Exhibit 10.8.6
SUPPLEMENTAL AGREEMENT TO THE AMENDED
AND RESTATED WHOLESALE POWER CONTRACT
THIS SUPPLEMENTAL AGREEMENT TO THE AMENDED AND RESTATED WHOLESALE POWER
CONTRACT, dated as of May 1, 1997 (together with permitted amendments hereto,
this "Supplement"), is entered into by and between OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION), an electric membership corporation
organized and existing under the laws of the State of Georgia (the "Seller"),
and ALTAMAHA ELECTRIC MEMBERSHIP CORPORATION, an electric membership corporation
organized and existing under the laws of the State of Georgia (the "Member").
R E C I T A L S:
WHEREAS, the Seller and the Member have entered into that certain Amended
and Restated Wholesale Power Contract, dated as of August 1, 1996 (together with
permitted amendments thereto, the "Wholesale Power Contract"), under which the
Seller agrees to sell and the Member agrees to purchase certain quantities of
electric capacity and energy;
WHEREAS, for the benefit of the Member and the Participating Members, the
Seller has entered into that certain Power Purchase and Sale Agreement, dated as
of April 7, 1997, between Xxxxxx Xxxxxxx Capital Group, Inc. ("MS") and the
Seller and amended by a letter agreement dated April 8, 1997 (as supplemented by
any arbitration, mediation, amendment, administrative procedure or other method
of implementing and administering such contract permitted under the provisions
of such contract, the "MS Contract");
WHEREAS, under the MS Contract the Seller will purchase electric capacity
and energy from MS for resale to the Participating Members for various terms as
set forth in Exhibit 1.62 to the MS Contract and has agreed to sell to MS
certain electric energy that MS schedules or is obligated to take; and
WHEREAS, to receive the benefits of the MS Contract, the Member wishes
during the Supplement Term to agree to certain terms and conditions as provided
herein.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein contained, the Seller and the Member hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein that are defined in
the Wholesale Power Contract, as well as the term "member," shall have their
respective meanings set forth in the Wholesale Power Contract, unless the
context in which such term is used clearly requires otherwise. All other
capitalized terms used herein shall have the respective meanings set forth
below.
"Confidential Information" shall have the meaning set forth in the MS
Contract.
"Customer Choice Customer" shall have the meaning set forth in the MS
Contract.
"Customer Choice Load" shall have the meaning set forth in the MS Contract.
"Electric Energy" shall have the meaning set forth in the MS Contract.
"Exhibit 5" is as defined in Section 3.1 (b).
"Exhibit 6" is as defined in Section 3.1 (b).
"Interval" shall have the meaning set forth in the MS Contract.
"Member's Supplement Term" has the meaning set forth in Section 2.
"MS" means Xxxxxx Xxxxxxx Capital Group, Inc.
"MS Contract" is as defined in the Second Recital.
"MS Future Resource" is the Future Resource in which the Member is
allocated a PCR in Exhibit 6.
"MS Power Sale Resource" is the Power Sale Resource in which an allocation
is made to the Member in Exhibit 5.
"MS Schedule" shall have the meaning set forth in the MS Contract.
"Nominate" shall have the meaning set forth in the MS Contract.
"Participating Members" means those Members of Seller identified in
Exhibits 5 and 6, each of which has executed a Supplemental Agreement
substantially identical to this Agreement.
"Rate Schedule A" means Rate Schedule A to the Wholesale Power Contract.
"Schedule" shall have the meaning set forth in the MS Contract.
"Supplemental Agreement(s)," when used in reference to other Participating
Member(s), means that Supplemental Agreement(s) substantially identical to this
Supplement entered into between Seller and such other Participating Member(s).
"Supplement Schedule A" means Schedule A, Xxxxxx Xxxxxxx Power Marketer
Supplement Formulary Rate Application, attached hereto.
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"Wholesale Power Contract" is as defined in the First Recital.
