Exhibit
      10.13

     

    
      	
              CONFIDENTIAL
                TREATMENT

            
	
               REQUESTED
                PURSUANT TO RULE 24b-2

            
	
               

            
	
              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.

            


    

    


    EXECUTION COPY

     

    ENERGY
      MANAGEMENT AGREEMENT

     

    Dated
      November 21, 2006

     

    by
      and between 

     

    MMC
      ENERGY NORTH AMERICA, LLC,

    MMC
      CHULA VISTA LLC, and
      MMC ESCONDIDO LLC 

     

    and
      

     

    BEAR
      ENERGY LP

     

    [***]
      Confidential information has been omitted and filed separately with the
      Securities and Exchange Commission pursuant to a confidential treatment
      request.

    


    
      
        
          
          

        

        
          
          

          
            

          

        

         

      

    

     

    
      EXECUTION COPY

    

     

    TABLE
      OF CONTENTS

    

      
        	 	 	 	
                Page

              
	
                ARTICLE
                  I.

              	 	
                DEFINITIONS

              	 
	
                Section
                  1.1

              	 	
                Rules
                  of Interpretation and Construction

              	
                1

              
	
                Section
                  1.2

              	 	
                Defined
                  Terms

              	
                2

              
	 	 	 	 
	
                ARTICLE
                  II.

              	 	
                TERM;
                  ADDITIONAL UNDERTAKINGS

              	 
	
                Section
                  2.1

              	 	
                Initial
                  Term

              	
                8

              
	
                Section
                  2.2

              	 	
                Renewal
                  Term

              	
                8

              
	
                Section
                  2.3

              	 	
                Termination

              	
                9

              
	
                Section
                  2.4

              	 	
                Additional
                  Undertakings

              	
                9

              
	 	 	 	 
	
                ARTICLE
                  III.

              	 	
                RELATIONSHIP
                  OF THE PARTIES

              	 
	
                Section
                  3.1

              	 	
                Appointment
                  of Energy Manager

              	
                9

              
	
                Section
                  3.2

              	 	
                Independent
                  Contractor

              	
                9

              
	 	 	 	 
	
                ARTICLE
                  IV.

              	 	
                OBLIGATIONS
                  OF ENERGY MANAGER

              	 
	
                Section
                  4.1

              	 	
                Standards
                  of Performance

              	
                9

              
	
                Section
                  4.2

              	 	
                Limitations
                  on Energy Manager’s Authority

              	
                10

              
	
                Section
                  4.3

              	 	
                Maintenance
                  of Regulatory Approvals

              	
                10

              
	
                Section
                  4.4

              	 	
                Additional
                  Provisions

              	
                10

              
	 	 	 	 
	
                ARTICLE
                  V.

              	 	
                SERVICES

              	 
	
                Section
                  5.1

              	 	
                Power
                  Management Services

              	
                10

              
	
                Section
                  5.2

              	 	
                Gas
                  Management Services

              	
                11

              
	
                Section
                  5.3

              	 	
                MMC
                  Communications

              	
                12

              
	
                Section
                  5.4

              	 	
                No
                  Implied Duties

              	
                
                  12

                

              
	 	 	 	 
	
                ARTICLE
                  VI.

              	 	
                REPORTS,
                  RECORDS, MEETINGS, AUDITS AND AVAILABILITY

              	 
	
                Section
                  6.1

              	 	
                Reports

              	
                
                  12

                

              
	
                Section
                  6.2

              	 	
                Books
                  and Records

              	
                
                  12

                

              
	
                Section
                  6.3

              	 	
                Meetings

              	
                
                  12

                

              
	
                Section
                  6.4

              	 	
                Audits

              	
                
                  12

                

              
	
                Section
                  6.5

              	 	
                Availability
                  of Parties

              	
                13

              
	
                Section
                  6.6

              	 	
                Notice

              	
                
                  13

                

              


      


     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

    

    
       

      
        
          	
                  ARTICLE
                    VII.

                	 	
                  MMC
                    RIGHTS AND RESPONSIBILITIES

                	 
	
                  Section
                    7.1

                	 	
                  Regulatory
                    Approvals

                	
                  
                    13

                  

                
	
                  Section
                    7.2

                	
                   

                	
                  Determinations
                    of Capacity

                	
                  
                    13

                  

                
	
                  Section
                    7.3

                	 	
                  Specification
                    of Gas Characteristics

                	
                  
                    13

                  

                
	
                  Section
                    7.4

                	 	
                  Nominating,
                    Scheduling and Balancing Information

                	
                  
                    13

                  

                
	
                  Section
                    7.5

                	 	
                  Communications
                    with CAISO

                	
                  
                    13

                  

                
	
                  Section
                    7.6

                	 	
                  Bilateral
                    Transactions

                	
                  
                    13

                  

                
	
                  Section
                    7.7

                	 	
                  Operation
                    and Maintenance

                	
                  14

                
	 	 	 	
                   

                
	
                  ARTICLE
                    VIII.

                	 	
                  FEES;
                    SETTLEMENT

                	
                   

                
	
                  Section
                    8.1

                	 	
                  Monthly
                    Management Fee

                	
                  
                    14

                  

                
	
                  Section
                    8.2

                	 	
                  Settlement
                    Fees

                	
                  
                    14

                  

                
	
                  Section
                    8.3

                	 	
                  Monthly
                    Settlement Statement

                	
                  
                    14

                  

                
	
                  Section
                    8.4

                	 	
                  Adjustment
                    of Monthly Settlement Statement

                	
                  
                    14

                  

                
	
                  Section
                    8.5

                	 	
                  Payment
                    of Amounts Owed

                	
                  
                    14

                  

                
	
                  Section
                    8.6

                	 	
                  Payment
                    Netting

                	
                  
                    14

                  

                
	
                  Section
                    8.7

                	 	
                  Payment
                    of a Termination Settlement Statement

                	
                  
                    
                      15

                    

                  

                
	
                  Section
                    8.8

                	 	
                  MMC
                    Energy North America LLC as Billing, Payment and Collection
                    Agent

                	
                  15

                
	 	 	 	
                   

                
	
                  ARTICLE
                    IX.

                	 	
                  FORCE
                    MAJEURE

                	
                   

                
	
                  Section
                    9.1

                	 	
                  Applicable
                    Definition and Procedures of Force Majeure

                	
                  
                    15

                  

                
	
                  Section
                    9.2

                	 	
                  Procedure
                    For Calling Force Majeure

                	
                  16

                
	
                  Section
                    9.3

                	 	
                  Performance
                    Suspended

                	
                  17

                
	
                  Section
                    9.4

                	 	
                  End
                    of Force Majeure Event

                	
                  
                    17

                  

                
	 	 	 	
                   

                
	
                  ARTICLE
                    X.

                	 	
                  EVENTS
                    OF DEFAULT; TERMINATION

                	
                   

                
	
                  Section
                    10.1

                	 	
                  Energy
                    Manager Events of Default

                	
                  
                    17

                  

                
	
                  Section
                    10.2

                	 	
                  MMC
                    Events of Default

                	
                  18

                
	
                  Section
                    10.3

                	 	
                  Rights
                    of Non-Defaulting Party

                	
                  
                    18

                  

                
	 	 	 	
                   

                
	
                  ARTICLE
                    XI.

                	 	
                  INDEMNIFICATION

                	
                   

                
	
                  Section
                    11.1

                	 	
                  Indemnification
                    by Energy Manager

                	
                  19

                
	
                  Section
                    11.2

                	 	
                  Indemnification
                    By MMC

                	
                  
                    19

                  

                
	
                  Section
                    11.3

                	 	
                  Cooperation
                    Regarding Claims

                	
                  
                    19

                  

                
	
                  Section
                    11.4

                	 	
                  Defense
                    of Third-Party Claims

                	
                  
                    19

                  

                
	 	 	 	
                   

                
	
                  ARTICLE
                    XII.

                	 	
                  LIMITATION
                    OF LIABILITY

                	 
	
                  Section
                    12.1

                	 	
                  General
                    Limitations of Liability

                	
                  20

                
	
                  Section
                    12.2

                	 	
                  Limitation
                    of MMC’s Liability

                	
                  
                    20

                  

                
	
                  Section
                    12.3

                	 	
                  Limitation
                    of Energy Manager’s Liability

                	
                  21

                


        

      

      
         

      

    

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    EXECUTION COPY

     

    
      
        	
                ARTICLE
                  XIII.

              	 	
                CONFIDENTIALITY

              	 
	
                Section
                  13.1

              	 	
                Non-Disclosure

              	
                
                  21

                

              
	
                Section
                  13.2

              	 	
                Permitted
                  Disclosure

              	
                
                  21

                

              
	 	 	 	 
	
                ARTICLE
                  XIV.

              	 	
                REPRESENTATIONS
                  AND WARRANTIES

              	 
	
                Section
                  14.1

              	 	
                Energy
                  Manager Representations and Warranties

              	
                22

              
	
                Section
                  14.2

              	 	
                MMC
                  Representations and Warranties

              	
                23

              
	 	 	 	 
	
                ARTICLE
                  XV.

              	 	
                FINANCIAL
                  PERFORMANCE 

              	 
	 	 	 	 
	
                ARTICLE
                  XVI.

              	 	
                MISCELLANEOUS

              	 
	
                Section
                  16.1

              	 	
                Severability

              	
                24

              
	
                Section
                  16.2

              	 	
                Entire
                  Agreement

              	
                
                  24

                

              
	
                Section
                  16.3

              	 	
                Amendment

              	
                
                  24

                

              
	
                Section
                  16.4

              	 	
                Assignment;
                  Obligation of Energy Manager to Cooperate

              	
                
                  24

                

              
	
                Section
                  16.5

              	 	
                Notices

              	
                25

              
	
                Section
                  16.6

              	 	
                Additional
                  Documents and Actions

              	
                
                  25

                

              
	
                Section
                  16.7

              	 	
                Waiver

              	
                
                  25

                

              
	
                Section
                  16.8

              	 	
                Headings

              	
                
                  25

                

              
	
                Section
                  16.9

              	 	
                No
                  Third Party Beneficiary

              	
                
                  25

                

              
	
                Section
                  16.10

              	 	
                Counterparts

              	
                26

              
	
                Section
                  16.11

              	 	
                Governing
                  Law and Venue

              	
                
                  26

                

              
	
                Section
                  16.12

              	 	
                Continued
                  Performance

              	
                
                  26

                

              
	
                Section
                  16.13

              	 	
                MMC
                  Control

              	
                
                  26

                

              
	
                Section
                  16.14

              	 	
                Survival

              	
                
                  26

                

              


      

    

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

       

    

    EXHIBITS

    


    Exhibit
      A    Protocols

     

    Exhibit
      B    Fuel
      Supply Pricing Schedule

     

    Exhibit
      C    Facility
      Budget

     

    Exhibit
      D    Contacts
      

     

    Exhibit
      E    Form
      of
      Guaranty 

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    EXECUTION COPY

    


    ENERGY
      MANAGEMENT AGREEMENT

     

    This
      Energy Management Agreement (this “Agreement”),
      effective as of January 1, 2007, is between Bear Energy LP, a limited
      partnership organized and existing under the laws of the State of Delaware
      (“Energy
      Manager”),
      MMC
      Energy North America, LLC, MMC Energy Chula Vista, LLC and MMC Escondido, LLC,
      each a limited liability company organized and existing under the laws of the
      State of Delaware (collectively “MMC”).
      MMC
      and Energy Manager may be referred to each individually as a “Party”
and
      collectively as the “Parties.”
      

