POWER SUPPLY AGREEMENT BETWEEN AMEREN ENERGY MARKETING COMPANY AND AMEREN ENERGY GENERATING COMPANY
Exhibit 10.3
BETWEEN
AMEREN
ENERGY MARKETING COMPANY
AND
AMEREN
ENERGY GENERATING COMPANY
Amended
and Restated
Between
Ameren
Energy Marketing Company
And
Ameren
Energy Generating Company
This
Power Supply Agreement (referred to as the “Agreement”), entered into this 28th
day of March, 2008 by and between Ameren Energy Marketing Company
(“Buyer”), and Ameren Energy Generating Company (“Seller”), where Buyer and
Seller shall be referred to herein collectively as “Parties” and individually as
a “Party.”
WITNESSETH
THAT:
WHEREAS, Seller is a
wholly-owned subsidiary of Ameren Energy Resources Company, LLC and has been
authorized to sell power at market-based rates; and
WHEREAS, Buyer is a power
marketer that has been authorized to sell power at market-based rates;
and
WHEREAS, Seller has a fleet of
coal and gas fired generating units which currently has a total generating
capacity of approximately 4,215 MW that operate throughout the states of
Missouri and Illinois (“Seller’s Generation Fleet”); and
WHEREAS, the Buyer desires to
obtain rights to the capacity and energy from the Seller’s Generation Fleet
pursuant to the terms and conditions of this Agreement in order to, among other
things, sell the capacity and energy into the market using Buyer’s market-based
rate authority; and
WHEREAS, the Parties hereto
desire to establish herein the terms and conditions under which Buyer shall
procure the capacity and energy from Seller throughout the term of this
Agreement; and
WHEREAS, Buyer and Seller
entered into a long-term electric power supply agreement dated as of December
18, 2006 (the “PSA”) in order to meet certain demands of Buyer for capacity and
energy; and
WHEREAS, the Parties desire to
amend the PSA to make clear that unplanned outages or derates of one or more
units in Seller’s Generation Fleet do not excuse Seller’s performance under the
PSA or this Agreement.
NOW, THEREFORE, in
consideration of the premises and provisions of this Agreement and in
consideration of the mutual agreements and undertakings of the Parties, the
Parties do hereby agree that the terms and provisions of the Articles and
Sections shall read in their entirety as follows:
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Article
I
Term
1.1
Except as
otherwise provided in Section 7.6, this Agreement shall be effective as of the
date set forth above and deliveries commenced January 1, 2007 and shall continue
through December 31, 2022 and from year to year thereafter unless either Party
elects to terminate by providing the other Party with no less than six (6)
months advanced written notice of its desire to terminate.
Article
II
Delivery
Point and Transfer of Title
2.1
Seller
shall sell and deliver and the Buyer shall purchase and receive energy at the
high side of each generator bus of the Seller’s Generation Fleet (“Delivery
Point”). All energy delivered hereunder shall be metered as three phase, 60
hertz at the high side of the step-up transformer. The Buyer shall
arrange and be responsible for all transmission services and costs relative to
the capacity and associated energy Buyer schedules at and from the Delivery
Point.
2.2
Title to and risk of loss related to Buyer’s capacity and associated energy
purchased hereunder shall transfer from Seller to Buyer at the Delivery
Point. Seller warrants that it will deliver to Buyer such capacity
and energy free and clear of all liens, security interests, claims and
encumbrances or any interest therein or thereto by any person arising prior to
the Delivery Point.
Article
III
Quantity
and Scheduling
3.1
Seller
agrees to sell and Buyer agrees to purchase all of the capacity from the
Seller’s Generation Fleet and such amount of associated energy from Seller,
which amounts of capacity and energy shall not be reduced for events other than
those described in Section 3.4(d) (“Contract Quantity”). Seller also
agrees to provide to Buyer, in addition to capacity and energy, ancillary
services that Seller has not directly sold to another third
party. Before any of its ancillary services are sold to a third
party, Seller shall consult with Buyer and shall offer to sell to Buyer any such
ancillary services. Buyer and Seller shall discuss the appropriate
charges and billing procedures for such ancillary services, and if necessary
shall amend this agreement accordingly.
