**Exhibit
      10.26**


**CONFIDENTIAL
                TREATMENT****REQUESTED
                PURSUANT TO RULE 24b-2****Certain
                portions of this exhibit have been omitted pursuant to a request
                for
                confidential treatment under Rule 24b-2 of the Securities Exchange
                Act of
                1934. The omitted materials have been filed separately with the Securities
                and Exchange Commission.**


*CONFIDENTIAL
        FINAL EXECUTION DOCUMENT*










**ENERGY
      MANAGEMENT AGREEMENT**




**Dated
      November 1, 2008**




**by
      and between**




**MMC
      ENERGY NORTH AMERICA, LLC,**


**MMC
      MID-SUN LLC, MMC CHULA VISTA LLC,** **and** **MMC ESCONDIDO LLC**






**MACQUARIE
      COOK POWER INC.**






**and**




**MACQUARIE
      COOK ENERGY, LLC**
















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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
 
 
 *CONFIDENTIAL
          FINAL EXECUTION DOCUMENT*




**TABLE
      OF CONTENTS**




PageARTICLE
                  I.
              DEFINITIONSSection
                  1.1
              Rules
                  of Interpretation and Construction
              1Section
                  1.2
              Defined
                  Terms
              2ARTICLE
                  II.
              TERM;
                  ADDITIONAL UNDERTAKINGSSection
                  2.1
              Initial
                  Term
              8Section
                  2.2
              Renewal
                  Term
              9Section
                  2.3
              Termination
              9Section
                  2.4
              Additional
                  Undertakings
              9ARTICLE
                  III.
              RELATIONSHIP
                  OF THE PARTIESSection
                  3.1
              Appointment
                  of Energy Manager
              9Section
                  3.2
              Independent
                  Contractor
              9ARTICLE
                  IV.
              OBLIGATIONS
                OF ENERGY MANAGERSection
                  4.1
              Standards
                  of Performance
              10Section
                  4.2
              Limitations
                  on Energy Manager’s Authority
              10Section
                  4.3
              Maintenance
                  of Regulatory Approvals
              10Section
                  4.4
              Additional
                  Provisions
              10ARTICLE
                  V.
              SERVICESSection
                  5.1
              Power
                  Management Services
              11Section
                  5.2
              Gas
                  Management Services
              12Section
                  5.3
              MMC
                  Communications
              12Section
                  5.4
              No
                  Implied Duties
              12ARTICLE
                  VI.
              REPORTS,
                  RECORDS, MEETINGS, AUDITS AND AVAILABILITYSection
                  6.1
              Reports
              13Section
                  6.2
              Books
                  and Records
              13Section
                  6.3
              Meetings
              14Section
                  6.4
              Audits
              14Section
                  6.5
              Availability
                  of Parties
              14Section
                  6.6
              Notice
              14ARTICLE
                  VII.
              MMC
                  RIGHTS AND RESPONSIBILITIESSection
                  7.1
              Regulatory
                  Approvals
              14
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  Section
                  7.2
              Control
                  of Facility
              15Section
                  7.3
              Specification
                  of Gas Characteristics
              15Section
                  7.4
              Nominating,
                  Scheduling and Balancing Information
              15Section
                  7.5
              Communications
                  with CAISO
              15Section
                  7.6
              Transactions
              15Section
                  7.7
              Operation
                  and Maintenance
              16ARTICLE
                  VIII.
              FEES;
                  SETTLEMENTSection
                  8.1
              Monthly
                  Management Fee
              17Section
                  8.2
              Settlement
                  Fees
              17Section
                  8.3
              Payment
                  for Gas Transactions and Gas Settlements; Payment for Power Transactions
                  Absent Third Party Corresponding Transactions
              17Section
                  8.4
              Preliminary
                  Monthly Settlement Statement
              17Section
                  8.5
              Final
                  Monthly Settlement Statement
              17Section
                  8.6
              Payment
                  of Amounts Owed
              18Section
                  8.7
              Payment
                  Netting
              18Section
                  8.8
              Payment
                  of a Termination Settlement Statement
              18Section
                  8.9
              MMC
                  Energy North America LLC as Billing, Payment and Collection
                  Agent
              19ARTICLE
                  IX.
              FORCE
                  MAJEURESection
                  9.1
              Applicable
                  Definition and Procedures of force Majeure
              19Section
                  9.2
              Procedure
                  for Calling force Majeure
              20Section
                  9.3
              Performance
                  Suspended
              21Section
                  9.4
              End
                  of force Majeure Event
              21ARTICLE
                  X.
              EVENTS
                  OF DEFAULT; TERMINATIONSection
                  10.1
              Energy
                  Manager Events of Default
              21Section
                  10.2
              MMC
                  Events of Default
              22Section
                  10.3
              Rights
                  of Non-Defaulting Party
              22ARTICLE
                  XI.
              INDEMNIFICATIONSection
                  11.1
              Indemnification
                  by Energy Manager
              23Section
                  11.2
              Indemnification
                  By MMC
              23Section
                  11.3
              Cooperation
                  Regarding Claims
              23Section
                  11.4
              Defense
                  of Third-Party Claims
              23
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  ARTICLE
                  XII.
              LIMITATION
                  OF LIABILITYSection
                  12.1
              General
                  Limitations of Liability
              24Section
                  12.2
              Limitation
                  of MMC’s Liability
              25Section
                  12.3
              Limitation
                  of Energy Manager’s Liability
              25ARTICLE
                  XIII.
              CONFIDENTIALITYSection
                  13.1
              Non-Disclosure
              25Section
                  13.2
              Permitted
                  Disclosure
              26ARTICLE
                  XIV.
              REPRESENTATIONS
                  AND WARRANTIESSection
                  14.1
              Energy
                  Manager Representations and Warranties
              27Section
                  14.2
              MMC
                  Representations and Warranties
              27ARTICLE
                  XV.
              FINANCIAL
                  PERFORMANCE
              29ARTICLE
                  XVI.
              MISCELLANEOUSSection
                  16.1
              Severability
              29Section
                  16.2
              Entire
                  Agreement
              29Section
                  16.3
              Amendment
              29Section
                  16.4
              Assignment;
                  Obligation of Energy Manager to Cooperate
              29Section
                  16.5
              Notices
              29Section
                  16.6
              Additional
                  Documents and Actions
              31Section
                  16.7
              Waiver
              31Section
                  16.8
              Headings
              31Section
                  16.9
              No
                  Third Party Beneficiary
              31Section
                  16.10
              Counterparts
              32Section
                  16.11
              Governing
                  Law and Venue
              32Section
                  16.12
              Continued
                  Performance
              32Section
                  16.13
              MMC
                  Control
              32Section
                  16.14
              Survival
              32





