SCHEDULING AND ASSET OPTIMIZATION SERVICES AGREEMENT
BETWEEN
PPM ENERGY, INC.
on the one hand
AND
MMC ENERGY NORTH AMERICA LLC
MMC CHULA VISTA LLC
MMC ESCONDIDO LLC
on the other hand
Dated June 7, 2006
SCHEDULING AND ASSET OPTIMIZATION SERVICES AGREEMENT
THIS SCHEDULING AND ASSET OPTIMIZATION SERVICES AGREEMENT (this
"Agreement"), entered into this 7th day of June, 2006, is between PPM Energy,
Inc., an Oregon corporation ("PPM") on the one hand, and MMC Energy North
America LLC, a Delaware limited liability company ("MMCN"), MMC Chula Vista LLC,
a Delaware limited liability company ("MMCC"), and MMC Escondido LLC, a Delaware
limited liability company ("MMCE"; each and all of MMCN, MMCC and MMCE intending
to be fully and independently, and jointly and severally, liable for each and
all of the obligations of each and all of MMCN, MMCC and MMCE, and collectively
herein referred to as "MMC"; each reference to MMC means and includes any one or
more of MMCN, MMCC, or MMCE as applicable) on the other hand. MMC and PPM are
sometimes hereinafter referred to collectively as the "Parties" and individually
as a "Party."
WHEREAS, PPM is in the business of energy and gas marketing, and provides
services to optimize the fuel use and dispatch of electric generating
facilities; and
WHEREAS, MMC wishes to hire PPM to perform scheduling and asset
optimization services for the Chula Vista Facility and Escondido Facility;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties mutually agree as
follows:
SECTION 1
DEFINITIONS; RULES OF INTERPRETATION
1.1 Defined Terms. Unless otherwise required by the context in which any
term appears, initially capitalized terms used herein shall have the following
meanings:
"AAA" is defined in Section 21.2.
"Affiliate" means, with respect to any entity, each entity that directly
or indirectly controls, is controlled by, or is under common control with, such
designated entity. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any entity, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such entity, whether through the ownership of voting securities
or by contract or otherwise.
"Applicable Pricing Date" is defined in Section 10.1.
"Budgeted Expectations" is defined in Section 6.1.
"Budgets" is defined in Section 6.1.
"CAISO" means the California Independent System Operator Corporation.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"CAISO Protocols" means all present and future protocols as in effect from
time to time under the authority of the CAISO.
"CAISO Tariff" means all present and future protocols as in effect from
time to time under the authority of the CAISO.
"CEC" means the California Energy Commission.
"Chula Vista Facility" is an approximately 35 MW gas-fired electric
generating facility owned by MMCC located in Chula Vista, California.
"Commercial Operation" means for each Facility that the Facility is fully
operational and reliable and is fully interconnected, fully integrated, and
synchronized with, and lawfully permitted to deliver wholesale energy to, the
System. MMC and PPM shall agree as to when MMC believes that the Facility has
achieved Commercial Operation, anticipated to be June 1, 2006. In order to meet
the requirements for Commercial Operation, all of the following events shall
have occurred and remain true and accurate: (1) Start-Up Testing of the Facility
shall have been completed; (2) MMC has obtained or entered into all Required
Facility Documents except where the failure to obtain or enter into a Required
Facility Document would not result in a Material Adverse Effect and provided PPM
copies of any or all of the Material Facility Documents to the extent reasonably
requested by PPM; and (3) the Facility is staffed 24 hours a day, seven days a
week, or with remote start capability and otherwise able to dispatch
instantaneously to precision Net Output and dispatch schedules as provided
herein.
"Commercial Operation Date" means the date that Commercial Operation is
achieved.
"Confidential Business Information" is defined in Section 20.1.
"Contract Interest Rate" means the lesser of the highest rate permitted
under applicable law or 200 basis points per annum plus the rate per annum equal
to the publicly announced prime rate or reference rate for commercial loans to
large businesses in effect from time to time quoted by Citibank, N.A as its
"prime rate". If a Citibank, N.A. prime rate is not available, the applicable
prime rate shall be the announced prime rate or reference rate for commercial
loans in effect from time to time quoted by a bank with $10 billion or more in
assets in New York City, N.Y., selected by the Party to whom interest is being
paid.
"CPUC" means the California Public Utilities Commission
"Delivery Point" means for the Chula Vista Facility, Otay Substation
Radial Tie Line TL6929 and for the Escondido Facility, Radial Tie Line 6933.
"Derating" means a reduction in Facility capacity or generating capability
for any cause, including ambient air temperature, relative humidity, Btu heat
content of fuel, gas pipeline pressure, shaft or other component vibration,
excessive bearing temperatures, or combustion tuning..
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"EEI Agreement" means those certain Edison Electric Institute Master
Agreements for the Purchase & Sale of Energy, with credit support and gas
annexes, entered into by and between PPM on the one hand and MMCC and MMCE on
the other hand, dated May 8, 2006.
"Effective Date" is defined in Section 2.1.
"Electric System Authority" means each of NERC, CAISO, WECC, a regional or
sub-regional reliability council, and any other similar council, organization or
body of recognized standing with respect to the operations of the electric
system in the WECC region or part thereof.
"Energy Costs" is defined in Section 6.1. "Energy Revenue" is defined in
Section 6.4.
"Escondido Facility" is an approximately 35 MW gas-fired electric
generating facility owned by MMCE located in Escondido, CA.
"EWG" means an "exempt wholesale generator" as defined under PUHCA.
"Facility" means the Chula Vista Facility or the Escondido Facility, or
both, as applicable.
"FERC" means the Federal Energy Regulatory Commission.
"FERC 203 Application" means an application to FERC of MMC under Section
203 of the Federal Power Act for Authorization to Dispose of Jurisdictional
Facilities.
"FERC 205 Notice" means a "Notice of Change in Status" to be filed at FERC
by PPM and its subsidiaries with market-rate authorization under Section 205 of
the Federal Power Act referencing PPM's entering into this Agreement.
"FIN 46" is defined in Section 12.11.
"Force Majeure" means an event of Force Majeure as defined and described
in Section 18.1.
"Forced Outage" means NERC Event Types U1, U2 and U3, as set forth in
attached Exhibit N, and specifically excludes any Maintenance Outage or Planned
Outage.
"Fuel Price" means the price of gas as calculated pursuant to Section
10.1.
"Gas Day" means a period of 24 consecutive hours, coextensive with a "day"
as defined by the SoCalGas or SDG&E, as applicable.
"Gas Daily Midpoint Price" is defined in Section 10.1.
"General Order 167" means CPUC General Order No. 167 for the Enforcement
of Maintenance and Operation Standards for Electric Generating Facilities
effective September 2, 2005, as the same may be in effect from time to time.
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Securities and Exchange Commission pursuant to a confidential treatment request.
"Generation Interconnection Agreement" means the agreement entered into
between MMC and Interconnection Provider for each Facility regarding the
Interconnection Facilities.
"GMC" is defined in Section 8.1.1.
"Governmental Authority" means any supranational, federal, state or other
political subdivision thereof, having jurisdiction over MMC, PPM or this
Agreement, including any municipality, township or county, and any
quasi-municipal agency or district or other entity or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any corporation or other entity owned or controlled by
any of the foregoing.
"Interconnection Facilities" means the facilities installed, or to be
installed, for the purpose of interconnecting the Facility to the System,
including electrical transmission lines, upgrades, transformers and associated
equipment, substations, relay and switching equipment, and safety equipment.
"Interconnection Provider" means SDG&E for the Chula Vista Facility, and
SDG&E for the Escondido Facility.
"Letter of Credit" means an irrevocable standby letter of credit in a form
reasonably acceptable to PPM, naming PPM as the party entitled to demand payment
and present draw requests thereunder, which letter(s) of credit: (1) is issued
by a Qualifying Institution; (2) by its terms, permits PPM to draw up to the
face amount thereof for the purpose of paying any and all amounts owing by MMC
hereunder; (3) if issued by a foreign bank with a U.S. branch, permits PPM to
draw upon the U.S. branch; (4) permits PPM to draw the entire amount available
thereunder if such letter of credit is not renewed or replaced at least 30
business days prior to its stated expiration date; and (5) permits PPM to draw
the entire amount available thereunder if such letter(s) of credit are not
increased, replaced or replenished as and when required herein.
"Liquidated Damages" is defined in Section 9.1.
"Local Transportation Shrinkage" means the Pipeline Shrinkage applicable
to the SoCalGas or the SDG&E gas pipeline system, as applicable, used to deliver
gas from the SoCal Border to the applicable Facility, expressed in MMBtu.
"Maintenance Outage" means NERC Event Type MO, as set forth in attached
Exhibit N, and includes any Outage that is not a Forced Outage or a Planned
Outage.
"Market-Place Dispatchable" means for each Facility the period of time
during which it is operated and operational for market-driven dispatch, rather
than operational dispatch, and shall exclude periods during which a Facility is
not in Commercial Operation, is being tested or fine-tuned, has an Outage, or is
otherwise unavailable or only available for operationally driven dispatch,
rather than market-driven dispatch.