3.2
For planning purposes, sixty (60) days prior to the commencement of each
calendar year during the term of this Agreement or at such other times as may be
appropriate, the Parties shall determine in accordance with Section 3.3 below
the total MW of capacity and energy which Seller anticipates the Seller’s
Generation Fleet shall be capable of providing (“Net Generation Capability”)
during the next succeeding calendar year or during the time period remaining
until the next determination of Net Generation Capability. Should the
Parties fail to agree to a reasonable value for the Net Generation Capability
for the next succeeding calendar year, the prior year’s determination shall be
used.
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3.3
In determining the Net Generation Capability of the Seller’s Generation
Fleet, the Parties
shall review the actual performance experience of the Seller’s Generation Fleet
for the past calendar year and determine by mutual agreement a reasonable value
for the Net Generation Capability of the Seller’s Generation Fleet for the next
succeeding calendar year or during the time period remaining until the next
calendar year determination. The Parties shall give due consideration to
pollution control restrictions, the effect of any outage time required for
expected replacements, extensions, and improvements or major maintenance of an
unusual nature which is in excess of four weeks’ duration which would affect the
daily capability of the Seller’s Generation Fleet and any other factors as may
be reasonably determined by the Parties to have an impact on the Net Generation
Capability of the Seller’s Generation Fleet.
3.4
Unless otherwise agreed to by the Parties, the scheduling of energy
shall be in accordance with the following:
(a) Seller shall
provide to Buyer notice of the amount of hourly capacity it has available
(“Hourly Available Capacity”) to sell for next day delivery during a
morning generation conference call which will be held at 0700 CPT each
day. Seller shall provide such prior notice to Buyer so that Buyer may
schedule the generation into the MISO Day Ahead (DA) market (which
currently closes at 1100 EST) or into another market on the business day prior
to the next delivery day that quantity of associated energy Buyer needs to sell
into the applicable market for next day delivery. Seller should
also provide, via an electronic means made available by the Buyer, the
Hourly Available Capacity to the Buyer by 0800 CPT. Further, the Seller
shall make all efforts to immediately notify the Buyer prior to the close of the
MISO DA market as to changes following the 0800 CPT electronic declaration that
will affect the next day deliverability so the Buyer may update the next
day schedule.
(b)
Seller shall immediately notify Buyer via a phone call of any
change in the amount of capacity it has available on an intra-day basis so that
Buyer may adjust Buyer’s energy schedule accordingly for both the
current and next hour delivery.
(c) In
addition to the quantity of energy Seller indicated would be available to Buyer
for next day delivery, Buyer shall use commercially reasonable efforts to
schedule, no later than thirty minutes prior to the start of
the next clock hour, that quantity of additional energy that Seller timely
indicates to Buyer will become available for next hour
delivery.
(d)
All energy shall be scheduled for delivery in whole megawatts. Seller shall be
excused from its obligation to deliver and shall not be obligated to operate any
unit or units within the Seller’s Generation fleet for delivery of energy
hereunder where the amount of energy scheduled by Buyer would have to be
delivered by operating one or more of the units in the Seller’s Generation Fleet
at or below the minimum run requirement for such unit or units (“Minimum Run
Requirement”). Seller shall provide reasonable notice to Buyer when
Buyer fails to schedule a sufficient amount of energy to satisfy the Minimum Run
Requirement.
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Article
IV
Pricing
4.1 Energy Charge: For
each MWh of associated energy delivered by Seller and purchased by Buyer during
the month of delivery, Buyer shall pay an Energy Charge equal to the amount
calculated in accordance with the following formula:
Energy
Charge = (Buyer’s Monthly Net Revenues – Monthly Capacity Charge) / Total Energy
Purchased by Buyer
Where:
Buyer’s
Monthly Net Revenues = Buyer’s Total Revenues less Buyer’s Expenses and Xxxxx
Xxxxx Revenues.
Buyer’s
Total Revenues = Buyer’s gross revenues less any gross revenues associated with
activities not supported in whole or in part by Seller’s generation or the
generation owned and operated by AmerenEnergy Resources Generating Company
(“AERG”).