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





Exhibit
                A
            ProtocolsExhibit
                B
            Fuel
                Supply Pricing ScheduleExhibit
                C
            Facility
                BudgetExhibit
                D
            ContactsExhibit
                E
            Form
                of GuarantyExhibit
                F
            Form
                of Letter of Credit







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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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ENERGY
      MANAGEMENT AGREEMENT




This
      Energy Management Agreement (this “ Agreement ”),
      effective as of November 1, 2008, is between Macquarie Cook Power Inc., a
      corporation organized and existing under the laws of the State of Delaware,
      Macquarie Cook Energy, LLC, a limited liability company organized and existing
      under the laws of the State of Delaware (collectively, “ Energy
      Manager ”),
      MMC
      Energy North America, LLC, MMC Mid-sun LLC, MMC Chula Vista, LLC and MMC
      Escondido, LLC, each a limited liability company organized and existing under
      the laws of the State of Delaware (collectively “ MMC ”).
      MMC
      and Energy Manager may be referred to each individually as a “ Party ”
and
      collectively as the “ Parties .”




PRELIMINARY
      STATEMENT




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




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




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




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




**ARTICLE
      I.**


**DEFINITIONS**




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




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




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




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




Section
      1.2 Defined
      Terms.




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




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




“ Corresponding
      Third Party Transaction ”
means
      a
      transaction or series of transactions between Energy Manager and a Third Party
      that correspond(s) to a Transaction or any part of a Transaction between Energy
      Manager and MMC. Corresponding Third Party Transactions should mirror the
      transactions between Energy Manager and MMC with similar terms and pricing,
      unless otherwise mutually agreed.




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




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




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




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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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“ Default
      Termination Date ”
means
      the date that this Agreement terminates, pursuant to a Termination (Default)
      Notice.




“ Delivery
      Point ”
means
      for the Chula Vista Facility, Otay Substation Radial Tie Line TL6929; and for
      the Escondido Facility, Radial Tie Line 6933; and for the Mid-Sun Facility,
      CAISO ZP 26.




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




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




“ Effective
      Date ”
means
      the day beginning at 00:00:01 EPT on November 1, 2008.




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




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




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




“ EPT ”
means
      Eastern Prevailing Time.




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




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




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




“ FERC ”
means
      the Federal Energy Regulatory Commission.




“ Final
      Monthly Settlement Statement ”
has
      the
      meaning assigned to such term in Section 8.5.




“ First
      Settlement Date ”
has
      the
      meaning assigned to such term in Section 8.6(a).




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




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




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




“ Gas ”
means
      natural gas.




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




“ Gas
      Payments ”
means,
      for each Gas Transaction, an amount calculated in accordance with the terms
      of
      the applicable NAESB for such Gas Transaction.




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




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




“ Gas
      Transportation Agreement ”
means
      any agreement with a Transporter for the transportation of Gas to such
      Facility.




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




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




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




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




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




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




“ Letter(s)
      of Credit ”
means
      one or more irrevocable, transferable standby letters of credit issued, advised
      or confirmed by a U.S. commercial bank or a foreign bank with a U.S. or U.K.
      branch with such bank having a credit rating of at least A- from S&P or A3
      from Moody’s, in a form acceptable to the Party in whose favor the letter of
      credit is issued. Costs of a Letter of Credit shall be borne by the applicant
      for such Letter of Credit.




