EXHIBIT 10.66.1
AMENDMENT NO. 5 TO HYDRO-QUEBEC PARTICIPATION AGREEMENT
This Amendment is made as of the twenty-first day of October,
1993, and is by, between and among each of the signatories to the
Hydro-Quebec Participation Agreement dated as of the first day of
April, 1988, as amended by Amendment No. 1 thereto and Restatement
thereof dated as of the thirty-first day of August, 1988,
Amendment No. 2 thereto dated as of the twenty third day of
August, 1989, Amendment No. 3 thereto dated as of the fifth day of
September, 1990, and Amendment No. 4 thereto dated as of the
thirty-first day of December, 1991, and amends and restates the
Agreement as hereinafter provided. All signatories hereto
specifically agree that each signatory will be fully bound by all
the terms and conditions of the Hydro-Quebec Participation
Agreement as thus amended and restated.
PRELIMINARY STATEMENT
At a Participants' special meeting held on October 21, 1993, the
Participants agreed to amend the Agreement to limit the
Participants' rights and obligations with respect to transactions
under the Interconnection Agreement to those transactions that are
approved by Vote of Participants, use transmission capacity
normally scheduled for deliveries of Contract energy, or have a
duration of not more than six months and to make certain related
changes to clarify how a Participant's Interconnection
Transactions Entitlement is determined and the procedure by which
a Participant may elect not to participate in such transactions
that are either approved by Vote or are for a term of not to
exceed six months.
The Participants also Voted to direct the Joint Owners to execute
an amendment (Amendment No. 3) to the Contract under which only
Central Vermont Public Service Corporation and Green Mountain
Power Corporation would remain as Vermont parties and that all
Participants, including Central Vermont Public Service Corporation
and Green Mountain Power Corporation, would continue to obtain
their Contract entitlements to Schedule A/B Power and Schedule C
Power pursuant to the Agreement.
Finally, the Agreement contains a number of provisions that no
longer have any effect or that have never been and never will be
given effect, including
preconditions (under existing Article II) to this Agreement's
effectiveness;
provisions (under existing Article V) governing the allocation of
Schedule A/B power and initial allocations of Schedule C Power;
provisions (under existing Article VI) providing for analysis of
the transmission paths available for the delivery of Contract
power and energy;
provisions (under existing Article VII) providing for the
assignment of transmission capacity in Existing Delivery
Facilities held by Excess Participants to Deficient Participants;
provisions (under existing Articles VIII and IX) for the joint
construction or use of New Transmission Facilities and New
Block-Loading Facilities that have not been and will not be
constructed or used; and
provisions (under existing Article X) providing for the recovery
of costs of providing transmission to Deficient Participants or
constructing New Transmission Facilities or New Block-Loading
Facilities.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and pursuant to the
provisions of Section 13.3 of the Agreement, it is hereby agreed
as follows;
1. Capitalized terms defined in Section 1.1 of the Agreement are
used herein with the meanings therein provided.
2. By executing this Amendment No. 5, the signatories agree that
the Agreement will be amended and restated as provided in Exhibit
1 hereto.
3. The signatories acknowledge and agree that this Amendment No. 5
may be effected by Vote of the Participants in accordance with
their respective Interconnection Transactions Entitlements in
effect as of the date on which this Amendment No. 5 is made.
4. This Amendment No. 5 will become binding upon the signatories
to this Amendment and become effective as of the date first
written above.
5. This Amendment No. 5's effectiveness is subject to all
Approvals required for its execution and performance.
6. Any number of counterparts to this Amendment No. 5 may be
executed, and each will have the same force and effect as an
original instrument, as if all the parties to all the counterparts
had executed the same instrument.
IN WITNESS WHEREOF, the signatories have caused this Amendment No.
5 to be executed by their duly authorized officers or agents.
XXXXXX VILLAGE, INC.
By /s/ Xxxxxx X. Xxxxxx
Its: Manager, Electric Department
Address: XX Xxx X
Xxxxxx, XX 00000
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ Xxxxxx de X. Xxxxx
Its: Senior Vice President Engineering & Energy Resources
Address: 00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
CITIZENS UTILITIES COMPANY
By: Xxxx X. Xxxx
Its:
Address: Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
VILLAGE OF ENOSBURG FALLS WATER AND LIGHT DEPARTMENT
By: /s/
Its: Village Manager
Address: Xxxxxxxx Xxxxx
Xxxxxxx 00000
GREEN MOUNTAIN POWER CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Its:
Address: XX Xxx 000
Xx. Xxxxxxxxxx
Xxxxxxx 00000-0000
VILLAGE OF HYDE PARK, INC.
By: /s/ Xxxxxx Xxxxxx, Xx.
Its: Chairman, Trustee
Address: XX Xxx 00
Xxxx Xxxx
Xxxxxxx 00000
VILLAGE OF LUDLOW ELECTRIC LIGHT DEPARTMENT
By: /s/ Xxxxxx Xxxxxxx
Its: Chairman
Address: XX Xxx 000
Xxxxxx, XX 00000
VILLAGE OF LYNDONVILLE ELECTRIC DEPARTMENT
By: /s/ Xxxxxxx X. Xxxxx
Its: Manager
Address: 00 Xxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxxx 00000
VILLAGE OF MORRISVILLE WATER AND LIGHT DEPARTMENT
By: /s/ Xxxxx X. Xxx
Its: Superintendent
Address: XX Xxx 000
Xxxxxxxxxxx
Xxxxxxx 00000
VILLAGE OF NORTHFIELD ELECTRIC DEPARTMENT
By: /s/
Its: Municipal Manager
Address: 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxx 00000
VILLAGE OF ORLEANS, INC.
By: /s/ Xxxx Xxxxxx, III
Its: Superintendent
Address: Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
ROCHESTER ELECTRIC LIGHT AND POWER COMPANY
By: /s/ Xxxxxx Xxxxxx
Its: President
Address: Xxxxx 000
Xxxxxxxxx
Xxxxxxx 00000
VILLAGE OF STOWE WATER AND LIGHT DEPARTMENT
By: /s/ Xxxxxxx X. Xxxxxx
Its: General Manager
Address: Xxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
VERMONT ELECTRIC POWER COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
Its: President
Address: XX Xxx 000
Xxxxxxx, XX 00000
VERMONT MARBLE - POWER DIVISION
OF OMYA, Inc.
By: /s/ Xxxx Xxxxxxxx
Its: President
Address 00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
WASHINGTON ELECTRIC COOPERATIVE, INC.
By: /s/
Its: President
Address: XX Xxx 0
Xxxxx 00
Xxxx Xxxxxxxxxx
Xxxxxxx 00000
(Subject to approval of the Rural Electrification Administration)
0000180.01
EXHIBIT 1
HYDRO-QUEBEC PARTICIPATION AGREEMENT
THIS AGREEMENT, restated as of the twenty-first day of October,
1993, is made as of the first day of April, 1988, and is by,
between and among each of the electric utilities the names and
principal addresses of which are set forth on the signature pages
to this Agreement. Capitalized terms used in this Agreement,
including the Preliminary Statement that follows, have the meaning
defined in Section 1.1 hereof.
PRELIMINARY STATEMENT
The Contract Joint Owners have entered into a Contract with
Hydro-Quebec for the purchase of power and energy. Pursuant to
Schedules A and B of the Contract, Hydro-Quebec agrees to make
available power and deliver associated energy respectively in the
amount of up to 44 megawatts, for a five-year period commencing in
late 1990, and 175 megawatts for a twenty-year period commencing
in late 1995. Pursuant to Schedule C of the Contract, Hydro-Quebec
agrees to make available power and deliver associated energy in
the cumulative amount (under five sub-schedules) of up to 172
megawatts for periods of up to twenty-two years, 12 megawatts of
which may be cancelled on or before November 1, 1996, and all of
which purchases will commence by the year 2000.
The Contract Joint Owners desire to make this Contract's power and
energy available to all of the Participants that have executed
this Agreement, and the Participants desire unconditionally to
assume the obligations therefor. Accordingly, this Agreement
provides for the assignment or the right to purchase Contract
power and energy to all Participants and permits each Participant
to purchase and obligates it to pay for its Schedule A/B Share and
its Schedule C Share of Contract power and energy and to provide
its own transmission facilities therefor.
