Exhibit 10.9
FIRST AMENDMENT TO SERVICES AND
RISK MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO THE SERVICES AND RISK MANAGEMENT AGREEMENT
(the "First Amendment"), between MIRANT AMERICAS ENERGY MARKETING, LP
("MAEM"), MIRANT DELTA, LLC ("Delta") and MIRANT POTRERO, LLC ("Potrero")
(Delta and Potrero are collectively referred to herein as the "Project
Companies") is entered into this 8th day of May, 2001.
RECITALS
WHEREAS, the Project Companies and MAEM (collectively, the
"Parties") entered into a Services and Risk Management Agreement dated as of
March 30, 2001 and effective as of January 1, 2001 (the "Agreement"), under
which the Project Companies contracted with MAEM for the provision of certain
services;
WHEREAS, the Parties desire to amend the provisions of Section 3.8
of the Agreement and other provisions in order to establish the framework for
an agency relationship for the sales of Energy and other Products to third
parties; and
WHEREAS; the Parties desire to amend the definition of "Bonus
Percentage" in Section 5.2(a) of the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
AGREEMENT
1. DEFINED TERMS. Capitalized terms used in this First Amendment
(including, without limitation, in the Recitals) and not otherwise defined
shall have the respective meanings assigned to such terms in the Agreement.
2. EFFECTIVE DATE. This First Amendment shall be effective as of May 8,
2001 (the "Effective Date").
3. AMENDMENT TO AGREEMENT. The Agreement is hereby amended as follows:
(i) Section 3.8 is amended as follows:
(a) The current text of Section 3.8 is renumbered as (a).
(b) A new (b) is added to Section 3.8 as follows:
If, at any time, MAEM determines that the creditworthiness of
some or all of the third party purchasers of Energy and other
Products is impaired, MAEM may, at
its sole discretion and upon written notice to the Project
Companies, elect to suspend future sales of Energy and other
Products to such third party purchasers for a period until
XXXX xxxxx their creditworthiness is restored (each such
period an "Energy Agency Period"). During any Energy Agency
Period, MAEM's sole obligation shall be to use commercially
reasonable efforts to sell Energy and other Products to third
parties as agent of and for the Project Companies, and MAEM
shall have no obligation to provide credit enhancement to any
third party which purchases Energy and other Products from the
Project Companies. During any Energy Agency Period, MAEM shall
have no liability to either of the Project Companies if third
parties do not agree to purchase Energy and other Products
from the Project Companies. As agent, MAEM shall neither
directly purchase or sell, nor contract for the purchase or
sale, nor take title to or possession and control of any
Energy or other Products, and MAEM shall have no liability to
the Project Companies or any third party for nonpayment or
nondelivery of any Energy or other Products sold to third
parties. During the Agency Period, as between MAEM and the
Project Companies, the Project Companies shall be deemed to
have title, exclusive possession and control of all Energy and
other Products sold to third parties, and the Project
Companies shall bear the risk of loss associated with such
Energy and other Products. MAEM may terminate any Energy
Agency Period by written notice to the Project Companies, when
MAEM determines that the creditworthiness of the applicable
third party purchaser has been restored.
(c) A new (c) is added to Section 3.8 as follows:
When making sales of Energy or other Products to third parties
as agent for the Project Companies during an Energy Agency
Period, MAEM may use the name "Mirant California" in lieu of
the names of the Project Companies. The Project Companies
understand and agree that such sales will be made by MAEM as
their agent, and that the Project Companies shall be entitled
to the benefits and shall bear all responsibilities and
liabilities related to such sales in proportion to the amount
of Energy or other Products generated or produced by each of
them. Mirant California, LLC shall have no liability for or
related in any way to such sales.
(ii) In Section 5.2(a), the definition of `"Bonus Percentage" is
deleted in its entirety and replaced by the following:
"Bonus Percentage" means 75% for 2001.
4. REFERENCES TO AND EFFECT ON THE AGREEMENT.
(i) On and after the effectiveness of this First Amendment, each
reference in the Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Agreement, shall mean and be a
reference to the Agreement, as amended by this First Amendment.
(ii) The Agreement, as specifically amended by this First Amendment,
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
5. GOVERNING LAW. This First Amendment shall be governed by and
construed under the laws of the State of California.
6. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to
this First Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this First Amendment.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this First Amendment as of the date first written.
MIRANT DELTA, LLC
By: _______________________________
Name: _________________________
Title: ________________________
MIRANT POTRERO, LLC
By: _______________________________
Name: _________________________
Title: ________________________
MIRANT AMERICAS ENERGY
MARKETING, LP
BY: MIRANT AMERICAS DEVELOPMENT, INC.,
ITS GENERAL PARTNER
By: _______________________________
Name: _________________________
Title: ________________________