Buyer’s
Expenses = All administrative and general, transmission, purchased power or
other expenses less those expenses not supporting in whole or in part the gross
revenues associated with Seller’s generation or the generation owned and
operated by AERG.
Xxxxx
Xxxxx Revenues = Buyer’s gross revenues associated with Seller’s Elgin
generating facility.
Monthly
Capacity Charge = the capacity charge assessed by Seller to Buyer each month for
capacity purchased pursuant to this Agreement and by AERG for capacity purchased
pursuant to the Amended and Restated Power Supply Agreement between Buyer and
AERG dated March 28, 2008.
Total
Energy Purchased by Buyer = the total MWhs of energy purchased by Buyer from
Seller and Seller’s affiliate AERG.
4.1A Elgin Charge: Each
month during the term of this Agreement, Buyer shall pay Seller an Elgin Charge
equal to an amount calculated as the Xxxxx Xxxxx Revenues, as defined in section
4.1, for the month less all Buyer’s administrative and general, transmission,
purchased power or other expenses associated with Seller’s Elgin generating
facility for the month.
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4.2
Monthly Capacity
Charge: Buyer shall also pay a Monthly Capacity Charge, which
shall be calculated in accordance with Attachment A. If accounting
information is not available to exactly determine the Monthly Capacity Charge by
the invoicing deadline for a given month, the Monthly Capacity charge will be
estimated in a commercially reasonable manner and adjusted to actual on the
following month’s invoice.
Article
V
Billing
and Payment
5.1 By
the twentieth business day of the month immediately following the month of
service, Seller shall render to Buyer an invoice indicating the Energy Charge
and the Monthly Capacity Charge for such month of delivery and any credit or
assessment to reflect any adjustment needed to rectify differences between the
estimated Monthly Capacity Charge and the actual Monthly Capacity Charge for
prior months of delivery. Buyer shall make payment promptly upon the
receipt of such statement, and, in any event, no later than the 25th day of
the month in which such invoice is rendered, provided, however, such due date
shall be extended by the number of days Seller is late in rendering the
invoice.
5.2 Seller
shall keep complete and accurate records, meter readings and memoranda of its
operations and costs for the Seller’s Generation Fleet and the sale of its
capacity and energy under this Agreement and shall maintain such data for a
period of at least five (5) years after the completion of each billing month of
this Agreement. In addition to the right of Buyer to review certain
costs sixty (60) days prior to the end of the first calendar year and each
calendar year thereafter as set forth in Article IV, Buyer shall have the right,
at its own expense and during reasonable hours, to examine the records of Seller
to enable it to determine the accuracy and reasonableness of payments made for
energy and capacity purchased under this Agreement. Such right shall
continue for two (2) years after receipt of each monthly billing
statement. Buyer shall have the right to dispute any billing up to
two (2) years after it is rendered. Buyer shall likewise make
available to Seller any statements, invoices or other documents evidencing the
quantity of energy delivered at the Delivery Point. If any such
examination reveals any inaccuracy in any statement, Seller shall promptly
revise such statement and the Party owing the adjusted amount shall promptly
make payment.
Article
VI
Operations
6.1 Metering: Seller
shall own and maintain such metering equipment as may be necessary to provide
complete information regarding the delivery of capacity and energy to or for the
account of Buyer at the Delivery Point. Seller shall make such
periodic tests and inspections of its meters as may be necessary to maintain
them at the highest practical commercial standard of accuracy, and shall advise
Buyer promptly of the results of any such test showing an inaccuracy of more
than 1 percent. Seller shall make additional tests of its meters at
the request of Buyer. Buyer shall be given notice of, and may have
representatives present at, such tests and inspections. If any
periodic or additional test shows that a meter is within 1
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percent
of accuracy, no correction shall be made in xxxxxxxx; but if any test shows that
the meter is inaccurate by more than 1 percent, a correction shall be made in
the billing for one-half the elapsed period since the last test was
made. The cost of any additional test requested by Buyer shall be
borne by Buyer if such test shows the meter to be within 1 percent of accuracy,
and by Seller if such test shows it to be inaccurate by more than 1
percent.