Finally, this Agreement establishes a decision-making procedure
among all Participants and provides for certain aspects of its and
the Hydro-Quebec Contract's administration through VELCO and by a
Representative and an Operating Committee elected by the
Participants, all as provided hereinafter.
Now, therefore, for good and valuable consideration, receipt of
which is acknowledged by each signatory, the signatories to this
Agreement agree and covenant as follows:
Article I -- Definitions; Construction
1.1 Capitalized terms used in this Agreement have the meaning
defined in this Section 1.1.
1.1.1 Administration Costs: Reasonable and necessary costs,
incurred by VELCO (or any other agent designated to perform
VELCO's obligations hereunder), the Operating Committee, the
Representative, or another Participant if approved by Vote in
accordance with Section 3.1 hereof, to administer provisions of
this Agreement, or by the Participants, acting collectively under
this Agreement, including, without limitation, (a) costs incurred
to render bills to Participants, make payment to Participants or
Hydro-Quebec, and give Notice and conduct meetings as provided
herein, (b) costs incurred by the Representative (and the employee
or agent who acts therefor) and the Operating Committee (and any
member or alternate thereof) to the extent incurred for the
benefit of all Participants, including insurance in accordance
with Section 3.2 hereof, (c) legal, accountants' or auditors' fees
and expenses incurred for the benefit of all Participants, (d)
engineers' fees and expenses if approved by Vote in accordance
with Section 3.1 hereof, (e) the cost of obtaining and maintaining
any Approvals required to execute, amend or perform this
Agreement, the Contract or any of the transactions contemplated
hereby or thereby, and (f) all costs incurred to administer this
Agreement approved as part of the Participants' budget in
accordance with Subsection 3.1.3 of this Agreement.
1.1.2 Agreement: This Hydro-Quebec Participation Agreement.
1.1.3 Approval or Approvals: Any certification, license, consent,
order, acceptance for filing, permission to become effective,
resolution, vote, or other approval required to execute, deliver,
amend or perform this Agreement, and the transactions (including
the purchase of Contract and Interconnection Agreements power and
energy) contemplated hereby, including, without limitation, any
such action required by a Participant's governing board, the
Board, the Department, the Commission, the United States
Department of Energy, the United States Department of Agriculture
Rural Electrification Administration, in the case of a cooperative
its members, in the case of a municipality its citizens, and any
other such action or approval by any federal, state, or municipal
entity or person, and specifically including, without limitation,
a Certificate of Public Good pursuant to Section 248 of Title 30,
Vermont Statutes Annotated, the performance of or compliance with
any condition imposed thereunder and permission to become
effective under the Federal Power Act by the Commission.
1.1.4 Block-Loading Facilities: Any transmission or distribution
facility that is, or is capable of being, synchronized to the
Hydro-Quebec system directly or through the system of a
Participant.
1.1.5 Board: The State of Vermont Public Service Board.
1.1.6 CVPS: Central Vermont Public Service Corporation, a Vermont
electric utility the principal place of business for which is
located at the address set forth on the signature pages to this
Agreement.
1.1.7 Citizens: Citizens Utilities Company, a Vermont electric
utility the principal place of business or which is located at the
address set forth on the signature pages to this Agreement.
1.1.8 Claim or Claims: A claim or claims hereunder for losses,
liens, damages, demands, and causes of action, and all other
claims of every kind or character, including the amount of
judgments, settlements, awards, penalties, interest, court costs,
and legal consultants' and experts' fees incurred in defense of
same.
1.1.9 Commission: The United States Federal Energy Regulatory
Commission.
1.1.10 "Contract Joint Owners": CVPS and GMP, the two Vermont
signatories to the Contract.
1.1.11 Contract: The agreement, denoted "Firm Power and Energy
Contract," made the 4th day of December, 1987, between the
Contract Joint Owners and Hydro-Quebec, which is attached to this
Agreement as Exhibit A, as amended as of the date as of which this
Agreement is restated and as may be amended from time to time
hereafter (as provided therein and herein).
1.1.12 Department: The State of Vermont, acting through the
Department of Public Service.
1.1.13 Delivery Facilities or Delivery Facility: Collectively, the
Highgate Interconnection, Phase I, Phase II, Existing
Block-Loading Facilities, and any facilities designated by a
Participant under Subsection 4.5.1 of this Agreement;
individually, any such facility.
1.1.14 Existing Block-Loading Facilities: Block-Loading Facilities
owned by Citizens, including its existing points of
interconnection with Hydro-Quebec at Canaan, Derby Line and
Norton, to the extent that such facilities are used to deliver
power and energy (including Contract and Interconnection
Agreements power and energy) to Citizens or to Participants that
elect to transmit, distribute and deliver such power and energy by
such facilities.
1.1.15 GMP: Green Mountain Power Corporation, a Vermont electric
utility the principal place of business for which is located at
the address set forth on the signature pages to this Agreement.
1.1.16 Highgate Interconnection: A back-to-back, direct-current
converter facility in Highgate, Vermont, and a 345-kilovolt
transmission line operating at 120 kilovolts in Highgate and
Franklin, Vermont, that connects the converter facility to a
Hydro-Quebec 000 xxxxxxxx xxxx xx Xxxxxxx, Xxxxxx, which
facilities are jointly owned by the Joint Owners pursuant to the
Highgate Joint Ownership Agreement.
1.1.17 Highgate Joint Owners or Joint Owner: Collectively, the
eight signatories to the Highgate Joint-Ownership Agreement;
individually, any individual signatory thereto.
1.1.18 Highgate Joint-Ownership Agreement: The agreement, denoted
"Agreement for Joint Ownership, Construction, and Operation of the
Highgate Transmission Interconnection," made as of the first day
of August, 1984, by, between and among the Highgate Joint Owners,
as amended through and restated by Amendment No. 5 thereto dated
as of the first day of January, 1987, and as may be amended from
time to time hereafter.
1.1.19 Highgate Operating Agreement: The agreement, denoted
"Highgate Operating and Management Agreement," made and entered
into as of the first day of August, 1984, by and among VELCO and
the Highgate Joint Owners, as amended through Amendment No. 3
thereto dated as of the first day of January, 1987, and as may be
amended from time to time hereafter.
1.1.20 Hydro-Quebec: A body politic and corporate, duly
incorporated and regulated by the Hydro Quebec Act (R.S.Q.,
Chapter H-5), having its head office and principal place of
business at 00 Xxxxxxxxxx Xxxx. Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx.
1.1.21 Interest Rate: One Hundred Twenty Percent (120%) of the
current interest rate on prime commercial loans from time to time
in effect at The First National Bank of Boston.
1.1.222 Interconnection Agreement: The agreement, denoted
"Interconnection Agreement," made and dated as of the 23rd day of
February, 1987, between the Highgate Joint Owners and Hydro
Quebec, as may be amended from time to time hereafter (as provided
therein and herein).
1.1.23 Interconnection Agreements: The Interconnection Agreement
and the State Interconnection Agreement.
1.1.24 Interconnection Transactions Entitlement: A percentage that
is calculated by determining the weighted average (in total firm
kilowatts) of each Participant's Schedule A/B Share and its
Schedule C Share, such calculation to be made by the
representative on November 1 of each year.
1.1.25 Notice: Notice required by any provision of this Agreement
made in accordance with Section 8.10 hereof.
1.1.26 Operating Committee: The operating committee established
pursuant to section 3.2 of this Agreement.
1.1.27 Participants or Participant: Collectively, the signatories
to this Agreement except VELCO; individually, any individual
signatory except VELCO.
1.1.28 Participant Transaction: Any purchase of power or energy
under the Interconnection Agreements that is (a) approved by Vote
of the Participants at any annual or special meeting of the
Participants, (b) agreed between the Operating Committee and
Hydro-Quebec if and only to the extent that such purchase relates
to that part of the capacity in any Delivery Facilities committed
to deliveries of Schedule A/B Power or Schedule C Power that, in a
given hour of a calendar year, is not required for such deliveries
or (c) involves a term not to exceed six months.
