Exhibit 10.20(b)


 


POWER SALE, FUEL SUPPLY 

AND SERVICES AGREEMENT


 


THIS
POWER SALE, FUEL SUPPLY AND SERVICES AGREEMENT (this
“Agreement”), dated as of January 1, 2004 (the “Effective Date”), is by
and between MIRANT AMERICAS ENERGY MARKETING, LP,
a Delaware limited partnership (“MAEM”), and MIRANT CHALK POINT, LLC, a Delaware limited liability
company (the “Project Company”).


 


RECITALS


 


WHEREAS,
Project Company owns and operates certain of the electric generating units at
the Chalk Point Generating Station as set forth on Exhibit A hereto (the “Generating
Station”);


 


WHEREAS,
Project Company desires to contract herein to sell capacity, electricity and/or
ancillary services to MAEM, and MAEM desires to purchase such capacity,
electricity and/or ancillary services on the terms and conditions set forth
herein; and


 


WHEREAS,
Project Company desires that MAEM perform certain services related to the
management and operation of the Generating Station,
and MAEM desires to perform such services.


 


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


 


ARTICLE 1.


DEFINITIONS


 


The
following capitalized terms, whether used in the singular or plural, shall be
defined as provided in this Article 1.


 


“Asset
Companies” means any affiliates of MAEM either directly or indirectly owned
by Mirant Corporation, other than Mirant Chalk Point, LLC, which own electric
generating facilities in the United States.


 


“Bankruptcy
Court” means the United States Bankruptcy Court, Northern District of
Texas, Fort Worth Division.


 


“Chapter
11 Proceeding” means the jointly administered bankruptcy cases under
Chapter 11 of the United States Bankruptcy Code, 11 U.S.C., of Mirant
Corporation and its affiliated debtors, Case No. 03-46590 (DML)11 in the Bankruptcy Court.


 





















 


“Claims”
means all claims or actions, threatened or filed, whether groundless, false or
fraudulent, that directly or indirectly relate to the subject matter of an
indemnity, and the resulting losses, damages, expenses, attorneys’ fees and
court costs, whether incurred by settlement or otherwise, and whether such
claims or actions are threatened or filed prior to or after the termination of
this Agreement.


 


“Delivery
Point” means either (i) the high side of the generation step-up
transformer located at the Generation Facility, where it connects to the
Transmission Provider’s transmission system, or (ii) such other point on
the Transmission Provider’s transmission system as MAEM and the Project Company
may determine (for all Products delivered from sources other than the
Generating Station).


 


“Effective
Date” has the meaning set forth in the Preamble.


 


“Emission
Allowances” means authorizations under state or federal (as applicable) air
quality regulations to emit either one ton of nitrogen oxides (“NOx”) or sulfur
dioxide (“SO2”).


 


“Event
of Default” has the meaning set forth in Section 9.1.


 


“Expenses”
has the meaning set forth in Section 8.2.


 


“Facility
Lease Event of Default” shall have the meaning ascribed to such term in the
Participation Agreements dated as of December 18, 2000 among Mirant
Mid-Atlantic, LLC and the owners of the leased assets at the Dickerson and
Morgantown generating stations, Wilmington Trust Company and State Street Bank
and Trust Company of Connecticut, National Association.


 


“Force
Majeure” means an event or circumstance
which prevents one Party from performing its obligations, which event or
circumstance was not anticipated as of the date the transaction was agreed to,
which is not within the reasonable control of, or the result of the negligence
of, the claiming Party, and which, by the exercise of due diligence, the claiming
Party is unable to overcome or avoid or cause to be avoided.  Force Majeure shall not be based on (i) the
loss of MAEM’s markets; (ii) MAEM’s inability economically to use or
resell the Product purchased hereunder; (iii) the loss or failure of Project
Company’s supply; or (iv) Project Company’s ability to sell the Product at
a price greater than the purchase price set forth in this Agreement.  Neither Party may raise a claim of Force
Majeure based in whole or in part on curtailment by a Transmission Provider
unless (i) such Party has contracted for firm transmission with a
transmission provider for the Product to be delivered to or received at the
Delivery Point and (ii) such curtailment is due to “force majeure” or “uncontrollable
force” or a similar term as defined under the Transmission Provider’s tariff;
provided, however, that existence of the foregoing factors shall not be
sufficient to conclusively or presumptively prove the existence of a Force
Majeure absent a showing of other facts and circumstances which in the
aggregate with such factors establish that a Force Majeure as defined in the
first sentence hereof has occurred.


 


“Fuel”
means Fuel Oil, natural gas or coal, as dictated by context.


 


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“Fuel
Oil” means No. 2 or No. 6 Fuel Oil, as dictated by context.


 


“Fuel
Oil Delivery Point” means the physical location at which MAEM shall arrange
for its Fuel Oil supplier(s) to transfer possession of Fuel Oil to Project
Company.


 


“Fuel
Oil Index Price” is the mean
published price (in $/barrel) for 0.3%, 0.7% or 1% sulfur, as applicable, high
pour Fuel Oil (No. 6 Fuel Oil) for New York Harbor cargo delivery as
published in Platt’s Oilgram plus $0.25.


 


“Generating
Station” has the meaning provided in the recitals.


