<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ___________ TO _____________
COMMISSION FILE NO. 33-7591
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
(Exact name of registrant as specified in its charter)
GEORGIA 58-1211925
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
POST OFFICE BOX 1349
2100 EAST EXCHANGE PLACE
TUCKER, GEORGIA 30085-1349
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 270-7600
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date. THE REGISTRANT IS A
MEMBERSHIP CORPORATION AND HAS NO AUTHORIZED OR OUTSTANDING EQUITY SECURITIES.
===============================================================================
<PAGE>
OGLETHORPE POWER CORPORATION
INDEX TO QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1999
<TABLE>
<CAPTION>
PAGE NO.
<S> <C> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Balance Sheets as of March 31, 1999 (Unaudited)
and December 31, 1998 3
Condensed Statements of Revenues and Expenses and
Comprehensive Margin (Unaudited) for the Three Months
Ended March 31, 1999 and 1998 5
Condensed Statements of Cash Flows (Unaudited)
for the Three Months Ended March 31, 1999 and 1998 6
Notes to the Condensed Financial Statements 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
Item 3. Quantitative and Qualitative Disclosures About
Market Risk 17
PART II - OTHER INFORMATION
Item 5. Other Information 18
Item 6. Exhibits and Reports on Form 8-K 18
SIGNATURES 19
</TABLE>
2
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
OGLETHORPE POWER CORPORATION
CONDENSED BALANCE SHEETS
MARCH 31, 1999 AND DECEMBER 31, 1998
- --------------------------------------------------------------------------------------------------------
(dollars in thousands)
1999 1998
ASSETS (Unaudited)
-------------------------------------------------
<S> <C> <C>
ELECTRIC PLANT, AT ORIGINAL COST:
In service $4,856,328 $4,856,174
Less: Accumulated provision for depreciation (1,541,274) (1,510,888)
------------------- ------------------
3,315,054 3,345,286
Nuclear fuel, at amortized cost 86,918 84,418
Construction work in progress 25,365 20,948
------------------- ------------------
3,427,337 3,450,652
------------------- ------------------
INVESTMENTS AND FUNDS:
Decommissioning fund, at market 122,287 122,094
Deposit on Rocky Mountain transactions, at cost 56,695 55,755
Bond, reserve and construction funds, at market 32,229 32,909
Investment in associated organizations, at cost 16,093 16,231
Other, at cost 3,302 3,326
------------------- ------------------
230,606 230,315
------------------- ------------------
CURRENT ASSETS:
Cash and temporary cash investments, at cost 88,766 106,235
Other short-term investments, at market 74,227 73,356
Customer receivables 104,030 110,919
Notes and interim financing receivable 93,850 45,151
Inventories, at average cost 83,459 76,783
Prepayments and other current assets 26,291 21,395
------------------- ------------------
470,623 433,839
------------------- ------------------
DEFERRED CHARGES:
Premium and loss on reacquired debt, being amortized 208,766 206,729
Deferred amortization of Scherer leasehold 99,807 99,297
Discontinued projects, being amortized 34,157 36,203
Deferred debt expense, being amortized 15,573 15,825
Other 38,795 33,405
------------------- ------------------
397,098 391,459
------------------- ------------------
$4,525,664 $4,506,265
------------------- ------------------
------------------- ------------------
</TABLE>
The accompanying notes are an integral part of these condensed financial
statements.
3
<PAGE>
<TABLE>
<CAPTION>
OGLETHORPE POWER CORPORATION
CONDENSED BALANCE SHEETS
MARCH 31, 1999 AND DECEMBER 31, 1998
- -------------------------------------------------------------------------------------------------------------------------------
(dollars in thousands)
1999 1998
EQUITY AND LIABILITIES (Unaudited)
-----------------------------------------------
<S> <C> <C>
CAPITALIZATION:
Patronage capital and membership fees (including unrealized gain of $231 at
March 31, 1999 and $1,006 at December 31, 1998 on available-for-sale
securities) $360,025 $352,701
Long-term debt 3,138,821 3,177,883
Obligation under capital leases 280,530 282,299
Obligation under Rocky Mountain transactions 56,695 55,755
----------------- -----------------
3,836,071 3,868,638
----------------- -----------------
CURRENT LIABILITIES:
Long-term debt and capital leases due within one year 102,921 97,475
Accounts payable 57,736 46,676
Notes payable 90,884 50,986
Accrued interest 14,405 10,074
Accrued and withheld taxes 6,484 214
Other current liabilities 6,343 17,901
----------------- -----------------
278,773 223,326
----------------- -----------------
DEFERRED CREDITS AND OTHER LIABILITIES:
Gain on sale of plant, being amortized 57,663 58,282
Net benefit of sale of income tax benefits, being amortized 24,028 26,030
Net benefit of Rocky Mountain transactions, being amortized 88,393 89,189
Accumulated deferred income taxes 63,203 63,203
Decommissioning reserve 155,795 156,021
Other 21,738 21,576
----------------- -----------------
410,820 414,301
----------------- -----------------
$4,525,664 $4,506,265
----------------- -----------------
----------------- -----------------
</TABLE>
The accompanying notes are an integral part of these condensed financial
statements.
4
<PAGE>
<TABLE>
<CAPTION>
OGLETHORPE POWER CORPORATION
CONDENSED STATEMENTS OF REVENUES AND EXPENSES AND COMPREHENSIVE MARGIN
(UNAUDITED)
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
- ------------------------------------------------------------------------------------------------------------------
(dollars in thousands)
1999 1998
------------------------------------------------------
<S> <C> <C>
OPERATING REVENUES:
Sales to Members $245,043 $231,943
Sales to non-Members 5,721 3,324
--------------- ---------------
TOTAL OPERATING REVENUES 250,764 235,267
--------------- ---------------
OPERATING EXPENSES:
Fuel 41,535 39,867
Production 50,311 46,932
Purchased power 63,006 54,564
Depreciation and amortization 33,619 31,123
--------------- ---------------
TOTAL OPERATING EXPENSES 188,471 172,486
--------------- ---------------
OPERATING MARGIN 62,293 62,781
--------------- ---------------
OTHER INCOME (EXPENSE):
Interest income 7,455 7,840
Amortization of net benefit of sale of income tax benefits 2,799 2,798
Allowance for equity funds used during construction 27 22
Other 810 125
--------------- ---------------
TOTAL OTHER INCOME 11,091 10,785
--------------- ---------------
INTEREST CHARGES:
Interest on long-term debt and other obligations 65,745 66,145
Allowance for debt funds used during construction (460) (205)
--------------- ---------------
NET INTEREST CHARGES 65,285 65,940
--------------- ---------------
NET MARGIN 8,099 7,626
Net change in unrealized (loss) gain on
available-for sale securities (775) 229
--------------- ---------------
COMPREHENSIVE MARGIN $7,324 $7,855
--------------- ---------------
--------------- ---------------
</TABLE>
The accompanying notes are an integral part of these condensed financial
statements.
5
<PAGE>
<TABLE>
<CAPTION>
OGLETHORPE POWER CORPORATION
CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
- -------------------------------------------------------------------------------------------------------------------------------
(dollars in thousands)
1999 1998
--------------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net margin $ 8,099 $ 7,626
------------ -----------------
ADJUSTMENTS TO RECONCILE NET MARGIN TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization 36,186 43,554
Allowance for equity funds used during construction (27) (22)
Amortization of deferred gains (619) (619)
Amortization of net benefit of sale of income tax benefits (2,799) (2,798)
Other 3,269 4,206
CHANGE IN NET CURRENT ASSETS, EXCLUDING LONG-TERM DEBT AND CAPITAL LEASES DUE
WITHIN ONE YEAR AND NOTES PAYABLE:
Notes receivable 209 (115)
Receivables 6,889 11,333
Inventories (6,676) (10,849)
Prepayments and other current assets (4,896) 831
Accounts payable 11,060 (17,700)
Accrued interest 4,331 1,371
Accrued and withheld taxes 6,270 4,791
Other current liabilities (11,558) (2,291)
------------ -----------------
TOTAL ADJUSTMENTS 41,639 31,692
------------ -----------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 49,738 39,318
------------ -----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Property additions (16,710) (8,085)
Net proceeds from bond, reserve and construction funds 330 938
Decrease in investment in associated organizations 138 231
Increase in other short-term investments (1,296) (1,293)
Increase in decommissioning fund (4,467) (3,808)
------------ -----------------
NET CASH USED IN INVESTING ACTIVITIES (22,005) (12,017)
------------ -----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Long-term debt proceeds, net (2,597) (2,198)
Long-term debt payments (33,825) (30,820)
Increase in notes payable 39,898 -
Increase in notes receivable under interim financing agreement (48,908) -
Other 230 1,017
------------ -----------------
NET CASH USED IN FINANCING ACTIVITIES (45,202) (32,001)
------------ -----------------
NET DECREASE IN CASH AND TEMPORARY CASH INVESTMENTS (17,469) (4,700)
CASH AND TEMPORARY CASH INVESTMENTS AT BEGINNING OF PERIOD 106,235 63,215
------------ -----------------
CASH AND TEMPORARY CASH INVESTMENTS AT END OF PERIOD $ 88,766 $ 58,515
------------ -----------------
------------ -----------------
CASH PAID FOR:
Interest (net of amounts capitalized) $ 52,415 $ 58,026
Income taxes - -
</TABLE>
The accompanying notes are an integral part of these condensed financial
statements.
6
<PAGE>
OGLETHORPE POWER CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
MARCH 31, 1999 AND 1998
(A) The condensed financial statements included herein have been prepared by
Oglethorpe Power Corporation (Oglethorpe), without audit, pursuant to
the rules and regulations of the Securities and Exchange Commission
(SEC). In the opinion of management, the information furnished herein
reflects all adjustments (which include only normal recurring
adjustments) and estimates necessary to present fairly, in all material
respects, the results for the periods ended March 31, 1999 and 1998.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such
SEC rules and regulations, although Oglethorpe believes that the
disclosures are adequate to make the information presented not
misleading. It is suggested that these condensed financial statements be
read in conjunction with the financial statements and the notes thereto
included in Oglethorpe's latest Annual Report on Form 10-K, as filed
with the SEC. Certain amounts for 1998 have been reclassified to conform
with the current period presentation.
(B) In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (SFAS) No. 133, "Accounting for
Derivative Instruments and Hedging Activities." The standard requires
that all derivative instruments be recognized as assets or liabilities
and be measured at fair value. Oglethorpe is required to adopt SFAS No.
133 by January 1, 2000. Oglethorpe is currently assessing the impact
that adoption of SFAS No. 133 will have on results of operations and
financial condition and is undecided as to the date the standard will be
adopted.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
FUTURE POWER RESOURCES
Under the Wholesale Power Contracts, Oglethorpe's 39 retail electric
distribution cooperative members (the Members) may choose to supply all or a
portion of their future requirements with purchases from suppliers other than
Oglethorpe. A new entity, Smarr EMC, was formed in 1998 by 36 of the Members
to own a two-unit, 217 megawatt (MW) combustion turbine (CT) facility (CT
One). Commercial operation of this facility is scheduled for June 1999.
Construction and operation management services, as well as construction
financing, are currently being provided by Oglethorpe.
Smarr EMC, or similar entities, may also own future generation facilities on
behalf of Members who may decide to participate in such projects. One such
project is a four-unit, 492 MW CT facility (CT Two) currently under
consideration by the Members, which is scheduled for commercial operation by the
summer of 2000. Oglethorpe is providing construction management services and
interim financing for this facility and anticipates that it will provide
operation management services as well.
In addition, two Members have formed an entity which is constructing 90 MW of CT
capacity for commercial operation by the summer of 1999.
All of these CTs are currently anticipated to be dispatched in the Oglethorpe
pool of generation resources.
POWER PURCHASES FROM GPC
Oglethorpe has entered into an agreement with Georgia Power Company (GPC)
effective April 1, 1999 to purchase capacity and associated energy on a
take-or-pay basis. Under the agreement, Oglethorpe has committed to purchase 250
MW of capacity and associated energy through March 31, 2006 and an additional
250 MW for a one-year period beginning June 1, 1999. In addition to these
amounts, Oglethorpe may elect, prior to May 26, 1999, to purchase up to 250 MW
through March 31, 2003. If Oglethorpe does not make the election, it will
purchase the additional 250 MW through August 31, 2000, will reduce this amount
to 125 MW from September 1, 2000 to August 31, 2001, and will not purchase any
additional amount after August 31, 2001. Upon the effectiveness of this
agreement, the Block Power Sale Agreement (BPSA) between Oglethorpe and GPC was
terminated. The BPSA had provided for Oglethorpe to purchase 500 MW of capacity
and associated energy through December 31, 2003. Unlike under the BPSA,
Oglethorpe has no right (other than as described above) to reduce its purchase
obligations under the new agreement prior to its expiration.
8
<PAGE>
RESULTS OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
OPERATING REVENUES
Revenues from sales to Members for the three months ended March 31, 1999 were
5.6% higher than the same period of 1998 and megawatt-hour (MWh) sales to
Members were 11.8% higher for the current period. This resulted in a 5.5%
decrease in the average revenue per MWh from sales to Members for the current
period compared to the same period of 1998. The components of Member revenues
for the three months ended March 31, 1999 and 1998 were as follows:
<TABLE>
<CAPTION>
Three Months
Ended March 31,
--------------------------
1999 1998
-------- ---------
(dollars in thousands)
<S> <C> <C>
Capacity revenues $155,213 $155,820
Energy revenues 89,830 76,123
-------- --------
Total $245,043 $231,943
-------- --------
-------- --------
</TABLE>
While capacity revenues from Members for the three months ended March 31, 1999
compared to 1998 were virtually unchanged, energy revenues were 18.0% higher for
the current quarter compared to the same period of 1998. The higher MWh sales to
Members discussed above were primarily due to continued sales growth in the
Members' service territories. In addition, Oglethorpe provided the Members with
additional energy to offset lower delivery of hydroelectric power from
Southeastern Power Administration (SEPA) due to lower than normal rainfall.
Oglethorpe's average energy revenue per MWh from sales to Members for the
three-month period was 5.6% higher in 1999 compared to 1998. This increase
resulted primarily from higher purchased power energy costs as discussed below
under "OPERATING EXPENSES."
Sales to non-Members were primarily from energy sales to other utilities and
power marketers. The following table summarizes the amounts of non-Member
revenues from these sources for the three months ended March 31, 1999 and 1998:
<TABLE>
<CAPTION>
Three Months
Ended March 31,
--------------------
1999 1998
---- ----
(dollars in thousands)
<S> <C> <C>
Sales to other utilities $3,826 $2,225
Sales to power marketers 1,895 1,099
------ ------
Total $5,721 $3,324
------ ------
------ ------
</TABLE>
Sales to other utilities represent sales made directly by Oglethorpe. Oglethorpe
sells for its own account any energy available from the portion of its resources
dedicated to Morgan Stanley Capital Group Inc. (Morgan Stanley) that is not
scheduled by Morgan Stanley pursuant to its power marketer
9
<PAGE>
arrangement. Sales to other utilities were higher for the three-month period of
1999 compared to 1998 primarily due to capacity revenues received under an
agreement entered into with Alabama Electric Cooperative to sell 100 MW of
capacity for the period June 1998 through December 2005.
Under the LG&E Energy Marketing Inc. (LEM) and Morgan Stanley power marketer
arrangements, sales to the power marketers represented the net energy
transmitted on behalf of LEM and Morgan Stanley off-system on a daily basis from
Oglethorpe's total resources. Such energy was sold to LEM at Oglethorpe's cost,
subject to certain limitations, and to Morgan Stanley at a contractually fixed
price. The volume of sales to power marketers depends primarily on the power
marketers' decisions for servicing their load requirements.
OPERATING EXPENSES
Operating expenses for the three months ended March 31, 1999 were 9.3% higher
compared to the same period of 1998. This increase was primarily due to 15.5%
higher total purchased power costs for the current quarter compared to the
same quarter of 1998. Oglethorpe purchased 22.3% more MWhs in the three
months ended March 31, 1999 than in the same period of 1998. This resulted in
a decrease of 5.6% in the average cost per MWh of total purchased power. The
higher volume of purchased MWhs relates primarily to the portion of increased
Member load not contractually provided by the power marketers. Purchased
power costs are as follows:
<TABLE>
<CAPTION>
Three Months
Ended March 31,
-------------------------
1999 1998
-------- --------
(dollars in thousands)
<S> <C> <C>
Capacity costs $25,408 $30,174
Energy costs 37,598 24,390
------- --------
Total $63,006 $54,564
------- --------
------- --------
</TABLE>
Purchased power capacity cost for the three months ended March 31, 1999 was
15.8% lower than the same period of 1998. These savings were primarily a result
of the elimination, effective September 1, 1998, of a 250 MW component block
under the BPSA between Oglethorpe and GPC. Purchased power energy costs for
the three-month period of 1999 were 54.2% higher compared to the same period
of 1998 as a result of higher volumes of purchased MWhs and higher prices
experienced in the wholesale electricity markets. These factors resulted in a
26.0% increase in the average cost of purchased power energy per MWh for the
three-month period compared to 1998. This increase in the average cost of
purchased power energy was primarily responsible for an increase in the
average MWh cost of energy to the Members.
NET MARGIN AND COMPREHENSIVE MARGIN
Oglethorpe's net margin for the three months ended March 31, 1999 was $8.1
million compared to $7.6 million for the same period of 1998. Comprehensive
margin for Oglethorpe is net margin adjusted for the net change in unrealized
gains and losses on investments in available-for-sale securities.
10
<PAGE>
FINANCIAL CONDITION
Total assets and total equity plus liabilities as of March 31, 1999 were $4.5
billion, which was $20 million more than the total at December 31, 1998 due
primarily to an increase in notes and interim financing receivable for
construction of CT One and CT Two, offset by depreciation of plant. These CT
projects are being financed on an interim basis by Oglethorpe through the
issuance of commercial paper. Oglethorpe expects to be reimbursed for the costs
relating to the construction of these projects at the time each facility becomes
commercially operable, which Oglethorpe anticipates will be June 1999 for CT One
and the summer of 2000 for CT Two. For a further discussion of these projects,
see "General--FUTURE POWER RESOURCES."
ASSETS
Property additions for the three months ended March 31, 1999 totaled $16.7
million primarily for purchases of nuclear fuel and for additions, replacements
and improvements to existing generation facilities.
The decrease in cash is a result of cash used in financing and investing
activities, including property additions noted above and debt principal
repayments, exceeding cash provided from operations.
The increase in notes and interim financing receivable resulted primarily from
use of funds in the interim financing activities related to the CT units being
constructed. Included in notes and interim financing receivable as of March 31,
1999 is $54.4 million relating to the construction of CT One and $38.9 million
relating to the construction of CT Two.
Prepayments and other current assets increased primarily due to the estimated
payments to GPC for Plant Hatch operations and maintenance (O&M) costs for April
1999 compared to the estimate for January 1999. The increase in O&M is related
to nuclear fuel purchases and costs to increase the actual and licensed thermal
output of Hatch Units No. 1 and No. 2. The increase in other deferred charges is
related to 1999 refueling outages for Vogtle Unit No.1 and Hatch Unit No.1. Such
costs will be amortized to expense over the 18-month operating cycle of each
unit.
EQUITY AND LIABILITIES
Notes payable represent commercial paper issued by Oglethorpe as interim
financing for costs incurred in construction of CT One and CT Two. Oglethorpe
will be reimbursed by the respective projects' owners for all construction costs
incurred prior to transfer of ownership, and accordingly, has recorded all
expenditures as a receivable. As of March 31, 1999, notes payable consisted of
$52.2 million relating to the financing of CT One and $38.7 million relating to
the financing of CT Two.
Accounts payable increased due primarily to the Hatch Unit No. 1 refueling
outage. This outage resulted in higher than normal charges for nuclear fuel and
O&M.
Accrued interest increased as a result of the accrual for the July 1 interest
payment due for the Scherer Unit No. 2 lease obligation.
11
<PAGE>
Accrued and withheld taxes increased as a result of the normal monthly accruals
for property taxes, which are generally paid in the fourth quarter of the year.