1.1.29 Phase I: The first phase of a transmission interconnection
known as the Quebec-New England HVDC Interconnection," consisting
of a +450 kilovolt, direct-current transmission line between
Norton, Vermont, and Monroe, New Hampshire, and a converter
terminal, such facilities having a nominal transfer capability of
690 megawatts, plus certain reinforcements to the existing New
England alternating-current, bulk-transmission system required
therefor.
1.1.30 Phase I Agreements: The Phase I Support Agreements and the
Use Agreement.
1.1.31 Phase I Participants: Any Participant that has Phase I
Rights.
1.1.32 Phase I Rights: The right to use and to realize the benefit
of Phase I established by the Phase I Support Agreements and the
Use Agreement; for purposes of determining transmission
capability, Phase I Rights means firm capability for transmission
of Contract power and energy.
1.1.33 Phase I Support Agreements: The agreements, denoted "Phase
I Vermont Transmission Line Support Agreement," and "Phase I
Terminal Facility Support Agreement," each dated as of December 1,
1981, and each as amended through the date as of which this
Agreement is restated and as may be amended from time to time
hereafter.
1.1.34 Phase II: The second phase of a transmission
interconnection known as the "Quebec-New England HVDC
Interconnection," consisting of a +450 kilovolt, direct-current
transmission line between Monroe, New Hampshire, and Groton,
Massachusetts, and a converter terminal located in Groton,
Massachusetts, such facilities having a nominal transfer
capability of 1310 megawatts, plus certain reinforcements to the
existing New England alternating-current, bulk-transmission system
required therefor.
1.1.35 Phase II Agreements: The Phase II Support Agreements and
the Use Agreement.
1.1.36 Phase II Participants: Any Participant that has Phase II
Rights.
1.1.37 Phase II Rights: The right to use and to realize the
benefit of Phase II established by the Phase II Support Agreements
and the Use Agreement; for purposes of determining transmission
capability, Phase II Rights means firm capability for transmission
of Contract power and energy.
1.1.38 Phase II Support Agreements: The agreements, denoted "Phase
II Massachusetts Transmission Facility Support Agreement," "Phase
II New Hampshire Transmission Facility Support Agreement," "Phase
II New England Power AC Facility Support Agreement," and "Phase II
Boston Edison AC Facility Support Agreement," each dated as of
June 1, 1985, and each as amended through the date as of which
this Agreement is restated and as may be amended from time to time
hereafter.
1.1.39 Project 3 Agreement: The agreement, denoted "Transmission
Services Agreement for Project No. 3," among VPPSA and the VPPSA
Participants.
1.1.40 Pro Rata: An adjustment to a Participant's Share of any
purchases of Contract and Interconnection Agreements power and
energy, or the right to use any transmission facility used
hereunder to transmit and deliver such power and energy under this
Agreement, determined by the ratio of an individual Participant's
Share of Schedule A/B Power or Schedule C Power or its
Interconnection Transactions Entitlement to power and energy
purchased pursuant to Schedule A or B to the Contract, Schedule C
to the Contract or the Interconnection Agreements (as the case may
be) to the Share of all Participants involved in the calculation.
1.1.40.1 Where the calculation involves Shares of both Schedule
A/B Power and Schedule C Power, the adjustment will be weighted in
kilowatts based on a Participant's Share of Schedule A/B Power and
Schedule C Power (if any).
1.1.41 Representative: The representative elected pursuant to
Sub-section 3.1.1 of this Agreement.
1.1.42 Schedule A/B Participants: The Participants listed on
Schedule I to this Agreement.
1.1.43 Schedule A/B Power: Power and energy (and all rights
related thereto) purchased pursuant to Schedule A or Schedule B of
the Contract.
1.1.44 Schedule A/B Share: The Share of Schedule A/B Power
specified on Schedule I to this Agreement.
1.1.45 Schedule C Participants: The Participants specified on
Schedule IIA to this Agreement.
1.1.46 Schedule C Power: Power and energy (and all rights related
thereto) purchased pursuant to Schedule C of the Contract.
1.1.47 Schedule C Share: The amount of Schedule C Power purchased
by a Participant under the five Contract sub-schedules specified
on Schedule IIB to this Agreement.
1.1.48 Securities: Any stock certificate or other instruments
evidencing equity, or any bonds, notes or other instruments
evidencing indebtedness, issued to finance the construction of
Delivery Facilities or any other obligations of a Participant
required hy this Agreement.
1.1.49 Share: Either (as the case may be) a Participant's right in
kilowatts and kilowatt-hours to any purchase of power and/or
energy or a percentage interest in rights and obligations pursuant
to any provision of this Agreement, the Contract or the
Interconnection Agreement.
1.1.50 State Interconnection Agreement: The Agreement, denoted
"Interconnection Agreement," made on July 25, 1984, between the
Department and Hydro-Quebec.
1.1.51 Transmission Rights: A Participant's contractual right to
use a Delivery Facility for transmission of energy if and to the
extent such facility has been committed by the Participant for
deliveries of Schedule A/B Power or Schedule C Power.
1.1.52 Use Agreement: The Agreement, denoted "Agreement with
respect to Use of Quebec Interconnection," dated as of May 1,
1982, as amended through the date as of which this Agreement is
restated and as may be amended from time to time hereafter.
1.1.53 VELCO: Vermont Electric Power Company, Inc., a Vermont
electric utility, the principal place of business for which is
located at the address set forth on the signature pages to this
Agreement.
1.1.54 Vermont Phase I Agreement: The agreement, denoted "Vermont
Participation Agreement for Quebec Interconnection," dated as of
July 15 1982, between VELC0 and those Participants that have Phase
I Rights, as amended through the date as of which this Agreement
is restated and as may be amended from time to time hereafter.
1.1.55 Vermont Phase II Agreement: The agreement, denoted "Vermont
Support Agency Agreement Re: Quebec Interconnection - Phase II,"
dated as of June 1, 1985, between and among VELCO and those
Participants that have Phase II Rights as amended through the date
as of which this Agreement is restated and as may be amended from
time to time hereafter.
1.1.56 VPPSA: Vermont Public Power Supply Authority, a
joint-action agency organized pursuant to Chapter 84 of Title 30,
Vermont Statutes Annotated, the principal place of business for
which is currently located at 000 Xx. Xxxxxx, Xxxxxxxxx, XX 00000.
1.1.57 VPPSA Participant or VPPSA Participants: Individually, a
Participant listed on Schedule IV to this Agreement that has
rights to use a portion of VPPSA'S "ownership share" (under the
Highgate Joint-Ownership Agreement) in the Highgate
Interconnection; collectively, as the context requires, more than
one or all such Participants.
1.1.58 Vote: A vote in accordance with Section 3 of this Agreement
required to make any decision or determination made by the
Participants pursuant to any provision or this Agreement.
1.2 This Agreement will be interpreted and governed as provided in
this Section 1.2.
1.2.1 This Agreement will be governed by and construed in
accordance with the laws of the State of Vermont.
1.2.2 If any clause or provision of this Agreement, or any part
thereof, is declared invalid or unenforceable by any court, board,
agency or other quasi-judicial tribunal having jurisdiction
thereof, such invalidity or unenforceability will not affect the
validity or enforceability of the remaining clauses and provisions
of this Agreement.
1.2.3 All provisions of this Agreement providing for
indemnification against any Claims for liability will apply to the
full extent permitted by law, and regardless of fault, and will
survive termination pursuant to this Agreement.
1.2.4 Any number of counterparts to this Agreement may be
executed, and each will have the same force and effect as the
original.
1.2.5 This Agreement, together with any other agreement expressly
named or for which provision is expressly made herein, constitute
the entire understanding among the signatories and supersedes any
and all previous understandings pertaining to the subject matter
of this Agreement.
1.2.6 Captions used to identify any article, section or subsection
of this Agreement are for the convenience of the signatories only
and will not be used to assist in interpreting any provision of
this Agreement.
Article II -- Assignment of Contract Power; Performance of
Contract Obligations; Assumption of Obligations
2.1 Joint Owners' Responsibility. To the extent authorized under
Article 15.1 of the Contract and Article 13.0 of the
Interconnection Agreement, each Contract Joint Owner and each
Highgate Joint Owner makes the assignments and agrees to perform
the other obligations set forth in this Section 2.1.
