EXHIBIT 10.23
ENERGY AND CAPACITY SALES AGREEMENT
THIS ENERGY AND CAPACITY SALES AGREEMENT (this "Agreement"), dated as of
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August 1, 2001 (the "Effective Date"), is by and between MIRANT MID-ATLANTIC,
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LLC (formerly known as Southern Energy Mid-Atlantic, LLC), a Delaware limited
liability company ("Seller"), and MIRANT AMERICAS ENERGY MARKETING, LP (formerly
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known as Southern Company Energy Marketing L.P.), a Delaware limited partnership
("Buyer"). Seller and Buyer are referred to individually as a "Party" and
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collectively as the "Parties."
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W I T N E S S E T H:
WHEREAS, Seller owns or leases (a) certain electric generation facilities
and associated facilities located in Xxxxxxx County, Maryland (the "Morgantown
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Station"), and (b) certain electric generation facilities and associated
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facilities located in Upper Xxxxxxxxxx County, Maryland (the "Xxxxxxxxx
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Station;" and, collectively with the Morgantown Station, the "Generating
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Stations"); and
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WHEREAS, Buyer is engaged in the sale and purchase of electric energy,
capacity and other products; and
WHEREAS, Seller and Buyer are parties to that certain Master Power Purchase
and Sale Agreement, dated as of December 18, 2000 (the "Master Agreement"),
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pursuant to which Seller and Buyer may make sales of capacity, energy and other
products to each other; and
WHEREAS, Seller and Buyer are parties to that certain Amended and Restated
Services and Risk Management Agreement dated March 30, 2001 (the "Services
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Agreement"), pursuant to which Buyer provides certain services to Seller,
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including bidding and dispatch services; and
WHEREAS, the Parties desire to enter into this Agreement for the sale and
purchase of Products, as hereinafter defined, from the Generating Stations; and
WHEREAS, Mirant Chalk Point, LLC, Mirant Peaker, LLC, and Mirant Potomac
River, LLC (collectively, the "Other Generating Companies"), are entering into
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Energy and Capacity Sales Agreements with Buyer concurrently with Seller and
Buyer entering into this Agreement on substantially similar terms and
conditions;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms shall
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have the meaning set forth in the Master Agreement. The following terms shall
have the meanings set
forth below:
"Additional Products" means all PJM Products produced by Seller and all
other PJM Products, if any, used to supply Buyer's obligations (a) under the
TPAs, and (b) in respect of any sales by Buyer to serve load which has migrated
from Potomac Electric Power Company and would otherwise have been supplied under
the TPAs, in either case which is not met by deliveries under (x) Buyer's power
purchase agreements with Ohio Edison Company and Pennsylvania Power Company for
450MW, Panda-Brandywine or Panda for approximately 230MW, Northeast Maryland
Waste Disposal for 50MW, and one other agreement for 2.6MW, (y) power sales
agreements between Buyer and each of Mirant Potomac River, LLC, Mirant Peaker,
LLC, and Mirant Chalk Point, LLC, and (z) this Agreement, with respect to sales
of Committed Products and Uncommitted Products.
"Agreement" means this Agreement.
"Availability Shortfall Payment" has the meaning set forth in Section 6 of
this Agreement.
"Capacity Payment" has the meaning set forth in Section 5 of this
Agreement.
"Committed Capacity" means the amount of the Unit Capacity designated as
Committed Capacity in accordance with Section 4, as adjusted from time to time
in accordance with Section 11.
"Committed Energy" has the meaning set forth in Section 7 of this
Agreement.
"Committed Energy Payment" has the meaning set forth in Section 7 of this
Agreement.
"Committed Percentage" means for any Contract Year, the Committed Capacity
for such Contract Year divided by the Unit Capacity.
"Committed Products" means the Committed Capacity and all Committed Energy,
ancillary services or other products commercially recognized in the PJM market
(or any successor market) associated with the Committed Capacity.
"Contract Year" means Contract Year 1, Contract Year 2, Contract Year 3 or
Contract Year 4, as the case may be.
"Contract Year 1" means the period between the Effective Date through and
including December 31, 2001.
"Contract Year 2" means the period between January 1, 2002, through and
including December 31, 2002.
"Contract Year 3" means the period between January 1, 2003, through and
including
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December 31, 2003.
"Contract Year 4" means the period between January 1, 2004, through and
including June 30, 2004.
"Delivery Point" means the high side of the step-up transformer for each
Unit.
"Effective Date" has the meaning set forth in the Preamble to this
Agreement.
"Equivalent Availability Factor" or "EAF" means the equivalent availability
factor for the Portfolio Units, computed in accordance with North American
Electric Reliability Council definitions at the end of each month on a rolling
12 month basis; provided, however, that for Contract Year 1, the EAF will be
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computed based on availability commencing January 1, 2001.