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




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




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




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




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




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




“ MMC
      Guarantor ”
means
      MMC Energy, Inc.




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




“ MW ”
means
      megawatt.




“ MWh ”
means
      megawatt-hour.




“NAESB”
      means the North American Energy Standards Board Base Contract for Retail Sale
      and Purchase of Natural Gas.




“NERC” means
      the North American Electric Reliability Council.




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




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




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




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




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




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




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




“ Planned
      Outage ”
means
      an outage scheduled in advance.




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




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




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




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




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




“ PPT ”
means
      Pacific Prevailing Time.




“ Preliminary
      Monthly Settlement Statement ”
has
      the
      meaning assigned to such term in Section 8.4.




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




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




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




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




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




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




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




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




“ Second
      Settlement Date ”
has
      the
      meaning assigned to such term in Section 8.6(b).




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




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




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




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




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




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




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




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




“ Total
      Gross Margin ”
means,
      with respect to MMC for any day and without duplication, (a) the sum of each
      Facility’s (i) Power Revenues plus (ii) Gas
      Revenues, less (b) the
      sum of the Facility’s (i) Power Costs plus (ii) Gas
      Costs. The calculation of Total Gross Margin shall not include revenues
      associated with RA Capacity.




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




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




**ARTICLE
      II.**


**TERM;
      ADDITIONAL UNDERTAKINGS**




Section
      2.1 Initial Term .
      This
      Agreement shall commence upon the Effective Date and, unless terminated earlier
      in accordance with the terms hereof, its initial term shall expire one (1)
      year
      from the Effective Date (such period, the “ Initial
      Term ”); provided , however ,
      that
      Energy Manager’s authority to submit bids and offers to the CAISO on behalf of
      each Facility for the delivery of Ancillary Services on November 1, 2008 shall
      commence at 00:00:01 EPT on October 31, 2008.




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




Section
      2.3 Termination .
      This
      Agreement shall terminate in the event that: (i) either Party terminates this
      Agreement upon giving thirty (30) days prior written notice to the other Party
      (a “ Termination
      Notice ”),
      with
      such thirtieth (30 th )
      day
      constituting the Termination Date; or (ii) an Event of Default has occurred
      and
      is continuing and the Non-Defaulting Party exercises its right to terminate
      under Article X. Provided, however, that (i) notice of Termination shall be
      given such that it is coincident with the time period required for MMC to
      designate a replacement gas supplier, and (ii) certain provisions of this
      Agreement shall continue in effect after the Termination Date or Default
      Termination Date, in accordance with the provisions of Section 16.14.




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




**ARTICLE
      III.**


**RELATIONSHIP
      OF THE PARTIES**




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




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




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**ARTICLE
      IV.**


**OBLIGATIONS
      OF ENERGY MANAGER**




Section
      4.1 Standards of Performance. Energy Manager shall:




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




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




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




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




(a)  [***]




(b)  [***]




(c)  [***]




(d)  [***]




(e)  [***]




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




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




Section
      4.4 Additional Provisions.




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(a)  Notwithstanding
      anything in this Agreement to the contrary, Energy Manager does not represent
      or
      warrant that it will be able to enter into any particular Transaction
      contemplated herein or enter into any contract with any particular Third Party.
      MMC acknowledges that the markets for the purchase and sale of Power and Gas
      are
      often volatile and fluctuating, that the Contract Price for Power or Gas may
      be
      at a level that is either above or below the then-existing market prices for
      such Power or Gas and that Energy Manager has no obligation to purchase Power
      or
      Gas at the lowest existing market price or to sell Power or Gas at the highest
      existing market price.




(b)  [***]




**ARTICLE
      V.**


**SERVICES**




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




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




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




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




(d)  coordinate
      the dispatch of Power with any designated representative of a Facility,
      purchasers of Power and CAISO, and adjust such dispatch characteristics or
      constraints for such designated Facility, upon instruction from MMC, provided ,
      that
      dispatch information is provided by MMC or any representative of MMC on a timely
      basis;




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




(f)  upon
      the
      request of MMC, market available Power from any designated Facility to Third
      Parties by purchasing such Power from MMC and transacting with Third Parties
      via
      Corresponding Third Party Transactions);




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




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




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




(j)  receive
      and validate CAISO invoices and dispute CAISO charges as necessary;
      and




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




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




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




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




(c)  use
      commercially reasonable efforts to market and sell any excess Gas by purchasing
      such Gas from MMC and transacting with Third Parties via Corresponding Third
      Party Transactions; and




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




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




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




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**ARTICLE
      VI.**


**REPORTS,
      RECORDS, MEETINGS, AUDITS AND AVAILABILITY**




Section
      6.1 Reports .
      In
      addition to the information required to be provided pursuant to the Operating
      and Dispatch Procedures, Energy Manager shall provide the following information
      to MMC:




(a)  Daily
      profit and loss reports based on preliminary data related to the Services,
      Ancillary Services prices, other Power prices and quantity generated, hourly
      Gas
      price and usage and estimated CAISO fees for sales and purchases on behalf
      of
      each Facility. Such profit and loss estimates shall be of the prior day and
      shall be summarized and presented in a form and in such detail as may be
      reasonably requested by MMC. The Parties shall cooperate with each other in
      the
      establishment of appropriate links and data access between the systems of each
      Facility and those of Energy Manager to facilitate reporting and communication
      to the extent practicable.