 


“Good
Utility Practices” mean any of the practices, methods or acts engaged in or
approved by a significant portion of the electric energy industry with respect
to similar facilities during the relevant time period which in each case, in
the exercise of reasonable judgment in light of the facts known or that should
have been known at the time a decision was made, could have been expected to
accomplish the desired result at reasonable cost consistent with good business
practices, reliability, safety, law, regulation, environmental protection and
expedition.  Good Utility Practices are
not intended to be limited to the optimum practices, methods or acts to the
exclusion of all others, but rather to delineate the acceptable practices,
methods or acts generally accepted in such industry.


 


“Gross
Revenues” has the meaning provided in Section 8.2.


 


“Interest
Rate” means, for any date, two percent (2%) over the per annum rate of
interest equal to the prime lending rate as may from time to time be published
in the Wall Street Journal under “Money Rates”; provided that the Interest Rate
shall never exceed the maximum interest rate permitted by applicable law.


 


“MIRMA
Asset Book” has the meaning set forth in Section 5.1.


 


“Net
Market Revenues” has the meaning set forth in Section 8.2.


 


“Offer”
or “Offering” means the nomination or offering to sell the output of the
Generating Station.


 


“Party”
means any of MAEM or Project Company.  In
the context where MAEM is referenced as a “Party,” a reference to the “other
Party” shall mean Project Company.  In
the context where Project Company is referenced as a “Party,” a reference to
the “other Party” shall mean MAEM. 
References to “either Party” or the “Parties” shall have comparable
meanings.


 


“PJM”
means the market of PJM Interconnection, LLC, or its successor.


 


“Products”
means electric capacity, energy and/or ancillary services or other related
products which are or which may become commercially recognized in PJM during
the term of this Agreement.


 


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“Scheduling”
or “Schedule” means the acts of MAEM and/or its designated
representatives of notifying, requesting and confirming to its counterparties
and their designated representatives (including, but not limited to, PJM or any
applicable power pool, independent system operator, Transmission Provider or
Transportation Provider) the quantity and type of Products and/or Fuel to be
delivered on any given day or days during the period of delivery at a specified
Delivery Point or the Generating Station, as applicable.


 


“Transition
Power Agreements” means (i) that certain Transition Power Agreement
for the District of Columbia by and between MAEM and Potomac Electric Power
Company, dated December 19, 2000, as amended by Amendment No. 1 to
Transition Power Agreement dated October, 2001, and by Amendment No. 2 to
Transition Power Agreement dated October 24, 2003, (ii) that certain
Transition Power Agreement for Maryland by and between MAEM and Potomac
Electric Power Company, dated December 19, 2000, as amended by Amendment No. 1
to Transition Power Agreement dated October, 2001, and by Amendment No. 2
to Transition Power Agreement dated October 24, 2003 and (iii) agreements
between MAEM and third parties to serve load which has migrated from Potomac
Electric Power Company and would otherwise have been supplied under the
foregoing Transition Power Agreements.


 


“Transmission
Providers” means the entity or entities transmitting Products on behalf of
Project Company or MAEM to or from the Delivery Point (including, but not
limited to, an independent system operator or regional transmission
organization).


 


“Transportation
Providers” means the entity or entities transporting Fuel on behalf of
Project Company or MAEM to or from the Generating Station.


 


ARTICLE 2.


POWER SALES


 


2.1                                 Purchase
and Sale of Products.  Project
Company shall sell and deliver and MAEM shall purchase, pay for and receive, or
cause to be received, at the Delivery Point, all Products produced by the
Generating Station.  The purchase price
payable to Project Company for any Product purchased or sold hereunder shall be
the amount actually received by MAEM from a third party for such Product.  For purposes of the foregoing sentence, MAEM
shall be deemed to supply the Transition Power Agreements from the PJM market
and shall not be deemed to supply Transition Power Agreements from Project
Company’s Generating Station.  In selling
Products produced by the Generating Station, MAEM shall attempt to maximize Net
Market Revenues for the Project Companies.


 


2.2                                 Scheduling
and Offering into PJM.  MAEM shall be
responsible for the Scheduling of the output of the Generating Station.  MAEM may Offer the output of the Generating
Station to any customer (including, but not limited to, PJM or any applicable
control area operator, power pool, independent system operator or Transmission
Provider), and shall be responsible for any such Offering.  Without limitation, all such Scheduling and
Offering strategies shall in each case at all times be consistent with:


 


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(a)                                  the operating parameters and limitations of the Generating
Station, as provided by Project Company to MAEM;


 


(b)                                 the limitations imposed by any transmission service
reservations for the purpose of transmitting Power from the Generating Station;


 


(c)                                  Project
Company’s scheduled maintenance plans;


 


(d)                                 the availability of the Generating Station (including Fuel
handling and storage facilities), as communicated by Project Company to MAEM;


 


(e)                                  PJM
rules and procedures in effect from time to time;


 


(f)                                    other applicable requirements of any Transmission Provider
and/or Transportation Provider;


 


(g)                                 Fuel
availability;


 


(h)                                 Good
Utility Practices; and


 


(i)                                     Operating
protocols agreed to from time to time by the Parties.


 


2.3                                 Transmission
and Scheduling.  Project Company
shall be responsible for delivery of Products to the Delivery Point.  MAEM shall arrange and be responsible for
transmission service at and from the Delivery Point and shall Schedule or
arrange for Scheduling services with its Transmission Providers to receive all
Products at the Delivery Point.