2. MEMBER'S SUPPLEMENT TERM. This Supplement shall be effective as of
the date on which the Administrator's approval of this Supplement is effective
and shall continue in effect until the termination of the MS Contract, whether
as the result of expiration, early termination, cancellation in the event of
default prior to the end of the fixed term, or otherwise (such period, the
"Member's Supplement Term"); provided, however, that (i) any Party's cost or
liability to the other Party hereunder, or as the result of the MS Contract,
that arises prior to such termination or results, in whole or in part, from
events or circumstances occurring prior to such termination, and (ii) the
representations and warranties made in Section 5 of this Supplement and the
provisions of 6.3 shall survive the Supplement Term.
3. FUTURE RESOURCE AND POWER SALES RESOURCE OBLIGATIONS.
3.1. New PCRs. (a) The MS Contract shall be a Future Resource for
purposes of the Seller's purchases thereunder and a Power Sales Resource for
purposes of the Seller's sales thereunder. All Participating Members, including
the Member, receive allocations in the MS Contract Power Sale Resource, as set
forth in Exhibit 5, and are assigned a PCR in the MS Future Resource, as set
forth in Exhibit 6.
(b) The Member hereby approves the MS Contract and confirms that the
requirements of Sections 3.2.1 and 3.4.2 of the Wholesale Power Contract have
been met with respect to the allocations to the Member set forth in Exhibits 5
and 6 to Appendix 1 to "Rate Schedule A" to the Wholesale Power Contract
("Exhibit 5" and "Exhibit 6" respectively).
(c) The Member hereby acknowledges that neither the MS Contract nor
this Supplement affects the Member's PCR with respect to any of the Existing
Resources or its allocation with respect to Power Sales Resources listed on
Exhibit 1 to Appendix 1 to "Rate Schedule A".
3.2 Cost Responsibility. The Member hereby approves the MS Contract,
including additional quantities purchased by Seller under the MS Contract
pursuant to Section 2.5(a) of the MS Contract, but excluding Customer Choice
Loads with an intitial connected demand exceeding ten (10) MW, for the purpose
of the requirement that it be approved by seventy-five percent (75%) of the
members of the Seller and acknowledges that the MS Contract constitutes a Future
Resource with respect to which all members of the Seller shall become liable for
a pro rata share upon a Payment Default as provided in Section 3.5.3 of the
Wholesale Power Contract. The Member acknowledges that "Rate Schedule A" shall
provide for recovery of net costs incurred by the Seller as the result of the
sales made under the MS Contract.
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4. RATES.
4.1 Application of Formula. Supplement Schedule A attached hereto and
incorporated herein by reference defines how the formulae contained in "Rate
Schedule A" are to be applied to the costs incurred and revenues received under
the MS Contract.
4.2 Limit on Changes. The Seller may modify the definitions in
Supplement Schedule A, but only to the extent necessary to ensure that all costs
and revenues under the MS Contract are recovered by and credited to those
Participating Members that are Participating Members at the time such costs and
revenues are incurred; provided, however, that during the Member's Supplement
Term, the Seller shall not enter into an amendment of the MS Contract which
modifies the Member's individual rates established under the MS Contract and set
forth in Supplement Schedule A unless any such amendment of the MS Contract is
negotiated to comply with the provisions of Sections 16.1 or 16.3 of the MS
Contract or is approved by seventy-five percent (75%) of the Participating
Members.
4.3 No Unilateral Filings. Notwithstanding Section 11.3.1 of the
Wholesale Power Contract, during the Member's Supplement Term, (i) the Seller
shall not unilaterally file an application for a change in any part of "Rate
Schedule A" that is expressly prohibited by Section 4.2 of this Supplement and
(ii) the Member shall not protest or make any unilateral filing complaining of a
change expressly permitted by Section 4.2 of this Supplement.