"Extension Notice" has the meaning set forth in Section 2 of this
Agreement.
"Extension Term" means the period between July 1, 2004, and December 31,
2004.
"Generating Companies" has the meaning set forth in the Recitals to this
Agreement.
"Generating Stations" has the meaning set forth in the Recitals to this
Agreement.
"Material Portfolio Unit" means the generating units of Seller and the
Other Generating Companies listed as Material Portfolio Units on Exhibit A,
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attached hereto.
"Master Agreement" has the meaning set forth in the Recitals to this
Agreement.
"Other Generating Companies" has the meaning set forth in the Recitals to
this Agreement.
"Other Sales Agreement" means each of the Energy and Capacity Sales
Agreements of even date herewith between Buyer and the Other Generating
Companies, respectively.
"PJM Products" means all energy, capacity, ancillary services or other
products commercially recognized in the PJM market.
"Portfolio Units" means the generating units of Seller and the Other
Generating Companies, as listed on Exhibit A.
"Products" means all Committed Products, all Uncommitted Products and all
Additional Products.
"Services Agreement" has the meaning set forth in the Recitals to this
Agreement.
"Term" has the meaning set forth in Section 2 of this Agreement.
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"TPAs" means those certain Transition Power Agreements between MAEM and
Potomac Electric Power Company dated as of December 19, 2000.
"Uncommitted Capacity" means the amount of Unit Capacity which is not
designated as Committed Capacity under the terms of this Agreement.
"Uncommitted Energy" has the meaning set forth in Section 7 of this
Agreement.
"Uncommitted Products" means the Uncommitted Capacity and all Uncommitted
Energy, ancillary services or other products commercially recognized in the PJM
market (or any successor market) associated with the Uncommitted Capacity.
"Unit" means each of the generating units at the Generating Stations.
"Unit Capacity" means the aggregate capacity of the Units as listed on
Exhibit A attached hereto.
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2. Term. The term of this Agreement (the "Term") shall commence on the
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Effective Date and end on June 30, 2004, unless earlier terminated in accordance
with the terms of this Agreement. Buyer shall have the right to extend the Term
for the Extension Term by giving Seller written notice of such extension (the
"Extension Notice") on or before April 1, 2004. The applicable provisions of
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this Agreement shall continue in effect after cancellation or termination hereof
to the extent necessary to provide for final xxxxxxxx, billing adjustments and
payments pertaining to liability and indemnification obligations arising from
acts or events that occurred while this Agreement, including the Extension Term,
if applicable, was in effect.
3. Products. Seller shall deliver or make available to Buyer all
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Committed and Uncommitted Products produced or available from the Generating
Stations and delivered by Seller to Buyer pursuant to and during the Term
(including the Extension Term, if applicable) of this Agreement. Seller shall
also deliver to Buyer all Additional Products during the Term (including the
Extension Term, if applicable) of this Agreement.
4. Committed Capacity and Uncommitted Capacity. Seller shall make
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available to Buyer all of the Unit Capacity of Seller's Units, and for purposes
of this Agreement such capacity shall be either Committed Capacity or
Uncommitted Capacity. For Contract Year 1 all Unit Capacity shall be Committed
Capacity. On or before November 15 of Contract Year, Buyer shall have the
option to designate the amount of Committed Capacity for the next Contract Year;
provided, however, for Contract Year 2 the Committed Capacity shall not be less
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than 75% of the Unit Capacity. The Committed Capacity may not be increased by
Buyer for any Contract Year without the written approval of Seller and Buyer.
If Buyer exercises its right for the Extension Term, Buyer shall designate the
amount of Committed Capacity in its notice of exercise for the Extension Term.
5. Capacity Payments. Each month during the Term, Buyer shall pay Seller
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a
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capacity payment (the "Capacity Payment") for the Committed Capacity calculated
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as follows:
Capacity Payment = Committed Capacity x Capacity Rate
Where:
Capacity Rate Year
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$11,825/MW-mo Contract Year 1
$12,120/MW-mo Contract Year 2
$11,285/MW-mo Contract Year 3
$10,400/MW-mo Contract Year 4
$10,400/MW-mo Extension Term
6. Availability Shortfall Payment. In the event the EAF during any month
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is less than 75%, then Seller shall pay Buyer an amount (the "Availability
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Shortfall Payment") calculated as follows:
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Availability Shortfall Payment = [(0.75 - EAF)/0.75] x Committed Capacity x
Capacity Rate
7. Payments for Committed Energy. As used herein "Committed Energy" is
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the energy delivered to the Delivery Point multiplied by the Committed
Percentage, and all other energy delivered to the Delivery Point is referred to
as the "Uncommitted Energy." Buyer shall pay Seller for all Committed Energy
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delivered to the Delivery Point (such payment, the "Committed Energy Payment")
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as follows:
Committed Energy Payment = Committed Energy x Energy Price
Where:
Year Energy Price
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Contract Year 1 $16.50/MWh
Contract Year 2 $17.15/MWh
Contract Year 3 $17.75/MWh
Contract Year 4 $18.80/MWh
Extension Term $18.80/MWh
8. Payments for Uncommitted Capacity and Uncommitted Energy. Unless
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otherwise agreed to by Seller and Buyer, Buyer shall pay Seller the market price
for all products associated with the Uncommitted Products.