"Material Adverse Effect" means any event or condition that (A) actually
has, or is reasonably likely to have, a significant adverse effect on (i) MMC's
ability to own, control or operate a Facility, (ii) PPM's rights to dispatch the
Facility, (iii) a Party's required rights from third parties, or other necessary
abilities to perform its obligations hereunder, (iv) a Facility's ability to
operate, generate and deliver Power Products to the Point of Delivery for
transmission away from the Point of Delivery, (v) a Facility's rights to
transmit Power Products to or through the CAISO, (vi) the business, operations,
properties assets, prospects or condition (financial or otherwise) of a Party,
(B) ***.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"Material Facility Document" means those documents, permits, and
authorizations specified on Exhibit M.
"Mediation Notice" is defined in Section 21.2(a).
"Mediation Procedures" is defined in Section 21.2.
"MMC" is defined in the Recitals.
"MMCC" is defined in the Recitals.
"MMCE" is defined in the Recitals.
"MMCN" is defined in the Recitals.
"Monthly Fee" means $*** per month.
"MW" means megawatt.
"MWh" means megawatt hour. "NERC" means the North American Electric
Reliability Council.
"Net Energy Revenue" is defined in Section 6.4.
"Net Output" means all Output delivered at the Delivery Point.
"Operational Flow Order/Emergency Flow Order Day" or "OFO/EFO" means the
Gas Day(s) declared by SoCal and or SDG&E as an OFO/EFO Gas Day pursuant to the
respective tariff.
"Outage" means a Forced Outage, Maintenance Outage or Planned Outage.
"Output" means all energy and electricity produced by a Facility.
"Pacific Prevailing Time" or "PPT" means Pacific Standard Time or Pacific
Daylight Time, as applicable on the day in question.
"Party" and "Parties" are defined in the Recitals.
"PPM" is defined in the Recitals.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"Permits" means all of the permits, licenses, approvals, certificates,
entitlements and other authorizations issued by, and notices and registrations
submitted to, Governmental Authorities required for the ownership and operation
of the Facility and occupancy of the Premises, including those specified in
Exhibit 3.2.9, and all amendments, modifications, supplements, general
conditions and addenda thereto.
"Pipeline Shrinkage" means the quantity of gas that SoCalGas or SDG&E,
pursuant to their applicable tariffs, recover in-kind from their
customers/shippers to offset gas used in their system operations.
"Pipeline Fixed Cost" means any fixed costs, fees, taxes or penalties
specified in SoCalGas or SDG&E tariffs applicable to the delivery of gas to a
Facility.
"Pipeline Variable Cost" means any variable costs, fees, taxes or
penalties specified in SoCalGas or SDG&E tariffs applicable to the delivery of
gas to a Facility, including Pipeline Shrinkage.
"Planned Outage" means NERC Event Type PO, as set forth in attached
Exhibit N, and specifically excludes any Maintenance Outage or Forced Outage.
"Power Products" ***.
"Premises" means the real property on which the Facility is or will be
located.
"Protocols" are set forth in Exhibit P.
"Prudent Electrical Practices" means any of the practices, methods and
acts engaged in or approved by a significant portion of the electrical utility
industry or any of the practices, methods or acts, which, in the exercise of
reasonable judgment in the light of the facts known at the time a decision is
made, could have been expected to accomplish the desired result at the lowest
reasonable cost consistent with reliability, safety and expedition. Prudent
Electrical Practices is not intended to be limited to the optimum practice,
method or act to the exclusion of all others, but rather to be a spectrum of
possible practices, methods or acts.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended
from time to time and, in the case of full or partial repeal, successor laws and
regulations, including those governing generation or transmission of
electricity.
"Qualifying Institution" means a commercial bank or trust company
organized under the laws of the United States or a political subdivision
thereof, or a United States branch of a foreign bank, with a net worth of at
least $500,000,000 and a credit rating on its long-term senior unsecured debt of
at least "A" by Standard & Poor's Ratings Services or "A2" by ▇▇▇▇▇'▇ Investors
Service, Inc.
"Resource Adequacy Requirements" means requirements applicable to
California generating facilities generally pursuant to those California laws and
regulations promulgated with the stated intent to ensure that adequate physical
generating capacity dedicated to serving all load requirements to meet peak
demand and planning and operating reserves, at or deliverable to locations and
at times as may be necessary to ensure loan area reliability and system
reliability, at just and reasonable rates.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"Required Facility Documents" means all Permits and any other
authorizations, rights, CAISO certifications and agreements now or hereafter
necessary for the operation and maintenance of the Facility and the Premises and
the generation and transmission for energy and receipt of gas, including those
set forth in Exhibit 3.2.9. Nothing set forth in Exhibit 3.2.9 limits the
obligations of MMC to obtain the Permits required hereunder.
"Requirements of Law" means any applicable federal, state and local law,
statute, executive order, regulation, rule, code or ordinance enacted, adopted,
issued or promulgated by any federal, state, local or other Governmental
Authority or regulatory body (including those pertaining to electrical,
building, zoning, environmental and occupational safety and health
requirements).
"SDG&E" means San Diego Gas & Electric.
"Services" is defined in Section 4.1.
"SoCalGas" means the Southern California Gas Company.
"Standard Packages" means full-Gas Day physical deliveries of gas. Any
group of contiguous Gas Days which are traded as one package shall be deemed a
Standard Package and the quantity of gas delivered on each Gas Day included in
such a Standard Package shall be the same. Contiguous Gas Days shall be treated
as a Standard Package if the Parties reasonably expect such Gas Days to be
listed next to the label "Flow date(s):" under the heading "Daily price survey
($/MMBtu)" in the applicable Platts Gas Daily publication or its successors.
Examples of contiguous Gas Days, which are usually traded as one package, are
Saturdays, Sundays, and Mondays.
"Start Costs" is defined in Section 6.2.
"Start-Up Testing" means the start-up tests for the Facility.
"System" means the electric transmission substation and transmission
and/or distribution facilities owned, operated or maintained by Transmission
Provider, which includes the circuit reinforcements, extensions, and associated
terminal facility reinforcements or additions required to interconnect the
Facility, all as set forth in the Generation Interconnection Agreement.
"Term" is defined in Section 2.1.
"Test Energy" means any Output during periods prior to the Commercial
Operation Date.
"Transmission Provider" means CAISO for the Chula Vista Facility, and
CAISO for the Escondido Facility.
"Transmission Service" means, if applicable, the transmission services
pursuant to which the Transmission Provider transmits Output from the Delivery
Point, as applicable.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
"Unwind Fee" means ***.
"WECC" means the Western Electricity Coordinating Council.
1.2 Rules of Interpretation.
1.2.1. General. Unless otherwise required by the context in which
any term appears, (a) the singular includes the plural and vice versa; (b)
references to "Articles," "Sections," "Schedules," "Annexes," "Appendices" or
"Exhibits" (if any) are to articles, sections, schedules, annexes, appendices or
exhibits hereof, (c) all references to a particular entity or an electricity or
gas market price index include a reference to such entity's or index's
successors and (if applicable) permitted assigns; (d) the words "herein,"
"hereof" and "hereunder" refer to this Agreement as a whole and not to any
particular Section or subsection hereof; (e) all accounting terms not
specifically defined herein are to be construed in accordance with generally
accepted accounting principles in the United States of America, consistently
applied; (f) references to this Agreement include a reference to all appendices,
annexes, schedules and exhibits hereto, as the same may be amended, modified,
supplemented or replaced from time to time; (g) the masculine includes the
feminine and neuter and vice versa; (h) "including" means "including, without
limitation" or "including, but not limited to"; and (i) the word "or" is not
necessarily exclusive.
1.2.2. Terms Not to be Construed For or Against Either Party. Each
term hereof shall be construed simply according to its fair meaning and not
strictly for or against either Party. The Parties have jointly prepared this
Agreement, and no term hereof shall be construed against a Party on the ground
that the Party is the author of that provision.
1.2.3. Headings. The headings used for the sections and articles
hereof are for convenience and reference purposes only and shall in no way
affect the meaning or interpretation of the provisions hereof.
1.2.4. Examples. Example calculations and other examples set forth
herein are for purposes of illustration only and are not intended to constitute
a representation, warranty or covenant concerning the example itself or the
matters assumed for purposes of such example. If there is a conflict between an
example and the text hereof, the text shall control.
1.2.5. Joint Obligations of MMC. Any obligation, covenant, waiver,
indemnity or representation of or by "MMC" in this Agreement, an EEI Agreement,
or any document or instrument ancillary hereto or thereto is without limitation,
and an independently enforceable, mutually guarantied, joint and several
obligation, covenant, waiver, indemnity and representation of each and all of
MMCC, MMCE and MMCN.
SECTION 2
TERM
2.1 Term. This Agreement shall become effective on the date hereof
("Effective Date") and, unless earlier terminated as provided herein, shall
remain in effect until six months from the Commercial Operation Date and shall
automatically renew month-to-month thereafter, until terminated on prior written
notice given by either Party at least 60 days before the last day of the month
in which termination is desired to be effective (the "Term"). In the event of a
termination, any outstanding delivery and/or payment obligations, including
those committed to by PPM with third parties respecting the Facilities in
accordance with the Services, shall continue until fully performed or
discharged. If MMC terminates prior to ***, in addition to all other amounts due
hereunder, MMC shall pay the Unwind Fee.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 PPM's Representations and Warranties. PPM represents, covenants, and
warrants to MMC that:
3.1.1. Organization. PPM is duly organized and validly existing
under the laws of the State of Oregon.