 


2.4                                 Title,
Risk of Loss and Indemnity.  As
between the Parties, Project Company shall be deemed to be in exclusive
possession and control (and be responsible for any damages or injury caused
thereby) of the Products prior to delivery thereof at the Delivery Point, and
MAEM shall be deemed to be in exclusive possession and control (and be
responsible for any damages or injury caused thereby) of the Products at and
after delivery thereof at the Delivery Point. Project Company warrants that it
will deliver to MAEM all Products free and clear of all liens, claims and
encumbrances arising prior to delivery thereof at the Delivery Point.  Title to and risk of loss related to delivered Products shall transfer from Project Company to
MAEM at the Delivery Point.  Each Party
shall indemnify, defend and hold harmless each other Party from any Claims
arising from any act or incident occurring during the period when possession,
control and title to Products is vested or deemed to be vested in the
indemnifying Party, except to the extent such Claims arise from such other
Party’s breach of this Agreement or its gross negligence or willful misconduct.


 


2.5                                 Regulatory
Reports.  MAEM will make all
quarterly filings to the Federal Energy Regulatory Commission required for
Products produced by the Generating Station.


 


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ARTICLE 3.


FUEL SERVICES


 


3.1                                 All
Requirements Fuel Supply and Delivery. 
MAEM shall procure and supply to Project Company on an exclusive basis
all Fuel required by the Generating Station in accordance with Good Utility
Practices and the terms and conditions of this Agreement.


 


3.2                                 Reimbursement
for Fuel.  Project Company shall
reimburse MAEM for all Fuel delivered to the Generating Station as follows:


 


(a)                                  Fuel
consisting of natural gas shall be reimbursed at the market price of such gas,
including transportation charges, on the delivery date.


 


(b)                                 Fuel
consisting of coal shall be reimbursed at MAEM’s cost plus delivery charges and
other fees and expenses incurred by MAEM in connection with the delivery of
such coal.


 


(c)                                  Residual
Fuel Oil delivered to Project Company shall be reimbursed at the Fuel Oil Index
Price on the day the Fuel Oil is consumed by the Generating Station.  No. 2 Fuel Oil delivered to Project
Company (including the costs of transportation) shall be reimbursed at MAEM’s
actual cost.


 


3.3                                 Transportation
and Scheduling.  Except as otherwise
provided in the Other Fuel Agreements, MAEM shall arrange and be responsible
for transportation service to deliver Fuel to the Generating Station and shall Schedule or
arrange for Scheduling services with its Transportation Providers to deliver Fuel
to the Generating Station.


 


3.4                                 Fuel
Oil Supply to the Generating Station.


 


3.4.1                        Measurement of and Title to
Fuel Oil Inventory.  MAEM shall have
title to all Fuel Oil inventory at the Generating Station until such Fuel Oil
is delivered to the input flange of each unit at the Generating Station.


 


3.4.2                        Transfer of Title to Fuel
Oil at Termination.             Upon
termination of this Agreement, MAEM shall transfer and sell to Project Company
and Project Company shall purchase, take title to and pay MAEM for Fuel Oil
inventories at the Generating Station, as measured at midnight on the date of
transfer.  The purchase price owed by
Project Company to MAEM for the on-hand Fuel Oil inventories shall be based on
the Fuel Oil Index Price on the date of transfer and shall be payable within
three (3) business days after such date of transfer.  Project Company shall also pay the Fuel Oil
Index Price as of the transfer date for any Fuel scheduled for delivery in
accordance with the terms and provisions of this Agreement prior to the date of
termination and actually delivered after the date of termination.


 


3.4.3                        Fuel Oil Specifications and
Testing.


 


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(a)                                  Fuel
Oil supplied by MAEM to the Fuel Oil Delivery Point shall be of a quality
meeting or better than the specifications for Fuel Oil provided by Project
Company from time to time (“Fuel Oil Specifications”).  Project Company and MAEM shall each notify
one another of any material failure of Fuel Oil to comply with the Fuel Specifications
as soon as any Party becomes aware of same.


 


(b)                                 MAEM,
at its own expense, shall arrange for testing of Fuel Oil on the water and
testing associated with any blending activities initiated by MAEM.  Project Company shall be responsible for
routine tests performed prior to transferring Fuel Oil between tanks and prior
to burning Fuel Oil.


 


3.4.4                        Failure of Fuel Oil to
Materially Conform to Fuel Specifications.


 


(a)                                  If
Fuel Oil tendered for delivery under this Agreement to the Fuel Oil Delivery
Point fails for any reason to materially conform to the Fuel Oil
Specifications, Project Company may refuse all or any part of such Fuel Oil
(giving MAEM the reasons for such refusal as soon as practical).


 


(b)                                 To
the extent Fuel Oil is delivered to the Fuel Oil Delivery Point and is not in
compliance with the Fuel Oil Specifications, and such non-compliance is not
approved by Project Company, Project Company may instruct MAEM to arrange at no
cost to Project Company for the reasonably expeditious removal of any such
non-compliant Fuel Oil from the Fuel storage tanks.


 


3.4.5                        Fuel Oil Loading, Unloading,
Storage and Handling Facilities


 


(a)                                  Project
Company shall, as soon as practical under the circumstances, provide MAEM with
notice of any applicable operating constraints affecting their Fuel storage
tanks. Project Company shall provide MAEM with a daily inventory, storage tank
farm analysis report, and the volume of Fuel Oil delivered to the Fuel Oil
Delivery Point.  Further, Project
Company, after each delivery of Fuel Oil to Fuel storage tanks, shall provide
MAEM with a terminal port log/discharge report and the current delivery
analysis report.