MISCELLANEOUS
COMPETITION
The electric utility industry in the United States is undergoing fundamental
change and is becoming increasingly competitive. This change is promoted by the
Energy Policy Act of 1992, recently adopted and proposed policies from the
Federal Energy Regulatory Commission (FERC) regarding mergers, transmission
access and pricing, federal and state deregulation initiatives, increased
consolidation and mergers of electric utilities, the proliferation of power
marketers and independent power producers, generation surpluses and deficits and
transmission constraints in certain regional markets and other factors.
Several states are in the process of implementing varying forms of "retail
wheeling" (the transmission of power for a third party directly to a retail
customer) and most others are in the various stages of considering retail
competition. Proposed federal legislation could mandate retail wheeling in
every state and otherwise deregulate the industry. No legislation related to
retail wheeling has yet been enacted in Georgia, and no bill is currently
pending in the Georgia legislature which would amend the Georgia Territorial
Electric Service Act (the Territorial Act) or otherwise affect the exclusive
right of the Members to supply power to their current service territories. In
1997, the staff of the Georgia Public Service Commission (GPSC) conducted a
series of workshops to solicit views from the various parties impacted by
electric industry restructuring and to discuss potential resolutions of these
issues, including "stranded costs" which would result from assets having
unrecovered costs in excess of their economically realizable value. The GPSC
issued a report identifying electric industry restructuring issues, potential
resolutions and the views of the parties who participated in the workshops.
The GPSC's order in the 1998 GPC rate case provides that there will be a
docket opened to address the mechanics of how stranded costs and stranded
benefits should be calculated, the estimated range of GPC's stranded costs
and benefits, the proper level of stranded cost recovery through rate
surcharges, and the proper disposition of any stranded benefits. The GPSC
does not have the authority under Georgia law to order retail wheeling or
amend the Territorial Act. Oglethorpe and the Members participated in the
GPSC staff workshops and are actively monitoring and studying the GPSC
proceedings and legislative initiatives in Congress and in other states to
take advantage of the experiences of cooperatives and other utilities in
other states to protect their interests in any future legislative activities
in Georgia.
Under current Georgia law, the Members generally have the exclusive right to
provide retail electric service in their respective territories. Since 1973,
however, the Territorial Act has permitted limited competition among electric
utilities located in Georgia for sales of electricity to certain large
commercial or industrial customers. The owner of any new facility may receive
electric service from the power supplier of its choice if the facility is
located outside of municipal limits and has a connected demand upon initial full
operation of 900 kilowatts or more. The Members, with Oglethorpe's support, are
actively engaged in competition with other retail electric suppliers for these
new commercial and industrial loads. While the competition for 900-kilowatt
loads represents only limited competition in Georgia, this competition has given
Oglethorpe and the Members the opportunity to develop resources and strategies
to operate in an increasingly competitive market.
12
<PAGE>
Oglethorpe cannot predict at this time the outcome of the various developments
that may lead to increased competition in the electric utility industry or the
effect of such developments on Oglethorpe or the Members. Nonetheless,
Oglethorpe has taken several steps to prepare for and adapt to the fundamental
changes that have occurred or are likely to occur in the electric utility
industry. In 1997, Oglethorpe completed the Corporate Restructuring and divided
itself into separate generation, transmission and system operations companies in
order to better serve its Members in a deregulated and competitive environment.
Since 1992, Oglethorpe also has pursued an interest cost reduction program,
which has included refinancings and prepayments of various debt issues, and that
has provided significant cost savings. Oglethorpe has also entered into
arrangements with power marketers to obtain the value that can be brought by
power marketers and to provide for future load requirements without taking all
the risk associated with traditional supply sources. (See Oglethorpe's 1998
Annual report on Form 10-K in "General--Corporate Restructuring", "Financial
Condition--Refinancing Transactions" and "Results of Operations--Power Marketer
Arrangements" in Item 7.)
Oglethorpe and the Members continue to consider and evaluate a wide array of
other potential actions to reduce costs and to enhance their competitiveness in
anticipation of future competition. Oglethorpe regularly considers industry
developments and trends to evaluate the challenges and opportunities they may
present for Oglethorpe. Among the alternatives subject to such consideration by
Oglethorpe are: additional power marketing arrangements or other alliance
arrangements; whether power supply requirements will continue to be met by the
current mix of ownership and purchase arrangements; whether power supply
resources will be owned by Oglethorpe or by separate entities; the effects of
proliferation of services offered by electric utilities; whether disposition of
assets or asset classes would enhance value; the effects of nuclear license
extensions; and other regulatory and business changes that may affect relative
values of generation classes or have impacts on the electric industry. These
activities on the part of Oglethorpe and the Members are in various stages of
study or preliminary consideration. Such studies and consideration necessarily
take account of and are subject to the legal, regulatory and contractual
(including financing and plant co-ownership arrangements) environment applicable
to Oglethorpe.
Many Members are now providing or considering proposals to provide
non-traditional products and services such as telecommunications and other
services. Depending on the nature of future competition in Georgia, there could
be reasons for the Members to separate their physical distribution business from
their energy business, or otherwise restructure their current businesses to
operate effectively under retail competition. Likewise, there could be reasons
for Oglethorpe to evaluate the disposition of generation assets, separating
different segments of its generation assets or business or other restructurings
of its business to operate more effectively under increasing competition.
Recent dispositions of fossil generation units throughout the country are being
evaluated by Oglethorpe, and the recent announcements relating to sales of
nuclear generation units and applications for nuclear license extensions are of
particular interest to Oglethorpe because of its substantial investment in
nuclear generation. These and other developments in the industry have resulted
in the Rural Utilities Service (RUS) exploring the possibility of pursuing
nationwide measures for RUS and its borrowers that own nuclear generation
units. This exploration by RUS has included discussions with Oglethorpe and
others. Oglethorpe intends to pursue its discussions with RUS to determine if
13
<PAGE>
there are feasible measures that Oglethorpe could take to enhance the value of
its assets or further its efforts to lower costs and increase its
competitiveness.
Oglethorpe's ongoing consideration of industry trends and developments may
present opportunities for Oglethorpe to enhance the value of its system or
otherwise to respond more effectively to increasing competition. However,
Oglethorpe cannot predict the results of its evaluation of these matters,
including discussions with RUS, or any action Oglethorpe might take based
thereon.
YEAR 2000
BACKGROUND. The Year 2000 issue, which is common to most corporations, concerns
the ability of certain hardware, software, databases and other devices that use
microprocessors to properly recognize date sensitive information related to the
Year 2000 and thereafter. Oglethorpe is heavily dependent upon complex computer
systems for all phases of power supply operations. Oglethorpe's operations
include both information technology (IT) systems, such as billing systems,
financial accounting systems, and human resource/payroll systems, as well as
non-IT systems that may have embedded microprocessors, such as those relating to
operations of the Rocky Mountain Pumped Storage Hydroelectric Facility (Rocky
Mountain), generation substations and Oglethorpe's headquarters facilities.
Management recognizes the seriousness of the Year 2000 issue and believes it has
dedicated adequate resources to address the issue. Oglethorpe's Senior Vice
President and Chief Financial Officer is in charge of its Year 2000 program, and
he reports directly to Oglethorpe's President and Chief Executive Officer. As
part of its business alliance with Oglethorpe, Intellisource is providing
administration of Oglethorpe's Year 2000 program. Oglethorpe's Board of
Directors and its audit committee are monitoring this issue through periodic
updates from project management.
PROJECT PHASES. Oglethorpe has developed and is implementing a detailed strategy
to prevent any material disruption to operations.
Phase I began in April 1997 and included an inventory and assessment of
potential Year 2000 problems in its systems. Substantially all IT and non-IT
systems have been inventoried and assessed. Oglethorpe has completed an
inventory and assessment on its computer and embedded chip systems at Rocky
Mountain. Critical computer systems required to operate the Rocky Mountain
control room have been upgraded. The computer system required to manage
maintenance activities and purchase materials for Rocky Mountain will be
upgraded by the third quarter of 1999.
Phase II began in the fall of 1997 and includes remediation and testing of all
inventoried IT and non-IT systems. Remediation and testing efforts for all
inventoried internally developed systems applications have been completed.
Oglethorpe is currently in the process of reassessing the completeness of the
original inventory. Financial accounting systems, procurement and materials
management systems and human resource/payroll systems are externally developed
and supported. None of these systems is Year 2000 ready. Oglethorpe is replacing
most of its financial accounting system modules and is retaining and upgrading
one module. Oglethorpe expects its financial accounting systems to be Year 2000
ready by the fourth quarter of 1999. Oglethorpe is replacing its procurement and
materials management systems and expects to complete this remediation in the
second quarter of 1999. Oglethorpe is upgrading its human resource/payroll
systems and expects to complete this remediation in the third quarter of 1999.
Remediation and testing efforts for systems at Rocky Mountain are
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expected to be completed by the third quarter of 1999.
Phase III began recently and includes contingency planning, an assessment of
Year 2000 readiness of material third parties and verification that all material
systems were properly inventoried, remediated and tested in Phases I and II.
This phase will be on-going throughout 1999.
RELATIONSHIPS WITH THIRD PARTIES. Georgia Transmission Corporation (GTC) and
Georgia System Operations Corporation (GSOC) have implemented detailed
strategies to ensure Year 2000 readiness of the systems utilized in their
transmission and systems control operations. The Year 2000 readiness plans
for Oglethorpe, GTC and GSOC were jointly developed and are being implemented
on the same schedule, as described above.
Oglethorpe has gathered information from the Members regarding their Year 2000
readiness. Based on this information, Oglethorpe will implement a follow-up
program to monitor the Members' Year 2000 readiness and will further assess any
impact on Oglethorpe's risks and contingency planning. Oglethorpe expects to
complete the information gathering process from the Members by September 30,
1999.
All of Oglethorpe's co-owned generating plants, except Rocky Mountain, are
operated by GPC on behalf of itself as a co-owner and as agent for the other
co-owners. Year 2000 remediation and testing on all generation plants which are
operated by GPC are being performed by GPC's parent company, Southern Company
(Southern). Southern estimates that total costs related to this project at the
GPC-operated plants will be approximately $38 million, of which approximately
$4.5 million is expected to be billed to Oglethorpe based on its ownership share
of these generation plants. To date, Oglethorpe has paid approximately $3.8
million for this project. Remaining costs will be expensed primarily in 1999.
Southern reports that its Year 2000 program for the Georgia-based generating
plants is scheduled to be completed by June 1999. Southern is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended,
and, in accordance therewith, files reports and other information with the
SEC.
During Phase III of its program, Oglethorpe plans to assess the Year 2000
readiness of other significant third parties, including power marketers (such as
LEM and Morgan Stanley), other utilities and vendors of materials and services.
Oglethorpe has identified over 400 such third parties, and is in the process of
prioritizing the parties from which Oglethorpe will require Year 2000
information. Oglethorpe expects to begin requesting information from these third
parties in the second quarter of 1999. This information will allow Oglethorpe to
perform contingency planning, including assessing the need to identify
alternative vendors. Oglethorpe may not be able to identify all third parties'
Year 2000 problems, and may not be able to develop adequate contingency plans if
third parties do not correct their Year 2000 problems.
PROJECT COSTS. In addition to the $4.5 million expected to be paid to GPC,
Oglethorpe currently estimates costs of approximately $370,000 to upgrade its
internal systems, including those relating to Rocky Mountain. To date,
Oglethorpe has spent approximately $270,000 of the estimated $370,000 on this
effort. In addition, Oglethorpe is upgrading or replacing its externally
developed financial accounting, procurement and materials management, and human
resource/payroll systems to improve functionality and to avoid Year 2000
remediation efforts on those systems, at an estimated cost of approximately $4.0
million, of which $745,000 has been spent. Oglethorpe's policy is to expense as
incurred the maintenance and modification costs of existing software, including
those associated with
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the Year 2000 project, and to capitalize and amortize over its useful life the
cost of new software. Oglethorpe also estimates that approximately $770,000 will
be incurred for Phase III, including costs associated with performing a
management evaluation of the Phase I and Phase II activities, and to perform the
contingency planning and the preparedness evaluation of key business
relationships. These costs are estimates, and actual costs could be higher.
Oglethorpe plans to pay for Year 2000 costs with general corporate funds. Year
2000 costs are being recovered from the Members through Oglethorpe's rates.
RISK ASSESSMENT. Oglethorpe has implemented a detailed process to minimize the
possibility of power supply interruptions related to Year 2000 challenges and
expects its IT and non-IT systems to be Year 2000 ready by December 31, 1999.
The most reasonably likely worst case scenario would be service interruptions to
Oglethorpe's Members or the Members' retail consumers. These scenarios include
the loss of a generating unit or a source of purchased power, or a disruption in
transmission or distribution services by GTC or the Members. Because Oglethorpe
is taking prudent steps to prepare for the Year 2000 challenges, it expects any
interruptions in power supply to be isolated and short in duration. However,
because of material relationships with third parties, Oglethorpe may not be
able to fully assess the possibility of service interruptions to the ultimate
retail consumers.
There is also risk to the Members of billing and other business system failures
and of some reduction in net margin caused by interruptions in service and
reduced electrical demand by consumers because of their Year 2000 issues.
Oglethorpe has not fully assessed the impact of these risks on its financial
condition or results of operations.
Actual results, costs, risks, or worst case scenarios related to Year 2000
issues may materially differ from those that Oglethorpe expects or estimates.
Factors that might cause material differences include, but are not limited to,
Oglethorpe's ability to locate and correct all microprocessors that are not Year
2000 ready, the readiness of third parties, and Oglethorpe's ability to develop
adequate contingency plans to respond to foreseen or unforeseen Year 2000
problems.
CONTINGENCY PLANNING. Oglethorpe recently began developing contingency plans for
its IT and non-IT systems. To assist Oglethorpe in this effort, the consulting
firm KPMG has been engaged to provide leadership and expertise to the Oglethorpe
staff developing the contingency plans. The contingency plans will also focus on
non-compliance by material third parties and assess the need to identify
alternative vendors and the need to increase inventory of materials and
supplies. The contingency plans are expected to be in place by June 30, 1999 and
will continue to be evaluated and tested throughout 1999. The goal of the
contingency planning process is to keep any service interruptions to a minimum
and of short duration and to avoid disruptions in its billing or other
management processes. Oglethorpe may incur additional costs as a result of its
contingency plans.
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS
This Quarterly Report on Form 10-Q contains forward-looking statements,
including statements regarding, among other items, (i) anticipated trends in
Oglethorpe's business, (ii) Oglethorpe's future power supply resources and
arrangements and (iii) other management issues such as the Year 2000 issue.
These forward-looking statements are based largely on Oglethorpe's current
expectations and are subject to a number of risks and uncertainties, certain of
which are beyond Oglethorpe's control.
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For certain factors that could cause actual results to differ materially from
those anticipated by these forward-looking statements, see "COMPETITION" and
"YEAR 2000" herein and "CERTAIN FACTORS AFFECTING THE ELECTRIC UTILITY
INDUSTRY" in Item 1 of Oglethorpe's 1998 Annual Report on Form 10-K. In light
of these risks and uncertainties, there can be no assurance that events
anticipated by the forward-looking statements contained in this Quarterly
Report will in fact transpire.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Oglethorpe's market risks have not changed materially from the market
risks reported in the 1998 Form 10-K.
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PART II - OTHER INFORMATION
ITEM 5. OTHER INFORMATION
Larry N. Chadwick, Sammy M. Jenkins, Ashley C. Brown and John S. Ranson,
whose initial terms as Directors expired in March 1999, were each elected for an
additional term of three years ending March 2002.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
Number Description
- --------- -------------
10.27 Long Term Transaction Service Agreement Under Southern Companies'
Federal Energy Regulatory Commission Electric Tariff Volume No. 4
Market-Based Rate Tariff, between Georgia Power Company and
Oglethorpe, dated as of February 26, 1999.
27.1 Financial Data Schedule (for SEC use only).
(b) REPORTS ON FORM 8-K
No reports on Form 8-K were filed by Oglethorpe for the quarter ended March 31,
1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Oglethorpe Power Corporation
(An Electric Membership Corporation)
Date: May 14, 1999 By: /S/ JACK L. KING
----------------------------------------
Jack L. King
President and Chief Executive Officer
(Principal Executive Officer)
Date: May 14, 1999 /S/ MAC F. OGLESBY
----------------------------------------
Mac F. Oglesby
Treasurer
(Principal Financial Officer)
Date: May 14, 1999 /S/ THOMAS A. SMITH
----------------------------------------
Thomas A. Smith
Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
Date: May 14, 1999 /S/ WILLIE B. COLLINS
----------------------------------------
Willie B. Collins
Controller
(Chief Accounting Officer)
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EXHIBIT 10.27
LONG TERM TRANSACTION SERVICE AGREEMENT
UNDER SOUTHERN COMPANIES' FEDERAL ENERGY REGULATORY COMMISSION
ELECTRIC TARIFF VOLUME NO. 4
MARKET-BASED RATE TARIFF
between
GEORGIA POWER COMPANY
and
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
Dated as of February 26, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I: DEFINITIONS...........................................................................................2
1.1 Certain Definitions.................................................................................2
1.2 Interpretation.....................................................................................11
ARTICLE II: SALE OF ELECTRIC CAPACITY...........................................................................11
2.1 Sale and Amount of Capacity........................................................................11
2.2 Price of Capacity..................................................................................11
ARTICLE III: SALE OF ELECTRIC ENERGY............................................................................12
3.1 Sale and Delivery of Energy........................................................................12
3.2 Price of Energy....................................................................................13
ARTICLE IV: SHORT TERM RESOURCE COMMITMENT AND ENERGY
UTILIZATION......................................................................................................14
4.1 Availability.......................................................................................14
4.2 Energy Utilization Schedules.......................................................................15
4.3 Changes to Utilization Schedules...................................................................15
4.4 Minimum Utilization Notice.........................................................................16
4.5 Minimum Utilization Duration.......................................................................17
4.6 Maximum Utilization Hours..........................................................................18
4.7 Energy Utilization.................................................................................18
4.8 Recall of Short Term Resources.....................................................................18
4.9 Delivery of and Payment for Energy.................................................................20
4.10 Hourly Energy Rate Information Obligations.........................................................20
ARTICLE V: LT RESOURCE COMMITMENT AND ENERGY UTILIZATION........................................................21
5.1 Availability.......................................................................................21
5.2 LT Steam Resource Commitment Schedules.............................................................21
5.3 Changes to LT Steam Resource Commitment Schedules..................................................22
5.4 LT Steam Resource Minimum Commitment Notice........................................................22
5.5 LT Steam Resource Minimum Decommitment Notice......................................................24
5.6 LT Steam Resource Minimum Downtime.................................................................25
5.7 LT Peaking Resource Deemed Committed...............................................................25
5.8 Energy Utilization Schedules.......................................................................25
5.9 Changes to Utilization Schedules...................................................................27
5.10 Minimum Utilization Notice.........................................................................28
5.11 Minimum Utilization Levels.........................................................................30
5.12 Maximum Utilization Levels.........................................................................30
5.13 LT Steam Resource Ramping..........................................................................31
5.14 Energy Utilization.................................................................................32
5.15 Reduction of Load Carrying Capability..............................................................32
5.16 Delivery of and Payment for Energy.................................................................35
5.17 Emergency Decommitment.............................................................................35
</TABLE>
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<TABLE>
<S> <C>
5.18 RCSA Treatment......................................................................................35
ARTICLE VI: BILLING AND COLLECTIONS.............................................................................36
6.1 Capacity Billing and Payment........................................................................36
6.2 Energy Billing and Payment..........................................................................37
6.3 Billing Disputes and Final Accounting...............................................................38
6.4 Availability of Records.............................................................................40
6.5 Implementation Costs................................................................................41
6.6 Failure to Make Payments............................................................................41
6.7 Limited Withholding of Payments.....................................................................42
ARTICLE VII: CERTAIN CAPACITY AND ENERGY SALE MATTERS...........................................................43
7.1 Service Rendered....................................................................................43
7.2 Resale..............................................................................................44
7.3 Character of Transactions...........................................................................44
7.4 Constancy of Supply.................................................................................45
7.5 Market Rate Tariff..................................................................................46
7.6 Termination of the BPSA.............................................................................47
7.7 FERC Modification of Formulary Rates Under the BPSA.................................................47
ARTICLE VIII: TERM OF AGREEMENT.................................................................................48
8.1 Term................................................................................................48
8.2 Conditions For Effectiveness........................................................................48
8.3 EMCs'Approval of any LT Resource as a Non-Recourse Resource.........................................49
8.4 FERC Changes; Rights to Terminate...................................................................51
8.5 Purchases After Expiration, Termination or Reduction................................................51
ARTICLE IX: MISCELLANEOUS PROVISIONS............................................................................52
9.1 Approvals...........................................................................................52
9.2 Assignment..........................................................................................52
9.3 Georgia Power's Agent...............................................................................53
9.4 No Partnership......................................................................................53
9.5 Successors and Assigns..............................................................................53
9.6 No Third Party Benefit..............................................................................53
9.7 No Consequential Damages............................................................................53
9.8 No Affiliate Liability..............................................................................53
9.9 Disclaimer of Warranty..............................................................................54
9.10 Time of Essence; No Waiver..........................................................................54
9.11 Amendments..........................................................................................54
9.12 Notice..............................................................................................55
9.13 Counterparts........................................................................................56
9.14 Articles and Section Headings.......................................................................56
9.15 Including...........................................................................................56
9.16 Governing Law.......................................................................................56
9.17 Necessary Authorization.............................................................................56
</TABLE>
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<TABLE>
<S> <C>
ARTICLE X: EVENT OF DEFAULT AND TERMINATION.....................................................................57
10.1. Event of Default.....................................................................................57
10.2 Rights Under Agreement...............................................................................59
10.3 Termination Upon Default.............................................................................59
</TABLE>
EXHIBIT A Member Systems: Oglethorpe Power Corporation
SCHEDULE A SHORT TERM RESOURCE
SCHEDULE B LONG TERM PEAKING RESOURCE
SCHEDULE C LONG TERM STEAM RESOURCE
iii
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LONG TERM TRANSACTION SERVICE AGREEMENT
UNDER SOUTHERN COMPANIES' FEDERAL ENERGY REGULATORY
COMMISSION
ELECTRIC TARIFF VOLUME NO. 4
MARKET-BASED RATE TARIFF
This Agreement is entered into this 26th day of February, 1999, by and
between GEORGIA POWER COMPANY, a corporation organized and existing under the
laws of the State of Georgia ("Georgia Power" and/or "Seller"); and OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), organized and existing
under the laws of the State of Georgia ("Oglethorpe Power" and/or "Purchaser").