     

    PRELIMINARY
      STATEMENT

     

    WHEREAS,
      MMC owns and operates, directly or indirectly MMC Escondido and MMC Chula Vista
      power generation facilities (each a “Facility” and collectively “the
      Facilities”); and

     

    WHEREAS,
      Energy Manager is a marketer of wholesale power in North America and trades
      wholesale natural gas, power and other energy-related products, and provides
      energy management services; and

     

    WHEREAS,
      MMC desires to engage Energy Manager to provide Services (as defined below)
      in
      respect of each Facility. 

     

    NOW,
      THEREFORE, in consideration of the mutual covenants contained herein and other
      good and valuable consideration, the receipt and sufficiency of which are hereby
      acknowledged, the Parties hereto agree as follows:

     

    ARTICLE
      I.

    DEFINITIONS

     

    Section
      1.1 Rules
      of
      Interpretation and Construction.
      Except
      as otherwise expressly provided in this Agreement, the rules of interpretation
      and construction set forth below shall apply to this Agreement:

     

    (a)  All
      capitalized terms used in this Agreement that are not otherwise defined have
      the
      respective meanings set forth or referred to in Section 1.1. Defined terms
      in
      this Agreement include in the singular number the plural and in the plural
      number the singular. Whenever the context may require, any pronoun includes
      the
      corresponding masculine, feminine and neuter forms. 

     

    (b)  Any
      reference in this Agreement to “Section,” “Article,” or “Annex” is a reference
      to this Agreement. Unless the context requires otherwise, any reference in
      this
      Agreement to any document or instrument is a reference to that document or
      instrument and all schedules, exhibits, and attachments thereto as amended
      and
      in effect from time to time. Unless otherwise stated, any reference in this
      Agreement to any person includes its permitted successors and assigns and,
      in
      the case of any governmental authority, any person succeeding to its functions
      and capacities. The words “hereof,” “herein,” “hereto” and “hereunder” and words
      of similar import when used in this Agreement, unless otherwise expressly
      specified, refer to this Agreement as a whole and not to any particular
      provision of this Agreement. Whenever the term “including” is used in connection
      with a listing of items included within a prior reference, such listing is
      to be
      interpreted as illustrative only, and is not to be interpreted as a limitation
      on or an exclusive listing of the items included within the prior reference.
      In
      the event that any index or publication referenced in this Agreement ceases
      to
      be published, each such reference is deemed to be a reference to a successor
      or
      alternate index or publication reasonably agreed to by the Parties.


     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
          
          

          
            

          

        

         

      

    

    
       

      EXECUTION COPY

       

    

    (c)  In
      the
      event of a conflict between the text of this Agreement and any annex or exhibit,
      the terms of this Agreement shall prevail. 

     

    Section
      1.2  
      Defined Terms.

     

    As
      used
      in this Agreement, the following capitalized terms have the meanings set forth
      below: 

     

    “Affected
      Party”
has
      the
      meaning set forth in Section 9.2.

     

    “Affiliate”
means,
      with respect to any Person, any other Person that, directly or indirectly,
      (a)
      controls or owns the first Person, (b) is controlled or owned by the first
      Person or (c) is under common control or ownership with the first Person,
      where “own”
      (including, with correlative meanings, the terms “owned by” and “under common
      ownership with”) means ownership of fifty percent (50%) or more of the equity
      interests or rights to distributions on account of equity of the Person, and
      “control”
      (including, with correlative meanings, the terms “controlled by” and “under
      common control with”) means the power to direct or cause the direction of the
      management or policies of the Person, whether through the ownership of voting
      securities, by contract or otherwise.

     

    “Agreement”
has
      the
      meaning assigned to such term in the first paragraph of this
      Agreement.

     

    “Ancillary
      Services”
means
      those services defined by CAISO in its FERC Electric Tariff.

     

    “Applicable
      Law”
means
      any federal, state or local laws (including common law and criminal law), codes,
      statutes, directives, ordinances, by-laws, regulations, rules, judgments,
      consent orders and agreements with Governmental Authorities, proclamations
      or
      delegated or subordinated legislation of any Governmental Authority that are
      applicable to this Agreement, the Parties hereto, each Facility, the Services
      or
      the Transactions. 

     

    “Bankruptcy
      Code”
means
      the United States Bankruptcy Code, as amended.

     

    “Bankruptcy”
means,
      with respect to any Person, that such Person (i) files a petition or otherwise
      commences, authorizes or acquiesces in the commencement of a proceeding or
      cause
      of action under any Bankruptcy, insolvency, reorganization or similar law,
      or
      has any such petition filed or commenced against it, (ii) has a liquidator,
      administrator, receiver, trustee, conservator or similar official appointed
      with
      respect to it or any substantial portion of its property or assets, (iii) takes
      any action for its winding up or liquidation or (vi) is generally unable to
      pay
      its debts as they fall due.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

       

    

    “Billing
      Period”
means
      a
      month; provided,
      that in
      the event that this Agreement terminates or is terminated on a day other than
      the last day of a month, the last Billing Period shall run from the first day
      of
      the month in which such termination occurs through the date of such
      termination.

     

    “Business
      Day”
means
      any day on which Federal Reserve member banks in New York City are open for
      business.

     

    “CAISO”
means
      the California Independent System Operator, or any successor thereto.


     

    “Capacity”
means
      the capability of a Facility to produce Power, expressed in MW, and including
      regulatory capacity.

     

    “Collateral
      Annex”
means
      the EEI Collateral Annex attached to the Master Netting Agreement.

     

    “Confidential
      Information”
has
      the
      meaning set forth in Section 13.1.

     

    “Contract
      Price”
means
      the price of Power or Gas purchased or sold in a Power Transaction or Gas
      Transaction. 

     

    “Contract
      Quantity”
means
      that quantity of Power or Gas purchased or sold in a Power Transaction or Gas
      Transaction.

     

    “Corresponding
      Third Party Transaction”
means
      a
      transaction or series of transactions between Energy Manager and a Third Party
      that correspond(s) to a Transaction or any part of a Transaction between Energy
      Manager and MMC. 

     

    “Costs”
means,
      with respect to any day, all actual costs incurred by or on behalf of MMC
      associated with the generation, sale or transmission of Power generated by
      each
      Facility, including, but not limited to and without duplication all
      (i) costs related to Third Party Transactions or to CAISO (including all
      costs associated with participation in markets administered by CAISO), (ii)
      transmission costs and transmission losses, (iii) costs related to Ancillary
      Services, (iv) costs related to the start-up and shut down of a Facility, (v)
      costs related to the purchase of Replacement Power,
      (vi) Gas
costs,
      (vii) Gas transportation and storage costs and losses,
      and
      (viii) broker, clearing house and exchange costs, provided,
      that
      Costs do not include fixed costs that Energy Manager would incur in the absence
      of a particular Gas Transaction or Power Transaction (including those Power
      Transactions related
      to Ancillary Services) related to the Facilities.
      

     

    “Day-Ahead”
has
      the
      meaning provided in the Western Electricity Coordinating Council Preschedule
      Calendar.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

       

    

    “Defaulting
      Party”
means
      MMC in respect of MMC Events of Default, and Energy Manager, in respect of
      Energy Manager Events of Default.

     

    “Default
      Termination Date”
means
      the date that this Agreement terminates, pursuant to a Termination (Default)
      Notice.

     

    “Delivery
      Point”
      [***]

     

    “Disclosing
      Party”
has
      the
      meaning assigned to such term in Section 13.2.

     

    “EEI
      Master Agreement”
means
      the Edison Electric Institute Master Power Purchase and Sale Agreement,
      including the Gas Annex, executed between Energy Manager and MMC Energy Chula
      Vista, LLC and/or MMC Escondido, LLC, pursuant to Section 2.4.

     

    “Effective
      Date”
means
      the day beginning at 00:00:01 EPT on January 1, 2007. 

     

    “Energy
      Manager”
has
      the
      meaning provided in the introductory paragraph hereof. 

     

    “Energy
      Manager Contacts”
shall
      consist of those persons who may be designated by Energy Manager to communicate
      with MMC and with CAISO under the Service terms provided hereunder.

     

    “Energy
      Manager Event of Default”
has
      the
      meaning assigned to such term in Section 10.1.

     

    “EPT”
means
      Eastern Prevailing Time.

     

    “Event
      of Default”
means
      an MMC Event of Default or an Energy Manager Event of Default.

     

    “Facility”
has
      the
      meaning provided in the Preliminary Statement.

     

    “Facility
      Budget”
has
      the
      meaning provided in Exhibit C. 

     

    “FERC”
means
      the Federal Energy Regulatory Commission.

     

    “Force
      Majeure”
has
      the
      meaning assigned to such term in Article 9.1.

     

    “Forced
      Outage”
means
      any outage or derating at a Facility caused by equipment failure, maintenance
      or
      repair (using commercially reasonable industry standards) that is not a Planned
      Outage. 

     

    “FPA”
means
      the Federal Power Act, 16 U.S.C. §791a, et
      seq.

     

    “Gas”
means
      natural gas. 

     

    “Gas
      Management Services”
has
      the
      meaning assigned to such term in Section 5.2.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

       

    

    “Gas
      Payments”
means,
      for each Gas Transaction, an amount equal to the Contract Price multiplied
      by
      Contract Quantity pursuant to such Gas Transaction.

     

    “Gas
      Revenues”
means,
      with respect to any day, the actual revenues received by Energy Manager in
      connection with any Gas Payments. 

     

    “Gas
      Transaction”
means
      a
      purchase or sale of Gas between MMC and Energy Manager. 

     

    “Gas
      Transportation Agreement”
means
      any agreement between Energy Manager and any Transporter for the transportation
      of Gas to such Facility.

     

    “Governmental
      Authority”
means
      any federal, state, local or municipal government, governmental department,
      commission, board, bureau, agency or instrumentality, or any judicial,
      regulatory, administrative or quasi-governmental body, having or asserting
      jurisdiction over the matter in question.

     

    “Heat
      Rate”
means
      the fuel efficiency of a Facility expressed in Btu’s per net kWh
      (HHV).

     

    “Indemnified
      Party”
means,
      with respect to an indemnification by Energy Manager, MMC and with respect
      to an
      indemnification by MMC, Energy Manager.

