedure adopted for such proceedings
by the UNCITRAL Arbitration Rules adopted by
UNCITRAL 28 April 1976 and by UN General Assembly
December 15, 1971;
16.2.9. During the pendancy of any arbitration proceeding,
the Parties shall continue to perform in accordance
with this Agreement provided that either Party may
seek preliminary directions from the arbitrators on
how to fulfil their obligations under this Agreement,
all without prejudice to any Party's rights,
including any right to damages as determined by the
arbitrators;
16.3. The Parties will be responsible for their own costs of any
arbitration. The arbitrators shall apportion the costs of the
arbitrators and the general costs of the arbitration
proceedings in their award as they consider appropriate.
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17. ASSIGNMENT OF AGREEMENT AND MERGER
Neither Party shall transfer or assign this Agreement or any part
hereof without the written consent of the other Party, except in
connection with a merger or a sale of a substantial portion of its
business or the Intalco smelter, provided the successor or buyer is or
agrees to be bound by this Agreement as if an originally named Party.
This written consent shall not be unreasonably withheld. The Parties
recognize that, due to potential regulatory and tax constraints,
Intalco may assign this contract to another entity, without Powerex's
consent, so long as the power sold under this Agreement continues to be
consumed in the Intalco smelter and provided such assignment has no
material adverse impact on Powerex. Transfers or assignments under this
Section 17 for which written consent is required shall not relieve any
Party of any obligation hereunder, except to the extent agreed in
writing by the other Party. Any attempted or purported transfer made
other than in accordance with this Section 17, either voluntarily or by
operation of law, shall be void and of no effect.
18. NOTICES
18.1. Unless this Agreement requires otherwise, and except for
notice pursuant to Section 6, any notice, demand or request
provided for in this Agreement, or served, given or made in
connection with it, shall be in writing and shall be deemed
properly served, given or made if delivered in person, or sent
by registered or certified mail, postage prepaid, or by
telecopier or fax confirmed by mail to the individuals
specified below:
To Powerex:
Powerex
c/o President and Chief Executive Officer
666 Burrard Street, Suite 2210
Vancouver British Columbia V6C 2X8
Fax: (604) 891-5015
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To Intalco:
Intalco Aluminum Corporation
c/o Vice President
P.O. Box 937
Ferndale, WA
98248
Fax: (360) 384-6185
18.2. Either Party may, from time to time by written notice to the
other Party, change the designations or address of the
individual so specified as the one to receive notices pursuant
to this Agreement.
19. APPROVALS
19.1. This Agreement is subject to the Parties obtaining and
maintaining all necessary regulatory approvals. The Parties
shall co-operate with each other and make all reasonable
efforts to obtain and maintain any and all approvals necessary
to effectuate this Agreement. Notwithstanding the generality
of the foregoing, in the event that Powerex has not obtained
an energy removal certificate and necessary National Energy
Board approvals for the sale of Firm Power under this
Agreement for the entire Term on or before May 1, 1996,
Powerex may by 30 days notice terminate this Agreement
provided such notice is given by May 15, 1996.
19.2. ADVERSE DETERMINATION
If the National Energy Board, the Ministry of Energy, Mines
and Petroleum Resources, or any other regulatory body or
agency, or a court of competent jurisdiction modifies this
Agreement or the regulatory permits or authorizations
necessary to this Agreement or determines that this Agreement,
its operation or effect is unjust, unreasonable, unlawful,
imprudent, invalid, unenforceable or otherwise not in the
public interest, the Parties shall be relieved of their
obligations to the extent necessary to eliminate such
regulatory or other determination.
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Following any such modification or determination (Adverse
Determination) either Party may request a negotiation session
within 30 days. The Parties shall then renegotiate in good
faith the terms and conditions of this Agreement so as to
restore the original balance of benefits and burdens
contemplated by the Parties as of the date of its execution.
If the Parties acting reasonably cannot restore the balance of
benefits and burdens by agreement then either Party may
terminate this Agreement by providing written notice of its
intention to do so within 40 days of the effective date of
such Adverse Determination. The notice of termination shall be
effective 15 days after receipt by the other Party.
20. LIABILITY FOR BREACH
20.1. For breach of any provision for which an express remedy or
measure of damages is provided, such express remedy or measure
of damages shall be the sole and exclusive remedy hereunder,
the Party's liability shall be limited as set forth in such
provision and all other remedies or damages at law or in
equity are waived. Neither Party shall be liable for
consequential, special, incidental, punitive, exemplary or
indirect damages, in tort, contract, under any indemnity
provision or otherwise. To the extent any damages required to
be paid hereunder are stated to be liquidated, the Parties
acknowledge that the damages are difficult or impossible to
determine, otherwise obtaining an adequate remedy is
inconvenient and the liquidated damages constitute a
reasonable approximation of the harm or loss. The remedies of
the Parties (other than those for which an express remedy or
measure of damages is provided) shall be cumulative, and the
exercise of one remedy shall not preclude the exercise of
another remedy.