In consideration of the mutual covenants and agreements herein, Georgia Power
and Oglethorpe Power (collectively the "Parties") hereby agree as follows:
W I T N E S S E T H:
WHEREAS, Georgia Power is engaged in the sale of wholesale electric
power and has received authorization from the Federal Energy Regulatory
Commission to provide services at market-based rates in accordance with Southern
Companies' Electric Tariff Volume No. 4 Market-Based Rate Tariff (the "Tariff");
WHEREAS, Oglethorpe Power is an electric utility, rural electric
cooperative, municipality, power authority, or agency, or other entity engaged
in the purchase of power at wholesale;
WHEREAS, Oglethorpe Power is not affiliated with Georgia Power or any
of the operating company affiliates of Georgia Power;
WHEREAS, the Parties desire to set forth the terms and conditions upon
which the sale of electric power and related services may be conducted between
the Parties; and
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<PAGE>
WHEREAS, Oglethorpe Power intends that the capacity and energy to be
purchased by it from Georgia Power hereunder shall replace the capacity and
energy that Oglethorpe Power is currently purchasing from Georgia Power under
the Block Power Sale Agreement between Georgia Power and Oglethorpe Power dated
as of November 12, 1990 ("BPSA"),
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein set forth, and other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, Georgia
Power and Oglethorpe Power, each intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. In addition to the initially capitalized
terms and phrases defined in the preamble of this Agreement, the following
initially capitalized terms and phrases as and when used in this Agreement shall
have the respective meanings set forth below:
(1) "Affiliate" - means, for any specified corporation, any
other entity directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
corporation. For purposes of this definition, "control" when used with
respect to any entity means the power to direct the management and
policies of such entity, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
(2) "Availability Factor" - means, at any given point in time,
for any LT Resource, the value stated in Part 5 of each respective LT
Schedule.
2
<PAGE>
(3) "Change in Law" - means a material change in, or material
change in the interpretation of, or the enactment, promulgation or
issuance of, any constitution, character, act, statute, regulation,
ordinance, order, ruling or rule, or material change in the specified
standards or objective criteria contained in a permit, license or other
approval, which standards or criteria must be met in order for a Unit
to generate energy, or other legislative or administrative action of
any Governmental Authority of competent jurisdiction, or a final
decree, judgment or order of a court of competent jurisdiction,
including temporary restraining orders, or litigation, which occurs
subsequent to January 15, 1999.
(4) "Day" - means a calendar day, commencing at one (1) minute
prior to 12:01 a.m. (Operating Time) of each such calendar day and
ending at one (1) minute after 11:59 p.m. (Operating Time) of such
calendar day.
(5) "Electric Membership Corporations" or "EMCs" - means any
one or more of those electric membership corporations identified in
Exhibit "A" attached hereto and incorporated herein by this reference
(for so long as and to the extent that such EMC or its successor
remains a member of Oglethorpe Power).
(6) "FERC" - means the Federal Energy Regulatory Commission or
any Governmental Authority succeeding to the powers and functions
thereof under the Federal Power Act.
(7) "Federal Power Act" - means the Federal Power Act, 16
U.S.C.A. ss. ss. 791a-828c, as the same mAY hereafter be amended from
time to time.
(8) "Georgia Territorial Resource Requirements" - means, at
any given time, the total energy requirements of the ITS (determined as
the sum of generation and power
3
<PAGE>
flows in on tie lines less power flows out on tie lines) minus "OPC
Territorial Load" (as such term is defined and used in the RCSA).
(9) "Governmental Authority" - means any local, state,
regional or federal administrative, legal, judicial or executive
agency, commission, department or other such entity.
(10) "Hour" - means one (1) of the twenty-four (24)
clock-hours of a Day. "Hourly" - has a meaning correlative to that of
Hour.
(11) "Hourly Energy Rate" - means, for the Short Term Resource
for each Hour during the Term, the amount, in dollars per megawatt-hour
($/MWH), calculated by Georgia Power for the Short Term Resource for
such Hour as provided in Part 4 of Schedule A attached hereto.
(12) "IIC" - means that certain document, The Southern Company
System Intercompany Interchange Contract dated October 31, 1988, among
Georgia Power and certain of its Affiliates, accepted in FERC Docket
No. ER89-48-000, as the same has been and may hereafter be amended, or
any successor contract among Georgia Power and its Affiliates for
coordinated operations.
(13) "ITS" - means the "Integrated Transmission System" as
such term is defined in the Revised ITSA.
(14) "Interest Rate" - means the rate per annum equal to the
lesser of:
(i) the highest interest rate allowed by law, in
accordance with O.C.G.A. Section 7-4-2(a)(1); or
(ii) two (2) percent plus the prime rate, as
stated in the WALL STREET JOURNAL on the date payment is
due.
4
<PAGE>
(15) "Joint Committee" - means the Joint Committee for
Planning and Operations established under that certain Joint Committee
Agreement among Georgia Power, Oglethorpe Electric Membership
Corporation (Oglethorpe Power's predecessor) and certain other
entities, dates as of August 27, 1976, as amended.
(16) "Level A" - means the generator voltage side of each
step-up or station service transformer of each generation facility of
Georgia Power or other entity that supplies power directly into the
ITS.
(17) "Level A to B-1 Loss Factors" - means factors intended to
reflect energy loss from Level A to Level B-1 for generation, as
adopted by the Joint Committee.
(18) "Level B-1" - means the transmission voltage side of each
step-up transformer of each generation facility of Georgia Power or
other entity that supplies power directly into the ITS, or any points
of interconnection where power flows into the ITS.
(19) "Load Carrying Capability" - means, for each LT Resource
at any given time during the Term, subject to adjustment in accordance
with Section 5.15, the product, expressed in whole megawatts (MW), of:
(i) the Resource Capacity of such LT Resource at such
time, in megawatts (MW); times
(ii) the Availability Factor of such LT Resource
at such time.
(20) "LT Peaking Resource" - means the long term peaking
resource described in Schedule B attached hereto.
(21) "LT Resources" - means both the LT Peaking Resource and
the LT Steam Resource.
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(22) "LT Schedule" - means one of Schedules B or C attached
hereto.
(23) "LT Steam Resource" - means the long term steam resource
described in Schedule C attached hereto.
(24) "Minimum Operating Level" - means, for the LT Steam
Resource at any given time during the Term, the product, expressed in
whole megawatts (MW), of:
(i) the Resource Capacity at such time, in megawatts
(MW); times
(ii) Forty one-hundredths (0.40).
"Minimum Operating Level" - means, for each LT Peaking Resource at any
given time during the Term, zero (-0-) megawatts (MW).
(25) "Month" - means a calendar month, commencing at one (1)
minute prior to 12:01 a.m. (Operating Time) on one of January 1,
February 1, March 1, April 1, May 1, June 1, July 1, August 1,
September 1, October 1, November 1 and December 1 and ending at one (1)
minute after 11:59 p.m. (Operating Time) of the succeeding January 31,
February 28 or 29 (during a leap year), March 31, April 30, May 31,
June 30, July 31, August 31, September 30, October 31, November 30 or
December 31. "Monthly" - has a meaning correlative to that of Month.
(26) "Monthly Capacity Charge" - means, for a given Resource,
the Monthly amount owed by Oglethorpe Power to Georgia Power for the
capacity of such Schedule, in dollars per Month ($/Mo), as the same is
calculated by Georgia Power for such Resource for each Month during the
Term as provided in Sections 2.2(b) and (c).
(27) "Monthly Capacity Payment" - means the Monthly payment
owed by Oglethorpe Power
6
<PAGE>
to Georgia Power for the capacity purchased by Oglethorpe Power
hereunder, in dollars per Month ($/Mo), as the same is calculated by
Georgia Power for each Month during the Term as provided in Section
2.2(a).
(28) "Monthly Capacity Rate" - means, for each LT Resource for
each Month of a given Year, the amount, in dollars per kilowatt-month
($/KW-Mo), as set forth in Part 3 of the Schedule associated with such
LT Resource.
(29) "Monthly Energy Charge" - means, for a given Resource,
the Monthly amount owed by Oglethorpe Power to Georgia Power for energy
scheduled from such Resource, in dollars per Month ($/Mo), as the same
is calculated by Georgia Power for such Resource for each Month during
the Term as provided in Sections 3.2(b) and (c).
(30) "Monthly Energy Payment" - means the Monthly payment owed
by Oglethorpe Power to Georgia Power for energy scheduled by Oglethorpe
Power hereunder, in dollars per Month ($/Mo), as the same is calculated
by Georgia Power for each Month during the Term as provided in Section
3.2(a).
(31) "Monthly Energy Rate" - means, for a given LT Resource
for each Month during the Term, the amount, in dollars per
megawatt-hour ($/MWH), calculated by Georgia Power for such Resource
for such Month as provided in Part 4 of the Schedule associated with
such LT Resource.
(32) "Operating Time" - means the time standard used to
dispatch, schedule and control the control area of which Georgia Power
is a part, currently central prevailing time. Oglethorpe Power shall be
noticed of any changes in the time standard used for Operating Time.
(33) "Prudent Utility Practices" - means, at a particular
time, any of the practices, methods and acts engaged in or approved by
a significant portion of the electric utility
7
<PAGE>
industry prior to such time, or any of the practices, methods and acts
which, in the exercise of reasonable judgment in light of the facts
known at the time the decision was made, could have been expected to
accomplish the desired results at the lowest reasonable cost consistent
with good business practices, reliability, safety and expedition.
Prudent Utility Practices is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather to
be a spectrum of possible practices, methods or acts expected to
accomplish the desired results, having due regard for, among other
things, manufacturers' warranties and the requirements of Governmental
Authorities of competent jurisdiction and the requirements of this
Agreement.
(34) "Quarter Hour" - means any one of the 15 minute
increments starting on each Hour, at 15 minutes past each Hour, at 30
minutes past each Hour and at 45 minutes past each Hour.
(35) "Resource" - means any one (1) of the Short Term
Resources or the LT Resources. The Resources under this Agreement shall
be deemed "OPC Resources" (as such term is defined and used in the
RCSA).
(36) "Resource Capacity" - means the amount of capacity, in
megawatts (MW), associated with such Resource as specified in the
notices given by Oglethorpe Power pursuant to Part 2 of each respective
Schedule plus the Remainder, if any, as specified in Part 2 of Schedule
B or C.
(37) "Revised Coordination Services Agreement" or "RCSA" -
means that certain Revised and Restated Coordination Services Agreement
between and among Georgia Power, Oglethorpe Power and GSOC dated as of
September 10, 1997, as may be amended.
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(38) "Revised ITSA" - means that certain Revised and Restated
Integrated Transmission System Agreement between Georgia Power and
Oglethorpe Power dated as of November 12, 1990, and each of the similar
agreements between Georgia Power and the Municipal Electric Authority
of Georgia and between Georgia Power and the City of Dalton, Georgia,
as may be amended.
(39) "RUS" - means the Rural Utilities Service, an agency of
the United States Department of Agriculture, or any Governmental
Authority succeeding to the powers and functions thereof.
(40) "Schedule" - means one (1) of the schedules, designated
Schedule A, B or C for sale of capacity and associated energy attached
to this Agreement and incorporated herein by reference.
(41) "Short Term Resource" - means one (1) of the short term
resources described in Schedule A attached hereto.
(42) "Southern Control Area" - means the electric service area
encompassed by tie lines, including, but not limited to, the pseudo tie
lines (as defined by NERC's "Terms Used in the Policies"), between the
operating company affiliates of The Southern Company (Alabama Power
Company, Georgia Power Company, Gulf Power Company, Mississippi Power
Company, and Savannah Electric and Power Company) and other utilities.
(43) "Southern Dispatch" - means the ability of Southern
Company Services, Inc. (or other Affiliate of Georgia Power) to
schedule and control, directly or indirectly, manually or
automatically, the output of a generation facility in the Southern
Control
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Area in order to increase or decrease the electricity delivered from
such generation facility into the electric system with which it is
interconnected.
(44) "Term" - means the term of this Agreement specified in
Section 8.1.
(45) "Umbrella Agreement" - means that certain ITSA, Power
Sale and Coordination Umbrella Agreement entered into between Georgia
Power and Oglethorpe Power as of November 12, 1990.
(46) "Unit" - means any one (1) of the generation facilities
identified in the LT Schedules.
(47) "Unit Power Sales ("UPS")" - means sales pursuant to the
following specific agreements: (1) Unit Power Sales Agreement between
Florida Power Corporation and Alabama Power Company, Georgia Power
Company, Gulf Power Company, Mississippi Power Company, Savannah
Electric and Power Company and Southern Company Services, Inc. dated as
of July 19, 1988; (2) Unit Power Sales Agreement between Florida Power
& Light Company and Alabama Power Company, Georgia Power Company, Gulf
Power Company, Mississippi Power Company, Savannah Electric and Power
Company and Southern Company Services, Inc. dated as of July 20, 1988;
(3) Unit Power Sales Agreement between Jacksonville Electric Authority
and Alabama Power Company, Georgia Power Company, Gulf Power Company,
Mississippi Power Company, Savannah Electric and Power Company and
Southern Company Services, Inc. dated as of August 17, 1988; and (4)
Unit Power Sales Agreement between City of Tallahassee and Alabama
Power Company, Georgia Power Company, Gulf Power Company, Mississippi
Power Company, Savannah Electric and Power Company and Southern Company
Services, Inc. dated as of December 8, 1990.
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(48) "Week" - means each period of seven (7) Days, commencing
at one (1) minute prior to 12:01 a.m. (Operating Time) of each Monday
and ending at one (1) minute after 11:59 p.m. (Operating Time) of each
succeeding Sunday.
(49) "Year" - means a calendar year, commencing at one (1)
minute prior to 12:01 a.m. (Operating Time) of each January 1 and
ending at one (1) minute after 11:59 p.m. (Operating Time) of each
succeeding December 31.
1.2 INTERPRETATION. In this Agreement and the Schedules hereto,
unless the context otherwise requires:
(a) words generally importing the singular shall include the
plural and vice versa.
(b) the term "entity" includes corporations, limited liability
companies, partnerships, associations and governmental authorities.
ARTICLE II
SALE OF ELECTRIC CAPACITY
2.1 SALE AND AMOUNT OF CAPACITY. Georgia Power agrees to sell to
Oglethorpe Power, and Oglethorpe Power agrees to purchase from Georgia Power,
during each Year of the Term (or portion thereof that is within the Term), an
amount of capacity equal to that specified in Schedules A, B and C.
2.2 PRICE OF CAPACITY.
(a) Oglethorpe Power shall pay Georgia Power for each Month of
the Term a Monthly Capacity Payment, in dollars per Month ($/Mo), that is equal
to the summation of the Monthly Capacity Charge of each Resource for such Month.
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(b) For each Short Term Resource, the Monthly Capacity Charge,
in dollars per Month ($/Mo), for any given Month is stated in Part 3 of Schedule
A.
(c) For each LT Resource, the Monthly Capacity Charge, in
dollars per Month ($/Mo), for any given Month is equal to the product of:
(1) the Resource Capacity, in megawatts (MW), of such
LT Resource during the immediately previous Month; times
(2) the Monthly Capacity Rate for such LT Resource
for such previous Month, in dollars per kilowatt-month ($/KW-Mo); times
(3) one thousand (1,000).
ARTICLE III
SALE OF ELECTRIC ENERGY
3.1 SALE AND DELIVERY OF ENERGY.
(a) Georgia Power agrees to sell to Oglethorpe Power, and
Oglethorpe Power agrees to purchase from Georgia Power, all energy scheduled by
Oglethorpe Power pursuant to this Agreement.
(b) Subject to Section 6.6, Oglethorpe Power may commit and
schedule energy utilization of each Resource, in amounts determined from time to
time in Oglethorpe Power's discretion, in accordance with the provisions of
Articles IV and V. Any final commitment or energy utilization schedule made by
Oglethorpe Power pursuant to this Agreement shall constitute an obligation to
accept and purchase energy utilization of the Resources as so scheduled (or as
deemed to have been so scheduled under the provisions of Articles IV and V),
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and Oglethorpe Power shall be obligated to pay for such energy utilization at
the prices determined pursuant to Section 3.2.
(c) Georgia Power agrees to deliver energy scheduled by
Oglethorpe Power hereunder, and Oglethorpe Power shall accept such energy, at
Level B-1, as and when scheduled by Oglethorpe Power; PROVIDED, HOWEVER, that
Georgia Power shall not be required to deliver any such scheduled energy, if the
schedule does not comply with the provisions of Articles IV and V or if such
nondelivery is permissible under Section 6.6. Georgia Power may serve Oglethorpe
Power's schedules with energy from any resources available to Georgia Power, in
Georgia Power's sole discretion.
3.2 PRICE OF ENERGY.
(a) Oglethorpe Power shall pay Georgia Power during each Month
of the Term a Monthly Energy Payment, in dollars per Month ($/Mo), that is equal
to the summation of the Monthly Energy Charge of each Resource for such Month.
(b) For each Short Term Resource, the Monthly Energy Charge,
in dollars per Month ($/Mo), for any given Month is equal to the summation, over
all Hours of the previous Month, of the product of:
(1) the amount of energy in megawatt-hours (MWH)
deemed to have been utilized by Oglethorpe Power (under Section 4.7)
from the Short Term Resource during each Hour of the previous Month;
times
(2) the Hourly Energy Rate, in dollars per
megawatt-hour ($/MWH), for the Short Term Resource for such Hour.
(c) For each LT Resource, the Monthly Energy Charge, in
dollars per Month ($/Mo), for any given Month is equal to the product of:
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(1) the summation of the amount of energy, in
megawatt-hours per Month (MWH/Mo), deemed to have been utilized by
Oglethorpe Power (under Section 5.14) from such LT Resource during each
Hour of the previous Month; times
(2) the Monthly Energy Rate, in dollars per
megawatt-hour ($/MWH), for such LT Resource for such previous Month.
(d) Georgia Power shall provide to Oglethorpe Power the
Monthly Energy Rate as calculated by Georgia Power as provided in Part 4 of the
LT Schedules for each LT Resource associated with a LT Schedule, that is in
effect for such Month, for each Month, by the third (3rd) business Day prior to
the last Day of the immediately previous Month.