     

    “Indemnifying
      Party”
means
      the Party providing an indemnification under Sections 11.1 or 11.2.

     

    “Initial
      Term”
has
      the
      meaning assigned to such term in Section 2.1.

     

    “Interest
      Rate”
means
      for any date, the per annum prime rate of interest as reported in the “Money
      Rates” column of The
      Wall Street Journal
      on the
      last business day of the preceding month, as the same may change from time
      to
      time, plus two percent (2%).

     

    “Losses”
means
      suits, actions, liabilities, legal proceedings, claims, demands of any Third
      Party for any and all penalties, fines, losses, costs and/or expenses of any
      kind or character including reasonable attorneys’ fees and expenses.


     

    “Master
      Netting Agreement”
means
      the Master Netting Agreement executed between Energy Manager and MMC pursuant
      to
      Section 2.4.

     

    “MMC”
      has
      the
      meaning assigned to such term in the first paragraph of this
      Agreement.
      

     

    “MMC
      Bilateral Transaction”
has
      the
      meaning assigned to such term in Section 7.6(c). 

     

    “MMC
      Credit Support”
has
      the
      meaning assigned to such term in Article 15. 

     

    “MMC
      Event of Default”
has
      the
      meaning assigned to such term in Section 10.2.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    “MMC
      Guarantor”
means
      MMC Energy, Inc. 

     

    “Monthly
      Management Fee”
means
      the amount payable to Energy Manager as set forth in Section 8.1.

     

    “Monthly
      Settlement Statement”
has
      the
      meaning assigned to such term in Section 8.3.

     

    “MW”
means
      megawatt.

     

    “MWh”
means
      megawatt-hour.

     

    “NERC-GADS
      Standards”
means
      the Generating Availability Database standards developed by the North American
      Electric Reliability Council.

     

    “Net
      Output”
means
      all Power produced by a Facility and delivered to a Delivery Point.


     

    “Non-Defaulting
      Party”
means
      MMC, in respect of any Energy Manager Event of Default, and Energy Manager,
      in
      respect of MMC Event of Default.

     

    “Non-Disclosing
      Party”
has
      the
      meaning set forth in Section 13.2.

     

    “Other
      Services”
means
      all Services other than Power Management Services and Gas Management Services
      which Energy Manager may agree to provide to MMC from time-to-time under the
      terms and conditions separately agreed upon between the Parties. 

     

    “Party”
has
      the
      meaning assigned to such term in the first paragraph of this
      Agreement.

     

    “Person”
means
      any individual, partnership, corporation, association, business, trust, limited
      liability company, Governmental Authority or other legal entity.

     

    “Planned
      Outage”
means
      an outage scheduled in advance. 

     

    “Power”
means
      electric energy as measured in MWh, and/or any other electricity related
      products or services available for sale from a Facility, including Ancillary
      Services, but does not include Resource Adequacy Capacity. 

     

    “Power
      Management Services”
has
      the
      meaning assigned to such term in Section 5.1.

     

    “Power
      Payment”
means,
      for each Power Transaction, an amount equal to the Contract Price multiplied
      by
      the Contract Quantity pursuant to such Power Transaction.

     

    “Power
      Revenues”
means,
      with respect to any day, the actual revenues received by Energy Manager in
      connection with any Power Payments, which for the avoidance of doubt, do not
      include revenues from the sale of Resource Adequacy Capacity. 

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    “Power
      Transaction”
means
      a
      specifically agreed to purchase or sale of Power between MMC and Energy Manager
      pursuant to CAISO tariff or Third Party agreement.

     

    “PPT”
means
      Pacific Prevailing Time.

     

    “Proprietary
      Transaction”
has
      the
      meaning assigned to such term in Section 7.6(d).

     

    “Prudent
      Utility Practice”
means
      the practices, methods, techniques, standards and acts that, at the time of
      the
      performance of the Parties’ obligations under this Agreement, are then commonly
      used by Persons performing similar tasks and services for natural gas-fired
      power plants in the United States, and that, at a particular time, in the
      exercise of reasonable judgment in light of the facts known at the time a
      decision was made, would have reasonably been expected to accomplish the desired
      results. Prudent Utility Practices are not intended to be limited to the optimum
      practices to the exclusion of all others, but rather reflect the practices
      then
      generally accepted, having due regard for, among other things, contractual
      obligations, costs, requirements of Governmental Authorities, operating rules
      or
      procedures of transmission operators, reliability councils or other market
      conditions. 

     

    “Real-Time”
has
      the
      meaning provided in the Western Electricity Coordinating Council Preschedule
      Calendar. 

     

    “Renewal
      Term”
has
      the
      meaning assigned to such term in Section 2.2.

     

    “Resource
      Adequacy Capacity”
means
      the quantity of capacity in MWs from a resource listed in a resource adequacy
      plan approved pursuant to Section 40 of the CAISO FERC Electric
      Tariff.

     

    “Regulatory
      Approval”
means
      all permits, licenses, consents, approvals, certifications and similar items
      issued by any Governmental Authority required in respect of or in relation
      to
      each Facility or performance of the Services. 

     

    “Replacement
      Power”
means,
      in the event that a Forced Outage, interruption of Gas delivery or curtailment
      of Power transmission occurs, the amount of Power purchased or financially
      settled by Energy Manager that shall be equal to the positive difference
      obtained by subtracting the amount of Power actually delivered from each
      Facility from the amount of Power MMC has committed to sell Energy Manager
      in a
      particular Power Transaction. 

     

    “Required
      Gas Quantity”
means
      the amount of Gas required, as determined by reference to the Heat Rate, to
      generate Power up to the Capacity of each Facility.

     

    “Revenues”
means,
      with respect to any day, the actual revenues received by or for MMC, including
      revenues from any (a) sales of Power (including those related to Ancillary
      Services), and (b) sales of Capacity.

     

    “Services”
means,
      collectively, the Power Management Services (including those related to
      Ancillary Services) and Gas Management Services that Energy Manager has agreed
      to provide hereunder, all as more specifically described in Article V, and
      Other
      Services that Energy Manager may agree to provide from time to time.


     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    “Settlement
      Date”
has
      the
      meaning assigned to such term in Section 8.5.

     

    “Settlement
      Fees”
has
      the
      meaning assigned to such term in Section 8.2.

     

    “Termination
      Date”
means
      the date that this Agreement terminates, pursuant to a Termination
      Notice.

     

    “Termination
      (Default) Notice”
means
      a
      written notice of termination delivered by the Non-Defaulting Party pursuant
      to
      Section 10.3 of this Agreement.

     

    “Termination
      Notice”
means
      a
      written notice of termination delivered by one Party to the other Party,
      pursuant to Section 2.3 of this Agreement.

     

    “Termination
      Settlement Statement”
means
      a
      statement identifying the payment due from Energy Manager to MMC or from MMC
      to
      Energy Manager when this Agreement is terminated, calculated pursuant to
      Sections 8.1 and 8.3.

     

    “Third
      Party”
means
      any Person other than MMC or Energy Manager.

     

    “Third
      Party Transaction”
means
      any Power Transaction or Gas Transaction between Energy Manager and a Third
      Party. 

     

    “Total
      Gross Margin”
means,
      with respect to MMC for any day and without duplication, (a) the sum of each
      Facility’s (i) Power Revenues plus
      (ii) Gas
      Revenues, less
      (b) the
      sum of the Facility’s (i) Power Costs plus
      (ii) Gas
      Costs.

     

    “Transaction”
means
      any Power Transaction or Gas Transaction between Energy Manager and
      MMC.

     

    “Transporter”
means
      any Person obligated to transport Gas pursuant to any Gas Transportation
      Agreement.

     

    ARTICLE
      II.

    TERM;
      ADDITIONAL UNDERTAKINGS

     

    Section
      2.1
      Initial Term.
      This
      Agreement shall commence upon the Effective Date and, unless terminated earlier
      in accordance with the terms hereof, its initial term shall expire one (1)
      year
      from the Effective Date (such period, the “Initial
      Term”);
      provided,
      however,
      that
      Energy Manager’s authority to submit bids and offers to the CAISO on behalf of
      each Facility for the delivery of Ancillary Services on January 1, 2007 shall
      commence at 00:00:01 EPT on December 31, 2006. 

     

    Section
      2.2
      Renewal Term.
      This
      Agreement will automatically extend by successive sixty (60) day periods (each
      period a “Renewal
      Term”)
      unless
      terminated pursuant to Section 2.3. 

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Section
      2.3
      Termination.
      This
      Agreement shall terminate in the event that: (i) 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; or (ii) an Event of Default has occurred
      and
      is continuing and the Non-Defaulting Party exercises its right to terminate
      under Article X. Certain provisions of this Agreement shall continue in effect
      after the Termination Date or Default Termination Date, in accordance with
      the
      provisions of Section 16.14. 

     

    Section
      2.4
      Additional Undertakings.
      Promptly following the execution of this Agreement, the Parties shall use their
      best efforts to negotiate and execute enabling EEI Master Agreements governing
      the terms of applicable Power Transactions and Gas Transactions as well as
      a
      Master Netting Agreement and the Collateral Annex attached thereto.
      Notwithstanding any provision in this Agreement: (i) Energy Manager shall have
      no obligation to procure and deliver Gas or to purchase Power from or for MMC
      unless the Parties execute the applicable EEI Master Agreements, the Master
      Netting Agreement and the Collateral Annex thereto, and such applicable EEI
      Master Agreements remain in effect during the term of this Agreement and MMC
      provides associated credit support in a form acceptable to Energy Manager
      hereunder, under the Master Netting Agreement and under the Collateral Annex;
      and (ii) EEI Master Agreements shall govern the terms of applicable Power
      Transactions and Gas Transactions entered into pursuant to this
      Agreement.

     

    ARTICLE
      III.

    RELATIONSHIP
      OF THE PARTIES

     

    Section
      3.1
      Appointment of Energy Manager.
      Subject
      to the terms of this Agreement, MMC appoints Energy Manager, and Energy Manager
      accepts the appointment, to be the exclusive provider of Services commencing
      as
      of the Effective Date. 

     

    Section
      3.2
      Independent Contractor.
      The
      relationship of Energy Manager to MMC as set forth in this Agreement is that
      of
      an independent contractor. Other than as expressly provided by Articles V,
      VI,
      VII, and VIII this Agreement shall not make any Party an agent, partner, a
      fiduciary or financial or investment advisor, joint venturer, or legal
      representative of any other Party for any purpose whatsoever. Neither Party
      is
      authorized to assume or create any obligation, liability or responsibility
      on
      behalf of or in the name of any other Party or to bind any other Party to any
      Third Party except as expressly provided for under this Agreement. 

     

    ARTICLE
      IV.

