POWER SALE, FUEL SUPPLY AND SERVICES AGREEMENT

 

“ Asset Companies ” means any affiliates of MAEM either directly or indirectly owned by Mirant Corporation, other than Mirant Delta or Mirant Potrero, which own electric generating stations in the United States.

 

“ Claims ” means all claims or actions, threatened or filed, whether groundless, false or fraudulent, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expenses, attorneys’ fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement.

 

“ Collateral Costs ” means an amount determined on a monthly basis by MAEM, in good faith, as the cost incurred by MAEM or Mirant North America, LLC to post collateral in the form of cash and/or letters of credit to third parties as required under the terms of the transactions attributed to the Asset Book based on the weighted average of the borrowing rates under the senior credit facilities, senior notes and other indebtedness for borrowed money of Mirant North America, LLC.

 

“ Delivery Point ” means, with respect to Products generated by, or available from, the Generating Station, the high side of the generation step-up transformer located at the Generating Station, where it connects to the Transmission Provider’s transmission system; and, with respect to Products generated by, or available from, sources other than the Generating Station, such other point on the Transmission Provider’s transmission system as MAEM and Project Company may determine.

 

“ Direct Contracts ” has the meaning set forth in Section 4.1.

 

“ Emissions Allowances ” means authorizations under state or federal (as applicable) air quality regulations to emit either one ton of nitrogen oxides (“NOx”) or sulfur dioxide (“SO ₂ ”) at any time during any applicable calendar year.

 

“ Event of Default ” has the meaning set forth in Section 9.1.

 

“ Expenses ” has the meaning set forth in Section 8.2.

 

“ FERC ” means the Federal Energy Regulatory Commission, or its successor.

 

“ Force Majeure ” means an event or circumstance which prevents one Party from performing its obligations, which event or circumstance was not anticipated as of the date the transaction was agreed to, which is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided.  Force Majeure shall not be based on (i) the loss of MAEM’s markets; (ii) MAEM’s inability economically to use or resell the Product purchased hereunder; (iii) the loss or failure of Project Company’s supply; or (iv) Project Company’s ability to sell the Product at a price greater than the Contract Price.  Neither Party may raise a claim of Force Majeure based in whole or in part on curtailment by a Transmission

 

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Provider unless (i) such Party has contracted for firm transmission with a Transmission Provider for the Product to be delivered to or received at the Delivery Point and (ii) such curtailment is due to “force majeure” or “uncontrollable force” or a similar term as defined under the Transmission Provider’s tariff; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate with such factors establish that a Force Majeure as defined in the first sentence hereof has occurred.

 

“ Fuel ” means Fuel Oil or natural gas, as dictated by context.

 

“ Fuel Delivery Point ” means the Fuel Oil Delivery Point and/or the Natural Gas Delivery Point, as applicable.

 

“ Fuel Oil ” means distillate fuel.

 

“ Fuel Oil Delivery Point ” means the physical location at the Generating Station where MAEM shall deliver Fuel Oil to Project Company.

 

“ Generating Stations ” has the meaning provided in the recitals.

 

“ Good Utility Practices ” mean any of the practices, methods or acts engaged in or approved by a significant portion of the electric energy industry with respect to similar facilities during the relevant time period which in each case, in the exercise of reasonable judgment in light of the facts known or that should have been known at the time a decision was made, could have been expected to accomplish the desired result at reasonable cost consistent with good business practices, reliability, safety, law, regulation, environmental protection and expedition.  Good Utility Practices are not intended to be limited to the optimum practices, methods or acts to the exclusion of all others, but rather to delineate the acceptable practices, methods or acts generally accepted in such industry.

 

“ Gross Revenues ” has the meaning set forth in Section 8.2.

 

“ Implementation Order ” means the Implementing Order Regarding Transfer of Letters of Credit, Guarantees and Certain Collateral Securing Trading Obligations Transferred Pursuant to the Plan, dated December 9, 2005, issued by the United States Bankruptcy Court for the Northern District of Texas, Forth Worth Division in the chapter 11 cases of Mirant Corporation and its affiliated debtors, styled as In re Mirant Corporation, et al. , Chapter 11 Case No. 03-46590 (DML) Jointly Administered.

 

“ Interest Rate ” means, for any date, two percent (2%) over the per annum rate of interest equal to the prime lending rate as may from time to time be published in the Wall Street Journal under “Money Rates”; provided that the Interest Rate shall never exceed the maximum interest rate permitted by applicable law.

 

“ ISO ” means the California Independent System Operator Corporation, or its successor.

 

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“ ISO FERC Tariff ” means the California Independent System Operator Corporation Operating Agreement and Tariff, as amended from time to time, as on file with and approved by the FERC.

 

“ MAEM ” has the meaning set forth in the first paragraph of this Agreement.

 

“ MET ” has the meaning set forth in Section 11.1(b).

 

“ Natural Gas Delivery Point ” means the meter at the Generating Station where MAEM shall deliver natural gas to Project Company.