(b)  To
      the
      extent that final data on Transactions are available from CAISO and/or Third
      Parties, monthly reports reconciling: (i) final Power Transactions (including
      for Ancillary Services) data (based on CAISO settlement statements and bilateral
      checkouts) with the daily preliminary recorded sales of Power data by MMC;
      and
      (ii) final Gas Transactions data (based on pipeline statements, transportation
      invoices and plant burn records) with the daily preliminary recorded Gas
      Purchases data by MMC.




(c)  prepare,
      submit, reconcile and settle CAISO invoices, provided ,
      that
      all necessary information for such reporting has been provided by MMC on a
      timely basis; and




(d)  Anything
      herein to the contrary notwithstanding, upon obtaining knowledge thereof, the
      Parties shall submit prompt written notice to one another of: (i) any litigation
      or material claims, disputes or actions, threatened or filed by any Person,
      concerning the Services or Transactions related to Gas or Power with respect
      to
      the Facility or to a Party’s ability to perform its obligations under this
      Agreement; and (ii) any other event or circumstance that could materially affect
      a Facility or a Party’s ability to perform its obligations under this Agreement
      or engage in Gas or Power Transactions.




(e)  Energy
      Manager shall endeavor to provide to MMC data that Energy Manager in good faith
      believes to be accurate, relating to the Services or the Transactions as may
      be
      necessary for MMC to submit reports prescribed by Applicable Law, including
      but
      not limited to FERC electric quarterly reports and any requirements of NERC,
      WECC or CAISO; submit Resource Adequacy monthly and annual supply plans to
      CAISO; provided that MMC
      shall retain the obligation to submit any such reports to the applicable
      regulatory authorities as may be prescribed by Applicable Law; and provided , further ,
      that
      Energy Manager can not and does not guarantee the accuracy of such data but
      shall use commercially reasonable efforts to provide accurate and complete
      data.




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




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Section
      6.3 Meetings .
      Energy
      Manager shall meet with MMC or other representative of MMC in person or by
      conference call at such reasonable times in any month as MMC may request and
      as
      provided for in the Protocols in Exhibit A.




Section
      6.4 Audits.




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




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




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




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




**ARTICLE
      VII.**


**MMC
      RIGHTS AND RESPONSIBILITIES**




Section
      7.1 Regulatory Approvals .
      MMC
      shall maintain all Regulatory Approvals as may be necessary to procure and
      sell
      Gas and to sell Power (including Ancillary Services) as contemplated herein,
      including obtaining and maintaining any required authorizations of CAISO, WECC,
      FERC authorization to enter into market-based transactions and compliance with
      all standards applicable to generation owners and/or operators as set forth
      by
      CAISO, WECC and/or NERC.




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Section
      7.2 Control of Facility .
      MMC
      shall have sole and absolute control of the Facility and shall provide Energy
      Manager with a written letter documenting such control, as required by FERC.
      MMC
      shall also have sole and absolute discretion to determine the amount of Capacity
      available for sale by Energy Manager for its respective Facility, which
      discretion it may exercise using Prudent Utility Practice based on operational
      considerations of such Facility. MMC shall be solely responsible for the sale
      of
      Resource Adequacy Capacity (“RA Capacity”), which has been committed to a third
      party, and Energy Manager shall have no obligations with respect to such
      commitment provided, however, that Energy Manager shall comply with the terms
      of
      this Agreement with respect to bidding the Facility in to the CAISO. MMC shall
      be responsible for communicating the operating and dispatch procedures to Energy
      Manager. [***]




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




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




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




Section
      7.6  Transactions .




(a)  Day-Ahead
      and Real-Time Power Transactions .
      MMC and
      Energy Manager agree that, with respect to Day-Ahead and Real-Time Power
      Transactions (including transactions with CAISO), Energy Manager and MMC shall
      execute transactions as follows:




(1)  [***]




(2)  Energy
      Manager shall identify opportunities for Real-Time transactions and Energy
      Manager shall transact with a Third Party (which may include, without
      limitation, the CAISO) via a Corresponding Third Party Transaction.