3.1.2. Authority. PPM has the requisite corporate, legal, and
regulatory power and authority to enter hereinto and to perform according to the
terms hereof.
3.1.3. Corporate Actions. PPM has taken all actions required to be
taken by it to authorize the execution, delivery and performance hereof and the
consummation of the transactions contemplated hereby.
3.1.4. No Contravention. The execution and delivery hereof do not
contravene any provision of, or constitute a default under, any indenture,
mortgage, security instrument or undertaking, or other material agreement to
which PPM is a party or by which it is bound, or any valid order of any court,
or any regulatory agency or other body having authority to which PPM is subject.
3.1.5. Valid and Enforceable Agreement. This Agreement is a valid
and legally binding obligation of PPM, enforceable against PPM in accordance
with its terms (except as the enforceability hereof may be limited by general
principles of equity or bankruptcy, insolvency, bank moratorium or similar laws
affecting credit-ors' rights generally and laws restricting the availability of
equitable remedies).
3.2 MMC's Representations and Warranties. MMC represents, covenants, and
warrants to PPM that:
3.2.1. Organization. MMCN, MMCC, and MMCE are each limited liability
companies duly organized and validly existing under the laws of Delaware.
3.2.2. Authority.
(a) MMCC (i) leases the Chula Vista Facility pursuant to a
lease with at least five years' term remaining from the date hereof; (ii) is not
a load-serving entity; (iii) has the requisite corporate, legal and regulatory
power and authority to enter hereinto and to perform according to the terms
hereof, including all required regulatory authority to make wholesale sales from
the Facility; (iv) has the power and authority to own and operate its businesses
and properties, to own or lease the Premises and to conduct the business in
which it currently engaged; and (v) is duly qualified and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except in
each case in clauses (iii), (iv), and (v) where the failure would not result in
a Material Adverse Effect.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
(b) MMCE (i) owns the Escondido Facility; (ii) is not a
load-serving entity; (iii) has the requisite corporate, legal and regulatory
power and authority to enter hereinto and to perform according to the terms
hereof, including all required regulatory authority to make wholesale sales from
the Facility; (iv) has the power and authority to own and operate its businesses
and properties, to own or lease the Premises and to conduct the business in
which it currently engaged; and (v) is duly qualified and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except in
each case in clauses (iii), (iv), and (v) where the failure would not result in
a Material Adverse Effect.
(c) MMCN (i) owns 100% of the equity interests in MMCC and
MMCE; (ii) is not a load-serving entity; (iii) has the requisite corporate,
legal and regulatory power and authority to enter hereinto and to perform
according to the terms hereof, including all required regulatory authority to
make wholesale sales from the Facility; (iv) has the power and authority to own
and operate its businesses and properties, to own or lease the property it
occupies and to conduct the business in which it currently engaged; and (v) is
duly qualified and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, except in each case in clauses (iii), (iv), and (v)
where the failure would not result in a Material Adverse Effect.
3.2.3. Actions. MMCC, MMCE, and MMCN have each taken all actions
required to authorize the execution, delivery and performance hereof and the
consummation of the transactions contemplated hereby.
3.2.4. Familiarity with Requirements of Law. MMC is familiar with
the requirements of and can comply with all Requirements of Law, including
General Order 167.
3.2.5. No Contravention. The execution, delivery, performance and
observance by MMCC, MMCE, and MMCN of their obligations hereunder do not and
will not:
(a) contravene, conflict with or violate any provision of any
material Requirements of Law presently in effect having applicability to MMC or
any of MMC's members;
(b) require the consent or approval of or material filing or
registration with any Governmental Authority or other person other than such
consents and approvals which are (i) set forth in Exhibit 3.2.9 or (ii) required
in connection with the operation or ownership of the Facility, described in
Exhibit 3.2.9 and expected to be obtained in due course;
(c) Except to the extent it would not result in a Material
Adverse Effect, result in a breach of or constitute a default under any material
agreement, instrument or undertaking to which MMC is a party or by which the
Premises or MMC is bound.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
3.2.6. Valid and Enforceable Agreement. This Agreement is a valid
and legally binding obligation, enforceable in accordance with its terms (except
as the enforceability hereof may be limited by general principles of equity or
bankruptcy, insolvency, bank moratorium or similar laws affecting creditors'
rights generally and laws restricting the availability of equitable remedies).
3.2.7. Litigation. No litigation, arbitration, investigation or
other proceeding is pending or, to the best of MMC's knowledge, threatened
against any of MMCN, MMCC or MMCE, or against any of their members or managers
with respect hereto or the transactions contemplated hereunder.
3.2.8. Accuracy of Information. No exhibit, contract, report or
document furnished by MMC to PPM in connection with this Agreement, or the
negotiation or execution hereof, contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the statements
contained therein not misleading.
3.2.9. Required Facility Documents. All Required Facility Documents
are listed on Exhibit 3.2.9, are held by MMC and are valid and in full force and
effect with any applicable appeal periods having expired. Pursuant to the
Required Facility Documents, MMC holds as of the Effective Date, or will hold by
the Commercial Operation Date, and covenants that it will hold during the Term,
all rights and entitlements necessary to own and operate the Facility and to
perform its duties under and deliver Net Output to PPM in accordance with this
Agreement. No unusual or burdensome conditions are expected by MMC to be placed
upon, or created by, any of the Required Facility Documents and the anticipated
operation of the Facility complies with all applicable restrictive covenants
affecting the Premises and all Requirements of Law.
3.3 No Other Representations or Warranties. Each Party acknowledges that
it has entered hereinto in reliance upon only the representations and warranties
set forth in this Agreement, and that no other representations or warranties
have been made by the other Party with respect to the subject matter hereof.
3.4 Continuing Nature of Representations and Warranties; Notice. The
representations and warranties set forth in this Section are made as of the
Effective Date and deemed made continually throughout the Term. If at any time
during the Term, any Party obtains actual knowledge of any event or information
which causes any of the representations and warranties in this Section 3 to be
materially untrue or misleading, such Party shall provide the other Party with
written notice of the event or information, the representations and warranties
affected, and the action, if any, which such Party intends to take to make the
representations and warranties true and correct. The notice required pursuant to
this Section shall be given as soon as practicable after the occurrence of each
such event.
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***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
SECTION 4
SERVICES
4.1.1. Services. PPM will provide, and MMC hereby grants PPM the
authority to perform and provide, the following scheduling and asset
optimization services to MMC for each Facility from and after the Commercial
Operation Date for such facility (the "Services"): ***.
4.2 Direct Payment. ***.
4.3 Exclusivity. ***.
4.4 Ultimate Control. ***.
SECTION 5
FUTHER COVENANTS RESPECTING SERVICES AND FACILITIES
5.1 Protocols. The Parties shall agree upon day ahead and intraday
protocols for provision of the Services. These protocols shall include and not
be limited to the Protocols.
5.2 Maintenance of Authorities. MMC agrees that it will, and maintain such
personnel and authorities, Required Facility Documents, rights and
authorizations as are necessary to enable it to, follow any instructions issued
to it by PPM in connection with the foregoing, including the dispatch
instantaneously to precision Net Output and the dispatch of schedules.
5.3 MMC Operational Control. MMC will remain in charge of and responsible
for the operations of the Facilities and the maintenance of the Premises, and
will be responsible to maintain all contracts, rights, Required Facility
Documents, Requirements of Law, and tariffs with third parties and Governmental
Authorities as necessary for the operation of the Facilities, sale and
transportation of natural gas and transmission of electricity.
5.4 EWG. MMC covenants that during the Term MMC shall, to the extent
required to prevent MMC or any Facility from being regulated as a "Public
Utility" pursuant to PUHCA or otherwise, cause MMC, as applicable, to be an EWG.
During the Term, MMC shall maintain its EWG status (to the extent it is required
by law to do so) and its authority to perform its obligations hereunder.
SECTION 6
PRICING OF SERVICES
6.1 Energy Costs. ***.
6.2 Inclusions. ***.
6.3 Exclusions. ***.
6.4 Energy Revenue. ***.
6.5 Payment to PPM. ***.
6.6 Limitation on PPM Obligations and Liabilities. Without limiting the
generality of the limitations on the obligations or liabilities of PPM set forth
elsewhere herein: ***
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Securities and Exchange Commission pursuant to a confidential treatment request.
6.7 Further Terms Respecting Pricing. Without limiting the foregoing:***.
6.8 Monthly Scheduling Fee. In addition to the other amounts due
hereunder, MMC shall pay PPM each month the Monthly Fee for each month or part
thereof during the Term.
6.9 ***.
SECTION 7
CONDITIONS PRECEDENT
7.1 Conditions Precedent. The obligations of the Parties under this
Agreement are subject to the following conditions precedent:
7.1.1. MMC's proof of ownership and right to conduct itself with the
Facilities and their interconnection and fuelling in the manner contemplated
herein.
7.1.2. The Parties meeting all Requirements of Law and having all
authorities required by all applicable Electric System Authorities to perform
this Agreement and the transactions contemplated herein.