2.1.1 Each Contract Joint Owner unconditionally assigns to the
Participants its share of all power and energy purchased by it
pursuant to the Contract, and each Highgate Joint Owner
unconditionally makes a partial assignment to the Participants of
its Share of all power and energy purchased by it pursuant to the
Interconnection Agreement only for purposes of Participant
Transactions.
2.1.2 Each Contract Joint Owner agrees unconditionally to make
available to the Participants its Share of all other benefits to
which it is entitled pursuant to the Contract, and each Highgate
Joint Owner agrees to make available to the Participants its Share
of all other benefits to which it is entitled pursuant to the
Interconnect on Agreement that relates to Participant
Transactions.
2.1.3 To the extent that a Contract Joint Owner has discretion
with respect to the performance of any obligation under the
Contract or a Highgate Joint Owner has discretion with respect to
the performance of any obligation under the Interconnection
Agreement that relates to Participant Transactions, each such
Joint Owner agrees to perform such obligation in accordance with
such direction as may be given by Vote.
2.1.4 The Highgate Joint Owners agree to vote to elect as members
of the Highgate Interconnection "operating committee" (pursuant to
the Highgate Joint-Ownership Agreement) the persons elected to the
Operating Committee pursuant to Section 4.2 of this Agreement;
these Joint Owners further authorize the Operating Committee so
elected by the Participants to perform all responsibilities of
such Highgate Interconnection operating committee on the
Participants' behalf.
2.1.5 To the extent that performance of this Section 2.1 requires
approval by the Highgate Joint Owners pursuant to the Highgate
Joint Ownership Agreement, each such Joint Owner hereby consents
to and approves such transfer.
2.2 Subject to and in accordance with the provisions of this
Agreement, the Participants unconditionally assume all or the
Contract Joint Owners' obligations under the Contract and the
Highgate Joint Owners' obligations under the Interconnection
Agreement that relate to Participant Transactions, as though the
Contract and the Interconnection Agreement have been assigned to
them.
2.2.1 Specifically, and without limiting the foregoing, each
Schedule A/B Participant unconditionally agrees to pay its
Schedule A/B Share of the Contract Joint Owners' payment
obligations for power and energy purchased pursuant to Schedules A
or B of the Contract.
2.2.2 Specifically, and without limiting the foregoing, each
Schedule C Participant unconditionally agrees to pay its Schedule
C Share of the Contract Joint Owners' payment obligations for
power and energy purchased pursuant to Schedule C of the Contract.
2.2.3 Specifically, and without limiting the foregoing, each
Participant unconditionally agrees to pay its Interconnection
Transactions Entitlement of the Highgate Joint Owners' payment
obligations that relate to any Participant Transaction under the
Interconnection Agreement.
2.3 Upon termination of this Agreement as to all Participants as
provided in Section 8.9 of this Agreement, the Participants will,
and by this Agreement do, reassign to the Contract Joint Owners
and Highgate Joint Owners (as the case may be) all rights assigned
to them pursuant to Section 2.1 of this Agreement.
2.3.1 Each Participant agrees to execute and perform any notice,
filing, petition, contract, instrument or other document necessary
to implement such assignment.
Article III -- Participant Decisions; Representative; Operating
Committee
3.1 All decisions of the Participants will be made by Vote of at
least three individual Participants having a cumulative
Interconnection Transactions Entitlement of more than fifty
percent (50%), provided, however, that decisions that pertain only
to Schedule A/B Power or only to Schedule C Power will be made by
three Schedule A/B Participants or three Schedule C Participants
(as the case may be) having a cumulative Schedule A/B Share or
Schedule C Share of more than fifty percent (50%).
3.1.1 The Participants will vote to elect a Representative, which
will be a Participant that is not elected to the Operating
Committee pursuant to Sect-on 2.2 of this Agreement. The
Participant elected will appoint an employee or agent to perform
the Representative's obligations, who will have authority to act
on behalf of the Participants with respect to all matters under
this Agreement for which the Representative is responsible,
excluding those responsibilities, authority and decisions of the
Participants or the Operating Committee for which provision is
made in this Agreement. The Participants will reimburse the
Administration Costs incurred by the Representative pursuant to
Section 5.5 of this Agreement.
3.1.2 The Representative will schedule an annual meeting of the
Participants for purposes of electing the Representative in
accordance with this section, electing the Operating Committee as
provided in Section 3.2 hereof, adopting a budget of
Administration Costs as required pursuant to Subsection 3.1.3 of
this Agreement, appointing an auditor to audit the performance of
VELCO (or such other person appointed pursuant to Section 5.7
hereof) under Article V of this Agreement, if the Participants
Vote so to do, and taking such other action as may be appropriate,
which meeting will take place no earlier than October 1 or later
than December 31 of any calendar year.
3.1.2.1 Any Participant or the Representative may request a
special meeting of the Participants by Notice to the
Representative, and the Representative will schedule such meeting
promptly upon receipt of such Notice, providing each Participant
and VELCO fifteen (15) days Notice thereof.
3.1.3 At the annual meeting for which provision is made in
Subsection 3.1.2 hereof, the Participants will adopt a budget for
the Administration Costs to be incurred in the succeeding calendar
year.
3.1.4 For and in consideration of any Participant's willingness to
serve as a Representative for no consideration other than the
payment of its costs as provided in Subsection 3.1.1 of this
Agreement, each other Participant will indemnify, defend and hold
harmless any Participant elected as a Representative, and the
employee or agent appointed by such Participant to act therefor,
from and against all Claims arising in favor or brought about by
or on behalf of any person, including any other Participant and
any governmental authority, arising on account of personal
injuries, bodily injuries or death, including employees or agents
of such Participant, or damage to or loss of property caused by
any act or omission of such Participant, including such employees
or agents, or anyone for whose acts any of them may be liable,
arising out of its (or their) performance hereunder as the
Representative, provided, however, that such Participant will be
liable for such Claims to the extent that they are finally
determined to have been caused by such Participant's wanton or
willful misconduct by a court of competent authority, and
following expiration of the time for, or affirmance following, all
appeals therefrom.
3.1.5 If any Participant claims that a Participant elected as
Representative has breached its responsibilities under this
Agreement or has otherwise acted against, or omitted to act in,
the interest of all Participants as provided hereunder, it will
give Notice to all Participants no later than the earlier of six
(6) months after the date on which such breach is discovered, or
should have been discovered with the exercise of due diligence, or
three (3) years after the date on which such breach is claimed to
have occurred, and the failure to give Notice within such period
will constitute a release of the Participant elected as
Representative from any Claims against such Participant brought
pursuant to this Subsection 4.1.5 with respect to such claimed
breach.
3.1.6 Each January, the Representative will retain the auditor, if
any, appointed at the annual meeting (for which provision is made
in Subsection 3.1.2 hereof) to audit the performance of VELCO (or
such other person appointed pursuant to Section 5.7 hereof) under
Article V of this Agreement. After receipt of the auditor's
report, the Representative may schedule a special meeting of the
Participants to review such report and take such action as may be
appropriate thereon.
3.2 By Vote in accordance with Section 3.1 of this Agreement, the
Participants will elect annually two Participants to serve on the
Operating Committee, which will have the responsibilities of the
Operating Committee established pursuant to this Agreement, the
Contract, the Interconnection Agreements, and any other
power-purchase or transmission agreement between the Highgate
Joint Owners and Hydro-Quebec, provided that an individual
Participant may not be elected to serve more than one of the
Operating Committee's two positions. The Participants agree to
reimburse Administration Costs incurred by each Participant
elected to the Operating Committee pursuant to Section 5.5 of this
Agreement and will insure each such Participant (and the member
and alternate appointed to the Operating Committee) against all
risks (including negligence) arising from its (or their)
performance hereunder to the extent such insurance is available at
reasonable cost from a carrier of recognized financial
responsibility that is qualified to transact business in Vermont.
3.2.1 Each Participant elected will determine the individual
employee or agent who will serve as the member of the Operating
Committee and as such member's alternate.