ARTICLE IV
SHORT TERM RESOURCE COMMITMENT AND ENERGY UTILIZATION
4.1 AVAILABILITY.
(a) Each of Oglethorpe Power's Short Term Resources shall be
deemed to be available during each Hour of each Day of each Week during the Term
at the respective then current Resource Capacity of such Short Term Resource, as
long as Schedule A is effective under this Agreement. The deemed availability of
a given Short Term Resource shall change automatically from time to time during
the Term to reflect any recall of the Short Term Resources pursuant to Section
4.8.
(b) Commencing upon the effective date of Schedule A's
termination under this Agreement, Oglethorpe Power may no longer at any time
schedule any energy utilization from the Short Term Resources.
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4.2 ENERGY UTILIZATION SCHEDULES. Oglethorpe Power shall
provide Georgia Power or its agent on or before 9:30 a.m. (Operating Time) of
each Day, a schedule of Oglethorpe Power's anticipated utilization for each
Hour during the immediately following Day from each Short Term Resource,
subject to the provisions of this Section 4.2 and Sections 4.4, 4.5 and 4.6
concerning minimum utilization notice, minimum utilization duration, and
maximum utilization Hours. If Oglethorpe Power provides more than one (1)
schedule for its anticipated utilization of the Short Term Resources for the
immediately following Day, the schedule last received by Georgia Power or its
agent on or before 9:30 a.m. (Operating Time) shall be deemed the effective
schedule and all previous schedules submitted for such Day shall be deemed
ineffective. Georgia Power shall use reasonable best efforts to notify
Oglethorpe Power that such utilization schedule has been deemed ineffective
as soon as practicable following such event.
4.3 CHANGES TO UTILIZATION SCHEDULES.
(a) If Oglethorpe Power has submitted a valid utilization
schedule for one or more Short Term Resources pursuant to Section 4.2 for a
given Day, Oglethorpe Power may make changes to its schedule of utilization from
the Short Term Resources for such given Day from time to time during such Day,
in Oglethorpe Power's discretion, subject to the provisions of this Section 4.3
and of Sections 4.4, 4.5 and 4.6 concerning minimum utilization notice, minimum
utilization duration, and maximum utilization Hours.
(b) Oglethorpe Power shall use good faith efforts to notify
Georgia Power or its agent of such changes as soon as practicable after
Oglethorpe Power decides to make any such changes. Such notices shall contain
information regarding which Short Term Resource Oglethorpe Power wishes to add
to or delete from its utilization schedule for the Short Term Resources during
each Hour affected by such changes. Except as required in Section 4.3(c), if
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Oglethorpe Power notifies Georgia Power of the intent to add or delete more than
one (1) Short Term Resource in any given Hour, such notice shall be deemed
ineffective. Georgia Power shall use reasonable best efforts to notify
Oglethorpe Power that such utilization schedule has been deemed ineffective as
soon as practicable following such event.
(c) Oglethorpe Power shall be required to make such changes to
its energy utilization schedules from time to time during a Day to reflect any
recalls made by Georgia Power or its agent, pursuant to Section 4.8, of the
Short Term Resources. Oglethorpe Power shall make changes as and when directed
by Georgia Power or its agent. Oglethorpe Power shall be deemed to have reduced
its energy utilization schedule from such a Short Term Resource, automatically
as and when, and to such level of energy as Georgia Power or its agent deems
appropriate under the circumstances and Section 4.8 (including without
limitation zero (-0-)), whether or not Oglethorpe Power has made such changes as
aforesaid. Any changes to Oglethorpe Power's utilization schedules made or
deemed to have been made pursuant to this Section 4.3(c) shall be treated as
"energy scheduled . . . but not delivered" pursuant to Section 4.8(c).
4.4 MINIMUM UTILIZATION NOTICE.
(a) Oglethorpe Power must give Georgia Power or its agent at
least twenty (20) minutes' prior notice that Oglethorpe Power wishes to utilize
energy from a Short Term Resource during an Hour in order to actually utilize
energy from such Short Term Resource during such Hour.
(b) Once Oglethorpe Power has given Georgia Power or its agent
notice pursuant to Section 4.2 or 4.3 that Oglethorpe Power wishes to utilize
energy from a given Short Term
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Resource in a given Hour, Oglethorpe Power may delete such Short Term Resource
from its utilization schedule for such Hour only until twenty (20) minutes prior
to such Hour.
(c) Oglethorpe Power's schedule of energy utilization from all
Short Term Resources during a given Hour shall become final at twenty (20)
minutes prior to such Hour and shall not thereafter be subject to change by
Oglethorpe Power.
(d) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to Section 4.2 or 4.3 that Oglethorpe Power wishes to schedule
energy utilization from a given Short Term Resource upon less than twenty (20)
minutes' prior notice, then such energy utilization notice shall be deemed
ineffective as to such Short Term Resource for such Hour (even if Oglethorpe
Power complied with the provisions of Sections 4.5 and 4.6 concerning minimum
utilization duration and maximum utilization Hours). Georgia Power shall use
reasonable best efforts to notify Oglethorpe Power that such utilization
schedule has been deemed ineffective as soon as practicable following such
event.
4.5 MINIMUM UTILIZATION DURATION. If any Short Term Resource is
utilized during a given Day, then Oglethorpe Power must always schedule
energy utilization from each such Short Term Resource at no less than six (6)
consecutive Hours. If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to Sections 4.2 or 4.3 that Oglethorpe Power wishes to
schedule any Short Term Resource such that such Short Term Resource is being
utilized less than six (6) consecutive Hours, then Oglethorpe Power shall
nevertheless be deemed to have scheduled energy utilization from such Short
Term Resource for a period of six (6) consecutive Hours starting with the
first Hour scheduled for such Short Term Resource in said notice. Georgia
Power shall use reasonable best efforts to notify Oglethorpe Power that such
utilization schedule has been deemed changed as soon as practicable following
such event.
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4.6 MAXIMUM UTILIZATION HOURS. Oglethorpe Power may not
schedule energy utilization from the Short Term Resources in excess of 2500
Hours during the Term of this Agreement. For purposes of determining such
2500 Hours of maximum energy utilization, if Oglethorpe Power schedules one
(1) or more Short Term Resource in a given Hour, such Hour shall count as one
(1) Hour of energy utilization. If Oglethorpe Power gives Georgia Power or
its agent notice pursuant to Sections 4.2 or 4.3 that Oglethorpe Power wishes
to schedule any Short Term Resource such that the Short Term Resources are
being utilized in excess of 2500 Hours during the Term of this Agreement,
such notice shall be ineffective. Georgia Power shall use reasonable best
efforts to notify Oglethorpe Power that such utilization schedule has been
deemed ineffective as soon as practicable following such event.
4.7 ENERGY UTILIZATION. For purposes of calculating both the
Monthly Energy Charge for each of the Short Term Resources and the "Actual
Hourly Resource Utilization" (as such term is defined and used in the RCSA)
associated with each of the Short Term Resources, Oglethorpe Power shall be
deemed to have utilized during each Hour all energy either:
(1) shown on Oglethorpe Power's final energy
utilization schedule (under Section 4.4(c)) during each such Hour for
such Short Term Resource, except as such energy utilization schedule
may have been deemed ineffective under Section 4.2, 4.3(b), 4.4(d) or
4.6.
(2) deemed to have been scheduled by Oglethorpe Power
during each such Hour from such Short Term Resource under Section
4.3(c) or 4.5.
4.8 RECALL OF SHORT TERM RESOURCES.
(a) If Georgia Power or its agent determines in its sole
discretion that it is necessary or appropriate to interrupt (i) Georgia Power
retail interruptible load (retail electric
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service currently provided pursuant to Tariffs IS-Standard-1 and IS-SBG-1 on
file with the Georgia Public Service Commission), or (ii) firm sale obligations
executed prior to this Agreement, then the Short Term Resources may, in Georgia
Power's sole discretion, be interrupted upon thirty (30) minutes' prior notice.
Such notice shall specify the event(s) used to determine the recall.
(b) Oglethorpe Power agrees that, in such event, it will
immediately change (or allow the change of by Georgia Power or its agent) its
energy utilization from the Short Term Resources, as provided in Section 4.3. In
addition, in such event, Oglethorpe Power agrees that it will take any and all
actions necessary or appropriate to accomplish the foregoing including, without
limitation, shedding load served by the Short Term Resources. Oglethorpe Power
may recommence serving load shed by Oglethorpe Power pursuant to this Section
4.8 when Georgia Power or its agent advises Oglethorpe Power that it is
appropriate to do so in light of system security needs.
(c) Georgia Power agrees that, if the Short Term Resources are
reduced pursuant to this Section 4.8 such that the Monthly ratio of actual
energy delivered during such Month, in megawatt-hours (MWH), divided by the sum
of the actual energy delivered during such Month plus the energy scheduled
during such Month but not delivered due to interruption pursuant to this Section
4.8, excluding increases in scheduled utilization pursuant to Section 4.3 in an
Hour in which the Southern Control Area has declared a System Alert Level 1-A or
higher (as determined in accordance with the Southern Sub-Region Security
Coordinator Agreement), expressed in megawatt-hours (MWH), is less than
ninety-five one-hundredths (0.95), then Georgia Power shall give Oglethorpe
Power a credit in the following Monthly invoice in an
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amount for the Short Term Resources that is determined in accordance with Part 5
of Rate Schedule A.
4.9 DELIVERY OF AND PAYMENT FOR ENERGY. Georgia Power's and
Oglethorpe Power's respective rights and obligations concerning the delivery
of and payment for final energy utilization scheduled by Oglethorpe Power
from the Short Term Resources during any given Hour of the Term shall be as
set forth in Article III.
4.10 HOURLY ENERGY RATE INFORMATION OBLIGATIONS.
(a) By 5:00 p.m. (Operating Time) of each Day in which
Oglethorpe Power has submitted a valid schedule for utilization of energy from
any of the Short Term Resources pursuant to Sections 4.2 through 4.6, Georgia
Power will provide, to Oglethorpe Power, estimates of the expected Hourly Energy
Rates for each Hour of the following Day together with an assessment of the
probability of a recall pursuant to Section 4.8 during the following Day. At
least thirty (30) minutes prior to each Hour of such following Day, Georgia
Power will provide, to Oglethorpe Power, the Hourly Energy Rates effective for
such Hour, provided such Hour is not subject to interruption pursuant to Section
4.8.
(b) Oglethorpe Power agrees to treat such Hourly Energy Rates
and estimates as confidential data consistent with the provisions of Article XV
of the RCSA. Specifically, Oglethorpe Power shall not disclose such Hourly
Energy Rates or estimates to any other person, agent or entity, including, but
not limited to, LG&E Energy Marketing, Morgan Stanley Capital Group, Inc. or any
other power marketer, PROVIDED, HOWEVER, Oglethorpe Power may disclose actual
Hourly Energy Rates associated with the final energy utilization to the EMCs to
the extent necessary for billing and audit purposes after receipt of the invoice
rendered pursuant to Section 6.2. Oglethorpe Power will discuss with Georgia
Power the form and substance of such Hourly
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Energy Rates information that Oglethorpe Power intends to disclose to the EMCs
prior to such disclosure; PROVIDED, HOWEVER, Oglethorpe Power has no obligation
to discuss disclosure of such information when such disclosure occurs during an
audit by an EMC of a bill rendered by Oglethorpe Power to such EMC.
ARTICLE V
LT RESOURCE COMMITMENT AND ENERGY UTILIZATION
5.1 AVAILABILITY.
(a) Each of Oglethorpe Power's LT Resources shall be deemed to
be available during each Hour of each Day of each Week during the Term at the
respective then current Load Carrying Capability of such LT Resource, as long as
the respective LT Schedule is effective under this Agreement. The deemed
availability of a given LT Resource shall change automatically from time to time
during the Term to reflect any changes in the Load Carrying Capability of any of
the LT Resources under Section 5.15.
(b) Commencing upon the effective date of Schedule B's
termination under this Agreement, the LT Peaking Resource shall no longer be
deemed committed and Oglethorpe Power may no longer at any time schedule any
energy utilization from the LT Peaking Resource.
5.2 LT STEAM RESOURCE COMMITMENT SCHEDULES.
Oglethorpe Power shall provide Georgia Power or its agent on
or before 1:30 p.m. (Operating Time) of the Friday prior to the commencement of
each Week during the Term, a schedule for each Hour of each Day of the
immediately following Week indicating Oglethorpe Power's expected commitment for
the LT Steam Resource.
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5.3 CHANGES TO LT STEAM RESOURCE COMMITMENT SCHEDULES.
(a) Oglethorpe Power may make changes to its commitment
schedule of the LT Steam Resource for a given Week from time to time during such
Week, in Oglethorpe Power's discretion, subject to the provisions of this
Section 5.3 and of Sections 5.4, 5.5 and 5.6 concerning minimum notice periods
for commitment and decommitment and minimum downtime.
(b) Oglethorpe Power shall use good faith efforts to notify
Georgia Power or its agent of such changes as soon as practicable after
Oglethorpe Power decides to make any such changes.
(c) Notwithstanding Section 5.3(b), Oglethorpe Power shall
provide Georgia Power or its agent on or before 1:30 p.m. (Operating Time) of
each Day during the Term, notice of any such changes to Oglethorpe Power's then
current commitment schedule of the LT Steam Resource for the immediately
following one (1) Day. Notice of any such changes provided by Oglethorpe Power
pursuant to this Section 5.3(c) shall be deemed to satisfy the requirements of
Section 5.3(b). If Oglethorpe Power provides more than one (1) schedule for its
anticipated commitment of the LT Steam Resource for the immediately following
one (1) Day, the schedule last received by Georgia Power or its agent on or
before 1:30 p.m. (Operating Time) shall be deemed the effective schedule and all
previous schedules submitted for such Day shall be deemed ineffective.
5.4 LT STEAM RESOURCE MINIMUM COMMITMENT NOTICE.
(a) Oglethorpe Power must give Georgia Power or its agent at
least twelve (12) Hours' prior notice that it wishes to commit the LT Steam
Resource in order to actually commit such LT Steam Resource.
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(b) Once Oglethorpe Power has given Georgia Power or its agent
notice pursuant to Section 5.2 or 5.3 that Oglethorpe Power wishes to commit the
LT Steam Resource, Oglethorpe Power may delete the LT Steam Resource from its
then current commitment schedule only until twelve (12) Hours prior to the first
(1st) Hour during which Oglethorpe Power has notified Georgia Power that
Oglethorpe Power wishes the LT Steam Resource to be committed. If Oglethorpe
Power does not delete the LT Steam Resource from its then current commitment
schedule (by notice provided pursuant to Section 5.2 or 5.3) prior to the
commencement of the twelfth (12th) Hour preceding such first (1st) Hour of
commitment, then Oglethorpe Power shall be deemed to have committed the LT Steam
Resource, commencing with such first (1st) Hour, and may thereafter decommit the
LT Steam Resource only pursuant to and as allowed by Sections 5.2, 5.3, 5.5 and
5.17.
(c) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to Section 5.2 or 5.3 that Oglethorpe Power wishes to commit the
LT Steam Resource upon less than twelve (12) Hours' prior notice, then such
commitment notice shall be ineffective as to the LT Steam Resource (even if
Oglethorpe Power complied with the provisions of Section 5.6 concerning minimum
downtime). Georgia Power shall use reasonable best efforts to notify Oglethorpe
Power that such commitment schedule has been deemed ineffective as soon as
practicable following such event.
(d) Notwithstanding Sections 5.4(a) and 5.4(b), a commitment
of the LT Steam Resource shall not be effective unless Oglethorpe Power also
complies with the provisions of Section 5.6 concerning minimum downtime.
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5.5 LT STEAM RESOURCE MINIMUM DECOMMITMENT NOTICE.
(a) Unless permitted pursuant to Section 5.17, Oglethorpe
Power must give Georgia Power or its agent at least four (4) Hours' prior notice
that Oglethorpe Power wishes to decommit the LT Steam Resource in order to
actually decommit the LT Steam Resource.
(b) Once Oglethorpe Power has given Georgia Power or its agent
notice pursuant to Section 5.2 or 5.3 that Oglethorpe Power wishes to decommit
the LT Steam Resource, Oglethorpe Power may retain the LT Steam Resource on its
then current commitment schedule only until four (4) Hours prior to the first
(1st) Hour during which Oglethorpe Power has noticed Georgia Power that
Oglethorpe Power wishes the LT Steam Resource to be decommitted. If Oglethorpe
Power does not retain the LT Steam Resource on its then current commitment
schedule (by notice provided pursuant to Section 5.2 or 5.3) prior to the fourth
(4th) Hour preceding such first (1st) Hour of decommitment, then Oglethorpe
Power shall be deemed to have decommitted the LT Steam Resource, commencing with
such first (1st) Hour, and may thereafter again commit the LT Steam Resource
only pursuant to and as allowed by Sections 5.2, 5.3, 5.4 and 5.6.
(c) If Oglethorpe Power gives Georgia Power notice pursuant to
Section 5.2 or 5.3 that Oglethorpe Power wishes to decommit the LT Steam
Resource upon less than four (4) Hours' prior notice, then such decommitment
notice shall be ineffective as to the LT Steam Resource. Georgia Power shall use
reasonable best efforts to notify Oglethorpe Power that such commitment schedule
has been deemed ineffective as soon as practicable following such event.
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5.6 LT STEAM RESOURCE MINIMUM DOWNTIME.
(a) Oglethorpe Power may not commit the LT Steam Resource
until at least twenty-four (24) Hours following the first (1st) effective Hour
of the LT Steam Resource's most recent decommitment.
(b) If Oglethorpe Power notifies Georgia Power or its agent
pursuant to Section 5.2 or 5.3 that Oglethorpe Power wishes to commit the LT
Steam Resource following the expiration of fewer than twenty-four (24) Hours,
then such commitment notice shall be ineffective as to the LT Steam Resource
(even if Oglethorpe Power complied with the provisions of Section 5.4 concerning
minimum commitment notice). Georgia Power shall use reasonable best efforts to
notify Oglethorpe Power that such commitment schedule has been deemed
ineffective as soon as practicable following such event.
5.7 LT PEAKING RESOURCE DEEMED COMMITTED. The LT Peaking
Resource shall be deemed committed at all times during the Term, as long as
Schedule B has not terminated pursuant to this Agreement. Sections 5.2
through 5.6 shall not apply to the LT Peaking Resource.
5.8 ENERGY UTILIZATION SCHEDULES.
(a) Oglethorpe Power shall provide Georgia Power or its agent
on or before 1:30 p.m. (Operating Time) of each Day, a schedule of Oglethorpe
Power's anticipated energy utilization during the immediately following Day from
the committed LT Resources. If Oglethorpe Power provides more than one (1)
schedule for its anticipated utilization of the LT Steam Resource for the
immediately following one (1) Day, the schedule last received by Georgia Power
or its agent on or before 1:30 p.m. (Operating Time) shall be deemed the
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effective schedule and all previous schedules submitted for such Day shall be
deemed ineffective.
(b) The energy utilization schedules provided by Oglethorpe
Power for each Day pursuant to Section 5.8(a) shall contain information
regarding the amount of energy, in megawatt-hours per Hour (MWH/H), that
Oglethorpe Power expects to utilize from each of the committed LT Resources
during each Quarter Hour of such Day.
(c) Each of Oglethorpe Power's energy utilization schedules
shall be consistent on an Hour by Hour basis with Oglethorpe Power's then
current commitment schedule of the LT Steam Resource for such Hour. Oglethorpe
Power may not include the LT Steam Resource in an energy utilization schedule
for a given Hour of a given Day, if the LT Steam Resource has not been properly
committed by Oglethorpe Power for such Hour pursuant to Sections 5.2 through
5.6.
(d) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to this Section 5.8 that Oglethorpe Power wishes to schedule
energy utilization from the LT Steam Resource for a given Hour, when the LT
Steam Resource has not been properly committed by Oglethorpe Power for such Hour
pursuant to Sections 5.2 through 5.6, then such energy utilization notice shall
be ineffective as to the LT Steam Resource for such Hour (even if Oglethorpe
Power complied with the provisions of Sections 5.10, 5.11, 5.12 and 5.13
concerning minimum utilization notice, minimum utilization levels, maximum
utilization levels and ramping). Georgia Power shall use reasonable best efforts
to notify Oglethorpe Power that such utilization schedule has been deemed
ineffective as soon as practicable following such event.
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5.9 CHANGES TO UTILIZATION SCHEDULES.