 


(b)                                 Project
Company, at its own expense, and in accordance with Good Utility Practices,
will maintain, operate and restore to operable condition, or contract with
third parties for such maintenance, operation and restoration of, the Fuel Oil
terminals, loading, unloading, storage and handling
facilities at the Generating Station. Project Company shall maintain in effect
all permits necessary for such operation. Project Company shall pay loading,
unloading, storage and handling
expenses for Fuel Oil delivered to the Generating Station. Project Company and
MAEM shall work together to coordinate in advance all vessel deliveries to the Fuel Oil Delivery Point with the
objective of minimizing the expense of such deliveries. All operations at the
Fuel Oil terminal, including, without limitation, Fuel Oil loading, unloading,
storage and handling


 


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operations, shall be performed in
accordance with the operating procedures mutually agreed upon by Project
Company and MAEM.


 


3.4.6                        Fuel Oil Loading, Unloading,
Storage and Handling Procedures. Project Company may maintain and provide
to MAEM, from time to time, Fuel operations, safety and handling standards and
procedures to be followed by Project Company, MAEM and their contractors,
agents, employees and suppliers to the Generating Station.  MAEM shall provide such standards to their
contractors, agents and suppliers.


 


3.4.7                        Metering. Project
Company shall be responsible for reading the Fuel Oil supply meters at the
Generating Station in accordance with Good Utility Practices.  Project Company shall provide the data from
such daily Fuel Oil supply meter readings to MAEM on a daily basis.  Either Party shall have the right, at its own
expense and upon reasonable notice to the other Party, to have a meter prover
perform the test and, if necessary, recalibrate the Fuel Oil meters at the
Generating Station.  Not less than once
per month, Project Company will manually sound the Fuel Oil storage tanks and
compare the results to prior meter readings. 
Differences between actual tank levels and reported meter indications
will be settled between MAEM and Project Company at the average Fuel Oil Index
Price for the calendar month immediately preceding the manual determination of
tank levels.


 


ARTICLE 4.


ADDITIONAL SERVICES


 


4.1                                 Emissions
Planning and Related Responsibilities. 
Upon Project Company’s request, MAEM shall provide Project Company
emissions planning, in consultation with Project Company, to assist in the
compliance of the Generating Station at all times and on an ongoing basis with
all currently effective emissions requirements, permits and regulations.  Upon Project Company’s request, MAEM will
procure Emission Allowances necessary for the operation of the Generating
Station, and dispose of excess Emission Allowances, which are not needed for
the operation of the Generating Station. 
MAEM will charge Project Company MAEM’s actual cost of acquiring the
Emission Allowances and remit the actual proceeds of any Emission Allowances
sales to Project Company, as adjusted for any gains or losses on emission
hedges and trading activities.


 


4.2                                 Insurance.  Upon Project Company’s request, MAEM will
procure or assist Project Company in procuring business interruption insurance
and forced outage insurance covering the Generating Station.  The costs of such insurance will be charged
to Project Company.


 


ARTICLE 5


ASSET BOOK


 


5.1                                 Asset
Book.  MAEM will maintain an asset
management book for Project Company and Mirant Mid-Atlantic, LLC (the “MIRMA
Asset Book”) to track and measure the financial performance of all hedges and
other transactions entered into with respect to the Generating Station and the
generating stations owed by Mirant Mid-Atlantic, LLC.  The MIRMA


 


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Asset Book shall be
separate from any MAEM trading book or any other asset book maintained by MAEM for
power resources managed by MAEM.  Unless
otherwise designated in writing by Project Company and Mirant Mid-Atlantic,
LLC, all transactions in the MIRMA Asset Book will be allocated solely to
Mirant Mid-Atlantic, LLC.


 


5.2                                 Power
and Fuel Trading and Power and Fuel Hedges and Other Transactions.  MAEM has entered or will enter into third
party bilateral contracts, forward sales, financial products (including but not
limited to, hedges, swaps, contracts for differences and options) and other
transactions in connection with the Products produced by the Generating Station
and Fuel required to operate the Generating Station.  The costs of such transactions including,
without limitation, purchased power costs, transmission costs, Fuel
transportation costs, third party broker costs, transaction fees and
incremental credit costs, and revenues related to such activities will be
charged to or paid to Project Company and included in the Asset Book.  The costs and revenues associated with the
hedges and other transactions in the Asset Book will be charged to or paid to
Project Company, as such costs and revenues are actually incurred or received
by MAEM (as is further described in Section 8.2).


 


ARTICLE 6.


TERM AND TERMINATION


 


6.1                                 Term.  The initial term of this Agreement shall
commence on the Effective Date and shall continue, unless earlier terminated
pursuant to its terms, until December 31, 2004. The Parties shall
negotiate in good faith to extend this Agreement.


 


6.2                                 Early
Termination Event.


 


(a)                                  In
the event the Generating Station is no longer owned or leased by an affiliate
of MAEM, this Agreement shall automatically terminate, without penalty and
without any further action required by either Party, as of the effective date
of the transfer of ownership or termination of the lease of the Generating
Station.


 


(b)                                 In
the event lenders or lessors exercise remedies following a Facility Lease Event
of Default, Project Company may terminate this Agreement, without penalty, upon
written notice to MAEM.


 


(c)                                  Either
Party may terminate this Agreement upon thirty (30) days written notice to the
other Party.


