EQUIPMENT
PURCHASE AGREEMENT





between





MMC Chula
Vista II LLC





and





Energy
Parts Solutions LLC





August 7,
2009










EQUIPMENT
PURCHASE AGREEMENT





THIS EQUIPMENT PURCHASE AGREEMENT(the “Agreement”) is
made effective this 7th day of August, 2009 (the “Effective Date”) between
ENERGY PARTS SOLUTIONS
LLC, a Missouri limited liability company (“Buyer”), and MMC CHULA VISTA II LLC, a
Delaware limited liability company (“Seller”).





RECITALS





1.
            Seller
      previously purchased from GE Packaged Power, Inc. (“GE”) two new LM6000
      industrial gas turbine generator packages and associated equipment, parts,
      structures and services (collectively, the “Equipment”) as more fully
      described in that certain Contract for U.S. Based Sale of Equipment and
      Services between Seller and GE dated January 25, 2008, and any subsequent
      amendments or change orders thereto (the “GE
  Contract”);





2.
            Buyer
      desires to purchase the Equipment located at GE’s storage facilities in or
      near Houston, Texas.  The Equipment shall include only those
      items described in the GE Contract, a copy of which is attached hereto as
      Exhibit A.





3.
            Seller
      has fully paid for and owns the Equipment and is ready, willing and able
      to sell the Equipment to Buyer, and Buyer is ready, willing and able to
      buy the Equipment from Seller, pursuant to the terms and subject to the
      conditions set forth in this
Agreement.





AGREEMENT





FOR AND IN CONSIDERATION of
the mutual covenants herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and agreed, the
parties agree as follows:





1.           PURCHASE AND SALE OF
EQUIPMENT





(a)          Upon
the terms and subject to the conditions contained herein, on the Closing Date
(defined below), Seller shall sell, assign, transfer, convey and deliver to
Buyer, and Buyer shall purchase from Seller, any and all of Seller’s interest in
and rights to the Equipment.  As the term is used in this Agreement
and the exhibits hereto “Equipment” shall also mean and include copies of all of
Seller’s records and files which relate to any of the Equipment, including, but
not limited to, the following: (i)  engineering records;
(ii)  any and all contracts, purchase orders or other agreements with
third parties including those with GE or any other vendors, suppliers or OEM’s
pertaining to the Equipment; and (iii) any other records or files in the
possession of Seller relating to the Equipment, save and except for records the
disclosure of which would jeopardize any privilege available to Seller relating
to such records, would cause Seller to breach a confidentiality obligation to
which it is bound, or would cause Seller to violate any applicable law; provided, however, that
Seller’s corporate minute books, charter documents, corporate stock record books
and such other books and records as pertain to the organization, existence or
share capitalization of Seller and such other books and records that do not
relate to the Equipment shall not be included.


2





2.
            PURCHASE
      PRICE AND PAYMENT TERMS





2.1
            Purchase
      Price





In
accordance with Section 2.2 below, Buyer shall pay Seller for the Equipment the
sum of Twenty Six Million Six Hundred and Fifty Thousand and No/100 Dollars
($26,650,000) (the “Purchase Price”), as allocated by the parties to the
Equipment.





2.2
            Payment
      Terms





(a)
            Not
      later than one (1) business day after the Effective Date, Buyer shall
      deposit with Seller the sum of Three Million Dollars as a deposit towards
      the Purchase Price (the “Deposit”), which Deposit shall be applied towards
      the payment of the Purchase Price at Closing.  The Deposit shall
      be (i) held by Seller in an account designated by Seller in its sole
      discretion, without interest accrual thereon for the benefit of Buyer, and
      (ii) non-refundable to Buyer except as expressly set forth in this
      Agreement.





(b)
            At
      the Closing (as defined below), Buyer shall transfer and pay to Seller the
      balance of the Purchase Price (i.e., the Purchase Price less the Deposit)
      by wire transfer of immediately available funds into an account designated
      in writing by Seller.





3.
            ASSUMPTION
      OF LIABLITIES; POSSESSION AND REMOVAL OF EQUIPMENT; TITLE AND RISK OF
      LOSS





3.1
            Assumption
      of Liabilities





At the
Closing, Buyer shall assume and agree to pay, perform and discharge when due all
liabilities arising out of, in connection with or related to the ownership,
removal, operation, use or maintenance of the Equipment relating to periods on
or after the Closing Date (as defined below).





3.2
            Possession
      and Removal of Equipment





At and
after Closing, Seller agrees to permit Buyer and its representatives free and
unencumbered access to the site where the Equipment is located so that Buyer can
remove the Equipment.  Seller shall use commercially reasonable
efforts to provide all authorizations, obtain all third party consents, and
furnish all reasonable assistance to ensure that Buyer can remove the Equipment
from its present location without any added costs, delays or
interference.





3.3
            Title
      and Risk of Loss





Title to
and risk of loss, damage and destruction of the Equipment shall transfer from
Seller to Buyer upon the Closing Date.


3





4.
            REPRESENTATIONS
      AND WARRANTIES





4.1
            Seller Representations and
      Warranties.  Seller hereby represents and warrants to
      Buyer that:





(a)
            At
      the Closing Date, Seller shall have full legal and beneficial title to the
      Equipment, free and clear of any and all security interests, liens,
      claims, charges or encumbrances of any nature whatsoever, together with
      full power and lawful authority to deliver the Equipment to Buyer; and
      upon delivery of the Assignment and Bill of Sale to Buyer in accordance
      with Section 8.4(b), Seller shall have transferred marketable title
      to the Equipment to Buyer.





(b)
            Seller
      is an entity duly organized, validly existing and in good standing under
      the laws of the jurisdiction in which it is formed and has the requisite
      power and authority to own, lease and operate its properties and to carry
      on its business as now conducted.  Seller is duly qualified to
      transact business and is in good standing in each jurisdiction in which
      its ownership of the Equipment and commitments made hereunder makes such
      qualification necessary.





(c)
            Seller
      has the requisite power and authority to execute this Agreement and to
      consummate the transactions contemplated by this Agreement.  The
      execution and delivery of this Agreement by Seller and the consummation by
      Seller of the transactions contemplated by this Agreement have been duly
      authorized by all necessary action on the part of
  Seller.




(d)
            The
      execution and delivery by Seller of this Agreement and the consummation of
      the transactions contemplated hereby do not and will not (i) violate any
      provision of the constituent documents of Seller, (ii) violate any order
      of any governmental authority to which Seller is bound or subject, (iii)
      violate any applicable law, or (iv) result in the imposition or creation
      of any lien upon the Equipment.  This Agreement has been duly
      executed and delivered by Seller and, assuming due execution and delivery
      by Buyer, constitutes a valid and binding obligation of Seller,
      enforceable against Seller in accordance with its
  terms.




(e)
            To
      Seller’s knowledge, no order or permit issued by, or declaration or filing
      with, or notification to, or waiver from any governmental authority is
      required on the part of Seller in connection with the execution and
      delivery of this Agreement, or the compliance or performance by Seller
      with any provision contained in this
Agreement.




(f)
            As
      of the Closing Date all payments under the GE Contract have been made by
      Seller to GE with respect to the purchase price and storage of the
      Equipment.  All taxes due and payable by Seller with respect to
      the ownership of the Equipment have been paid or are being contested in
      good faith through the appropriate
proceedings.




(g)
            There
      is no legal action or order pending or, to Seller’s knowledge, overtly
      threatened against Seller that seeks to restrain or prohibit or otherwise
      challenge the consummation, legality or validity of the transactions
      contemplated hereby.


4


(h)
            Except
      for such notices as have been disclosed to Buyer in writing, Seller, to
      Seller’s knowledge, has not received any written notice that the Equipment
      is in violation of any applicable
laws.




(i)
            No
      rights of first offer or other preferential rights to purchase any of the
      Equipment are held by third
parties.




4.2          Knowledge Defined





References
to the “knowledge” of Seller shall refer only to the actual knowledge of the
Designated Employee (as hereinafter defined) of Seller, and shall not be
construed, by imputation or otherwise, to refer to the knowledge of Seller, or
any affiliate of Seller, or to any other officer, agent, manager, representative
or employee of Seller or any affiliate thereof or to impose upon such Designated
Employee any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains.  As used herein, the term “Designated
Employee” shall refer to the following person:  Denis
Gagnon.





4.3          Survival of Seller’s Representations
and Warranties





The
representations and warranties of Seller set forth in Section 4.1 shall survive
Closing for a period of one hundred twenty (120) days; provided, however,
nowithstanding the foregoing to the contrary, Section 4.1(a) shall survive for a
period of one (1) year (the “Seller Survival Period”).  No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based on a condition, state
of facts or other matter which was specifically disclosed by Seller to and
accepted by Buyer in writing prior to Closing.


5


4.4          AS-IS.




EXCEPT
AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT (i) SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (ii) SELLER
EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION,
WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING)
TO BUYER OR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS OR
REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ANY OPINION, INFORMATION,
PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO BUYER BY ANY OFFICER,
DIRECTOR, EMPLOYEE, AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF SELLER OR
ANY OF ITS AFFILIATES).  IN PARTICULAR AND WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (w) THE MAINTENANCE, REPAIR,
CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE EQUIPMENT, (x)
THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION MEMORANDUM, REPORTS,
BROCHURES, CHARTS OR STATEMENTS PREPARED BY SELLER OR THIRD PARTIES WITH RESPECT
TO THE EQUIPMENT, (y) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN MADE
AVAILABLE TO BUYER OR ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, AGENTS,
CONSULTANTS, REPRESENTATIVES OR ADVISORS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE ASSIGNMENT AND BILL OF SALE OR ANY
DISCUSSION OR PRESENTATION RELATING THERETO AND (z) ANY IMPLIED OR EXPRESS
WARRANTY OF FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT.  EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER FURTHER DISCLAIMS ANY
REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF MERCHANTABILITY,
FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A PARTICULAR PURPOSE OR
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY ASSETS, RIGHTS OF A
PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION OR
RETURN OF THE PURCHASE PRICE, IT BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE
PARTIES HERETO THAT BUYER SHALL BE DEEMED TO BE OBTAINING THE EQUIPMENT IN ITS
PRESENT STATUS, CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS” WITH ALL
FAULTS OR DEFECTS (KNOWN OR UNKNOWN, LATENT, DISCOVERABLE OR UNDISCOVERABLE),
AND THAT BUYER HAS MADE OR CAUSED TO BE  MADE SUCH INSPECTIONS AS
BUYER DEEMS APPROPRIATE.  AS PART OF THE PROVISIONS OF THIS SECTION
4.4, BUT NOT AS A LIMITATION THEREON, BUYER HEREBY AGREES, REPRESENTS AND
WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE
KNOWN OR DISCLOSED, AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS
WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE
PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, RULES OR REGULATIONS.




Seller
and Buyer acknowledge that the compensation to be paid to Seller for the
Equipment has been decreased to take into account that the Equipment is being
sold subject to the provisions of this Section 4.4.  Seller and
Buyer agree that the provisions of this Section 4.4 shall survive the Closing
Date.





4.5
            Buyer’s Representations and
      Warranties.  Buyer hereby represents and warrants to
      Seller that:


6


(a)
            Buyer
      is an entity duly organized, validly existing and in good standing under
      the laws of the jurisdiction in which it is formed and has the requisite
      power and authority to own, lease and operate its properties and to carry
      on its business as now conducted.  Buyer is duly qualified to
      transact business and is in good standing in each jurisdiction in which
      its commitments hereunder makes such qualification
    necessary.





(b)
            Buyer
      has the requisite power and authority to execute this Agreement and to
      consummate the transactions contemplated by this Agreement.  The
      execution and delivery of this Agreement by Buyer and the consummation by
      Buyer of the transactions contemplated by this Agreement have been duly
      authorized by all necessary action on the part of Buyer.  This
      Agreement has been duly executed and delivered by Buyer and, assuming due
      execution and delivery by Seller, constitutes a valid and binding
      obligation of Buyer, enforceable against Buyer in accordance with its
      terms.




(c)
            The
      execution and delivery by Buyer of this Agreement and the consummation of
      the transactions contemplated hereby do not and will not (i) violate any
      provision of the constituent documents of Buyer, (ii) violate any order of
      any governmental authority to which Buyer is bound or subject, or (iii)
      violate any applicable law.




(d)
            To
      Buyer’s knowledge, no order or permit issued by, or declaration or filing
      with, or notification to, or waiver from any governmental authority is
      required on the part of Buyer in connection with the execution and
      delivery of this Agreement, or the compliance or performance by Buyer with
      any provision contained in this
Agreement.




(e)
            There
      is no legal action or order pending or, to Buyer’s knowledge, overtly
      threatened against Buyer that seeks to restrain or prohibit or otherwise
      challenge the consummation, legality or validity of the transactions
      contemplated hereby.




(f)
            No
      person has acted, directly or indirectly, as a broker, finder or financial
      advisor for Buyer in connection with the transactions contemplated by this
      Agreement, and Seller is not or will not become obligated to pay any fee
      or commission or like payment to any broker, finder or financial advisor,
      as a result of the consummation of the transactions contemplated by this
      Agreement based upon any arrangement made by or on behalf of
      Buyer.




4.6          Knowledge Defined





References
to the “knowledge” of Buyer shall refer only to the actual knowledge of the
Designated Employee (as hereinafter defined) of Buyer, and shall not be
construed, by imputation or otherwise, to refer to the knowledge of Buyer, or
any affiliate of Buyer, or to any other officer, agent, manager, representative
or employee of Buyer or any affiliate thereof or to impose upon such Designated
Employee any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains.  As used herein, the term “Designated
Employee” shall refer to the following person:  Jeff
Canon.


7


4.7          Survival of Buyer’s Representations
and Warranties





The
representations and warranties of Buyer set forth in Section 4.5 shall survive
Closing for a period of one hundred twenty (120) days (the “Buyer Survival
Period”).  No claim for a breach of any representation or warranty of
Buyer shall be actionable or payable if the breach in question results from or
is based on a condition, state of facts or other matter which was specifically
disclosed by Buyer to and accepted by Seller in writing prior to
Closing.





5.
            INSPECTION,
      PRESERVING AND OPERATING THE
EQUIPMENT





5.1
            Inspection
      and Access





Immediately
following the Effective Date Buyer and its representatives shall, upon prior
written notice to Seller, have access to the site where the Equipment is located
so that Buyer and its representatives can inspect the Equipment and review the
books, records and information relating thereto, and to speak to the personnel
of Seller that may have information relating to the history  of the
Equipment, provided, however, that Seller shall have the right to have a
representative present at any such access to the site.  Such
activities shall include the Buyer’s right to such inspections deemed
appropriate by Buyer in order to assess the integrity and condition of the
Equipment, provided that any and all such inspections shall be made only upon
prior written notice to Seller, Seller shall have the right to have a
representative present for any such inspections, all inspections shall be
performed in compliance with all applicable laws, and Buyer shall deliver to
Seller a copy of any data, results or reports prepared in connection with such
inspections.  Buyer will at all times while on the site abide by GE’s
safety rules and regulations.  Seller agrees to cooperate with Buyer
and provide all reasonable assistance in relation to Buyer performing its
inspection activities.  Buyer shall, upon prior written notice to
Seller, also be permitted to speak directly with vendors and suppliers
associated with the Equipment, including GE and any other OEMs, and if required,
Seller shall promptly provide all necessary authorization and assistance in
order that Buyer can freely engage said vendors and suppliers in obtaining
information from them as part of Buyer’s inspection activities, provided that
Seller shall have the right to have a representative participate in any such
engagement.  Following any inspection of the Equipment, Buyer shall
restore the Equipment to its original condition as existed prior to any such
inspections.  Upon request by Seller, Buyer shall provide Seller with
evidence that Buyer has a policy of general liability insurance, from an insurer
and in an amount reasonably acceptable to Seller, which insurance shall
(i) name Seller as an additional insured party and (ii) provide
coverage against any claim for personal liability or property damage caused by
Buyer or its agents, employees or contractors in connection with such
inspections.