(3)  [***]




(b)  Intermediate
      and Long-term Third Party Transactions .
      Energy
      Manager may from time to time submit to MMC a proposed Power or Capacity
      Transaction between Energy Manager and a Third Party (other than a Transaction
      with CAISO), having a term longer than Day-Ahead. Such a proposal shall state
      the expected term of the Third Party Transaction and shall identify whether
      the
      proposed transaction could result in fees associated with CRRs or any other
      penalties and fees that may be assessable by NERC, FERC, WECC, or CAISO for
      the
      account of MMC. Upon receipt, MMC shall promptly review the terms of the
      proposed transaction and may request additional information or suggest changes
      to the terms thereof. If MMC approves a proposed transaction, it shall provide
      written notice of such approval to Energy Manager and execute an equivalent
      back-to-back Transaction with Energy Manager pursuant to the terms of the EEI
      Agreement and Energy Manager shall pursue execution of a Corresponding Third
      Party Transaction with the Third Party. Energy Manager shall not execute a
      Third
      Party Transaction having a term longer than Day-Ahead without MMC’s prior
      written consent unless (i) Energy Manager anticipates that the term of said
      Third Party Transaction will be equal to or less than [***].




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(c)  MMC
      Bilateral Transactions .
      In the
      event that MMC receives an offer for a bilateral Power or Capacity transaction
      from a Third Party, it shall provide Energy Manager with sufficient information
      regarding such offer, including any and all written terms and prices, and shall
      provide Energy Manager with at least [***] to respond with an offer which is
      at
      least equivalent to such Third Party offer. If Energy Manager does not respond
      or rejects such right of first refusal from MMC, MMC may directly and
      independently enter into such bilateral Power or Capacity transaction (an
“ MMC
      Bilateral Transaction ”),
      Energy Manager shall coordinate the dispatch of Power in connection with such
      bilateral transaction and may, at its discretion, elect to provide Gas
      Management Services in connection with such bilateral transaction and in the
      same manner and scope contemplated under this Agreement; provided , however ,
      that
      promptly upon execution of a bilateral transaction with a Third Party, MMC
      shall
      furnish Energy Manager with: copies of documentation implementing such bilateral
      transaction; and provided , further ,
      that
      (x) any Power Revenues and Gas Revenues shall be included in the calculation
      of
      Total Gross Margin for such month and (y) the Parties have reached agreement
      on
      the fee, if any, due to Energy Manager for the provision of such additional
      services.




(d)  Scheduling
      for Energy Manager Proprietary Transactions .
      Energy
      Manager shall not submit a day-ahead transmission schedule to the CAISO which
      designates a Facility as Energy Manager’s supply source for a transaction in
      which Energy Manager, for its own account, has agreed to sell power to a Third
      Party at a delivery point in the CAISO service territory (a “ Proprietary
      Transaction ”)
      unless
      Energy Manager has received approval from MMC for such designation of a
      Facility.




(e)  Absent
      the prior approval of Energy Manager, in no event shall MMC utilize Gas supplied
      by Energy Manager to MMC for any purpose other than to deliver Power under
      a
      Transaction, Third Party Transaction or a MMC Bilateral Transaction for which
      Energy Manager has agreed to provide Gas Management Services.




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




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**ARTICLE
      VIII.**


**FEE** **S** **;
      SETTLEMENT**




Section
      8.1 Monthly Management Fee .
      MMC
      shall pay Energy Manager a fee (the “ Monthly
      Management Fee ”)
      with
      respect to each Billing Period during the term of this Agreement. The Monthly
      Management Fee for MMC shall consist of: [***]




Section
      8.2 Settlement Fees . [***]




Section
      8.3 **** Payment
      for Gas Transactions and Gas Settlements; Payment for Power Transactions Absent
      Third Party Corresponding Transactions.




(a)  **Gas
      Payment and Settlements** .
      Invoicing and payment for purchases and sales of Natural Gas shall be in
      accordance with the terms of the applicable NAESB Agreements and shall not
      be
      incorporated in the Monthly Settlement Statements referenced in this Agreement.
      In the event that payments due to or from either Party for actualized Gas
      Transactions with Energy Manager and/or a Third Party (based on pipeline
      statements, transportation invoices and plant burn records) differ from the
      payment amounts referenced in any invoice issued pursuant to the NAESB, the
      applicable settlement terms of the NAESB shall apply.




(b)  **Power
      Payment and Settlements for Power Transactions Absent Third Party Corresponding
      Transactions** .
      Invoicing and payment for purchases and sales of Power executed between MMC
      and
      Energy Manager absent Corresponding Third Party Transactions shall be in
      accordance with the terms of the applicable EEI Agreements. [***] In the event
      that payments due to or from either Party differ from the payment amounts
      referenced in any invoice issued pursuant to the applicable EEI, the applicable
      settlement terms of the EEI shall apply.




Section
      8.4 Preliminary Monthly Settlement Statement .
      Not
      later than the [***], Energy Manager shall render to MMC a preliminary statement
      (the “ Preliminary
      Monthly Settlement Statement ”)
      showing the estimates of and setting forth in total for such Billing Period
      on
      an aggregate basis and, as applicable, (i) the Total Gross Margin (ii) the
      Monthly Management Fee, (iii) Energy Manager’s variable incentive fee referenced
      in Section 8.1 above (iv) estimated Power Revenues realized by MMC for sales
      to
      Energy Manager pursuant to the EEI Master Agreements (subject to adjustment
      based on CAISO settlement statements), and (v)any other costs incurred by MMC.




