10-Q

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2010

OR

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission File Number: 001-16107

Mirant Corporation

(Exact Name of Registrant as Specified in Its Charter)

Delaware	20-3538156
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification No.)
1155 Perimeter Center West, Suite 100,	30338
Atlanta, Georgia	(Zip Code)
(Address of Principal Executive Offices)

(678) 579-5000

(Registrant’s Telephone Number, Including Area Code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. þ Yes ¨ No

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

þ Yes ¨ No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer	þ	Accelerated filer	¨
Non-accelerated filer	¨	Smaller reporting company	¨

(Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨ Yes þ No

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. þ Yes ¨ No

As of July 30, 2010, there were 145,539,286 shares of the registrant’s Common Stock, $0.01 par value per share, outstanding.

TABLE OF CONTENTS

		Page
	Glossary of Certain Defined Terms	i-iii
	Cautionary Statement Regarding Forward-Looking Information	3
	PART I—FINANCIAL INFORMATION
Item 1.	Interim Financial Statements (Unaudited):
	Condensed Consolidated Statements of Operations	6
	Condensed Consolidated Balance Sheets	7
	Condensed Consolidated Statements of Stockholders’ Equity and Comprehensive Income	8
	Condensed Consolidated Statements of Cash Flows	9
	Notes to Condensed Consolidated Financial Statements (Unaudited)	10
Item 2.	Management’s Discussion and Analysis of Results of Operations and Financial Condition	49
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	90
Item 4.	Controls and Procedures	94
	PART II—OTHER INFORMATION
Item 1.	Legal Proceedings	95
Item 1A.	Risk Factors	95
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	111
Item 6.	Exhibits	112

2

Glossary of Certain Defined Terms

Ancillary Services—Services that ensure reliability and support the transmission of electricity from generation sites to customer loads. Such services include regulation service, reserves and voltage support.

APSA—Asset Purchase and Sale Agreement dated June 7, 2000, between the Company and Pepco.

Bankruptcy Code—United States Bankruptcy Code.

Bankruptcy Court—United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division.

Baseload Generating Units—Units that satisfy minimum baseload requirements of the system and produce electricity at an essentially constant rate and run continuously.

CAIR—Clean Air Interstate Rule.

CAISO—California Independent System Operator.

Cal PX—California Power Exchange.

Clean Air Act—Federal Clean Air Act.

Clean Water Act—Federal Water Pollution Control Act.

CO2—Carbon dioxide.

Company—Old Mirant prior to January 3, 2006, and New Mirant on or after January 3, 2006.

CPUC—California Public Utilities Commission.

DC Circuit—The United States Court of Appeals for the District of Columbia Circuit.

DWR—California Department of Water Resources.

EBITDA—Earnings before interest, taxes, depreciation and amortization.

EOB—California Electricity Oversight Board.

EPA—United States Environmental Protection Agency.

EPC—Engineering, procurement and construction.

EPS—Earnings (loss) per share.

Exchange Act—Securities Exchange Act of 1934.

Exchange Ratio—Right of Mirant Corporation stockholders to receive 2.835 shares of common stock of RRI Energy, Inc.

FASB—Financial Accounting Standards Board.

FERC—Federal Energy Regulatory Commission.

GAAP—United States generally accepted accounting principles.

GenOn Energy—GenOn Energy, Inc.

Gross Margin—Operating revenue less cost of fuel, electricity and other products, excluding depreciation and amortization.

Hart-Scott-Rodino Act—Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

i

Hudson Valley Gas—Hudson Valley Gas Corporation.

IBEW—International Brotherhood of Electrical Workers.

Intermediate Generating Units—Units that meet system requirements that are greater than baseload and less than peaking.

ISO—Independent System Operator.

LIBOR—London InterBank Offered Rate.

MC Asset Recovery—MC Asset Recovery, LLC.

MDE—Maryland Department of the Environment.

Merger Agreement—The agreement and plan of merger into which Mirant Corporation entered with RRI Energy, Inc. and RRI Energy Holdings, Inc. on April 11, 2010.

Mirant—Old Mirant prior to January 3, 2006, and New Mirant on or after January 3, 2006.

Mirant Americas Energy Marketing—Mirant Americas Energy Marketing, LP.