8


5.2          Preserving
the Equipment




During
the period from the Effective Date to and through the Closing Date, Seller shall
use commercially reasonable efforts to conduct its business (as it pertains to
the Equipment) in all material respects in the ordinary course of business and
to maintain and preserve the Equipment consistent with Seller’s past practices
and GE and any other OEM’s recommendations.  No later than (5)
business days from the Effective Date Buyer will obtain and maintain through the
Closing Date insurance for the physical loss or damage to the Equipment with a
policy limit of not less than the Purchase Price and with a maximum deductible
of $50,000.  Seller shall be named as an additional insured on such
policy and shall be provided with a certificate of coverage.  Seller
shall maintain its current coverage on the Equipment until Buyer’s insurance
becomes effective.  In the event (i) Buyer fails to provide such
coverage or (ii) the Parties determine that Seller’s insurance coverage is more
cost-effective than Buyer’s insurance, then Seller will keep its coverage in
place and Buyer will be obligated to reimburse Seller for the cost thereof
through the Closing Date.




6.
            INDEMNIFICATION





6.1          Buyer
Indemnity





During
the Buyer Survival Period, Buyer assumes liability for, and hereby agrees to
indemnify, protect, save and keep harmless Seller and its directors, officers,
and employees from and against any and all liabilities, obligations, losses,
damages, penalties, claims (including, without limitation, claims involving
strict or absolute liability in tort), actions, suits, costs, expenses and
disbursements, including, without limitation, reasonable attorneys’ fees and
expenses, of any kind or nature, which may be imposed on, incurred by or
asserted against Seller arising out of and in connection with (i) a breach by
Buyer of its obligations under this Agreement or (ii)  the negligence of
Buyer, its employees, representative, contractors and agents; provided, however,
that Buyer shall not be required to indemnify Seller or its assigns for any
claim resulting from acts which would constitute Seller’s misconduct or
negligence or a breach by the Seller of the terms of this
Agreement.





6.2          Seller
Indemnity





During
the Seller Survival Period, Seller assumes liability for, and hereby agrees to
indemnify, protect, save and keep harmless Buyer and its directors, officers,
and employees from and against any and all liabilities, obligations, losses,
damages, penalties, claims (including, without limitation, claims involving
strict or absolute liability in tort), actions, suits, costs, expenses and
disbursements, including, without limitation, reasonable attorney’s fees and
expenses, of any kind or nature, which may be imposed on, incurred by or
asserted against Buyer arising out of and in connection with (i) a breach by
Seller of its obligations under this Agreement or (ii) the negligence of Seller,
its employees, representative, contractors and agents; provided, however, that
Seller shall not be required to indemnify Buyer or its assigns for any claim
resulting from acts which would constitute Buyer’s misconduct or negligence or a
breach by the Buyer of the terms of this Agreement or any other agreement
between Seller and Buyer.


9


7.
            TAXES





All ad
valorem taxes, real property taxes and personal property taxes relating to the
Equipment for the year in which the Closing Date occurs shall be apportioned as
of the Closing Date between Seller and Buyer.  Seller shall be liable
for the portion of such taxes based upon the number of days in the year
occurring prior to the Closing Date, and Buyer shall be liable for the portion
of such taxes based upon the number of days in the year occurring on and after
the Closing Date.  For any year in which an apportionment is required,
Buyer shall file all required reports and returns incident to these taxes
assessed for the year in which the Closing Date occurs that are not filed by
Seller as of the Closing Date.  Seller shall pay to Buyer, at the time
of Buyer’s remittance, Seller’s share of such taxes.  If Seller has
paid any portion of such taxes apportioned to Buyer under this Section 7, Buyer
shall pay to Seller, promptly upon notice from Seller of the portion of such
taxes apportioned to Buyer, Buyer’s share of such taxes.  Buyer shall
pay all sales taxes, if any, arising in connection with the sale of the
Equipment.




8.
            CLOSING





8.1          Conditions
Precedent to Obligations of Each Party




The
respective obligations of Seller and Buyer to consummate the transactions
contemplated by this Agreement are subject to no order issued by any court of
competent jurisdiction preventing the consummation of the transactions
contemplated hereby shall be in effect, nor shall any material proceeding
initiated by any governmental authority of competent jurisdiction having valid
enforcement authority seeking such an order be pending, nor shall there be any
action taken, or any law or order enacted, entered or enforced that has not been
subsequently overturned or otherwise made inapplicable to this Agreement, that
makes the consummation of the transactions contemplated hereby
illegal.




8.2          Conditions
Precedent to Obligations of Buyer




The
obligation of Buyer to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, on or prior to the Closing Date, of
each of the following conditions (any or all of which may be waived by Buyer, in
whole or in part, subject to applicable law):




(a)           All
of the representations and warranties of Seller contained herein shall be true
and correct in all material respects on and as of the Closing Date, except those
representations and warranties of Seller that speak of a certain date, which
representations and warranties shall have been true and correct in all material
respects as of such date;




(b)           Seller
shall have performed and complied with in all material respects its obligations
and covenants required by this Agreement to be performed or complied with by
Seller on or prior to the Closing Date; and




(c)           Buyer
shall have been furnished with the documents referred to in Section
8.4.




8.3          Conditions
Precedent to Obligations of Seller




The
obligations of Seller to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, prior to or on the Closing Date, of
each of the following conditions (any or all of which may be waived by Seller,
in whole or in part, subject to applicable law):




(a)           All
of the representations and warranties of Buyer contained herein shall be true
and correct in all material respects on and as of the Closing Date, except those
representations and warranties of Buyer that speak of a certain date, which
representations and warranties shall have been true and correct in all material
respects as of such date;


10


(b)           Buyer
shall have performed and complied with in all material respects all obligations
and covenants required by this Agreement to be performed or complied with by
them on or prior to the Closing Date; and




(c)           Seller
shall have been furnished with the documents referred to in Section
8.5.




8.4          Documents
to Be Delivered by Seller




At the
Closing, Seller shall deliver to Buyer the following:




(a)           a
certificate of an officer of Seller certifying that the closing conditions set
forth in Sections 8.2 (a) have been satisfied;




(b)           the
Assignment and Bill of Sale substantially in the form of Exhibit B and such
other instruments of conveyance necessary for the transfer of the Equipment,
duly executed by Seller; and




(c)           a
Non-Foreign Affidavit in compliance with the provisions of Treasury
Regulation § 1.1445-2(b)(2) certifying that Seller is not a foreign
person within the meaning of the Code.




8.5          Documents
to Be Delivered by Buyer




At the
Closing, Buyer shall deliver to Seller the following:




(a)           evidence
of the wire transfer referred to in Section 2.2(b) hereof;




(b)           a
certificate of an officer of Buyer certifying that the closing conditions set
forth in Section 8.3(a) have been satisfied; and




(c)           the
Assignment and Bill of Sale substantially in the form of Exhibit B and such
other instruments of conveyance necessary for the transfer of the Equipment,
duly executed by Buyer.




8.6          Time
and Place of Closing




The
“Closing” of the purchase and sale of the Equipment shall take place on or
before 2:00 p.m., local time, no later than sixty (60) days from the Effective
Date, and after the conditions to Closing set forth in Sections 8.1, 8.2 and 8.3
(excluding conditions that, by their terms, cannot be satisfied until the
Closing) have been satisfied (or waived by the party entitled to waive such
condition) (as the same may be extended pursuant to the provisions of Section
8.1(b), the “Closing Date) or at such other location or time as may be agreed by
the parties.


11


8.7         Failure
of Condition.




In the
event of the failure of any condition to Closing set forth in Section 8.1 or
Section 8.2, then this Agreement shall terminate and the Deposit shall be
returned to Buyer and Seller shall pay Buyer any amounts owed pursuant to
Section 8.1(b).  In the event of the failure of any condition to
Closing set forth in Section 8.3, then this Agreement shall terminate and the
Deposit shall be retained by Seller.




9.           DEFAULT
AND REMEDIES




9.1
            Events
      of Default





It shall
be an event of default if all or any of the following shall have occurred
(herein “Event of Default”):





(a)           If
either party shall default in the performance of any of the material provisions
contained in the Agreement, which default shall continue for ten (10) business
days after written notice of default to the defaulting party; or





(b)           If
any representation or warranty made by either party herein or made in any
statement or certificate furnished or required hereunder, or in connection with
the execution and delivery of this Agreement, proves untrue in any material
respect as of the date of issuance or making thereof.




9.2
              Remedies





(a)           Upon
the occurrence of an Event of Default by Seller, Buyer shall be entitled, as its
sole remedy, either (a) to receive any amounts Seller owes to Buyer under
Section 8.1(b) and the return of the Deposit and any other moneys paid by Buyer
to Seller as of the date of the Event of Default, which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller’s obligation to
execute the documents required to convey the Equipment to Buyer, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder.  Buyer
expressly waives its rights to seek damages upon the occurrence of an Event of
Default by Seller hereunder.  Buyer shall be deemed to have elected to
terminate this Agreement and receive the Deposit and any other moneys paid by
Buyer to Seller as of the date of the Event of Default if Buyer fails to file
suit for specific performance against Seller in a court having jurisdiction in
New York, New York, on or before forty five (45) days following the date upon
which Closing was to have occurred.





(b)           Upon
the occurrence of an Event of Default by Buyer, Seller shall be entitled to
retain the Deposit as liquidated damages (the “Liquidated Damages”), which shall
be the sole and exclusive remedy and measure of damages as a result of the
occurrence of an Event of Default by Buyer.  Seller expressly waives
its rights to seek damages upon the occurrence of an Event of Default by Buyer
hereunder.  THE
PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO
CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT HEREUNDER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE.  AFTER NEGOTIATION, THE
PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE
OF THIS AGREEMENT, THE AMOUNT OF THE LIQUIDATED DAMAGES IS A REASONABLE ESTIMATE
OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT.  EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT
THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS
AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES
PROVISION.  THE FOREGOING IS NOT INTENDED TO LIMIT BUYER’S INDEMNITY
OBLIGATIONS UNDER OTHER SECTIONS HEREOF.


12


10.
            MISCELLANEOUS





10.1
            Notices





Any and
all notices given, or required to be given hereunder shall be in writing and
shall be deemed to have been adequately given when received by the party to whom
such notice is being given.  Notices shall be addressed if to Buyer
to: ENERGY PARTS SOLUTIONS LLC,
Attn: Jeff Canon, 2001 Adams Road, Sedalia, Missouri 65301; and if to
Seller to: MMC CHULA VISTA II
LLC., 26 Broadway, Suite 960, New York, New York 10004, Attn: Denis
Gagnon,or
such other address as the respective parties hereto shall from time to time
designate in writing to the other party.





10.2
            Exhibits





All
Exhibits described in this Agreement shall be deemed to be incorporated and made
a part of this Agreement, except that if there is any inconsistency between this
Agreement and the provisions of any Exhibit, the provisions of the Exhibit shall
control.  The parties shall, from time to time prior to or at the
Closing by written agreement, supplement or amend the description of the
Equipment in this Agreement and the Exhibits to accurately and more fully
reflect the list of Equipment that is being conveyed hereunder.





10.3
            Captions





Caption
and section headings set forth are for convenience of reference only and shall
not in any manner be deemed to limit or restrict the context of the section to
which they relate.





10.4
            Applicable
      Law





This
Agreement is entered into and shall be governed by and interpreted in accordance
with the laws of the State of New York notwithstanding its conflict of law
provisions.





10.5
            Entire
      Agreement





This
Agreement supersedes all prior understandings, representations, negotiations,
and correspondence between the parties and constitutes the entire Agreement
between the parties with respect to the transaction contemplated and shall not
in any manner be supplemented, amended or modified by any course of dealing,
course of performance or usage of trade or by any other means except by a
written instrument executed on behalf of the parties by their duly authorized
officers.


13





10.6
            Confidentiality





Seller
and Buyer agree to treat this Agreement and the terms hereof as confidential and
not to, without the prior written consent of the other party hereto, disclose
the terms hereof to any other person except (i) to its counsel and accountants
or other agents or professional advisors in connection with or relating to the
transactions contemplated by this Agreement, (ii) to any court, governmental
agency or instrumentality or other supervising body requesting such disclosure,
(iii) to any person as may be required by any government regulation or order
(including any regulation, request or order of a bank regulatory agency or
authority or under any disclosure requirements affecting public companies,
including, without limitation, regulations of the Securities and Exchange
Commission), law, statute, regulations, decrees, subpoenas or court orders, (iv)
its directors, officers, employees, affiliates, successors and assigns, (v) to
any banks or other financial institutions in any debt financing by or for the
benefit of Buyer or (vi) in connection with any enforcement of the terms of this
Agreement.  Seller and Buyer shall cause its officers, directors,
agents, and employees to comply with the foregoing
paragraph.  Notwithstanding the foregoing to the contrary, Seller
shall, upon reasonable prior written notice to Buyer, have the right to issue
press releases regarding this transaction.





10.7
            Further
      Assurances




Seller
and Buyer agree that from and after the Closing Date, each of them will, and
will cause their respective representatives and affiliates to execute and
deliver such further instruments of conveyance and transfer and take such other
action as may reasonably be requested by any party hereto to carry out the
purposes and intents hereof.





10.8
            Casualty
      Loss




If,
subsequent to the date of this Agreement and prior to the Closing, a portion of
the Equipment in excess of $10,000 is damaged or destroyed by fire or other
casualty, is taken in condemnation or under the right of eminent domain, or
proceedings for such purposes are pending or threatened (collectively, “Casualty
Loss”), Buyer shall have the option to either (a) purchase the Equipment
notwithstanding any such Casualty Loss, without reduction of the Purchase Price
or (b) terminate this Agreement without further obligation of either party
except that Buyer shall be entitled to receive the return of the Deposit and all
other monies paid to Seller towards the Purchase Price.  In the event
of subpart (a) above Seller shall (x) at the Closing, pay to Buyer all sums paid
to Seller by insurance companies and other third parties by reason of the
Casualty Loss of such Equipment, (y) assign, transfer and set over unto Buyer
all of the right, title and interest of Seller in and to any unpaid awards or
other payments from third parties arising therefrom, and (z) not voluntarily
compromise, settle or adjust any material amounts payable by reason of any
Casualty Loss of any portion of the Equipment without first obtaining the
written consent of Buyer.


14




10.9
            Expenses




Except as
otherwise set forth in this Agreement, Seller and Buyer shall each bear its own
expenses (including, without limitation, attorney’s fees) incurred in connection
with the negotiation and execution of this Agreement and each other agreement,
document and instrument contemplated by this Agreement and the consummation of
the transactions contemplated hereby and thereby.




10.10
            Submission
      to Jurisdiction




The
parties agree to unconditionally and irrevocably submit to the exclusive
jurisdiction of the federal or state courts sitting in New York, and any
appellate court from any thereof, for the resolution of claim or dispute
relating to or arising under this Agreement.




