EXHIBIT 10.26
POWER SALE, FUEL SUPPLY
AND SERVICES AGREEMENT
THIS POWER SALE, FUEL SUPPLY AND SERVICES AGREEMENT (this "Agreement"),
dated as of May 1, 2003 (the "Effective Date"), is by and between MIRANT
AMERICAS ENERGY MARKETING, LP, a Delaware limited partnership ("MAEM"), and
MIRANT POTOMAC RIVER, LLC, a Delaware limited liability company (the "Project
Company").
RECITALS
WHEREAS, Project Company owns and operates a certain electric
generating facility as set forth on Exhibit A hereto (the "Generating Station");
WHEREAS, Project Company desires to contract herein to sell capacity,
electricity and/or ancillary services to MAEM, and MAEM desires to purchase such
capacity, electricity and/or ancillary services on the terms and conditions set
forth herein;
WHEREAS, Project Company desires that MAEM provide fuel to Project
Company, and MAEM desires to provide fuel on the terms and conditions set forth
herein;
WHEREAS, Project Company desires that MAEM perform certain services
related to the management and operation of the Generating Station, and MAEM
desires to perform such services; and
WHEREAS, Project Company and MAEM are parties to certain Prior
Agreements (as defined herein) which shall be terminated and superceded by the
terms of this Agreement.
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.
"Affiliate" of a person, firm, corporation, limited liability company,
partnership or other entity (a "Person") means any other Person which, directly
or indirectly, controls, is controlled by or is under common control with such
Person.
"Asset Book" has the meaning set forth in Section 5.1.
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"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 its inability generally to pay its debts as they become
due.
"Claims" means all claims or actions, threatened or filed, whether
groundless, false or fraudulent, that directly or indirectly relate to the
subject matter of an indemnity, and the resulting losses, damages, expenses,
attorneys' fees and court costs, whether incurred by settlement or otherwise,
and whether such claims or actions are threatened or filed prior to or after the
termination of this Agreement.
"Delivery Point" means the high side of the generation step-up
transformer located at the Generation Facility, where it connects to the
Transmission Provider's transmission system.
"Effective Date" has the meaning set forth in the Preamble.
"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").
"Event of Default" has the meaning set forth in Section 9.1.
"Expenses" has the meaning set forth in Section 8.2.
"Facility Lease Event of Default" shall have the meaning ascribed to
such term in the Participation Agreements dated as of December 18, 2000 among
Mirant Mid-Atlantic, LLC and the owners of the leased assets at the Xxxxxxxxx
and Morgantown generating stations, Wilmington Trust Company and State Street
Bank and Trust Company of Connecticut, National Association.
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"Force Majeure" means an event or circumstance which prevents one Party
from performing its obligations, which event or circumstance was not anticipated
as of the date the transaction was agreed to, which is not within the reasonable
control of, or the result of the negligence of, the claiming Party, and which,
by the exercise of due diligence, the claiming Party is unable to overcome or
avoid or cause to be avoided. Force Majeure shall not be based on (i) the loss
of MAEM's markets; (ii) MAEM's inability economically to use or resell the
Product purchased hereunder; (iii) the loss or failure of Project Company's
supply; or (iv) Project Company's ability to sell the Product at a price greater
than the purchase price set forth in this Agreement. Neither Party may raise a
claim of Force Majeure based in whole or in part on curtailment by a
Transmission Provider unless (i) such Party has contracted for firm transmission
with a transmission provider for the Product to be delivered to or received at
the Delivery Point and (ii) such curtailment is due to "force majeure" or
"uncontrollable force" or a similar term as defined under the Transmission
Provider's tariff; provided, however, that existence of the foregoing factors
shall not be sufficient to conclusively or presumptively prove the existence of
a Force Majeure absent a showing of other facts and circumstances which in the
aggregate with such factors establish that a Force Majeure as defined in the
first sentence hereof has occurred.
"Fuel" means coal.
"Generating Station" has the meaning provided in the recitals.