6.2 Winter
Operations: The Parties recognize that there may be some units
within the Seller’s Generation Fleet that operate primarily during the months of
April through October of each year. The Parties further recognize
that additional costs may be incurred in order to commence operations of certain
units during the winter season after cessation of operations for a time, and
that certain modifications to such units such as installation of inlet air
de-icing equipment may be needed. Upon Buyer’s request, Seller shall
provide Buyer an estimate of such additional costs for the modifications
necessary for winter operations. Should Buyer agree to incur the additional
costs and/or to pay the costs for necessary modification, Seller shall make such
necessary modifications. The additional fixed costs of such
modifications upon their completion shall be included in Monthly Capacity
Charge.
6.3 Operating
Committee: Seller and Buyer shall appoint one or more members
to an Operating Committee, which shall have the authority to establish normal
system control procedures, and to act in matters relating to the sale and
purchase of capacity and energy under this Agreement, in addition to specific
authority set out elsewhere in this Agreement. The Operating
Committee shall have no authority to modify the terms or conditions of this
Agreement except pursuant to Section 8.9. All decisions of the
Operating Committee shall be unanimous and shall be set forth in writing, with
copies to be delivered to each Party. Buyer shall also aid in
providing guidance to Seller relative to other matters arising under this
Agreement. All recommendations or determinations of the Operating
Committee shall conform to good utility practice. In the event that
the Operating Committee members cannot agree on such matters for which this
Agreement requires the Operating Committee’s approval, the Seller may seek
resolution of the question or controversy by arbitration pursuant to Section
8.4; provided, however, no initial meeting prior to initiating arbitration
procedures shall be required.
6.4. Construction and Operating
Plans: Seller agrees to operate and maintain the Seller’s
Generation Fleet so that the total net megawatts deliverable from the Seller’s
Generation Fleet shall be at its highest level possible consistent with safe,
prudent and efficient operation and the requirements of Buyer. By September 1 of
each year, Seller shall submit to the Operating Committee Sellers proposed
construction and operating plans, and any proposed plans for retirement of any
unit or units within the Seller’s Generation Fleet for the next calendar
year.
6.5 Scheduled
Maintenance: On or before September 1 of each year, Seller
shall provide to the Operating Committee its schedule of planned maintenance
outages for the following calendar year.
Article
VII
Events
of Force Majeure and Default
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7.1 Force Majeure
Definition: As used in this Agreement, an Event of Force
Majeure means an event or circumstances which prevents one Party (the Claiming
Party) from performing its obligations or causes delay in the Claiming Party’s
performance under this Agreement, which event is beyond the reasonable control
of, and is not the result of the negligence of the Claiming Party, and which,
even with the exercise of due diligence or use of good utility practice, the
Claiming Party is unable to overcome or avoid or cause to be avoided, such as,
but not limited to acts of God; fire; flood; earthquake; tornado; named storms;
any natural disaster; war; riots; sabotage; computer virus; terrorism;
insurrection, strike; labor dispute; unavailability of labor; civil disorder;
requirements, actions or failure to act on the part of governmental authorities;
adoption or change in any law, regulation, statute, rule or regulation imposed
by federal, state or local governmental bodies, including, without limitation, a
change in the interpretation thereof; or any lawful order by any court or
administrative agency; loss of supply of generating inputs, including fuel and
cooling water. An unplanned outage or derate of one or more units in
Seller’s Generation Fleet due to sudden, unanticipated failure or accident
within the generating plant site (an “Unplanned Event”) shall not constitute an
Event of Force Majeure.
7.2 Excused
Performance: Except for obligations to make any payments under
this Agreement, the Parties shall be excused from performing their respective
obligations if and to the extent that they are unable to so perform or are prevented from
performing by a Force Majeure, provided that (1) the non-performing
Party, as promptly as practicable after the Party reasonably determines that a
Force Majeure event has occurred, gives the other Party written notice
describing the particulars of the occurrence;(2) the suspension of performance
is of no greater scope and of no longer duration than is reasonably required by
the Force Majeure; (3) the non-performing Party uses due diligence to remedy its
inability to perform; and (4) as soon as the non-performing Party is able to
resume performance of its obligations excused as a result of the occurrence, it
gives prompt written notification thereof to the other Parties.