20.2. DEFINITIONS
"Curtailment Event" means the failure by Powerex to schedule
and deliver Firm Power at the Delivered Demand during an hour
as required by this Agreement at the Point of Delivery, where
such failure is not the result of Force Majeure, and
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any inability of Intalco to accept delivery hereunder
as a result of such failure. Any such failure by Powerex
occurring within 48 hours of the initial failure shall be
deemed a continuation of the same Curtailment Event.
Notwithstanding the foregoing, if Intalco receives the power
which Powerex failed to schedule or deliver from another
source, then subsection 20.3 shall apply.
20.3. POWEREX'S UNEXCUSED FAILURE TO DELIVER
If a Curtailment Event occurs, Intalco shall use all
reasonable efforts to obtain replacement power and *
20.4. *
20.5. * for a Curtailment Event shall be as follows:
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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33
* subject to the limits on * provided for in subsection *
Firm Power not delivered is measured from 100% of Delivered
Demand excepting any variance in Intalco's load while Powerex
provides LCA Services.
20.6. *
20.7. Intalco shall use its best efforts to mitigate any loss or
damage it may suffer or incur as a result of a Curtailment
Event. In determining whether Intalco has used its best
efforts to so mitigate, it shall be presumed that Intalco
responded prudently to the Curtailment Event provided it
responds based on Powerex's best estimate as to the likely
duration and amount of the Curtailment Event, its ability to
schedule make up energy and any other information it may
provide.*
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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34
20.8. Notwithstanding anything else contained in this Agreement,
Powerex shall not be liable to Intalco for * or for * to
Intalco's aluminum reduction potlines, or both, as a result
of any Curtailment Event which in the aggregate exceed *
20.9. If a Curtailment Event would have resulted in * or * to
Intalco's aluminum reduction potlines, or both, payable by
Powerex in an amount greater than * except for subsection
20.8, then unless Powerex agrees to compensate Intalco for
its * and such * that exceed *, Intalco may, by * notice to
Powerex given within 90 days of the Curtailment Event,
terminate this Agreement.
20.10. During the 90 day period following a Curtailment Event
referred to in subsection 20.9, Powerex and Intalco shall
negotiate in good faith to determine whether they are able to
develop and agree upon additional or changed contractual terms
satisfactory to both Parties to continue this Agreement,
recognizing Intalco's need for future assurances that a
Curtailment Event will not occur or it will be appropriately
compensated if it does occur.
20.11. Upon termination pursuant to subsection 20.9, all of the
rights and obligations of the Parties under this Agreement
shall terminate and this Agreement shall have no further force
and effect except that all liabilities accrued under this
Agreement prior to termination shall be preserved until
satisfied.
20.12. Each Party reserves to itself all rights, set-offs,
counterclaims and other remedies and defences consistent with
this Agreement (to the extent not expressly herein waived or
denied) which such Party has or may be entitled to arising
from or out of this Agreement.
21. EVENTS OF DEFAULT AND TERMINATION
21.1. If an Event of Default (as defined below) occurs with respect
to either Party at any time during the Term, the other Party
may upon 30 days notice to the affected
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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Party, which notice shall be given no later than 60
days after the discovery of the occurrence of the Event of
Default, establish a date on which this Agreement will
terminate; provided that upon receipt of notice, the affected
Party shall have 20 days to cure the Event of Default in
which case the agreement shall not be terminated.
"Event of Default" shall mean with respect to a Party:
21.1.1. the failure by a Party to make, when due, any payment
required under this Agreement if such failure is not
remedied within 7 days of receipt of written notice
of such failure by the Party; provided, that the
payment is not the subject of a good faith dispute,
or
21.1.2. the Party makes an assignment or any general
arrangement for the benefit of creditors; files a
petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or
cause under any bankruptcy or similar law for the
protection of creditors, or has such petition filed
against it and such proceeding remains undismissed
for 630 days; otherwise becomes bankrupt or insolvent
(however evidenced); or is unable to pay its debts as
they fall due, or
21.1.3. in the case of Powerex, its failure, not excused by
Force Majeure, to schedule or deliver at least 90% of
the Delivered Demand (excepting any variance in
Intalco's load while Powerex provides LCA Services)
for 10 consecutive days or for a cumulative period of
30 or more days in a 12 month period.
21.2. If a Party is prevented by Force Majeure from performing a
material part of its obligations under this Agreement for more
than 180 days, the other Party may terminate this Agreement
upon 30 days notice. This subsection 21.2 is in addition to
other provisions of this Agreement providing for termination
of this Agreement.