Section
      8.5 Final Monthly Settlement Statement . Not
      later
      than [***], Energy Manager shall render to MMC a final statement (the
“ Final
      Monthly Settlement Statement ”)
      showing the calculation of and setting forth in total for such Billing Period
      on
      an aggregate basis and, as applicable, (i) the Total Gross Margin (ii) the
      Monthly Management Fee, (iii) Energy Manager’s variable incentive fee referenced
      in Section 8.1 above (iv) final Power Revenues realized by MMC for sales to
      Energy Manager pursuant to the EEI Master Agreements (as adjusted, if
      applicable, based on CAISO settlement statements), and (v) any other costs
      incurred by MMC.




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Section
      8.6 Payment
      of Amounts Owed.




(a)  Each
      Party shall, on or before two (2) Business Days after receipt of payment or
      a
      payment demand from CAISO (subject to the terms and conditions of the CAISO
      tariff) (the “ First
      Settlement Date ”),
      render to the other Party by wire transfer payment in immediately available
      funds any net amounts due to the CAISO and/or the other Party including, without
      limitation, the positive difference due under the Preliminary Monthly Settlement
      Statement for the Billing Period in which the relevant Services were rendered.
      [***].




(b)  Each
      Party shall, on or before the fifth (5 th )
      Business Day following the issuance of the Final Monthly Settlement Statement
      (the “ Second
      Settlement Date ”),
      render to the other Party by wire transfer payment in immediately available
      funds any net amounts due to the CAISO and/or the other Party including, without
      limitation, the positive difference due under the Final Monthly Settlement
      Statement for the Billing Period in which the relevant Services were rendered.




(c)  If
      a
      Party fails to pay the entire amount shown to be due on any Monthly Settlement
      Statement when this amount becomes due (other than amounts disputed in good
      faith by such Party), it shall pay a late charge on the unpaid balance that
      shall accrue on each calendar day from the due date at the Interest Rate. Energy
      Manager shall not be under any obligation to raise disputes with the CAISO
      if
      such disputes are raised by MMC after the allowable CAISO dispute
      timeline.




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




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




Section
      8.8 Payment
      of a Termination Settlement Statement.




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




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




Section
      8.9 MMC Energy North America LLC as Billing, Payment and Collection
      Agent .
      For
      purposes of this Article VIII, MMC Energy North America, LLC shall act as
      billing, payment and collection agent for itself or for or on behalf of MMC
      Mid-Sun LLC, MMC Chula Vista, LLC, and MMC Escondido, LLC, and any and all
      amounts due to be paid to MMC from Energy Manager, and any and all amounts
      due
      to be paid to Energy Manager from MMC, pursuant to this Agreement, the NAESB
      Agreement and/or the EEI Master Agreement shall be paid to or from, as
      applicable, MMC Energy North America LLC; provided , however ,
      that
      MMC Energy North America, LLC, MMC Mid-Sun LLC, MMC Chula Vista, LLC, and MMC
      Escondido, LLC shall each be jointly and severally liable as principals for
      any
      and all payment obligations due to Energy Manager arising under this Agreement,
      all EEI Master Agreements, the Master Netting Agreement and the Collateral
      Annex. Notwithstanding the foregoing, MMC Energy North America, LLC’s actions as
      billing, payment and collection agent for MMC Mid-Sun LLC, MMC Chula Vista,
      LLC,
      and MMC Escondido, LLC, hereunder do not and shall not result in MMC Energy
      North America, LLC at any time taking title to any Power or Gas, or entering
      into any Transaction with Energy Manager under this Agreement, the NAESB
      Agreement or the EEI Master Agreement.




**ARTICLE
      IX.**


**FORCE
      MAJEURE**




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




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




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




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




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




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




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




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




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




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




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




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




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




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




**ARTICLE
      X.**


**EVENTS
      OF DEFAULT; TERMINATION**




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




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




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




(c)  Energy
      Manager’s Bankruptcy; or




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




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




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




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




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




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




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




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




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




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




Section
      10.3 Rights
      of Non-Defaulting Party.




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




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(b)  Notwithstanding
      the foregoing: (i) MMC has the right to terminate this Agreement, in whole
      or
      with respect any Facility, immediately in the case of the default under Section
      10.1(c) or 10.1(d), pursuant to a Termination (Default) Notice; and (ii) Energy
      Manager has the right to terminate this Agreement, in whole or with respect
      to
      any Facility, immediately in the case of default under Section 10.2(c) or
      10.1(d) pursuant to a Termination (Default) Notice. Such Termination (Default)
      Notice shall not delay the Default Termination Date.