    OBLIGATIONS
      OF ENERGY MANAGER

     

    Section
      4.1
      Standards of Performance.
      Energy
      Manager shall:

     

    (a)  perform
      the Services and enter into Transactions, the authority for which have been
      expressly delegated to Energy Manager pursuant to Sections V and VI, and Article
      7.6, in a good, workmanlike and commercially reasonable manner and in accordance
      with (i) Prudent Utility Practices, (ii) Applicable Law and Regulatory
      Approvals, (iii) NERC/GADS Standards, and (iv) the applicable CAISO rules and
      procedures;

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    (b)  exercise
      all commercially reasonable efforts to provide the Services to MMC with the
      goal
      of maximizing Total Gross Margin while complying with this Agreement;
      and

     

    (c)  maintain,
      through itself or one
      or
      more service providers, sufficient
      infrastructure and related support in order to perform the Services.

     

    Section
      4.2
      Limitations on Energy Manager’s Authority.
      In
      performing the Services under this Agreement, Energy Manager shall not, unless
      otherwise expressly authorized under this Agreement or by MMC:

     

    [***]

     

    MMC
      shall
      not have any liability with respect to any Transaction undertaken by Energy
      Manager in breach of subsections (a) through (e) above, and, in addition to
      any
      other indemnity obligations in this Agreement, Energy Manager shall indemnify
      and hold harmless MMC from any claims arising in connection with such
      Transactions pursuant to the procedures in Article XI; provided,
      however,
      that
      Energy Manager’s liability under these subsections (a) through (e) above shall
      be subject to limitations stated in Section 11.2.

     

    Section
      4.3
      Maintenance of Regulatory Approvals.
      Energy
      Manager shall have and maintain such Regulatory Approvals as may be necessary
      or
      required to provide the Services, including but not limited to obtaining and
      maintaining (a) CAISO membership, and (b) any applicable FERC authorization
      to
      enter into market-based wholesale Power Transactions or Gas Transactions.


     

    Section
      4.4
      Additional Provisions.
      

     

    [***]

     

    ARTICLE
      V.

    SERVICES

     

    Section
      5.1
      Power
      Management Services.
      Subject
      to the terms of this Agreement and starting on the Effective Date, Energy
      Manager shall provide the following Power management services (“Power
      Management Services”)
      to
      MMC:

     

    (a)  submit
      Facility operational characteristics to CAISO in a manner consistent with CAISO
      tariff requirements [***]; 

     

    (b)  submit
      to
      CAISO daily and hourly Ancillary Services bids of a Facility, including
      submitting Capacity bids for spinning reserves, into the CAISO Ancillary
      Services markets, up to the Capacity associated with such Facility, provided,
      that
      CAISO has authorized the Facility to submit bids for the specific Ancillary
      Service [***]; 

     

    (c)  maintain
      a 24-hour trading desk with Energy Manager Contacts for each Facility available
      twenty-four hours a day, seven days a week during the Agreement term to serve
      as
      a primary point of contact for communications from Facility staff and CAISO
      regarding: (i) Facility operations and dispatch; (ii) ring-down requirements;
      (iii) operating emergencies, (iv) out-of-merit calls; (v) CAISO congestion
      management instructions; (vi) communicate Forced Outages and Planned Outages
      to
      CAISO;

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    (d)  submit
      to
      CAISO daily and hourly schedules for MMC Bilateral Transactions from each
      Facility [***]; 

     

    (e)  [***];

     

    (f)  submit
      Power and Capacity bids and offers for each Facility to CAISO; 

     

    (g)  [***]

     

    (h)  notify
      MMC of any Facility scheduling and Power production changes; 

     

    (i)  use
      commercially reasonable efforts to manage Power imbalances for the Facility
      with
      the intent of reducing the adverse economic impact of such Power imbalances
      [***];

     

    (j)  assist
      the Facility with the development of commercial strategies with respect to
      the
      sale of Power from the Facility; 

     

    (k)  receive
      and validate CAISO invoices; and

     

    (l)  provide
      Other Services as may be agreed to in writing by the Parties from time to time.
      

     

    Section
      5.2
      Gas
      Management Services.
      Subject
      to the terms of this Agreement and starting on the Effective Date, Energy
      Manager shall provide the following gas management services (“Gas
      Management Services”)
      to
      MMC:

     

    (a)  [***];

     

    (b)  nominate
      and schedule the delivery of Gas to the Facility and adjust the schedule to
      reflect any changes in production at such Facility [***];

     

    (c)  nominate,
      schedule and balance (including, without limitation daily and hourly) with
      suppliers and Transporters, including imbalances created in connection with
      nomination of Gas for the Facility through the use of an operational balancing
      agreement to be procured by the Facility and administered by Energy Manager
      [***]; 

     

    (d)  market
      and sell any excess Gas; and

     

    (e)  provide
      Other Services related to Gas as may be agreed to in writing by the Parties
      from
      time to time, including but not limited to, marketing excess transportation
      capacity.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Section
      5.3
      MMC
      Communications.
      In the
      provision of Services, Energy Manager may rely fully upon the communications
      from or on behalf of MMC not only as to their validity and effectiveness, but
      also as to the truth and accuracy of the information which Energy Manager shall
      in good faith believe to be genuine. MMC shall maintain sole and complete
      responsibility for ensuring that all information that MMC provides to Energy
      Manager remains current and accurate.

     

    Section
      5.4
      No
      Implied Duties.
      Energy
      Manager shall have no implied duties or obligations and shall not be charged
      with knowledge or notice of any fact or circumstance not specifically set forth
      herein. Without limiting the generality of the foregoing, the duties of Energy
      Manager with respect to Services are limited to those expressly set forth in
      this Agreement. 

     

    ARTICLE
      VI.

    REPORTS,
      RECORDS, MEETINGS, AUDITS AND AVAILABILITY

     

    Section
      6.1
      Reports.
      [***]
      

     

    Section
      6.2
      Books
      and Records.
      Energy
      Manager shall maintain in good order all records relating to the Services and
      Transactions, and retain written records for a minimum period of five (5) years
      (and otherwise as required by Applicable Law and Regulatory Approvals). To
      the
      extent practical and in accordance with its then-standing internal practices,
      Energy Manager shall ensure that such books and records are kept separate from
      its own books and records. Where records relate to disputes, appeals,
      arbitration, litigation or the settlement of claims arising out of the
      performance of this Agreement, such records shall be maintained until the
      resolution of the matter giving rise to the dispute.

     

    Section
      6.3
      Meetings.
      Energy
      Manager shall meet with MMC or other representative of MMC in person or by
      conference call at such reasonable times in any month as MMC may request and
      as
      provided for in the Protocols in Exhibit A. During such meetings, Energy Manager
      shall provide MMC, as requested, with any material information concerning new
      or
      significant changes in the Gas and Power markets applicable to each Facility.
      

     

    Section
      6.4
      Audits.
      

     

    (a)  MMC
      shall
      be entitled, upon reasonable notice to Energy Manager, no more than twice per
      year and at MMC’s sole cost, to audit all books and records kept and maintained
      by Energy Manager specifically relating to the Transactions and Energy Manager’s
      obligations under this Agreement. 

     

    (b)  If
      any
      audit conducted under subsection (a) above reveals any inaccuracy in any Monthly
      Settlement Statement pertaining to the Transactions or the Monthly Settlement
      Statement calculations referenced in Section 8.3, the necessary adjustments
      in
      such Monthly Settlement Statement and the payments thereof will be promptly
      made; provided,
      however,
      that no
      adjustment of any Monthly Settlement Statement or payment will be made unless
      objection to the accuracy thereof was made by either Party within twelve (12)
      months from the submission of such Monthly Settlement Statement or payment,
      as
      applicable. Energy Manager shall preserve all records held by it for the
      duration of the referenced audit periods.

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Section
      6.5
      Availability of Parties.
      Each
      Party shall make itself available to the other Party through telephone,
      voicemail, e-mail and/or facsimile during normal business hours, and by
      telephone, instant messaging, mobile telephone and/or pager during non-business
      hours. Energy Manager shall also make itself available to MMC through its
      24-hour power trading desk. 

     

    Section
      6.6
      Notice.
      MMC
      shall
      submit prompt written notice to Energy Manager upon obtaining knowledge of:
      (i)
      any material violation of any Applicable Law regarding a Facility; or (ii)
      any
      refusal or threatened refusal to grant, renew or extend, or any action pending
      or threatened that might affect the granting, renewal or extension of any
      Regulatory Approval, including, but not limited to, the Facility’s FERC-granted
      market-based rate authorization.

     

    ARTICLE
      VII.

    MMC
      RIGHTS AND RESPONSIBILITIES

     

    Section
      7.1
      Regulatory Approvals.
      MMC
      shall maintain all Regulatory Approvals as may be necessary to procure and
      sell
      Gas and to sell Power (including Ancillary Services) as contemplated herein,
      including obtaining and maintaining any required CAISO authorizations and the
      FERC authorization to enter into market-based transactions.

     

    Section
      7.2
      Determinations of Capacity.
      MMC
      shall have sole and absolute discretion to determine the amount of Capacity
      available for sale by Energy Manager for its respective Facility, which
      discretion it may exercise using Prudent Utility Practice based on operational
      considerations of such Facility. MMC shall be responsible for communicating
      the
      operating and dispatch procedures to Energy Manager. 

     

    Section
      7.3
      Specification of Gas Characteristics.
      MMC
      shall have the sole right and responsibility to specify the characteristics
      of
      Gas to be supplied to its respective Facility and shall bear all consequences
      associated with such characteristics. 

     

    Section
      7.4
      Nominating, Scheduling and Balancing Information.
      MMC
      shall provide Energy Manager with the information necessary to enable Energy
      Manager to comply with the nominating, scheduling, balancing and other
      requirements of any supplier, Transporter, Power purchaser or transmission
      provider and to minimize scheduling, balancing, overrun and similar penalties
      and charges.

     

    Section
      7.5
      Communications with CAISO.
      MMC
      shall communicate with CAISO or any other control areas and execute the
      necessary documentation to permit communications between CAISO and Energy
      Manager.

     

    Section
      7.6
      Bilateral Transactions.
      

     

    [***]

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Section
      7.7 Operation
      and Maintenance.
      MMC
      shall operate
      and
      maintain
      each
      Facility in a commercially reasonable manner so that it materially complies
      with
      Applicable Laws and Regulatory Approvals. MMC shall, at its expense, obtain
      all
      necessary Regulatory
      Approvals
      and
      allowances for the Facility’s operation and maintenance.

     

    ARTICLE
      VIII.

    FEES;
      SETTLEMENT

     

    Section
      8.1 [***]

     

    Section
      8.2 [***] 

     

    Section
      8.3
      [***] 

     

    Section
      8.4
      [***] 

     

    Section
      8.5
      Payment of Amounts Owed.