10.11
            Excusable
      Delay





Neither
Seller nor Buyer shall be responsible to the other for any delay (“Excusable
Delay”) in the performance of its duties under this Agreement due to any cause
beyond its reasonable control and not occasioned by its intentional act, fault
or negligence including, but not limited to acts of God, strikes, lockout or
other industrial disturbances, acts of public enemies, orders of any kind of the
government of the United States or any state or local government or any of their
departments, agencies or officials, or any civil or military authority,
insurrections, riots, earthquake, fire, storm, adverse weather conditions,
restraint of government and people, civil disturbances, or
explosions.  Either Seller or Buyer shall promptly notify the other
when an Excusable Delay has occurred or is likely to be incurred and in each
case specify to the extent practicable the estimated extent of such
delay.  Either party may terminate this Agreement in the event the
Excusable Delay lasts more than thirty (30) days.




10.12
            Severability




If any
provision of this Agreement is invalid or unenforceable, the balance of this
Agreement shall remain in effect.




10.13
            Limitation
      of Liability





NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, NO PARTY HERETO (OR ITS
SUBSIDIARIES, AFFILIATES OR ASSIGNS) SHALL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO
ANY OTHER PARTY (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES CLAIMED BY
SUCH OTHER PARTY UNDER THE TERMS OF OR DUE TO ANY BREACH OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR INCOME, COST OF CAPITAL, OR
LOSS OF BUSINESS REPUTATION OR OPPORTUNITY.


15




10.14
            Binding
      Effect; Assignment




This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.  No assignment of
this Agreement or of any rights or obligations hereunder may be made by Seller
or Buyer (by operation of law or otherwise) without the prior written consent of
the other parties hereto and any attempted assignment without the required
consents shall be void.  Notwithstanding the foregoing, Buyer may be
entitled to assign its rights in and to this Agreement to an affiliate or
subsidiary entity without the consent of Seller, provided, that (a) the assignee
shall expressly assume all of Buyer’s obligations under this Agreement pursuant
to a written agreement in form and substance reasonably acceptable to Seller,
(b) Seller receives a copy of such assignment and assumption agreement on or
before two (2) business days prior to the Closing, and (c) the assignee shall be
deemed to have reaffirmed all of the representations and warranties of Buyer
herein.




10.15
            Counterparts




This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.




10.16
            Brokerage,
      Finder, Financial Advisor Fees.




Each
party agrees that should any claim be made for brokerage commissions or finder’s
fees by any broker, finder or financial advisor by, through or on account of any
acts of said party or its representatives, said party will indemnify and hold
the other party free and harmless from and against any and all loss, liability,
cost, damage and expense in connection therewith.  The provisions of
this Section 10.16 shall survive Closing or earlier termination of this
Agreement.




10.17
            Buyer’s
      Acknowledgment.





Buyer has
received and reviewed a copy of the GE Contract and Buyer acknowledges and
accepts the limitations and restriction set forth in Section 24.3 therein and
under the GE Contract for the benefit of GE and its subcontractors and
suppliers. Buyer further disclaims any rights of Seller under the GE
Contract.





11.
            AFFIRMATION
      BY THE PARTIES





11.1    In
performance of its duties under this Agreement, each Party shall be expressly
prohibited from engaging directly or indirectly in any illegal, immoral or
unethical conduct.  Illegal conduct shall be that defined under the
Laws of the United States.





11.2    Each
Party shall comply, and require that its affiliates, agents, and employees
comply, in all respects with the United States Foreign Corrupt Practices Act,
any comparable law or regulation in any applicable jurisdiction and any
multilateral international conventions dealing with bribery and corrupt
practices, as they may be amended from time to time, regardless of whether they
are by their terms otherwise applicable to them.  Without limiting the
generality of the foregoing, no Party hereunder will use, and will require that
its respective agents, adviser, and affiliates will not use, any payment or
other benefit derived in connection with this Agreement to offer, promise or pay
any money, gift or any other thing of value to any person for the purpose of
influencing official actions or decisions affecting this Agreement or any of the
transactions contemplated hereunder in connection with the services, while
knowing or having reason to know that any portion of this money, gift or thing
will, directly or indirectly, be given, offered or promised to: (i) an employee,
officer or other person acting in an official capacity for any government or its
instrumentality; or (ii) any political party, party official or candidate for
political office.


16





11.3    
The Parties will not, and will require that their respective employees, agents,
and adviser will not, conduct business with or assist an entity or person owned
or controlled by, a “suspected terrorist” as defined by U.S. Executive Order
13224.





IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed effective as of the day and
year first above written by their duly authorized officers or
representatives.




Seller:
                          
                          Buyer:MMC
      CHULA VISTA II LLC
                          
                          ENERGY
      PARTS SOLUTIONS LLCBy:
                          /s/ Denis Gagnon
                          
                          By:
      /s/ Scott DieballTitle:
                          CFO
                          
                          Title:
      VP Of Business OperationsDate:
                          August
      7, 2009
                          
                          Date:
                          August
      7, 2009




17





EXHIBIT
A





DESCRIPTION OF
EQUIPMENT


18


EXHIBIT
B





ASSIGNMENT AND BILL OF
SALE





THIS ASSIGNMENT AND BILL OF
SALE (“Assignment”), is
made and entered this __ day of __________, 2009, from MMC CHULA VISTA II LLC, a
Delaware limited liability company (“Assignor”), whose address is
c/o MMC Energy, Inc., 26 Broadway #960 New York, NY 10004, to ENERGY PARTS
SOLUTIONS LLC, a Missouri limited liability company (“Assignee”), whose address is
2001 Adams Road, Sedalia, Missouri 65301.





WITNESSETH:





That Assignor, for Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, does hereby sell, transfer, assign, and convey to
Assignee, all of Assignor’s right, title and interest in and to the equipment,
machinery, and personal property listed on Exhibit A (collectively, the
“Equipment”):





TO HAVE AND TO HOLD to
Assignee, its successors and assigns, forever, subject to the terms and
conditions set forth below.


19





1.           Disclaimers.





(a)
            EXCEPT AS AND TO THE EXTENT
      EXPRESSLY SET FORTH IN SECTION 2 (i) ASSIGNOR MAKES NO
      REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND (ii)
      ASSIGNOR EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY
      REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED
      (ORALLY OR IN WRITING) TO ASSIGNEE OR ANY OF ITS AFFILIATES, EMPLOYEES,
      AGENTS, CONSULTANTS OR REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, ANY
      OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO
      ASSIGNEE BY ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, CONSULTANT,
      REPRESENTATIVE OR ADVISOR OF ASSIGNOR OR ANY OF ITS
      AFFILIATES).  IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY
      OF THE FOREGOING, ASSIGNOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR
      WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO (i) THE MAINTENANCE,
      REPAIR, CONDITION, QUALITY, SUITABILITY, DESIGN OR MARKETABILITY OF THE
      EQUIPMENT, (ii) THE CONTENT, CHARACTER OR NATURE OF ANY INFORMATION
      MEMORANDUM, REPORTS, BROCHURES, CHARTS OR STATEMENTS PREPARED BY ASSIGNOR
      OR THIRD PARTIES WITH RESPECT TO THE EQUIPMENT, (iii) ANY OTHER MATERIALS
      OR INFORMATION THAT MAY HAVE BEEN MADE AVAILABLE TO ASSIGNEE OR ITS
      AFFILIATES, OR ITS OR THEIR EMPLOYEES, AGENTS, CONSULTANTS,
      REPRESENTATIVES OR ADVISORS IN CONNECTION WITH THE TRANSACTIONS
      CONTEMPLATED BY THIS ASSIGNMENT AND BILL OF SALE OR ANY DISCUSSION OR
      PRESENTATION RELATING THERETO, AND (iv) ANY IMPLIED OR EXPRESS WARRANTY OF
      FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT.  EXCEPT AS
      EXPRESSLY SET FORTH IN SECTION 2, ASSIGNOR FURTHER DISCLAIMS ANY
      REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, OF
      MERCHANTABILITY, FREEDOM FROM LATENT VICES OR DEFECTS, FITNESS FOR A
      PARTICULAR PURPOSE OR CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY
      ASSETS, RIGHTS OF A PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM
      DIMINUTION OF CONSIDERATION OR RETURN OF THE PURCHASE PRICE, IT BEING
      EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT ASSIGNEE SHALL
      BE DEEMED TO BE OBTAINING THE EQUIPMENT IN ITS PRESENT STATUS, CONDITION
      AND STATE OF REPAIR, “AS IS” AND “WHERE IS” WITH ALL FAULTS OR DEFECTS
      (KNOWN OR UNKNOWN, LATENT, DISCOVERABLE OR UNDISCOVERABLE), AND THAT
      ASSIGNEE HAS MADE OR CAUSED TO BE  MADE SUCH INSPECTIONS AS
      ASSIGNEE DEEMS APPROPRIATE.AS PART OF THE PROVISIONS OF
      THIS SECTION 1(a), BUT NOT AS A LIMITATION THEREON, BUYER HEREBY AGREES,
      REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED
      TO MATTERSWHICH
      ARE KNOWN OR DISCLOSED, AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND
      BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY
      VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, RULES OR
      REGULATIONS.




Seller
and Buyer acknowledge that the compensation to be paid to Seller for the
Equipment has been decreased to take into account that the Equipment is being
sold subject to the provisions of this Section 1(a).





(b)  Assignor and Assignee agree
that, to the extent required by applicable law to be effective, the disclaimers
of certain representations and warranties contained in this Section 1 are
“conspicuous” disclaimers for the purpose of any applicable law.





2.           Further
Agreements.  Assignor and Assignee agree that the transfer and
assignment of the Equipment is conditioned upon the following agreements between
the parties:


20





(a)  The Equipment shall be
removed from its present location by Assignee at Assignee’s sole risk and
cost.  Seller shall provide all authorizations, obtain all third party
consents,   and furnish all reasonable assistance to ensure that
Buyer can remove the Equipment from its present location without any added
costs, delays or interference.





(b)  Assignor shall ensure
that Assignee and/or its designated contractors shall have access to the site
for purposes of allowing Assignee to fulfill its obligations under this Section
2.  Assignee agrees to indemnify and hold harmless Assignor, its
working interest partners, contractors or subcontractors and the employees,
officers, directors of any of them for all claims, damages (including reasonable
attorney’s fees) and causes of action arising out of the negligence of
Assignee’s (or its contractors’ or subcontractors’) while on the site for any
purpose contemplated by this Assignment, including but not limited to
inspection, removal and transportation of the Equipment.  Assignee
agrees to provide proof of Assignee’s insurance to support its indemnity
obligations under this Section 2(b).  Assignor agrees to indemnify and
hold harmless Assignee, its contractors or subcontractors and the employees,
officers, directors of any of them for all claims, damages (including reasonable
attorney’s fees) and causes of action arising out of the negligence of Assignor
(or its contractors’ or subcontractors’) while Assignee is on the site for any
purpose contemplated by this Assignment, including but not limited to
inspection, removal and transportation of the Equipment.





(c)  Seller hereby represents
and warrants to Buyer that as of the date hereof Seller has and hereby conveys
to Buyer full legal, marketable and beneficial title to the Equipment, free and
clear of any and all security interests, liens, claims, charges or encumbrances
of any nature whatsoever and that it has made all payments under the GE Contract
to GE with respect to the purchase price and storage of the
Equipment.





3.           Miscellaneous.





(a)  This
Assignment shall be governed by and interpreted in accordance with the laws of
the State of New York, without regard to any conflicts of law rule that would
direct application of the laws of another jurisdiction.  The parties
agree to unconditionally and irrevocably submit to the exclusive jurisdiction of
the federal or state courts sitting in New York, and any appellate court from
any thereof, for the resolution of claim or dispute relating to or arising under
this Assignment.




(b)  Assignor and Assignee
agree that from and after the date hereof, each of them will, and will cause
their respective representatives and affiliates to execute and deliver such
further instruments of conveyance and transfer and take such other action as may
reasonably be requested by any party hereto to carry out the purposes and
intents hereof.





(c)   NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS ASSIGNMENT OR OTHERWISE, NO PARTY HERETO (OR
ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) SHALL, UNDER ANY CIRCUMSTANCE, BE
LIABLE TO ANY OTHER PARTY (OR ITS SUBSIDIARIES, AFFILIATES OR ASSIGNS) FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES CLAIMED BY
SUCH OTHER PARTY UNDER THE TERMS OF OR DUE TO ANY BREACH OF THIS ASSIGNMENT,
INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR INCOME, COST OF CAPITAL, OR
LOSS OF BUSINESS REPUTATION OR OPPORTUNITY.


21




IN WITNESS WHEREOF, the
parties have caused this Assignment to be executed effective as of the day and
year first above written by their duly authorized officers or
representatives.





Assignor:
              Assignee:MMC
      CHULA VISTA II LLC
              ENERGY
      PARTS SOLUTIONS LLCBy:
      /s/ Denis Gagnon
              By:
      /s/ Scott DieballTitle:
      CFO
              Title:
      VP of Business OperationsDate:
      August 7, 2009
              Date:
      August 7, 2009




22


EXHIBIT
A


TO


ASSIGNMENT
AND BILL OF SALE





DESCRIPTION
OF EQUIPMENT




23






GE PACKAGED POWER,
INC.




CONTRACT








FOR U.S. BASED SALE
OF




EQUIPMENT &
SERVICES








MMC Energy
Inc




Chula
Vista




Energy Upgrade
Project











25 January
2008




GE AEP Contract Form Rev. 1 (February
10 2003); JEA Rev Dec. 5, 2005









1.0
              
              Table
      of Contents
              
              iArticle
      1
              
              Definitions
              
              1Article
      2
              
              Scope
      of Supply
              
              1Article
      3
              
              Price
              
              1Article
      4
              
              Options
              
              2Article
      5
              
              Payments
              
              35.1
              
              Payment
      Schedule
              
              35.2
              
              Effect
      of Changes in Contract Price
              
              35.3
              
              No
      Offset
              
              35.4
              
              Further
      Assurances
              
              4Article
      6
              
              Termination
      by Purchaser for Convenience
              
              4Article
      7
              
              Title
      Transfer, Delivery, Risk of Loss, Shipment to Storage
              
              47.1
              
              Passage
      of Title
              
              47.2
              
              Lien
      Waiver
              
              47.3
              
              Delivery
      and Delivery Point
              
              57.4
              
              Passage
      of Risk of Loss
              
              57.5
              
              Shipment
      to Storage
              
              57.6
              
              Seller’s
      Transportation Service
              
              6Article
      8
              
              Schedule
              
              7Article
      9
              
              Performance
      Guarantees
              
              8Article
      10
              
              Aggregate
      Limitation on Liquidated Damages
              
              10Article
      11
              
              Performance
      Guarantee Testing
              
              1011.1
              
              Performance
      Tests
              
              1011.2
              
              Performance
      Testing
              
              1011.3
              
              Emissions
      Testing
              
              1011.4
              
              Cure
      Period
              
              1111.5
              
              Cost
      of Tests and Re-Tests
              
              1111.6
              
              Degradation
              
              12Article
      12
              
              Inspection
      and Factory Tests
              
              12
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page i
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  12.1
              
              Inspections
      and Tests at Seller’s Facilities
              
              1212.2
              
              Inspections
      and Tests at Suppliers’ Facilities
              
              1212.3
              
              Inspection
      Not Acceptance
              
              12Article
      13
              
              Warranty
      Period
              
              12Article
      14
              
              Warranty
              
              1314.1
              
              Warranty
              
              1314.2
              
              Remedy
              
              1314.3
              
              Warranty
      on Remedial Work
              
              1414.4
              
              Exclusions
              
              1414.5
              
              Exclusive
      Remedies and Warranties
              
              14Article
      15
              
              Taxes
              
              1515.1
              
              Seller
      Taxes
              
              1515.2
              
              Purchaser
      Taxes
              
              15Article
      16
              
              EEO
      and Compliance with Laws
              
              15Article
      17
              
              Pricing
      and Scope Assumptions
              
              1617.1
              
              Original
      Equipment Definition
              
              1617.2
              
              Pricing
      Assumptions
              
              1617.3
              
              Changes
      to Codes and Standards or to Federal Laws
              
              1617.4
              
              Other
      Changes to Equipment Scope or Configuration, State or Local Laws, Ambient
      Site Conditions and Site Requirements
              
              1617.5
              
              Order
      Definition Meeting
              
              1717.6
              
              Project
      Manager
              
              1717.7
              
              Automatic
      Release
              
              1717.8
              
              Permitting
      Support
              
              1717.9
              
              Global
      Sourcing.
              