7.1.3. MMC and the Facilities will have all required emissions
credits, CAISO certifications, FERC market-based rate authority, CEC and CPUC
authorizations and approvals, interconnection agreements and authorizations and
Required Facility Documents, in the correct name, as are required to perform
this Agreement and the transactions contemplated hereunder. Specifically, MMC
shall be responsible and confirm to PPM that is has complied with all
requirements under sections 8 and 9 of the "California ISO Generator
Interconnection Manual" located on the internet at:
http:/lwww.caiso.comldocs/2003/06/09/200306090024421491.doc
7.1.4. MMC's establishment of all record-keeping and other
capabilities required for compliance with General Order 167.
7.1.5. The Parties shall have all such control over any rights to
deal with energy and gas as are required to perform this Agreement.
SECTION 8
PPM AS SCHEDULING COORDINATOR AND CONTRACT MARKETER
8.1 Scheduling Coordinator. PPM shall be the Scheduling Coordinator with
the CAISO for the Facilities (or MMC, as applicable) during the term. MMC hereby
indemnifies and agrees to hold PPM harmless from all liabilities associated with
so serving, including any charges later assessed to the marketplace or certain
classes of participants in the marketplace as a whole by CAISO, except to the
extent such liabilities result from the gross negligence, fraud, or willful
misconduct of PPM. PPM will perform its scheduling services hereunder as
Scheduling Coordinator as defined in the CAISO Tariff and pursuant to and
consistent with the CAISO tariffs, protocols, operating procedures, and
scheduling practices. PPM will provide these services in accordance with
industry practice and the CAISO Protocols.
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Securities and Exchange Commission pursuant to a confidential treatment request.
8.1.1. PPM shall pass through and ▇▇▇▇ MMC as part of Energy Costs
for all CAISO fees, penalties and charges attributable to the services provided
by PPM to MMC as Scheduling Coordinator. Subject to the provisions of Section
8.1, MMC shall be responsible for all CAISO fees, penalties and charges,
including Grid Management Charges ("GMC") applied to deviation amounts, market
transmission transaction charges, including minimum load cost compensation
charges, uninstructed energy settlements, congestion charges, allocation of
excess and intermit-tent resources net deviation allocation charge, and
associated credit charges.
8.1.2. MMC shall assume all liability and reimburse PPM for any for
any fees, penalties, liabilities, assessments, or charges assessed by the CAISO
that are part of Energy Costs whether billed to PPM or MMC, or that are incurred
by PPM as a result of MMC's negligent action failure to abide by the CAISO
Tariff and CAISO Protocols. MMC and PPM shall cooperate to minimize imbalances
and fees, liabilities, assessments, or similar charges assessed by the CAISO to
the extent possible.
8.2 Contract Marketer. With respect to all of MMC's contracts and rights
with respect to gas and gas transportation, PPM will be designated as "Contract
Marketer" as defined by the appropriate tariffs as may be changed from time to
time. MMC will indemnify and hold PPM harmless from all liabilities associated
with so serving.
SECTION 9
FURTHER COVENANTS RESPECTING ENERGY
9.1 Liquidated Damages. In addition to all other amounts due hereunder,
and notwithstanding any provision to the contrary in the EEI Agreement or any
definition or product definition therein or transaction thereunder, MMC shall
pay PPM "Liquidated Damages" representing the cost to PPM of replacement Power
Products, local distribution company charges or CAISO charges or penalties to
cover a Forced Outage from a Facility, or any part thereof, or fees, penalties,
charges, costs or losses otherwise incurred by PPM due to any action or inaction
by MMC personnel, agents or contractors, or failures of MMC automatic dispatch
systems, or failure of MMC internal or external communications, or default under
or termination of this Agreement, except to the extent such action or inaction
was a result of or in connection with the fraud, willful misconduct, or gross
negligence of PPM. Without limiting the generality of the foregoing, MMC
understands that Power Products may be remarketed by PPM in a manner that may
render PPM liable to others for damages for such Power Products or parts thereof
that are financially firm even if unit contingent, and that MMC is liable
hereunder to reimburse PPM for any costs or losses for failure to deliver such
Power Products or part thereof as Liquidated Damages. Liquidated Damages shall
also include amounts due from MMC denominated as such pursuant to Section 10.1.
MMC shall be responsible for Liquidated Damages for periods respecting which the
Facilities are reported by MMC as available but do not perform as expected, and
result in actual Liquidated Damages to PPM.
9.2 Title and Risk of Loss of Net Output. MMC shall deliver Net Output
free and clear of all liens, claims and encumbrances. Title to and risk of loss
of all Net Output shall transfer from MMC to PPM upon its delivery to PPM at the
Delivery Point. MMC shall be deemed to be in exclusive control of, and
responsible for, any damage or injury caused by, all energy up to and at the
Delivery Point. PPM shall be deemed to be in exclusive control of, and
responsible for, any damages or injury caused by, Net Output from the Delivery
Point.
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Securities and Exchange Commission pursuant to a confidential treatment request.
9.3 Further Assurances. At PPM's request, the Parties shall execute such
documents and instruments as may be reasonably required to effect recognition
and transfer of the Power Products to PPM.
SECTION 10
FURTHER COVENANTS RESPECTING NATURAL GAS,
10.1 Fuel Price. ***.
SECTION 11
PERFORMANCE OF THE FACILITY
11.1 Facility Dispatch. Subject to Section 4.4, MMC shall cause the
Facilities to perform as directed by PPM as follows:
11.1.1. Dispatch and scheduling of Power Products as determined by
PPM pursuant to the terms hereof.
11.1.2. Facility turbine starts, as determined by PPM.
11.1.3. Facility turbine ramp rates, as each Facility is technically
capable of performing.
11.2 Costs and Charges. MMC shall be responsible for paying or satisfying
when due all costs or charges imposed in connection with the scheduling and
delivery of Net Output up to and at the Delivery Point, including transmission
costs, Transmission Service, and transmission line losses. Without limiting the
generality of the foregoing, MMC shall bear all costs associated with the
modifications to Interconnection Facilities or the System (including system
upgrades).
11.3 Costs of Ownership and Operation. Without limiting the generality of
any other provision hereof, MMC shall be solely responsible for paying when due
(a) all costs of owning and operating the Facility in compliance with existing
and future Requirements of Law and the terms and conditions hereof, and (b) all
taxes and charges (however characterized) now existing or hereinafter imposed on
or with respect to the Facilities, its operation, or on or with respect to
emissions or other environmental impacts of the Facilities, including any such
tax or charge (however characterized) to the extent payable by a generator of
such energy.
11.4 Station Service. MMC shall be responsible for arranging and
obtaining, at its sole risk and expense, any station service required by the
Facilities.
11.5 Taxes. MMC shall pay or cause to be paid when due, or reimburse PPM
for, all existing and any new sales, use, excise, ad valorem, and any other
similar taxes, imposed or levied by any Governmental Authority on the generation
or on the sale of Power Products, regardless of whether such taxes are imposed
on PPM or MMC under Requirements of Law.
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Securities and Exchange Commission pursuant to a confidential treatment request.
11.6 Standard of Facility Operation.
11.6.1. General. At MMC's sole cost and expense, MMC shall operate,
maintain and repair the Facility and the Interconnection Facilities in
accordance with (i) the applicable and mandatory standards, criteria and formal
guidelines of FERC and any Electric System Authority; (ii) the Required Facility
Documents; (iii) the Generation Interconnection Agreement; (iv) all Requirements
of Law; (v) the requirements hereof, and (vi) Prudent Electrical Practice.
11.6.2. CAISO Standards. PPM and MMC shall perform all generation,
scheduling and transmission services in compliance with all applicable operating
policies, criteria, rules, guidelines and tariffs of the CAISO and Prudent
Electrical Practices. MMC shall comport and comply with any conditions,
modifications, amendments or additions to the applicable CAISO Tariff and
protocols.
11.7 Fines and Penalties.
11.7.1. MMC shall pay when due all fines, penalties, or legal costs
incurred by MMC or for which MMC is legally responsible for noncompliance by
MMC, its agents, employees, contractors or subcontractors, with respect to any
provision hereof, any agreement, commitment, obligation or liability incurred in
connection with this Agreement or the Facility or any Requirements of Law,
except where such fines, penalties or legal costs are being contested in good
faith by MMC, its agents or contractors through appropriate proceedings and MMC
has set aside and funded adequate reserves or posted security to cover such
fines, penalties or legal costs in the event of an adverse determination to the
extent required under generally accepted accounting principles.
11.7.2. If fines, penalties, or legal costs are assessed against PPM
by any Governmental Authority due to noncompliance by MMC with any Requirements
of Law, or if the performance of MMC is delayed or stopped by order of any
Governmental Authority due to MMC's noncompliance with any Requirements of Law,
MMC shall indemnify and hold harmless PPM against any and all losses,
liabilities, damages, and claims suffered or incurred by PPM as a result (except
to the extent MMC's non-compliance resulted from or was in connection with the
gross negligence, fraud, or willful misconduct of PPM).
11.7.3. MMC shall reimburse PPM for all fees, damages, or penalties
imposed on PPM by any Governmental Authority, other person or to other utilities
for violations to the extent caused by a default by MMC or a failure of
performance by MMC hereunder (except to the extent MMC's default or failure to
perform was caused by or resulted from the gross negligence, fraud, or willful
misconduct of PPM).