**ARTICLE
      XI.**


**INDEMNIFICATION**




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




Section
      11.2 Indemnification By MMC .
      MMC
      shall indemnify, defend and hold harmless Energy Manager from and against any
      and all Losses to the extent directly caused by: (a) the Services provided
      by
      Energy Manager under this Agreement; (b) the breach of any representation or
      warranty made by MMC under this Agreement; (c) any breach by, or failure of,
      MMC
      to perform its obligations under this Agreement; (d) the gross negligence or
      willful misconduct of MMC, its subcontractors (other than Energy Manager and
      its
      subcontractors or their respective agents or employees) or their respective
      agents or employees; (d) any claims, fees, costs or penalties with respect
      to
      MMC’s third party sale of RA Capacity, and . (e) any claims, fees, costs or
      penalties incurred or assessed with respect to Facility ownership and operation,
      including as described in Section 7.2 herein


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




Section
      11.4 Defense
      of Third-Party Claims.




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




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




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




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




**ARTICLE
      XII.**


**LIMITATION
      OF LIABILITY**




Section
      12.1 General
      Limitations of Liability.




(a)  THE
      PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED
      IN
      THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY
      PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH
      EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY.
      THE
      OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL
      OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. THE OBLIGOR’S
      LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL
      DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES
      AT LAW OR IN EQUITY ARE WAIVED.




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




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




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




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




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




**ARTICLE
      XIII.**


**CONFIDENTIALITY**




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




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Section
      13.2 Permitted Disclosure.




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




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




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**ARTICLE
      XIV.**


**REPRESENTATIONS
      AND WARRANTIES**




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




(a)  Organization
      and Good Standing .
      MCP is
      a corporation duly formed, validly existing and in good standing under the
      laws
      of the State of Delaware and MCE is a limited liability company duly formed,
      validly existing and in good standing under the laws of the State of
      Delaware.




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




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




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




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




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




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




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




[***]
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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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(a)  Organization
      and Good Standing .
      MMC
      Energy North America, MMC Mid-Sun LLC, MMC Chula Vista, LLC, and MMC Escondido
      LLC are each a limited liability company duly formed, validly existing and
      in
      good standing under the laws of the State of Delaware.




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




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




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




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




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




(g)  Compliance. MMC will
      be solely responsible for complying with all standards, requirements and filings
      with respect to the ownership and operation of the Facilities including, without
      limitation, those set forth by FERC, NERC, WECC and CAISO, and all fees and
      penalties associated therewith. Energy Manager will use commercially reasonable
      efforts to provide MMC with data and information required for such filings
      provided MMC retains sole responsibility thereof, and Energy Manager makes
      no
      representation or warranty as to the accuracy or completeness of data and
      information provided.




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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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**ARTICLE
      XV.**


**FINANCIAL
      PERFORMANCE**




MMC
      Credit Support .
      By
      November 1, 2008, MMC shall cause to be provided and maintained for the benefit
      of Energy Manager, collateral (the “ MMC
      Credit Support ”),
      in
      the form of (1) a Letter of Credit in the amount of [***] in the form attached
      hereto as Exhibit F, or in any other form acceptable to Energy Manager and
      (2) a
      guaranty agreement provided by the MMC Guarantor in the amount of [***] in
      the
      form of Exhibit E attached hereto, or in any other form acceptable to Energy
      Manager.




**ARTICLE
      XVI.**


**MISCELLANEOUS**




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




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




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




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




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




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




Notices
                & Correspondence
            Scheduling
                & Operations
            PaymentsDenis
                Gagnon
              Chief
                Financial Officer
              MMC
                Energy, Inc.
              26
                Broadway, Suite 907
              New
                York, NY 10004
              Telephone:
                1-212-977-0900
              Facsimile:
                1-212-785-7640
              
              With
                a copy to:
              Dean
                M. Colucci, Esq.
              DLA
                Piper LLP (US)
              1251
                Avenue of the Americas
              New
                York, NY 10020
              Telephone:
                1-212-335-4794
              Facsimile:
                1-212-884-8494
            Alex
                Sokoletsky
              MMC
                Energy Inc.
              26
                Broadway, Suite 907
              New
                York, NY 10004
              Telephone:
                1-212-785-5279
              Facsimile:
                1-212-785-7640
            Simba
                Dutt-Mazumdar
              MMC
                Energy Inc.
              26
                Broadway, Suite 907
              New
                York, NY 10004
              Telephone:
                1-212-785-5279
              Facsimile:
                1-212-785-7640


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




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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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Notices
                & Correspondence
            Scheduling
                & Operations
            PaymentsAndre
                Templeman
              Senior
                Vice President
              Macquarie
                Cook Power Inc.
              500
                Dallas Street, Suite 3100
              Houston,
                Texas 77002
              Telephone:
                713-275-5858
              Facsimile:
                713-275-6115
              
              With
                copies to:
              Legal
                Department
              Macquarie
                Cook Power Inc.
              500
                Dallas Street, Suite 3100
              Houston,
                Texas 77002
              Telephone:
                713-275-6200
              Facsimile:
                713-275-6115
              