              1717.10
              
              Electronic
      Communication
              
              18Article
      18
              
              Changes
              
              1818.1
              
              Purchaser-Initiated
      Changes
              
              1818.2
              
              Seller-Initiated
      Changes
              
              1818.3
              
              Contents
      of Draft Change Order
              
              1818.4
              
              Process
      for Concluding Change Order
              
              1918.5
              
              Agreement
      Required
              
              1918.6
              
              Changes
      to Equipment Not Practicable
              
              19Article
      19
              
              Excusable
      Delays
              
              19Article
      20
              
              Patents
              
              20
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page ii
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  20.1
              
              Patent
      Indemnity
              
              2020.2
              
              Exclusions
              
              21Article
      21
              
              General
      Indemnity
              
              2121.1
              
              Seller’s
      Indemnity
              
              2121.2
              
              Purchaser’s
      Indemnity
              
              21Article
      22
              
              Insurance
              
              2222.1
              
              Comprehensive
      General Liability
              
              2222.2
              
              Automobile
      Liability
              
              2222.3
              
              Worker’s
      Compensation
              
              2222.4
              
              Certificates
      of Insurance
              
              2222.5
              
              Purchaser’s
      Insurance
              
              23Article
      23
              
              Termination
      for Cause; Suspension
              
              2323.1
              
              Grounds
      for Termination by Purchaser
              
              2323.2
              
              Remedy
      in the Event of Termination by Purchaser
              
              2323.3
              
              Suspension
      by Purchaser
              
              2423.4
              
              Grounds
      for Termination by Seller
              
              2423.5
              
              Remedy
      in the Event of Termination by Seller
              
              2523.6
              
              Suspension
      by Seller
              
              25Article
      24
              
              Limitation
      of Liability
              
              2524.1
              
              Limitation
              
              2524.2
              
              Exclusion
      of Consequential Damages
              
              2524.3
              
              Subsequent
      Purchasers
              
              2524.4
              
              Gratuitous
      Advice
              
              2624.5
              
              “Seller”
      Defined
              
              2624.6
              
              Limitations
      to Prevail
              
              26Article
      25
              
              Proprietary
      Information
              
              2625.1
              
              Confidentiality
              
              2625.2
              
              Exclusions
              
              27Article
      26
              
              Assignment
      and Change in Control
              
              2826.1
              
              Eligible
      Assignees
              
              2826.2
              
              Purchaser’s
      Right to Assign to Eligible Assignees
              
              2826.3
              
              Collateral
      Assignment
              
              2926.4
              
              All
      Other Assignments and Transfers by Purchaser
              
              2926.5
              
              Seller’s
      Right to Assign
              
              2926.6
              
              Conditions
              
              2926.7
              
              Change
      in Control of Purchaser
              
              29Article
      27
              
              Dispute
      Resolution
              
              29
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page iii
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  27.1
              
              Referral
      to Senior Management
              
              2927.2
              
              Arbitration
              
              30Article
      28
              
              Governing
      Law
              
              31Article
      29
              
              Software
      License
              
              3129.1
              
              Grant
      of License
              
              3129.2
              
              Distribution
      and Derivative Works
              
              3229.3
              
              Upgrades
              
              32Article
      30
              
              Contract
      Documents
              
              32Article
      31
              
              Effective
      Date
              
              32Article
      32
              
              Entire
      Agreement
              
              33Article
      33
              
              Miscellaneous
      Provisions
              
              3333.1
              
              Third-Party
      Beneficiaries
              
              3333.2
              
              Export
      Control
              
              3333.3
              
              Survival
              
              3333.4
              
              Non-Waiver
              
              3333.5
              
              Invalidity
              
              3333.6
              
              No
      Nuclear Use
              
              3433.7
              
              Changes
      and Improvements Beyond Scope
              
              3433.8
              
              Counterparts
              
              34Attachment
      1
              Defined
      Terms
              
              36Attachment
      2
              Scope
      of Supply
              
              401.1
              
              Basic
      Scope Description
              
              401.1.1
              
              Gas
      Turbine
              
              401.1.2
              
              Generator
              
              401.1.3
              
              Unit
      Enclosure
              
              401.1.4
              
              Gas
      Turbine / Generator Baseplate
              
              401.1.5
              
              Air
      Inlet System
              
              411.1.6
              
              Turbine
      Exhaust
              
              41
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page iv
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  1.1.7
              
              Fuel
      System
              
              411.1.8
              
              Lube
      Oil Systems
              
              411.1.9
              
              Electro-Hydraulic
      Start System
              
              421.1.10
              
              Fire
      Protection System
              
              421.1.11
              
              Digital
      Control System
              
              421.1.12
              
              Generator
      Protective Relays
              
              421.1.13
              
              Soak
      Wash System
              
              431.1.14
              
              Component
      Testing and Package Full Load Test
              
              431.1.15
              
              Drawings,
      Data and Manuals
              
              431.1.16
              
              Training
              
              441.1.17
              
              Improvements
      and Changes
              
              441.2
              
              Optional
      Equipment and Services Checklist and Descriptions
              
              451.2.1
              
              Factory
      Options
              
              451.2.2
              
              Extended
      Scope Equipment Options
              
              451.2.3
              
              Service
      Options
              
              451.2.4
              
              Factory
      Options Descriptions
              
              461.2.5
              
              Extended
      Scope Equipment Options Descriptions
              
              481.2.6
              
              Extended
      Scope Equipment and Service Options Descriptions
              
              481.3
              
              Limits
      of Seller Scope & Exclusions
              
              501.3.1
              
              Limits
      of Seller Scope
              
              501.3.2
              
              Exclusions
              
              51
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page v
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  1.3.3
              
              Codes
      and Standards
              
              521.4
              
              Design
      Criteria
              
              55Attachment
      3
              Payment
      Schedule
              
              56Attachment
      4
              Schedule
      of Options
              
              57Attachment
      5
              Termination
      Schedule
              
              58Attachment
      6
              Lien
      Waiver Form
              
              59Attachment
      7
              Scheduled
      RTS Date(s)
              
              60Attachment
      8
              Test
      Procedures and Protocol
              
              61Attachment
      9
              Stamped
      Guarantee Sheet
              
              62Attachment
      10
              Seller
      Equal Employment Opportunity Certificate
              
              63Attachment
      11
              Typical
      Document List and Schedule
              
              64Attachment
      12
              Special
      Conditions for On-site Services
              
              68Attachment
      13
              Special
      Conditions for Training Services
              
              72Attachment
      14
              GE
      Parent Company Guarantee Template
              
              75Attachment
      15
              TYPICAL
      Spare Parts Lists
              
              78
  MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page vi
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services
  Attachment
      16
              GE
      Specifications
              
              79Attachment
      17
              GE
      2008 Field Service Rates
              
              80






MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page vii
 GE AEPU.S. Contract Form Rev. 1(February 10, 2003) ; JEA
Rev Dec. 5, 2005
 Contract For U.S. Based Sale of
Equipment and Services




THIS AGREEMENT (“Contract”)
is entered into as of the Effective Date by and between:




GE PACKAGED POWER,
INC. , a
Delaware corporation, having a principal place of business at 1333 West Loop
South, Houston, Texas 77027 USA (the “Seller”); and MMC Energy, Inc., a New York
corporation, having a principal place of business at 26
Broadway, Suite 960, NY, NY, 10004 (the
“Purchaser”).




The
Purchaser and the Seller are referred to herein individually as a “Party” and
collectively as the “Parties”.




Recitals




WHEREAS, the
Seller is engaged in the business of manufacturing and delivering various kinds
of power plant equipment and of providing services and training in support of
the installation and use thereof; and




WHEREAS, the
Purchaser desires to purchase, and the Seller desires to sell the Equipment,
together with certain installation support and training Services in connection
with Purchaser’s Project located at 3497 Main
St, Chula Vista, CA, all
subject to the terms set forth herein;




NOW, THEREFORE , in
consideration of the mutual promises stated herein, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:




Article
1
            Definitions




Defined
terms are set forth in Attachment
1 to this
Contract.




Article
2
            Scope of
      Supply




The
Seller shall manufacture and deliver the Equipment and perform the associated
Services as more fully described in Attachment
2 , subject
to the terms and conditions as set forth in this Contract. The Equipment
includes two (2)
LM6000PC classic Units and
associated skids and auxiliary equipment as listed in Article 3
below .




Article
3
            Price




The
Purchaser shall pay to the Seller the following “Contract Price” in
consideration of the Equipment and Services (except Technical Advisory Services
which shall be priced accordingly to Attachment
12 , and
transportation which shall be priced according to Article 7.6 below):




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 1
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services






Description
            
            Price EACH
              (USD)
            
            QTY
            
            EXT Price
              (USD)Gas Turbine
      Generator Set with:
            
            $
            14,910,000.
            
            
            2
            
            $
            29,820,000.Option ASPRINT®Power AugmentationOption
      BNOxControl - Water Injection SystemOption
      CInlet
      Air Cooling - Evaporative Cooling
            
            $
            402,580.
            
            
            2
            
            $
            805,160.Option
      DLube
      Oil Cooler - Fin/FanNOTE
1
            
            $
            44,920.
            
            
            2
            
            $
            89,840.Option
      HDC
      Backup Lighting
            
            $
            18,770.
            
            
            2
            
            $
            37,540.Auxiliary
      Skid Enclosure
            
            $
            125,000.
            
            
            2
            
            $
            250,000.




NOTE 1:
Pricing shown is the ADDER to substitute the fin/fan lube oil cooler in place of
the standard shell and tube cooler.




The above
Contract Price includes
all options known and exercised at the Contract Effective Date. The Contract
Price shall be
adjusted as necessary to take into account:




(i.)
            Change
      Orders, including those related to the exercise of Options (as defined inArticle
      4)that may be exercised after the Contract Effective Date,
    and




(ii.)
            Other
      adjustments specifically provided for in this Contract. Payment shall be
      made in accordance with the Payment Schedule set forth inAttachment
      3and in accordance with the payment terms and conditions set forth inArticle
      5of
      this Contract.




Estimated
Prices shown below for Technical Supervision are INDICATIVE ONLY and provided
for reference based on scope described in Attachment
2 under Option
AAA and on
current effective rates (see Attachment
17 ). Actual
costs to be billed based on rates in effect at time of service.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 2
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




Description
            INDICATIVE Estimated
      PriceOption
      AAATechnical
      Supervision(2-Unit Site)
            $745,700.




Article
4
            Options




The
Purchaser shall have the right to exercise options to purchase the additional
Equipment or Services which have been previously and specifically quoted to
Purchaser and which are described in the Attachment
4 , within
the times and at the prices therein stated. If any Option is exercised in
writing prior to the option exercise deadline(s) set forth in Attachment
4 , the
Contract Price will be automatically adjusted as set forth in the Attachment
4 and the
associated Payment Schedule and RTS Schedule shall be set forth in a mutually
executed Change Order.




Article
5
            Payments




5.1
            Payment
      Schedule




Payments
shall be made in accordance with the Payment Schedule set forth in Attachment
3 hereto.
Payments shall be remitted via wire transfer in compliance with the wire
transfer instructions provided on each invoice. Late payments shall be subject
to an interest charge equal to two percent in excess of the prime rate as
published in the Wall Street Journal, calculated from the payment due date to
the date upon which the payment is actually received by the Seller.




5.2
            Effect
      of Changes in Contract Price




If any
adjustment results in an increase to the Contract Price, Purchaser shall pay for
the increase in accordance with the corresponding invoice submitted by Seller.
If any adjustment results in a decrease in the Contract Price, payments
previously made shall be retained by the Seller and will be applied to
subsequent payments as they become due.




5.3
            No
      Offset




Seller
shall not be responsible for backcharges or field modifications performed by
Purchaser unless Seller authorizes such charges in writing prior to the
incurrence thereof and Purchaser specifically waives any right of set-off
relating to such charges. Upon written notification from Purchaser, Seller shall
respond within five (5) business days with approval of the proposed
modifications or with a plan for the review of the proposed modifications.
Seller shall not unnecessarily withhold approval of said field modifications or
unnecessarily delay the review process. Any claim or set-off for backcharges
shall be accompanied by a copy of such written authorization.




In no
event shall Purchaser offset any amounts due under this Contract by amounts that
may be due Purchaser from Seller or any of its Affiliates under any other
agreement, judgment or order.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 3
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


5.4
            Further
      Assurances




If
requested by Seller at any time, Purchaser will demonstrate its financial
capability to continue to carry out its obligations under this Contract. This
demonstration may require that Purchaser furnish adequate payment security
(which may include a letter of credit, parent guaranty or surety bond in a form
and amount reasonably acceptable to Seller).




Article
6
            Termination by Purchaser for
      Convenience




The
Purchaser shall have the right to terminate this Contract, at any time for its
convenience, and this termination for convenience shall be effective
upon:




(i.)
            Receipt
      by the Seller of written notice of
termination






(ii.)
            Receipt
      by the Seller of termination charges in accordance with the Termination
      Schedule attached to this Contract asAttachment
      5.
      If Purchaser’s payment of the termination charges occurs after Seller
      receives Purchaser’s termination notice, Seller shall have the right to
      suspend performance upon receipt of the termination notice and await the
      payment of termination charges without penalty to Seller. Termination for
      Cause is addressed inArticle
      23of
      this Contract.




Article
7
            Title Transfer, Delivery, Risk
      of Loss, Shipment to Storage




7.1
            Passage
      of Title




Title to
each item of Equipment or materials to be shipped from within the United States
to a Site within the United States shall pass to the Purchaser when the Seller
issues its Notice of RTS indicating that the Equipment is available for shipment
from the relevant warehouse or factory. Title to the Equipment or materials to
be shipped from a country other than the United States to a Site within the
United States shall pass to the Purchaser at the port of export immediately
after the Equipment or materials have been cleared for export. Title to Services
shall pass to the Purchaser as performed. This Contract assumes that the Site
will be located in the United States. In the event that, for any reason, the
Buyer proposes to use the Equipment at a Site located outside of the United
States, Seller may request that the Parties enter into a written amendment of
this Contract allowing for high seas title transfer.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 4
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


7.2
            Lien
      Waiver




Prior to
remittance of Purchaser’s final payment for the Equipment or Services, Purchaser
will request that Seller issue a final (one-time) lien waiver in the form of Attachment
6 to this
Contract.




7.3
            Delivery
      and Delivery Point




If
Purchaser does not elect to use transportation service described in Article 7.6 below,
Seller shall accomplish Delivery of the Equipment to Purchaser at the relevant
manufacturing facility or warehouse upon Notice of RTS (the “Delivery Point”).
Terms of Delivery of the Seller Supplied equipment will be EX-Works, relevant
warehouse or manufacturer’s facility (EXW as per Incoterms 2000).