(a) Oglethorpe Power may make changes to its schedule of
energy utilization from the committed LT Resources for a given Day from time to
time during such Day, in Oglethorpe Power's discretion, subject to the
provisions of this Section 5.9 and of Sections 5.10, 5.11, 5.12 and 5.13
concerning minimum utilization notice, minimum utilization levels, maximum
utilization levels and ramping.
(b) Oglethorpe Power shall use good faith efforts to notify
Georgia Power or its agent of such changes as soon as practicable after
Oglethorpe Power decides to make any such changes. Such notices shall contain
information regarding the increases or decreases in the amount of energy, in
megawatt-hours per Hour (MWH/H), that Oglethorpe Power expects to utilize from
each of the committed LT Resources during each Quarter Hour affected by such
changes.
(c) Oglethorpe Power shall be required to make such changes to
its energy utilization schedules from time to time during a Day to reflect any
changes made by Georgia Power or its agent, pursuant to Section 5.15, to the
Load Carrying Capability of a LT Resource. Oglethorpe Power shall make such
changes as and when directed by Georgia Power or its agent. Oglethorpe Power
shall be deemed to have reduced its energy utilization schedule from such a LT
Resource, automatically as and when, and to such level of energy as Georgia
Power or its agent deems appropriate under the circumstances and Section 5.15
(including without limitation zero (-0-)), whether or not Oglethorpe Power has
made such changes as aforesaid.
(d) Oglethorpe Power's energy utilization schedules, as
changed (or as deemed to have been changed) by Oglethorpe Power from time to
time pursuant to this Section 5.9, shall always continue to be consistent on an
Hour by Hour basis with Oglethorpe Power's then current
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commitment schedule of the LT Steam Resource. Oglethorpe Power may not pursuant
to this Section 5.9 add the LT Steam Resource to any energy utilization schedule
for a given Hour of a given Day, if the LT Steam Resource has not been properly
committed by Oglethorpe Power for such Hour pursuant to Sections 5.2 through
5.6.
(e) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to this Section 5.9 that Oglethorpe Power wishes to schedule
energy utilization from the LT Steam Resource for a given Hour, when the LT
Steam Resource has not been properly committed by Oglethorpe Power for such Hour
pursuant to Sections 5.2 through 5.6, then such energy utilization notice shall
be ineffective as to the LT Steam Resource for such Hour (even if Oglethorpe
Power complied with the provisions of Sections 5.10, 5.11, 5.12 and 5.13
concerning minimum utilization notice, minimum utilization levels, maximum
utilization levels and ramping). Georgia Power shall use reasonable best efforts
to notify Oglethorpe Power that such utilization schedule has been deemed
ineffective as soon as practicable following such event.
5.10 MINIMUM UTILIZATION NOTICE.
(a) Oglethorpe Power must give Georgia Power or its agent at
least one (1) Quarter Hour's prior notice that Oglethorpe Power wishes to
utilize energy from a LT Resource during a Quarter Hour in order to actually
utilize energy from such LT Resource during such Quarter Hour.
(b) Once Oglethorpe Power has given Georgia Power or its agent
notice pursuant to Section 5.8 or 5.9 that Oglethorpe Power wishes to utilize
energy from a given committed LT Resource in a given Quarter Hour at a given
level of energy, Oglethorpe Power may increase or decrease the level of energy
at which such LT Resource is to be utilized during such Quarter Hour only until
one (1) Quarter Hour prior to such Quarter Hour.
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(c) Oglethorpe Power's schedule of energy utilization from all
committed LT Resources during a given Quarter Hour shall become final at the
commencement of the immediately preceding Quarter Hour and shall not thereafter
be subject to increase or decrease by Oglethorpe Power.
(d) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to Section 5.8 or 5.9 that Oglethorpe Power wishes to schedule
energy utilization from a given LT Resource upon less than one (1) Quarter
Hour's prior notice, then such energy utilization notice shall be ineffective as
to such LT Resource for such Quarter Hour (even if Oglethorpe Power complied
with the provisions of Sections 5.11, 5.12 and 5.13 concerning minimum
utilization levels, maximum utilization levels and ramping). Georgia Power shall
use reasonable best efforts to notify Oglethorpe Power that such utilization
schedule has been deemed ineffective as soon as practicable following such
event.
(e) If Oglethorpe Power gives Georgia Power or its agent
notice pursuant to Section 5.8 or 5.9 that Oglethorpe Power wishes to schedule
energy utilization from the LT Peaking Resource in a given Quarter Hour (Y) that
is not equal to the energy utilization scheduled in the immediately previous
Quarter Hour (X), then for the immediately following Quarter Hour (Z),
Oglethorpe Power must schedule the identical utilization as scheduled for the
given Quarter Hour (Y). If in such following Quarter Hour (Z) Oglethorpe Power
schedules energy utilization from the LT Peaking Resource that is not identical
to that scheduled for the given Quarter Hour (Y), then Oglethorpe Power shall
nevertheless be deemed to have scheduled energy utilization from the LT Peaking
Resource in such following Quarter Hour (Z) at such level of energy equal to the
given Quarter Hour's (Y's) utilization schedule. Georgia Power shall
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use reasonable best efforts to notify Oglethorpe Power that such utilization has
been deemed scheduled as soon as practicable following such event.
5.11 MINIMUM UTILIZATION LEVELS.
(a) If the LT Steam Resource is committed during a given Hour,
then Oglethorpe Power must always schedule energy utilization from the LT Steam
Resource at no less than its then current Minimum Operating Level. If the LT
Steam Resource is committed during an Hour, but Oglethorpe Power does not
schedule energy utilization from the LT Steam Resource during each Quarter Hour
or schedules energy utilization from the LT Steam Resource at less than its then
current Minimum Operating Level, then Oglethorpe Power shall nevertheless be
deemed to have scheduled energy utilization from the LT Steam Resource at its
then current Minimum Operating Level. Georgia Power shall use reasonable best
efforts to notify Oglethorpe Power that such utilization has been deemed
scheduled as soon as practicable following such event.
(b) This Section 5.11 shall not apply to the LT Peaking
Resource.
5.12 MAXIMUM UTILIZATION LEVELS. Oglethorpe Power may not
schedule energy utilization from any committed LT Resource during any Quarter
Hour at any level of energy in excess of the then current Load Carrying
Capability of such LT Resource. If Oglethorpe Power schedules energy
utilization from a given LT Resource during a Quarter Hour at a level of
energy that is in excess of the then current Load Carrying Capability of such
LT Resource, then Oglethorpe Power shall nevertheless be deemed to have
scheduled energy utilization from such LT Resource at such level of energy
equal to the then current Load Carrying Capability of such LT Resource.
Georgia Power shall use reasonable best efforts to notify Oglethorpe Power
that such utilization has been deemed scheduled as soon as practicable
following such event.
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5.13 LT STEAM RESOURCE RAMPING.
(a) During the first (1st) Hour after the commencement of a
commitment of a LT Steam Resource pursuant to and as allowed by Sections 5.2,
5.3, 5.4 and 5.6, Oglethorpe Power must schedule energy utilization from the LT
Steam Resource at a level of energy that is equal to the then current Minimum
Operating Level of the LT Steam Resource. If Oglethorpe Power schedules energy
utilization from the LT Steam Resource during such an Hour at a level of energy
greater than or less than such level of energy, then Oglethorpe Power shall
nevertheless be deemed to have scheduled energy utilization from the LT Steam
Resource at such level of energy for such Hour. Georgia Power shall use
reasonable best efforts to notify Oglethorpe Power that such utilization has
been deemed scheduled as soon as practicable following such event.
(b) During the first (1st) Hour after the commencement of a
decommitment of the LT Steam Resource pursuant to and as allowed by Sections
5.2, 5.3 and 5.5, Oglethorpe Power must schedule energy utilization from the LT
Steam Resource at a level of energy that is equal to the then current Minimum
Operating Level of the LT Steam Resource. If Oglethorpe Power schedules energy
utilization from the LT Steam Resource during such an Hour at a level of energy
less than or greater than such level of energy, then Oglethorpe Power shall
nevertheless be deemed to have scheduled energy utilization from the LT Steam
Resource at such level of energy for such Hour. Georgia Power shall use
reasonable best efforts to notify Oglethorpe Power that such utilization has
been deemed scheduled as soon as practicable following such event.
(c) During the second (2nd) Hour after the commencement of a
decommitment of the LT Steam Resource pursuant to and as allowed by Sections
5.2, 5.3 and 5.5, and thereafter
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unless and until the LT Steam Resource is again committed pursuant to and as
allowed by Sections 5.2, 5.3, 5.4 and 5.6, Oglethorpe Power may not schedule
energy utilization from the LT Steam Resource at any level of energy. If
Oglethorpe Power schedules energy utilization from the LT Steam Resource during
any such Hour or Hours, then Oglethorpe Power shall nevertheless be deemed not
to have scheduled any energy utilization from the LT Steam Resource at all for
any or all of such Hours. Georgia Power shall use reasonable best efforts to
notify Oglethorpe Power that such utilization has been deemed scheduled as soon
as practicable following such event.
(d) This Section 5.13 shall not apply to the LT Peaking
Resource.
5.14 ENERGY UTILIZATION. For purposes of calculating both the
Monthly Energy Charge for each of the LT Resources and the "Actual Hourly
Resource Utilization" associated with each of the LT Resources (as such term
is defined and used in the RCSA), Oglethorpe Power shall be deemed to have
utilized during each Hour the average of all energy either:
(1) shown on Oglethorpe Power's final energy
utilization schedule (under Section 5.10(c)) during each Quarter Hour
of such Hour for such LT Resource, except as such energy utilization
schedule may have been deemed ineffective under Section 5.8(a), 5.8(d),
5.9(e) or 5.10(d); or
(2) deemed to have been scheduled by Oglethorpe Power
during each Quarter Hour of such Hour from such LT Resource under
Section 5.9(c), 5.10(e), 5.11(a), 5.12, 5.13(a), 5.13(b) or 5.13(c).
5.15 REDUCTION OF LOAD CARRYING CAPABILITY.
(a) If Georgia Power or its agent determines in its sole
discretion that it is necessary or appropriate for the Georgia system to shed
firm territorial requirements load,
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determined consistent with NERC guidelines, then the Load Carrying Capability of
one (1) or more of the LT Resources that are committed at the time of such load
shedding shall automatically be reduced by the amounts computed by Georgia Power
or its agent as provided in Sections 5.15(b) and 5.15(c) until such time as
Georgia Power advises Oglethorpe Power that Oglethorpe Power can recommence
serving load as provided in Section 5.15(d).
(b) The reduction ratio to be used in computing Oglethorpe
Power's reduction amount shall be equal to the quotient of:
(1) the summation of the then current Load Carrying
Capability of each of the LT Resources that are committed at the time
of such load shedding; divided by
(2) the sum of:
(i) Georgia Territorial Resource
Requirements at such time (not including its
obligations to serve Oglethorpe Power under this
Agreement); plus
(ii) the summation determined under Section
5.15(b)(1).
(c) Oglethorpe Power's aggregate reduction amount, in
megawatts (MW), shall be equal to the product of:
(1) the aggregate amount of load that Georgia Power
or its agent determines in its discretion is necessary or appropriate
for the Georgia system to shed; times
(2) the reduction ratio computed by Georgia Power or
its agent pursuant to Section 5.15(b).
The Load Carrying Capability of the one (1), of the LT Resources that are
committed at the time of such load shedding, which has the highest then current
Monthly Energy Rate, shall then
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automatically be reduced by the amount of such reduction amount until the Load
Carrying Capability of such LT Resource is equal to the then current Minimum
Operating Level of such LT Resource. If a portion of such reduction amount
remains unapplied, then the Load Carrying Capability of the other LT Resource
shall be automatically reduced by Georgia Power or its agent, until all of the
reduction amount has been applied. The Load Carrying Capability of such LT
Resources will be reduced below each such LT Resource's respective Minimum
Operating Level, in a manner corollary to the foregoing, if a portion of such
reduction amount remains unapplied after each of such LT Resource's Load
Carrying Capability has been reduced to such LT Resource's Minimum Operating
Level.
(d) Oglethorpe Power agrees that, in such event, it will
immediately change (or allow the change of by Georgia Power or its agent) its
energy utilization from the LT Resources, as provided in Section 5.9. In
addition, in such event, Oglethorpe Power agrees that it will take any and all
actions necessary or appropriate to accomplish the foregoing, including, but not
limited to, shedding load served by the LT Resources. Oglethorpe Power may
recommence serving load shed by Oglethorpe Power pursuant to this Section 5.15
when Georgia Power or its agent advises Oglethorpe Power that it is appropriate
to do so in light of system security needs.
(e) Georgia Power agrees that, if the Load Carrying Capability
of any one or more LT Resources is reduced pursuant to this Section 5.15, then
Georgia Power shall give Oglethorpe Power a credit in the following Monthly
invoice in an amount for each such LT Resource that is equal to the product of:
(1) Oglethorpe Power's aggregate reduction amount, in
megawatts (MW), as determined pursuant to Section 5.15(c); times
(2) the quotient of:
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(i) the Monthly Capacity Rate(s) for each of
the LT Resources whose Load Carrying Capability was
reduced pursuant to Section 5.15(c) (applied by
Georgia Power in portions as necessary to accommodate
the provisions of Section 5.15(c)), for the Month in
which such load shedding occurs, in dollars per
kilowatt-month ($/KW-Mo); divided by
(ii) the number of Hours in such Month;
times
(3) the number of Hours in the period over which such
load shedding occurred; times
(4) one thousand (1,000).
5.16 DELIVERY OF AND PAYMENT FOR ENERGY. Georgia Power's and
Oglethorpe Power's respective rights and obligations concerning the delivery
of and payment for energy utilization scheduled by Oglethorpe Power from the
LT Resources during any given Hour of the Term shall be as set forth in
Article III.
5.17 EMERGENCY DECOMMITMENT. Notwithstanding the provisions of
Section 5.5, if all "OPC Off-System Resources" (as such term is defined and
used in the RCSA) have been interrupted pursuant to Section 8.1 of the RCSA
and Oglethorpe Power continues to have surplus energy as defined in Article
XII of the RCSA, Oglethorpe Power may decommit the LT Steam Resource on one
(1) Quarter Hour's prior notice to Georgia Power, effective at the start of
any subsequent Quarter Hour.
5.18 RCSA TREATMENT.
(a) The LT Steam Resource shall be deemed "Qualifying
Resources - Spinning" (as such term is defined and used in Sections 11.5 and
11.6 of the RCSA).
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(b) Fifteen (15) percent of the LT Peaking Resource shall be
deemed "Qualifying Resources Supplemental" (as such term is defined and used in
Section 11.6 of the RCSA).
(c) The "Difference" utilized in the calculation of the
"Back-Up Capacity Charge" (as such terms are defined and used in Section 12.3 of
the RCSA) shall include the difference between (i) the sum of the Actual Hourly
Resource Utilization of all LT Resources, less (ii) the sum of the then current
Load Carrying Capability of all LT Resources.
ARTICLE VI
BILLING AND COLLECTIONS
6.1 CAPACITY BILLING AND PAYMENT.
(a) As promptly as practicable after the commencement of each
Month during the Term, Georgia Power shall send Oglethorpe Power an invoice
stating the Monthly Capacity Payment for such Month.
(b) All such Monthly Capacity Payments shall be due and
payable on or before the tenth (10th) Day after Oglethorpe Power's receipt of
such invoice. If such tenth (10th) Day after Oglethorpe Power's receipt is not a
banking Day, then payment shall be due on the next succeeding banking Day.
Oglethorpe Power shall make payment to Georgia Power in accordance with such
invoices on or before the date due in immediately available funds through wire
transfer of funds or other means acceptable to Georgia Power. If Oglethorpe
Power does not make a Monthly Capacity Payment on or before such tenth (10th)
Day, then interest shall be added to the overdue payment, from the date such
overdue payment was due until such overdue payment together with interest is
paid, which interest shall accrue in simple interest terms per annum at the
Interest Rate.
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(c) The procedure set forth in Sections 6.1(a) and 6.1(b) for
Oglethorpe Power's payment to Georgia Power of Monthly Capacity Payments is
subject to periodic temporary modification for phase-in of an increase or
decrease in the Monthly Capacity Charges, if and as provided for in Part 6 of
the Schedules in the event that a Monthly Capacity Charge should become subject
to an adjustment as provided for in said Part 6 of said Schedule.
6.2 ENERGY BILLING AND PAYMENT.
(a) As promptly as practicable after the commencement of each
Month during the Term, Georgia Power shall send Oglethorpe Power an invoice
stating the Monthly Energy Payment for such Month, together with a statement of
any other amounts then due by Oglethorpe Power to Georgia Power pursuant to the
provisions of this Agreement.
(b) All invoices of Monthly Energy Payments shall be due and
payable on or before the tenth (10th) Day after Oglethorpe Power's receipt of
such invoice. If such tenth (10th) Day after Oglethorpe Power's receipt is not a
banking Day, then payment shall be due on the next succeeding banking Day.
Oglethorpe Power shall make payment to Georgia Power in accordance with such
invoices on or before the date due in immediately available funds through wire
transfer of funds or other means acceptable to Georgia Power. If Oglethorpe
Power does not make a Monthly Energy Payment on or before such tenth (10th) Day,
then interest shall be added to the overdue payment, from the date such overdue
payment was due until such overdue payment together with interest is paid, which
interest shall accrue in simple interest terms per annum at the Interest Rate.
(c) With each Monthly energy invoice Georgia Power will
provide Oglethorpe Power a Monthly statement of the Monthly Energy Rates and
Hourly Energy Rates upon which
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the Monthly Energy Payment was based. Georgia Power may combine its Monthly
capacity and energy invoices into a single invoice, in Georgia Power's
discretion.
(d) The procedure set forth in Sections 6.2(a) and 6.2(b) for
Oglethorpe Power's payment to Georgia Power of Monthly Energy Payments is
subject to periodic temporary modification for phase-in of an increase or
decrease in the Monthly Energy Rates, if and as provided for in Part 6 of the LT
Schedules in the event that a Monthly Energy Rate should become subject to an
adjustment as provided for in said Part 6 of said LT Schedule.
6.3 BILLING DISPUTES AND FINAL ACCOUNTING.
(a) If Oglethorpe Power questions or contests the amount of
any payment claimed by Georgia Power to be due pursuant to this Agreement,
Oglethorpe Power may make such payment under protest and thereafter shall be
reimbursed by Georgia Power for any amount in error after the settlement of such
question or contest, in accordance with this Section 6.3; PROVIDED, HOWEVER,
that no disagreement or dispute of any kind between Oglethorpe Power and Georgia
Power concerning any matter, including, without limitation, the amount of any
payment due from Oglethorpe Power or the correctness of any charge made by
Georgia Power to Oglethorpe Power, shall permit Oglethorpe Power to delay or
withhold any payment pursuant to this Agreement except as specifically otherwise
provided for in Section 6.7.
(b) In the event that Oglethorpe Power, by timely notice to
Georgia Power, questions or contests the correctness of any such charge or
credit, Georgia Power shall promptly review the questioned charge or credit and
shall notify Oglethorpe Power, within sixty (60) Days following receipt by
Georgia Power of such notice from Oglethorpe Power, of the amount of any error
and the amount of any payment or reimbursement that Oglethorpe Power is required
to make or is entitled to receive in respect of such alleged error. Not later
than the fifth (5th)
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banking Day after receipt by Oglethorpe Power of such notice from Georgia Power
as to the amount of any payment that Oglethorpe Power is required to make,
Oglethorpe Power shall make payment to Georgia Power in immediately available
funds. If Georgia Power is required to make any reimbursement to Oglethorpe
Power, Georgia Power shall notify Oglethorpe Power of the amount of such
reimbursement and the need to send an invoice to Georgia Power for such
reimbursement and make such reimbursement not later than the fifth (5th) banking
Day after Georgia Power receives an invoice from Oglethorpe Power in the amount
of such required reimbursement. Payments and reimbursements made by either
Oglethorpe Power or Georgia Power under this Section 6.3(b) shall include
interest from the later of the date the original payment was received or the
date the original payment was due until the date such payment or reimbursement
together with interest is made, which interest shall accrue in simple interest
terms per annum at the Interest Rate. Oglethorpe Power shall have until the one
hundred eightieth (180th) Day after receipt of an invoice to question or contest
the correctness of any charge or credit made to Oglethorpe Power during such
Month pursuant to Section 6.1 or 6.2, after which time the correctness of all
such charges and credits shall be conclusively presumed.