     

    (a)  Each
      Party shall by the twentieth (20th)
      day of
      each month, or if such day is not a Business Day, the next Business Day, (the
      “Settlement
      Date”)
      render
      to the other Party by wire transfer payment in immediately available funds
      the
      positive difference due under the Monthly Settlement Statement for the Billing
      Period in which the relevant Services were rendered.  

     

    (b)  If
      a
      Party fails to pay the entire amount shown to be due on any Monthly Settlement
      Statement when this amount becomes due (other than amounts disputed in good
      faith by such Party), it shall pay a late charge on the unpaid balance that
      shall accrue on each calendar day from the due date at the Interest Rate.


     

    (c)  If
      either
      Party, in good faith, disputes any part of any Monthly Settlement Statement,
      such Party shall provide a written explanation of the basis for the dispute
      and
      pay the portion of such Monthly Settlement Statement conceded to be correct
      no
      later than the due date as calculated pursuant to this Section. If any amount
      disputed by such Party is determined to be due to the other Party either by
      agreement between the Parties or as a result of litigation, such amount shall
      be
      paid on the next payment date for a Monthly Settlement Statement or if there
      is
      no next scheduled payment date for a Monthly Settlement Statement then within
      ten (10) days of such determination, along with interest calculated at the
      Interest Rate from the original due date until the date paid. 

     

    Section
      8.6 Payment
      Netting.
      In the
      event that Energy Manager and MMC are required to pay an amount on the same
      date
      pursuant to this Agreement or any Transaction, then such amounts shall be
      aggregated and the Parties shall discharge their obligations to pay through
      netting, in which case such Party owing the greater aggregate amount shall
      pay
      to the other Party the difference between the amounts owed. 

     

    
      [***]
        Confidential information has been omitted and filed separately with the
        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Section
      8.7 Payment
      of a Termination Settlement Statement.
      

     

    (a)  As
      soon
      as reasonably practicable following delivery of the Termination Notice, each
      Party shall prepare and deliver a Termination Settlement Statement to the other
      Party, showing in reasonable detail the amounts owing to the submitting Party.
      Each Party shall render to the other Party by wire transfer payment in
      immediately available funds, the amount due under the Termination Settlement
      Statement within two (2) Business Days following delivery of the Termination
      Settlement Statement by the second Party to provide the settlement statement.
       In
      no
      event shall calculation and payment of the Termination Settlement Statement
      delay the Termination Date.

     

    (b)  As
      soon
      as reasonably practicable following the Default Termination Date, the
      Non-Defaulting Party will calculate and deliver the Termination Settlement
      Statement to the Defaulting Party, reflecting the unpaid amounts owing to the
      Non-Defaulting Party and the unpaid amounts owing to the Defaulting Party.
      Unless otherwise provided in the Master Netting Agreement, the Party owing
      the
      greater aggregate amount shall pay the difference between the amounts owed
      to
      the other Party by wire transfer in immediately available funds within two
      (2)
      Business Days of delivery of the Termination Settlement Statement. 

     

    Section
      8.8 [***] 

     

    ARTICLE
      IX.

    FORCE
      MAJEURE

     

    Section
      9.1 Applicable
      Definition and Procedures of Force Majeure.
      Force
      Majeure shall be defined as, with respect to the Party claiming Force Majeure
      under this Agreement, any event or a combination of events that such Party
      could
      not reasonably control, foresee or prevent, and the occurrence of which neither
      the claiming Party nor its respective agents or employees, have contributed
      to,
      which events materially impede a Party from performing its obligations under
      this Agreement. Such Force Majeure events shall include, without being limited
      to, the following:

     

    (a)  acts
      of a
      public enemy, war or threat of war (declared or undeclared) occurring in or
      involving the United States, revolution, riot, rebellion, insurrection, military
      or usurped power, state of siege, declaration of a state of emergency or martial
      law (or any of the events or circumstances that will or may result in the
      declaration of a state of emergency or martial law), civil commotion, act of
      terrorism, vandalism or sabotage (in each case occurring in or involving the
      United States), embargo or blockade, declaration of public calamity (or any
      of
      the events or circumstances that will or may result in the declaration of public
      calamity);

     

    (b)  politically
      motivated or otherwise widespread strikes, suspensions, interruptions, work
      slow-downs or other labor disruptions;

     

    (c)  explosions,
      chemical or radioactive contamination or ionizing radiation;

     

    
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    (d)  air
      crashes, objects falling from aircraft, pressure waves caused by aircraft or
      aerial devices traveling at supersonic speed;

     

    (e)  any
      exercise of sovereign or executive prerogative or similar action by a
      Governmental Authority;

     

    (f)  any
      change in Applicable Law, or restraint or action or inaction of a Governmental
      Authority, resulting in a material change in a Regulatory Approval, or that
      has
      the effect of curtailing or otherwise materially restraining the output of
      either Facility; or

     

    (g)  epidemics,
      meteorites, fire, lightning, earthquake, cyclone, whirlwind, hurricane,
      earthquake, tempest, storm, drought, flood, or other unusual or extreme adverse
      weather or environmental condition or action of the elements; 

     

    provided,
      that
      Force Majeure shall not
      include
      (i) lack of a market or unfavorable market conditions for Gas or Power, (ii)
      economic hardship, (iii) failure to timely apply for or obtain, or comply with,
      Applicable Law or Regulatory Approval(s), (iv) the ability to sell Gas or Power
      to another Person at a higher price, or buy Gas or Power from another Person
      at
      a lower price, or on more favorable terms than those afforded by this Agreement
      or (v) the Bankruptcy of a Third Party (including CAISO) or such Third Party’s
      inability to make payments pursuant to the terms of a Power Transaction
      (including for Ancillary Services) or a Gas Transaction. 

     

    Section
      9.2
      Procedure For Calling Force Majeure.
      If one
      Party wishes to claim relief from the performance of its obligations arising
      under this Agreement on account of any event or circumstance of Force Majeure
      (hereinafter, the “Affected
      Party”),
      then
      the Affected Party shall give written notice to the other Party of such event
      or
      circumstance as soon as reasonably practicable after becoming aware of such
      event or circumstance. Each notice served by an Affected Party to the other
      Party pursuant to this Article 9 shall specify the event or circumstance of
      Force Majeure in respect of which the Affected Party is claiming relief and
      the
      steps being taken to mitigate and overcome the effects of such event or
      circumstances. Noncompliance by the Affected Party with the procedure specified
      herein shall relieve the other Party from accepting the Affected Party’s claim
      until notice is so provided. The Affected Party shall, by reason of any event
      or
      circumstance of Force Majeure in respect of which it has claimed relief under
      this Section 9.2:

     

    (a)  use
      its
      commercially reasonable efforts to mitigate the effects of such Force Majeure
      and to remedy any inability to perform its obligations hereunder due to such
      events as promptly as reasonably practicable; provided,
      that:
      (i) the Affected Party shall not be obliged to take any steps that would not
      be
      in accordance with Prudent Utility Practice or Applicable Laws or that would
      be
      beyond its control; and (ii) the Affected Party shall not be required to settle
      any strikes or other labor disputes on terms that are adverse to the Affected
      Party and not commercially reasonable;

     

    (b)  furnish
      periodic reports to the other Party regarding the progress in overcoming the
      adverse effects of such event of Force Majeure and setting forth its best,
      good
      faith estimate concerning when it will be able to resume the performance of
      its
      obligations under this Agreement; and

     

    
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    (c)  resume
      the performance of its obligations under this Agreement as soon as is reasonably
      practicable after the events of Force Majeure are remedied or cease to
      exist.

     

    Section
      9.3
      Performance Suspended.
      During
      the continuance of any Force Majeure, the obligations of an Affected Party
      under
      this Agreement, other than any obligation of either Party to pay money when
      due
      under the terms of this Agreement, shall be suspended to the extent such
      condition results in the Affected Party’s inability to perform its
      obligations.

     

    Section
      9.4
      End
      of Force Majeure Event.
      When
      the Affected Party is able, or would have been able if it had complied with
      its
      obligations under Section 9.2, to resume the performance of all of its
      obligations under this Agreement affected by the occurrence of an event or
      circumstance of Force Majeure, then the period of Force Majeure relating to
      such
      event or circumstance shall be deemed to have ended.

     

    ARTICLE
      X.

    EVENTS
      OF DEFAULT; TERMINATION

     

    Section
      10.1
      Energy Manager Events of Default.
      The
      occurrence of any one or more of the following events shall constitute an Energy
      Manager Event of Default (“Energy
      Manager Event of Default”)
      under
      this Agreement:

     

    (a)  the
      failure by Energy Manager to make, when due, any payment required under this
      Agreement if such failure is not remedied within three (3) Business Days after
      written notice of such failure is received by Energy Manager; or 

     

    (b)  the
      failure by Energy Manager to perform any material covenant or agreement set
      forth in this Agreement (other than as described in Sections 10.1(c) or 10.1(d))
      and such failure is not cured within three (3) Business Days after written
      notice is received by Energy Manager; or 

     

    (c)  Energy
      Manager’s Bankruptcy; or 

     

    (d)  Energy
      Manager shall either: (i) fail to maintain in full force and effect any
      Regulatory Approval necessary for the performance of the Services hereunder
      or
      for the purchase and sale of Gas or Power (including but not limited to
      Ancillary Services); or (ii) become subject to an order by any Governmental
      Authority whereby such Governmental Authority revokes or suspends any Regulatory
      Approval necessary for the performance of the Services hereunder or for the
      purchase and sale of Gas or Power (including but not limited to Ancillary
      Services); or

     

    (e)  any
      representation or warranty of Energy Manager proves to have been incorrect
      in
      any material respect as of the Effective Date. 

     

    
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      Section
        10.2
        MMC
        Events of Default.
        The
        occurrence of any one or more of the following events shall constitute a
        MMC
        Event of Default (“MMC
        Event of Default”)
        under
        this Agreement:

    

     

    (a)  the
      failure by MMC to make, when due, any payment required under this Agreement
      if
      such failure is not remedied within three (3) Business Days after written notice
      of such failure is received by MMC; or 

     

    (b)  the
      failure by MMC to perform any material covenant or agreement set forth in this
      Agreement (other than as described in Sections 10.2(c), 10.2(d), 10.2(f), or
      10.2(g)) and such failure is not cured within three (3) Business Days after
      written notice is received by MMC or the Facility; or 

     

    (c)  MMC’s
      or
      MMC Guarantor’s Bankruptcy; or

     

    (d)  MMC
      shall
      either (i) fail to maintain in full force and effect any material Regulatory
      Approval necessary to operate each Facility, or (ii) become subject to an order
      by any Governmental Authority whereby such Governmental Authority revokes or
      suspends any Regulatory Approval necessary for the operation of each Facility;
      or

     

    (e)  MMC
      shall
      either: (i) fail to maintain in full force and effect any Regulatory Approval
      necessary for the purchase and sale of Gas or Power (including, but not limited
      to Ancillary Services); or (ii) become subject to an order by any Governmental
      Authority whereby such Governmental Authority revokes or suspends any Regulatory
      Approval necessary for the purchase and sale of Gas or Power (including, but
      not
      limited to Ancillary Services); or

     

    (f)  any
      representation or warranty of MMC proves to have been incorrect in any material
      respect as of the Effective Date; or

     

    (g)  MMC
      or
      MMC Guarantor fails to provide, maintain in full force and effect, or comply
      with the MMC Credit Support obligations provided in Article 15. 