If
Purchaser elects to use the transportation service described in Article 7.6 below,
the Delivery Point instead shall be defined to be the Purchaser’s Site, and
Delivery shall be deemed to have been accomplished by Seller upon arrival of the
transport carrier at the Site but prior to unloading (which shall be the
responsibility of Purchaser). If this Option is selected, terms of Delivery of
the Seller Supplied equipment will be Cost and Insurance Paid to Owner’s jobsite
(CIP as per Incoterms 2000). The Parties recognize that, in either case,
Delivery may be deemed to have occurred in the event of a storage situation as
set forth in Article 7.5 below.




7.4
            Passage
      of Risk of Loss




Seller
shall remain responsible for risk of loss or damage to the Equipment and
materials incorporated therein until delivered to the Delivery Point (as defined
above, depending upon whether Purchaser elects to use the transportation service
described in Article 7.6 below or
make its own transportation arrangements). If, however, Purchaser is unable to
accept the Equipment upon Seller’s Notice of RTS and a storage situation is
triggered in accordance with Article 7.5 below,
Seller shall retain risk of loss for the Equipment during the storage period
only if Seller is directly responsible for storage.


Page 5
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




7.5
            Shipment
      to Storage




If any
part of the Equipment cannot be shipped to the Purchaser when ready due to any
cause not attributable to the Seller, the Seller may ship such Equipment to
storage. If the Equipment is placed in storage, including storage at the
facility where it is manufactured, the following conditions shall
apply:




(i.)
            Title
      and risk of loss (including responsibility for insurance coverage) shall
      thereupon pass to the Purchaser if it had not already
    passed;




(ii.)
            Any
      amounts otherwise payable to the Seller upon Delivery or title transfer
      shall be payable upon presentation of the Seller’s invoice(s) and
      certification of cause for storage;




(iii.)
            All
      expenses incurred by the Seller, such as for preparation for and placement
      into storage, handling, inspection, preservation, insurance, storage,
      removal charges and any taxes shall be payable on a monthly basis by the
      Purchaser upon submission of the Seller’s
  invoice(s);




(iv.)
            The
      Services provided herein shall be subsequently changed to the rate
      prevailing at the time of actual use and the Purchaser shall pay the net
      increase;




(v.)
            Seller
      shall be deemed to have accomplished Delivery of the Equipment per Article7.3above




(vi.)
            If
      Purchaser has elected to use the transportation services described in
      Article7.6below, upon Purchaser’s notice of its ability to accept Delivery of the
      Equipment and payment of all amounts due hereunder, the Seller shall
      resume transportation of the Equipment to the Delivery
    Point.




7.6
            Seller’s
      Transportation Service




As of the
Effective Date of this Contract, Purchaser has elected this Option. Purchaser
shall pay Seller for:




(i.)
            All
      fees and expenses including, but not limited to, those covering
      preparation of consular documents, freight, storage and
      warehouse-to-warehouse insurance (collectively, “Transport Costs”) plus




(ii.)
            A
      shipping management fee in the amount of
either:




a.)
            10%
      of all Transport Costs actually incurred (if Seller receives Purchaser’s
      election of this Option at least ninety (90) days’ prior to the first
      Scheduled RTS Date) or




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 6
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




b.)
            15%
      of all Transport Costs actually incurred (if Seller receives Purchaser’s
      election of this Option less than ninety (90) days prior to the first
      Scheduled RTS Date).




These
costs shall be invoiced separately. In performing such service, Seller will
comply with any reasonable instructions of Purchaser or, in the absence thereof,
shall act according to its best judgment. In acting on Purchaser’s behalf
hereunder, Seller shall retain risk of loss for the Equipment during
transportation, subject to Article
24 of this
Contract, but shall not be liable or otherwise held responsible under this
Article or this Contract for any delay in performance of the transportation
service or arrival of the Equipment. Seller’s sole and exclusive schedule
obligations are set forth in Article
8 . Claims
against Seller for shortages or errors in shipment must be made within 30 days
after receipt of the Equipment by Purchaser and be accompanied by necessary
documentation to substantiate the claim. Purchaser may not return Equipment
without first receiving written permission from Seller and agreeing with Seller
on the terms to cover such return.




Article
8
            Schedule




The
Seller shall provide the Notice of RTS for each Major Component by the date(s)
set forth in the Scheduled RTS Date(s) schedule attached to this Contract as Attachment
7 (each, a
"Scheduled RTS Date"). Partial shipments will be allowed.




If any
Major Component is not ready to ship on or before the relevant Scheduled RTS
Date(s) for reasons attributable to the Seller and not excused elsewhere in this
Contract, the Seller shall pay as liquidated damages, and not as a penalty, a
sum calculated in accordance with the table below, until actual Notice of RTS
for such Major Component:




Delay Liquidated Damage
      Period
            Amount of Delay Liquidated
      DamagesDelay
      periods below, expiring on the earlier of the date upon which (a) the
      delay liquidated damages cap is reached or (b) Seller delivers Notice of
      RTS
            Rate
      per day per delayed Major Component (not including separately shipped
      components) during the Delay Liquidated Damage PeriodDays
      1-15
            $5,000Days
      16-30
            $10,000Days
      31+
            $20,000




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 7
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


No grace
period will apply to Liquidated Damages for equipment that is not delivered in
accordance with the Scheduled RTS Dates in Attachment
7 unless
mutually agreed by Buyer and Seller. Liquidated
damage computations shall disregard any accessory to the Major Component that is
shipped separately. For
purposes of computation of Liquidated Damages, Major Components shall be defined
as follows:




Combustion
Turbine


Combustion
Turbine Enclosure


Turbine
Control Panel


Generator


Generator
Enclosure


Sprint
Skid


Auxiliary
Skid


Water
Injection Skid


Fin-Fan
Cooler Skid


Inlet Air
Housing and associated components




Minor
Components that make up the remainder of the material shipped direct, less small
minor items, shall be delivered within 30 days after the Major Components ship
date. Minor Component ship dates and deliveries are not subject to Delay
Liquidated Damages, as part of this Agreement. Minor
Component Equipment shall be defined as follows:




Skid
Interconnection piping and tubing


CO 2 bottle
fire protection skid


Equipment
that is not considered integral to the operation of the Unit, such as
miscellaneous components that are typically shipped via box (fasteners, filters,
etc.)




The
Seller's liability hereunder for delay liquidated damages shall not exceed seven
and one half percent (7.5%) of the Unit Price for the Unit giving rise to such
claim. The liquidated damages for delay in Notice of RTS shall be the
Purchaser’s exclusive remedy for and the Seller’s sole obligation arising out of
delayed Equipment.




Notwithstanding
the foregoing, the Seller shall have no liability to the Purchaser for
liquidated damages for delay with respect to any Unit unless, in the reasonable
discretion of Purchaser, the delay in providing Notice of RTS for such Unit is
the direct cause of an actual delay in the initial commercial operation of the
Project.




If any
drawing set to which drawing delay liquidated damages apply, excluding as-built
drawings, is not submitted on or before the relevant submittal date indicated in Attachment
11 for
reasons attributable to the Seller and not excused elsewhere in this Contract,
the Seller shall pay as liquidated damages, and not as a penalty, $500 per day
of delay per drawing set, until actual submittal of such drawing set. The
Seller's liability hereunder for drawing delay liquidated damages shall not
exceed $150,000. The liquidated damages for delay in delivery of drawings shall
be the Purchaser's exclusive remedy for and the Seller's sole obligation arising
out of delayed delivery of the drawings or data, excluding as-built
drawings.





MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 8
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


Article
9
            Performance
      Guarantees




When
tested in accordance with Attachment
8 and
subject to the conditions specified in Attachment
8 and Attachment
9 , the
Seller guarantees that the Equipment will achieve the output, heat rate and
NO x emissions level set forth in the Stamped Guarantee Sheet attached hereto as Attachment
9 . If the
average performance of all Unit(s) fails to achieve the output or heat rate
Performance Guarantees after the final performance test provided for in Article
11 below,
the Seller shall pay to the Purchaser as liquidated damages, and not as a
penalty, a sum calculated in accordance with the table below for each Unit that
fails to achieve the output or heat rate Performance Guarantees:







Criterion
            Test Measurement
      Point
            Liquidated
      DamagesOutput
            At
      Generator Terminals
            $1,000
      for each kW below the applicable Performance GuaranteeHeat
      Rate
            At
      Turbine Fuel Meter
            $5,000
      for each btu/kWh (LHV) above the applicable Performance
      GuaranteeNOx,
      CO, VOC Emissions
            At
      Turbine Exhaust Flange
            Liquidated
      damages not applicable. In lieu of any damages, Seller has a one-time duty
      to adjust and repair the Unit until the Performance Guarantee for NOx, CO,
      and VOC is met. (Must Meet Remedy).




The
Seller's aggregate liability hereunder for liquidated damages for failure to
achieve the output Performance Guarantee shall not exceed seven and one half
percent (7.5%) of the Unit Price of the Unit(s) giving rise to such claim. The
Seller’s aggregate liability hereunder for liquidated damages for failure to
achieve the heat rate Performance Guarantee shall not exceed seven and one half
percent (7.5%) of the Unit Price of the Unit(s) giving rise to such claim. The
liquidated damages for failure to achieve the Performance Guarantees and the
corrective action to be taken by the Seller for deficiencies in performance
shall be the Purchaser’s exclusive remedies for and the Seller’s sole
obligations arising out of such deficiencies.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 9
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




In
addition to the Performance Guarantees for output and heat rate, when tested in
accordance with Attachment
8 and
subject to the conditions set forth in Attachment
8 and Attachment
9 , the
Seller guarantees that each Unit will meet the Minimum Performance Criteria. If
when first so tested, the Unit fails to meet the Minimum Performance Criteria,
in lieu of liquidated damages, the Seller shall have a one-time duty to adjust
and repair the Unit until the Minimum Performance Criteria is met (Must Meet
Remedy).




Notwithstanding
the foregoing, the Seller shall have no liability to the Purchaser for
liquidated damages for failure to achieve the Performance Guarantees with
respect to any Unit unless the Purchaser suffers economic harm as a result of
the failure of such Unit to achieve the Performance Guarantees.




If the
average performance of all Unit(s) exceeds the Performance Guarantees for either
output or heat rate, then the Purchaser shall pay to the Seller as a bonus an
amount calculated in accordance with the table below:




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




Criterion
            BonusOutput
            50%
      of the Liquidated Damage rate for output for each kW below the applicable
      Performance Guarantee for outputHeat
      Rate
            50%
      of the Liquidated Damage rate for heat rate for each btu/kWh (LHV) above
      the applicable Performance Guarantee for heat rate




For
avoidance of doubt, liquidated damages and/or bonus for output and heat rate
shall be calculated on an individual Unit basis at each respective Site only,
and not in the aggregate.




Article
    10
            Aggregate Limitation on
      Liquidated Damages




The
Seller's overall aggregate liability hereunder for all forms of liquidated
damages provided for in this Contract shall not exceed fifteen percent (15%) of
the Unit Price of the Unit(s) giving rise to such claims. The Parties agree that
the amount of liquidated damages set forth above are reasonable in light of the
anticipated harm caused by the breach of duty related thereto and the
difficulties of proof of loss and inconvenience or non-feasibility of obtaining
any adequate remedy and the Parties are stopped from contesting the validity or
enforceability of such liquidated damages.






Article
    11
            Performance Guarantee
      Testing




11.1
            Performance
      Tests




The
performance tests shall be arranged and conducted by the Purchaser or its
designee unless specifically stated below.




11.2
            Performance
      Testing




The tests
for output and heat rate shall be performed using the testing procedures and
protocol set forth in Attachment
8 and
subject to conditions set forth in Attachment
8 and Attachment
9 , and
shall be conducted immediately following the start-up period after the Seller
has conducted final check-out of the Unit. If the output and heat rate tests are
not conducted within the first 200 fired hours, degradation shall be applied in
accordance with Article 11.6 .




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 11
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


11.3
            Emissions
      Testing




If
required, Purchaser or its designee shall conduct the emissions tests at the
engine exhaust. Purchaser shall provide Seller a copy of the initial compliance
test report, as submitted to the relevant air quality management
agency.




11.4
            Cure
      Period




If when
first tested, the Unit(s) does (do) not meet the heat rate or output Performance
Guarantees or the NOx and CO emissions guarantees, the Seller shall be afforded
sixty (60) calendar days, plus Delay Days if any, of access to the Unit(s) to
undertake corrective action. During this period, Seller’s access to the
Equipment will not impact dispatch or revenue opportunities and all Seller
activities shall be coordinated with the Purchaser. If the Seller requests
access to the machine to correct the non-compliance and the Purchaser does not
provide access to the machine due to revenue opportunities or any other reason
as may be required by the Purchaser, the Seller shall be afforded, on a day per
day basis, the number of days equal to the delay which shall be defined as a
Delay Day. The Unit(s) will be re-tested when the Seller so requests, but in any
event at the end of this cure period. The degradation correction provided in
section 11.6 below
will be in effect during the hours of Purchaser operation.




For the
purpose of the cure period for VOC emissions, if when first tested, the Unit(s)
does (do) not meet the VOC emissions guarantee, the Seller shall be afforded
sixty (60) calendar days, plus Delay Days if any, of access to the Unit(s) to
undertake corrective action. During this period, Seller’s access to the
Equipment will not impact dispatch or revenue opportunities and all Seller
activities shall be coordinated with the Purchaser. If the Seller requests
access to the machine to correct the non-compliance and the Purchaser does not
provide access to the machine due to revenue opportunities or any other reason
as may be required by the Purchaser, the Seller shall be afforded, on a day per
day basis, the number of days equal to the delay which shall be defined as a
Delay Day. The Unit(s) will be re-tested when the Seller so requests, but in any
event at the end of this cure period.




11.5
            Cost
      of Tests and Re-Tests




The
Purchaser shall perform the initial performance tests at its cost. The Seller
shall be notified of, and shall be represented at all such tests. If a re-test
is required and to the extent the Seller was the cause of such re-test, the
actual cost of the retest will be borne by the Seller. The actual cost of the
re-test shall mean:




(i.)
            Cost
      of special test personnel or special operating personnel provided by the
      Purchaser




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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2005
 Contract For U.S. Based Sale of
Equipment and Services




(ii.)
            Cost
      of special instrumentation and equipment (including rental cost) and
      including required calibration of the
  instrumentation




(iii.)
            The
      Seller’s personnel cost, but in no event whatsoever will the Seller be
      responsible for the cost of fuel or other consumables, normal operating
      personnel, or any other such cost typically borne by the
      Purchaser.




11.6
            Degradation




In
conducting the initial performance test or re-tests, the performance of the Unit
shall not be adjusted for degradation until such Unit has operated in excess of
two hundred (200) hours. The Seller’s degradation curve shall be used to
determine the adjustment for Unit output and Unit heat rate.




Article
    12
            Inspection and Factory
      Tests




12.1
            Inspections
      and Tests at Seller’s Facilities




Upon the
Purchaser’s request and with the Seller’s prior written consent, the Purchaser’s
inspector shall be provided access to the Seller’s facilities to obtain
information on production progress and make inspections. Such access will be
limited to areas concerned with the Equipment and shall not include restricted
areas where work of a proprietary nature is being conducted. The Seller shall,
in its sole discretion, determine the extent of the Purchaser’s access to the
Seller’s facilities and the extent of factory testing to be conducted on the
Equipment during normal business hours.




12.2
            Inspections
      and Tests at Suppliers’ Facilities




Subject
to the conditions set forth in the foregoing paragraph, the Seller will make
reasonable efforts to obtain for the Purchaser’s access to its Suppliers’
facilities for the purposes described in the paragraph above.