(c) If Oglethorpe Power disputes Georgia Power' resolution
under Section 6.3(b) of any question or contest by Oglethorpe Power of the
correctness of any charge or credit made to Oglethorpe Power pursuant to Section
6.1 or 6.2, then at Oglethorpe Power's request Georgia Power and Oglethorpe
Power agree to use their reasonable best efforts to achieve a mutually
acceptable solution to such dispute. In the event that either Georgia Power or
Oglethorpe Power believes that any such efforts by Georgia Power and Oglethorpe
Power have been or will be unsuccessful, then it may submit such dispute to, for
resolution by, the Joint Committee. If the Joint Committee fails to resolve such
dispute by the third (3rd) regularly scheduled meeting
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following the meeting at which Georgia Power or Oglethorpe Power first submitted
such dispute to the Joint Committee, then either Oglethorpe Power or Georgia
Power may submit such dispute to, for resolution by, the respective Chief
Executive Officers of Oglethorpe Power and Georgia Power. If the Chief Executive
Officers fail to resolve such dispute within a reasonable period of time after
it is submitted to them, then either Oglethorpe Power or Georgia Power may
resort to any remedy, at law or in equity, that may be available therefor. If
either Georgia Power or Oglethorpe Power submits such dispute to the Joint
Committee, then neither of them shall thereafter have any further obligation to
use its reasonable best efforts to achieve a mutually acceptable solution as
aforesaid.
(d) Notwithstanding the foregoing provisions of this Section
6.3, if Oglethorpe Power is then in default in respect of any payments required
to be made under this Agreement, Georgia Power may withhold such reimbursement.
(e) Georgia Power will provide Oglethorpe Power with such
information as is reasonably required by Oglethorpe Power in order to account
for payments made pursuant to this Section 6.3 on Oglethorpe Power's books.
6.4 AVAILABILITY OF RECORDS. Georgia Power will for each Month
of the Term, at all times prior to the end of such one hundred eighty (180)
Day period set forth in Section 6.3(b), make available to Oglethorpe Power,
subject to the confidentiality provisions of Article XV of the RCSA, and
Oglethorpe Power may audit such books and records of Georgia Power as are
necessary for Oglethorpe Power to verify the basis for and amounts of
adjustments to Short Term Resource energy utilization made pursuant to
Section 4.8 and to LT Resources' Load Carrying Capability pursuant to Section
5.15, and to calculate the Monthly Capacity Payments and Monthly Energy
Payments and thereby to verify the accuracy of the amounts billed to
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Oglethorpe Power pursuant to Sections 6.1 and 6.2. No
payment made pursuant to the provisions of this Article VI shall constitute a
waiver of any right of Oglethorpe Power under Section 6.3 to question or contest
the correctness of any charge or credit by Georgia Power or to dispute Georgia
Power's resolution of any such question or contest.
6.5 IMPLEMENTATION COSTS. Oglethorpe Power hereby agrees to
reimburse Georgia Power for all costs incurred by Georgia Power or its agent
(except attorney's fees) in connection with implementing this Agreement or
the rates and procedures provided for herein. Oglethorpe Power shall pay
Georgia Power the amount of such costs within ten (10) Days after Georgia
Power delivers an invoice therefor to Oglethorpe Power. The provisions of
6.2(b), 6.3, 6.4 and 6.6 shall apply to the payment and verification of such
invoice. Georgia Power agrees that Georgia Power may not duplicate its
recovery of any costs both under this Section 6.5 and under Section 16.1 of
the RCSA.
6.6 FAILURE TO MAKE PAYMENTS.
(a) If Oglethorpe Power fails to pay when due the full amounts
of any payment(s) required by Sections 6.1, 6.2, 6.3 or 6.5 then:
(1) Oglethorpe Power shall have no right to any
capacity or energy hereunder, or to exercise any of its rights under
this Agreement; and
(2) if the RCSA is then in effect, the LT Schedules
shall be deemed not to be "Qualifying Resources - Spinning" or
"Qualifying Resources - Supplemental" and the "Difference" utilized in
the calculation of the "Back-Up Capacity Charge" shall exclude all LT
Schedules (as such terms are defined and used in the RCSA);
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from the date such overdue payment(s) were due until Oglethorpe Power has paid
the full amounts of all such overdue payments to Georgia Power (including,
without limitation, interest) as required by said Sections 6.1, 6.2, 6.3 and
6.5.
(b) Georgia Power agrees that, if Oglethorpe Power pays to
Georgia Power such overdue payment(s) during the five (5) Day period allowed for
curing a failure to make payment provided for in Section 10.1(a) (including,
without limitation, interest) and undertakes to recommence making its other
payments to Georgia Power as and when due hereunder, Georgia Power will
recommence supplying capacity and energy to Oglethorpe Power hereunder no later
than the end of the five (5) Day period provided for in Section 10.1(a).
(c) In addition to the rights granted in Sections 6.3, 6.6(a),
and Article X, Georgia Power may take any action, at law or in equity, to
enforce this Agreement and to recover any and all unrecovered damages and
expenses and other losses, costs and liabilities (including, without limitation,
reasonable attorneys' fees and expenses) incurred or suffered by Georgia Power
as a result of or in connection with any default in payment by Oglethorpe Power
under this Agreement.
6.7 LIMITED WITHHOLDING OF PAYMENTS.
(a) If Oglethorpe Power questions or contests the amount of
any payment claimed by Georgia Power in any Month to be due pursuant to this
Agreement, which amount is more than twice as large as the highest amount
previously claimed by Georgia Power to be due pursuant to this Agreement in any
other Month of the Term, then Oglethorpe Power may withhold payment of the
lesser of:
(1) the disputed portion of such amount; or
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(2) that portion of such amount which is in excess of
twice such highest Monthly amount previously claimed by Georgia Power
to be due pursuant to this Agreement.
(b) If Oglethorpe Power acquires the right under Section 6.7(a) to
withhold any portion of a payment claimed by Georgia Power to be due pursuant to
this Agreement and chooses to exercise such right, then Oglethorpe Power shall
immediately notify Georgia Power that it is questioning or contesting the
correctness of such amount and shall also nevertheless tender to Georgia Power
on a timely basis under Sections 6.1 and 6.2 that portion of such amount which
Oglethorpe Power is not permitted to withhold under Section 6.7(a). Georgia
Power and Oglethorpe Power shall then resolve such dispute in accordance with
the procedure provided in Sections 6.3(b) and 6.3(c). If Oglethorpe Power is
required pursuant to the resolution of such dispute to pay any portion of the
withheld amount to Georgia Power, then interest shall be added to the portion so
to be paid, from the date such payment was due until such payment together with
interest is paid, which interest shall accrue in simple interest terms per annum
at the Interest Rate.
ARTICLE VII
CERTAIN CAPACITY AND ENERGY SALE MATTERS
7.1 SERVICE RENDERED. Georgia Power shall provide and
Oglethorpe Power shall pay for capacity and energy pursuant to the Tariff,
the terms of this Agreement and the Schedules attached hereto. To the extent
the terms and conditions of the Tariff are inconsistent with those set forth
in this Agreement or in the Schedules, the provisions of this Agreement and
Schedules shall control.
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7.2 RESALE. Oglethorpe Power shall have the right to resell any
part or all of the Resource Capacity or any or all of the energy scheduled by
Oglethorpe Power hereunder, to any person or entity, subject to the terms and
conditions of this Agreement. Oglethorpe Power hereby indemnifies and holds
Georgia Power and its agent harmless from and against any and all losses,
costs, liabilities, damages and expenses (including, without limitation,
attorneys' fees and expenses) of any kind incurred or suffered by Georgia
Power or its agent pursuant to, as a result of or in connection with any such
resale of capacity, energy or both, except for losses, costs, liabilities,
damages and expenses (including, without limitation, attorneys' fees and
expenses) incurred or suffered by Georgia Power or its agent as a direct
result of any action of Georgia Power that is not Prudent Utility Practices
or of Georgia Power's or its agents' willful misconduct. This Section 7.2
does not give Oglethorpe Power any rights to assign or delegate this
Agreement or any of its rights or obligations hereunder, which Oglethorpe
Power acknowledges that it may do only as allowed by Section 9.2.
7.3 CHARACTER OF TRANSACTIONS. The sale by Georgia Power to
Oglethorpe Power of capacity and associated energy under this Agreement does
not constitute either:
(1) a sale, lease, transfer or conveyance of an ownership
interest in or to any generation facilities or resources, including
without limitation the Units; or
(2) a dedication of ownership or an entitlement to the
capacity or output of any generation facilities or resources, including
without limitation the Units.
Furthermore, Oglethorpe Power acknowledges and agrees that Georgia Power or its
agent shall have the sole authority, which Georgia Power or its agent may
exercise in its discretion, to manage, control, operate and maintain all of the
Units. (Georgia Power acknowledges, however,
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that this Section 7.3 is not intended and shall not be construed to reduce
Oglethorpe Power's rights to capacity and energy under Article II, III, IV or
V.)
7.4 CONSTANCY OF SUPPLY.
(a) Georgia Power does not guarantee or warrant that Georgia
Power will supply a constant or uninterrupted supply of capacity or energy under
this Agreement. Oglethorpe Power hereby agrees that Georgia Power is not
required to make capacity available to Oglethorpe Power under this Agreement at
all times during the Term or to deliver under this Agreement a constant or
uninterrupted supply of energy.
(b) For actions taken pursuant to Sections 4.8 and 5.15,
Georgia Power shall not be in breach of this Agreement by reason of, and shall
have no liability whatsoever to Oglethorpe Power for, any failure to make
capacity available hereunder, or for any failure to deliver or any interruption
in the delivery of energy hereunder or for any deficiency in the quality of
service hereunder.
(c) For any other actions taken pursuant to this Agreement,
Georgia Power shall not be in breach of this Agreement by reason of, and shall
have no liability whatsoever to Oglethorpe Power for, any failure to make
capacity available hereunder, or for any failure to deliver or any interruption
in the delivery of energy hereunder or for any deficiency in the quality of
service hereunder; PROVIDED, HOWEVER, the foregoing exculpatory clause of this
Section 7.4(c) shall not apply to any such failure that is the direct result of
any action of Georgia Power that (i) is not Prudent Utility Practices, (ii) is
of Georgia Power's or its agent's willful misconduct, or (iii) is done for
purely economic reasons.
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7.5 MARKET RATE TARIFF.
(a) It is the expressed intent of the Parties that this
Agreement and the attached Schedules be accepted by the FERC as a sale pursuant
to the Tariff without any modifications of its charges, terms and conditions and
without additional filing requirements. If, at any time, the FERC does not allow
this Agreement to function pursuant to the Tariff or requires any cost of
service support for any charges hereunder, Oglethorpe Power agrees to actively
support and pursue acceptance by the FERC of all charges and terms as stated in
this Agreement. If, at any time, the FERC orders any changes to any charges or
terms hereunder or any refunds, including, but not limited to, interest or
penalties, other than penalties resulting from actions by Georgia Power or its
agent that are not Prudent Utility Practices or that constitute willful
misconduct, Oglethorpe Power agrees that Georgia Power shall have the right to
file one or more unilateral changes to the charges and terms hereunder to
recover the revenues, as closely as practicable, intended by this Agreement in
its original form.
(b) Oglethorpe Power agrees to actively support any and all
such changes and to cooperate with and assist Georgia Power in securing
acceptance by the FERC of any and all such changes, in as expeditious a manner
as is practicable, to the extent such changes do not result in higher charges to
Oglethorpe Power than the charges intended by this Agreement in its original
form. The obligations pursuant to this Section 7.5 shall survive termination of
this Agreement and any of the Schedules.
(c) Georgia Power and Oglethorpe Power each agrees that,
except as expressly permitted under Sections 7.5, 7.6, 7.7, 8.4, 8.5, and 9.1 of
the Agreement, or to effectuate a change as permitted in Part 6 of each of the
Schedules, it shall not seek to modify this Agreement or any related Schedule
under Sections 205 or 206 of the Federal Power Act or any other
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provision of law, except with the consent of both Parties or as required to
comply with an order of a Governmental Authority with jurisdiction over this
Agreement.
7.6 TERMINATION OF THE BPSA.
(a) It is the expressed intent of the Parties that the BPSA be
terminated effective with the commencement of service pursuant to Section 8.1 of
this Agreement. The Parties shall take all steps reasonably necessary to
terminate the BPSA including, but not limited to, the FERC's acknowledgment
thereof, without the necessity for any filings or other justifications for any
charges rendered under the BPSA.
(b) The Parties expressly agree that termination of the BPSA
pursuant to this Section 7.6 shall constitute expiration of the BPSA pursuant to
its own terms as contemplated under the Umbrella Agreement, Section 3.4.
7.7 FERC MODIFICATION OF FORMULARY RATES UNDER THE BPSA. If, at
any time, the FERC orders any changes to any charges rendered under the BPSA
or any refunds, including, but not limited to, interest or penalties, other
than penalties resulting from actions by Georgia Power or its agent that are
not Prudent Utility Practices or that constitute willful misconduct,
Oglethorpe Power agrees that Georgia Power shall have the right to file one
or more unilateral changes to the charges and terms hereunder to recover the
revenues, as closely as practicable, intended by the BPSA in its original
form. Furthermore, Oglethorpe Power agrees to actively support any and all
such changes and to cooperate with and assist Georgia Power in securing
acceptance by the FERC of any and all such changes, in as expeditious a
manner as is practicable, to the extent such changes do not result in higher
charges to Oglethorpe Power than the charges intended by the BPSA in its
original form. This obligation shall survive termination of this Agreement
and any of the Schedules.
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ARTICLE VIII
TERM OF AGREEMENT
8.1 TERM. The term of this Agreement shall begin on the date
first written above and shall continue inclusive through one (1) minute after
11:59 p.m. (Operating Time) on March 31, 2006. Service under this Agreement
shall commence, subject to the conditions included in Section 8.2, at one (1)
minute prior to 12:01 a.m. (Operating Time) on April 1, 1999. Oglethorpe
Power shall have the option of terminating this Agreement, prior to
commencement of service under this Agreement, by written notice delivered to
Georgia Power by close of business on March 26, 1999, PROVIDED, HOWEVER, that
Oglethorpe Power must provide evidence, acceptable in form and substance to
Georgia Power, that the EMCs have not subscribed to at least fifty megawatts
(50MW), in aggregate, of the LT Resources. The provisions of Article VI shall
survive termination of this Agreement to the extent necessary to render final
bills and permit auditing and resolution of disputes, if any, with respect to
such final bills in accordance with the provisions of Article VI.
8.2 CONDITIONS FOR EFFECTIVENESS. The respective obligations
hereunder of Georgia Power to sell capacity and energy to Oglethorpe Power,
and of Oglethorpe Power to purchase capacity and energy from Georgia Power,
are conditioned upon:
(1) The receipt by Georgia Power of acceptance by the FERC of
this Agreement, without modification, as a service agreement pursuant
to the Tariff.
(2) The receipt by Georgia Power of acceptance by the FERC of
termination of the BPSA, without modification, effective with the
commencement of service pursuant to this Agreement.
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<PAGE>
(3) If a Governmental Authority other than FERC properly
asserts jurisdiction regarding approval of this Agreement, the receipt
of any required approvals of this Agreement, without modification by
such Governmental Authority.
(4) For the LT Resources, the receipt by Oglethorpe Power of
approval by at least seventy-five percent (75%) of its board of
directors and approval by at least seventy-five percent (75%) of its
EMCs of this Agreement.
Georgia Power and Oglethorpe Power shall cooperate with each other, as the other
may reasonably request, in connection with the procurement of such acceptance
from the FERC and any required approvals of any Governmental Authorities.
8.3 EMCS' APPROVAL OF ANY LT RESOURCE AS A NON-RECOURSE RESOURCE.
(a) If condition (4) of Section 8.2 is not met for any of the
LT Resources, but the EMCs approve said LT Resource(s) as a Non-Recourse
Resource (as such term is defined in Section 8.3(c) herein), the Parties agree
to amend this Agreement, as necessary, to obtain approval of such Non-Recourse
Resource by Oglethorpe Power and its approving members on or before June 30,
1999. Oglethorpe Power and its approving members shall execute separate
definitive agreements for the resale of capacity and energy purchased by
Oglethorpe Power under the amended Agreement as a Non-Recourse Resource and
further, in the case of those approving members who are borrowers from the RUS,
obtain approval by the RUS of such members' agreements with Oglethorpe Power on
or before June 30, 1999. If any LT Resource is approved as a Non-Recourse
Resource, the amended Agreement shall include a provision that there is no
recourse for Oglethorpe Power's monetary obligations under the amended Agreement
with respect to such Non-Recourse Resource, directly or indirectly, to the
general credit of Oglethorpe Power or to any property, revenues or agreements of
Oglethorpe Power, other than the revenues
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received by Oglethorpe Power under its separate contracts with its members who
have subscribed for the resale of energy and capacity from the Non-Recourse
Resource. If any LT Resource is approved as a Non-Recourse Resource, then, with
respect to that Non-Recourse Resource only, the approving members shall execute
additional agreements, as reasonably required, directly with Georgia Power for
their respective purchases, or shall guarantee Oglethorpe Power's obligations,
and shall provide such credit assurance as Georgia Power may reasonably require.
One or more of such approving members may contract directly with Georgia Power
concerning such Non-Recourse Resource similar to the LT Resource described in
this Agreement on such terms as the parties may mutually agree.
(b) In the event that either of the LT Resources is approved
as a Non-Recourse Resource, the effective date for commencement of service with
respect to such Non-Recourse Resource shall be July 1, 1999, and the term for
such Non-Recourse Resource shall be reduced by 3 Months, (i.e., the termination
dates will be unchanged). Furthermore, if the LT Peaking Resource is a
Non-Recourse Resource, its Monthly Capacity Rate for the period July 1, 1999,
through March 31, 2000, shall be three and twenty-five one-hundredths dollars
per kilowatt-month ($3.25/kW-Mo), and if the LT Steam Resource is a Non-Recourse
Resource, its Monthly Capacity Rate for the period July 1, 1999, through March
31, 2000, shall be four and fifty one-hundredths dollars per kilowatt-month
($4.50/kW-Mo).
(c) "Non-Recourse Resource" means an agreement for the
purchase of capacity and energy which is: approved by less than seventy-five
percent (75%) of Oglethorpe Power's board of directors, approved by less than
seventy-five percent (75%) of Oglethorpe Power's members, fully subscribed by
the subset of Oglethorpe Power's members who are approving
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<PAGE>
members, and supported only by the credit of and revenues from sales to such
approving members, with no recourse to the general credit or other property of
Oglethorpe Power and its members.
8.4 FERC CHANGES; RIGHTS TO TERMINATE.
Either Georgia Power or Oglethorpe Power may terminate this
Agreement, in its respective sole discretion, following the issuance of a final
unappealed order by the FERC or any other final action by any Governmental
Authority properly asserting jurisdiction over this Agreement either rejecting
this Agreement or accepting this Agreement in a modified form (so that this
Agreement is not in substantially the agreed-upon and filed form). Georgia Power
or Oglethorpe Power may elect to exercise such right to terminate only within
the thirty (30) Day period following the expiration of all periods within which
an appeal of such an Order could be filed by any person or entity. If Georgia
Power or Oglethorpe Power elects to exercise such right to terminate, then the
electing party shall deliver a written notice of such election to the other
within the aforementioned period, and this Agreement will be deemed to have been
terminated effective upon the date of the other's receipt of such written
notice.
8.5 PURCHASES AFTER EXPIRATION, TERMINATION OR REDUCTION.
Oglethorpe Power agrees that this Agreement (and the capacity
and energy rates provided for herein and in the Schedules hereto) will expire at
each end of the Term and that this Agreement (and the capacity and energy rates
provided for herein and in the Schedules hereto) shall terminate effective as of
the date determined in accordance with Section 8.4 or 10.3, if such Section
becomes operative and is exercised by either Georgia Power or Oglethorpe Power.
