EXHIBIT 10.4
AMENDED AND RESTATED SERVICES AND
RISK MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED SERVICES AND RISK MANAGEMENT AGREEMENT (this
"Agreement"), dated as of March 30, 2001 (the "Effective Date"), is by and
between MIRANT AMERICAS ENERGY MARKETING L.P. (formerly known as Southern
Company Energy Marketing L.P.), a Delaware limited partnership ("MAEM"), and
MIRANT POTOMAC RIVER, LLC (formerly known as Southern Energy Potomac River,
LLC), a Delaware limited liability company ("Potomac River").
RECITALS
WHEREAS, Potomac River owns that certain Potomac River Station,
consisting of electric generation facilities and associated facilities located
in Alexandria, Virginia (the "Generating Station"); and
WHEREAS, MAEM is an energy marketer which has contracted to purchase
electricity and related energy products from Potomac River, Mirant Mid-Atlantic,
LLC ("MIRMA"), Mirant Chalk Point, LLC ("Chalk Point"), and Mirant Peaker, LLC
("Peaker", and collectively with Potomac River, MIRMA and Chalk Point, the
"MIRMA Group"); and
WHEREAS, MAEM is obligated to procure electricity and related energy
products under certain power purchase agreements with Ohio Edison Company and
Pennsylvania Power Company for 450MW, Panda-Brandywine or Panda for
approximately 230MW, Northeast Maryland Waste Disposal for 50MW, and one other
agreement for 2.6MW; and
WHEREAS, MAEM and Potomac River entered into that certain Services and
Risk Management Agreement dated December 18, 2000 (the "Existing SRMA"),
pursuant to which the Parties contracted for the provision of certain services
by MAEM to Potomac River; and
WHEREAS, the Parties have agreed to amend and restate the Existing SRMA
in its entirety as more particularly set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Parties, the
Parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS
The following capitalized terms, whether used in the singular or
plural, shall be defined as provided in this Article 1.
"AGENCY PERIOD" has the meaning set forth in SECTION 3.2(b)(i).
"BANKRUPTCY PROCEEDING" means, with respect to a Party, that Party (a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger),
(b) makes an assignment or any general arrangement for the benefit of creditors,
(c) institutes or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
or other law affecting creditors' rights and, in the case of any such proceeding
or petition instituted or presented against it, such proceeding or petition (i)
results in a judgment of insolvency or bankruptcy or the entry of an order for
its winding-up or liquidation or (ii) is not withdrawn, dismissed or discharged
within sixty (60) days after the institution or presentation thereof, (d)
otherwise becomes bankrupt or insolvent (however evidenced), (e) has a secured
party take possession of all or substantially all of its assets or has an action
or proceeding taken or levied against all or substantially all of its assets and
such secured party maintains possession, or any such action or proceeding is not
dismissed, in either case for thirty (30) days thereafter, or (f) is unable to
pay its debts or admits in writing its inability generally to pay its debts as
they become due.
"BID" or "BIDDING" means the nomination or bidding of the output of the
Generating Station in the PJM.
"DISPATCH" means the scheduling of the delivery of the output of the
Generating Station.
"EMISSION ALLOWANCES" means authorizations under state or federal (as
applicable) air quality regulations to emit either one ton of nitrogen oxides
("NOx") or sulfur dioxide ("SO2"), in the former case between May 1 through
September 30 of any given year, and in the latter case at any time during any
applicable calendar year.
"FORCE MAJEURE" means an event which is not within the reasonable
control of a Party which causes such Party to be delayed in or prevented from
performing or carrying out any of its obligations under this Agreement and which
by the exercise of due diligence in accordance with Good Utility Practices, such
Party is unable to overcome or avoid or cause to be avoided, including, without
limitation, acts of God; fire; ice; earthquake; lightning; tornado; hurricane,
or other severe weather condition; civil disturbance; labor dispute; labor or
material shortage; sabotage; acts of terrorism; acts of a public enemy;
uprising; insurrection; civil unrest; war or rebellion; explosions; breakage or
accident to machinery or equipment, action or restraint by court order or public
or governmental authority or lawfully established civilian authorities, provided
that a Force Majeure shall not include lack of finances or change in market
conditions, and provided further that any failure of any supplier or
subcontractor of a Party to perform any obligation to such Party will not
constitute a Force Majeure unless such subcontractor or supplier is unable to
perform such obligations for reasons that would constitute a "Force Majeure"
hereunder.
"FUEL" means fuel oil, natural gas, or coal, as dictated by context.
"GENERATING STATION" has the meaning provided in the recitals.