12.3
            Inspection
      Not Acceptance




The
Purchaser’s inspection of the Equipment or its failure to inspect does not
relieve the Seller of its obligation to fulfill the requirements of this
Contract, nor is it to be construed as acceptance by the Purchaser.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 13
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


Article
    13
            Warranty
      Period




The
Seller shall warrant the Equipment and the Services on the terms set forth in Article
14 below
for twelve (12) months following the date fuel is first combusted in the Unit at
the Site, 4,000 operating hours or eighteen (18) months following the date of
Seller’s Notice of RTS, whichever period shall first expire (the “Warranty
Period”), provided, however, that the warranty applicable to the Training
Services shall be solely as set forth in Article
14 below.




Article
    14
            Warranty




14.1
            Warranty




The
Seller warrants to the Purchaser that:




(i.)
            The
      Equipment to be delivered
hereunder:




a.)
            shall
      be fit for the purpose of generating electric power when operated in
      accordance with the Seller’s specific written operation instructions and,
      in the absence thereof, in accordance with generally accepted operation
      practices of the electric power producing industry
  and




b.)
            shall
      be free from defects in material, workmanship and
  title;




(ii.)
            The
      Services shall be performed in a competent, diligent
    manner.




14.2
            Remedy




If the
Equipment delivered or Services performed hereunder do not meet the above
warranties during the Warranty Period set forth in Article
13 of this
Contract, the Purchaser shall promptly notify the Seller in writing and make the
Equipment available promptly for correction. The Seller shall thereupon correct
any defect, at its option by:




(i.)
            Reperforming
      the defective Services




(ii.)
            Repairing
      the defective part of the Equipment




(iii.)
            Providing
      necessary replacement parts, including shipment of parts to Owner’s
      site




Purchaser
shall, at Seller’s option, return any defective part that is replaced by Seller
at Seller’s expense to Seller’s facility within thirty (30) days from the date
of written instruction by Seller. The Seller shall provide technical advisory
Services reasonably necessary for any such repair of the Equipment, but the
Seller shall not be responsible for:




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


(iv.)
            Removal
      or replacement of structures or other parts of the facility
      and




(v.)
            Site
      labor for installation of parts or
components.




If a
defect in the Equipment or part thereof identified during the warranty period
cannot be corrected by the Seller’s reasonable efforts, upon
mutual agreement by both Parties, the Parties
will negotiate an equitable adjustment in price with respect to such Equipment
or part thereof. The condition of any tests shall be mutually agreed upon and
the Seller shall be notified of and may be represented at, all tests that may be
made




14.3
            Warranty
      on Remedial Work




Any
re-performed service or repaired or replacement part furnished under this
warranty shall carry warranties on the same terms as set forth above in Article
13 .




(i.)
            The
      remainder of the original Warranty Period or




(ii.)
            Six
      (6) months from the date of such re-performance, repair or
      replacement.




In any
event the repair/replacement warranty period and the Seller’s responsibilities
set forth herein for such repaired or replacement part shall end no later than
six (6) months after expiration of the original Warranty Period.




14.4
            Exclusions




The
Seller does not warrant the Equipment or any repaired or replacement parts
against normal wear and tear, including that due to environment or operation,
including excessive operation at peak capability, frequent starting, type of
fuel, detrimental air inlet conditions or erosion, corrosion or material
deposits from fluids. The warranties and remedies set forth herein are further
conditioned upon:




(i.)
            The
      proper storage, installation, operation, and maintenance of the Equipment
      and conformance with the operation instruction manuals (including
      revisions thereto) provided by the Seller and/or its Subcontractors or
      Suppliers, as applicable (including any required warranty preservation
      services in the event of long term storage) and




(ii.)
            Repair
      or modification pursuant to the Seller’s instructions or approval.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


The
Purchaser shall keep proper records of operation and maintenance during the
Warranty Period. These records shall be kept in the form of logsheets and copies
shall be submitted to the Seller upon its request.




14.5
            Exclusive
      Remedies and Warranties




Except
for:




(i.)
            The
      performance liquidated damages for output and heat rate
  and




(ii.)
            If
      applicable, any one-time Must Meet Remedy set forth inArticle
      9,
      the preceding paragraphs of this Article set forth the sole and exclusive
      remedies for all claims based on failure of or defect in the Equipment and
      Services provided under this Contract, whether the failure or defect
      arises before or during the Warranty Period and whether a claim, however
      instituted, is based on contract, indemnity, warranty, tort (including
      negligence), strict liability or
otherwise.




The
foregoing warranties are exclusive and are in lieu of all other warranties and
guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL
APPLY.




Article
    15
            Taxes




15.1
            Seller
      Taxes




The
Contract Price includes applicable corporate and individual taxes that are
measured by net income or profit and are imposed by any governmental authority
of any country on the Seller, its employees, Subcontractors or Suppliers due to
the execution or performance of this Contract.




15.2
            Purchaser
      Taxes




The
Contract Price excludes any sales, use, excise, value added, gross receipts,
consumption, franchise, property, or similar taxes imposed by any federal,
state, or local government. All such taxes shall be for the account of and shall
be paid directly by the Purchaser. If Purchaser is exempt from any such taxes,
Purchaser will provide Seller adequate documentation of exemption in accordance
with the taxing authority requirements prior to title transfer. If Purchaser is
exempt from any Purchaser Taxes, Purchaser will provide Seller adequate
documentation of exemption in accordance with the taxing authority regulations
at least sixty (60) days prior to the Scheduled RTS Date of the
Equipment.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 16
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


Article
    16
            EEOand Compliance with
      Laws




The
Seller shall perform its obligations hereunder in compliance with the legal
requirements set forth in the Equal Employment Opportunity Certificate attached
hereto as Attachment
10 .




Article
    17
            Pricing and Scope
      Assumptions




17.1
            Original
      Equipment Definition




The
original Equipment definition is established in Attachment
2 .




17.2
            Pricing
      Assumptions




The
Contract Price is based on the engineering and manufacture of the Equipment in
accordance with the Seller’s design criteria, manufacturing processes and
procedures and quality assurance programs, so as to comply with:




(i.)
            Those
      portions of the codes and standards identified inAttachment
      2which the Seller has deemed applicable to the Equipment (“Codes and
      Standards”)




(ii.)
            The
      applicable United States Federal Laws in effect as of the Notice to
      Proceed (“Federal Laws”)




(iii.)
            The
      ambient site conditions (including temperature, humidity, elevation and
      any seismic or wind-loading requirements) identified by Purchaser prior to
      Notice to Proceed and set forth inAttachment
      2(“Ambient Site Conditions”)




(iv.)
            Those
      site-specific environmental requirements (including those governing
      emissions and noise) identified by Purchaser prior to Notice to Proceed
      and set forth inAttachment
      2(“Site Requirements”)




(v.)
            Those
      State and Local Laws identified by Purchaser inAttachment
      2.




17.3
            Changes
      to Codes and Standards or to Federal
Laws




If any
change to the Codes and Standards or any change in Federal Law requires a change
to the Equipment, the Seller shall be entitled to a Change Order that includes
equitable adjustments to the Contract Price, Scheduled RTS Date(s) and other
provisions of the Contract that are impacted. In addition, during the
manufacturing process at its discretion, Seller may make minor changes to the
Equipment without entering into a Change Order, provided that such minor changes
do not alter the Contract Price or Scheduled RTS Date(s).




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 17
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




17.4
            Other
      Changes to Equipment Scope or Configuration, State or Local Laws, Ambient
      Site Conditions and Site
Requirements




Except as
set forth in this Article, changes to the Equipment and Services can be made
only as provided in Article
18 .




17.5
            Order
      Definition Meeting




Unless
otherwise agreed, the Seller will schedule an Order Definition Meeting within
thirty (30) days of execution of this Contract. The Seller will advise the
Purchaser of the final drawing delivery schedule during the Order Definition
Meeting.




17.6
            Project
      Manager




No later
than the date of the Order Definition Meeting, the Purchaser will appoint an
individual person as its Project Manager, will authorize that person to act on
its behalf and will identify that person to the Seller. The Purchaser hereby
represents to the Seller that the person so identified will be authorized to act
on behalf of the Purchaser in matters connected with this Contract or the
Project.




17.7
            Automatic
      Release




If the
Purchaser fails to provide any information required by this Article within the
times herein specified, or if the Parties are not able to reach agreement as to
the substance of a Change Order to which the Seller is entitled pursuant to this
Article by the conclusion of the Order Definition Meeting, the Seller will
deliver the Equipment as originally described in Attachment
2 .




17.8
            Permitting
      Support




Purchaser
shall have sole responsibility for, and risk associated with, application for
and maintenance of all permits, including but not limited to site-related,
construction and environmental permits. The Seller shall provide reasonable
assistance to the Purchaser in its endeavors relating to the permitting of the
Site and cooperate by providing information for the purpose of obtaining the
permits. In undertaking such assistance, the Seller shall not be obligated to
incur out-of-pocket costs and expenses without reimbursement from the
Purchaser.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 18
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




17.9
            Global
      Sourcing.




The
Seller reserves the right in its discretion to obtain, source, subcontract,
manufacture, fabricate and assemble the Equipment and any of its components and
systems outside the United States or from non-domestic concerns, or both; it
being understood that the quality standards and warranties of the Seller under
the Contract shall be adhered to in all cases irrespective of source. Seller
shall be responsible for those direct costs associated with its global sourcing
and manufacturing activities that occur prior to title transfer to
Purchaser.




17.10
            Electronic
      Communication




The
Parties agree to use the Seller’s Customer Collaboration System as the primary
medium for the storage and transmittal of drawings, specifications and project
reports. The current Customer Collaboration System is Project Net. Selected
individuals of the Purchaser and the Purchaser’s Engineer shall have access to
Project Net such that drawings and documents can be accessed and downloaded at
any time by either party. Registration instructions and link for access to
Project Net by the Purchaser and the Purchaser’s Engineer shall be available
within 10 working days following the conclusion of the Order Definition
Meeting.




Article
    18
            Changes




18.1
            Purchaser-Initiated
      Changes




The
Purchaser shall have the right to request that the Seller consider changes to
the Equipment or the Services, including modifications, alterations or
additions. If the Purchaser wishes to request such a change, the Purchaser shall
notify the Seller in writing. Within fifteen (15) days after receipt of such
notice (unless otherwise extended by mutual agreement), the Seller shall advise
the Purchaser of the feasibility of the requested change, and shall submit to
the Purchaser a draft Change Order, unless the matter requires further
investigation and research in which case Seller will provide an estimate of the
time frame in which Seller will be able to submit a detailed response to
Purchaser.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




18.2
            Seller-Initiated
      Changes




If the
Seller wishes to propose a change, or if the Seller is entitled to a Change
Order pursuant to the provisions of this Contract, the Seller shall submit to
the Purchaser a draft Change Order.




18.3
            Contents
      of Draft Change Order




The draft
Change Order shall include:




(i.)
            A
      technical description of the proposed change in such detail as the
      Purchaser may reasonably require,




(ii.)
            A
      lump sum firm price adjustment (increase or decrease) in the Contract
      Price, if any, caused by the proposed
change




(iii.)
            All
      potential effect(s), if any, on the Scheduled RTS Date(s), or any other
      schedule or date for performance by the Seller
  hereunder




(iv.)
            All
      potential effect(s), if any, on the Seller's ability to comply with any of
      its obligations hereunder, including the Seller's warranties and
      Performance Guarantees.




18.4
            Process
      for Concluding Change Order




The
Purchaser shall, within ten (10) days from the date of receipt of such
information, either approve or disapprove the draft Change Order in writing or
request additional time to consider the draft Change Order. If the Purchaser
approves the Change Order, the Purchaser and the Seller shall then sign the
Change Order that shall operate as an amendment to this Contract.




18.5
            Agreement
      Required




All
changes under this contract shall be subject to mutual agreement, and no Change
Order will be effective until signed by both Parties.




18.6
            Changes
      to Equipment Not Practicable




If the
Seller determines that any change to the Equipment contemplated in the
immediately preceding paragraphs is not practicable, the Seller will so notify
the Purchaser and the Purchaser:




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




(i.)
            May
      terminate this Contract in accordance withArticle
      6of
      this Contract.




(ii.)
            May
      direct completion without change.




Article
    19
            ExcusableDelays




The
Seller shall not have any liability or be considered to be in breach or default
of its obligations under this Contract to the extent that performance of such
obligations is delayed or prevented, directly or indirectly, due
to:




(i)
            Causes
      beyond its reasonable control; or




(ii)
            Acts
      of God, acts (or failures to act) of governmental authorities, fires,
      severe weather conditions, earthquakes, strikes or other labor
      disturbances, floods, war (declared or undeclared), epidemics, civil
      unrest, riots, delays or accidents in transportation and car or
      transporter shortages; or




(iii)
            Acts
      (or omissions) of the Purchaser including failure to
    promptly:




(a.)
            Provide
      the Seller with information and approvals necessary to permit the Seller
      to proceed with work immediately and without interruption,
    or




(b.)
            Comply
      with the terms of payment; or




(iv)
            Shipment
      to storage in accordance with Article7.5above.




The
Seller shall notify the Purchaser of any such delay and strive to mitigate the
delay to the extent practicable. The Scheduled RTS Date(s) or other date of
performance shall be extended for a period of time necessary to overcome the
effect of such excusable delay. If the Seller is delayed by acts or omissions of
the Purchaser, or by the prerequisite work of the Purchaser’s other contractors
or suppliers, the Seller shall also be entitled to an equitable price
adjustment.




Article
    20
            Patents




20.1
            Patent
      Indemnity




The
Seller agrees to indemnify and hold harmless the Purchaser from any rightful
claim of any third party that any Equipment manufactured by the Seller and
furnished hereunder infringes any United States registered patent. If the
Purchaser notifies the Seller promptly of the receipt of any such claim, does
not take any position adverse to the Seller regarding such claim and gives the
Seller information, assistance and exclusive authority to settle and defend the
claim, the Seller shall, at its own expense and option, either:




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




(i.)
            Settle
      or defend the claim or any suit or proceeding and pay all damages and
      costs awarded in it against the Purchaser,
or




(ii.)
            Procure
      for the Purchaser the right to continue using the Equipment,
      or




(iii.)
            Modify
      the Equipment so that it becomes non-infringing,
  or




(iv.)
            Replace
      the Equipment with non-infringing Equipment;
or




(v.)
            Remove
      the infringing product and refund the
price.




If, in
any suit arising from such a claim, the continued use of the Equipment for the
purpose intended is forbidden by any court of competent jurisdiction, the Seller
shall at its option take one or more of the actions under (ii.) , (iii.) , (iv.) , or (v.) above.
The foregoing states the entire liability of the Seller for patent infringement
of any Equipment.




20.2
            Exclusions




The above
paragraph shall not apply to:




(i.)
            Any
      Equipment which is manufactured to the Purchaser’s design
    or




(ii.)
            The
      use of any equipment furnished under this Contract in conjunction with any
      other apparatus or material not furnished by Seller, the combined use of
      which in and of itself gives rise to a claim of
    infringement.




As to any
Equipment or use described in the preceding sentence, the Seller assumes no
liability whosoever for patent infringement.




Article
      21
            General
      Indemnity




21.1
            Seller’s
      Indemnity




Subject
to Article
24 the
Seller agrees to indemnify and hold harmless the Purchaser from:




(i.)
            Any
      physical damage to the property of third parties
  or




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




(ii.)
            Injury
      to persons, including death, to the extent resulting directly from the
      negligence of the Seller or its officers, servants, agents, employees,
      and/or assigns while engaged in activities under this
      Contract.