4.4 Continued Justness and Reasonableness of Rate. The Seller has
provided the Member with a copy of "Rate Schedule A", as amended through
February 24, 1997. The Member confirms that the rates, terms and conditions
established under the Wholesale Power Contract, including "Rate Schedule A" are
just and reasonable and not unduly discriminatory and remain fully consistent
with the provisions of Section 11.1 of the Wholesale Power Contract.
5. MEMBER'S REPRESENTATIONS AND WARRANTIES. The Member makes the
following representations and warranties to Seller and agrees to indemnify
Seller against all losses and damages resulting from a breach of same:
5.1 The Member warrants and represents that it will not, during the
term of the MS Contract, take any action, enter into any contracts or
otherwise incur obligations that could reasonably be anticipated to interfere
with or adversely affect Seller's ability to perform its obligations under
the MS Contract; and
5.2 The Member warrants and represents that it will not, during the
term of the MS Contract, take any action that could reasonably be anticipated
to cause either Seller or MS to lose their authority to sell power as
contemplated under the MS Contract.
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6. SCHEDULING MEMBER.
6.1 The Member hereby waives the right to become a Scheduling Member
with respect to its PCR share of the MS Future Resource, its allocation in the
MS Power Sale Resource, and the fifty percent (50%) of its allocation in the
underlying Existing Resources committed to the MS Power Sale Resource prior to
May 1, 1998.
6.2 In addition to the terms and conditions of the Wholesale Power
Contract, the Member's right to become and to act as a Scheduling Member after
May 1, 1998 shall be subject to (i) the terms and conditions of the MS Contract,
including the consent of MS pursuant to Section 3.11 of the MS Contract, (ii)
the Member's and its agents' agreement to abide by the terms of the MS Contract
governing the treatment of Confidential Information, and (iii) Member's
acknowledgment that no special consideration as to the timing for submittal of
schedules by the Member can be given due to the timing of Schedules submitted by
MS pursuant to the MS Contract.
6.3 Subject to Sections 6.1 and 6.2, until six (6) months following
expiration of the Supplement Term, the Member shall have the right to elect to
become a Scheduling Member with respect to the fifty percent (50%) of the
Member's allocation in the underlying Existing Resources committed to the MS
Power Sale Resource and to the Member's total energy requirements not subject to
separate scheduling pursuant to the LPM Supplemental Agreement without regard to
whether the Member is a Scheduling Member with respect to the remainder of the
Member's total energy requirements.
6.4 If a Member is a Scheduling Member pursuant to both this Section
6 and pursuant to Section 3.3 of the LPM Supplemental Agreement, Member shall be
a Scheduling Member with respect to one hundred percent (100%) of its resources
and energy requirements.
7. NO THIRD PARTY BENEFICIARIES. Subject to the provisions of Section 10
below, the Seller and the Member agree that no other Member of the Seller or any
other third party is an intended third-party beneficiary of this Supplement,
except as may be provided in a separate instrument executed by each of the
Seller and the Member.
8. RULES OF CONSTRUCTION.
8.1 Headings. The descriptive headings of the various articles,
sections and subsections of this Supplement and the Schedules attached hereto
have been inserted for convenience of reference only and shall not be construed
as to define, expand, or restrict the rights and obligations of the parties.
8.2 Including. Wherever the term "including" is used in this
Supplement and the Schedules attached hereto, such term shall not be construed
as limiting the generality of any statement, clause, phrase or term.
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8.3 Plural and Singular. The terms defined in this Agreement and the
Schedule attached hereto shall include the plural as well as the singular and
the singular as well as the plural.
9. ASSIGNMENT. This Supplement and the rights and obligations hereunder
are not assignable except when assigned by either Party (i) in an Assignment for
Security along with the Wholesale Power Contract or (ii) to any assignee or
transferee that succeeds to its rights and obligations under the Wholesale Power
Contract. In each such case, this Supplement shall be assigned with the
Wholesale Power Contract and such assignee or transferee shall agree in writing
to be bound by the terms hereof. Any attempted assignment other than to the
assignee of a Party's rights and obligations under the Wholesale Power Contract
shall be void and unenforceable. This Supplement shall be binding on and inure
to the benefit of the permitted successors and permitted assigns of the Parties.