11.8 Interconnection. MMC shall be responsible for the costs and expenses
associated with interconnection of the Facility at the Delivery Point, including
the costs of any System upgrades beyond the Delivery Point necessary to
interconnect the Facility with System and to allow the delivery of energy to the
Delivery Point. MMC agrees that it shall have no claims hereunder against PPM
with respect to any requirements imposed by or damages caused by (or allegedly
caused by) acts or omissions of Interconnection Provider, in connection with the
Generation Interconnection Agreement or otherwise.
11.9 Coordination with System. MMC shall be responsible for the
coordination and synchronization of the Facility's equipment with the System,
and shall be solely responsible for (and shall defend and hold PPM harmless
against) any damage that may occur as a direct result of MMC's breach of the
Generation Interconnection Agreement, except to the extent MMC's breach was
caused by or was a result of the gross negligence, fraud, or willful misconduct
of PPM).
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Securities and Exchange Commission pursuant to a confidential treatment request.
11.10 Outages.
11.10.1. Planned Outages. Except as otherwise provided herein, MMC
shall only schedule Planned Outage during the months of March, April and May,
except to the extent a Planned Outage is reasonably required (i) to enable a
vendor to satisfy a guarantee requirement in a situation in which the vendor is
not otherwise able to perform the guarantee work at a time other than during one
of the months specified above or (ii) to comply with Prudent Electrical
Practices and such work is not otherwise reasonably able to be performed during
the above-specified months. MMC shall provide PPM with an annual forecast of
Planned Outages for each Contract Year at least one month, but no more that
three months, before the first day of that Contract Year, and shall promptly
update such schedule, or otherwise change it only to the extent that MMC is
reasonably required to change it in order to comply with Prudent Electrical
Practices.
11.10.2. Maintenance Outages. If MMC reasonably determines that it
is necessary to schedule a Maintenance Outage, MMC shall notify PPM of the
proposed Maintenance Outage as soon as practicable but in any event at least
five days before the Outage begins. Upon such notice, the Parties shall plan the
Maintenance Outage to mutually accommodate the reasonable requirements of MMC
and the service obligations of PPM; provided, however, that MMC shall take all
reasonable measures and use best efforts consistent with Prudent Electrical
Practices to not schedule any Maintenance Outage during the months of March,
April and May. Notice of a proposed Maintenance Outage shall include the
expected start date and time of the Outage, the amount of generation capacity of
the Facility that will not be available, and the expected completion date and
time of the Outage. MMC shall give PPM notice of the Maintenance Outage within
ten minutes after MMC determines that the Maintenance Outage is necessary. PPM
shall promptly respond to such notice and may request reasonable modifications
in the schedule for the Outage. MMC shall use all reasonable efforts to comply
with any request to modify the schedule for a Maintenance Outage provided that
such change has no substantial impact on MMC. MMC shall notify PPM of any
subsequent changes in generation capacity available to PPM as a result of such
Maintenance Outage or any changes in the Maintenance Outage completion date and
time. As soon as practicable, any notifications given orally shall be confirmed
in writing. MMC shall take all reasonable measures and exercise its best efforts
consistent with Prudent Electrical Practices to minimize the frequency and
duration of Maintenance Outages.
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Securities and Exchange Commission pursuant to a confidential treatment request.
11.10.3. Forced Outages. MMC shall within ten minutes provide to PPM
an oral report, via telephone to a number specified by PPM, of any Forced Outage
of the Facility. This report shall include the amount of the generation capacity
of the Facility that will not be available because of the Forced Outage and the
expected return date of such generation capacity. MMC shall within ten minutes
update the report as necessary to advise PPM of changed circumstances. MMC shall
take all reasonable measures and exercise its best efforts consistent with
Prudent Electrical Practices to avoid Forced Outages and to minimize their
duration.
11.10.4. Notice of Deratings and Outages. Without limiting the
foregoing, MMC will inform PPM, via telephone to a number specified by PPM, of
any major limitations, restrictions, Deratings or Outages known to MMC affecting
the Facility for the following day and will within ten minutes update MMC's
notice to the extent of any material changes in this information.
11.11 Expansion. If MMC elects to increase, at its own expense, the
ability of the Facility to deliver Net Output through any means, including
replacement or modification of turbines or related infrastructure, such Facility
as modified shall be subject to the terms hereof, provided that the Monthly Fee
shall be increased by the same percentage by which the Net Output capability of
the Facility was increased.
SECTION 12
FACILITY INFORMATION
12.1 Metering. Metering shall be performed at the location and in the
manner specified in the Generation Interconnection Agreement. All quantities of
energy purchased shall reflect Net Output. MMC shall bear all costs relating to
all metering equipment.
12.2 Meter Data. Upon written request by PPM, MMC shall promptly request
the Interconnection Provider or Transmission Provider in writing to provide any
and all meter or other data associated with the Facility and Net Output directly
to PPM. PPM shall have the right to provide such data to any Electric System
Authority.
12.3 PPM's Right to Monitor. During the Term, MMC shall permit PPM and its
advisors and consultants to perform such examinations, inspections, and quality
surveillance as, in PPM's reasonable judgment, are appropriate and advisable,
provided such activities take place during business hours and after no less than
three days' written notice.
12.4 Exculpation. PPM is under no obligation to exercise any of these
monitoring rights provided for herein and, having exercised any such rights, is
under no obligation to communicate or take action with respect to any
information discovered as a result of monitoring. Without limiting the
generality of the foregoing, although PPM will in good faith pass on to MMC
information discovered of which it becomes aware, PPM shall have no liability to
MMC for failing to advise it or incorrectly advising it, of associated
activities or omissions, including any condition, damages, circumstances,
infraction, fact, act, omission or disclosure discovered or not discovered by
PPM with respect to the Facility or any contractor.
12.5 Electronic Communications. MMC shall provide such real time data to
PPM on the same basis on which MMC receives the data (e.g., if MMC receives the
data in four second intervals, PPM shall also receive the data in four second
intervals). MMC shall install a dedicated direct communication circuit (which
may be by common carrier telephone or internet connection) between PPM and the
control center in the Facility's control room or such other communication
equipment as the Parties may agree. MMC shall maintain an electronic fault log
of operations of the Facility during each hour of the Term commencing on the
Commercial Operation Date. MMC shall provide PPM with a copy of the electronic
fault log within 30 days after the end of the calendar month to which the fault
log applies.
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Securities and Exchange Commission pursuant to a confidential treatment request.
12.6 Maintenance Information. MMC shall provide to PPM a report
summarizing the results of maintenance performed during each Maintenance Outage,
Planned Outage, and any Forced Outage, and upon request of PPM any of the
technical data obtained in connection with such maintenance;
12.7 Documents to Governmental Authorities. After sending or filing any
statement, application, and report or any document with any Governmental
Authority or Electric System Authority relating to operation and maintenance of
the Facility, MMC shall promptly provide to PPM a copy of the same.
12.8 Notice of Material Adverse Events. MMC shall promptly notify PPM of
receipt of written notice or actual knowledge by MMC of the occurrence of any
event of default under any material agreement to which MMC is a party and of any
other development, financial or otherwise, which would have a material adverse
effect on MMC or a Facility.
12.9 Notice of Litigation. Following its receipt of written notice or
actual knowledge of the commencement of any action, suit, and proceeding before
any court or Governmental Authority which would, if adversely determined,
materially and adversely affect the ability of MMC, MMCC, or MMCE to perform its
obligations under this Agreement or cause a Material Adverse Effect, MMC shall
promptly give notice to PPM of the same.
12.10 Additional Information. MMC shall provide to PPM such other
information respecting the condition or operations of MMCC, MMCE or the
Facilities as PPM may, from time to time, reasonably request.
12.11 Financial and Accounting Information. If PPM or one of its
Affiliates determines that, under the Financial Accounting Standards Board's
revised Interpretation No. 46, Consolidation of Variable Interest Entities ("FIN
46"), it may hold a variable interest in MMC, but it lacks the information
necessary to make a definitive conclusion, MMC hereby agrees to provide
sufficient financial and ownership information so that PPM or its Affiliate may
confirm whether a variable interest does exist under FIN 46. If PPM or its
Affiliate determines that, under FIN 46, it holds a variable interest in MMC,
MMC hereby agrees to provide sufficient financial and other information to PPM
or its Affiliate so that PPM may properly consolidate the entity in which it
holds the variable interest and/or present the disclosures required by FIN 46.
PPM shall reimburse MMC for MMC's reasonable costs and expenses, if any,
incurred in connection with PPM's requests for information under this Section.
Notwithstanding the foregoing, MMC and PPM acknowledge and agree that, in the
event of such a determination, they shall endeavor to make such commercially
reasonable amendments or modifications to this Agreement so as to avoid such
treatment under FIN 46.
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Securities and Exchange Commission pursuant to a confidential treatment request.
12.12 Access Rights. Upon reasonable prior notice and subject to the
prudent safety requirements of MMC, MMC shall provide PPM and its authorized
agents, employees and inspectors with reasonable access during business hours to
the Facilities for all purposes.