3.2.2 The Operating Committee will give Participants Notice of,
and Participants will have the right to attend, meetings of the
Operating Committee, including meetings that Hydro-Quebec members
attend; provided, however, that Participants will not have the
right to attend meetings with Hydro-Quebec involving negotiations
related to the Contract, the Interconnection Agreements or any
other power-purchase or transmission agreements, but through the
Representative the Operating Committee will report to all
Participants periodically on the substance of any such
negotiations, including on any consideration of or proposed
Participant Transactions as provided in Paragraphs 3.2.2.1 or
3.2.2.2 of this Agreement.
3.2.2.1 The Operating Committee or any member thereof will inform
the Representative (or its agent) of any negotiations with
Hydro-Quebec at which use of either of the Interconnection
Agreements to effect a Participant Transaction is first considered
as soon as practicable following such negotiations.
3.2.2.2 The Operating Committee will give Notice to the
Representative and all Participants of any proposed Participant
Transaction described in Paragraph 1.1.28(c), such Notice to
include the transaction's basic terms and be effective at 5:00
p.m. on the third full business day after such Notice is given.
3.2.3 The Operating Committee will (and by this Agreement each
Participant will cause any member or alternate chosen by it to
serve on the Operating Committee to) act in good faith and
consistent with prudent utility practice, the objective being to
administer the Operating Committee's responsibilities hereunder so
that Contract power and energy or power and energy purchased under
the Interconnection Agreements, or any other power-purchase
agreement with Hydro-Quebec subject to this Agreement, will be
planned, procured, scheduled, transmitted, distributed and
delivered for the benefit of all Participants consistently with
the requirements of and subject to any restrictions or limitations
in any such agreement, and so that the scheduling, use and
management of the Delivery Facilities will be operated as
efficiently, economically, safely, and reliably as possible
consistently with the requirements and subject to any restrictions
or limitations in agreements governing the support, operation or
use of such facilities and with the interests of any Participant
owning such facilities.
3.2.4 For and in consideration of any Participant's willingness to
serve as a member of the Operating Committee for no consideration
other than the payment of its costs as provided in Section 3.2 of
this Agreement, each other Participant will indemnify, defend and
hold harmless each Participant elected to the Operating Committee,
its officers, employees and agents, including the employees or
agents selected by each such Participant to be a member or an
alternate on the Operating Committee, from and against all Claims
arising in favor or brought about by or on behalf of any person,
including any other Participant and any governmental authority,
arising on account of personal injuries, bodily injuries or death,
including employees or agents of such Participant, or damage to or
loss of property caused by any act or omission of such
Participant, or such employees or agents, or anyone for whose acts
any of them may be liable, arising out of its (or their)
membership on the Operating Committee, provided however, that a
Participant will be liable for such Claims to the extent they are
finally determined to have been caused by such Participant's
negligence, gross negligence or material breach of this Agreement
(not approved by Vote of the Participants) or its wanton or
willful misconduct by a court of competent authority, and
following expiration of the time for, or affirmance following, all
appeals therefrom.
3 2.5 If any Participant claims that any Participant elected to
the Operating Committee has breached its responsibilities under
this Agreement or otherwise acted against, or omitted to act in,
the interest of all Participants as provided hereunder, it will
give Notice to the Participants no later than the earlier of six
(6) months after the date on which such breach is discovered, or
should have been discovered with the exercise of due diligence, or
three (3) years after the date on which such breach is claimed to
have occurred, and the failure to give Notice within such period
will constitute a release of such Participant from any Claims
against such Participant brought pursuant to Section 3.2 hereof
with respect to such claimed breach.
3.3 Each Participant will inform the Representative (or its agent)
and the Operating Committee of negotiations with Hydro-Quebec at
which use of either of the Interconnection Agreements to effect a
transaction is first considered as soon as practicable following
such negotiations.
Article IV -- Allocation of Shares of Schedule A/B Power and
Schedule C Power
4.1 Each Participant named on Schedule I to this Agreement has the
right to purchase and the obligation to pay, and perform other
obligations related to, its Share of Schedule A/B Power set forth
on Schedule I to this Agreement.
4.2 Each Participant named on Schedule IIA to this Agreement has
the right to purchase and the obligation to pay, and perform other
obligations related to, its Share of Schedule C Power set forth on
Schedule IIB to this Agreement.
4.3 Each Participant named on Schedule III to this Agreement has
the right to purchase and the obligation to pay, and perform other
obligations related to, its Interconnection Transactions
Entitlement (set forth on Schedule III to this Agreement) of any
Participant Transactions.
4.3.1 For each Participant Transaction described in Subsection
1.1.28(a), a Participant will have only such purchase right or
payment or other obligations if it either has Voted for the
transaction or, if it Voted against the transaction, gave Notice
to the Representative and Operating Committee before such Vote of
its intent to participate in the transaction if nonetheless
approved. A Participant that Votes against such transaction
without such Notice will be deemed to have waived any rights it
has under this Agreement to the benefits of such transaction and
each other Participant that so Votes to participate or notifies
the Representative and Operating Committee of its participation in
the transaction will be deemed to have waived any Claims it has
against such nonparticipating Participant with respect to any
payments for or other obligations related to such transaction.
4.3.2 For each Participant Transaction described in Subsection
1.1.28(b), all Participants will have such purchase right and
payment and other obligations, without any requirements of Notice
to or approval of the transaction by any Participant.
4.3.3 For each Participant Transaction described in Subsection
1.1.28(c), a Participant will have only such purchase right or
payment and other obligations if it gives notice to the
Representative and Operating Committee of its agreement to
participate in such transaction and such Notice is received by the
Representative and Operating Committee before the Operating
Committee's Notice of such transaction becomes effective (for
which provision is made in Paragraph 3.2.2.1 of this Agreement).
If a Participant elects not or omits to give such Notice before
the Operating Committee's Notice becomes effective, such
Participant will be deemed to have waived any rights it has under
this Agreement to the benefits of such transaction and each other
Participant that participates in the transaction will be deemed to
have waived any Claims it has against such non-participating
Participant with respect to any payments for or other obligations
related to such transaction.
4.4 Upon each new calculation of the Interconnection Transactions
Entitlement or the consummation of any assignment permitted under
Section 8.4 of this Agreement, including any disposition of assets
for which provision is made in Subsection 8.4.2 or decision not to
cancel Schedule C Power under Subsection 8.4.3, the Representative
will adjust the Participants named, their Shares of Contract power
and associated energy or their Interconnection Transactions
Entitlement stated in Schedules I, IIA, IIB or III to this
Agreement (as necessary), substitute new schedules to this
Agreement as so adjusted and provide Notice thereof to each
signatory hereto.
4.5 Each Participant will provide firm transmission capacity on
Delivery Facilities adequate to transmit its Share of Schedule A/B
Power and Schedule C Power (if any) and, by this Agreement, will
have no right to use any such transmission capacity provided by
any other Participant for transmission of its Share of such power
for any transaction other than Participant Transactions.
4.5.1 Section 4.5 notwithstanding, a Participant will have the
right to use transmission facilities other than the entitlement to
Delivery Facilities that it has as of the date on which this
Agreement is restated for transmission of its Share or contract
power and energy under this Agreement upon Notice to the
Representative of its intent to use new Delivery Facilities and
provided that such transmission, combined with such Participant's
right to use existing Delivery Facilities, will be adequate to
transmit its Share of Contract power and energy under this
Agreement and will be subject to this Agreement's provisions,
including its provisions for default under Article VI hereof.
Article V -- Billing
5.1 VELCO will be responsible for all billing arrangements
hereunder as set forth in this Article V.
5.2 The Participants hereby indemnify VELCO, and its employees and
agents, from and against all Claims arising in favor or brought
about by or on behalf of any third person, including any
governmental authority, on account of personal injuries, bodily
injuries or death, including employees or agents of VELCO or any
Participant, or damage to or loss of property caused by any act or
omission of VELCO or any Participant, or its or their agents or
employees, or anyone for whose acts any of them may be liable,
arising out of its (or their) performance of this Agreement,
provided, however, that VELCO will be liable for such claims to
the extent that they are finally determined to have been caused by
its willful or wanton misconduct by a court of competent
authority, and following expiration of the time for, or affirmance
following, all appeals therefrom.