"Good Utility Practices" mean any of the practices, methods or acts
engaged in or approved by a significant portion of the electric energy industry
with respect to similar facilities during the relevant time period which in each
case, in the exercise of reasonable judgment in light of the facts known or that
should have been known at the time a decision was made, could have been expected
to accomplish the desired result at reasonable cost consistent with good
business practices, reliability, safety, law, regulation, environmental
protection and expedition. Good Utility Practices are not intended to be limited
to the optimum practices, methods or acts to the exclusion of all others, but
rather to delineate the acceptable practices, methods or acts generally accepted
in such industry.
"Gross Revenues" has the meaning provided in Section 8.2.
"Interest Rate" means, for any date, two percent (2%) over the per
annum rate of interest equal to the prime lending rate as may from time to time
be published in the Wall Street Journal under "Money Rates"; provided that the
Interest Rate shall never exceed the maximum interest rate permitted by
applicable law.
"Mirant Mid-Atlantic" means Mirant Mid-Atlantic, LLC.
"Net Market Revenues" has the meaning set forth in Section 8.2.
"Offer" or "Offering" means the nomination or offering to sell the
output of the Generating Station.
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"Other Generators" means Mirant Chalk Point, LLC, Mirant Mid-Atlantic,
LLC and Mirant Peaker, LLC, so long as each such company is an Affiliate of
Project Company.
"Party" means any of MAEM or Project Company. In the context where MAEM
is referenced as a "Party," a reference to the "other Party" shall mean Project
Company. In the context where Project Company 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 market of PJM Interconnection, LLC, or its successor.
"Prior Agreements" means (i) that certain EEI Master Power Purchase and
Sale Agreement dated December 18, 2000 and all confirmations related thereto
between Project Company and MAEM, (ii) that certain Services and Risk Management
Agreement dated as of March 30, 2001 between Project Company and MAEM and (iii)
that certain Energy and Capacity Sales Agreement dated August 1, 2001 between
Project Company and MAEM.
"Products" means electric capacity, energy and/or ancillary services or
other related products which are or which may become commercially recognized in
PJM during the term of this Agreement.
"Scheduling" or "Schedule" means the acts of MAEM and/or its designated
representatives of notifying, requesting and confirming to its counterparties
and their designated representatives (including, but not limited to, PJM or any
applicable power pool, Transmission Provider or Transportation Provider) the
quantity and type of Products and/or Fuel to be delivered on any given day or
days during the period of delivery at a specified Delivery Point or the
Generating Station, as applicable.
"Transition Power Agreements" means (i) that certain Transition Power
Agreement for the District of Columbia by and between MAEM and Potomac Electric
Power Company, dated December 19, 2000, (ii) that certain Transition Power
Agreement for Maryland by and between MAEM and Potomac Electric Power Company,
dated December 19, 2000, and (iii) agreements between MAEM and third parties to
serve load which has migrated from Potomac Electric Power Company and would
otherwise have been supplied under the foregoing Transition Power Agreements.
"Transmission Providers" means the entity or entities transmitting
Products on behalf of Project Company or MAEM to or from the Delivery Point
(including, but not limited to, an independent system operator or regional
transmission organization).
"Transportation Providers" means the entity or entities transporting
Fuel on behalf of Project Company or MAEM to or from the Generating Station.
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ARTICLE 2.
POWER SALES
2.1 Purchase and Sale of Products. Project Company shall sell and
deliver and MAEM shall purchase, pay for and receive, or cause to be received,
at the Delivery Point, all Products produced by the Generating Station. The
purchase price payable to Project Company for any Product purchased or sold
hereunder shall be the amount actually received by MAEM from a third party for
such Product. For purposes of the foregoing sentence, MAEM shall be deemed to
supply the Transition Power Agreements from the PJM market and shall not be
deemed to supply Transition Power Agreements from Project Company's Generating
Station. In selling Products produced by the Generating Station, MAEM shall
attempt to maximize revenues for Project Company.