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"GOOD UTILITY PRACTICES" mean any of the practices, methods or acts
engaged in or approved by a significant portion of the electric energy industry
with respect to similar facilities during the relevant time period which in each
case, in the exercise of reasonable judgment in light of the facts known or that
should have been known at the time a decision was made, could have been expected
to accomplish the desired result at reasonable cost consistent with good
business practices, reliability, safety, law, regulation, environmental
protection and expedition. Good Utility Practices are not intended to be limited
to the optimum practices, methods or acts to the exclusion of all others, but
rather to delineate the acceptable practices, methods or acts generally accepted
in such industry.
"MIRMA GROUP" has the meaning set forth in the recitals.
"PARTY" means any of MAEM or Potomac River. In the context where MAEM
is referenced as a "Party," a reference to the "other Party" shall mean Potomac
River. In the context where Potomac River is referenced as a "Party," a
reference to the "other Party" shall mean MAEM. References to "either Party" or
the "Parties" shall have comparable meanings.
"PJM" means the Pennsylvania - New Jersey - Maryland Power Pool.
ARTICLE 2.
TERM
The initial term of this Agreement shall commence as of the Effective
Date and shall continue, unless earlier terminated pursuant to its terms, until
December 31, 2001. The Agreement will automatically renew for successive
one-year terms unless one Party gives the other Party notice of such Party's
intent to terminate this Agreement at least three (3) months prior to the
expiration of any such term.
ARTICLE 3.
SERVICES TO BE PROVIDED BY MAEM
3.1 BIDDING AND DISPATCH INTO THE PJM. MAEM shall be responsible for
the Bidding and Dispatch of the output of the Generating Station. Without
limitation, MAEM's Bidding and Dispatch strategies shall be consistent with:
(i) the operating parameters and limitations of the Generating
Station;
(ii) Potomac River's maintenance plans;
(iii) the availability of the Generating Station (including Fuel
handling and storage facilities), as communicated by Potomac
River to MAEM;
(iv) PJM rules and procedures in effect from time to time;
(v) other applicable transmission provider requirements; and
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(vi) Fuel availability.
3.2 FUEL SERVICES. (a) MAEM will provide all Fuel necessary for the
operation of the Generating Station at MAEM's cost, which shall be calculated as
MAEM's actual cost for transportation, inventory and related costs, as adjusted
for any gains or losses on fuel xxxxxx and trading activities. MAEM will enter
into arrangements for the purchase and procurement of Fuel meeting the
specifications for the Generating Station, coordinate the scheduling, loading,
unloading and storage of Fuel deliveries, maintain Fuel inventory levels, and
perform such other Fuel-related services as Potomac River may request from time
to time, in each case in accordance with Good Utility Practices.
(b)(i) If, at any time, MAEM determines that the
creditworthiness of Potomac River is impaired, MAEM may, at its sole
discretion and upon written notice to Potomac River, elect to suspend
Fuel procurement under SECTION 3.2(a) for a period until such
creditworthiness is restored (each such period, an "Agency Period").
During any such Agency Period, MAEM shall act solely as agent to
Potomac River under this Agreement in taking the actions set forth in
this SECTION 3.2(b).
(ii) During any Agency Period, MAEM's sole obligation shall be
to use commercially reasonable efforts to procure Fuel as agent of and
for the account of Potomac River, and MAEM shall have no obligation to
provide credit enhancement to any supplier of Potomac River. MAEM shall
have no liability to Potomac River if Fuel suppliers do not agree to
supply Fuel to Potomac River due to a lack of creditworthiness of
Potomac River. As agent, MAEM shall neither directly purchase or
contract for the purchase of, nor take title to or possession and
control of, any Fuel procured for the account of Potomac River, and
MAEM shall have no liability to any Fuel supplier or Potomac River for
nonpayment for or nondelivery of procured Fuels, as appropriate. During
any Agency Period, as between MAEM and Potomac River, Potomac River
shall be deemed to have title, exclusive possession and control of all
procured Fuel at all times, and any risk of loss associated with any
such procured Fuel shall be born by Potomac River.
(iii) Each Agency Period shall continue until Potomac River
can demonstrate to MAEM that Potomac River's creditworthiness has been
restored, as reasonably determined by MAEM. After a positive
determination as to such creditworthiness, the applicable Agency Period
shall be terminated by MAEM by written notice to Potomac River, and
MAEM shall resume procuring Fuel for Potomac River under SECTION
3.2(a).
3.3 EMISSIONS PLANNING AND RELATED RESPONSIBILITIES. MAEM shall provide
Potomac River emissions planning, in consultation with Potomac River, to assist
in the compliance of the Generating Station at all times and on an ongoing basis
with all currently effective emissions requirements, permits and regulations.