SECTION 13
CREDIT
13.1 Default Security. Within five days of the Effective Date, and
continuing at all times until 98 days following the end of the Term, MMC shall
post and maintain in favor of PPM a Letter of Credit in the amount of $***. If
MMC fails to pay any amount due to PPM within the time provided for payment
hereunder, PPM shall be entitled to and shall draw upon the Letter of Credit
from time to time an amount equal to the amount unpaid, and MMC shall be
required to replenish or reinstate the Letter of Credit up to the amount
specified in this Section. Without limiting its other remedies hereunder,
subject to the provisions set forth herein, PPM shall also be entitled to draw
upon the Letter of Credit for damages arising if this Agreement is terminated
because of MMC's default.
13.2 Annual and Quarterly Financial Statements. If requested by PPM from
time to time, MMC shall provide PPM with copies of its most recent annual and
quarterly financial statements prepared in accordance with generally accepted
accounting principles; provided, however, to the extent such financial
statements are, or will be, otherwise publicly available, PPM shall obtain the
financial statement through such publicly available sources.
13.3 Security is Not a Limit on MMC's Liability. The security contemplated
by this Section: (a) constitutes security for, but is not a limitation of, MMC's
obligations hereunder, and (b) shall not be PPM's exclusive remedy for MMC's
failure to perform in accordance with this Agreement.
SECTION 14
▇▇▇▇▇▇▇▇, COMPUTATIONS AND PAYMENTS
14.1 Payment Settlement. Settlement of all payments shall occur by the
25th day of the month following the month in which performance was rendered and
if such 25th day is not a business day then on the next business day occurring
after such 25th day; provided, however, that all such settlements shall be
subject to adjustment when the true costs are received from the CAISO, generally
90 days from the end of a month, but in no event shall an adjustment be made
more than one year after the end of the applicable month.
14.2 Offsets. PPM may offset any payment due hereunder against amounts
owing from MMC to PPM pursuant hereto or any other agreement between the
Parties.
14.3 Interest on Late Payments. Any amounts that are not paid when due
hereunder shall bear interest at the Contract Interest Rate from the date due
until paid.
14.4 Disputed Amounts. If either Party, in good faith, disputes any amount
due pursuant to an invoice rendered hereunder, such Party shall notify the other
Party of the specific basis for the dispute and, if the invoice shows an amount
due, shall pay that portion of the statement that is undisputed, on or before
the due date. Any such notice shall be provided within one year of the date of
the invoice in which the error first occurred. If any amount disputed by such
Party is determined to be due the other Party, or if the Parties resolve the
payment dispute, the amount due shall be paid within five days after such
determination or resolution, along with interest at the Contract Interest Rate
from the date due until the date paid.
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Securities and Exchange Commission pursuant to a confidential treatment request.
14.5 Audit Rights. Each Party, through its authorized representatives,
shall have the right, at its sole expense upon reasonable notice and during
normal business hours, to examine and copy the records of the other Party to the
extent reasonably necessary to verify the accuracy of any statement, charge or
computation made hereunder or to verify the other Party's performance of its
obligations hereunder. Upon request, each Party shall provide to the other Party
statements evidencing the quantities of energy delivered at the Delivery Point.
If any statement is found to be inaccurate, a corrected statement shall be
issued and any amount due thereunder will be promptly paid and shall bear
interest at the Contract Interest Rate from the date of the overpayment or
underpayment to the date of receipt of the reconciling payment. Notwithstanding
the foregoing, no adjustment shall be made with respect to any statement or
payment hereunder unless a Party questions the accuracy of such payment or
statement within two years after the date of such statement or payment.
SECTION 15
DEFAULTS AND REMEDIES
15.1 Defaults by Either Party. The occurrence of any of the following
constitutes an event of default by that Party:
15.1.1. A Party's failure to make a payment when due hereunder if
the failure is not cured within ten days after such payment is due.
15.1.2. A Party (i) makes an assignment for the benefit of its
creditors; (ii) files a petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy or similar law for the protection of creditors, or has such a
petition filed against it and such petition is not withdrawn or dismissed within
60 days after such filing; (iii) becomes insolvent; or (iv) is unable to pay its
debts when due.
15.1.3. A Party's breach of a representation or warranty made by
that Party herein if the breach is not cured within 30 days after the
non-defaulting Party gives the defaulting Party a notice of the default.
15.1.4. An Event of Default under an EEl Agreement.
15.1.5. A Party otherwise fails to perform any material obligation
imposed upon that Party by this Agreement if the failure is not cured within 30
days after the non-defaulting Party gives the defaulting Party notice of the
default; provided, however, that, upon written notice from the defaulting Party,
this 30 day period shall be extended by an additional 60 days if (a) the failure
cannot reasonably be cured within the 30 day period despite diligent efforts,
(b) the default is capable of being cured within the additional 60 day period,
and (c) the defaulting Party commences the cure within the original 30 day
period and is at all times thereafter diligently and continuously proceeding to
cure the failure.
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Securities and Exchange Commission pursuant to a confidential treatment request.
15.2 Defaults by MMC. The occurrence of any of the following constitutes
an event of default by MMC:
15.2.1. MMC's failure to post, increase, maintain or replenish the
Letter of Credit.
15.2.2. MMC's default under any agreement with third parties
relating to the ownership, interconnection, operation, transmission from,
maintenance or repair of the Facility, and failure to cure such default within
the time required under such agreement, after the expiration of applicable
notice, cure and waiver periods, if such default results in a Material Adverse
Effect.
15.2.3. MMC's receipt of notice of foreclosure of the Facility or
any part thereof by a lender, mechanic or materialman, or any other holder of an
unpaid lien or other charge or encumbrance if the same results in a Material
Adverse Effect.
15.2.4. MMC otherwise causes a Material Adverse Effect on PPM.
15.2.5. Violation of General Order 167.
15.2.6. MMC's sale of any Power Products from a Facility to a party
other than PPM.
15.2.7. MMC's failure to maintain any Material Facility Document,
after the expiration of applicable notice, cure and waiver periods.
15.3 Termination and Remedies. Upon the occurrence of, and during the
continuation of, an event of default hereunder, the non-defaulting Party shall
be entitled to all remedies available hereunder and at law or in equity, and may
terminate this Agreement by notice to the other Party designating the date of
termination and delivered to the defaulting Party no less than ten days before
such termination date. Further, during the continuation of default by MMC, and
until it has recovered all damages incurred on account of such default by MMC,
without exercising its termination right, PPM may offset its damages against any
payment due MMC. The rights contemplated by this Agreement are cumulative and
not exclusive such that the exercise of one or more rights shall not constitute
a waiver of any other rights. In the event of a termination hereof, each Party
shall pay or turn over to the other all amounts due the other hereunder for all
periods prior to termination, subject to offset by the non-defaulting Party
against damages incurred by such Party. The provisions of Sections 1, 6.5, 6.7,
8, 9, 11.7, 11.9, 12.11, 13.1, 14, 15.3, 16, 20, 21 and 25 shall survive the
termination hereof.
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Securities and Exchange Commission pursuant to a confidential treatment request.
SECTION 16
INDEMNIFICATION AND LIMITS ON LIABILITY
16.1 Indemnities.
16.1.1. Indemnity by MMC. MMC shall release, indemnify and hold
harmless PPM, its directors, officers, agents, and representatives against and
from the claims of any third party for any and all loss, fines, penalties,
claims, actions or suits, including costs and attorney's fees, both at trial and
on appeal, whether or not suit is brought, resulting from, or arising out of or
in any way connected with (i) the performance by MMC of its obligations
hereunder, (ii) any violation of General Order 167, and (iii) the existence,
discovery, release or discharge of any environmental contamination on or under
the Premises, including any loss, claim, action or suit, for or on account of
injury, bodily or otherwise, to, or death of, persons, or for damage to, or
destruction or economic loss of property, excepting only to the extent such
loss, claim, action or suit as may be caused by the fault, fraud, or gross
negligence of PPM, its directors, officers, employees, agents or
representatives.
16.1.2. Indemnity by PPM. PPM shall release, indemnify and hold
harmless MMC, its directors, officers, agents, and representatives against and
from the claims of any third party for any and all loss, fines, penalties,
claims, actions or suits, including costs and attorney's fees, both at trial and
on appeal, whether or not suit is brought, resulting from, or arising out of or
in any way connected with the performance by PPM of its obligations hereunder,
including any loss, claim, action or suit, for or on account of injury, bodily
or otherwise, to, or death of, persons, or for damage to, or destruction or
economic loss of property, excepting only to the extent such loss, claim, action
or suit as may be caused by the fault, fraud, or gross negligence of MMC, its
directors, officers, employees, agents or representatives.
16.2 Limitation on Damages. ***.
SECTION 17
INSURANCE
17.1 Required Policies and Coverages. Without limiting any liabilities
or any other obligations of MMC hereunder, MMC shall secure and continuously
carry with an insurance company or companies rated not lower than "A-" by the
A.M. Best Company the insurance coverage specified on Exhibit 17 during the
periods specified on Exhibit 17.
17.2 Certificates and Certified Copies of Policies. MMC shall provide
PPM with a certified "true and correct" copy of the insurance policies,
provisions and endorsements contemplated by Exhibit 17 within ten days after the
date by which such policies are required to be obtained (as set forth in Exhibit
17). The certificate (a) shall not include the legend "certificate is not
evidence of coverage" or any statement with similar effect, (b) the insurer
shall have a firm obligation to provide PPM with 30 days' prior written notice
of coverage modifications (not merely an obligation to "endeavor" or words of
similar effect), and (c) shall be endorsed by a person who has authority to bind
the insurer. Within 30 days after the date by which such policies are required
to be obtained, MMC shall provide PPM with a certified "true and correct" copy
of the insurance policies, provisions and endorsements contemplated by Exhibit
17. If any coverage is written on a "claims-made" basis, the certification
accompanying the policy shall conspicuously state that the policy is "claims
made."
