EXHIBIT 10.10(a)
MASTER POWER PURCHASE AND SALE AGREEMENT
COVER SHEET
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This Master Power Purchase and Sale Agreement ("Master Agreement") is made as of
the following date: December 18, 2000 ("Effective Date"). The Master
Agreement, together with the exhibits, schedules and any written supplements
hereto, the Party A Tariff, if any, the Party B Tariff, if any, any designated
collateral, credit support or margin agreement or similar arrangement between
the Parties and all Transactions (including any confirmations accepted in
accordance with Section 2.3 hereto) shall be referred to as the "Agreement." The
Parties to this Master Agreement are the following:
Name: Southern Company Energy Marketing L.P. ("Southern" or "Party A")
All Notices:
Street: 1155 Perimeter Center West, Suite 130
City: Atlanta, GA Zip: 30338-5416
Attn: Legal Department
Phone: (678) 579-5072
Facsimile: (678) 579-5820
Duns: 177198629
Federal Tax ID Number: 58-2338667
Invoices:
Attn: Accounting
Phone: (678) 578-5060
Facsimile: (678) 579-5829
Scheduling:
Attn: Power Scheduling
Phone: (678) 579-3009
Facsimile: (678) 579-5767
Payments:
Attn: Accounting
Phone: (678) 579-5060
Facsimile: (678) 579-5829
Wire Transfer:
BNK: Bank of America, N.A.
ABA: 111000012
ACCT: 3751003269
Credit and Collections:
Attn: Credit Department
Phone: (678) 579-3414
Facsimile: (678) 579-5887
With additional Notices of an Event of Default or Potential Event of Default to:
Attn: Legal Department
Phone: (678) 579-5072
Facsimile: (678) 579-5890
Name: Southern Energy Mid-Atlantic, LLC ("SEMIDATL" or "Party B")
All Notices:
Street: 901 F Street, NW 7th Floor
City: Washington, DC Zip: 20081-0001
Attn: Legal Department
Phone:
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Facsimile: (202) 737-0716
Duns:
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Federal Tax ID Number: 58-2574146
Invoices:
Attn: Accounting
Phone:
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Facsimile: (202) 737-0716
Scheduling:
Attn: Scheduling
Phone:
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Facsimile: (202) 737-0716
Payments:
Attn: Accounting
Phone:
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Facsimile: (202) 737-0716
Wire Transfer:
BNK: Bank Of America, N.A.
ABA: 111000012
ACCT: 3751738754
Credit and Collections:
Attn: Credit Department
Phone:
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Facsimile: (202) 737-0716
With additional Notices of an Event of Default or Potential Event of Default to:
Attn: Legal Department
Phone:
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Facsimile: (202) 737-0716
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The Parties hereby agree that the General Terms and Conditions are incorporated
herein, and to the following provisions as provided for in the General Terms and
Conditions:
Party A Tariff Tariff: Rate Schedule No. 1 Dated: 08/13/97 Docket Number: ER97-4166-000
Party B Tariff Tariff ____________________ Dated _________ Docket Number ______________
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Article Two
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Transaction Terms and Conditions [X] Optional provision in Section 2.4. If not checked, inapplicable.
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Article Four
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Remedies for Failure [ ] Accelerated Payment of Damages. If not checked, inapplicable.
to Deliver of Receive
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Article Five [ ] Cross Default for Party A:
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Events of Default; Remedies [ ] Party A:__________________ Cross Default Amount $
[ ] Other Entity:_____________ Cross Default Amount $___________
[ ] Cross Default for Party B:
[ ] Party B:__________________ Cross Default Amount $
[ ] Other Entity:_____________ Cross Default Amount $___________
5.6 Closeout Setoff
[X] Option A (Applicable if no other selection is made.)
[ ] Option B - Affiliates shall have the meaning set forth in
the Agreement unless otherwise specified as follows:________
____________________________________________________________
[ ] Option C (No Setoff)
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Article 8 8.1 Party A Credit Protection:
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Credit and Collateral Requirements (a) Financial Information:
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[ ] Option A
[ ] Option B Specify:_________________
[X] Option C Specify: if requested by
Party A, Party B shall deliver within
120 days following the end of each
fiscal year a copy of Party B's audited
consolidated financial statements for
such fiscal year. In all cases the
statements shall be for the most recent
accounting period and prepared in
accordance with generally accepted
accounting principles; provided,
however, that should any such
statements not be available on a timely
basis due to a delay in preparation or
certification, such delay shall not be
an Event of Default so long as Party B
diligently pursues the preparation,
certification and delivery of the
statements.
(b) Credit Assurances:
[ ] Not Applicable
[X] Applicable
(c) Collateral Threshold:
[X] Not Applicable
[ ] Applicable
If applicable, complete the following:
Party B Collateral Threshold: $_________;
provided, however, that Party B's Collateral
Threshold shall be zero if an Event of Default
or Potential Event of Default with respect to
Party B has occurred and is continuing.
Party B Independent Amount: $____________
Party B Rounding Amount: $_______________
(d) Downgrade Event:
[X] Not Applicable
[ ] Applicable
If applicable, complete the following:
[ ] It shall be a Downgrade Event for
Party B if Party B's Credit Rating
falls below_________ from S&P or
_________ from Moody's or if Party
B is not rated by either S&P or
Moody's.
