SECOND AMENDMENT TO THE ENERGY MANAGEMENT AGREEMENT between BEAR ENERGY LP and
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CONFIDENTIAL
TREATMENT
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REQUESTED
PURSUANT TO RULE 24b-2
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Certain
portions of this exhibit have been omitted pursuant to a request
for
confidential treatment under Rule 24b-2 of the Securities Exchange
Act of
1934. The omitted materials have been filed separately with the Securities
and Exchange
Commission.
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SECOND
AMENDMENT
TO
THE ENERGY MANAGEMENT AGREEMENT
between
BEAR
ENERGY LP
and
MMC
MID-SUN, LLC
This SECOND
AMENDMENT dated
as
of March 25, 2008 (this “Second
Amendment”),
is
made and entered into by and between BEAR ENERGY LP (“Bear”)
and
MMC MID-SUN, LLC (“Mid-Sun,”
and
together with Bear, the “Parties”).
WITNESSETH
WHEREAS,
the
Parties have entered into the Energy Management Agreement (the “Mid-Sun
EMA”),
the
EEI Master Power Purchase and Sale Agreement, with the Gas Annex thereto
(“EEI
Agreement”),
each
dated December 28, 2006, and the First Amendment to the Energy Management
Agreement, dated March 21, 2007;
WHEREAS,
the
Parties, with MMC Chula Vista, LLC (“Chula
Vista”),
MMC
Escondido, LLC (“Escondido”),
MMC
North America, LLC (“MMC
North America”)
and
MMC Energy Inc. (“MMC
Energy”),
entered into the Second Amendment and Joinder Agreement on December 28, 2006,
pursuant to which Mid-Sun became a party to: (i) the Master Netting, Set-Off
and
Consent Agreement dated November 21, 2006 between Bear and Escondido, Chula
Vista, MMC North America and MMC Energy, as amended, and (ii) the EEI Collateral
Annex dated November 21, 2006 between Bear and Escondido, Chula Vista, MMC
North
America and MMC Energy, as amended (collectively, with the Mid-Sun EMA and
the
EEI Agreement, the “MMC
Agreements”);
WHEREAS,
the
Parties desire to extend the term of the Mid-Sun EMA and to clarify certain
provisions thereof;
WHEREAS,
the
Parties hereto desire to amend the Mid-Sun EMA accordingly; and
NOW
THEREFORE,
for and
in consideration of the agreements herein made and other good and valuable
consideration, the Parties hereto agree as follows:
I.
AMENDMENTS
TO MID-SUN EMA
(a)
The
introductory paragraph shall be amended by deleting “1/1/2007” and replacing
these words with “March 1, 2008.”
(b)
In
Section
1.1,
under
definition of “Effective
Date,”
the
words “1/1/2007” shall be
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[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
(c)
replaced
with the words “March 1, 2008.”
(d)
Section
2.1
shall be
amended as follows:
i. The
words
“one (1) year from the Effective Date” shall be replaced with the words “on
December 31, 2008;”
ii. The
words
“1/1/2007” shall be replaced with the words “March 1, 2008;” and
iii. The
words
“12/31/2006” shall be replaced with the words “February 29, 2008.”
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(e)
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Section
2.2
shall be deleted and replaced in its entirety with the
following:
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“Section
2.2 Renewal Term.
The
term of this Agreement shall be extended for an additional one (1) year (the
“Renewal
Term”)
upon
ninety (90) days written notice by MMC to Energy Manager.”
(f
Section
2.3
shall be
amended to delete the words “either Party terminates this Agreement upon giving
sixty (60) days prior written notice to the other Party (a “Termination
Notice”),
with
such sixtieth (60th)
day
constituting the Termination Date;” and replace them with the words “MMC
terminates this Agreement upon giving thirty (30) days prior written notice
to
Energy Manager or Energy Manager terminates this Agreement upon giving sixty
(60) days prior written notice to MMC (each, a “Termination
Notice”),
with
such thirtieth (30th)
or
sixtieth (60th)
day, as
appropriate in context, constituting the Termination Date;”.
(g)
Section
8.1
shall be
amended as follows:
i. The
words
[***] shall be replaced with the words [***]; and
ii. The
following shall be added at the end thereof: “; provided,
further,
that in
the event that MMC extends the term of this Agreement pursuant to Section 2.2
hereof, the Parties agree to negotiate in good faith to determine a revised
Facility Budget for each month in the Renewal Term.”