7.2A Remedies
for Failure to Deliver or Receive
(a) In the event of
Seller’s unexcused failure to deliver the Contract Quantity of capacity and
energy pursuant to this Agreement, including but not limited to the occurrence
of an Unplanned Event, Seller shall pay Buyer, as Buyer’s sole and exclusive
remedy the positive difference, if any, between the Replacement Price and the
Contract Price. For purposes of this paragraph (a), “Contract Price”
means the price to be paid by Buyer under this Agreement for the energy and/or
capacity that was not delivered by Seller, and “Replacement Price” means the
price actually paid by Buyer, acting in a commercially reasonable manner, to
replace the undelivered energy and/or capacity, plus any reasonable related
transmission, ancillary service, or brokerage costs, or at Buyer’s option, the
market price at the Delivery Point for such energy and/or capacity not delivered
as determined by Buyer in a commercially reasonable manner; provided, however,
in no event shall such price include any penalties, ratcheted demand or similar
charges, nor shall Buyer be required to utilize or change its utilization of its
owned or controlled assets or market positions to minimize Seller’s
liability. For purposes of this definition of Replacement Price,
Buyer shall be considered to have replaced the undelivered energy and/or
capacity to the extent Buyer shall have entered into one or more arrangements in
a
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commercially
reasonable manner whereby Buyer repurchases its obligation to sell and deliver
the energy and/or capacity to another party.
(b) In the event of
Buyer’s unexcused failure to receive the Contract Quantity of energy pursuant to
this Agreement, Buyer shall pay Seller, as Seller’s sole and exclusive remedy,
the positive difference, if any, between the Contract Price and the Sales
Price. For purposes of this subparagraph (b), “Sales Price” means the
price actually received by Seller, acting in a commercially reasonable manner,
to resell the unreceived energy, less any reasonable related transmission,
ancillary service, or brokerage costs, and “Contract Price” means the price to
be paid by Buyer under this Agreement for the energy and/or capacity that was
not received by Buyer.
7.3
Performance
Assurance: If either Party
(“X”) has reasonable grounds to believe that the other Party's (“Y”)
creditworthiness or performance under this Agreement has become unsatisfactory,
X may provide Y with written notice requesting Performance Assurance in an
amount determined by X in a commercially reasonable manner. Upon receipt of such
notice, Y shall have three (3) Business Days to remedy the situation by
providing Performance Assurance to X. Failure of Y to provide Performance
Assurance, or a guaranty or other credit assurance, acceptable to X within three
(3) Business Days after written notice shall constitute an Event of Default
under the Agreement. “Performance Assurance” means collateral in the form of
either cash, Letter(s) of Credit, or other security acceptable to the requesting
Party. “Letter(s) of Credit” means one or more irrevocable, transferable standby
letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S.
branch with such bank having a credit rating of at least A- from the Standard
& Poor’s Rating Group or A3 from Xxxxx’x Investor Services, Inc. “Business
Day” means any day except a Saturday, Sunday or a Federal Reserve Bank
holiday.
7.4 Grant
of Security Interest:
To secure its obligations under this Agreement and to the extent either
or both Parties deliver Performance Assurance hereunder, each Party (a
“Pledgor”) hereby grants to the other Party (the “Secured Party”) a present and
continuing first priority secured interest in, and lien on (and right of
recoupment and set-off against), and assignment of, all cash collateral and cash
equivalent collateral and any and all proceeds resulting therefrom or the
liquidation thereof, whether now or hereafter held by, on behalf of, or for the
benefit of, such Secured Party, and each Party agrees to take such action as the
other Party reasonably requires in order to perfect the Secured Party's
first-priority security interest in, and lien on (and right of recoupment and/or
setoff against), such collateral and any and all proceeds resulting therefrom or
from the liquidation thereof.