5.3 VELCO agrees to pay to Hydro-Quebec when due all amounts
billed to the Participants pursuant to the Contract, the
Interconnection Agreements, or any other power-purchase or
transmission agreement approved by Vote of the Participants.
5.4 No later than the tenth (10th) day of each calendar month,
VELCO will xxxx each Participant for its Share of Schedule A/B
Power, Schedule C Power and Participant Transactions delivered
during the previous month (in advance of receiving from
Hydro-Quebec the xxxx therefor).
5.4.1 Such bills will be decreased to the extent of any credit due
a Participant on payments made in previous months in excess of the
actual charges due pursuant to this Agreement and increased to the
extent payments made in previous months were less than amounts due
pursuant to this Agreement, with interest thereon at VELCO's cost
of working capital.
5.4.2 Each Participant agrees to pay no later than the fifteenth
(15th) day of each calendar month all amounts so billed to it by
VELCO. Payments made after the fifteenth (l5th) day of the month
will accrue interest at the Interest Rate.
5.4.3 The obligation to make payment under this Section 5.4, and
under any other provision of this Agreement, is unconditional and
applies whether the Delivery Facilities, or any additional
Delivery Facilities designated by the Participant as provided in
Subsection 4.5.1 hereof, are available or operate or not and
regardless of whether energy is delivered to a Participant by such
facilities pursuant to the Contract or the Interconnection
Agreements.
5.5 In addition to any amounts due and billed hereunder, VELCO
will xxxx each Participant monthly in advance for its share of
Administration Costs, allocated in accordance with the
Interconnection Transactions Entitlement of each Participant. Such
bills will be rendered and paid on the dates, will bear interest
at the Interest Rate, and will be adjusted in successive months as
provided in Section 5.3 of this Agreement.
5.6 If a Participant makes a general assignment for the benefit of
creditors, or if any proceeding is instituted against a signatory
(and is not dismisses within sixty (60) days), or by a signatory,
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, or composition of lt or
its debt under any law related to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking appointment of a
receiver, trustee, or other similar official for it or for any
substantial part of its property, or if a signatory takes any
action to authorize any of the actions set forth in this Section
5.6, or in the event of an occurrence, transaction, event or
condition (arising after the date hereof) affecting a Participant
that in the opinion of the Participants, reasonably exercised (and
as evidenced by Vote), and, after first having given such
Participant an opportunity to present its views, materially could
impair the ability of such Participant to continue to pay its
current obligations as they become due, such Participant will be
obligated to make payment of all amounts due under this Agreement
(on an estimated basis and subject thereafter to adjustment as
provided in Subsection 5.4.1 hereof) forty-five (45) calendar days
before the date on which bills would otherwise be due as provided
herein.
5.7 Upon ninety (90) days' Notice to each signatory, including
VELCO, and Payment of all amounts due VELCO hereunder, including
payments due for such ninety- (9O-) day period, the Participants
by Vote may terminate VELCO's obligations under this Article V and
appoint another person that upon execution of this Agreement will
perform VELCO's obligations under this Article V.
Article VI -- Defaults; Remedies
6.1 Default Pursuant to Underlying Agreements
6.1.1 A Highgate Joint Owner in default under the Highgate
Joint-Ownership Agreement or the Highgate Operation Agreement (or
a VPPSA Participant in default under the Project 3 Agreement) is
in default of this Agreement; if other Highgate Joint Owners (or
VPPSA Participants) assume such defaulting Highgate Joint Owner's
(or VPPSA Participant's) obligations in accordance with the
Highgate Joint-Ownership Agreement (or Project 3 Agreement), then
such curing Highgate Joint Owners (or VPPSA Participants) will
succeed Pro Rata to such defaulting Highgate Joint Owner's (or
VPPSA Participant's) rights as a Participant under this Agreement
unless and until such defaulting Participant cures its default as
provided thereunder.
6.1.2 A Phase I Participant in default under the Vermont Phase I
Agreement is in default or this Agreement; if other Phase I
Participants assume such defaulting Phase I Participant's
obligations under the Vermont Phase I Agreement, then such curing
Phase I Participants will succeed Pro Rata to such defaulting
Phase I Participant's rights as a Participant under this Agreement
unless and until such defaulting Participant cures its default as
provided thereunder.
6.1.3 A Phase II Participant in default under the Vermont Phase II
Agreement is in default or this Agreement; if other Phase II Par-
ticipants assume such defaulting Phase II Participants obligations
in accordance with the Vermont Phase II Agreement, then such
curing Phase II Participants will succeed Pro Rata to such
defaulting Phase II Participant's rights as a Participant under
this Agreement unless and until such defaulting Participant cures
its default as provided thereunder.
6.2 Failure to Cure Default Pursuant to Underlying Agreements
6.2.1 If a Highgate Joint Owner is in default under the Highgate
Joint-Ownership Agreement or the Highgate Operation Agreement (or
a VPPSA Participant under the Project 3 Agreement), and the
non-defaulting Highgate Joint Owners (or VPPSA Participants) fail
to cure such default, then the other Participants hereunder will
assume all the defaulting Highgate Joint Owner's (or to the extent
not cured hy other VPPSA Participants, a VPPSA Participant's)
obligations under the Highgate Joint-Ownership Agreement or the
Highgate Operation Agreement (or Project 3 Agreement) Pro Rata,
and the defaulting Highgate Joint Owner (or VPPSA Participant)
agrees to take all actions necessary to assign and otherwise
transfer to the Participants so curing hereunder all of the
defaulting Highgate Joint Owner's (or VPPSA Participant's) rights
under the Highgate Joint-Ownership Agreement or the Highgate
Operation Agreement (or Project 3 Agreement) and such
Participant's right hereunder to purchase Contract and
Interconnection Agreements power and energy transmitted thereby
unless and until such defaulting Participant cures its default as
provided thereunder.
6.2.2 If a Phase I Participant is in default under the Vermont
Phase I Agreement, and the nondefaulting Phase I Participants fail
to cure such default, then the other Participants hereunder will
assume all the defaulting Phase I Participant's obligations under
the Vermont Phase I Agreement Pro Rata, and the defaulting Phase I
Participant agrees to take all actions necessary to assign and
otherwise transfer to the Participants so curing hereunder all of
the defaulting Phase I Participants rights under the Vermont Phase
I Agreement and such Participant's right hereunder to purchase
Contract and Interconnection Agreements power and energy
transmitted thereby unless and until such defaulting Participant
cures its default as provided thereunder.
6.2.3 If a Phase II Participant is in default under the Vermont
Phase II Agreement, and the nondefaulting Phase II Participants
fail to cure such default, then the other Participants hereunder
will assume all the defaulting Phase II Participant's obligations
under the Vermont Phase II Agreement Pro Rata, and the defaulting
Phase II Participant agrees to take all actions necessary to
assign and otherwise transfer to the Participants so curing
hereunder all or the defaulting Phase II Participant's rights
under the Vermont Phase II Agreement and such Participant's right
hereunder to purchase Contract and Interconnection Agreements
power and energy transmitted thereby unless and until such
defaulting Participant cures its default as provided thereunder.
6.3 Default under this Agreement
6.3.1 If a Schedule A/B Participant fails to pay for Schedule A/B
Power or Transmission Rights related thereto as required
hereunder, including any Administration Costs related thereto,
then all other Participants will immediately assume such resulting
Participant's obligations under this Agreement pertaining to
Schedule A/B Power and Transmission Rights related thereto Pro
Rata; if such defaulting Participant fails to cure within 90 days,
then the defaulting Participant's rights hereunder with respect to
Schedule A/B Power, including its Transmission Rights therefor,
will be terminated, and such curing Participants will thereafter
permanently assume the obligations and be entitled to the
defaulting Participant's rights to Schedule A/B Power and such
Transmission Rights under this Agreement Pro Rata without further
obligation to such defaulting Participant.