     

    Section
      10.3
      Rights of Non-Defaulting Party.
      

     

    (a)  When
      an
      Event of Default exists, the Non-Defaulting Party shall have the right to:
      (i)
      cause termination, liquidation, or acceleration of this Agreement, in whole
      or
      with respect to MMC, effective five (5) Business Days after receipt by the
      Defaulting Party of a Termination (Default) Notice by the Non-Defaulting Party
      (the “Default Termination Date”); (ii) suspend performance under this Agreement;
      (iii) withhold any payments due to the Defaulting Party under this Agreement;
      (iv) net, setoff, or recoup termination values, payment amounts or other
      transfer obligations arising under or in connection with this Agreement,
      including with respect to any Transaction; and/or (v) pursue any other remedy
      at
      law, in equity, or as provided under this Agreement. The Termination (Default)
      Notice shall specify in reasonable detail the circumstances giving rise to
      the
      Termination (Default) Notice.

     

    (b)  Notwithstanding
      the foregoing: (i) MMC has the right to terminate this Agreement, in whole
      or
      with respect either Facility, immediately in the case of the default under
      Section 10.1(c) or 10.1(d), pursuant to a Termination (Default) Notice; and
      (ii)
      Energy Manager has the right to terminate this Agreement, in whole or with
      respect to MMC, immediately in the case of default under Section 10.1(c) or
      10.1(d) pursuant to a Termination (Default) Notice. Such Termination (Default)
      Notice shall not delay the Default Termination Date. 

     

    
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    ARTICLE
      XI.

    INDEMNIFICATION

     

    Section
      11.1
      Indemnification by Energy Manager.
      Energy
      Manager shall indemnify, defend and hold harmless MMC from and against any
      and
      all Losses to the extent directly caused by: (a) the breach of any
      representation or warranty made by Energy Manager under this Agreement; (b)
      any
      breach by, or failure of, Energy Manager to perform any of its obligations
      under
      this Agreement; or (c) the gross
      negligence or willful misconduct of Energy Manager, its subcontractors or their
      respective agents or employees.

     

    Section
      11.2
      Indemnification By MMC.
      MMC
      shall indemnify, defend and hold harmless Energy Manager from and against any
      and all Losses arising out of or resulting from: (a) the Services provided
      by
      Energy Manager under this Agreement; (b) the breach of any representation or
      warranty made by MMC under this Agreement; (c) any failure of MMC to perform
      its
      obligations under this Agreement; or (d) any negligent or tortious acts or
      omissions by MMC, its subcontractors (other than Energy Manager and its
      subcontractors or their respective agents or employees) or their respective
      agents or employees. 

     

    Section
      11.3 Cooperation
      Regarding Claims.
      If
      either Party receives notice or has knowledge of any claim that may result
      in a
      claim for indemnification of Energy Manager by MMC or indemnification of MMC
      by
      Energy Manager pursuant to this Agreement, the Party in receipt of such notice
      shall, as promptly as possible, give the other Party notice of such claim,
      including a reasonably detailed description of the facts and circumstances
      relating to such claim, and a complete copy of all notices, pleadings and other
      papers related thereto.

     

    Section
      11.4
      Defense of Third-Party Claims.

     

    (a)  An
      Indemnified Party shall promptly provide the Indemnifying Party reasonably
      detailed written notification of any claims for Losses that might reasonably
      be
      expected to be subject to indemnification under this Agreement; provided,
      however,
      that
      failure to provide such prompt notice shall not relieve the Indemnifying Party
      of its obligations hereunder except to the extent such Indemnifying Party is
      prejudiced by such delay.

     

    (b)  An
      Indemnifying Party shall be entitled at its option and at its expense and with
      counsel of its selection, to assume and control the defense of any claims for
      Losses.

     

    (c)  An
      Indemnifying Party shall not settle or compromise any claim without the prior
      written consent of the Indemnified Party; provided,
      however,
      that an
      Indemnifying Party may settle or compromise such claim against an Indemnified
      Party without the consent of such Indemnified Party so long as such claim is
      solely for monetary damages that are paid in full by the Indemnifying Party
      and
      such Indemnified Party is fully released from liability by the
      claimant.

     

    (d)  Each
      Indemnified Party shall cooperate with its Indemnifying Party in connection
      with
      its defense or settlement of any claim of Losses.

     

    
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    ARTICLE
      XII.

    LIMITATION
      OF LIABILITY

     

    Section
      12.1
      General Limitations of Liability.

     

    (a) THE
      PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED
      IN
      THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY
      PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH
      EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY.
      THE
      OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL
      OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR
      MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL
      BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL
      BE
      THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN
      EQUITY ARE WAIVED.

     

    (b) NEITHER
      PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR
      INDIRECT DAMAGES, OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT
      OR
      CONTRACT, OR OTHERWISE.
      The
      Parties further agree that the waivers and disclaimers of liability,
      indemnities, releases from liability, and limitations on liability expressed
      in
      this Agreement shall survive termination of this Agreement, and shall apply
      at
      all times, whether in contract, equity, tort or otherwise.

     

    (c) IT
      IS THE
      INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE
      MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO,
      INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT
      OR
      CONCURRENT, OR ACTIVE OR PASSIVE.

     

    (d) NOTWITHSTANDING
      ANY PROVISION OF
      THIS
      AGREEMENT, THE TOTAL LIABILITY OF ENERGY MANAGER UNDER THIS AGREEMENT SHALL
      NOT
      EXCEED [***].
      

     

    Section
      12.2
      Limitation of MMC’s Liability.
      Energy
      Manager understands and agrees that, notwithstanding anything to the contrary
      herein: (a) no claim shall be made against any employee, shareholder, partner,
      member, representative, officer or director, whether past, present or future,
      of
      MMC in connection with this Agreement; (b) there shall be absolutely no personal
      liability or recourse for the payment of any amounts due hereunder, or the
      performance of any obligations hereunder against any employee, shareholder,
      partner, member, representative, officer or director, whether past, present
      or
      future, of MMC, irrespective of any failure to comply with the provisions of
      this Agreement; (d) Energy Manager shall have no right to any claim against
      MMC
      for any capital contributions from any employee, shareholder, partner, member,
      representative, officer or director, whether past, present or future, of MMC;
      and (e) the provisions of (a) through (d) are made expressly for the benefit
      of
      employees, shareholders, partners, members, representatives, officers and
      directors, whether past, present or future, of MMC.

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

    
 

    
      
        
          
          

        

        
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    Section
      12.3
      Limitation of Energy Manager’s Liability.
      MMC
      understands and agrees that, notwithstanding anything to the contrary herein:
      (a) no claim shall be made against any employee, shareholder, partner, member,
      representative, officer or director, whether past, present or future, of Energy
      Manager in connection with this Agreement; (b) there shall be absolutely no
      personal liability or recourse for the payment of any amounts due hereunder,
      or
      the performance of any obligations hereunder against any employee, shareholder,
      partner, member, representative, officer or director, whether past, present
      or
      future, of Energy Manager, irrespective of any failure to comply with the
      provisions of this Agreement; (c) MMC shall have no right to any claim against
      Energy Manager for any capital contributions from any employee, shareholder,
      partner, member, representative, officer or director, whether past, present
      or
      future, of Energy Manager; and (d) the provisions of (a) through (c) are made
      expressly for the benefit of employees, shareholders, partners, members,
      representatives, officers and directors, whether past, present or future, of
      Energy Manager.

     

    ARTICLE
      XIII.

    CONFIDENTIALITY

     

    Section
      13.1
      Non-Disclosure.
      Except
      as provided in Section 13.2, each Party agrees to hold in confidence any
      information imparted to it by the other Party which pertains to MMC’s or Energy
      Manager’s, as the case may be, business activity in any manner, and which is not
      the subject of general public knowledge, including, without limitation,
      proprietary processes (including analytics, models and frameworks), technical
      information and know-how, information concerning MMC management policies,
      economic policies, financial and other data (“Confidential
      Information”).
      Confidential Information shall not include: (a) information in the public
      domain, or (b) information obtained by a Party from a Third Party not under
      an
      obligation of nondisclosure to MMC or Energy Manager, as the case may be. This
      obligation shall continue to remain in full force and effect for two (2) years
      after the date of termination of this Agreement.

     

    Section
      13.2
      Permitted Disclosure.
      

     

    (a)  Either
      Party shall have the right to: (i) disclose Confidential Information (the
“Disclosing
      Party”)
      to any
      Governmental Authority only to the extent that such Confidential Information
      is
      necessary to comply with such Governmental Authority to avoid legal sanctions
      or
      penalties, including findings of criminal or civil contempt; and (ii) disclose
      Confidential Information with respect to any litigation arising in connection
      with this Agreement only to the extent that such Confidential Information is
      required by law, rule, regulation, procedure, subpoena, court order or court
      requirement, or is material to the issues involved in or determinative to the
      outcome of such litigation; provided,
      however,
      that
      the Disclosing Party shall first (A) give the other Party (the “Non-Disclosing
      Party”)
      as
      much prior notice of disclosure as is reasonably practicable, or if prior notice
      is not reasonably practicable, then as expeditiously as possible, to permit
      the
      Non-Disclosing Party to seek any protective order or other confidentiality
      protection as the Non-Disclosing Party, in its sole discretion and at its sole
      expense, may elect to seek; and (B) reasonably cooperate with the Non-Disclosing
      Party in protecting the Confidential Information that is to be disclosed, with
      such duty of cooperation not requiring the Disclosing Party to initiate or
      participate in any litigation or incur more than de
      minimis
      costs or
      expenses. 

     

    
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        request.

    

     

    
      
        
          
          

        

        
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    (b)  Either
      Party shall have the right to disclose Confidential Information: (i) with the
      written consent of the other Parties; or (ii) to (a) its agents, advisors,
      auditors, legal counsel and insurers; (b) its Affiliates; (c) Lenders, potential
      Lenders, investors, potential investors, rating agencies and other members
      of
      the public in connection with the financing of the development, construction
      and
      operation of either Facility, including in connection with the listing of any
      shares, stocks, securities, bonds or any other similar financial instrument,
      but
      in each case only to the extent required in connection with obtaining such
      financing and (d) potential purchasers of an interest in MMC or any Facility;
      provided,
      however,
      any
      such party receiving any Confidential Information agrees to maintain the
      confidentiality of such Confidential Information in accordance with the terms
      hereof. Lenders shall be entitled to disclose Confidential Information to any
      Governmental Authority or in connection with litigation to the extent and
      subject to the conditions under which a Disclosing Party may disclose
      Confidential Information as provided in Section 13.2(a). Notwithstanding the
      foregoing, it shall not be deemed a breach of this Section 13.2(b) if a Party
      discloses the terms or conditions of a Transaction (other than the name and
      any
      other identifying information relating to the other Party), provided
      that the
      name or any other identifying information relating to the other Party may be
      disclosed only to an entity that aggregates and reports to the public price
      data
      on an aggregate basis.