7.5
Event
of Default: An “Event of Default”
shall occur:
(a)
With respect to Seller, if an Unplanned Event continues for a period of
one (1) year with respect to one or more units of Seller's Generation
Fleet;
(b)
With respect to Buyer, if Buyer fails to make, when due, any payment
required pursuant to this Agreement if such failure is not remedied within five
(5) calendar days after written notice;
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(c) With
respect to either Seller or Buyer, if it fails to perform any material covenant
or obligation set forth in this Agreement (except to the extent constituting a
separate Event of Default) if such failure is not cured within fifteen (15)
calendar days after written notice;
(d) With
respect to either Seller or Buyer, if it (i) files a petition or otherwise
commences, authorizes, or acquiesces in the commencement of a proceeding or
cause of action under any bankruptcy, insolvency, reorganization or similar law,
or has any such petition filed against it, (ii) makes an assignment or general
arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or
insolvent (however evidenced), or (iv) has a liquidator, administrator,
receiver, trustee, conservator or similar official appointed with respect to it
or any substantial portion of its property or assets;
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(e)
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With
respect to either Seller or Buyer, if it fails to provide Performance
Assurance in accordance with Section 7.3 of this Agreement within three
(3) Business Days after written
notice.
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7.6 Termination in Event of
Default: If an Event of Default, as defined above, occurs, the
Party not in default shall, in addition to any other rights and remedies
provided by law, have the right to immediately suspend its performance to the
Party in default or to immediately terminate this Agreement.
Article
VIII
General
Provisions
8.1 Notices: All
notices, requests statements or payments shall be made as specified in the
Notice and Contact Appendix attached to this Agreement and shall, unless
otherwise specified herein, be in writing (unless otherwise provided) and shall
be considered duly delivered when received by mail, facsimile, wire, e-mail or
overnight courier.
8.2 Indemnity and Limitation of
Damages: Each Party (the Indemnifying Party) shall indemnify,
save harmless and defend the other Party, including the other Party’s parents,
subsidiaries, affiliates and their respective officers, directors, agents and
employees, from and against all claims, demands, costs and expenses (including
reasonable attorneys’ fees and court costs) in any manner, directly or
indirectly, connected with or arising from any loss, damage or injury to any
person(s) or property occurring on the Indemnifying Party’s side of the Delivery
Point. Neither Party shall be liable to the other, whether in
contract, in tort (including negligence, but not including gross negligence)
under any warranty or otherwise, for damages for loss of profits or revenue,
loss of use of any property, cost of capital, or other similar incidental or
consequential damages.
8.3 Regulatory Approvals and Saving
Clause: The Parties recognize that the sale and delivery of
capacity and energy under this Agreement may be subject to regulation by federal
and state agencies having jurisdiction over the Agreement, Buyer, Seller and
various aspects of the transmission and delivery of capacity and energy to
Buyer. Any provision declared or rendered unlawful by any applicable
court of law or such regulatory agency or
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deemed
unlawful because of a statutory or regulatory change shall not otherwise affect
the remaining lawful obligations that arise under the Agreement. In
the event that any order of a court or regulatory agency with competent
jurisdiction, including the Federal Energy Regulatory Commission, results in
substantive modification of the Agreement or otherwise affects the Parties’
economic benefits intended under the Agreement, the Parties shall use good faith
efforts to reform the Agreement in order to give effect to the original
intention and economic bargain of the Parties.
8.4 Resolution of
Disputes: If a question or controversy arises among the
Parties concerning the observance or performance of any of the terms, provisions
or conditions contained herein or the rights or obligations of any of the
Parties under this Agreement, such question or controversy shall in the first
instance be the subject of a meeting among the Parties to negotiate a resolution
of such dispute. Such meeting shall be held within fifteen (15) days
of a request by any Party. If within fifteen (15) days after that
meeting, the Parties have not negotiated a resolution or mutually extended the
period of negotiation, any Party may seek resolution of the question or
controversy by arbitration in accordance with arbitration procedures established
from time to time by the American Arbitration Association (“AAA”). Any decision
and award of the majority of arbitrators shall be binding upon all Parties to
the arbitration. The arbitrators shall not award any indirect,
special, incidental or consequential damages against a Party; but may award
reasonable attorney fees and related legal expenses to the prevailing
Party. Judgment upon the award rendered may be entered in any court
of competent jurisdiction. Such judgment shall be consistent with the terms and
conditions, and the spirit of this Agreement.
