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Exhibit 10.3
POWER
SUPPLY AGREEMENT
BETWEEN
AMEREN
ENERGY MARKETING COMPANY
AND
AMEREN
ENERGY GENERATING COMPANY
Amended and Restated
Power Supply Agreement
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:
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.
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.
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 Elgin Gross 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.
Elgin
Gross 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 Elgin Gross 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.
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 25 th
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
percent
of accuracy, no correction shall be made in billings; 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
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