 


6.3                                 Obligations
upon Termination.


 


(a)                                  Upon
any termination of this Agreement pursuant to Sections 6.1 or 6.2
hereof, MAEM shall endeavor to (i) terminate any transactions entered into
by MAEM in connection with this Agreement which extend beyond such termination
including, but not limited to, any agreements or transactions entered into
pursuant to Section 5.2 hereof, (ii) assign such agreements or
transactions to the new owner of the Generating Station and/or (iii) enter
into an


 


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agreement
with the new owner to allow MAEM to continue to fulfill its obligations under
any existing agreements or transactions. 
Any such terminations and/or assignments shall be consummated in such a
manner as to fully release MAEM and Project Company from any liability or
obligation thereunder as of the termination date and/or the assignment
effective date of the applicable agreements or transactions.  Any costs or revenues associated with
termination payments or settlement amounts as a result of liquidating and
terminating any agreements or transactions shall be charged to or paid to
Project Company as described under Section 5.2.


 


(b) Upon
any termination of this Agreement pursuant to Section 9.3(a)(ii) hereof,
the Parties shall transfer any outstanding hedges or otherwise settle any
transactions entered into by MAEM in connection with this Agreement which
extend beyond such termination, including but not limited to any agreement or
transactions entered into pursuant to Sections 5.1 and 5.2 hereof.  Any such transfer or settlement shall be
consummated in such a manner as to assign or convey to Project Company the full
benefits and obligations of such agreements or transactions, and to fully
release MAEM from any liability or obligation thereunder.  To the extent that MAEM’s rights or
obligations under any such agreement or transaction may not be assigned without
the consent of a third party, and such consent has not or cannot be obtained
with the commercially reasonable efforts of the Parties, this provision shall
not constitute an agreement to assign the same if an attempted assignment would
constitute a breach thereof or be unlawful, and the Parties, to the maximum
extent permitted by law and such agreement or transaction, shall enter into
such commercially reasonable arrangements as are necessary to fulfill the
intent of this Section 6.3(b). 
The Parties further agree to take such actions, and execute and deliver
such agreements, documents, instruments and certificates, as are necessary to
consummate the transactions contemplated by this Section 6.3(b).


 


ARTICLE 7.


REPRESENTATIONS AND WARRANTIES


 


7.1                                 Project
Company’s Representations and Warranties. 
Project Company makes the following representations and warranties as a
basis for its undertakings contained herein:


 


(a)                                  Project
Company is a limited liability company duly organized and validly existing
under the laws of the State of Delaware, is qualified to do business in each
foreign jurisdiction in which it transacts business, and is in good standing
under its certificate of formation and the laws of the State of Delaware, has
the requisite power and authority to own its properties, and to carry on its
business as now being conducted.


 


(b)                                 Project
Company has full power and authority to enter this Agreement and perform its
obligations hereunder.  The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
limited liability company action and do not and will not contravene its
organizational documents or conflict with, result in a breach of, or entitle
any party (with due notice or lapse of time or both) to terminate, accelerate
or declare a default under, any agreement or instrument to which Project
Company is a party or by which Project Company is bound.  The execution, delivery and performance by
Project Company of this Agreement will not result in any violation


 


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by
Project Company of any law, rule or regulation applicable to it.  Project Company is not a party to, nor subject to or bound by, any judgment, injunction or
decree of any court or other governmental entity which may restrict or
interfere with the performance of this Agreement by it.  This Agreement is Project Company’s legal,
valid and binding obligation, enforceable against Project Company in accordance
with its terms, except as (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally, and (ii) the
remedy of specific performance and injunctive relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.


 


(c)                                  No
consent, waiver, order, approval, authorization, permit or order of, or
registration, qualification or filing with, any court or other governmental
agency or authority is required for the execution, delivery and performance by
Project Company of this Agreement and the consummation by Project Company of
the transactions contemplated hereby.


 


(d)                                 Project
Company has obtained all necessary governmental authorizations, approvals,
consents, waivers, exceptions, licenses, filings, registrations, rulings,
permits, tariffs, certifications and exemptions to perform its obligations
under this Agreement.


 


(e)                                  There
is not pending or, to its knowledge, threatened against it, any legal
proceedings that could materially adversely affect its ability to perform its
obligations under this Agreement.


 


(f)                                    Subject
to Section 9.2, no Event of Default or event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to Project Company has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its
obligations under this Agreement or any other document relating to this
Agreement.


 


7.2                                 MAEM’s
Representations and Warranties.  MAEM
makes the following representations and warranties as a basis for its
undertakings contained herein:


 


(a)                                  MAEM
is a limited partnership duly organized and validly existing under the laws of
the State of Delaware, is in good standing under its certificate of limited
partnership and the laws of the State of Delaware, is qualified to do business
in each foreign jurisdiction in which it transacts business, has the requisite
power and authority to own its properties, and to carry on its business as now
being conducted.


 


(b)                                 MAEM
has full power and authority to enter this Agreement and perform its
obligations hereunder.  The execution,
delivery and performance of this Agreement and the consummation of the
Transactions contemplated hereby have been duly authorized by all necessary
limited partnership action by MAEM and do not and will not contravene its
organizational documents or conflict with, result in a breach of, or entitle
any party (with due notice or lapse of time or both) to terminate, accelerate
or declare a default under, any agreement or instrument to which MAEM is a
party or by which MAEM is bound.  The
execution, delivery


 


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and
performance by MAEM of this Agreement will not result in any violation by MAEM
of any law, rule or regulation applicable to it. MAEM is not a party to, nor subject to or bound by, any judgment, injunction or
decree of any court or other governmental entity which may restrict or
interfere with the performance of this Agreement by it.  This Agreement is MAEM’s legal, valid and
binding obligation, enforceable against MAEM in accordance with its terms,
except as (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) the remedy of specific
performance and injunctive relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.