21.2
            Purchaser’s
      Indemnity




The
Purchaser shall likewise indemnify and hold harmless the Seller
from:




(i.)
            Any
      physical damage to property of third parties
or




(ii.)
            Injury
      to persons, including death, to the extent resulting directly from the
      negligence of the Purchaser, its officers, servants, agents, employees,
      and/or assigns while engaged in activities relating to this
      Contract.




21.3
            Concurrent
      Liability




In the
event such damage or injury is caused by the joint or concurrent negligence of
the Seller and the Purchaser, the loss shall be borne by each Party in
proportion to its negligence.




21.4
            Limitation




For
purposes of this Article, “third parties” shall not include:




(i)
            The
      Purchaser or the Owner;




(ii)
            The
      subsidiaries, parents, Affiliates, agents, successors or assigns of the
      Purchaser or the Owner, including any operation or maintenance contractor;
      or




(iii)
            Any
      party:




(a.)
            With
      any equity interest in the foregoing entities, or




(b.)
            With
      a security interest of any nature in any such entity’s assets or property,
      or




(c.)
            Which
      claims or seeks to claim any of the rights, powers or privileges of the
      Purchaser or Owner under this Contract or claims or seeks to claim as a
      third party beneficiary of the Purchaser or Owner under this
      Contract.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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2005
 Contract For U.S. Based Sale of
Equipment and Services




Article
    22
            Insurance




22.1
            Comprehensive
      General Liability




The
Seller shall furnish and maintain Comprehensive General Liability insurance with
limits of not less than $1,000,000 per occurrence for bodily injury or death,
and $1,000,000 per occurrence property damage plus Contractual Liability
coverage.




22.2
            Automobile
      Liability




The
Seller shall furnish and maintain automobile liability insurance with limits of
not less than $1,000,000 for each person, $1,000,000 for each occurrence and
$1,000,000 for property damages.




22.3
            Worker’s
      Compensation




The
Seller will comply with all federal and state workers compensation or similar
laws that might impose any charge or liability on the Purchaser in connection
with this Contract.




22.4
            Certificates
      of Insurance




Upon
written request by the Purchaser, the Seller shall furnish the Purchaser with
certificates of insurance evidencing that insurance has been provided to meet
the above requirements. Such certificates shall state that no material change or
cancellation can be effected without thirty (30) days prior written notice to
the Purchaser.




22.5
            Purchaser’s
      Insurance




The
Seller shall be included as an additional insured on the Purchaser’s or Owner’s
All Risk/Builder's Risk Insurance Policy, which will include a waiver of rights
of subrogation against the Seller. The deductible under this policy shall be for
Purchaser’s account.




Article
    23
            Termination for Cause;
      Suspension




23.1
            Grounds
      for Termination by Purchaser




The
Purchaser shall have the right to terminate this Contract for cause in the event
that the Seller:




(i)
            Becomes
      insolvent, makes an assignment for the benefit of its creditors, has a
      receiver or trustee appointed for the benefit of its creditors, or files
      for protection from creditors under any bankruptcy or insolvency laws;
      or




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




(ii)
            Substantially
      breaches and fails to comply or perform its material obligations hereunder
      (but only with respect to a material obligation for which this Contract
      does not provide exclusive remedies), provided
  that:




(a.)
            The
      Purchaser shall first have provided the Seller with written notice of the
      nature of such breach and of the Purchaser’s intention to terminate the
      Contract as a result of such breach,
and




(b.)
            The
      Seller shall have failed within thirty (30) days after receipt of such
      notice (or such extended period as is considered reasonable by the
      Parties) either




i.
            To
      commence to cure such breach and diligently thereafter to pursue such
      cure, or




ii.
            To
      provide reasonable evidence that no such breach has
    occurred.




23.2
            Remedy
      in the Event of Termination by
Purchaser




If the
Purchaser terminates this Contract as provided above, the Purchaser shall pay
the Seller that portion of the Contract Price allocable to the Equipment title
transferred or Services performed prior to the termination notice. If the
payments received by the Seller as of the date of such termination are in excess
of such portion of the Contract Price, the Seller shall return the excess of
such payments to the Purchaser. To the extent that Purchaser has paid for
Equipment that has not yet been title transferred to Purchaser as of the date of
the termination notice, Purchaser may elect to either:




(i.)
            Continue
      to receive delivery of the Equipment upon full and complete payment for
      the Equipment or




(ii.)
            Forego
      delivery and title transfer of the Equipment in exchange for a refund of
      the portion of the Contract Price allocable to the Equipment that has not
      been title transferred to Purchaser (in which case Seller shall retain
      title to such Equipment).




23.3
            Suspension
      by Purchaser




It is
expressly agreed that the Purchaser shall have no right to suspend manufacture
of the Equipment except to the extent that Purchaser elects to exercise its
rights hereunder to terminate this Contract for convenience or Seller
default.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


23.4
            Grounds
      for Termination by Seller




The
Seller shall have the right to terminate this Contract for cause in the event
that the Purchaser:




(i)
            Becomes
      insolvent, makes an assignment for the benefit of its creditors, has a
      receiver or trustee appointed for the benefit of its creditors, or files
      for protection from creditors under any bankruptcy or insolvency laws;
      or




(ii)
            Fails
      to make any payment when due or to fulfill any payment conditions as set
      forth in the Contract, provided
that:




(a.)
            The
      Seller shall first have provided the Purchaser with written notice of the
      nature of such failure and of the Seller’s intention to terminate the
      Contract as a result of such failure,
and




(b.)
            The
      Purchaser shall have failed within thirty days after receipt of such
      notice to correct such failure.




23.5
            Remedy
      in the Event of Termination by
Seller




If the
Seller terminates this Contract as provided above, the Purchaser shall pay to
the Seller the charges set forth in the Termination Schedule.




23.6
            Suspension
      by Seller




The
Seller shall have the right to suspend all work on the Equipment or Services
immediately upon the failure of the Purchaser to make any payment when due. The
Seller shall further have the right to suspend any shipment of the Equipment if
all payments due prior to the applicable Scheduled RTS Date have not been made.
Any cost incurred by the Seller in accordance with any such suspension
(including storage costs) shall be payable by the Purchaser upon submission of
the Seller’s invoice(s). Performance of the Seller’s obligations shall be
extended for a period of time reasonably necessary to overcome the effects of
such suspension, except that Seller’s suspension shall not be deemed to extend
the Warranty Period hereunder.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




Article
    24
            Limitation of
      Liability




24.1
            Limitation




The total
liability of the Seller, on all claims of any kind, whether in contract,
warranty, indemnity, tort (including negligence), strict liability, or
otherwise, arising out of the performance or breach of the Contract or use of
any Equipment shall not exceed the portion of the Contract Price allocable to
the portion of the Equipment giving rise to the claim. All liability under this
Contract shall terminate two (2) years after the Notice of RTS for the last Unit
giving rise to the claim.




24.2
            Exclusion
      of Consequential Damages




In no
event, whether as a result of breach of contract, warranty, indemnity, tort
(including negligence), strict liability, or otherwise, shall the Seller or its
Subcontractors or Suppliers be liable for loss of profit or revenues, loss of
use of the Equipment or any associated equipment, cost of capital, cost of
substitute equipment, facilities, services or replacement power, downtime costs,
fines or penalties charged to Purchaser for failure to meet permits, claims of
the Purchaser’s and/or Owner’s customers for such damages, or for any special,
consequential, incidental, indirect or exemplary damages and the Purchaser shall
indemnify the Seller against such claims of the Purchaser’s and/or Owner’s
customers.




24.3
            Subsequent
      Purchasers




The
Purchaser covenants and agrees that, in the event it seeks to transfer or assign
the Equipment and Services to any other third party, it shall, as a condition to
such transfer or assignment, cause such third party to acknowledge and accept
the restrictions and limitations afforded under this Contract for the benefit of
the Seller and its Subcontractors and Suppliers, including the provisions of
this Article. If the Purchaser fails to obtain acknowledgement from the
subsequent purchasers, the Purchaser shall indemnify, defend and hold the Seller
harmless from and against any and all claims in excess of these restrictions and
limitations made by any subsequent purchasers of the Equipment or Services
against the Seller for loss or damage arising out of the performance or
non-performance of the Equipment or Services provided under this
Contract.




24.4
            Gratuitous
      Advice




If the
Seller furnishes the Purchaser with advice or assistance concerning any
products, systems or work which is not required pursuant to this Contract, the
furnishing of such advice or assistance will not subject the Seller to any
liability, whether in contract, warranty, indemnity, tort (including
negligence), strict liability or otherwise.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




24.5
            “Seller”
      Defined




For the
purposes of this Article, the term "Seller" shall mean the Seller, its
Affiliates, Subcontractors and Suppliers of any tier, and their respective
agents and employees, whether individually or collectively.




24.6
            Limitations
      to Prevail




The
provisions of this Article shall prevail over any conflicting or inconsistent
provisions contained in any of the documents comprising this Contract, except to
the extent that such provisions further restrict the Seller's
liability.




Article
    25
            Proprietary
      Information




25.1
            Confidentiality




At the
time of furnishing confidential or proprietary information, the Parties shall
expressly designate by label, stamp, or other written communication that the
information or documentation furnished is confidential. The receiving Party
agrees:




(i.)
            To
      treat such information as
confidential,




(ii.)
            To
      restrict the use of such information to matters relating to performance of
      the Contract, and




(iii.)
            To
      restrict access to such information to its employees whose access is
      necessary in the implementation of the
Contract.




The
receiving Party may release confidential Information to its agents, consultants
and Affiliates (“Representatives”), provided that these
Representatives:




(i.)
            Are
      informed of the confidential and proprietary nature of the confidential
      information and agree to be bound by the same standard of care as the
      receiving Party,




(ii.)
            Have
      a need to know the confidential
information,




(iii.)
            Limit
      their use of the confidential information solely to purposes related to
      the Project and




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




(iv.)
            Are
      not competitors of Seller.




Confidential
information will not be reproduced without the other Party’s prior written
consent, and all copies of written information will be returned upon request
except to the extent that such information is to be retained by the receiving
Party pursuant to the Contract.




25.2
            Exclusions




The
foregoing restrictions do not apply to information which is:




(i.)
            Contained
      in a printed publication which was released to the public by the
      disclosing Party prior to the date of the
  Contract;




(ii.)
            Or
      becomes, publicly known otherwise than through a wrongful act of the
      receiving Party, its employees, or
agents;




(iii.)
            In
      possession of the receiving Party, its employees, or agents prior to
      receipt from the disclosing Party, provided that the person or persons
      providing the same have not had access to the
  information;




(iv.)
            Furnished
      to others by the disclosing Party without restrictions similar to those
      herein on the right of the receiving party to use or
    disclose;




(v.)
            Approved
      in writing by the disclosing Party for disclosure by the receiving Party,
      its agents or employees to a third party
or




(vi.)
            Provided
      to Purchaser’s financing party under notice and requirement of
      confidentiality.




Upon
receipt of a demand or request for the disclosure of confidential information,
the receiving Party shall promptly notify the other Party and afford the Party
an opportunity to seek a protective order or other appropriate form of security
or remedy. In the event that the Parties fail to obtain a protective order or
similar protection, the Party receiving the demand or request for disclosure of
confidential information shall furnish only that portion of the confidential
information that is legally required to be furnished and will exercise
reasonable efforts to obtain reliable assurance that confidential treatment will
be afforded the confidential information.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 29
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




Article
    26
            Assignment and Change in
      Control




26.1
            Eligible
      Assignees




An
Eligible Assignee is an:




(i.)
            Affiliate
      of the Purchaser, or




(ii.)
            Engineering
      or construction contractor under contract with the Purchaser for the
      installation of the Equipment, provided that the Eligible Assignee offers
      Purchaser satisfactory evidence of its ability (both financial and
      otherwise) to fulfill the obligations of Purchaser
    hereunder.




26.2
            Purchaser’s
      Right to Assign to Eligible
Assignees




The
Purchaser may once assign its rights and delegate its obligations under this
Contract to an Eligible Assignee, provided that:




(i)
            The
      Purchaser shall notify the Seller of its intent to assign no less than ten
      business days prior to the execution of any such
    assignment;




(ii)
            The
      Purchaser shall either:




(a.)
            Guarantee
      the obligations of the assignee by executing a guaranty in a form
      acceptable to Seller or




(b.)
            Retain
      its obligations under any payment, indemnity and bonus provisions of the
      Contract;




(iii)
            The
      first assignee may not further assign or delegate any rights or
      obligations hereunder except to the original Purchaser;
  and




(iv)
            The
      Purchaser shall in no event assign to its engineering or construction
      contractor the right to receive liquidated damages under this
      Contract.




26.3
            Collateral
      Assignment




The
Purchaser may also assign a collateral interest in the Contract to a lender who
is not an Eligible Assignee as collateral security for a loan for the
acquisition of the Equipment, provided however, that Purchaser and Lender agree
that any future assignment to the Lender shall occur only as the result of the
exercise by Lender of its remedies under the loan agreements relative to a
bankruptcy or liquidation of Purchaser. Under no circumstances, however, shall a
collateral assignment require Seller to deliver Equipment to Purchaser or an
assignee if Seller has not been fully paid for such Equipment.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




26.4
            All
      Other Assignments and Transfers by
Purchaser




All other
assignments or transfers by Purchaser of any or all of its duties or rights
under this Contract (by operation of law or otherwise) are subject to Seller’s
prior written consent. Further, Purchaser agrees that, until Purchaser receives
title to the Equipment as set forth herein, Purchaser shall not, directly or
indirectly sell, offer to sell or otherwise broker the Equipment.




26.5
            Seller’s
      Right to Assign




The
Seller may assign its rights and delegate its obligations under this Contract to
any Affiliate or subsidiary company. Seller may assign its rights and
obligations to other parties with the prior written consent of
Purchaser.




26.6
            Conditions




Any
assignment shall be subject to all limitations of liability contained in the
Contract. The Purchaser may not assign this Contract except in accordance with
this Article. Any purported assignment not in accordance with this Article shall
be void and without effect.




26.7
            Change
      in Control of Purchaser




If the
Seller believes that a change in the ownership or control of the Purchaser
prejudices the Seller’s ability to enforce its rights under this Contract, the
Purchaser shall furnish such additional security as the Seller shall reasonably
require.




Article
    27
            Dispute
      Resolution




27.1
            Referral
      to Senior Management




Any and
all controversies, disputes or differences between the Parties to this Contract,
if not amicably settled by the Parties with thirty (30) days following written
notice of dispute, shall be referred to senior management of the Parties for
resolution. In the event the dispute has not been resolved within forty-five
(45) days following referral to senior management, or such longer period as the
Parties may mutually agree, then either Party may, upon ten (10) days notice to
the other party, institute arbitration in accordance with the following
paragraphs.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




27.2
            Arbitration




Any and
all controversies, disputes or differences between the Parties to this Contract,
if not resolved by referral to Senior Management, shall be resolved by
arbitration pursuant to the Rules of the Center for Public Resources ("CPR") for
Non-Administered Arbitration of Business Disputes as in effect at the time of
the arbitration. The parties consent to a single, consolidated arbitration for
all Disputes for which arbitration is permitted. The neutral organization for
purposes of the CPR rules will be the CPR. The arbitral tribunal shall be
composed of one arbitrator selected by agreement of the parties or, in the
absence of such agreement within 60 days after either party first proposes an
arbitrator, by the CPR. The arbitration shall be conducted in Houston. Both
Parties shall have the right to present documentary evidence and witnesses and
the right to cross-examine witnesses. On request of either Party, a transcript
of the hearings shall be prepared and made available to the Parties. The
arbitrators shall determine the Dispute in accordance with the Governing Law
without giving effect to any conflict of law rules or other rules that might
render such law inapplicable or unavailable, and shall apply this Agreement
according to its terms. While recognizing that the Rules of the CPR govern any
arbitration hereunder, the parties hereby specifically authorize the arbitrator
to grant dispositive or partially dispositive motions where such relief would be
warranted under the Federal Rules of Civil Procedure, and such relief should be
granted where appropriate. The arbitrators shall not, however, have the power
to:




(i.)
            Impose
      obligations involving the limitations of liability or applicable remedies
      other than those set forth in and permitted by this
    Contract;




(ii.)
            Award
      any damages excluded by Article24.2of
      this Contract or




(iii.)
            Otherwise
      award damages inconsistent with the terms of the
  contract.