10. RUS. This Supplement shall not be effective unless and until
approved in writing by the Administrator. This Supplement is subject to the
rights and obligations of the Parties under that certain Amended and Restated
Supplemental Agreement, dated as of August 1, 1996, among the Seller, the
Member, and the Government, acting through the Administrator, in the same
manner and to the same extent as the Wholesale Power Contract.
11. GOVERNING LAW. Except to the extent governed by applicable federal
law, this Supplement shall be governed by, and construed in accordance with, the
law of the State of Georgia.
12. WAIVER. No Party shall be deemed to waive any provisions of this
Supplement unless such waiver shall be in writing and signed by the Party
charged with the waiver. No waiver shall be deemed to be a continuing waiver
unless those stated in writing.
13. AMENDMENTS. Except as permitted in Section 4.2 of this Supplement, no
change, amendment or modification of this Supplement shall be valid or binding
upon the Parties unless such change, amendment or modification shall be in
writing and duly executed by the Parties.
14. SEVERABILITY. If any provisions of this Supplement is void or
enforceable, the remainder of this Supplement shall not be affected thereby.
[Signatures on the following page]
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IN WITNESS WHEREOF, the Seller and the Member have caused this Supplement
to be executed, attested, sealed and delivered by their respective duly
authorized officers as of the day and year first written above.
SELLER:
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
[CORPORATE SEAL] By: /s/ X. X. Xxxxxxx
---------------------------------
X.X. Xxxxxxx, President and Chief
Executive Officer
ATTEST:
/s/ Xxxxxxxx X. Xxxx
--------------------------
Xxxxxxxx X. Xxxx
Secretary
MEMBER:
ALTAMAHA ELECTRIC
MEMBERSHIP CORPORATION
[CORPORATE SEAL] By: /s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
--------------------
Title: President
--------------------
ATTEST:
/s/ Xxxxxxx Xxxx
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SCHEDULE TO EXHIBIT 10.8.6
SUPPLEMENTAL AGREEMENT TO THE
AMENDED AND RESTATED
WHOLESALE POWER CONTRACT
(MS)
The following is a list of substantially identical Supplemental Agreements
to the Amended and Restated Wholesale Power Contracts for the Electric
Membership Corporations, dated as of May 1, 1997:
1. Amicalola EMC 20. Middle Georgia EMC
2. Canoochee EMC 21. Xxxxxxxx EMC
3. Xxxxxxx EMC 22. Ocmulgee EMC
4. Central Georgia EMC 23. Oconee EMC
5. Coastal EMC 24. Okefenoke Rural EMC
6. Xxxx EMC 25. Pataula EMC
7. Xxxxxxxx EMC 26. Planters EMC
8. Coweta-Fayette EMC 27. Xxxxx EMC
9. Excelsior EMC 28. Satilla Rural EMC
10. Flint EMC 29. Sawnee EMC
11. Xxxxx EMC 30. Slash Pine EMC
12. Greystone Power Corporation, 31. Snapping Shoals EMC
an EMC 32. Sumter EMC
13. Habersham EMC 33. Three Notch EMC
14. Xxxx EMC 34. Tri-County EMC
15. Xxxxx EMC 35. Xxxxx EMC
16. Xxxxxxx EMC 36. Xxxxx EMC
17. Jefferson EMC 37. Xxxxxx EMC
18. Xxxxx EMC 38. Washington EMC
19. Little Ocmulgee EMC
The schedule to the Altamaha EMC Supplemental Agreement and certain
amendments to the Xxxx EMC Supplemental Agreement and the Snapping Shoals EMC
Supplemental Agreement are not filed herewith; however, the Registrant
hereby agrees that such documents will be provided to the Commission upon
request.
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