Mirant Americas Generation—Mirant Americas Generation, LLC.

Mirant Bowline—Mirant Bowline, LLC.

Mirant California—Mirant California, LLC.

Mirant Chalk Point—Mirant Chalk Point, LLC.

Mirant Delta—Mirant Delta, LLC.

Mirant Energy Trading—Mirant Energy Trading, LLC.

Mirant Lovett—Mirant Lovett, LLC, owner of the former Lovett generating facility, which was shut down on April 19, 2008, and has been demolished.

Mirant Marsh Landing—Mirant Marsh Landing, LLC.

Mirant MD Ash Management—Mirant MD Ash Management, LLC.

Mirant Mid-Atlantic—Mirant Mid-Atlantic, LLC and, except where the context indicates otherwise, its subsidiaries.

Mirant New York—Mirant New York, LLC.

Mirant North America—Mirant North America, LLC.

Mirant NY-Gen—Mirant NY-Gen, LLC sold by the Company in the second quarter of 2007.

Mirant Potomac River—Mirant Potomac River, LLC.

Mirant Potrero—Mirant Potrero, LLC.

Mirant Services—Mirant Services, LLC.

MW—Megawatt.

MWh—Megawatt hour.

NAAQS—National ambient air quality standard.

Net Capacity Factor—Actual production of electricity as a percentage of net dependable capacity to produce electricity.

New Mirant—Mirant Corporation on or after January 3, 2006.

ii

NOL—Net operating loss.

NOV—Notice of violation.

NOx—Nitrogen oxides.

NSR—New source review.

NYISO—New York Independent System Operator.

NYMEX—New York Mercantile Exchange.

NYSE—New York Stock Exchange.

Old Mirant—MC 2005, LLC, known as Mirant Corporation prior to January 3, 2006.

OTC—Over-the-Counter.

Ozone Season—The period between May 1 and September 30 of each year.

Peaking Generating Units—Units used to meet demand requirements during the periods of greatest or peak load on the system.

Pepco—Potomac Electric Power Company.

PG&E—Pacific Gas & Electric Company.

PJM—PJM Interconnection, LLC.

Plan—The plan of reorganization that was approved in conjunction with the Company’s emergence from bankruptcy protection on January 3, 2006.

PPA—Power purchase agreement.

Reserve Margin—Excess capacity over peak demand.

RGGI—Regional Greenhouse Gas Initiative.

RMR—Reliability-must-run.

RRI Energy—RRI Energy, Inc.

RTO—Regional Transmission Organization.

Scrubbers—Flue gas desulfurization emissions controls.

Securities Act—Securities Act of 1933, as amended.

Series A Warrants—Warrants issued on January 3, 2006, with an exercise price of $21.87 and expiration date of January 3, 2011.

Series B Warrants—Warrants issued on January 3, 2006, with an exercise price of $20.54 and expiration date of January 3, 2011.

SO2—Sulfur dioxide.

Spark Spread—The difference between the price received for electricity generated compared to the market price of the natural gas required to produce the electricity.

VaR—Value at risk.

VIE—Variable interest entity.

Virginia DEQ—Virginia Department of Environmental Quality.

Wrightsville—Wrightsville, Arkansas power generating facility sold by the Company in the third quarter of 2005.

iii

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION

In addition to historical information, the information presented in this Form 10-Q includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These statements involve known and unknown risks and uncertainties and relate to future events, our future financial performance or our projected business results. In some cases, one can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “intend,” “seek,” “plan,” “think,” “anticipate,” “estimate,” “predict,” “target,” “potential” or “continue” or the negative of these terms or other comparable terminology.

Forward-looking statements are only predictions. Actual events or results may differ materially from any forward-looking statement as a result of various factors, which include:

• legislative and regulatory initiatives regarding deregulation, regulation or restructuring of the industry of generating, transmitting and distributing electricity (the “electricity industry”); changes in state, federal and other regulations affecting the electricity industry (including rate and other regulations); changes in, or changes in the application of, environmental and other laws and regulations to which we and our subsidiaries and affiliates are or could become subject;

• failure of our plants to perform as expected, including outages for unscheduled maintenance or repair;

• environmental regulations (including the cumulative effect of many such regulations) that restrict our ability or render it uneconomic to operate our business, including regulations related to the emission of CO2 and other greenhouse gases;