MAEM will procure all Emission Allowances necessary for the operation of the
Generating Station, and dispose of excess Emission Allowances, which are not
needed for the operation of any other generating stations in the MIRMA Asset
Book.
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MAEM will charge MAEM's actual cost of acquiring the Emission Allowances and
remit the proceeds of any Emission Allowances sales to Potomac River, as
adjusted for any gains or losses on emission xxxxxx and trading activities.
3.4 INSURANCE. MAEM will procure or assist Potomac River in procuring
business interruption insurance and forced outage insurance covering the
Generating Station. The costs of such insurance will be charged to Potomac
River.
3.5 FINANCIAL PRODUCTS. MAEM will enter into financial products
(including but not limited to, swaps, contracts for differences, options and
weather derivatives) purchased for Potomac River. The gains and losses arising
from such financial products will be borne by MIRMA, and therefore the costs,
including without limitation third party broker costs and transaction fees, and
revenues related to such financial products will be charged to or paid to
Potomac River.
3.6 POWER MARKET TRANSACTIONS. MAEM will enter into third party
bilateral contracts, forward sales, xxxxxx and other transactions for the
benefit of Potomac River. The gains and losses arising from such transactions
will be borne by MIRMA, and therefore the costs of such transactions, including
without limitation, purchased power costs, transmission costs, third party
broker costs, transaction fees and incremental credit costs, and revenues
related to such activities will be charged to or paid to Potomac River.
ARTICLE 4.
PAYMENT AND BONUS
4.1 PAYMENT. MAEM shall pay Potomac River all amounts payable to
Potomac River in connection with (a) the services provided by MAEM under ARTICLE
3 hereof, or (b) power sales under any power sales agreements, which payments
are due for the prior month by wire transfer to the payment address provided by
Potomac River on or before the twentieth (20th) day of each month, or if such
day is not a business day, the immediately following business day; provided,
that MAEM may deduct from any such payment all expenses incurred by MAEM in
connection with the provision of its services hereunder.
4.2 SERVICE FEE; BONUS. Potomac River acknowledges that pursuant to the
terms of that certain Amended and Restated Sevices and Risk Management
Agreement, dated of even date herewith, between MIRMA and MAEM (the "MIRMA
Services Agreement"), MIRMA has agreed to pay MAEM a monthly service fee and a
bonus based upon the aggregate net revenues of the entire MIRMA Group and
calculated in accordance with Sections 4.2 and 4.3, respectively, of the MIRMA
Services Agreement. Potomac River agrees that MAEM may deduct Potomac River's
ratable amount of such monthly service fee and bonus from any payment to Potomac
River under the MIRMA Services Agreement; provided, that MAEM acknowledges that
any such services fees and bonus payments made to MAEM may only be paid pursuant
to the terms of the MIRMA Services Agreement. Such ratable amount shall be
calculated as the total amount of such bonus multiplied by a fraction, the
numerator of which is the amount of net revenues attributable to Potomac River
and the denominator of which is the aggregate net revenues for the
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entire MIRMA Group.
ARTICLE 5.
DEFAULTS AND REMEDIES
5.1 EVENTS OF DEFAULT Any one or more of the following shall constitute
an "Event of Default" hereunder with respect to a Party:
(a) default shall occur in the payment of any amounts due from such
Party hereunder which shall continue for more than ten (10) days after written
notice from the other Party;
(b) other than as provided in SECTION 5.1(a) above, default shall occur
in the performance of any covenant or condition to be performed by such Party
under this Agreement and such default shall continue unremedied for a period of
thirty (30) days after written notice from the other Party specifying the nature
of such default;
(c) a Bankruptcy Proceeding has occurred with respect to such Party; or
(d) a representation or warranty made by such Party herein shall have
been false or misleading in any material respect when made; provided, however,
if such representation or warranty is capable of being corrected, no Event of
Default shall have occurred if such Party is diligently pursuing such correction
and such representation or warranty is corrected within thirty (30) days of such
Party obtaining knowledge of the false and misleading nature of the statement.
5.2 REMEDIES. The Parties shall have the following remedies available
to them hereunder:
(a) Upon the occurrence of an Event of Default by either Party
hereunder, the non-defaulting Party shall have the right (i) to collect all
amounts then or thereafter due to it from the defaulting Party hereunder, and
(ii) upon written notice to the other Party, to terminate this Agreement at any
time during the continuation of such Event of Default. The terminating Party
shall have all rights and remedies available to it under applicable law, subject
to the limitations set forth in SECTION 7.7.