23
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
SECTION 18
FORCE MAJEURE
18.1 Definition of Force Majeure. "Force Majeure" or "an event of Force
Majeure" means an event that (a) is not reasonably anticipated as of the date
hereof, (b) is not within the reasonable control of the Party affected by the
event, (c) is not the result of such Party's negligence or failure to act, and
(d) could not be overcome by the affected Party's use of due diligence in the
circumstances. Force Majeure includes, but is not restricted to, events of the
following types (but only to the extent that such an event, in consideration of
the circumstances, satisfies the tests set forth in the preceding sentence):
acts of God; fire; explosion; civil disturbance; sabotage; action or restraint
by court order or Governmental Authority not arising out of failure to obtain a
Required Facility Document (as long as the affected Party has not applied for or
assisted in the application for, and has opposed to the extent reasonable, such
court or government action). Notwithstanding the foregoing, none of the
following constitute Force Majeure: (i) Fuel Cost or availability of fuel to
operate the Facility; (ii) economic hardship, including lack of money; (iii) for
an MMC claim of Force Majeure, delay or failure of MMC to obtain any Required
Facility Document; (iv) MMC's ability to sell the Power Products at a price
greater than the price set forth in this Agreement; or (v) a Forced Outage not
caused by a Force Majeure event.
18.2 Force Majeure Does Not Affect Other Obligations. No obligations of
either Party that arose before the Force Majeure causing the suspension of
performance or that arise after the cessation of the Force Majeure shall be
excused by the Force Majeure. The Monthly Fee shall continue to be due and
payable during the pendency of a Force Majeure. In no event shall a Force
Majeure or a Forced Outage excuse MMC from paying Liquidated Damages or the
Unwind Fee whenever applicable.
SECTION 19
NOTICES
19.1 Addresses and Delivery Methods. All notices, requests, statements
or payments shall be made to the addresses set out below. Notices required to be
in writing shall be delivered by letter, facsimile or other documentary form.
Notice by facsimile or hand delivery shall be deemed to have been given when
received or hand delivered. Notice by overnight mail or courier shall be deemed
to have been given on the date and time evidenced by the delivery receipt.
To MMC ▇▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
MMC Energy, Inc.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Telefacsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
To PPM: PPM Energy, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Contract Administration
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: PPM Energy, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Legal Department
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇ and (925)
943-3105
24
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
19.2 Changes of Address. The Parties may change any of the persons to
whom such notices are addressed, or their addresses, by providing written
notices thereof in accordance with this Section.
SECTION 20
CONFIDENTIALITY
20.1 Confidential Business Information. The following constitutes
"Confidential Business Information," whether oral or written: (a) the Parties'
proposals and negotiations concerning this Agreement, made or conducted prior to
the date hereof, (b) this Agreement and the terms hereof, (c) information
provided hereunder, (d) the matters learned by MMC in connection with
performance of the Protocols, (e) the matters learned by PPM in connection with
the Facilities' operations, and (f) any information ever delivered by PPM to MMC
relating to the market prices of energy and methodologies for their
determination or estimation. MMC and PPM each agree to hold such Confidential
Business Information wholly confidential. Such Confidential Business Information
may only be used by the Parties for purposes related to the approval,
administration or enforcement hereof and for no other purpose.
20.2 Duty to Maintain Confidentiality. Each Party agrees not to
disclose Confidential Business Information to any other person (other than its
Affiliates, counsel, consultants, lenders, prospective lenders, purchasers,
prospective purchasers, contractors providing services to the Facility,
employees, officers and directors who agree to be bound by the provisions of
this Section), without the prior written consent of the other Party, provided
that either Party may disclose Confidential Business Information, if and to the
extent such disclosure is required: (i) by Requirements of Law, (ii) pursuant to
an order of a court or regulatory agency, or (iii) in order to enforce this
Agreement or to seek approval hereof. In the event a Party is required by law or
by a court or regulatory agency to disclose Confidential Business Information,
such Party shall to the extent possible notify the other Party at least three
Business Days in advance of such disclosure.
20.3 Proprietary Trade Secrets. MMC understands that this Agreement and
the structure of the provision of the Services hereunder constitutes a
proprietary trade secret and know-how of PPM, and that disclosure thereof in any
manner other than in the course of the performance of its terms would damage if
not destroy the value thereof to PPM.
25
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
20.4 Press Releases. Each Party agrees not to issue any press release
or other public announcement of the relationship of the Parties or the terms
hereof without the express prior written consent of the other Party.
20.5 Irreparable Injury; Remedies. Each Party agrees that violation of
the terms of this Section constitutes irreparable harm to the other, and that
the harmed Party may seek any and all remedies available to it at law or in
equity, including injunctive relief.
SECTION 21
DISAGREEMENTS
21.1 Negotiations. The Parties shall attempt in good faith to resolve
all disputes arising out of, related to or in connection with this Agreement
promptly by negotiation, as follows. Any Party may give the other Party written
notice of any dispute not resolved in the normal course of business. Executives
of the Parties at levels one level above the personnel who have previously been
involved in the dispute shall meet at a mutually acceptable time and place
within ten days after delivery of such notice, and thereafter as often as they
reasonably deem necessary, to exchange relevant information and to attempt to
resolve the dispute. If the matter has not been resolved within 30 days after
the referral of the dispute to such senior executives, or if no meeting of such
senior executives has taken place within 15 days after such referral, either
Party may initiate litigation as provided hereinafter if neither Party has
requested that the dispute be mediated in accordance with Section 21.2 below.
All negotiations pursuant to this Section are confidential.
21.2 Mediation. If the dispute is not resolved within 30 days after the
referral of the dispute to senior executives, or if no meeting of senior
executives has taken place within 15 days after such referral, either Party may
request that the matter be submitted to nonbinding mediation. If the other Party
agrees, the mediation will be conducted in accordance with the Construction
Industry Arbitration Rules and Mediation Procedures (Including Procedures for
Large, Complex Construction Disputes) of the American Arbitration Association
(the "AAA"), as amended and effective on July 1, 2003 (the "Mediation
Procedures"), notwithstanding any Dollar amounts or Dollar limitations contained
therein.
(a) The Party requesting the mediation may commence the
mediation process with AAA by notifying AAA and the other Party in writing
("Mediation Notice") of such Party's desire that the dispute be resolved through
mediation, including therewith a copy of the Dispute Notice and the response
thereto, if any, and a copy of the other Party's written agreement to such
mediation.
(b) The mediation shall be conducted through, by and at the
office of AAA located in Portland, Oregon.
26
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
(c) The mediation shall be conducted by a single mediator. The
Parties may select any mutually acceptable mediator. If the Parties cannot agree
on a mediator within five days after the date of the Mediation Notice, then the
AAA's Arbitration Administrator shall send a list and resumes of three available
mediators to the Parties, each of whom shall strike one name, and the remaining
person shall be appointed as the mediator. If more than one name remains, either
because one or the other Parties have failed to respond to the AAA's Arbitration
Administrator within five days after receiving the list or because one or the
other Parties have failed to strike a name from the list or because all Parties
strike the same name, the AAA's Arbitration Administrator will choose the
mediator from the remaining names. If the designated mediator shall die, become
incapable or, unwilling to, or unable to serve or proceed with the mediation, a
substitute mediator shall be appointed in accordance with the selection
procedure described above in this Section 21.2(c), and such substitute mediator
shall have all such powers as if he or she has been originally appointed herein.
(d) The mediation shall consist of one or more informal,
nonbinding meetings between the Parties and the mediator, jointly and in
separate caucuses, out of which the mediator will seek to guide the Parties to a
resolution of the dispute. The mediation process shall continue until the
resolution of the dispute, or the termination of the mediation process pursuant
to Section 21.2(f). The costs of the mediation, including fees and expenses,
shall be borne equally by the Parties.
(e) All verbal and written communications between the Parties
and issued or prepared in connection with this Section 21.2 shall be deemed
prepared and communicated in furtherance, and in the context, of dispute
settlement, and shall be exempt from discovery and production, and shall not be
admissible in evidence (whether as admission or otherwise) in any litigation or
other proceedings for the resolution of the dispute.
(f) The initial mediation meeting between the Parties and the
mediator shall be held within 20 days after the Mediation Notice. Either Party
may terminate the mediation process upon or after the earlier to occur of (A)
the failure of the initial mediation meeting to occur within 20 days after the
date of the Mediation Notice, (B) the passage of 30 days after the date of the
Mediation Notice without the dispute having been resolved, or (C) such time as
the mediator makes a finding that there is no possibility of resolution through
mediation.
(g) All deadlines specified in this Section 21.2 may be
extended by mutual agreement.