(h)
Section
8.3
shall be
deleted and replaced in its entirety with the following:
“Section
8.3 Monthly Settlement Statement.
(a) Not
later
than the tenth (10th)
day of
each month following the Billing Period in which the relevant Services were
rendered, Energy Manager shall render to MMC a preliminary statement showing
estimated calculations of and setting forth in total for such Billing Period
on
an aggregate basis and, as applicable, (i) the total Gross Margin, (ii) the
Monthly Management Fee, (iii) revenues realized by or for MMC, (iv) Gas Payments
due Energy Manager from MMC, and (v) any other costs incurred by MMC or on
MMC’s
behalf.
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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) Not
later
than the twentieth (20th)
day of
each month following the Billing Period in which the relevant Services were
rendered, Energy Manager shall render to MMC a final statement (the
“Monthly
Settlement Statement”)
showing the calculation of and setting forth in total for such Billing Period
on
an aggregate basis and, as applicable, (i) the Fixed Monthly Fee, (ii) Gas
Payments due Energy Manager from MMC, and (iii) any other costs incurred by
MMC
or on MMC’s behalf. As Energy Manager receives invoices from CAISO setting forth
preliminary and final information regarding amounts due to or from CAISO for
the
relevant Billing Period, or any other relevant information, Energy Manager
shall
promptly update the Monthly Settlement Statement as necessary regarding: (i)
the
Total Gross Margin, (ii) the Monthly Management Fee, (iii) revenues realized
by
or for MMC, (iv) Gas Payments due Energy Manager from MMC, and (v) any other
costs incurred by MMC or on MMC’s behalf (each, an “Updated Monthly Settlement
Statement”).”
(i)
Section
8.4
shall be
deleted in its entirety and replaced with the words “INTENTIONALLY
DELETED.”
(j)
Section
8.5(a)
shall be
amended to include the following at the end thereof: “; provided,
however,
that
Energy Manager shall not be required to make any payments to CAISO on MMC’s
behalf until MMC first pays Energy Manager for the full amount Energy Manager
has indicated is owed to CAISO in the applicable Monthly Settlement Statement,
and shall have no liability for any late fees or other penalties owed to CAISO
if such fees or penalties were incurred due to the failure of MMC to pay Energy
Manager in advance of Energy Manger making any such payments; provided,
further,
that
Energy Manager shall not be required to make any payments to MMC to the extent
that CAISO has not paid Energy Manager for amounts due relating to this
Agreement. Within five (5) days of the receipt of any Updated Monthly Settlement
Statement, or on the next Business Day if such day is not a Business Day, each
Party shall render to the other Party by wire transfer payment in immediately
available funds the positive difference due under any Updated Monthly Settlement
Statement for the Billing Period in which the relevant Services were
rendered.”
(k)
Article
VIII
shall be
amended to add the following new Section
8.8:
“Section
8.8 Amounts Owed Following Termination.
Upon
the termination of this Agreement for any reason, Sections
8.3,
8.4,
8.5
and
8.6
shall
remain in force as necessary to provide for the payment of amounts owed
hereunder relating to the period prior to the termination hereof.”
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[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
(j)
Exhibit
C
shall be
deleted in its entirety and replaced with the Exhibit
C
attached
hereto as Attachment
A.
To the
extent that the revised Facility Budget in Attachment A pertains to months
prior
to the Effective Date, as amended herein, the Parties agree to apply the
Facility Budget retroactively to determine any incentive fees due and owing
to
Energy Manger for such months.
II.
MISCELLANEOUS
(a) Except
as
amended hereby, all other terms and conditions of the MMC Agreements shall
remain the same and in full force and effect. If any of the terms in this Second
Amendment contradict the terms of any of the MMC Agreements, the terms of this
Second Amendment will control.
(b) This
Second Amendment may be executed in multiple counterparts, each of which when
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(c)
Any
and
all references to the MMC Agreements shall hereafter refer to the MMC Agreements
as amended by this Second Amendment and as the same may be amended, supplemented
or modified from time to time. Unless otherwise defined herein, capitalized
terms not defined herein shall have the same meanings assigned to such terms
in
the MMC Agreements.
IN
WITNESS WHEREOF,
the
Parties hereto have executed this Second Amendment to the Mid-Sun EMA effective
as of the date first written above.
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BEAR
ENERGY LP
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MMC
MID-SUN, LLC
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By:
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/s/
Xxxx Xxxxxx
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxx
Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Senior
Managing Director
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Title:
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Chief
Financial Officer
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[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
Exhibit
C: Facility Budget
[***]
[***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