     

    ARTICLE
      XIV.

    REPRESENTATIONS
      AND WARRANTIES

     

    Section
      14.1
      Energy Manager Representations and Warranties.
      Energy
      Manager represents and warrants to MMC as of the Effective Date, and to MMC
      as
      of the Effective Date, that:

     

    (a)  Organization
      and Good Standing.
      Energy
      Manager is a limited partnership duly formed, validly existing and in good
      standing under the laws of the State of Delaware.

     

    (b)  Enforceability.
      This
      Agreement constitutes the legal, valid and binding obligation of Energy Manager,
      except as enforceability may be limited by (i) applicable Bankruptcy,
      insolvency, reorganization, moratorium or similar laws affecting the rights
      of
      creditors generally, and (ii) general principles of equity.

     

    (c)  Due
      Authorization.
      The
      execution, delivery and performance of this Agreement by Energy Manager has
      been
      duly authorized by all requisite partnership action and does not and will not
      (i) conflict with any provisions of its organizational documents or any
      Applicable Law, or (ii) breach any provision of, or give any Person the right
      to
      declare or exercise any remedy under, or to accelerate the maturity, payment
      or
      performance of, or to cancel or terminate, any agreement or instrument to which
      it is a party or by which it, its property or assets may be bound or affected,
      except for those that would not materially adversely affect Energy Manager’s
      ability to perform its obligations hereunder.

     

    
      [***]
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    (d)  Regulatory
      Approvals.
      Neither
      the execution and delivery by Energy Manager of this Agreement, nor the
      consummation by Energy Manager of any of the Transactions contemplated hereby,
      requires the consent or approval of, the registration with, the recording or
      filing of any document with, or the taking of any other action in respect of
      any
      Governmental Authority, except those which have been duly obtained and are
      in
      full force and effect, except for those that would not materially adversely
      affect Energy Manager’s ability to perform its obligations hereunder;
provided,
      however,
      that
      Energy Manager may file with the FERC such notices, if any, that it determines
      are necessary. 

     

    (e)  Litigation.
      Energy
      Manager is not a party to any legal, administrative, arbitral, investigatorial
      or other proceeding or controversy pending, or to its knowledge, threatened,
      that could materially adversely affect its ability to perform its obligations
      hereunder.

     

    (f)  Forward
      Contract Merchant, Swap Participant and Master Netting Agreement.
      Energy
      Manager is a “forward contract merchant” and / or a “swap participant” and this
      Agreement is a “master netting agreement” within the meaning of the Bankruptcy
      Code. 

     

    (g)  Contracted
      Marketer.
      Energy
      Manager shall use commercially reasonable efforts to maintain its status as
      a
“gas service provider and contracted marketer” as defined by San Diego Gas &
Electric Co.

     

    Section
      14.2
      MMC
      Representations and Warranties.
      MMC
      represents and warrants to Energy Manager, as of the Effective Date,
      that:

     

    (a)  Organization
      and Good Standing.
      MMC
      Energy North America, MMC Energy Chula Vista, LLC and MMC Escondido LLC are
      each
      a limited liability company duly formed, validly existing and in good standing
      under the laws of the State of Delaware. 

     

    (b)  Enforceability.
      This
      Agreement constitutes the legal, valid and binding obligation of MMC, except
      as
      enforceability may be limited by (i) applicable Bankruptcy, insolvency,
      reorganization, moratorium or similar laws affecting the rights of creditors
      generally and (ii) general principles of equity.

     

    (c)  Due
      Authorization.
      The
      execution, delivery and performance of this Agreement by MMC has been duly
      authorized by all requisite corporate action and does not and will not (i)
      conflict with any provisions of its organizational documents or any Applicable
      Law, or (ii) breach any provision of, or give any Person the right to declare
      or
      exercise any remedy under, or to accelerate the maturity, payment or performance
      of, or to cancel or terminate, any agreement or instrument to which it is a
      party or by which it, its property or assets may be bound or affected, except
      for those that would not materially adversely affect MMC’s ability to perform
      its obligations hereunder.

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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      EXECUTION COPY

       

    

    (d)  Regulatory
      Approvals.
      Neither
      the execution and delivery by MMC of this Agreement, nor the consummation by
      MMC
      of any of the Transactions contemplated hereby, requires the consent or approval
      of, the giving of notice of to, the registration with, the recording or filing
      of any document with, or the taking of any other action in respect of any
      Governmental Authority, except those which have been duly obtained and are
      in
      full force and effect, except for those that would not materially adversely
      affect MMC’s ability to perform its obligations hereunder; provided,
      however,
      that
      MMC may file with the FERC such notices, if any, that it determines are
      necessary. 

     

    (e)  Litigation.
      MMC is
      not a party to any legal, administrative, arbitral, investigatorial or other
      proceeding or controversy pending or, to its knowledge, threatened, that could
      materially adversely affect its ability to perform its obligations hereunder.
      

     

    (f)  Forward
      Contract Merchant, Swap Participant and Master Netting Agreement.
      MMC is
      a “forward contract merchant” and/or a “swap participant” and this Agreement is
      a “master netting agreement” within the meaning of the Bankruptcy
      Code.

     

    ARTICLE
      XV.

    FINANCIAL
      PERFORMANCE 

     

     MMC
      Credit Support.
      By
      December 15, 2006, MMC shall cause to be provided and maintained for the benefit
      of Energy Manager, collateral (the “MMC
      Credit Support”),
      in
      the form of a guaranty agreement provided by the MMC Guarantor in the form
      of
      Exhibit E attached hereto, or in any other form acceptable to Energy
      Manager.

     

    ARTICLE
      XVI.

    MISCELLANEOUS

     

    Section
      16.1
      Severability.
      If any
      provision in this Agreement is determined to be invalid, void or unenforceable
      by any court having jurisdiction, such determination shall not invalidate,
      void,
      or make unenforceable any other provision, agreement or covenant of this
      Agreement.

     

    Section
      16.2
      Entire Agreement.
      This
      Agreement, together with the Exhibits, the EEI Master Agreements, Collateral
      Annex and the Master Netting Agreement, contain the complete agreement between
      the Parties with respect to the provision of Services as contained herein and
      supersedes all other agreements, whether written or oral, with respect to the
      matters contained herein.
      In the
      event of a conflict between this Agreement, the EEI Master Agreements, the
      Collateral Annex or the Master Netting Agreement, first, the Master Netting
      Agreement shall prevail, and, second, if the conflict between the agreements
      cannot be resolved under the Master Netting Agreement, this Agreement shall
      prevail.

     

    Section
      16.3
      Amendment.
      Unless
      otherwise provided herein, no modification, amendment, or other change to this
      Agreement or the Exhibits will be binding on any Party unless consented to
      in
      writing by both Parties; provided,
      that
      MMC may revise the Operating and Dispatch Procedures as described herein.


     

    Section
      16.4
      Assignment; Obligation of Energy Manager to Cooperate.
      This
      Agreement shall be binding upon the successors and assigns of the respective
      Parties hereto, and the covenants, conditions, rights and obligations of this
      Agreement shall run until the Agreement is terminated. No assignment of this
      Agreement, in whole or in part, shall be made without the prior written consent
      of the non-assigning Party, which consent shall not be unreasonably withheld,
      conditioned or delayed. 

     

    
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    Section
      16.5
      Notices.
      All
      notices or other communications required or permitted to be given hereunder
      shall be in writing and shall be effective (a) on the day of delivery when
      delivered in person; (b) on the day (if a Business Day and, if not, on the
      next following Business Day) on which it is transmitted if transmitted before
      four o’clock (4:00) p.m., recipient’s time (on any day), and if transmitted
      after that time, on the next following Business Day, when sent by telecopy
      or
      other electronic means and electronic confirmation of error free receipt is
      received; or (c) one (1) Business Day after the day when sent by overnight
      delivery by a recognized commercial courier service. Either Party may change
      its
      address[es] for notices by giving notice to the other Party in the manner set
      forth above.

     

    (a)  Notices
      or other communications to MMC
      shall
      be directed to the representatives listed below.

     

    [***]

     

    (b)  Notices
      or other communications to Energy
      Manager shall be directed to the representatives listed below.

     

    [***]

     

    Section
      16.6
      Additional Documents and Actions.
      Each
      Party agrees to execute and deliver from time to time such additional documents,
      and take such additional actions, as may be reasonably required by the other
      to
      give effect to the purposes and intent of this Agreement.

     

    Section
      16.7
      Waiver.
      Any
      failure of any Party to enforce any of the provisions of this Agreement or
      to
      require compliance with any of its provisions at any time during the pendency
      of
      this Agreement shall in no way affect the validity of this Agreement, or any
      part hereof, and shall not be deemed a waiver of the right of any Party
      thereafter to enforce any and each such provision. None of the provisions of
      this Agreement shall be considered waived by a Party (by course of dealing
      or
      otherwise) unless such waiver is in writing and signed by such Party. No waiver
      shall be construed as a modification of any of the provisions of this Agreement
      or as a waiver of any default (present or future) hereunder or breach hereof,
      except as expressly stated in such waiver.

     

    Section
      16.8
      Headings.
      The
      headings and captions contained in this Agreement are for convenience and
      reference only and in no way define, describe, extend or limit the scope or
      intent of this Agreement or the intent of any provision contained herein.


     

    Section
      16.9
      No
      Third Party Beneficiary.
      This
      Agreement is for the sole and exclusive benefit of the Parties hereto and the
      Indemnified Parties and shall not create a contractual relationship with, or
      cause of action in favor of, any Third Party.

     

    
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    Section
      16.10
      Counterparts.
      This
      Agreement may be executed in one or more counterparts each of which shall be
      deemed an original and all of which shall be deemed one and the same
      Agreement.

     

    Section
      16.11
      Governing Law and Venue.
      THIS
      AGREEMENT SHALL BE INTERPRETED AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE
      OF NEW YORK, EXCLUSIVE OF ITS CONFLICTS OF LAWS PRINCIPLES CALLING FOR
      APPLICATION OF THE LAWS OF ANOTHER STATE (OTHER THAN SECTION 5-1401 OF THE
      NEW
      YORK GENERAL OBLIGATIONS LAW). The Parties hereby irrevocably consent to
      exclusive venue and jurisdiction in the federal courts in the Southern District
      of New York. The Parties hereby irrevocably waive their right to a jury trial
      to
      the fullest extent permitted by law.