 


(c)                                  No
consent, waiver, order, approval, authorization, permit or order of, or
registration, qualification or filing with, any court or other governmental
agency or authority is required for the execution, delivery and performance by
MAEM of this Agreement and the consummation by MAEM of the transactions
contemplated hereby.


 


(d)                                 MAEM
has obtained all necessary governmental authorizations, approvals, consents,
waivers, exceptions, licenses, filings, registrations, rulings, permits,
tariffs, certifications and exemptions to perform its obligations under this
Agreement.


 


(e)                                  There
is not pending or, to its knowledge, threatened against it, any legal
proceedings that could materially adversely affect its ability to perform its
obligations under this Agreement.


 


(f)                                    Subject
to Section 9.2, no Event of Default or event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default with
respect to MAEM has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its
obligations under this Agreement.


 


ARTICLE 8.


BILLING AND PAYMENT


 


8.1                                 Cost
Allocation.  For services rendered by
MAEM to Project Company hereunder, Project Company shall pay MAEM its monthly
share of allocated costs for fulfilling its responsibilities to Project Company
under this agreement, including, but not limited to, personnel costs.  For purposes of determining Project Company’s
share of allocated costs, MAEM shall apply an industry standard methodology
which is applied uniformly across the Asset Companies.  Each of MAEM and Project Company acknowledges
that the monthly allocations may be adjusted from time to time.


 


8.2                                 Billing
and Payment. Each month, MAEM shall pay Project Company the positive Net
Market Revenues due for the prior month (or, if Net Market Revenues for such
month are negative, Project Company shall pay MAEM an amount equal to such
negative balance) by wire transfer to the payment address provided by the
recipient on or before the twentieth (20th) day of each month, or if
such day is not a business day, the immediately following business day.  At the time of each monthly payment, MAEM
shall render to Project Company a statement detailing the


 


12





















 


Net Market Revenues for
the prior month, and shall provide Project Company with supporting
documentation for each such monthly statement, identifying calculations
underlying such Net Market Revenues. If PJM later adjusts amounts payable by or
paid to MAEM with respect to transactions in the Asset Book, such amounts will
be credited to, or paid by, Project Company in the month in which MAEM receives
notice of the adjustment.  The preceding
sentence shall survive termination of this Agreement.


 


“Net
Market Revenues” means Gross Revenues minus Expenses. Net Market
Revenues shall be calculated in accordance with GAAP.


 


“Gross Revenues” means all revenues for a given
period attributed to the Asset Book, including, without limitation, revenues
from (a) sales of all Products from the Generating Station, (b) other
sales of Products, (c) Fuel sales, (d) sales or trades of excess
Emissions Allowances from the Generating Station, (e) financial products
(including, but not limited to, swaps, contracts for differences and options)
purchased for the Asset Book, and (f) forced outage insurance and business
interruption insurance proceeds (to the extent received by MAEM).


 


“Expenses”
means all costs attributed to the Asset Book for such period, including costs
reimbursable to MAEM pursuant to this Agreement for performing the services
including, but not limited to, costs for (i) Fuel, (ii) Emissions
Allowances, (iii) financial products (including, but not limited to,
swaps, contracts for differences and options) purchased for the Asset Book, (iv) broker
and/or transaction fees, (v) transmission congestion contracts for sales
from the Generating Station, (vi) forced outage insurance  costs (to the extent paid by MAEM), (vii) incremental
credit costs for transactions in the Asset Book consistent with the Collateral
Allocation Policy, (viii) transmission and/or transportation costs for
Fuel or energy deliveries; and (ix) other costs in connection with the services
described in Articles 2, 3 and 4 hereof.


 


8.3                                 Reports.  Project Company and MAEM will cooperate to
provide monthly reports in reasonable detail showing the calculation of the Net
Market Revenues, to enable Project Company to track Net Market Revenues.  Project Company shall have the right, upon
reasonable notice, to examine and/or audit the Asset Book from time to time.


 


8.4                                 Interest
and Disputed Amounts.  If either
Party fails to make any payment on or before the applicable payment due date,
such overdue amounts shall accrue interest at the Interest Rate from, and
including, the applicable payment due date to, but excluding, the date of
payment.  Any disputed invoiced amounts,
except amounts which are manifestly inaccurate, shall be paid in full on the
applicable payment due date, subject to later return together with interest
accrued at the Interest Rate. 
Overpayments or underpayments identified by the Parties shall be
returned or credited, together with interest accrued at the Interest Rate, to
their rightful owners in the first following month.


 


13





















 


ARTICLE 9.


DEFAULTS AND REMEDIES


 


9.1                                 Events
of Default.  Any one or more of the
following shall constitute an “Event of Default” hereunder with respect to a
Party:


 


(a)                                  default shall occur in the payment of any amounts due from
such Party hereunder which shall continue for more than ten (10) days
after written notice from the other Party;


 


(b)                                 other
than as provided in Section 9.1(a) above, default shall occur
in the performance of any covenant or condition to be performed by such Party
under this Agreement and such default shall continue unremedied for a period of
thirty (30) days after written notice from the other Party specifying the
nature of such default;                                       or


 


(c)                                  a
representation or warranty made by such Party herein shall have been false or
misleading in any material respect when made; provided, however, if such
representation or warranty is capable of being corrected, no Event of Default
shall have occurred if such Party is diligently pursuing such correction and
such representation or warranty is corrected within thirty (30) days of such
Party obtaining knowledge of the false and misleading nature of the statement.