6.3.2 If a Schedule C Participant fails to pay for Schedule C
Power or Transmission Rights related thereto as required
hereunder, including any Administration Costs related thereto,
then the other Participants will immediately assume such
defaulting Participant's obligations under this Agreement
pertaining to Schedule C Power and Transmission Rights related
thereto Pro Rata; if such defaulting Participant fails to cure
within 90 days, then the defaulting Participant's rights hereunder
with respect to Schedule C Power, including its Transmission
Rights therefor, will be terminated, and such curing Participants
will thereafter permanently assume the obligations and be entitled
to the defaulting Participant's rights to Schedule C Power and
such Transmission Rights under this Agreement Pro Rata without
further obligation to such defaulting Participant.
6.3.3 A Participant in default of both its Schedule A/B Power or
Transmission Rights obligations as provided in Subsection 6.3.1
and its Schedule C Power or Transmission Rights obligations as
provided in Subsection 6.3.2 will be in default of this Agreement
and upon failure to cure as provided in each such subsection will
be terminated from this Agreement.
6.4 By the provisions of this Article VI, the Participants intend
that any and all Participants required hereunder to assume a
Participant's obligation to pay for (a) transmission facilities
used hereunder will be entitled to such Participant's rights and
will assume its obligations to purchase the power and energy
transmitted by such facility, and (b) power and energy hereunder
will be entitled to such Participant's rights and will assume its
obligations to use the transmission facilities used by such
Participant hereunder to transmit such power and energy.
6.5 The foregoing notwithstanding, each Participant reserves all
of its rights at law and equity against a Participant in default
(as provided in this Article VI) or otherwise in breach of this
Agreement.
6.5.1 A Participant that is a municipality covenants and agrees to
fix, revise and collect fees and charges for electric power and
energy and other services, facilities and commodities furnished or
supplied through its electric system at least sufficient to
provide revenues adequate to meet its obligations under this
Agreement and, in addition, to pay all other amounts payable from
or constituting a charge and lien upon such revenues, including
amounts sufficient to pay the principal of and interest on all
Securities issued by the Participants for electric purposes. The
obligations of such a Participant under this Agreement will be
treated as an expense of operating its electric plant and
constitute a special obligation of the Participant payable solely
from the revenues and other moneys derived by it from its electric
system.
Article VII -- Cooperation Among Participants
7.1 Each Participant will provide or cause to be provided such
assistance as set forth in this Article VII as another Participant
may reasonably request and for which such Participant agrees to
pay in connection with the issuance and sale, whether public or
private, by such Participant of any Securities.
7.2 Each Participant, in connection with the issuance and sale by
any other Participant of Securities, will make available one of
its senior personnel, who is knowledgeable about the
electric-utility business of such Participant, to assist in the
preparation of any official statement or report; provided,
however, that such assistance and preparation will be limited to
such information concerning the electric-utility business of such
Participant as may be necessary and relevant to any such official
statement or report. Such assistance will be provided at such
times, and at such places, as shall be reasonably agreed by such
Participant that requests assistance and the Participant providing
such assistance.
7.3 Each Participant and any entity acting on its behalf in the
preparation of any statement or report will certify and represent
to any Participant that requests such statement or report as true,
subject to any qualification contained in such certification, any
information contained in the respective statements or reports
supplied by or on behalf of such Participant (including any such
entity) to any other Participant under this article, and such
Participant (and any such entity, as applicable) will state that
any statements in such reports that purport to be statements of
fact are true and correct in all material respects and that such
report does not omit to state any material fact necessary to make
such report not misleading in the light of the circumstances under
which it is furnished. Such certification and representation will,
upon request of the underwriters or any other financing entity
involved in the issuance and sale of Securities, be embodied in a
letter or letters of representation addressed to the underwriters
or to such other financing entity.
7.4 Each Participant will also, upon request, furnish an opinion
of its counsel addressed to the underwriters or to any other
financing entity involved in the issuance and sale of Securities
by another Participant that requests assistance under this article
to the effect that the execution and delivery by such Participant
of the letter or letters of representation referenced in this
article to be executed by it have been duly and effectively
authorized by all requisite action.
7.4.1 A Participant's failure to furnish such an opinion will not
constitute grounds for its termination hereunder, but the
Participant will be liable hereunder for any Claims by the
Participant that requests such assistance.
7.5 Any liability for any Claims that any Participant may have to
any other Participant, the underwriters of any Securities, or any
other financing entity involved in the issuance and sale by a
Participant of any Securities, by reason of any misstatement of
material fact or omission of material facts by such Participant in
the information furnished pursuant to this article, will be borne
by such Participant, subject to any rights of contribution to
which it may be entitled by law, and will not be a cost
reimbursable by the other Participants under this Agreement. For
purposes of the preceding sentence, such Participant's liability
will include the costs of its defense of any lawsuit involving the
subject matter of such sentence, whether or not such Participant
prevails in such defense, but to the extent permitted by law such
Participant will be held harmless by the Participant that requests
assistance under this article against any and all Claims against
such Participant, including reasonable attorneys' fees, resulting
from any misleading, improper or erroneous use of such information
by the Participant that requests such assistance, the
underwriters, or any other financing entity involved in such
Participant's issuance of Securities. The Participant that
requests assistance under this article will also bear all other
costs of the Participant that provides such assistance as provided
in this article, excepting, however, any liability resulting from
any misstatement by such Participant of a material fact or the
omission by such Participant of a material fact necessary in order
to make information provided under this article, in the light of
the circumstances under which it was furnished, not misleading.
Article VIII -- Miscellaneous Provisions
8.1 There is no intention to create by this Agreement, or by any
other contract, transaction or activity related hereto, an
association, joint venture, trust or partnership, or to impose on
any signatory trust or partnership rights or obligations; any such
implied intention is expressly negated. Except as expressly
provided in this Agreement, no signatory will have by virtue of
this Agreement or of any such contract, transaction or action the
right or power lo bind any other signatory without the other
signatory's express written consent.
8.2 Nothing in this Agreement is intended to create any rights or
benefits for any person that has not executed this Agreement.
8.3 This Agreement may be amended by Vote in accordance with
Section 3.1 of this Agreement, except that with respect to any
right or obligation of VELCO this Agreement may be amended only by
such Vote with VELCO's written consent, and provided, however,
that no amendment may operate to (a) reduce the Vote required to
amend this Agreement or (b) change the rights and obligations of
any Participant relative to the other Participants based on their
Shares of Contract power or energy hereunder or (c) change the
nature of costs and expenses to be shared by the Participants
pursuant to this Agreement, in each case without the written
consent of each Participant. Amendments to this Agreement must be
in writing and be executed by the requisite signatories required
to effect amendment pursuant to this Section 8.3.
8.4 This Agreement may not be assigned to any other signatory or
to any person not a signatory to this Agreement except (a) if the
signatory making the assignment remains unconditionally obligated
to perform its obligations under this Agreement, (b) such
assigning signatory will have given each other signatory Notice of
the proposed terms of assignment, such Notice to (and by this
Agreement does) constitute an offer to each other signatory (other
than VELCO) to assign on the same terms and conditions of the
proposed assignment its rights under this Agreement, and (c) the
proposed assignment will not be consummated until ninety (90) days
following the date on which such Notice will have been given
without one or more other signatories to this Agreement (other
than VELCO) having accepted and consummated such offer to assign
such signatory's rights under this Agreement. If more than one
signatory accepts such offer, the rights of the assigning
signatory will be assigned Pro Rata, and upon confirmation of such
assignment (the previous sentence notwithstanding) the assigning
Participant will be released thereafter by all signatories to this
Agreement from any obligations hereunder, provided that the terms
and conditions of such assignment require the assignee signatory
or signatories to assume unconditionally the assigning
Participant's obligations under this Agreement.
8.4.1 The foregoing notwithstanding, each Participant will have
the right to assign any right to power or energy purchased
pursuant to this Agreement and any Transmission Rights hereunder
related thereto without obtaining the consent of any other
signatory to this Agreement, provided that such assignment does
not constitute an assignment of any obligations of such
Participant under this Agreement.