2.2 Scheduling and Offering into PJM. MAEM shall be responsible
for the Scheduling of the output of the Generating Station. MAEM may Offer the
output of the Generating Station to any customer (including, but not limited to,
PJM or any applicable control area operator, power pool, independent system
operator or Transmission Provider), and shall be responsible for any such
Offering. Without limitation, all such Scheduling and Offering strategies shall
in each case at all times be consistent with:
(a) the operating parameters and limitations of the Generating
Station, as provided by Project Company to MAEM;
(b) the limitations imposed by any transmission service
reservations for the purpose of transmitting Power from the
Generating Station;
(c) Project Company's scheduled maintenance plans;
(d) the availability of the Generating Station (including Fuel
handling and storage facilities), as communicated by Project
Company to MAEM;
(e) PJM rules and procedures in effect from time to time;
(f) other applicable requirements of any Transmission Provider
and/or Transportation Provider;
(g) Fuel availability;
(h) Good Utility Practices; and
(i) Operating protocols agreed to from time to time by the
Parties.
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2.3 Transmission and Scheduling. Project Company shall be
responsible for delivery of Products to the Delivery Point. MAEM shall arrange
and be responsible for transmission service at and from the Delivery Point and
shall Schedule or arrange for Scheduling services with its Transmission
Providers to receive all Products at the Delivery Point. MAEM shall manage
energy imbalances on behalf of Project Company and all costs and revenues
associated with energy imbalances will be attributed to the Asset Book and
charged to or paid to Project Company, as such costs and revenues are actually
incurred or received by MAEM.
2.4 Title, Risk of Loss and Indemnity. As between the Parties,
Project Company shall be deemed to be in exclusive possession and control (and
be responsible for any damages or injury caused thereby) of the Products prior
to delivery thereof at the Delivery Point, and MAEM shall be deemed to be in
exclusive possession and control (and be responsible for any damages or injury
caused thereby) of the Products at and after delivery thereof at the Delivery
Point. Project Company warrants that it will deliver to MAEM all Products free
and clear of all liens, claims and encumbrances arising prior to delivery
thereof at the Delivery Point. Title to and risk of loss related to delivered
Products shall transfer from Project Company to MAEM at the Delivery Point. Each
Party shall indemnify, defend and hold harmless each other Party from any Claims
arising from any act or incident occurring during the period when possession,
control and title to Products is vested or deemed to be vested in the
indemnifying Party, except to the extent such Claims arise from such other
Party's breach of this Agreement or its gross negligence or willful misconduct.
2.5 Regulatory Reports. MAEM will make all quarterly filings to
the Federal Energy Regulatory Commission required for Products produced by the
Generating Station.
ARTICLE 3.
FUEL SERVICES
3.1 All Requirements Fuel Supply and Delivery. MAEM shall procure
and supply to Project Company on an exclusive basis all Fuel required by the
Generating Station in accordance with Good Utility Practices and the terms and
conditions of this Agreement.
3.2 Reimbursement for Fuel. Project Company shall reimburse MAEM
for all Fuel delivered to the Generating Station at MAEM's cost plus delivery
charges and other fees and expenses incurred by MAEM in connection with the
delivery of such Fuel.
3.3 Transportation and Scheduling. Except as otherwise provided in
the Other Fuel Agreements, MAEM shall arrange and be responsible for
transportation service to deliver Fuel to the Generating Station and shall
Schedule or arrange for Scheduling services with its Transportation Providers to
deliver Fuel to the Generating Station.
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ARTICLE 4.
ADDITIONAL SERVICES
4.1 Emissions Planning and Related Responsibilities. Upon Project
Company's request, MAEM shall provide Project Company emissions planning, in
consultation with Project Company, 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. Upon Project Company's request,
MAEM will procure Emission Allowances necessary for the operation of the
Generating Station, and dispose of excess Emission Allowances, which are not
needed for the operation of the Generating Station. MAEM will charge MAEM's
actual cost of acquiring the Emission Allowances and remit the proceeds of any
Emission Allowances sales to Project Company.
4.2 Insurance. Upon Project Company's request, MAEM will procure
or assist Project Company in procuring business interruption insurance and
forced outage insurance covering the Generating Station. The costs of such
insurance will be charged to Project Company.