8.5 Assignment: This
Agreement shall inure to the benefit of and be binding upon each Party’s
successors and permitted assigns. No Party shall assign this
Agreement or their related contractual rights without the prior written consent
of the other Party, which prior written consent shall not be unreasonably
withheld or delayed; provided, however, any Party may, with ten (10) days
written notice to the other Party, and without written consent of the other
Party, assign or transfer this Agreement to (i) its affiliate or subsidiary; or
(ii) a successor to all or substantially all the properties and assets of such
Party; provided that the assignee is at least as creditworthy as the assigning
Party. No assignment of this Agreement shall release or discharge Buyer or
Seller from their future obligations hereunder unless all such obligations are
assumed by the successor or assignee of Buyer or Seller, as the case may
be.
8.6 Jurisdiction: Except
as to matters within the jurisdiction of particular regulatory bodies outside
the State of Illinois, this Agreement shall be
construed under the laws of the State of Illinois.
8.7 No
Confidentiality: The Parties acknowledge that this Agreement
will be filed with the Securities and Exchange Commission. Thus, its
terms and conditions will be placed in the public domain.
8.8 Survivorship of
Obligations: The termination of this Agreement shall not
discharge any Party from any obligation it owed to any other Party under the
Agreement by reason of any delivery, loss, cost, damage, expense or liability
which shall occur or arise prior to such termination. It is the
intent of the Parties that any such obligation owed (whether the same
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shall be
known or unknown as of the termination of this Agreement) shall survive the
termination of this Agreement. The Parties also intend that the
indemnification and limitation of liability provisions contained in this
Agreement shall remain operative and in full force and effect, regardless of any
termination of this Agreement, except with respect to actions or events
occurring or arising after such termination is effective.
8.9 Construction of Agreement:
This Agreement shall not be modified except in writing by amendment
executed by all Parties. This Agreement shall not impart any rights enforceable
by any third party (other than a permitted successor or assignee bound to this
Agreement). Waiver by a Party of any default by another Party shall
not be construed as a waiver of any other default. The Article and Section
headings in this Agreement have been inserted as a matter of convenience
and reference
only, and are not a part of this Agreement.
8.10 Buyer
and Seller each acknowledge that it is a “forward contract merchant” and that
this Agreement constitutes a “forward contract” within the meaning of the United
States Bankruptcy Code.
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IN WITNESS WHEREOF, that this
Power Supply Agreement between Ameren Energy Marketing Company and Ameren Energy
Generating Company may be executed in any number of counterparts, all of which
shall constitute but one and the same document, the Parties hereto have caused
this Agreement to be executed by their duly authorized officers, as of the day
and year first above written:
Ameren
Energy Marketing Company
By
/s/ Xxxxxx X.
Xxxxx
Xxxxxx X.
Xxxxx
Title
President
Ameren
Energy Generating Company
By
/s/ Xxxxxx X.
Xxxxxx
Xxxxxx X.
Xxxxxx
Title
Vice
President
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BETWEEN
AMEREN ENERGY MARKETING COMPANY
AND
AMEREN
ENERGY GENERATING COMPANY
NOTICE
AND CONTACT APPENDIX
|
AMEREN
ENERGY MARKETING |
AMEREN
ENERGY GENERATING
COMPANY
|
|
All
Notices:
|
All Notices: |
|
Street: 0000
Xxxxxxxx Xxxxxx
M/C AME-950
|
Street: 0000
Xxxxxxxx Xxxxxx
M/C AME-950
|
| City/State/Zip: St. Louis, MO 63103 |
City/State/Zip: Xx.