(b) Without limiting the foregoing, any unexcused breach of this
Agreement or failure of either Party to perform its obligations hereunder shall
subject such Party to the payment of actual damages to the other Party,
regardless of any cure period.
ARTICLE 6.
FORCE MAJEURE
If either Party is rendered wholly or partly unable to perform its
obligations under this Agreement because of a Force Majeure event, that Party
will be excused from whatever performance is affected by the Force Majeure event
to the extent so affected, provided that (a) the non-performing Party, as soon
as practical after knowing of the occurrence of the Force Majeure
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event, gives the other Party written notice describing the particulars of the
occurrence; (b) the suspension of performance is of no greater scope and of no
longer duration than is reasonably required by the Force Majeure event; (c) the
non-performing Party uses commercially reasonable efforts to overcome or
mitigate the effects of such occurrence; and (d) when the non-performing Party
is able to resume performance of its obligations hereunder, that Party shall
give the other Party written notice to that effect and shall promptly resume
such performance.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
7.1 ASSIGNMENT; SUCCESSORS AND ASSIGNS. No assignment or delegation by
either Party (or any successor or assignee thereof) of this Agreement, in whole
or in part, shall be made or become effective without the prior written consent
of the other Party in each case obtained, which consent may not be unreasonably
withheld. Any assignments or delegations by either Party shall be in such form
as to assure that such Party's obligations under this Agreement will be honored
fully and timely by any succeeding party.
7.2 NOTICES. All notices, requests and other communications hereunder
(herein collectively a "notice" or "notices") shall be deemed to have been duly
delivered, given or made to or upon any Party hereto if in writing and delivered
by hand against receipt, or by certified or registered mail, postage pre-paid,
return receipt requested, or to a courier who guarantees next business day
delivery or sent by telecopy (with confirmation) to such Party at its address
set forth below or to such other address as such Party may at any time, or from
time to time, direct by notice given in accordance with this SECTION 7.2.
IF TO POTOMAC RIVER: Mirant Potomac River, LLC
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President and Chief Executive Officer
IF TO MAEM: Mirant Americas Energy Marketing L.P.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President, Mid-Atlantic Region
The date of delivery of any such notice, request or other communication shall be
the earlier of (i) the date of actual receipt or (ii) three (3) business days
after such notice, request or other communication is sent by certified or
registered mail, (iii) if sent by courier who guarantees next business day
delivery, the business day next following the day of such notice, request or
other communication is actually delivered to the courier or (iv) the day
actually telecopied.
7.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW THAT WOULD OTHERWISE CAUSE THE LAW OF ANY STATE OTHER THAN NEW
YORK TO APPLY.
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7.4 COMPLIANCE WITH LAWS. At all times during the term of this
Agreement, the Parties shall comply with all laws, rules, regulations, and codes
of all governmental authorities having jurisdiction over each of their
respective businesses which are now applicable, or may be applicable hereafter,
including without limitation, all special laws, policies, ordinances, or
regulations now in force, as amended or hereafter enacted. The Parties hereto
shall maintain all licenses, permits and other consents from all governmental
authorities having jurisdiction for the necessary use and operation of their
respective business. Nothing herein shall be deemed a waiver of the Parties'
right to challenge the validity of any such law, rule or regulation.
7.5 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the Parties with respect to the subject matter herein and takes precedence over
all prior understandings. This Agreement may not be amended except by a writing
signed by the Parties.
7.6 SEVERABILITY. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the other provisions hereof. If any provision
of this Agreement is held to be invalid, such provisions shall not be severed
from this Agreement; instead, the scope of the rights and duties created thereby
shall be reduced by the smallest extent necessary to conform such provision to
the applicable law, preserving to the greatest extent the intent of the Parties
to create such rights and duties as set out herein. If necessary to preserve the
intent of the Parties hereto, the Parties shall negotiate in good faith to amend
this Agreement, adopting a substitute provision for the one deemed invalid or
unenforceable that is legally binding and enforceable and which restores to the
two Parties to the greatest extent possible the benefit of their respective
bargains on the Effective Date.
7.7 LIMITATION ON DAMAGES. NEITHER PARTY SHALL BE ENTITLED TO RECOVER
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HEREUNDER.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Parties hereto have caused this Agreement to be duly executed as an instrument
under seal by their respective duly authorized officers as of the date and year
first above written.
MIRANT AMERICAS ENERGY MIRANT POTOMAC
MARKETING L.P. RIVER, LLC
By MIRANT AMERICAS
DEVELOPMENT, INC.,
its General Partner
By: _____________________________ By: _____________________________
Name: ____________________________ Name:____________________________
Title: ___________________________ Title: _________________________
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