• increased regulation that limits our access to adequate water supplies and landfill options needed to support power generation or that increases the costs of cooling water and handling, transporting and disposing off-site of ash and other byproducts;

• changes in market conditions, including developments in the supply, demand, volume and pricing of electricity and other commodities in the energy markets, including efforts to reduce demand for electricity and to encourage the development of renewable sources of electricity, and the extent and timing of the entry of additional competition in our markets;

• continued poor economic and financial market conditions, including impacts on financial institutions and other current and potential counterparties, and negative impacts on liquidity in the power and fuel markets in which we hedge and transact;

• increased credit standards, margin requirements, market volatility or other market conditions that could increase our obligations to post collateral beyond amounts that are expected, including additional collateral costs associated with OTC hedging activities as a result of new or proposed rules and regulations governing derivative financial instruments;

• our inability to access effectively the OTC and exchange-based commodity markets or changes in commodity market conditions and liquidity, including as a result of new or proposed rules and regulations governing derivative financial instruments, which may affect our ability to engage in asset management, proprietary trading and fuel oil management activities as expected, or result in material gains or losses from open positions;

• deterioration in the financial condition of our counterparties and the failure of such parties to pay amounts owed to us or to perform obligations or services due to us beyond collateral posted;

3

• hazards customary to the power generation industry and the possibility that we may not have adequate insurance to cover losses resulting from such hazards or the inability of our insurers to provide agreed upon coverage;

• the expected timing and likelihood of completion of the proposed merger with RRI Energy, including the timing, receipt and terms and conditions of required stockholder, governmental and regulatory approvals that may reduce anticipated benefits or cause the parties to abandon the merger; the ability of the parties to arrange debt financing in an amount sufficient to fund the refinancing contemplated in, and on terms consistent with, the Merger Agreement; the diversion of management’s time and attention from our ongoing business during the time we are seeking to complete the merger; the ability to maintain relationships with employees, customers and suppliers; the ability to integrate successfully the businesses and realize cost savings and any other synergies; and the risk that credit ratings of the combined company or its subsidiaries may be different from what the companies expect;

• price mitigation strategies employed by ISOs or RTOs that reduce our revenue and may result in a failure to compensate our generating units adequately for all of their costs;

• changes in the rules used to calculate capacity, energy and ancillary services payments;

• legal and political challenges to the rules used to calculate capacity, energy and ancillary services payments;

• volatility in our gross margin as a result of our accounting for derivative financial instruments used in our asset management, proprietary trading and fuel oil management activities and volatility in our cash flow from operations resulting from working capital requirements, including collateral, to support our asset management, proprietary trading and fuel oil management activities;

• our ability to enter into intermediate and long-term contracts to sell power or to hedge our expected future generation of power, and to obtain adequate supply and delivery of fuel for our generating facilities, at our required specifications and on terms and prices acceptable to us;

• our failure to utilize new or advancements in power generation technologies;

• the inability of our operating subsidiaries to generate sufficient cash flow to support our operations;

• the potential limitation or loss of our income tax NOLs notwithstanding a continuation of our stockholder rights plan;

• our ability to borrow additional funds and access capital markets;

• strikes, union activity or labor unrest;

• our ability to obtain or develop capable leaders and our ability to retain or replace the services of key employees;

• weather and other natural phenomena, including hurricanes and earthquakes;

• the cost and availability of emissions allowances;

• curtailment of operations and reduced prices for electricity resulting from transmission constraints;

• our ability to execute our business plan in California, including entering into new tolling arrangements for our existing generating facilities;

4

• our ability to execute our development plan in respect of our Marsh Landing generating facility, including obtaining the permits necessary for construction and operation of the generating facility, securing the necessary project financing for construction of the generating facility and completing the construction of the generating facility by mid-2013;

• our relative lack of geographic diversification of revenue sources resulting in concentrated exposure to the Mid-Atlantic market;

• the ability of lenders under Mirant North America’s revolving credit facility to perform their obligations;

• war, terrorist activities, cyberterrorism and inadequate cybersecurity, or the occurrence of a catastrophic loss;

• our failure to provide a safe working environment for our employees and visitors thereby increasing our exposure to additional liability, loss of productive time, other costs and a damaged reputation;