Xxxxx, XX 00000 |
|
Contract
Administration
|
Contract
Administration
|
|
Attn: Xxxxxxx
Xxxxxxx
|
Attn: Xxxxxxx
Xxxxxxx
|
|
Phone: (000)
000-0000
|
Phone: (000)
000-0000
|
|
Facsimile: (000)
000-0000
|
Facsimile: (000)
000-0000
|
|
Email: xxxxxxxx@xxxxxx.xxx
|
Email: xxxxxxxx@xxxxxx.xxx
|
|
Invoices
|
Invoices
|
|
Attn: Xxxx
Xxxxx
|
Attn: Xxxx
Xxxxx
|
|
Phone: (000)
000-0000
|
Phone: (000)
000-0000
|
|
Facsimile: (000)
000-0000
|
Facsimile: (000)
000-0000
|
|
Email: xxxxxx0@xxxxxx.xxx
|
Email: xxxxxx0@xxxxxx.xxx
|
|
Scheduling
|
Scheduling
|
|
Attn: Xxxxx
Xxxxxx
|
Attn: Xxxxx
Xxxxxx
|
|
Phone: (000)
000-0000
|
Phone: (000)
000-0000
|
|
Facsimile: (000)
000-0000
|
Facsimile: (000)
000-0000
|
|
Email: xxxxxxx@xxxxxx.xxx
|
Email: xxxxxxx@xxxxxx.xxx
|
|
Credit
|
Credit
|
|
Attn: Director
of Credit
|
Attn: Director
of Credit
|
|
Phone: (000)
000-0000
|
Phone: (000)
000-0000
|
|
Facsimile: (000)
000-0000
|
Facsimile: (000)
000-0000
|
|
Email: xxxxxxxx@xxxxxx.xxx
|
Email: xxxxxxxx@xxxxxx.xxx
|
-1-
Attachment
A
Capacity
Charge Calculation
|
I.
|
Definitions
|
When used in this Attachment A, the
following capitalized terms shall have the meanings ascribed to them
below.
Administrative and General
Expenses means those Generating Resource Expenses chargeable to Accounts
920 through 935 as defined in the Uniform System of Accounts.
Depreciation means
Generating Resource Expenses properly chargeable to Accounts 403, 404, 405 and
406 as defined in the Uniform System of Accounts.
Generating Resources
shall means those generating assets owned and operated by Seller from which
Seller provides capacity and energy to Buyer under the terms and conditions of
this Agreement.
Generating Resource
Expense shall mean all charges properly recorded in accounts herein per
Generally Accepted Accounting Principles (“GAAP”) and the Uniform System of
Accounts (“Charges”) that are incurred by Seller to own, operate and maintain
its Generating Resources. The Parties understand and agree that Seller shall
have charges that are directly attributable to such Generating Resources and
other Charges that are necessary to support the ownership, maintenance and
operation of such Generating Resources but cannot be directly or specifically
assigned to such Generating Resources (hereinafter “Non-Direct Charges”) (e.g., administrative and
general expenses) and are therefore, for purposes of this Agreement, also
considered Generating Resource Expenses.
Operations and Maintenance
Expenses means those Generating Resource Expenses chargeable to Accounts
500 through 557 (excluding Accounts 501, 509, 547, and 555) as defined in the
Uniform System of Accounts.
Other Taxes means
those amounts which are not based upon income, applicable to Generating
Resources, and chargeable to Account 408 as defined in the Uniform System of
Accounts.
Seller Federal and State
Income Taxes means those
amounts based upon income applicable to the Seller Generating Resources
chargeable to Accounts 408.1, 409.1, 410.1, 411.1, and 411.4 as defined in the
Uniform System of Accounts.
Seller Interest
Expense means those Generating Resource Expenses chargeable to Accounts
427 through 432 as defined in the Uniform System of Accounts.
-1-
|
II.
|
Capacity
Payment
|
The
Capacity Payment for a given Month shall be calculated as follows:
Capacity
Payment = OM + AG + D + IT+ OT + I
Where:
OM =
Operations and Maintenance Expenses - those Generating Resource Expenses
chargeable to Accounts 500 through 557 (excluding Accounts 501, 509, 547, and
555) as defined in the Uniform System of Accounts.
AG =
Administrative and General Expenses - those Generating Resource Expenses
chargeable to Accounts 920 through 935 as defined in the Uniform System of
Accounts.
D =
Depreciation consists of Generating Resource Expenses properly
chargeable to Accounts 403, 404, 405 and 406 as defined in the Uniform System of
Accounts.
IT =
Seller Federal and State Income Taxes.
OT =
Other Taxes - those amounts which are not based upon income, applicable to
Generating Resources, and chargeable to Account 408 as defined in the Uniform
System of Accounts.
I =
Seller Interest Expense - those Generating Resource Expenses chargeable to
Accounts 427 through 432 as defined in the Uniform System of
Accounts.