ARTICLE 5
ASSET BOOK
5.1 Asset Book. MAEM will establish and maintain an asset
management book for the Mid-Atlantic region (the "Asset Book") to track and
measure the financial performance of all xxxxxx and other transactions entered
into with respect to the Generating Station and the Other Generators' generating
stations, which Asset Book shall be separate from any MAEM trading book or any
other asset book maintained by MAEM for power resources managed by MAEM.
5.2 Power Market, Fuel Xxxxxx and Other Transactions. MAEM has
entered or will enter into third party bilateral contracts, forward sales,
financial products (including but not limited to, xxxxxx, swaps, contracts for
differences, options and weather derivatives) and other transactions in
connection with the Products produced by the Generating Station and Fuel
required to operate the Generating Station. The costs of such transactions
including, without limitation, purchased power costs, transmission costs, Fuel
transportation costs, third party broker costs, transaction fees and incremental
credit costs, and revenues related to such activities will be charged to or paid
to Project Company and included in the Asset Book. The costs and revenues
associated with the xxxxxx and other transactions in the Asset Book will be
charged to or paid to Project Company, as is further described in Section 8.2.
ARTICLE 6.
TERM AND TERMINATION
6.1 Term. The initial term of this Agreement shall commence on the
Effective Date and shall continue, unless earlier terminated pursuant to its
terms, until December 31, 2003. The Parties shall negotiate in good faith to
extend this Agreement.
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6.2 Early Termination Event.
(a) In the event a Generating Station is no longer owned or leased
by Project Company, this Agreement shall automatically terminate with respect to
such Generating Station, without penalty and without any further action required
by either Party, as of the effective date of the transfer of ownership or
termination of the lease of the Generating Station.
(b) In the event Project Company ceases to be an Affiliate of
MAEM, this Agreement shall automatically terminate, without penalty and without
any further action required by either Party, as of the effective date of the
transfer of ownership or control of Project Company or MAEM, as applicable.
(c) In the event lenders or lessors exercise remedies following a
Facility Lease Event of Default, Project Company may terminate this Agreement,
without penalty, upon written notice to MAEM.
6.3 Termination Events. Upon any termination of this Agreement
(including but not limited to termination pursuant to Section 9.2(a)(ii)
hereof), the Parties shall transfer any outstanding xxxxxx or otherwise settle
any transactions entered into by MAEM in connection with this Agreement which
extend beyond such termination, including but not limited to any agreement or
transactions entered into pursuant to Sections 5.1 and 5.2 hereof. Any such
transfer or settlement shall be consummated in such a manner as to assign or
convey to Project Company the full benefits and obligations of such agreements
or transactions, and to fully release MAEM from any liability or obligation
thereunder. To the extent that MAEM's rights or obligations under any such
agreement or transaction may not be assigned without the consent of a third
party, and such consent has not or cannot be obtained with the commercially
reasonable efforts of the Parties, this provision shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof or be unlawful, and the Parties, to the maximum extent permitted
by law and such agreement or transaction, shall enter into such commercially
reasonable arrangements as are necessary to fulfill the intent of this Section
6.3. The Parties further agree to take such actions, and execute and deliver
such agreements, documents, instruments and certificates, as are necessary to
consummate the transactions contemplated by this Section 6.3.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
7.1 Project Company's Representations and Warranties. Project
Company makes the following representations and warranties as a basis for its
undertakings contained herein:
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(a) Project Company is a limited liability company duly organized
and validly existing under the laws of the State of Delaware, is qualified to do
business in each foreign jurisdiction in which it transacts business, and is in
good standing under its certificate of formation and the laws of the State of
Delaware, has the requisite power and authority to own its properties, and to
carry on its business as now being conducted.
(b) Project Company has full power and authority to enter this
Agreement and perform its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company action and do not and will not contravene its organizational documents
or conflict with, result in a breach of, or entitle any party (with due notice
or lapse of time or both) to terminate, accelerate or declare a default under,
any agreement or instrument to which Project Company is a party or by which
Project Company is bound. The execution, delivery and performance by Project
Company of this Agreement will not result in any violation by Project Company of
any law, rule or regulation applicable to it. Project Company is not a party to,
nor subject to or bound by, any judgment, injunction or decree of any court or
other governmental entity which may restrict or interfere with the performance
of this Agreement by it. This Agreement is Project Company's legal, valid and
binding obligation, enforceable against Project Company in accordance with its
terms, except as (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) the remedy of specific
performance and injunctive relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(c) No consent, waiver, order, approval, authorization, permit or
order of, or registration, qualification or filing with, any court or other
governmental agency or authority is required for the execution, delivery and
performance by Project Company of this Agreement and the consummation by Project
Company of the transactions contemplated hereby.