• our consolidated indebtedness and the possibility that we or our subsidiaries may incur additional indebtedness in the future;

• restrictions on the ability of our subsidiaries to pay dividends, make distributions or otherwise transfer funds to us, including restrictions on Mirant North America contained in its financing agreements and restrictions on Mirant Mid-Atlantic contained in its leveraged lease documents, which may affect our ability to access the cash flows of those subsidiaries to make debt service and other payments;

• our failure to comply with or monitor provisions of our loan agreements and debt may lead to a breach and, if not remedied, result in an event of default thereunder, which would limit access to needed capital and damage our reputation and relationships with financial institutions; and

• the disposition of the pending litigation described in this Form 10-Q.

Many of these risks, uncertainties and assumptions are beyond our ability to control or predict. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by cautionary statements contained throughout this report. Because of these risks, uncertainties and assumptions, you should not place undue reliance on these forward-looking statements. Furthermore, forward-looking statements speak only as of the date they are made.

Factors that Could Affect Future Performance

We undertake no obligation to update publicly or revise any forward-looking statements to reflect events or circumstances that may arise after the date of this report.

In addition to the discussion of certain risks in Management’s Discussion and Analysis of Results of Operations and Financial Condition and the accompanying Notes to Mirant’s unaudited condensed consolidated financial statements, other factors that could affect our future performance (business, results of operations or financial condition and cash flows) are set forth in our 2009 Annual Report on Form 10-K and elsewhere in this Form 10-Q and are incorporated herein by reference.

Certain Terms

As used in this report, unless the context requires otherwise, “we,” “us,” “our,” the “Company” and “Mirant” refer to Old Mirant and its subsidiaries prior to January 3, 2006 and to New Mirant and its subsidiaries on or after January 3, 2006.

5

MIRANT CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)

	Three Months Ended June 30,						Six Months Ended June 30,
	2010			2009			2010			2009
	(in millions, except per share data)
Operating revenues (including unrealized gains (losses) of $(231) million, $(44) million, $132 million and $211 million, respectively)	$	244		$	496		$	1,124		$	1,374
Cost of fuel, electricity and other products (including unrealized losses (gains) of $109 million, $(30) million, $120 million and $(29) million, respectively)		272			150			479			421
Gross Margin (excluding depreciation and amortization)		(28	)		346			645			953
Operating Expenses:
Operations and maintenance		132			114			298			276
Depreciation and amortization		53			36			104			72
Gain on sales of assets, net		(1	)		(2	)		(3	)		(17	)
Total operating expenses, net		184			148			399			331
Operating Income (Loss)		(212	)		198			246			622
Other Expense (Income), net:
Interest expense		49			34			99			72
Interest income		—			(1	)		—			(3	)
Equity in income of affiliates		—			1			—			1
Other, net		1			1			2			1
Total other expense, net		50			35			101			71
Income (Loss) Before Income Taxes		(262	)		163			145			551
Provision for income taxes		1			—			1			8
Net Income (Loss)	$	(263	)	$	163		$	144		$	543
Basic and Diluted EPS:
Basic EPS	$	(1.81	)	$	1.12		$	0.99		$	3.74
Diluted EPS	$	(1.81	)	$	1.12		$	0.99		$	3.74
Weighted average shares outstanding		145			145			145			145
Effect of dilutive securities		—			—			1			—
Weighted average shares outstanding assuming dilution		145			145			146			145

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

6

MIRANT CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)