21.3 Place of Contract Formation; Choice of Forum. MMC and PPM acknowledge
and agree that this Agreement has been made and entered into as of the date
first set forth above in the City of Portland, Oregon. Each Party irrevocably
consents and agrees that any legal action or proceeding arising out of this
Agreement or the actions of the Parties leading up to the Agreement shall be
brought exclusively in the United States District Court for the District of
Oregon, Portland Division, or if such court does not have jurisdiction, in the
Circuit Court for Multnomah County, Oregon. By execution and delivery hereof,
each Party (a) accepts the exclusive jurisdiction of such court and waives any
objection that it may now or hereafter have to the exercise of personal
jurisdiction by such court over each Party, (b) irrevocably agrees to be bound
by any final judgment (after any and all appeals) of any such court arising out
of such documents or actions, (c) irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceedings arising out of such documents
brought in such court (including any claim that any such suit, action or
proceeding has been brought in an inconvenient forum), (d) agrees that service
of process in any such action may be effected by mailing a copy thereof by
registered or certified mail, postage prepaid, to such Party at its address as
set forth herein, and (e) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
27
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
21.4 Settlement Discussions. The Parties agree that no statements of
position or offers of settlement made in the course of the dispute process
described in this Section will be offered into evidence for any purpose in any
litigation between the Parties, nor will any such statements or offers of
settlement shall constitute an admission or waiver of rights by either Party in
connection with any such litigation. At the request of either Party, any such
statements and offers of settlement, and all copies thereof, shall be promptly
returned to the Party providing the same.
21.5 Waiver of Jury Trial. EACH PARTY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT EXECUTED OR CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH OF THE PARTIES FOR ENTERING
HEREINTO. EACH PARTY HEREBY WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
WITH THIS AGREEMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER, IN WHICH A
JURY TRIAL HAS NOT OR CANNOT BE WAIVED.
SECTION 22
GENERAL
22.1 Parties not Joint Venturers. Nothing contained herein creates an
association, trust, partnership or joint venture or imposes a trust, partnership
or fiduciary duty, obligation or liability on or between the Parties.
22.2 Non-Reliance. The Parties acknowledge and understand that PPM is not
acting as a financial, investment or commodity trading advisor for MMC and has
not given MMC directly or indirectly any assurance, guaranty or representation
whatsoever as to the merits of this Agreement or any transaction or expected
performance of any transaction. MMC acknowledges and understands that the
Services and arrangements set forth herein are not exclusive to MMC and that PPM
may transact in a manner similar as set forth herein with any other third party.
MMC is not relying upon any advice or representations, whether written or oral,
of PPM other than the representations expressly set forth in an EEl Agreement or
this Agreement. MMC has made and will make its own decisions, including
decisions regarding the suitability of this Agreement, based upon its own
judgment and upon the advice from such professional advisors as it deems
necessary to consult. In the event that any Services or obligation set forth in
this Agreement jeopardize PPM's FERC market-based rate tariff, PPM shall be
permitted to terminate this Agreement immediately without fault or penalty.
28
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
22.3 Choice of Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the state of Oregon, excluding any choice of law
rules that may direct the application of the laws of another jurisdiction.
22.4 Legal Compliance. The Parties do not intend to violate any laws
governing the subject matter hereof. If any of the terms hereof are determined
to be invalid, illegal or void as being contrary to any applicable law or public
policy, all other terms of this Agreement shall remain in effect. The Parties
shall use best efforts to amend this Agreement to reform or replace any terms
determined to be invalid, illegal or void, such that the amended terms (a)
comply with and are enforceable under applicable law, (b) give effect to the
intent of the Parties in entering hereinto, and (c) preserve the balance of the
economics and equities contemplated by this Agreement in all material respects.
22.5 Further Assurances. The Parties shall execute and deliver such
further documents and instruments and take such further action as may reasonably
be required to fulfill the essential intent and purposes hereof, and to comply
with its terms.
22.6 Waivers. No waiver of any provision hereof shall be effective unless
the waiver is set forth in a writing that (a) expressly identifies the provision
being waived, and (b) is signed by the Party waiving the provision. A Party's
waiver of one or more failures by the other Party in the performance of any of
the provisions hereof shall not be construed as a waiver of any other failure or
failures, whether of a like kind or different nature.
22.7 Restriction on Assignments. Except as expressly provided in this
Section 22, neither Party may assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of the other Party.
22.8 Integration Clause. This Agreement and the EEI Agreements represent
the entire agreement between the Parties and it supersedes all prior agreements,
proposals, representations, negotiations, discussions or letters, whether oral
or in writing, regarding the subject matter hereof. In the event of a conflict
between this Agreement and the EEI Agreement, this Agreement will prevail. No
modification hereof shall be effective unless it is in writing and signed by all
Parties.
29
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in their respective names as of the date first above written.
MMC ENERGY NORTH AMERICA LLC PPM ENERGY, INC.
a Delaware limited liability company an Oregon corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Mihilik
Chief Executive Officer Vice President, Controller
MMC CHULA VISTA LLC MMC ESCONDIDO LLC
a Delaware limited liability company a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- --------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer Chief Executive Officer
30
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT M
LIST OF MATERIAL FACILITY DOCUMENTS
Interconnection Agreements:
o Dispersed Generating Company, LLC's (assignor &
successor-in-interest of RAMCO) release of assignment of SDG&E
Interconnection Agreement & Expedited Interconnection Facilities
Agreement to MMC Chula Vista, LLC. & MMC Escondido, LLC. Dated
4/14/2001.
o Historical notice to FERC - Expedited Interconnection Facilities
Agreement between SDG&E and RAMCO, Inc.. Covers RAMCO Escondido
facility. Dated 4/26/2001.
o Historical notice to FERC - Expedited Interconnection Facilities
Agreement between SDG&E and RAMCO, Inc.. Covers RAMCO Chula Vista
facility. Dated 4/26/2001.
Air Permits:
o County of San Diego, Air Pollution Control District "Permit to
Operate". Permit #976039 covers MMC Chula Vista, LLC, and expires
February 2007.
o County of San Diego, Air Pollution Control District "Permit to
Operate". Permit #976038 covers MMC Escondido, LLC, and expires
February 2007.
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT N
NERC EVENT TYPES
Event Description of Outages
Type
U1(1) Unplanned (Forced) Outage-Immediate - An outage that requires immediate
removal of a unit from service, another outage state or a Reserve
Shutdown state. This type of outage results from immediate
mechanical/electrical/hydraulic control systems trips and operator
initiated trips in response to unit alarms.
U2(1) Unplanned (Forced) Outage-Delayed - An outage that does not require
immediate removal of a unit from the in-service state but requires
removal within six (6) hours. This type of outage can only occur while
the unit is in service.
U3(1) Unplanned (Forced) Outage-Postponed - An outage that can be postponed
beyond six hours but requires that a unit be removed from the
in-service state before the end of the next weekend. This type of
outage can only occur while the unit is in service.
SF Startup Failure - An outage that results from the inability to
synchronize a unit within a specified startup time period following an
outage or Reserve Shutdown. A startup period begins with the command to
start and ends when the unit is synchronized. An SF begins when the
problem preventing the unit from synchronizing occurs. The SF ends when
the unit is synchronized or another SF occurs.
MO Maintenance Outage - An outage that can be deferred beyond the end of
the next weekend, but requires that the unit be removed from service
before the next planned outage. (Characteristically, a MO can occur any
time during the year, has a flexible start date, may or may not have a
predetermined duration and is usually much shorter than a PO.)
ME Maintenance Outage Extension - An extension of a maintenance outage
(MO) beyond its estimated completion date. This is typically used where
the original scope of work requires more time to complete than
originally scheduled. Do not use this where unexpected problems or
delays render the unit out of service beyond the estimated end date of
the MO.
PO Planned Outage - An outage that is scheduled well in advance and is of
a predetermined duration, lasts for several weeks and occurs only once
or twice a year. (Boiler overhauls, turbine overhauls or inspections
are typical planned outages.)
PE Planned Outage Extension - An extension of a planned outage (PO) beyond
its estimated completion date. This is typically used where the
original scope of work requires more time to complete than originally
scheduled. Do not use this where unexpected problems or delays render
the unit out of service beyond the estimated end date of the PO
----------------------
(1) These event types are all contributors to the FOR & EFOR
calculations in the reports section.
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
Exhibit P: Protocols
o ***
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT 3.2.9
LIST OF REQUIRED FACILITY DOCUMENTS
Interconnection Agreements:
o Dispersed Generating Company, LLC's (assignor &
successor-in-interest of RAMCO) release of assignment of SDG&E
Interconnection Agreement & Expedited Interconnection
Facilities Agreement to MMC Chula Vista, LLC. & MMC Escondido,
LLC. Dated 4/14/2001.
o Historical notice to FERC - Expedited Interconnection
Facilities Agreement between SDG&E and RAMCO, Inc.. Covers
RAMCO Escondido facility. Dated 4/26/2001.
o Historical notice to FERC - Expedited Interconnection
Facilities Agreement between SDG&E and RAMCO, Inc.. Covers
RAMCO Chula Vista facility. Dated 4/26/2001.
Air Permits:
o County of San Diego, Air Pollution Control District "Permit to
Operate". Permit #976039 covers MMC Chula Vista, LLC, and
expires February 2007.
o County of San Diego, Air Pollution Control District "Permit to
Operate". Permit #976038 covers MMC Escondido, LLC, and
expires February 2007.
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT 6.1
***
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT 17
REQUIRED INSURANCE
o ***.
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
Contact List Exhibit
***
***Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.