 


9.2                                 BANKRUPTCY.


 


(A)                              EACH PARTY ACKNOWLEDGES
AND AGREES THAT THE OTHER PARTY IS A DEBTOR IN THE CHAPTER 11 PROCEEDING.  EACH PARTY FURTHER ACKNOWLEDGES AND AGREES
THAT DURING THE PENDENCY OF SUCH PROCEEDING, THIS AGREEMENT AND THE PARTIES
RIGHTS HEREUNDER SHALL BE SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY
COURT.  IN THE EVENT THIS AGREEMENT
AND/OR THE PARTIES’ RIGHTS HEREUNDER ARE DEEMED TO BE INCONSISTENT WITH ANY
DETERMINATION MADE BY THE BANKRUPTCY COURT IN THE CHAPTER 11 PROCEEDING, THE
BANKRUPTCY COURT’S DETERMINATION SHALL PREVAIL.


 


(B)                                NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNTIL SUCH TIME AS
EACH PARTY EMERGES FROM THE CHAPTER 11 PROCEEDING THROUGH THE CONFIRMATION OF A
PLAN OF REORGANIZATION, THE CHAPTER 11 PROCEEDING SHALL NOT CONSTITUTE AN EVENT
OF DEFAULT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT IN THE
EVENT THAT (A) EITHER PARTY FILES A MOTION OR REQUEST TO CONVERT ITS
CHAPTER 11 CASE TO A CHAPTER 7 PROCEEDING; (B) THE BANKRUPTCY COURT ENTERS
AN ORDER CONVERTING EITHER PARTY’S CASE FROM A CHAPTER 11 PROCEEDING TO A
CHAPTER 7 PROCEEDING; OR (C) THE BANKRUPTCY COURT ENTERS AN ORDER
APPOINTING A TRUSTEE OR EXAMINER (WITH EXPANDED POWERS) IN EITHER PARTY’S
BANKRUPTCY CASE, ANY SUCH EVENT (A) THROUGH (C) SHALL


 


14





















 


CONSTITUTE
AN EVENT OF DEFAULT UNDER THIS AGREEMENT WITH RESPECT TO SUCH PARTY OR PARTIES.


 


(c)                                  Each
Party represents, warrants and covenants that:


 


(i)                                     The
Parties have negotiated and entered into this post-petition Agreement in the
ordinary courses of their respective businesses, in good faith, for fair
consideration and on an arm’s length basis;


 


(ii)                                  Neither
Party shall attempt to effect any right of set-off
with respect to this such post-petition transaction and any pre-petition
obligations;


 


(iii)                               One of the purposes of
this Agreement is to preserve, maintain and enhance its business; and


 


(iv)                              The
terms and conditions of this Agreement are fair and reasonable and reflect its
exercise of prudent business judgment consistent with its fiduciary duties as a
debtor-in-possession and are supported by fair consideration and reasonably
equivalent value in money or money’s worth.


 


9.3                                 Remedies.  The Parties shall have the following remedies
available to them hereunder:


 


(a)                                  Upon
the occurrence of an Event of Default by either Party hereunder, the
non-defaulting Party shall have the right (i) to collect all amounts then
or thereafter due to it from the defaulting Party hereunder, and (ii) upon
written notice to the other Party, to terminate this Agreement at any time
during the continuation of such Event of Default.  The terminating Party shall have all rights
and remedies available to it under applicable law, subject to the limitations
set forth in Section 11.8.


 


(b)                                 Without
limiting the foregoing, any unexcused breach of this Agreement or failure of
either Party to perform its obligations hereunder shall subject such Party to
the payment of actual damages to the other Party, regardless of any cure
period.


 


ARTICLE 10.


FORCE MAJEURE


 


10.1                           Force
Majeure.  If either Party is rendered
wholly or partly unable to perform its obligations under this Agreement because
of a Force Majeure event, that Party will be excused from whatever performance
is affected by the Force Majeure event to the extent so affected, provided that
(a) the non-performing Party, as soon as practical after knowing of the
occurrence of the Force Majeure event, gives the other Party written notice
describing the particulars of the occurrence; (b) the suspension of
performance is of no greater scope and of no longer duration than is reasonably
required by the Force Majeure event; (c) the non-performing Party uses
commercially reasonable efforts to overcome or mitigate the effects of such
occurrence, provided, however, that this provision shall not require Project
Company to deliver, or MAEM to receive, any Products at points other than the
Delivery Point; and (d) when the non-performing


 


15





















 


Party is able to resume
performance of its obligations hereunder, that Party shall give the other Party
written notice to that effect and shall promptly resume such performance.


 


ARTICLE 11.


MISCELLANEOUS
PROVISIONS


 


11.1                           Assignment;
Successors and Assigns.  No
assignment or delegation by either Party (or any successor or assignee thereof)
of this Agreement, in whole or in part, shall be made or become effective
without the prior written consent of the other Party in each case obtained,
which consent may not be unreasonably withheld. 
Any assignments or delegations by either Party shall be in such form as
to assure that such Party’s obligations under this Agreement will be honored
fully and timely by any succeeding party.