	At June 30, 2010			At December 31, 2009
	(in millions)
ASSETS
Current Assets:
Cash and cash equivalents	$	1,849		$	1,953
Funds on deposit		197			181
Receivables, net		258			412
Derivative contract assets		1,687			1,416
Inventories		310			241
Prepaid expenses		124			144
Total current assets		4,425			4,347
Property, Plant and Equipment, net		3,643			3,633
Noncurrent Assets:
Intangible assets, net		166			171
Derivative contract assets		751			599
Deferred income taxes		398			376
Prepaid rent		358			304
Other		105			98
Total noncurrent assets		1,778			1,548
Total Assets	$	9,846		$	9,528
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current Liabilities:
Current portion of long-term debt	$	563		$	75
Accounts payable and accrued liabilities		546			718
Derivative contract liabilities		1,440			1,150
Deferred income taxes		398			376
Other		5			4
Total current liabilities		2,952			2,323
Noncurrent Liabilities:
Long-term debt, net of current portion		1,999			2,556
Derivative contract liabilities		284			163
Pension and postretirement obligations		70			113
Other		69			58
Total noncurrent liabilities		2,422			2,890
Commitments and Contingencies
Stockholders’ Equity:
Preferred stock, par value $.01 per share, authorized 100,000,000 shares, no shares issued at June 30, 2010 and December 31, 2009		—			—
Common stock, par value $.01 per share, authorized 1.5 billion shares, issued 312,000,533 shares and 311,230,486 shares at June 30, 2010 and December 31, 2009, respectively, and outstanding 145,537,553 shares and 144,946,815 shares at June 30, 2010 and December 31, 2009, respectively		3			3
Treasury stock, at cost, 166,462,980 shares and 166,283,671 shares at June 30, 2010 and December 31, 2009, respectively		(5,336	)		(5,334	)
Additional paid-in capital		11,437			11,427
Accumulated deficit		(1,584	)		(1,728	)
Accumulated other comprehensive loss		(48	)		(53	)
Total stockholders’ equity		4,472			4,315
Total Liabilities and Stockholders’ Equity	$	9,846		$	9,528

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

7

MIRANT CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

AND COMPREHENSIVE INCOME (UNAUDITED)

	Common Stock		Treasury Stock			Additional Paid-In Capital		Accumulated Deficit			Accumulated Other Comprehensive Loss			Total Stockholders’ Equity
	(in millions)
Balance, December 31, 2009	$	3	$	(5,334	)	$	11,427	$	(1,728	)	$	(53	)	$	4,315
Share repurchases		—		(2	)		—		—			—			(2	)
Stock-based compensation		—		—			9		—			—			9
Exercises of stock options		—		—			1		—			—			1
Total stockholders’ equity before other comprehensive income															4,323
Net income		—		—			—		144			—			144
Pension and other postretirement benefits		—		—			—		—			5			5
Total other comprehensive income															149
Balance, June 30, 2010	$	3	$	(5,336	)	$	11,437	$	(1,584	)	$	(48	)	$	4,472

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

8

MIRANT CORPORATION AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)

	Six Months Ended June  30,
	2010			2009
	(in millions)
Cash Flows from Operating Activities:
Net income	$	144		$	543
Adjustments to reconcile net income and changes in other operating assets and liabilities to net cash provided by operating activities:
Depreciation and amortization		106			75
Gain on sales of assets, net		(3	)		(17	)
Unrealized gains on derivative contracts, net		(12	)		(240	)
Stock-based compensation expense		8			16
Postretirement benefits curtailment gain		(37	)		—
Lower of cost or market inventory adjustments		20			22
Equity in income of affiliates		—			1
Other, net		(3	)		—
Funds on deposit		6			30
Changes in other operating assets and liabilities		(79	)		(46	)
Total adjustments		6			(159	)
Net cash provided by operating activities of continuing operations		150			384
Net cash provided by operating activities of discontinued operations		4			4
Net cash provided by operating activities		154			388
Cash Flows from Investing Activities:
Capital expenditures		(160	)		(378	)
Proceeds from the sales of assets		3			17
Capital contributions		—			(5	)
Restricted deposit payments and other		(31	)		2
Net cash used in investing activities		(188	)		(364	)
Cash Flows from Financing Activities:
Repayments of long-term debt		(69	)		(41	)
Share repurchases		(2	)		(1	)
Proceeds from exercises of stock options		1			—
Net cash used in financing activities		(70	)		(42	)
Net Decrease in Cash and Cash Equivalents		(104	)		(18	)
Cash and Cash Equivalents, beginning of period		1,953			1,831
Cash and Cash Equivalents, end of period	$	1,849		$	1,813
Supplemental Cash Flow Disclosures:
Cash paid for interest, net of amounts capitalized	$	92		$	63
Cash paid for income taxes	$	2		$	3
Cash paid for claims and professional fees from bankruptcy	$	—		$	1

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

9

MIRANT CORPORATION AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

A. Description of Business and Accounting and Reporting Policies

Mirant is a competitive energy company that produces and sells electricity in the United States. The Company owns or leases 10,076 MW of net electric generating capacity in the Mid-Atlantic and Northeast regions and in California. Mirant also operates an integrated asset management and energy marketing organization based in Atlanta, Georgia.