              Legal
                Department
              Macquarie
                Cook Energy, LLC
              10100
                Santa Monica Blvd., 18thFl
              Los
                Angeles, CA 90067
              Telephone:
                310-789-3900
              Facsimile:
                310-789-3944
            **Power
                Day-Ahead Desk:**
              Telephone:
                713-275-6140
              Facsimile:
                713-275-6115
              
              **Power
                Real-Time Desk:**
              Telephone:
                713-275-6120
              Facsimile:
                713-275-6115
              
              **Power
                Mid-Office Confirmations:**
              Telephone:
                713-275-6450
              Facsimile:
                713-275-6415
              
              **Gas:**
              Trade
                Operations - West Desk
              Macquarie
                Cook Energy, LLC
              10100
                Santa Monica Blvd., 18thFl
              Los
                Angeles, CA 90067
              Telephone:
                310-789-3900
              Facsimile:
                310-789-3944
            **Power:**
              
              [***]
              
              
              **Gas:**
              
              [***]





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




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




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




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




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




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




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




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




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









[THE
      REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]




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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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IN
      WITNESS WHEREOF, the following Parties have executed this Agreement as of the
      1st of November, 2008.







**MMC
                ENERGY NORTH AMERICA, LLC**By:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer**MMC
                CHULA VISTA, LLC**By:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer**MMC
                ESCONDIDO, LLC**By:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer**MMC
                MID-SUN LLC**By:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer




[***]
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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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**MACQUARIE
                COOK POWER INC.**By:
            /s/
              Stuart ZismanName:
            Stuart
              ZismanTitle:
            DD**MACQUARIE
                COOK ENERGY, LLC**By:
            /s/
              Joe ForbesName:
            Joe ForbesTitle:
            Senior
              Lawyer














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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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**Exhibit
      A**


**Protocols**




[***]























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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
 Exhibit
          A
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**Exhibit
      B**


**Fuel
      Supply Pricing Schedule**





[***]















[***]
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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
 Exhibit
          B
 *CONFIDENTIAL
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**Exhibit
      C**


**Facility
      Budget**








[***]

















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


**Contacts**





**MMC
                Energy North America, LLC. - Contact List****Contact**
            **Email**
            **Phone**
            **Mobile**





[***]










**Macquarie
                Cook Power Inc. - Contact List****Contact**
            **Email**
            **Phone**
            **Mobile**








[***]










[***]
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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
 Exhibit
          D
 *CONFIDENTIAL
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**Exhibit
      E**


**Form
      of Guaranty**




**GUARANTY**







**GUARANTY** ,
      dated
      as of November 1, 2008, by **MMC
      ENERGY, INC.** ,
      a
      Delaware corporation (the “ Guarantor ”),
      in
      favor of Macquarie Cook Power Inc., a corporation organized under the laws
      of
      the State of Delaware and Macquarie Cook Energy, LLC, a limited liability
      company organized under the laws of the State of Delaware (collectively, the
      “ Beneficiary ”).






Guaranty.






In
      connection with the EEI Master Power Purchase and Sale Agreements, dated as
      of
      November 1, 2008 (the “ EEI
      Master Agreements ”),
      the
      North American Energy Standards Board Base Contracts for Retail Sale and
      Purchase of Natural Gas dated as of November 1, 2008 (the “ NAESB
      Master Agreement ”)
      (collectively, the “ Master
      Agreements ”)
      and
      the Energy Management Agreement dated as of November 1, 2008 (the “ Energy
      Management Agreement ”)
      (collectively, the “ Agreements ”),
      between Beneficiary and MMC Energy North America, LLC, MMC Mid-Sin LLC, MMC
      Chula Vista, LLC and MMC Escondido, LLC, each a limited liability company
      organized and existing under the laws of the State of Delaware, (collectively
      the “ Counterpart y”),
      subject to the terms and conditions set forth herein and effective from the
      date
      of the Agreement, the Guarantor irrevocably and unconditionally guarantees
      to
      the Beneficiary, its successors and permitted assigns, the prompt payment on
      demand, of any amount due and payable to the Beneficiary under the Agreements,
      subject to any applicable grace period thereunder (the “ Obligations ”).




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




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




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




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




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




Representations
      and Warranties.




The
      Guarantor is a corporation duly existing under the laws of the State of
      Delaware.




[***]
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          Securities and Exchange Commission pursuant to a confidential treatment
          request.
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The
      execution, delivery and performance of this Guaranty have been duly authorized
      by all necessary corporate action and do not conflict with any provision of
      law,
      any regulation, or the Guarantor’s charter or by-laws, or any agreement binding
      upon it.




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




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




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




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









GUARANTOR




26
      Broadway, Suite 960




New
      York,
      New York 10004






Attention:
      Denis Gagnon




With
      a
      copy to:




Dean
      M.
      Colucci




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




1251
      Avenue of the Americas




New
      York,
      NY 10020









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




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






GUARANTORBy:
            /s/Denis
              GagnonName:
              Denis GagnonTitle:
              Chief Financial Officer










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