8.4.2 The foregoing notwithstanding, a Participant may elect to
sell, lease or otherwise dispose of all or substantially all of
its electric system upon ninety (90) days Notice thereof to the
Participants, such Notice to specify the security or other
contractual arrangements to be provided by such Participant that
will provide adequate assurances of the continued performance of
such Participant's obligations hereunder; provided that such
security or other contractual arrangements provides such assuran-
ces, a Participant will have the right to assign its obligations
pursuant to this Agreement as part of such sale, lease or
disposal.
8.4.3 The foregoing notwithstanding, the rights of each Schedule C
Participant that has obtained all Approvals required to purchase
Schedule C Power to cancel all or any portion of its Share, as set
forth in the Representative's Notice to the Participants dated
December 8, 1989, of its purchases of power under Sub-schedule
C-4b of the Contract are subject to the following:
8.4.3.1 A Schedule C Participant that determines to cancel any
amount of its purchases of power and energy under Sub-schedule
C-4b of the Contract must give Notice thereof to the
Representative no later than January 1, 1996, such Notice to con-
stitute an offer to sell such power and energy (as the case may
be) to the other Schedule C Participants Pro Rata.
8.4.3.2 Within five days of receipt of such Notice, the
Representative will give Notice to the Participants of the amount
of Schedule C Power thereby offered to the Participants. Within
ten days of the date of such Notice from the Representative, each
Schedule C Participant will give Notice to the Representative
stating whether (and to what extent) such Schedule C Participant
desires to accept such offer (including amounts not taken by other
Participants to which such offer is made); failure to provide such
Notice will be deemed to constitute a decision by such Schedule C
Participant not to accept such offer.
8.4.3.3 No later than five days before the date on which written
notice is due Hydro Quebec under the Contract in order to effect
cancellation of all (or any part) of any option to cancel
purchases under Sub-schedule C-4b, the Representative will give
Notice to the Operating Committee as to the amounts of such power
and energy to be canceled, and the Operating Committee is
authorized and directed to give written notice, either itself or
through VELCO, to Hydro-Quebec to effect such cancellation.
8.5 Each signatory to this Agreement agrees to execute and perform
any other notices, contracts, instruments, filings, petitions, and
other documents and to take any other action reasonably required
to implement and perform any provision of this Agreement.
8.6 VELCO's obligations hereunder are limited to those for which
provision is expressly made in Articles V and VIII of this
Agreement.
8.7 The signatories acknowledge that informal resolution of
disputes is in their mutual interest. Accordingly, each signatory
agrees that for any Claim arising under this Agreement the
signatories (or any two or more of them as applicable) will in
good faith attempt to resolve the Claim informally. If such Claim
is not resolved informally, the claiming signatory will give
Notice cf its Claim to the Representative and any signatory
against which the Claim is brought, and the Chief Operating
Officer of each such signatory will attempt in good faith to
resolve the Claim. The parties agree and covenant that they will
not file a lawsuit or institute other legal action pursuant to
this Agreement unless the signatories fail to resolve the Claim in
accordance with the foregoing procedure and at least thirty (30)
days have passed from the date on which such Notice is delivered.
No signatory will be entitled to recover from any other signatory,
or any affiliate or any shareholder, director, officer, or
employee thereof, Claims arising from another signatory's
performance under this Agreement, except a signatory will be
liable for such Claims to the extent they are finally determined
to have been caused by such signatory's negligence, gross
negligence or material breach of this Agreement (not approved by
Vote of the Participants), or its wanton or willful misconduct, by
a court of competent authority and following expiration of the
time for, or affirmance following, all appeals therefrom.
8.8 Except for a delay or failure to make any payment a
Participant is obligated to make under this Agreement, or any
agreement (including the Contract and the Interconnection
Agreements) related hereto, no failure or delay in the performance
of any obligation by a signatory under this Agreement will be
deemed to exist if it is the result of any cause beyond the
reasonable control of the signatory that the signatory could not
have reasonably been expected to avoid by the exercise of due
diligence, including, without limiting the generality of the
foregoing, storm, flood, lightning, earthquake, fire, explosion,
civil disturbance, labor disturbance, sabotage, war, national
emergency, or restraint by court or public authority. In such
event, the signatory will give Notice of such event to all
signatories to this Agreement within fifteen (15) days of its
occurrence and will diligently seek to remove the cause preventing
its performance of the obligation at the earliest possible date.
8.9 This Agreement will terminate as to all signatories upon
termination of the Contract, provided, however, that this
Agreement will be terminated as to any individual Participant upon
termination of such Participant as provided in Article VI of this
Agreement.
8.9.1 The foregoing notwithstanding, this Agreement will continue
in effect after termination to the extent necessary to make
payment of any amount due hereunder or to resolve any Claims
hereunder in accordance with the provisions for resolving Claims
set forth herein.
8.10 Notice will be given under this Agreement in writing
addressed to the required recipient at the address set forth on
the signature pages to this Agreement, be effective on the earlier
of receipt or five (5) days after the date of such Notice and be
deemed to be achieved if given by first-class mail, provided,
however, that if pursuant to any provision of this Agreement
Notice must be effected by a specified date no more than five (5)
days from the date of such Notice, Notice will be effected only by
overnight carrier, hand delivery, or telefacsimile the receipt of
which is confirmed in writing by the recipient.
8.10.1 Any signatory to this Agreement may change the address used
to effect Notice set forth on the signature pages to this
Agreement by giving Notice thereof to the Representative and each
other signatory in accordance with the procedures set forth in
this Section 8.10.
8.11 This Agreement is the act and obligation of the signatories
hereto in their corporate or governmental capacity, and any Claims
hereunder against any shareholder, director, trustee, officer,
employee or agent of any signatory, as such, is expressly waived.
Schedule I
Schedule A Schedule B
5/1/91 To 9/23/95 To
Company 9/22/95 10/31/15
------- ---------- ----------
Xxxxxx 168 672
Citizens 104 415
CVPS 23,312 92,248
Enosburg 183 730
GMP 16,888 67,554
Hyde Park 97 390
Ludlow 321 1,284
Lyndonville 610 2,438
Morrisville 534 2,136
Northfield 300 1,198
Orleans 180 722
Rochester 00 000
Xxxxx 000 2,288
WEC 647 2,589
-------- --------
TOTAL 44,000 175,000
Schedule IIA
Xxxxxx
CVPS
Citizens
Enosburg
GMP
Hyde Park
Ludlow
Lyndonville
Morrisville
Northfield
Orleans
Rochester
Stowe
Vermont Marble
PAGE
Schedule IIB
KILOWATTS BASED ON SCHEDULE C ENTITLEMENTS
Sched C-1 Sched C-2 Sched C-3 Sched C-4a Sched C-4
5/1/91 to 5/1/92 to 11/1/95 to 11/1/96 to 11/1/00 to
Company 10/31/12 10/31/12 12/31/15 10/31/16 10/31/20
------- --------- --------- ---------- ---------- ----------
Xxxxxx 397 200 58 128 0
CVPS 30,725 20,526 6 23,714* 0
Citizens 19,995 5,132 125 0 5,671
Enosburg 160 316 141 0 329
GMP 0 0 46,619 0 0
Ludlow 334 0 0 0 0
Xxxxxx- 0 78 5 1,158 0
ville
Xxxxxx- 20 554 3 0* 0
ville
Northfield 246 66 2 0 0
Rochester 0 0 3 0 0
Stowe l,075 128 38 0 0
VMCO 2,048 0 0 0 0
*From 5/1/98 until 4/30/12, CVPS will have 23,216 and
Morrisville 500 kilowatts
Schedule III
Xxxxxx 0.6071%
Citizens 40.7579%
CVPS 38.4437%
Enosburg 0.5230%
GMP 13.4032%
Hyde Park 0.0770%
Ludlow 0.5198%
Lyndonville 0.5460%
Morrisville 0.8794%
Northfield 0.4857%
Orleans 0.1429%
Rochester 0.0667%
Stowe 1.4087%
Washington Electric 0.5135%
Vermont Marble 1.6254%
Schedule IV
Xxxxxx
Enosburg
Hyde Park
Ludlow
Lyndonville
Morrisville
Northfield
Orleans
Stowe
Washington Coop
Exhibit A
[Copy of Contract]
0005370.01