9. Payment for Additional Products. Unless otherwise agreed to by Seller
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and Buyer, Buyer shall pay Seller the market price for all Additional Products
delivered to Buyer.
10. Payment Date. Payments made by Buyer to Seller under this Agreement
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shall be made on or before the 20th of each month for Products delivered in the
prior month. Buyer may setoff any amounts due from Seller for Availability
Shortfall Payments.
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11. Material Unplanned Outage. In the event of an unplanned outage or
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derating of any Unit of Seller which is expected to last at least 30 consecutive
days:
(a) Buyer may upon written notice to Seller reduce the Committed Capacity
by the amount of the outage or derated capacity of the Unit, and during the
term of the unplanned outage such capacity of the Unit shall not be
included in the calculation of the Equivalent Availability Factor. Upon
restoration of the Unit to service, Buyer may designate such amount of the
Unit's capacity as either Committed Capacity or Uncommitted Capacity.
(b) If the Unit is a Material Portfolio Unit, Buyer may terminate this
agreement upon written notice to Seller.
Seller shall give Buyer written notice of the occurrence of the unplanned outage
of the Unit promptly upon determining that the outage is expected to last at
least 30 days, and Buyer shall have 30 days after receiving such notice to
exercise its rights under Section 11(a) or 11(b).
12. Termination. In addition to the termination rights in the Master
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Agreement, this Agreement shall terminate upon the termination of any of the
Other Sales Agreements.
13. Cross Default. An Event of Default by Buyer under any of the Other
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Sales Agreements shall be an Event of Default by Buyer under this Agreement. An
Event of Default by any of the Other Generating Companies under the Other Sales
Agreements shall be an Event of Default by Seller under this Agreement.
14. Confirmation Under Master Agreement. This Agreement is a
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"Confirmation" under the terms of the Master Agreement. For purposes of the
Master Agreement, the "Quantity" shall mean the amounts of Products delivered
hereunder, the "Contract Price" shall mean the amounts payable under Sections 5,
6, 7, 8 and 9 of this Agreement, and the "Delivery Period" shall mean the Term.
Any scheduling of Products shall be conducted by Buyer pursuant to the Services
Agreement.
15. Entire Agreement. That certain Confirmation of Power Sale Transaction
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dated March 30, 2001, is hereby terminated. This Agreement, the Master
Agreement and the Services Agreement embody the entire agreement and
understanding of the Parties in respect of the transactions contemplated by this
Agreement. This Agreement shall constitute a Confirmation of Power Sale
Transaction for purposes of the Master Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Parties as of the date first written above.
MIRANT MID-ATLANTIC, LLC MIRANT AMERICAS ENERGY MARKETING, LP
By MIRANT AMERICAS DEVELOPMENT, INC.,
its General Partner
By: By:
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Name: Name:
Title: Title:
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EXHIBIT A
Generating Station Unit Capacity Material Portfolio Unit
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Mirant Mid-Atlantic, LLC
Xxxxxxxxx D1 182 Yes
Xxxxxxxxx D2 182 Yes
Xxxxxxxxx D3 182 Yes
Xxxxxxxxx DCT1 13
Xxxxxxxxx HCT1 147
Xxxxxxxxx HCT2 147
Morgantown F1 624 Yes
Morgantown F2 620 Yes
Morgantown FCT1 16
Morgantown FCT2 16
Morgantown FCT3 54
Morgantown FCT4 54
Morgantown FCT5 54
Morgantown FCT6 54
Mirant Xxxxx Xxxxx, XXX
Xxxxx Xxxxx X0 000 Yes
Chalk Point E2 342 Yes
Chalk Point E3 612 Yes
Chalk Point E4 612 Yes
Mirant Peaker, LLC
Xxxxx Xxxxx XXX0 00
Xxxxx Xxxxx XXX0 30
Chalk Point ECT3 00
Xxxxx Xxxxx XXX0 00
Xxxxx Xxxxx XXX0 109
Chalk Point ECT6 109
SMECO CT1 84
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Mirant Potomac River, LLC
Potomac River C1 88
Potomac River C2 88
Potomac River C3 102
Potomac River C4 102
Potomac River C5 102
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