(d) Project Company has obtained all necessary governmental
authorizations, approvals, consents, waivers, exceptions, licenses, filings,
registrations, rulings, permits, tariffs, certifications and exemptions to
perform its obligations under this Agreement.
(e) There are no Bankruptcy Proceedings pending for Project
Company or, to its knowledge, threatened against it, and there is not pending
or, to its knowledge, threatened against it, any legal proceedings that could
materially adversely affect its ability to perform its obligations under this
Agreement.
(f) No Event of Default or event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
Project Company has occurred and is continuing and no such event or circumstance
would occur as a result of its entering into or performing its obligations under
this Agreement or any other document relating to this Agreement.
7.2 MAEM's Representations and Warranties. MAEM makes the
following representations and warranties as a basis for its undertakings
contained herein:
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(a) MAEM is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, is in good standing under its
certificate of limited partnership and the laws of the State of Delaware, is
qualified to do business in each foreign jurisdiction in which it transacts
business, has the requisite power and authority to own its properties, and to
carry on its business as now being conducted.
(b) MAEM has full power and authority to enter this Agreement and
perform its obligations hereunder. The execution, delivery and performance of
this Agreement and the consummation of the Transactions contemplated hereby have
been duly authorized by all necessary limited partnership action by MAEM and do
not and will not contravene its organizational documents or conflict with,
result in a breach of, or entitle any party (with due notice or lapse of time or
both) to terminate, accelerate or declare a default under, any agreement or
instrument to which MAEM is a party or by which MAEM is bound. The execution,
delivery and performance by MAEM of this Agreement will not result in any
violation by MAEM of any law, rule or regulation applicable to it. MAEM is not a
party to, nor subject to or bound by, any judgment, injunction or decree of any
court or other governmental entity which may restrict or interfere with the
performance of this Agreement by it. This Agreement is MAEM's legal, valid and
binding obligation, enforceable against MAEM in accordance with its terms,
except as (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(c) No consent, waiver, order, approval, authorization, permit or
order of, or registration, qualification or filing with, any court or other
governmental agency or authority is required for the execution, delivery and
performance by MAEM of this Agreement and the consummation by MAEM of the
transactions contemplated hereby.
(d) MAEM has obtained all necessary governmental authorizations,
approvals, consents, waivers, exceptions, licenses, filings, registrations,
rulings, permits, tariffs, certifications and exemptions to perform its
obligations under this Agreement.
(e) There are no Bankruptcy Proceedings pending for MAEM or, to
its knowledge, threatened against it, and there is not pending or, to its
knowledge, threatened against it, any legal proceedings that could materially
adversely affect its ability to perform its obligations under this Agreement.
(f) No Event of Default or event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
MAEM has occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations under this
Agreement.
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ARTICLE 8.
BILLING AND PAYMENT
8.1 Service Fee. For services rendered by MAEM to Project Company
hereunder, Project Company shall pay MAEM a service fee equal to $55,025 per
month, commencing on the Effective Date. The service fee shall compensate MAEM
for administrative costs in fulfilling its responsibilities to Project Company
under this Agreement, including, but not limited to, personnel costs.
8.2 Netting. Each month, MAEM shall pay Project Company the
positive Net Market Revenues due for the prior month (or, if Net Market Revenues
for such month are negative, Project Company shall pay MAEM an amount equal to
such negative balance) by wire transfer to the payment address provided by the
recipient on or before the twentieth (20th) day of each month, or if such day is
not a business day, the immediately following business day. At the time of each
monthly payment, MAEM shall render to Project Company a statement detailing the
Net Market Revenues for the prior month, and shall provide Project Company with
supporting documentation for each such monthly statement, identifying
calculations underlying such Net Market Revenues.