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22. REPRESENTATIONS AND WARRANTIES
22.1. POWEREX'S REPRESENTATIONS
Powerex hereby represents and warrants to and in
favour of Intalco that:
22.1.1. as of the date of this Agreement, Powerex has an
Energy Removal Certificate (No. ERC-E01(9207), as
amended) issued by the Minister of Energy, Mines and
Petroleum Resources of the Province of British
Columbia permitting Powerex to export power subject
to the terms and conditions contained in the Energy
Removal Certificate;
22.1.2. as of the date of this Agreement, Powerex has an
export Permit (No. EPE-44) issued by the National
Energy Board permitting Powerex to export power
subject to the terms and conditions contained in such
export permit;
22.1.3. Powerex will ensure that neither it nor B.C. Hydro
will schedule deliveries to Custer Substation where
such scheduled deliveries * of Firm Power under
this Agreement.
22.2. INTALCO'S REPRESENTATIONS
Intalco hereby represents and warrants to and in
favour of Powerex that:
22.2.1. Intalco has the corporate capacity and authority to
enter into this Agreement and to purchase firm power
and LCA Services from Powerex in accordance with the
terms of this Agreement and that this Agreement has
been duly authorized by all necessary corporate
approvals.
23. WAIVERS
Except as otherwise provided herein, no provision of this Agreement may
be waived except in writing. No failure by either Party to exercise,
and no delay in exercising, any right, power or remedy under this
Agreement shall operate as a waiver thereof. Any waiver at any time by
a Party of its right with respect to a default under this Agreement, or
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
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37
with respect to any other matter arising in connection therewith, shall
not be deemed a waiver with respect to any subsequent default or
matter.
24. ENTIRE AGREEMENT AND AMENDMENT
This Agreement, including Appendix A, and B, constitutes the entire
agreement between the Parties and may not be amended or modified except
by written agreement of Intalco and Powerex or as specified in Section
6.
25. GOVERNING LAW
This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of Washington, without regard to
principles of conflicts of laws.
26. SEVERABILITY
If any one or more of the provisions contained in this Agreement shall
be held invalid, illegal or unenforceable in any respect, this
Agreement shall be construed as if the invalid, illegal or
unenforceable provision were severed from and not a part of this
Agreement unless the Parties acting reasonably determine that such
provision should not be severed from this Agreement, in which case
subsection 19.2 shall apply.
27. WAIVER OF SOVEREIGN IMMUNITY
Powerex specifically and irrevocably waives any claim of immunity from
suit that it may have by reason of any ownership or control by any
governmental entity. Powerex avers that it has the authority to waive
any such claim of immunity and that it makes this waiver knowingly and
voluntarily.
28. CONFIDENTIALITY
Neither Party shall disclose the terms of this Agreement to any third
party (other than the Party's, and its affiliates', employees, lenders,
counsel or accountants who have agreed to keep such terms confidential)
except in order to comply with any applicable law, order, or
regulation; provided, each Party shall notify the other Party of any
proceeding of which it
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is aware which may result in disclosure and use reasonable efforts to
prevent or limit the disclosure. Each Party, if required to disclose
the terms of this Agreement to a third party, will make such
disclosure on a confidential basis and request the third party to
comply with the provisions of this section. The Parties shall be
entitled to all remedies available at law or in equity to enforce, or
seek relief in connection with, this confidentiality obligation.
29. SIGNATURE CLAUSE
The signatories hereby represent that they have been appropriately
authorized to execute this Agreement on behalf of the Party for whom
they sign.
BRITISH COLUMBIA POWER INTALCO ALUMINUM CORPORATION
EXCHANGE CORPORATION
By: /s/ Ken G. Peterson By: /s/ Peter E. Aylen
--------------------------- ---------------------------
For: Ken G. Peterson For: Peter E. Aylen
-------------------------- --------------------------
Title: President Title: Vice-President
------------------------ ------------------------
Date: November 22, 1995 Date: November 22, 1995
------------------------- -------------------------
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APPENDIX A
to the
Power Sale Agreement Between Intalco and Powerex
Pricing for Term
FIRM POWER:
EFFECTIVE DATE ENERGY CHARGE - Nine Month Delivery
(US$/MWh)
October 1, 1995 *
October 1, 1996 *
October 1, 1997 *
October 1, 1998 *
October 1, 1999 *
NONFIRM POWER:
EFFECTIVE DATE ENERGY CHARGE - Nine Month Delivery
(US$/MWh)
October 1, 1995 $
October 1, 1996 $
October 1, 1997 $
October 1, 1998 $
October 1, 1999 $
DEFINITION:
Nine Month Delivery - Deliveries shall include all days except
the period from April 16 to July 15 inclusive of each Contract Year.
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
43
APPENDIX B
to the
Power Sale Agreement Between Intalco and Powerex
*
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
44
APPENDIX C
*
* Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.