The
Arbitrators shall be instructed to provide a detailed written opinion, in the
English language, setting forth the basis for each of their findings. Reasonable
expenses of the arbitration shall be borne in accordance with the decision of
the arbitration.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 32
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


The
written decision of the arbitrators shall be final and binding upon both
Parties. In the context of an attempt by either party to enforce an arbitral
award or order, any defenses relating to the parties' capacity or the validity
of this Agreement or any related agreement under any law are hereby waived; and
judgment on any award or order resulting from an arbitration conducted under
this paragraph may be entered and enforced in any court, in any country, having
jurisdiction thereof or having jurisdiction over any of the parties or any of
their assets. Except as expressly permitted by this Agreement, no party will
commence or voluntarily participate in any court action or proceeding concerning
a Dispute, except:




(i.)
            For
      enforcement of an arbitral award,
or




(ii.)
            To
      restrict or vacate an arbitral decision based on the grounds specified
      under applicable law and not waived
above.




Article
28 Governing Law




This
Contract shall be construed and interpreted in accordance with the laws of the
State of New York, excluding its conflict of law rules (the “Governing Law of
the Contract”), provided that any provision of such law invalidating any
provision of this Contract or modifying the intent of the Parties as expressed
in the terms of this Contract shall not apply.




Article
    29
            Software
      License




29.1
            Grant
      of License




Purchaser
is granted a limited license for any Software within the Scope of Supply. All
Software is protected by the copyright laws of the United States and by
applicable international treaties. No rights under copyrights are transferred to
Purchaser, except as specifically provided herein. All Software provided by
Seller remains Seller’s property. If Purchaser receives Software that renders
Software that Purchaser then has redundant, Purchaser must return the redundant
Software to Seller or certify in writing that Purchaser has erased all copies of
it. This license allows Purchaser to:




(i.)
            Use
      the Software only on the Equipment on which it is installed at the time of
      delivery or, if Software is supplied separately, in connection with
      Equipment supplied by Seller. Purchaser must obtain a supplementary
      license from Seller (which Seller may or may not grant in its sole
      discretion) before using the Software in connection with any other
      equipment or for any other purpose.




(ii.)
            Make
      one copy of the Software in machine-readable form solely for backup
      purposes. Purchaser must reproduce on each copy the copyright notice and
      any other proprietary legends that were on the original
    copy.




(iii.)
            Transfer
      the Software and all rights under this license to another party as part of
      the sale of the Equipment with which it is used, but only if the other
      Party agrees in writing to be bound by the terms of this Article and the
      other provisions of the Contract.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 33
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




29.2
            Distribution
      and Derivative Works




Purchaser
may not distribute copies of the Software to others or electronically transfer
the Software from one computer to another over a network. The Software contains
trade secrets. In order to protect them Purchaser may not decompile, reverse
engineer, disassemble, or otherwise reduce the Software to a human-perceivable
form. PURCHASER MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR
PROFIT, DISTRIBUTE, NETWORK, OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE
OR ANY PART THEREOF.




29.3
            Upgrades




Nothing
herein shall be deemed to create an obligation on the part of Seller to provide
any upgrade or revision to any Software other than pursuant to a specific
written obligation to do so.




Article
    30
            Contract
      Documents




The
following documents shall comprise the Contract, and shall together be referred
to as the “Contract”:




(i.)
            This
      Contract, and




(ii.)
            The
      enumerated Appendices hereto (all of which shall be incorporated herein by
      this reference)




Article
    31
            Effective
      Date




The
Effective Date of this Contract shall be the last to occur of the:




(i.)
            Date
      when it has been signed by both Parties
and




(ii.)
            Last
      date when any other conditions to effectiveness set forth inAttachment
      3have been met.




Notice to
Proceed shall be deemed to have been given by Purchaser to Seller upon Seller’s
receipt of the first payment listed on Attachment
3 .




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 34
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




Article
    32
            Entire
      Agreement




This
Contract represents the entire agreement between the Parties and no
modification, amendment, rescission, waiver or other change shall be binding on
either Party unless assented to in writing by the Party’s authorized
representative. This Contract supersedes all previous written or verbal
agreements regarding the Project, including any previous proposal,
Agreement-in-Principle or Memorandum of Understanding. Any oral or written
representation, warranty, course of dealing or trade usage not contained or
referenced herein shall not be binding on either Party. Each Party agrees that
it has not relied on, or been induced by, any representations of the other Party
not contained in this Contract.




Article
    33
            Miscellaneous
      Provisions




33.1
            Third-Party
      Beneficiaries




Except as
provided in the Article
24 , these
provisions are for the benefit of the Parties hereto and not for any other third
party.




33.2
            Export
      Control




All sales
hereunder of U.S.-origin goods and related technical data (including software)
shall at all times be subject to the export control laws and regulations of the
U.S. Government and any amendments thereof. The Purchaser agrees that it shall
not make any disposition by way of transshipment, export, diversion or
otherwise, except as said laws and regulations may expressly permit, of
U.S.-origin goods and related technical data (including software) supplied by
the Seller.




33.3
            Survival




The
Articles with the following titles shall survive termination of this Contract:
Taxes, Warranty, Patents, General Indemnity, Limitation of Liability,
Proprietary Information and Miscellaneous Provisions.




33.4
            Non-Waiver




Waiver by
either Party of any right under this Contract shall not be deemed a waiver by
such Party of any other right hereunder.




33.5
            Invalidity




The
invalidity in whole or in part of any part of this Contract shall not affect the
validity of the remainder of the Contract.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services






33.6
            No
      Nuclear Use




The
Equipment and Services sold hereunder are not intended for application (and
shall not be used) in connection with any nuclear installation or activity and
Purchaser warrants that it shall not use the Equipment and Services for such
purposes, or permit others to use or permit others to use the Equipment or
Services for any such purposes. If, in breach of the foregoing, any such use
occurs, Seller shall have no liability for any nuclear or other damage, injury
or contamination, and Purchaser shall indemnify Seller, its Affiliates and
suppliers of every type and tier against any such liability, whether arising as
a result of breach of contract, warranty, indemnity, tort (including
negligence), strict liability or otherwise.




33.7
            Changes
      and Improvements Beyond Scope




It is
understood that Seller has the right to make changes in product design and add
improvements to products or services at any time without incurring any
obligations to install the same on or in connection with the Equipment and
Services provided hereunder.




33.8
            Counterparts




This
Contract may be signed in any number of counterparts, each of which shall
constitute one and the same instrument.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 36
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 
 Contract For U.S. Based Sale of
Equipment and Services






IN WITNESS WHEREOF the
Parties have caused this document to be executed by their authorized
representatives as of the Effective Date.











Seller
              
              GE PACKAGED POWER,
      INC.
            Purchaser
              
              MMC ENERGY,
      INC.By:
            /S/Andrew
      Morton
              (Signature)
              
              Andrew
      Morton
              (Printed
      Name)
              
              Regional
      Sales Manager
              (Title)
              
              January
      25, 2008
              (Date)
            By:
            /s/
      Denis Gagnon
              (Signature)
              
              Denis
      Gagnon
              (Printed
      Name)
              
              Chief
      Financial Officer
              (Title)
              
              January
      25, 2008
              (Date)




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 37
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(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services


Attachment 1  Defined Terms






The
following defined terms will be used throughout this Contract:




a)
            “Affiliate”
      shall mean any entity that directly or indirectly controls, is controlled
      by or is under common control with a Party. For the purposes of this
      definition, "control" means the possession, directly or indirectly, of the
      power to direct or cause the direction of the management and policies of
      the controlled entity, whether through the ownership of voting securities
      or partnership or other ownership interests or by contract or
      otherwise.




b)
            “Ambient Site
      Conditions”
      shall have the meaning ascribed in Article17.2.




c)
            “Change in
      Laws”
      or shall mean a change to a Law, or a change in the interpretation or
      application of a Law by the cognizant executive or judicial authorities
      occurring after the date of Seller’s original proposal to Purchaser.




d)
            “Change
      Order”
      shall mean a written agreement to change the Equipment or Services which
      describes the change, identifies the writing as a Change Order, sets out
      adjustments, if any, in the Contract Price or Unit Price(s) and any other
      provision of this Contract which is affected, and is signed by both
      Parties.




e)
            “Codes and
      Standards”shall have the meaning ascribed in Article17.2.




f)
            “Contract
      Documents”
      shall have the meaning ascribed inArticle
      30.




g)
            “Contract
      Price”
      shall mean the total firm price as consideration for the Equipment and the
      Services, as set forth inArticle
      3and as may be adjusted from time to time in accordance with this
      Contract.




h)
            “Customer Collaboration
      System”
      shall have the meaning ascribed in Article17.10.




i)
            “Delivery”
      of the Equipment shall occur upon the event described inArticle
      8.




j)
            “Delivery
      Point”
      shall have the meaning ascribed in Article7.3.




k)
            “Effective
      Date”shall mean the date described inArticle
      31.




l)
            “Equipment”
      shall mean all of the equipment described in the “Equipment” portion ofAttachment
      2.




m)
            “Eligible
      Assignee”
      shall have the meaning ascribed in Article26.1.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 38
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




n)
            “Federal
      Laws”
      shall have the meaning ascribed in Article17.2.




o)
            “Governing Law of the
      Contract”
      shall have the meaning ascribed inArticle
      28.




p)
            “Law”
      or “Laws”
      shall mean those laws, regulations, decrees or similar orders with
      mandatory effect issued by the legislative, judicial or executive branch
      of the relevant government, in effect as of the date of Seller’s original
      proposal to Purchaser, to the extent such laws, regulations, decrees or
      similar orders are applicable to the scope of this
    Contract.




q)
            “Local
      Laws”
      shall be those local Laws that are (a) identified by Purchaser inAttachment
      2,
      (b) in effect as of the Notice to Proceed and (c) agreed to be
      incorporated into the manufacturing of the Unit(s) by Seller. If no Local
      Laws are set forth inAttachment
      2and agreed to by Seller, the manufacturing process shall not incorporate
      any consideration of Local Laws.




r)
            “Major
      Components”
      shall have the meaning set forth inArticle
      8.




s)
            “Minimum Performance
      Criteria”shall mean 95% of the Performance Guarantee for output and 105% of the
      Performance Guarantee for heat
rate.




t)
            “Minor
      Components”
      shall have the meaning set forth inArticle
      8.




u)
            “Must Meet
      Remedy”is
      a one-time rather than continuing obligation on the part of Seller to
      repair or replace the Equipment so that the Equipment meets a designated
      performance criteria (e.g., the Minimum Performance Criteria). A Must Meet
      Remedy is offered in lieu of other remedies such as liquidated damages or
      warranty.




v)
            “Notice of
      RTS”
      shall mean Seller’s notice of readiness to ship the Equipment, or relevant
      portion thereof, from the relevant factory or
  warehouse.




w)
            “Notice to
      Proceed”shall have the meaning ascribed inArticle
      31.




x)
            “On-Site
      Services”
      are described inAttachment
      12.




y)
            “Order Definition
      Meeting”shall
      mean a project kick-off meeting between the Seller's project execution
      team and the Purchaser's project
team.




z)
            “Options”
      shall have the meaning ascribed inArticle
      4.




aa)
            “Owner”
      shall mean that corporation, partnership, or individual which owns the
      facility in which the Equipment will be
  installed.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 39
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




bb)
            “Party”
      and "Parties”
      shall have the meanings ascribed in the foreword to this
      Contract.




cc)
            “Payment
      Schedule”
      shall mean the schedule of payments attached to this Contract asAttachment
      3.




dd)
            “Performance
      Guarantees”
      shall mean the guaranteed values identified in the Stamped Guarantee Sheet
      attached hereto asAttachment
      9.




ee)
            “Project”
      shall mean Purchaser’s power generation
project.




ff)
            “Purchaser”
      shall mean the entity so identified in the foreword to this
      Contract.




gg)
            “Scheduled RTS
      Date(s)”
      shall mean the date(s) by which Seller will provide Notice of RTS for the
      relevant Unit(s), as set forth inAttachment
      7hereto.




hh)
            “Scope of
      Supply”
      shall mean the Equipment plus the Services, as set forth inAttachment
      2.




ii)
            “Seller”
      shall mean the entity so identified in the foreword to this Contract.




jj)
            “Services”
      shall mean all of the those services described in the “Services” portion
      ofAttachment
      2.




kk)
            “Site”
      shall mean the location of the Project and place where the Equipment will
      be installed, as indicated in the Recitals to this
    Contract.




ll)
            “Site
      Requirements”
      shall have the meaning ascribed inArticle
      17.




mm)
            “Software”
      means a computer program or compilation of data that is fixed in any
      tangible medium of expression, or any storage medium from which the
      program may be perceived, reproduced or otherwise communicated, either
      directly or with the aid of a machine or device, and shall include without
      limitation any of Seller’s proprietary operating Software, provided for
      the ordinary operation of the Equipment, any optional Software to enhance
      the operation of the Equipment, as well as any upgrades or revisions of
      this material the Seller provides in fulfillment of a specific written
      commitment or otherwise.




nn)
            “State
      Laws”
      shall be those state Laws that are (a) identified by Purchaser inAttachment
      2,
      (b) in effect as of the Notice to Proceed and (c) agreed to be
      incorporated into the manufacturing of the Unit(s) by Seller. If no State
      Laws are set forth inAttachment
      2and agreed to by Seller, the manufacturing process shall not incorporate
      any consideration of State Laws.




MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 40
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005
 Contract For U.S. Based Sale of
Equipment and Services




oo)
            “Subcontractor(s)”
      shall mean any corporation, partnership, or individual having a contract
      with the Seller to supply labor or other services to be performed at the
      Site in connection with this
Contract.




pp)
            “Supplier(s)”
      shall mean any corporation, partnership, or individual having a contract
      with the Seller to supply material, equipment, labor, goods, or services
      to the Seller in connection with its obligations under this Contract,
      other than contracts labor or other services to be performed at the
      Site.




qq)
            “Termination
      Schedule”
      shall mean the schedule of termination charges attached to this Contract
      asAttachment
      5.




rr)
            “Training
      Services”
      are described inAttachment
      13.




ss)
            “Unit”
      shall mean a single gas turbine and its associated generator, together
      with those accessories associated only with that gas
    turbine.




tt)
            “Unit
      Price”
      shall have the meaning ascribed inArticle
      3.




uu)
            “Warranty
      Period”shall have the meaning ascribed inArticle
      13.






MMC Energy/ Chula Vista / Revision 6
/ 25 January 2008
 Page 41
 GE AEPU.S. Contract Form Rev. 1
(February 10, 2003) ; JEA Rev Dec. 5,
2005