 

“ Net Market Revenues ” has the meaning set forth in Section 8.2.

 

“ Offer ” has the meaning set forth in Section 2.2(a).

 

“ Party ” means any of MAEM or the Project Companies.  In the context where MAEM is referenced as a “Party,” a reference to the “other Party” shall mean the Project Companies.  In the context where the Project Companies are referenced as a “Party,” a reference to the “other Party” shall mean MAEM.  References to “either Party” or the “Parties” shall have comparable meanings.

 

“ Plan ” means the Amended and Restated Second Amended Joint Chapter 11 Plan of Reorganization for Mirant Corporation and its Affiliated Debtors, dated September 30, 2005, confirmed by the United States Bankruptcy Court for the Northern District of Texas, Forth Worth Division, on December 9, 2005, in the chapter 11 cases of Mirant Corporation and its affiliated debtors, styled as In re Mirant Corporation, et al. , Chapter 11 Case No. 03-46590 (DML) Jointly Administered.

 

“ Products ” means electric capacity, energy, ancillary services and/or any other related products, which are or may become commercially recognized in the ISO markets during the term of this Agreement.

 

“ Project Companies ” has the meaning set forth in this first paragraph of this Agreement.

 

“ Purchased Power ” has the meaning set forth in Section 4.2.

 

“ RMR Agreements ” means the Must-Run Service Agreement dated June 1, 1999 between Mirant Delta and the ISO for the Pittsburg Power Plant, the Must-Run Service Agreement dated June 1, 1999 between Mirant Delta and the ISO for the Contra Costa Power Plant, and the Must-Run Service Agreement dated June 1, 1999 between Mirant Potrero and the ISO for the Potrero Power Plant.

 

“ Scheduling Coordinator ” means the entity designated to perform the responsibilities defined for a Scheduling Coordinator in the ISO FERC Tariff including, but not limited to, scheduling energy and ancillary services from the Generating Stations with the ISO.

 

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“ Service Fee ” has the meaning set forth in Section 8.1.

 

“ Third Party Contract ” has the meaning set forth in Section 2.2(b).

 

“ Transmission Providers ” means the entity or entities transmitting Products on behalf of Project Company or MAEM to or from the Delivery Point including, but not limited to, the ISO or a regional transmission organization.

 

“ Transportation Providers ” means the entity or entities transporting Fuel on behalf of Project Company or MAEM to or from the Generating Station.

 

“ WECC ” means the Western Electricity Coordinating Council, or its successor.

 

“ Wrap Agreement ” mean the Power Purchase and Sale Agreement (Second Wraparound Agreement), dated January 13, 2005, between the Project Companies and Pacific Gas and Electric Company.

 

ARTICLE 2.

PRODUCT SALES

 

 2.1                               Intercompany Product Sales .

 

(a)                                   Transactions .  With the exception of any Direct Contracts as described in Section 4.1, Project Company shall sell and deliver, and MAEM shall purchase and receive, or cause to be received, at the Delivery Point, all Products generated by, and/or available from, the Generating Stations.  MAEM shall resell such Products as described in Section 2.2.  MAEM shall pay Net Market Revenues to Project Company, on a monthly basis, for all Products purchased by MAEM hereunder.  In selling Products generated by, or available from, the Generating Stations, MAEM shall attempt to maximize Net Market Revenues for Project Companies.

 

(b)                                  Transmission and Scheduling .  Project Company shall be responsible for delivery of Products to the Delivery Point.  MAEM shall arrange and be responsible for transmission service at and from the Delivery Point.  MAEM shall serve as Scheduling agent on behalf of Project Company to Schedule and deliver Products with respect to all transaction involving the Generating Station.

 

(c)                                   Title, Risk of Loss and Indemnity . The following provision shall apply to all transactions involving the Generating Station except for Direct Contracts as described in Section 4.1.  As between the Parties, Project Company shall be deemed to be in exclusive possession and control (and be responsible for any damages or injury caused thereby) of the Products prior to delivery thereof at the Delivery Point, and MAEM shall be deemed to be in exclusive possession and control (and be responsible for any damages or injury caused thereby) of the Products at and after delivery thereof at the Delivery Point.  Project Company warrants that it will deliver to MAEM all Products free and clear of all liens, claims and encumbrances arising prior to delivery thereof at the Delivery Point.  Title to and risk of loss related to delivered Products shall transfer

 

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from Project Company to MAEM at the Delivery Point.  Each Party shall indemnify, defend and hold harmless each other Party from any Claims arising from any act or incident occurring during the period when possession, control and title to Products is vested or deemed to be vested in the indemnifying Party, except to the extent such Claims arise from such other Party’s breach of this Agreement or its gross negligence or willful misconduct.

 

2.2                                  Resale of Products by MAEM .

 

(a)                                   Offers . MAEM may resell the Products purchased from Project Companies by submitting offers to sell such Products in the day-ahead and/or real-time markets administered by the ISO (“Offers”).