"Net Market Revenues" means Gross Revenues minus Expenses. Net
Market Revenues shall be calculated in accordance with GAAP.
"Gross Revenues" means all revenues for a given period attributed to
the Asset Book, including, without limitation, revenues from (a) sales
of all Products from the Generating Station, (b) other sales of
Products, (c) Fuel sales, (d) sales or trades of excess Emissions
Allowances from the Generating Station, (e) financial products
(including, but not limited to, swaps, contracts for differences,
options and weather derivatives) purchased for the Asset Book, and (f)
forced outage insurance and business interruption insurance proceeds
(to the extent received by MAEM).
"Expenses" means all costs attributed to the Asset Book for
such period, including (a) costs reimbursable to MAEM pursuant to this
Agreement for performing the services including, but not limited to,
costs for (i) Fuel, (ii) Emissions Allowances, (iii) financial products
(including, but not limited to, swaps, contracts for differences,
options, and weather derivatives) purchased for the Asset Book, (iv)
broker and/or transaction fees, (v) transmission congestion contracts
for sales from the Generating Station, (vi) forced outage insurance
costs (to the extent paid by MAEM), (vii) incremental credit costs for
transactions in the Asset Book, and (viii) other costs in connection
with the services described in Articles 2, 3 and 4 hereof, and (b) the
service fee payable to MAEM in accordance with Section 8.1 hereof.
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8.3 Reports. Project Company and MAEM will cooperate to provide
monthly reports in reasonable detail showing the calculation of the Net Market
Revenues, to enable Project Company to track Net Market Revenues. Project
Company shall have the right, upon reasonable notice, to examine and/or audit
the Asset Book from time to time.
8.4 Interest and Disputed Amounts. If either Party fails to make
any payment on or before the applicable payment due date, such overdue amounts
shall accrue interest at the Interest Rate from, and including, the applicable
payment due date to, but excluding, the date of payment. Any disputed invoiced
amounts, except amounts which are manifestly inaccurate, shall be paid in full
on the applicable payment due date, subject to later return together with
interest accrued at the Interest Rate. Overpayments or underpayments identified
by the Parties shall be returned or credited, together with interest accrued at
the Interest Rate, to their rightful owners in the first following month.
ARTICLE 9.
DEFAULTS AND REMEDIES
9.1 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 9.1(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.
9.2 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 11.7.
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(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 10.
FORCE MAJEURE
10.1 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 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, provided, however, that
this provision shall not require Project Company to deliver, or MAEM to receive,
any Products at points other than the Delivery Point; 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 11.
MISCELLANEOUS PROVISIONS
11.1 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.
11.2 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
11.2.
IF TO PROJECT
COMPANY: Mirant Potomac River, LLC
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
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IF TO MAEM: Mirant Americas Energy Marketing, LP
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Department, Power
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.
11.3 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.
11.4 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.
11.5 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. Without limiting the generality of the
foregoing, all Prior Agreements are hereby terminated as of the Effective Date.
11.6 Amendments. This Agreement may not be amended except by a
writing signed by the Parties.
11.7 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.
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11.8 Limitation on Damages. NEITHER PARTY SHALL BE ENTITLED TO
RECOVER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
HEREUNDER.
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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 RIVER, LLC
MARKETING, LP
By MIRANT AMERICAS
DEVELOPMENT, INC.,
its General Partner
By: By:
---------------------------- ----------------------
Name: Xxx Xxxxx Name: Xxxx X. Xxxxxxx
Title: Vice President and Chief Title: President
Commercial Officer, East Region
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EXHIBIT A
POTOMAC RIVER GENERATING STATION
Nameplate Commercial
Unit Location Capacity Operation Date
---- -------------- --------- --------------
C1 Alexandria, VA 88 1949
---- -------------- --------- --------------
C2 Alexandria, VA 88 1950
---- -------------- --------- --------------
C3 Alexandria, VA 102 1954
---- -------------- --------- --------------
C4 Alexandria, VA 102 1956
---- -------------- --------- --------------
C5 Alexandria, VA 102 1957
---- -------------- --------- --------------
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