Oglethorpe Power further agrees that it will not seek to purchase any capacity
or associated energy or to schedule any transactions under this Agreement after
the date of expiration or termination determined as aforesaid.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 APPROVALS. Oglethorpe Power and Georgia Power agree to use
their best efforts to apply for promptly and to pursue diligently any
required approvals from Governmental Authorities for the consummation of the
transactions contemplated hereby or for the giving of effect to the
expiration of this Agreement or any termination of this Agreement on the date
determined in accordance with Section 8.5 (which obligation of Oglethorpe
Power shall be in addition to its undertakings under Section 8.5). This
provision is not intended to subject this Agreement to the jurisdiction of
any Governmental Authority that does not have such jurisdiction over this
Agreement at the time of execution of this Agreement.
9.2 ASSIGNMENT.
(a) Neither Oglethorpe Power nor Georgia Power may sell,
assign or otherwise transfer any or all of this Agreement or its respective
rights, or delegate any or all of its respective obligations, under this
Agreement, at any time, without the prior written consent of the other in each
instance; PROVIDED, HOWEVER, that neither Georgia Power nor Oglethorpe Power may
unreasonably withhold its consent to any conveyance by the other of a security
interest in this Agreement as security for bonds or other obligations issued or
to be issued; PROVIDED, FURTHER, that Georgia Power may assign this Agreement
and its respective rights, and delegate its respective obligations, under this
Agreement to a generation Affiliate succeeding to substantially all of Georgia
Power's interests in the Units, without the consent of Oglethorpe Power.
(b) Notwithstanding Section 9.2(a), actions identified herein
as being accomplished by Georgia Power may be accomplished either by Georgia
Power or by its agent.
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9.3 GEORGIA POWER'S AGENT. Wherever this Agreement requires
Oglethorpe Power to provide information, schedules, notice or the like to, or
to take direction from, Georgia Power or its agent, Oglethorpe Power shall
provide information, schedules, notice or the like to, or take direction
from, whichever of Georgia Power, its agent or both that Georgia Power may
direct from time to time.
9.4 NO PARTNERSHIP. Oglethorpe Power and Georgia Power do no
intend for this Agreement to, and this Agreement shall not, create any joint
venture, partnership, association taxable as a corporation, or other entity
for the conduct of any business for profit.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon any respective successors and assigns of
Oglethorpe Power and Georgia Power.
9.6 NO THIRD PARTY BENEFIT. Nothing in this Agreement shall be
construed to create any duty, obligation or liability of Georgia Power to any
person or entity not a party to this Agreement.
9.7 NO CONSEQUENTIAL DAMAGES. Notwithstanding any other
provision of this Agreement, neither Georgia Power nor Oglethorpe Power shall
be liable to the other for indirect, incidental or consequential damages
(including without limitation replacement capacity or energy) under, arising
out of, due to or in connection with its performance or nonperformance of
this Agreement or any of its obligations herein, whether based on contract,
tort (including without limitation negligence), strict liability, warranty or
otherwise.
9.8 NO AFFILIATE LIABILITY. Notwithstanding any other provision
of this Agreement, no Affiliate of Georgia Power (including without
limitation any Affiliate of Georgia Power acting as Georgia Power's agent
where Georgia Power's agent is given certain authorities hereunder) shall
have any liability whatsoever for any party's performance, nonperformance or
delay in
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<PAGE>
performance under this Agreement unless such Affiliate of Georgia Power has been
assigned this Agreement as a generation Affiliate succeeding to substantially
all of Georgia Power's interests in the Units in accordance with Section 9.2(a).
9.9 DISCLAIMER OF WARRANTY. GEORGIA POWER, ON BEHALF OF ITSELF,
EACH OF ITS AFFILIATES AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS, HEREBY DISCLAIMS ANY AND ALL
EXPRESS, IMPLIED OR STATUTORY WARRANTIES CONCERNING EITHER OR BOTH THE
CAPACITY OR ENERGY TO BE SOLD BY GEORGIA POWER HEREUNDER OR CONCERNING ANY
INFORMATION FURNISHED BY OR FOR ANY ONE OR MORE OF THEM, INCLUDING WITHOUT
LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, QUALITY, QUANTITY OR OTHERWISE.
9.10 TIME OF ESSENCE; NO WAIVER.
(a) Time is of the essence of this Agreement.
(b) Neither Georgia Power's nor Oglethorpe Power's failure to
enforce any provision or provisions of this Agreement shall in any way be
construed as a waiver of any such provision or provisions as to any future
violation thereof, nor prevent it from enforcing each and every other provision
of this Agreement at such time or at any time thereafter. The waiver by either
Georgia Power or Oglethorpe Power of any right or remedy shall not constitute a
waiver of its right to assert said right or remedy, at any time thereafter, or
any other rights or remedies available to it at the time of or any time after
such waiver.
9.11 AMENDMENTS. This Agreement may be amended by and only by a
written instrument duly executed by each of Oglethorpe Power and Georgia
Power, which has received
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all approvals of Governmental Authorities or competent jurisdiction necessary
for the effectiveness thereof.
9.12 NOTICE.
(a) Any notice, request, consent or other communication
permitted or required by this Agreement other than the operations-related
notices described in Section 9.12(b) shall be in writing and shall be deemed
given on the Day hand-delivered to the officer identified below, or the third
(3rd) Day after the same is deposited as certified mail, prepaid, with the
United States Postal Service, and if given to Georgia Power shall be addressed
to:
Georgia Power Company
c/o Southern Company Services, Inc.
270 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Vice President-Southern Wholesale Energy
and if given to Oglethorpe Power shall be addressed to:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, Georgia 30085-1349
Attention: Vice President-Power Marketing
unless Georgia Power or Oglethorpe Power shall have designated a different
officer or address for itself by notice to the other.
(b) Any operations-related notice, request, consent or other
communication permitted or required by this Agreement in Articles IV and V will
be by direct electronic transfer between the Parties or their respective
designees, to the maximum extent practicable, and, if otherwise necessary, may
be by telephone, facsimile, or any other electronic medium all mutually
acceptable to the Parties. The Parties agree to provide to each other, on or
before April
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1, 1999, written notice identifying the appropriate electronic transfer address
and other such electronic media information, including the preferred means for
acknowledging receipt of notice. Operations-related notices shall be deemed
given at the time received by the receiving Party.
9.13 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9.14 ARTICLES AND SECTION HEADINGS. The descriptive headings of
the various Articles, Sections and Parts of this Agreement and the Schedules
hereto have been inserted for convenience of reference only and shall in no
way modify or restrict any of the terms or provisions hereof.
9.15 INCLUDING. Wherever the term "including" is used in this
Agreement and the Schedules hereto, such term shall not be construed as
limiting the generality of any statement, clause, phrase or term.
9.16 GOVERNING LAW. The validity, interpretation and performance
of this Agreement and each of its provisions shall be governed by the laws of
the State of Georgia (without giving effect to the principles of conflict of
laws).
9.17 NECESSARY AUTHORIZATION. Subject to the conditions listed
in Section 8.2, each Party represents that it has the necessary corporate and
legal authority to enter into this Agreement and to perform each and every
duty and obligation imposed herein, including those set forth under the
Schedules, and that this Agreement, when executed by the duly authorized
representative of each Party, represents a valid, binding and enforceable
legal obligation of such Party and that the consummation of the transactions
contemplated herein will not violate any organizational documents, agreements
or any applicable laws. Each individual affixing a
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signature to this Agreement represents and warrants that he or she has been duly
authorized to execute this Agreement on behalf of the Party he or she
represents, and that by signing the Agreement, a valid, binding and enforceable
legal obligation of said Party has been created.
ARTICLE X
EVENT OF DEFAULT AND TERMINATION
10.1 EVENT OF DEFAULT. "Event of Default" means the occurrence
of any of the following events with respect to a Party (the "Defaulting
Party", the other Party being the "Non-Defaulting Party"):
(a) the Defaulting Party fails to make any payment which it is
obligated to make pursuant to this Agreement to the Non-Defaulting Party;
PROVIDED, HOWEVER, the Non-Defaulting Party shall give the Defaulting Party
written notice of such payment deficiency and at least five (5) Days from the
date of such written notice to make the required payment before declaring the
payment deficiency an Event of Default;
(b) any representation or warranty of the Defaulting Party
pursuant to this Agreement shall prove to have been false or misleading in any
material respect when made or deemed made unless (i) the fact, circumstances or
condition that is the subject of such representation or warranty is made true
within twenty (20) Days after notice thereof has been given to the Defaulting
Party and (ii) such cure removes any adverse effect on the Non-Defaulting Party
of such fact, circumstance or condition being otherwise than as first
represented;
(c) the Defaulting Party;
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(i) makes a general assignment or arrangement for the
benefit of its creditors;
(ii) (A) 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
(B) has such petition filed or proceeding commenced against it and, in
the case of a petition filed or proceeding commenced against it, such
petition or proceeding results in a judgment of insolvency or
bankruptcy or the entry of any order for relief or the making of an
order for the winding-up or liquidation of such entity, or is not
dismissed, discharged, stayed or restrained within five (5) business
Days of the filing or commencement thereof;
(iii) otherwise becomes bankrupt or insolvent;
(iv) fails or is unable or admits in writing its
inability generally to pay its debts as they become due;
(v) is dissolved (other than pursuant to a
consolidation, acquisition, amalgamation or merger);
(vi) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a
consolidation, acquisition, amalgamation or merger);
(vii) seeks or becomes subject to the appointment of
an administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for all or substantially
all of its assets;
(viii) has a secured party take possession of all or
substantially all of its assets, or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or
sued on or against all or substantially all of its assets and subject
secured
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party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within thirty (30) Days
thereafter;
(ix) causes or is subject to any event with respect
to it which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (c) (i) to
(viii) (inclusive); or
(x) takes any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the foregoing
acts.
(d) the Defaulting Party fails to perform or observe any
material obligation of such Party under this Agreement, which such failure
materially and adversely affects the ability of such Party to perform its
obligations under this Agreement, and such failure continues for sixty (60) Days
after written notice of such default is given by the other Party;
10.2 RIGHTS UNDER AGREEMENT. Except as otherwise provided
herein, each Party reserves to itself all rights, counterclaims, and other
defenses which it is or may be entitled to arising from or out of the
Agreement.
10.3 TERMINATION UPON DEFAULT. Upon the occurrence of an Event
of Default, the Non-Defaulting Party shall have the right to terminate this
Agreement upon written notice to the Defaulting Party in addition to any
other right or remedy the Non-Defaulting Party may have under this Agreement
or at law, except as otherwise limited by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
"Georgia Power"
GEORGIA POWER COMPANY
By: /s/ Fred D. Williams
--------------------------------------------
Name: Fred D. Williams
Title: Senior Vice President
"Oglethorpe Power"
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
By: /s/ Jerry J. Saacks
--------------------------------------------
Name: Jerry J. Saacks
Title: Chief Operating Officer
[SIGNATURE PAGE:
LONG TERM TRANSACTION SERVICE AGREEMENT
between
GEORGIA POWER COMPANY
and
OGLETHORPE POWER CORPORATION
Dated as of February 26, 1999]
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EXHIBIT A
MEMBER SYSTEMS:
OGLETHORPE POWER CORPORATION
Altamaha Electric Membership Corporation
Amicalola Electric Membership Corporation
Canoochee Electric Membership Corporation
Carroll Electric Membership Corporation
The Central Georgia Electric Membership Corporation
Coastal Electric Membership Corporation
Cobb Electric Membership Corporation
Colquitt Electric Membership Corporation
Coweta-Fayette Electric Membership Corporation
Excelsior Electric Membership Corporation
Flint Electric Membership Corporation
Grady Electric Membership Corporation
GreyStone Power Corporation, An Electric Membership Corporation
Habersham Electric Membership Corporation
Hart Electric Membership Corporation
Irwin Electric Membership Corporation
Jackson Electric Membership Corporation
Jefferson Energy Cooperative, An Electric Membership Corporation
Lamar Electric Membership Corporation
Little Ocmulgee Electric Membership Corporation
Middle Georgia Electric Membership Corporation
Mitchell Electric Membership Corporation
Ocmulgee Electric Membership Corporation
Oconee Electric Membership Corporation
Okefenoke Rural Electric Membership Corporation
Pataula Electric Membership Corporation
Planters Electric Membership Corporation
Rayle Electric Membership Corporation
The Satilla Rural Electric Membership Corporation
Sawnee Electric Membership Corporation
Slash Pine Electric Membership Corporation
Snapping Shoals Electric Membership Corporation
Sumter Electric Membership Corporation
Three Notch Electric Membership Corporation
Tri-County Electric Membership Corporation
Troup Electric Membership Corporation
Upson County Electric Membership Corporation
Walton Electric Membership Corporation
Washington Electric Membership Corporation
1
<PAGE>
SCHEDULE A
SHORT TERM RESOURCE
1. GENERAL AND DEFINITIONS.
This Schedule A is attached to and incorporated into that
certain Long Term Transaction Service Agreement Under Southern Companies'
Federal Energy Regulatory Commission Electric Tariff Volume No. 4 Market-Based
Rate Tariff between Georgia Power Company and Oglethorpe Power Corporation (An
Electric Membership Corporation) dated as of February 26, 1999 ("the
Agreement"). Georgia Power and Oglethorpe Power have agreed in the Agreement
that Oglethorpe Power will pay for the capacity and energy associated with the
Short Term Resources on a Monthly basis utilizing the rates and methodologies
determined in accordance with this Schedule A. All initially capitalized terms
and phrases used in this Schedule A, but not expressly defined herein, shall
have the respective meanings ascribed to them in the Agreement.
2. CAPACITY AND TERM.
Georgia Power offers to sell to Oglethorpe Power, subject to
the terms of the Agreement, capacity and associated energy, from one (1) or more
of five (5) fifty megawatt (50 MW) Short Term Resources, designated "ST-1",
"ST-2", ST-3", "ST-4" and "ST-5", for the period commencing one (1) minute prior
to 12:01 a.m. (Operating Time) on June 1, 1999 and continuing through one (1)
minute after 11:59 p.m.(Operating Time) on May 31, 2000. Oglethorpe Power shall
specify how many of the Short Term Resources it commits to purchase for the
above specified period in a written notice to be delivered to Georgia Power on
or before
Schedule A - page 1
<PAGE>
March 26, 1999. Such notice shall be incorporated herein by this reference. This
Schedule A shall terminate at one (1) minute after 11:59 p.m. (Operating Time)
on May 31, 2000.
3. MONTHLY CAPACITY CHARGE.
For each Short Term Resource purchased by Oglethorpe Power
pursuant to the notice incorporated above, Oglethorpe Power shall pay a Monthly
Capacity Charge, in dollars per Month ($/Mo), in accordance with the following
schedule:
<TABLE>
<S> <C>
June 1999 -- $362,500
July - September 1999 -- $662,500
October 1999 - May 2000 -- $75,000
</TABLE>
4. HOURLY ENERGY RATE.
(a) The Hourly Energy Rate for energy purchases associated
with the Short Term Resources shall be the product, expressed in dollars per
megawatt-hour rounded to the nearest one-hundredth ($0.00/MWH) of (i) one and
one-tenth (1.1) and (ii) Southern Marginal Cost, where Southern Marginal Cost is
defined as the incremental energy cost of Southern Dispatch after serving all
Southern Control Area obligations and actual Unit Power Sales' base, alternate,
supplemental and replacement schedules but prior to serving any other sales
outside the Southern Control Area, which costs shall include fuel expense,
variable operating and maintenance expense, fuel handling expense, emissions
allowance value, and other appropriate energy-related costs, including, but not
limited to, energy purchases, as permitted by the IIC and as determined prior to
the applicable Hour. The Hourly Energy Rate for energy utilization from "Excess
Short Term Resources" (as determined below) shall be increased by the
difference, if such difference is greater than zero (0), expressed in dollars
per megawatt-hour rounded to the nearest one-hundredth ($0.00),
Schedule A - page 2
<PAGE>
(1) the higher of (i) one and one tenth (1.1) times the
highest Hourly (excluding multi-hour transactions) off-system
transaction price disclosed by Georgia Power, if any, in effect for
such Hour (either a purchase or a sale) or (ii) "System Marginal Cost"
(as such term is defined and used in the RCSA) for such Hour plus ten
dollars per megawatt-hour ($10/MWH), minus
(2) the sum, (i) the current Monthly Capacity Charge, in
dollars per Month ($/Mo) for the Short Term Resources divided by the
product of fifty megawatts (50 MW), the number of weekdays in such
Month and sixteen (16) Hours per Day, plus (ii) one and one tenth (1.1)
times the Southern Marginal Cost for such Hour.
Any off-system transaction price disclosed by Georgia Power shall be treated
consistently with the confidentiality provisions of Article XV of the RCSA.
(b) If the net of the "OPC Off-System Transactions," sales
plus exports minus purchases minus imports (as such term is defined and used in
the RCSA), is less than fifty megawatts (50 MW) during the Hour containing the
greatest "OPC Territorial Load" (as such term is defined and used in the RCSA)
during a given Day, then no Short Term Resources are deemed to be Excess Short
Term Resources during such Day. If the number of Short Term Resources scheduled
during the Hour containing the greatest OPC Territorial Load during a given Day
is less than the net OPC Off-System Transactions during such Hour, expressed in
megawatt-hours (MWH), divided by, fifty megawatts (50 MW), with any resulting
fraction being truncated to an integer value, then all of the Short Term
Resources are deemed to be Excess Short Term Resources during such Day.
Otherwise, the number of Short Term Resources that are not deemed to be Excess
Short Term Resources during a given Day equals (i) the number of Short Term
Resources scheduled during the Hour containing the greatest OPC Territorial
Load,
Schedule A - page 3
<PAGE>
minus (ii) the net OPC Off-System Transactions during such Hour, expressed in
megawatt-hours (MWH), divided by, fifty megawatts (50 MW), with any resulting
fraction being truncated to an integer value. In any given Hour, Short Term
Resources that are not Excess Short Term Resources shall be deemed scheduled
first.
5. PERFORMANCE GUARANTEE.
If the provisions of Section 4.8(c) of the Agreement are
applicable for a given Month and the calculation detailed therein
results in a value less than ninety-five one-hundredths (0.95), the
credit due Oglethorpe Power in the following Monthly invoice shall be
calculated as the product of (i) the difference between ninety-five
one-hundredths (0.95) and the value calculated pursuant to Section
4.8(c) of the Agreement expressed to three (3) decimal places, times
(ii) the sum of the kilowatt (kW) capacity associated with the Short
Term Resources purchased by Oglethorpe Power pursuant to the notice
incorporated above, times (iii) if such Month is June, July, August or
September, thirteen and twenty-five one-hundredths dollars per kilowatt
($13.25/kW), otherwise, one and fifty one-hundredths dollars per
kilowatt ($1.50/kW).
6. CHANGE IN LAW.
The Parties acknowledge that a Change in Law, including, but
not limited to, environmental laws and regulations and energy taxes applicable
to wholesale sales, but specifically excluding any other taxes, may
significantly change (increase or decrease) Georgia Power's costs in providing
the service described above. In the event of such a Change in Law, either Party
may give notice to the other Party that Georgia Power's costs have changed
significantly and may initiate negotiations to modify this Schedule to reflect
such changes in costs. If the Parties have not negotiated and agreed upon an
amendment to this Schedule within
Schedule A - page 4
<PAGE>
90 Days, either Party shall have the right to initiate a dispute resolution
process as follows: (i) Georgia Power shall make a good faith calculation of the
effect of such change and adjust the billing accordingly, (ii) Oglethorpe may
pay under protest, (iii) a mutually agreeable individual ("Accountant") shall
calculate the appropriate adjustment to reflect the change in cost, and billings
will be adjusted accordingly, and (iv) the Parties shall split Accountant's fee
for rendering such service. If the Parties cannot reach agreement on a mutually
agreeable individual, then the head of the utilities practice group at Arthur
Andersen will be used.
Schedule A - page 5
<PAGE>
SCHEDULE B
LONG TERM PEAKING RESOURCE
1. GENERAL AND DEFINITIONS.
This Schedule B is attached to and incorporated into that
certain Long Term Transaction Service Agreement Under Southern Companies'
Federal Energy Regulatory Commission Electric Tariff Volume No. 4 Market-Based
Rate Tariff between Georgia Power Company and Oglethorpe Power Corporation (An
Electric Membership Corporation) dated as of February 26, 1999 ("the
Agreement"). Georgia Power and Oglethorpe Power have agreed in the Agreement
that Oglethorpe Power will pay for the capacity and energy associated with the
LT Peaking Resource on a Monthly basis utilizing the rates and methodologies
determined in accordance with this Schedule B. All initially capitalized terms
and phrases used in this Schedule B, but not expressly defined herein, shall
have the respective meanings ascribed to them in the Agreement.