 

(b)                                  Third Party Contracts .  In addition to submitting Offers, MAEM may resell the Products purchased from Project Companies by entering into bilateral contracts, forward sales, financial transactions (including, but not limited to, hedges, swaps, contracts for differences and options), tolling agreements, power purchase agreements and other transactions (“Third Party Contracts”).

 

(c)                                   Costs and Revenues . All costs and revenues associated with Offers and Third Party Contracts will be charged, or paid, to Project Company as such costs and revenues are actually incurred or received by MAEM, as further described in the calculation of Net Market Revenues pursuant to Section 8.2.

 

(d)                                  Strategies .  MAEM’s strategies with respect to all Offers, Third Party Contracts and all Scheduling activities shall be consistent with:

 

(i)                                      the operating parameters and limitations of the Generating Station, as provided by Project Company to MAEM;

 

(ii)                                   the limitations imposed by any transmission service reservations for the purpose of transmitting Products from the Generating Station;

 

(iii)                                Project Company’s scheduled maintenance plans with respect to the Generating Station, as agreed to between the Parties;

 

(iv)                               the availability of the Generating Station (including Fuel handling and storage facilities), as communicated by Project Company to MAEM;

 

(v)                                  the ISO FERC Tariff and other ISO rules and procedures in effect from time to time;

 

(vi)                               applicable requirements of any Transmission Provider and/or Transportation Provider;

 

(vii)                            Fuel availability;

 

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(viii)                         Good Utility Practices;

 

(ix)                                 environmental limitations applicable to the Generating Stations;

 

(x)                                    operating protocols agreed to from time to time by the Parties;

 

(xi)                                 WECC rules and procedures in effect from time to time;

 

(xii)                              the requirements of the Generating Station pursuant to an RMR Agreement; and

 

(xiii)                           any FERC imposed must offer obligation.

 

ARTICLE 3.

FUEL SERVICES

 

3.1                                  All Requirements Fuel Supply .  With the exception of any Direct Contracts as described in Section 4.1, MAEM shall procure and supply to Project Companies, on an exclusive basis, all Fuel required by the Generating Stations in accordance with Good Utility Practices and the terms and conditions of this Agreement.  The Project Companies shall reimburse MAEM for such Fuel at MAEM’s actual cost.  MAEM has entered into or will enter into Fuel hedges and trading activities (including, but not limited to, physical and financial hedges, swaps and options) in connection with MAEM’s Fuel supply obligations pursuant to this Section 3.1.  The costs and revenues associated with such Fuel hedging and trading activities will be attributed to the Asset Book and charged to, or paid to, Project Company as such costs and revenues are actually incurred or received by MAEM, as further described in the calculation of Net Market Revenues pursuant to Section 8.2.

 

3.2                                  Transportation and Scheduling .  MAEM shall schedule or arrange for scheduling services with its Transportation Providers to deliver Fuel to the Fuel Delivery Point.  MAEM shall manage Fuel imbalances on behalf of Project Companies and all costs and revenues associated with Fuel imbalances will be attributed to the Asset Book and charged to, or paid to, Project Company, as such costs and revenues are actually incurred or received by MAEM.

 

3.3                                  Title, Risk of Loss and Indemnity . As between the Parties, MAEM shall be deemed to be in exclusive possession and control (and be responsible for any damages or injury caused thereby) of the Fuel prior to delivery thereof at the Fuel Delivery Point, and Project Company shall be deemed to be in exclusive possession and control (and be responsible for any damages or injury caused thereby) of the Fuel at and after delivery thereof at the Fuel Delivery Point.  MAEM warrants that it will deliver to Project Company all Fuel free and clear of all liens, claims and encumbrances arising prior to delivery thereof at the Fuel Delivery Point.  Title to and risk of loss related to delivered Fuel shall transfer from MAEM to Project Company at the Fuel Delivery Point. Each Party shall indemnify, defend and hold harmless each other Party from any Claims arising from any act or incident occurring during the period when possession, control and title to Products is vested or deemed to be vested in the indemnifying Party, except to the extent

 

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such Claims arise from such other Party’s breach of this Agreement or its gross negligence or willful misconduct.

 

ARTICLE 4.

DIRECT CONTRACTS

 

4.1                                  Direct Contracts .

 

(a)                                   Agency Services .  Notwithstanding anything to the contrary in Sections 2.1 or 3.1 of this Agreement, Project Company may enter into contracts to (i) sell the Products available from the Generating Station directly to a third party rather than selling such Products to MAEM and/or (ii) purchase Fuel required by the Generating Station directly from a third party rather than purchasing such Fuel from MAEM (collectively “Direct Contracts”).  Project Company hereby appoints MAEM as its agent in administering any Direct Contract including, but not limited to, Scheduling, billing, settlements with the ISO (if applicable) and other services required by Project Company pursuant to the terms of such Direct Contract.  Project Company shall continue to pay MAEM the Service Fee for the agency services provided by MAEM during the term of a Direct Contract.  As agent, MAEM shall neither directly purchase or sell, or contract for the purchase or sale, nor take title to or possession and cont