[ ] Other:
Specify:___________________________
(e) Guarantor for Party B:
Guarantee Amount:________________
8.2 Party B Credit Protection:
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(a) Financial Information:
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[ ] Option A
[ ] Option B Specify: _______________
[X] Option C Specify: if requested by
Party B, Party A shall deliver within 120
days following the end of each fiscal year
a copy of Party A's audited consolidated
financial statements for such fiscal year.
In all cases the statements shall be for
the most recent accounting period and
prepared in accordance with generally
accepted accounting principles; provided,
however, that should any such statements
not be available on a timely basis due to
a delay in preparation or certification,
such delay shall not be an Event of
Default so long as Party A diligently
pursues the preparation, certification and
delivery of the statements.
(b) Credit Assurances:
[ ] Not Applicable
[X] Applicable
(c) Collateral Threshold:
[X] Not Applicable
[ ] Applicable
If applicable, complete the following:
Party A Collateral Threshold: $ __________;
provided, however, that Party A's Collateral
Threshold shall be zero if an Event of Default or
Potential Event of Default with respect to Party A
has occurred and is continuing.
Party A Independent Amount: $_________
Party A Rounding Amount: $__________
(d) Downgrade Event:
[X] Not Applicable
[ ] Applicable
If applicable, complete the following:
[ ] It shall be a Downgrade Event for
Party A if Party A's Credit Rating
falls below _________ from S&P or
___________ from Moody's or if Party A
is not rated by either S&P or Moody's.
[ ] Other:
Specify:______________________________
(e) Guarantor for Party A:
Guarantee Amount:_____________
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Article 10
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Confidentiality [X] Confidentiality Applicable [ ] If not checked,
inapplicable.
Schedule M [ ] Party A is a Governmental Entity or Public
Power System
[ ] Party B is a Governmental Entity or Public
Power System
[ ] Add Section 3.6. If not checked, inapplicable
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[ ] Add Section 8.4. If not checked, inapplicable
Dispute Resolution [X] 10.12.1 Arbitration Proceedings. If not
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checked, inapplicable.
Any dispute or need of interpretation arising out
of this Agreement related to a Settlement Amount
or a payment required pursuant to Article 4 shall
be submitted, upon request of either Party, to
binding arbitration by one arbitrator who has not
previously been employed by either Party, is
qualified by education or experience to decide the
matters relating to the questions in dispute, and
does not have a direct or indirect interest in
either Party or the subject matter of the
arbitration. Such arbitrator shall either be as
mutually agreed by the Parties within thirty (30)
days after written notice from the Party
requesting arbitration, or failing agreement,
shall be selected under the commercial arbitration
rules of the American Arbitration Association
("AAA"). Such arbitration shall be held in
alternating locations of the home offices of the
Parties, commencing with Southern's home office,
or in any other mutually agreed upon location. The
commercial arbitration rules of the AAA shall
apply to the extent not inconsistent with the
rules herein specified. Either Party may initiate
arbitration by written notice to the other Party,
and the arbitration shall be conducted according
to the following: (i) the hearing shall be
conducted on a confidential basis; (ii) at the
conclusion of the hearing, each Party will present
a suggested resolution to the arbitrator; (iii)
the arbitrator may select either suggested
resolution or may make his or her own decision,
subject to the limitation that the decision must
resolve the dispute in a manner consistent with
the intent of the Parties as reflected in the
terms of this Agreement; (iv) the arbitrator shall
issue a confidential written opinion containing
his or her decision; (v) each Party shall divide
equally the cost of the arbitrator and the hearing
and each Party shall be responsible for its own
expenses and those of its counsel and
representatives; and (vi) any offer made or the
details of any negotiation regarding the dispute
prior to arbitration and the cost to the Parties
of their representatives and counsel shall not be
admissible.
[X] 10.12.2 Binding Nature of Proceeding. If not
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checked, inapplicable.
Each Party understands this Agreement contains an
agreement to arbitrate any dispute or need of
interpretation related to a Settlement Amount or
payment required to Article 4 of this Agreement.
Each Party understands it cannot bring a lawsuit
concerning any such dispute. Instead, each Party
agrees to submit any such dispute to an impartial
arbitrator. Any monetary award of the arbitrator
may be enforced in any court of competent
jurisdiction by the Party in whose favor such
monetary award is made.
Other Changes: ______________ Specify, if any: _________________________________
IN WITNESS WHEREOF, the Parties have caused this Master Agreement to be duly
executed as of the date first above written.
Southern Company Energy Marketing L.P. Southern Energy Mid-Atlantic, LLC
By: /s/ Gary J. Morsches By: /s/ Gary J. Kubik
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Name: Gary J. Morsches Name: Gary J. Kubik
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Title: Senior Vice President Title: Vice President, Chief Financial
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Officer and Treasurer
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DISCLAIMER:This Master Power Purchase and Sale Agreement was prepared by a
committee of representatives of Edison Electric Institute ("EEl") and National
Energy Marketers Association ("NEM") member companies to facilitate orderly
trading in and development of wholesale power markets. Neither EEl nor NEM nor
any member company nor any of their agents, representatives or attorneys shall
be responsible for its use, or any damages resulting therefrom. By providing
this Agreement EEl and NEM do not offer legal advice and all users are urged to
consult their own legal counsel to ensure that their commercial objectives will
be achieved and their legal interests are adequately protected.
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