2. CAPACITY AND TERM.
Georgia Power offers to sell to Oglethorpe Power, subject to
the terms of the Agreement, capacity and associated energy, from one (1) two
hundred fifty megawatt (250 MW) LT Peaking Resource. Oglethorpe Power shall
specify how many megawatts (MW), in increments of fifty megawatts (50 MW), of
the LT Peaking Resource it commits to purchase for the period commencing one (1)
minute prior to 12:01 a.m. (Operating Time) on April 1, 1999 and continuing
through one (1) minute after 11:59 p.m. (Operating Time) on March 31, 2003 in a
written notice to be delivered to Georgia Power on or before March 26, 1999.
Such notice shall be incorporated herein by this reference. Oglethorpe Power
shall purchase the "Remainder",
Schedule B - page 1
<PAGE>
determined by the difference, if any, between two hundred fifty megawatts (250
MW) and the quantity specified in the above incorporated notice, for the period
commencing one (1) minute prior to 12:01 a.m. (Operating Time) on April 1, 1999
and continuing through one (1) minute after 11:59 p.m. (Operating Time) on
August 31, 2000 and Oglethorpe Power shall purchase one-half the Remainder for
the period commencing one (1) minute prior to 12:01 a.m. (Operating Time) on
September 1, 2000 and continuing through one (1) minute after 11:59 p.m.
(Operating Time) on August 31, 2001. This Schedule B shall terminate at one (1)
minute after 11:59 p.m. (Operating Time) on March 31, 2003.
3. MONTHLY CAPACITY RATE.
The Monthly Capacity Rate, expressed in hundredths of dollars
per kilowatt-month ($0.00/kW-Mo), for the combined LT Peaking Resource shall be
determined each Month as:
(1) the sum of:
(a) the product of:
(i) the then current megawatts (MW) associated with the
Remainder
(ii)for each Month in 1999, four dollars per kilowatt-month
($4.00/kW-Mo) for each Month in 2000, four and twenty-five
one-hundredths dollars per kilowatt-month ($4.25/kW-Mo)
for each Month in 2001, four and fifty one-hundredths
dollars per kilowatt-month ($4.50/kW-Mo)
(b) the product of:
(i) the megawatts (MW) purchased by Oglethorpe Power pursuant
to the notice incorporated above
Schedule B - page 2
<PAGE>
(ii) the rate determined below
(2) divided by the sum of:
(a) the then current megawatts (MW) associated with the Remainder
(b) the megawatts (MW) purchased by Oglethorpe Power pursuant to
the notice incorporated above.
The rate for the megawatts (MW) purchased by Oglethorpe Power pursuant to the
notice incorporated above for the Months of April 1999 through March 2000 shall
be three and forty-four one-hundredths dollars per kilowatt-month ($3.44/kW-Mo).
The rate, expressed in hundredths of dollars per kilowatt-month ($0.00/kW-Mo),
for such capacity for each succeeding April through March period shall be
determined as (i) three and fifty-five one-hundredths dollars per kilowatt-month
($3.55/kW-Mo), multiplied by (ii) the Gross Domestic Product Implicit Price
Deflator, relative to a 1992 base year, as reported in the SURVEY OF CURRENT
BUSINESS published by the Bureau of Economic Analysis United States Department
of Commerce, Washington, D. C. ("GDPIPD") for the first quarter of the then
current calendar Year as last reported prior to April 30 of such Year, divided
by (iii) 113.070, the GDPIPD for the last quarter of 1998. If the GDPIPD
methodology is revised or ceases to be reported, the Parties agree to adopt a
comparable escalator through the process detailed in Part 6 of this Schedule B.
4. MONTHLY ENERGY RATE.
The Monthly Energy Rate, expressed in hundredths of dollars
per megawatt-hour ($0.00/MWH), for the LT Peaking Resource shall be determined
each Month as the sum, over each of the Units identified in the following table,
of the product of:
(1) each Unit's energy rate for such Month, expressed in hundredths of
dollars per megawatt-hour ($0.00/MWH), determined as the sum of:
Schedule B - page 3
<PAGE>
(a) the product of:
(i) the average heat rate for each Unit, expressed in
millions of British Thermal Units per megawatt-hour
(MMBTU/MWH), derived from "Informational Schedule No. 2
(Energy Costs by Sources)" of the IIC in effect for such
Month
(ii) the replacement fuel cost for each Unit for such Month,
in dollars per million British Thermal Units ($/MMBTU),
determined as (i) the prevailing then current spot market
quotes for oil purchases or (ii) the prevailing then
current spot market quotes for gas purchases; as
calculated by Georgia Power or its agent, and as possibly
adjusted by Georgia Power or its agent, in its
discretion, for either or both market volatility and
transportation and delivery costs (Georgia Power's and
its agent's current practice as of the date of the
Agreement is to calculate these estimates of replacement
oil and gas prices on a Monthly basis, but Georgia Power
may change the exact period to be used in such
calculations in Georgia Power's or its agent's reasonable
discretion)
(b) the variable operations and maintenance expense rate for each
Unit, expressed in dollars per megawatt-hour ($/MWH), as shown
in "Informational Schedule No. 2 (Energy Costs by Sources)" of
the IIC in effect for such Month
(c) the fuel handling expense rate for each Unit, expressed in
dollars per megawatt-hour ($/MWH), as shown in "Informational
Schedule No. 2 (Energy Costs by Sources)" of the IIC in effect
for such Month
(d) other energy related costs for each Unit, expressed in dollars
per megawatt-hour ($/MWH), properly determined in accordance
with FERC/NERC procedures
Schedule B - page 4
<PAGE>
(2) the factor for such Unit from the following table
<TABLE>
<CAPTION>
--------------------------------------- ----------------------------------
Unit Factor
--------------------------------------- ----------------------------------
<S> <C>
Arkwright 5A 0.014288
--------------------------------------- ----------------------------------
Atkinson 5A 0.034264
--------------------------------------- ----------------------------------
Atkinson 5B 0.034264
--------------------------------------- ----------------------------------
Bowen 6 0.034264
--------------------------------------- ----------------------------------
Gaston A 0.008640
--------------------------------------- ----------------------------------
McDonough 3A 0.034264
--------------------------------------- ----------------------------------
McDonough 3B 0.034264
--------------------------------------- ----------------------------------
McManus 3A 0.045576
--------------------------------------- ----------------------------------
McManus 3B 0.045576
--------------------------------------- ----------------------------------
McManus 3C 0.045576
--------------------------------------- ----------------------------------
McManus 4A 0.046640
--------------------------------------- ----------------------------------
McManus 4B 0.046640
--------------------------------------- ----------------------------------
McManus 4C 0.046640
--------------------------------------- ----------------------------------
McManus 4D 0.046640
--------------------------------------- ----------------------------------
McManus 4E 0.046640
--------------------------------------- ----------------------------------
McManus 4F 0.046640
--------------------------------------- ----------------------------------
Mitchell 4A 0.034304
--------------------------------------- ----------------------------------
Mitchell 4B 0.034304
--------------------------------------- ----------------------------------
Mitchell 4C 0.034304
--------------------------------------- ----------------------------------
Wilson 5A 0.047712
--------------------------------------- ----------------------------------
Wilson 5B 0.047712
--------------------------------------- ----------------------------------
Wilson 5C 0.047712
--------------------------------------- ----------------------------------
Wilson 5D 0.047712
--------------------------------------- ----------------------------------
Wilson 5E 0.047712
--------------------------------------- ----------------------------------
Wilson 5F 0.047712
--------------------------------------- ----------------------------------
</TABLE>
(3) one (1) divided by the Level A to B-1 Loss Factor for such Unit.
5. AVAILABILITY FACTOR.
The Availability Factor, expressed in hundredths (0.00), for
the combined LT Peaking Resource shall be determined each Month as:
(1) the sum of:
(a) the product of:
Schedule B - page 5
<PAGE>
(i) the then current megawatts (MW) associated with the
Remainder
(ii) 0.86
(b) the product of:
(i) the megawatts (MW) purchased by Oglethorpe Power pursuant
to the notice incorporated above
(ii)0.92
(2) divided by the sum of:
(a) the then current megawatts (MW) associated with the Remainder
(b) the megawatts (MW) purchased by Oglethorpe Power pursuant to
the notice incorporated above.
6. CHANGE IN LAW.
The Parties acknowledge that a Change in Law, including, but
not limited to, environmental laws and regulations and energy taxes applicable
to wholesale sales, but specifically excluding any other taxes, may
significantly change (increase or decrease) Georgia Power's costs in providing
the service described above. In the event of such a Change in Law, either Party
may give notice to the other Party that Georgia Power's costs have changed
significantly and may initiate negotiations to modify this Schedule to reflect
such changes in costs. If the Parties have not negotiated and agreed upon an
amendment to this Schedule within 90 Days, either Party shall have the right to
initiate a dispute resolution process as follows: (i) Georgia Power shall make a
good faith calculation of the effect of such change and adjust the billing
accordingly, (ii) Oglethorpe may pay under protest, (iii) a mutually agreeable
individual ("Accountant") shall calculate the appropriate adjustment to reflect
the change in cost, and billings will be adjusted accordingly, and (iv) the
Parties shall split Accountant's fee for
Schedule B - page 6
<PAGE>
rendering such service. If the Parties cannot reach agreement on a mutually
agreeable individual, then the head of the utilities practice group at Arthur
Andersen will be used.
Schedule B - page 7
<PAGE>
SCHEDULE C
LONG TERM STEAM RESOURCE
1. GENERAL AND DEFINITIONS.
This Schedule C is attached to and incorporated into that
certain Long Term Transaction Service Agreement Under Southern Companies'
Federal Energy Regulatory Commission Electric Tariff Volume No. 4 Market-Based
Rate Tariff between Georgia Power Company and Oglethorpe Power Corporation (An
Electric Membership Corporation) dated as of February 26, 1999 ("the
Agreement"). Georgia Power and Oglethorpe Power have agreed in the Agreement
that Oglethorpe Power will pay for the capacity and energy associated with the
LT Steam Resource on a Monthly basis utilizing the rates and methodologies
determined in accordance with this Schedule C. All initially capitalized terms
and phrases used in this Schedule C, but not expressly defined herein, shall
have the respective meanings ascribed to them in the Agreement.
2. CAPACITY AND TERM.
Georgia Power offers to sell to Oglethorpe Power, subject to
the terms of the Agreement, capacity and associated energy, from one (1) two
hundred fifty megawatt (250 MW) LT Steam Resource. Oglethorpe Power shall
specify how many megawatts (MW), in increments of fifty megawatts (50 MW), of
the LT Steam Resource it commits to purchase for the period commencing one (1)
minute prior to 12:01 a.m. (Operating Time) on April 1, 1999 and continuing
through one (1) minute after 11:59 p.m. (Operating Time) on March 31, 2006 in a
written notice to be delivered to Georgia Power on or before March 26, 1999.
Such notice shall be incorporated herein by this reference. Oglethorpe Power
shall purchase the "Remainder",
Schedule C - page 1
<PAGE>
determined by the difference, if any, between two hundred fifty megawatts (250
MW) and the quantity specified in the above incorporated notice, for the period
commencing one (1) minute prior to 12:01 a.m. (Operating Time) on April 1, 1999
and continuing through one (1) minute after 11:59 p.m. (Operating Time) on
August 31, 1999. This Schedule C shall terminate at one (1) minute after 11:59
p.m. (Operating Time) on March 31, 2006.
3. MONTHLY CAPACITY RATE.
The Monthly Capacity Rate, expressed in hundredths of dollars
per kilowatt-month ($0.00/kW-Mo), for the combined LT Steam Resource shall be
determined each Month as:
(1) the sum of:
(a) the product of:
(i) the then current megawatts (MW) associated with the
Remainder
(ii) for each Month in 1999, eight and twenty-five
one-hundredths dollars per kilowatt-month ($8.25/kW-Mo)
(b) the product of:
(i) the megawatts (MW) purchased by Oglethorpe Power pursuant
to the notice incorporated above
(ii) the rate determined below
(2) divided by the sum of:
(a) the then current megawatts (MW) associated with the Remainder
(b) the megawatts (MW) purchased by Oglethorpe Power pursuant to
the notice incorporated above.
Schedule C - page 2
<PAGE>
The rate for the megawatts (MW) purchased by Oglethorpe Power pursuant to the
notice incorporated above for the Months of April 1999 through March 2000 shall
be five and forty-four one-hundredths dollars per kilowatt-month ($5.44/kW-Mo).
The rate, expressed in hundredths of dollars per kilowatt-month ($0.00/kW-Mo),
for such capacity for each succeeding April through March period shall be
determined as (i) six dollars per kilowatt-month ($6.00/kW-Mo), multiplied by
(ii) the Gross Domestic Product Implicit Price Deflator, relative to a 1992 base
year, as reported in the SURVEY OF CURRENT BUSINESS published by the Bureau of
Economic Analysis United States Department of Commerce, Washington, D. C.
("GDPIPD") for the first quarter of the then current calendar Year as last
reported prior to April 30 of such Year, divided by (iii) 113.070, the GDPIPD
for the last quarter of 1998. If the GDPIPD methodology is revised or ceases to
be reported, the Parties agree to adopt a comparable escalator through the
process detailed in Part 6 of this Schedule C.
4. MONTHLY ENERGY RATE.
The Monthly Energy Rate, expressed in hundredths of dollars
per megawatt-hour ($0.00/MWH), for the LT Steam Resource shall be determined
each Month as the sum, over each of the Units identified in the following table,
of the product of:
(1) each Unit's energy rate for such Month, expressed in hundredths of
dollars per megawatt-hour ($0.00/MWH), determined as the sum of:
(a) the product of:
(i) the average heat rate for each Unit, expressed in millions
of British Thermal Units per megawatt-hour (MMBTU/MWH),
derived from "Informational Schedule No. 2 (Energy Costs
by Sources)" of the IIC in effect for such Month
Schedule C - page 3
<PAGE>
(ii) the sum of:
-- the blended replacement fuel cost for each Unit for
such Month, in dollars per million British Thermal
Units ($/MMBTU), determined as (i) the actual
delivered fuel cost for such Unit for the immediately
previous approximately thirty (30) Day period, and
(ii) the projected delivered fuel cost for such Unit
for the current approximately thirty (30) Day period;
as calculated by Georgia Power or its agent, and as
possibly adjusted by Georgia Power or its agent, in
its discretion, for the time value of money (Georgia
Power's and its agent's current practice as of the
date of the Agreement is to calculate such actual and
projected delivered fuel costs on a Monthly basis,
but Georgia Power may change the exact approximately
thirty (30) Day time period to be used in such
calculations in Georgia Power's or its agent's
reasonable discretion)
-- the emissions allowance cost for each Unit for such
Month, in dollars per million British Thermal Units
($/MMBTU), determined as (i) the per unit sulfur
content of the fuel used to determine the blended
replacement fuel cost above, times (ii) two (2), the
conversion by weight of sulfur to sulfur dioxide,
divided by (iii) the heat content, expressed in
millions of British Thermal Units per ton
(MMBTU/ton), of the fuel used to determine the
blended replacement fuel cost above, times (iv) the
value assigned to emissions allowances, in dollars
per ton ($/ton), for such Month in accordance with
the IIC
Schedule C - page 4
<PAGE>
(b) the variable operations and maintenance expense rate for each
Unit, expressed in dollars per megawatt-hour ($/MWH), as shown
in "Informational Schedule No. 2 (Energy Costs by Sources)" of
the IIC in effect for such Month
(c) the fuel handling expense rate for each Unit, expressed in
dollars per megawatt-hour ($/MWH), as shown in "Informational
Schedule No. 2 (Energy Costs by Sources)" of the IIC in effect
for such Month
(d) other energy related costs for each Unit, expressed in dollars
per megawatt-hour ($/MWH), properly determined in accordance
with FERC/NERC procedures
(2) the factor for such Unit from the following table
<TABLE>
<CAPTION>
--------------------------------------- ----------------------------------
Unit Factor
--------------------------------------- ----------------------------------
<S> <C>
Branch 1 0.083404
--------------------------------------- ----------------------------------
Branch 3 0.373292
--------------------------------------- ----------------------------------
Branch 4 0.374552
--------------------------------------- ----------------------------------
Hammond 1 0.083508
--------------------------------------- ----------------------------------
Hammond 3 0.085244
--------------------------------------- ----------------------------------
</TABLE>
(3) one (1) divided by the Level A to B-1 Loss Factor for such Unit.
5. AVAILABILITY FACTOR.
The Availability Factor, expressed in hundredths (0.00), for
the combined LT Steam Resource shall be determined each Month as:
(1) the sum of:
(a) the product of:
(i) the then current megawatts (MW) associated with the
Remainder
(ii) 0.86
(b) the product of:
Schedule C - page 5
<PAGE>
(i) the megawatts (MW) purchased by Oglethorpe Power pursuant
to the notice incorporated above
(ii) for the Months of June, July and August, 0.92 for all
other Months, 0.84
(2) divided by the sum of:
(a) the then current megawatts (MW) associated with the Remainder
(b) the megawatts (MW) purchased by Oglethorpe Power pursuant to
the notice incorporated above.
6. CHANGE IN LAW.
The Parties acknowledge that a Change in Law, including, but
not limited to, environmental laws and regulations and energy taxes applicable
to wholesale sales, but specifically excluding any other taxes, may
significantly change (increase or decrease) Georgia Power's costs in providing
the service described above. In the event of such a Change in Law, either Party
may give notice to the other Party that Georgia Power's costs have changed
significantly and may initiate negotiations to modify this Schedule to reflect
such changes in costs. If the Parties have not negotiated and agreed upon an
amendment to this Schedule within 90 Days, either Party shall have the right to
initiate a dispute resolution process as follows: (i) Georgia Power shall make a
good faith calculation of the effect of such change and adjust the billing
accordingly, (ii) Oglethorpe may pay under protest, (iii) a mutually agreeable
individual ("Accountant") shall calculate the appropriate adjustment to reflect
the change in cost, and billings will be adjusted accordingly, and (iv) the
Parties shall split Accountant's fee for rendering such service. If the Parties
cannot reach agreement on a mutually agreeable individual, then the head of the
utilities practice group at Arthur Andersen will be used.
Schedule C - page 6
<TABLE> <S> <C>
<PAGE>
<ARTICLE> UT
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM OGLETHORPE
POWER CORPORATIONS BALANCE SHEET AS OF MARCH 31, 1999 AND RELATED STATEMENTS OF
REVENUES AND EXPENSES AND CASH FLOWS FOR THE PERIOD ENDED MARCH 31, 1999 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S.
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK<F1>
<TOTAL-NET-UTILITY-PLANT> 3,427,337
<OTHER-PROPERTY-AND-INVEST> 230,606
<TOTAL-CURRENT-ASSETS> 470,623
<TOTAL-DEFERRED-CHARGES> 397,098
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 4,525,664
<COMMON> 0
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 360,025
<TOTAL-COMMON-STOCKHOLDERS-EQ> 0
0
0
<LONG-TERM-DEBT-NET> 3,138,821
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 90,884
<LONG-TERM-DEBT-CURRENT-PORT> 95,226
0
<CAPITAL-LEASE-OBLIGATIONS> 280,530
<LEASES-CURRENT> 7,695
<OTHER-ITEMS-CAPITAL-AND-LIAB> 552,483
<TOT-CAPITALIZATION-AND-LIAB> 4,525,664
<GROSS-OPERATING-REVENUE> 250,764
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 188,471
<TOTAL-OPERATING-EXPENSES> 188,471
<OPERATING-INCOME-LOSS> 62,293
<OTHER-INCOME-NET> 11,091
<INCOME-BEFORE-INTEREST-EXPEN> 73,384
<TOTAL-INTEREST-EXPENSE> 65,285
<NET-INCOME> 8,099
0
<EARNINGS-AVAILABLE-FOR-COMM> 0
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 38,298
<CASH-FLOW-OPERATIONS> 49,738
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1>$360,025 REPRESENTS TOTAL RETAINED PATRONAGE CAPITAL. THE REGISTRANT IS A
MEMBERSHIP CORPORATION AND HAS NO AUTHORIZED OR OUTSTANDING EQUITY SECURITIES.
</FN>
</TABLE>