     

    Section
      16.12
      Continued Performance.
      The
      Parties shall continue to perform under this Agreement during the pendency
      of
      any dispute hereunder.

     

    Section
      16.13
      MMC
      Control.
      Notwithstanding anything in this Agreement to the contrary, MMC retains and
      shall retain ultimate decision-making authority and control with respect to
      each
      respective Facility for purposes of Part II of the FPA, including ultimate
      decision-making authority and control relating to the operation of such Facility
      and the sale of Power (including Ancillary Services) from such Facility. Without
      limiting the generality of the foregoing sentence with respect to MMC, neither
      Energy Manager nor its agent has the ability under this agreement or otherwise
      to direct the dispatch of, or sales from, each Facility with respect to Capacity
      that is subject to a tolling agreement. 

     

    Section
      16.14
      Survival.
      Notwithstanding any provisions herein to the contrary, the obligations set
      forth
      in Section 6.4(b) shall survive termination as set forth in such section, and
      the obligations of each Party in Articles VIII and XIII shall survive
      indefinitely. 

     

    [THE
      REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]

     

    
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    IN
      WITNESS WHEREOF, the following Parties have executed this Agreement as of the
      21st day of November, 2006. 

    
      	 	 	 
	 	
              MMC
                ENERGY NORTH AMERICA, LLC

            
	 
 	 
 	 
 
	
            	By:  	/s/
              Alex
              Sokoletsky
	 	
              

              Name:
                Alex Sokoletsky

              Title:
                Vice-President

            


    

    
      	 	 	 
	 	
              MMC
                ENERGY CHULA VISTA, LLC

            
	 
 	 
 	 
 
	 	By:  	/s/
              Alex
              Sokoletsky
	 	
              

              Name:
                Alex Sokoletsky

              Title:
                Vice-President

            


    

    
      	 	 	 
	 	
              MMC
                ESCONDIDO, LLC

            
	 
 	 
 	 
 
	
            	By:  	/s/
              Alex
              Sokoletsky
	 	
              

              Name:
                Alex Sokoletsky

              Title:
                Vice-President

            


    

    
      	 	 	 
	 	
              BEAR
                ENERGY LP

            
	 
 	 
 	 
 
	
            	By:  	/s/ JoAnn
              P. Russell
	 	
              

              Name:
                JoAnn P. Russell

              Title:
                Managing Director

            


    

     

    
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    Exhibit
      A

    Protocols

     

    [***]

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Exhibit
      B

    Fuel
      Supply Pricing Schedule 

    


    [***]

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Exhibit
      C

    Facility
      Budget

    


    [***]

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

    
 

    
      
        
          
          

        

        
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    Exhibit
      D

    Contacts

    


    
      	
              MMC
                Energy North America, LLC. - Contact List

            
	
              Contact

            	
              Email

            	
              Phone

            	
              Mobile

            


    

    


    [***]

    


    
      	
              Bear
                Energy LP - Contact List

            
	
              Contact

            	
              Email

            	
              Phone

            	
              Mobile

            


    

    


    [***]

     

    
      [***]
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

     

    
      
        
          
          

        

        
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    Exhibit
      E

    Form
      of Guaranty

     

    GUARANTY

    


    GUARANTY,
      dated
      as of [·],
      by
MMC
      ENERGY, INC.,
      a
      Delaware corporation (the “Guarantor”),
      in
      favor of BEAR
      ENERGY LP,
      a
      limited partnership organized under the laws of the State of Delaware (the
      “Beneficiary”).

    


    
      
        	(a)	
                Guaranty.

              


      

    

    


    
      	
            	(i)	
              In
                connection with the EEI Master Power Purchase and Sale Agreement,
                dated as
                of {Master Agreement date} (the “Master
                Agreement”),
                and the Energy Management Agreement dated as of January 1, 2007 (the
                “Agreement”),
                between Beneficiary and MMC Energy North America, LLC, MMC Energy
                Chula
                Vista, LLC and MMC Escondido, LLC, each a limited liability company
                organized and existing under the laws of the State of Delaware,
                (collectively the “Counterparty”),
                subject to the terms and conditions set forth herein and effective
                from
                the date of the Agreement, the Guarantor irrevocably and unconditionally
                guarantees to the Beneficiary, its successors and permitted assigns,
                the
                prompt payment on demand, of any amount due and payable to the Beneficiary
                under the Agreement, subject to any applicable grace period thereunder
                (the “Obligations”).

            


    

    


    
      	
            	(ii)	
              The
                Guarantor hereby waives acceptance of this Guaranty, diligence,
                promptness, presentment, demand on Counterparty for payment, protest
                of
                nonpayment and all notices of any kind. In addition, the Guarantor’s
                obligations hereunder shall not be affected by the existence, validity,
                enforceability, perfection, or extent of any collateral therefor.
                The
                Beneficiary shall not be obligated to proceed against Counterparty
                before
                claiming under the Guaranty nor to file any claim relating to the
                Obligations in the event that Counterparty becomes subject to a
                bankruptcy, reorganization or similar proceeding, and the failure
                of the
                Beneficiary so to file shall not affect the Guarantor’s obligations
                hereunder. The Guarantor agrees that its obligations under this Guaranty
                constitute a guaranty of payment and not of
                collection.

            


    

    


    
      
        
          	(b)	
                  Consents,
                    Waivers and Renewals.
                    The Guarantor agrees that the Beneficiary, may at any time and
                    from time
                    to time, either before or after the maturity thereof, without
                    notice to or
                    further consent of the Guarantor, extend the time of payment
                    of, exchange
                    or surrender any collateral for, or renew any of the Obligations,
                    and may
                    also make any agreement with Counterparty or with any other party
                    to or
                    person liable on any of the Obligations, or interested therein,
                    for the
                    extension, renewal, payment, compromise, discharge or release
                    thereof, in
                    whole or in part, or for any modification of the terms thereof
                    or of any
                    agreement between the Beneficiary and Counterparty or any such
                    other party
                    or person, without in any way impairing or affecting this Guaranty.
                    The
                    Guarantor agrees that the Beneficiary may resort to the Guarantor
                    for
                    payment of any of the Obligations, whether or not the Beneficiary
                    shall
                    have resorted to any collateral security, or shall have proceeded
                    against
                    any other obligor principally or secondarily obligated with respect
                    to any
                    of the Obligations.

                


        

      

    

     

    
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

       

    

    
      
        
          
          

        

        
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      	(c)	
              Expenses.
                The Guarantor agrees to pay on demand all out-of-pocket expenses
                (including without limitation the reasonable fees and disbursements
                of
                Beneficiary’s counsel) incurred in the enforcement or protection of the
                rights of the Beneficiary hereunder; provided,
                that the Guarantor shall not be liable for any expenses of the Beneficiary
                if no payment under this Guaranty is
                due.

            


    

    


    
      	(d)	
              Subrogation.
                The Guarantor will not exercise any rights that it may acquire by
                way of
                subrogation until all Obligations to the Beneficiary shall have been
                paid
                in full. If any amount shall be paid to the Guarantor in violation
                of the
                preceding sentence, such amount shall be held for the benefit of
                the
                Beneficiary and shall forthwith be paid to the Beneficiary to be
                credited
                and applied to the Obligations, whether matured or unmatured. Subject
                to
                the foregoing, upon payment of all the Obligations, the Guarantor
                shall be
                subrogated to the rights of the Beneficiary against Counterparty
                and the
                Beneficiary agrees to take at the Guarantor’s expense such steps as the
                Guarantor may reasonably request to implement such
                subrogation.

            


    

    


    
      	(e)	
              Cumulative
                Rights.
                No failure on the part of the Beneficiary to exercise, and no delay
                in
                exercising, any right, remedy or power hereunder shall operate as
                a waiver
                thereof, nor shall any single or partial exercise by the Beneficiary
                of
                any right, remedy or power hereunder preclude any other or future
                exercise
                of any right, remedy or power. Each and every right, remedy and power
                hereby granted to the Beneficiary or allowed it by law or other agreement
                shall be cumulative and not exclusive of any other, and may be exercised
                by the Beneficiary from time to
                time.

            


    

    


    
      	(f)	
              Representations
                and Warranties.

            


    

    


    
      	
            	(i)	
              The
                Guarantor is a corporation duly existing under the laws of the State
                of
                [·].

            


    

    


    
      	
            	(ii)	
              The
                execution, delivery and performance of this Guaranty have been duly
                authorized by all necessary corporate action and do not conflict
                with any
                provision of law, any regulation, or the Guarantor’s charter or by-laws,
                or any agreement binding upon it.

            


    

    


    
      	
            	(iii)	
              No
                consent, approval and authorization of, registration with, or declaration
                to any governmental authority are required in connection with the
                execution, delivery and performance of this
                Guaranty.

            


    

    


    
      	
            	(iv)	
              This
                Guaranty constitutes the legal, valid and binding obligation of the
                Guarantor, enforceable against the Guarantor in accordance with its
                terms,
                subject as to enforcement to bankruptcy, insolvency, reorganization
                and
                other laws of general applicability relating to or affecting creditors’
                rights and to general equity
                principles.

            


    

    


    
      
        	(g)	
                Continuing
                  Guaranty.
                  The Guaranty shall remain in full force and effect and be binding
                  upon the
                  Guarantor and its successors and permitted assigns, and inure to
                  the
                  benefit of the Beneficiary and its successors and permitted assigns,
                  until
                  all of the Obligations have been satisfied in full. In the event
                  that any
                  payment by Counterparty in respect of any Obligations is rescinded
                  or must
                  otherwise be returned for any reason whatsoever, the Guarantor
                  shall
                  remain liable hereunder in respect of such Obligations as if such
                  payment
                  had not been made.

              


      

    

     

    
      [***]
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

       

    

    
      
        
          
          

        

        
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            	(h)	
                    
                      Notices.
                        All notices in connection with this Guaranty shall be deemed
                        effective, if
                        in writing and delivered in person or by courier, on the
                        date delivered to
                        the following address (or such other address that the Guarantor
                        shall
                        notify the Beneficiary of in
                        writing):

                    

                  


          

        

         

      

    

    GUARANTOR

    [Address]

    


    Attention:
      

    With
      a
      copy to: 

    


    
      
        	(i)	
                Governing
                  Law.
                  The Guaranty shall be governed by, and construed in accordance
                  with, the
                  laws of the State of New York, without reference to choice of law
                  doctrine.

              


      

    

    


    IN
      WITNESS WHEREOF, this Guaranty has been duly executed and delivered by the
      Guarantor to the Beneficiary as of the date first above written.

     

    
      
        GUARANTOR


        
          	
                  By:

                	 	 

                  

                  Name:

                  
                    Title:

                  

                	 


        

      

    

     

    
      [***]
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        Securities and Exchange Commission pursuant to a confidential treatment
        request.

    

    


    
      
        
        

      

      
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