 


11.2                           Notices.  All notices, requests and other
communications hereunder (herein collectively a “notice” or “notices”) shall be
deemed to have been duly delivered, given or made to or upon any Party hereto
if in writing and delivered by hand against receipt, or by certified or
registered mail, postage pre-paid, return receipt requested, or to a courier
who guarantees next business day delivery or sent by telecopy (with
confirmation) to such Party at its address set forth below or to such other
address as such Party may at any time, or from time to time, direct by notice
given in accordance with this Section 11.2.


 


	
  IF TO
  PROJECT

  	
   

  
	
  COMPANY:

  	
  Mirant Chalk
  Point, LLC

  
	
   

  	
  1155 Perimeter
  Center West

  
	
   

  	
  Atlanta, Georgia
  30338

  
	
   

  	
  Attention:
  President

  
	
   

  	
   

  
	
  IF TO
  MAEM:

  	
  Mirant Americas
  Energy Marketing, LP

  
	
   

  	
  1155 Perimeter
  Center West

  
	
   

  	
  Atlanta, Georgia
  30338

  
	
   

  	
  Attention: Legal
  Department

  



 


The date of delivery of
any such notice, request or other communication shall be the earlier of (i) the
date of actual receipt or (ii) three (3) business days after such
notice, request or other communication is sent by certified or registered mail,
(iii) if sent by courier who guarantees next business day delivery, the
business day next following the day of such notice, request or other
communication is actually delivered to the courier or (iv) the day
actually telecopied.


 


11.3                           GOVERNING
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD OTHERWISE CAUSE THE
LAW OF ANY STATE OTHER THAN NEW YORK TO APPLY.


 


11.4                           Compliance
With Laws. 
At all times during the term of this Agreement, the Parties shall comply
with all laws, rules, regulations, and codes of all governmental authorities


 


16





















 


having jurisdiction over
each of their respective businesses which are now applicable, or may be
applicable hereafter, including without limitation, all special laws, policies,
ordinances, or regulations now in force, as amended or hereafter enacted.  The Parties hereto shall maintain all
licenses, permits and other consents from all governmental authorities having
jurisdiction for the necessary use and operation of their respective
business.  Nothing herein shall be deemed
a waiver of the Parties’ right to challenge the validity of any such law, rule or
regulation.


 


11.5                           Entire
Agreement.  This Agreement sets forth
the entire agreement of the Parties with respect to the subject matter herein
and takes precedence over all prior understandings.


 


11.6                           Amendments.  This Agreement may not be amended except by a
writing signed by the Parties.


 


11.7                           Severability.  The invalidity or unenforceability of any
provisions of this Agreement shall not affect the other provisions hereof.  If any provision of this Agreement is held to
be invalid, such provisions shall not be severed from this Agreement; instead,
the scope of the rights and duties created thereby shall be reduced by the
smallest extent necessary to conform such provision to the applicable law,
preserving to the greatest extent the intent of the Parties to create such
rights and duties as set out herein.  If
necessary to preserve the intent of the Parties hereto, the Parties shall
negotiate in good faith to amend this Agreement, adopting a substitute
provision for the one deemed invalid or unenforceable that is legally binding
and enforceable and which restores to the two Parties to the greatest extent
possible the benefit of their respective bargains on the Effective Date.


 


11.8                           Limitation
on Damages.  NEITHER PARTY SHALL BE
ENTITLED TO RECOVER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES HEREUNDER.


 


11.9                           Risk
Management Policy.  The Parties
acknowledge and agree that this Agreement is subject to the Risk Management
Policy approved by the Parties’ Board of Directors and the Bankruptcy Court.  In the event of a conflict between the
provisions of this Agreement and the terms of the Risk Management Policy, the
terms of the Risk Management shall govern and control.


 


IN
WITNESS WHEREOF, and intending to be legally bound hereby, the Parties hereto have
caused this Agreement to be duly executed as an instrument under seal by their
respective duly authorized officers as of the date and year first above
written.


 


	
  MIRANT AMERICAS
  ENERGY

  	
  MIRANT CHALK
  POINT, LLC

  
	
  MARKETING, LP

  	
   

  



 


By MIRANT AMERICAS


DEVELOPMENT, INC.,


its
General Partner


 


17





















 


	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
  John L. O’Neal

  	
  Name:

  	
  Lisa Johnson

  
	
  Title:

  	
  Chief Commercial
  Officer

  	
  Title:

  	
  President

  
	
   

  	
  and Vice
  President

  	
   

  	
   

  
									



 


18





















 


EXHIBIT A


 


Chalk Point Generating Station


 


	
  Unit

  	
   

  	
  Location

  	
   

  	
  Nameplate

  Capacity

  	
   

  	
  Commercial Operation

  Date

  	
   

  
	
  EI

  	
   

  	
  Prince Georges
  County, MD

  	
   

  	
  341

  	
   

  	
  1964

  	
   

  
	
  E2

  	
   

  	
  Prince Georges
  County, MD

  	
   

  	
  342

  	
   

  	
  1965

  	
   

  
	
  E3

  	
   

  	
  Prince Georges
  County, MD

  	
   

  	
  612

  	
   

  	
  1975

  	
   

  
	
  E4

  	
   

  	
  Prince Georges
  County, MD

  	
   

  	
  612

  	
   

  	
  1981

  	
   

  



 


19