Proposed Merger with RRI Energy

On April 11, 2010, Mirant entered into the Merger Agreement with RRI Energy and RRI Energy Holdings, Inc. (“Merger Sub”), a direct and wholly-owned subsidiary of RRI Energy. Upon the terms and subject to the conditions set forth in the Merger Agreement, which has been unanimously approved by each of the boards of directors of Mirant and RRI Energy, Merger Sub will merge with and into Mirant, with Mirant continuing as the surviving corporation and a wholly-owned subsidiary of RRI Energy. The merger is intended to qualify as a tax-free reorganization under the Internal Revenue Code of 1986, as amended, so that none of RRI Energy, Merger Sub, Mirant or any of the Mirant stockholders generally will recognize any gain or loss in the transaction, except that Mirant stockholders will recognize gain with respect to cash received in lieu of fractional shares of RRI Energy common stock. Pursuant to the Merger Agreement, upon the closing of the merger, each issued and outstanding share of Mirant common stock, including grants of restricted common stock, will automatically be converted into shares of common stock of RRI Energy based on the Exchange Ratio. Additionally, upon the closing of the merger, RRI Energy will be renamed GenOn Energy. Mirant stock options and other equity awards will generally convert upon completion of the merger into stock options and equity awards with respect to RRI Energy common stock, after giving effect to the Exchange Ratio. As a result of the merger, Mirant stockholders will own approximately 54% of the equity of the combined company and RRI Energy stockholders will own approximately 46%.

Completion of the merger is subject to various customary conditions, including, among others, (i) approval by RRI Energy stockholders of the issuance of RRI Energy common stock in the merger, (ii) adoption of the Merger Agreement by Mirant stockholders, (iii) effectiveness of the registration statement for the RRI Energy common stock to be issued in the merger, (iv) approval of the listing on the NYSE of the RRI Energy common stock to be issued in the merger, (v) expiration or termination of the applicable Hart-Scott-Rodino Act waiting period, (vi) receipt of all required regulatory approvals and (vii) consummation by GenOn Energy of debt financings in an amount sufficient to fund the refinancing transactions contemplated by, and on terms consistent with, the Merger Agreement.

Among the refinancing transactions noted above, the completion of the merger is conditioned on GenOn Energy consummating certain debt financing transactions, including securing a new revolving credit facility. The new GenOn Energy debt financing and revolving credit facility will be used, in part, to redeem the Mirant North America senior notes and to repay and terminate the Mirant North America term loan and revolving credit facility. See Note D for additional information on Mirant North America’s debt.

Mirant and RRI Energy are in the process of arranging mutually acceptable debt financing as contemplated under the Merger Agreement. Mirant, together with RRI Energy, have entered into agreements pursuant to which financial institutions have committed to provide a $750 million to $1.0 billion five-year revolving credit facility, subject to customary conditions to closing, including:

• the consummation of the merger;

10

• the receipt of at least $1.9 billion in gross cash proceeds from the issuance of senior unsecured notes and term loan borrowings; and

• the closing of the credit facility on or before December 31, 2010.

The revolving credit facility and term loan facility, and the subsidiary guarantees thereof, will be senior secured obligations of RRI Energy (proposed to be renamed GenOn Energy in connection with the merger) and certain of its subsidiaries; provided, however, that Mirant Americas Generation’s subsidiaries (other than Mirant Mid-Atlantic and Mirant Energy Trading and their subsidiaries) will guarantee the revolving credit facility and term loan only to the extent permitted under the indenture for the senior notes of Mirant Americas Generation. The participating financial institutions, or affiliates thereof, have also agreed:

• to use commercially reasonable efforts to arrange a syndication of a $500 million term loan; and

• to act as underwriters or placement agents in connection with the proposed offering of senior unsecured notes.

Mirant and RRI Energy anticipate closing the proposed note offering into escrow. Upon consummation of the merger and satisfaction of the other escrow conditions, such notes will be senior unsecured obligations of GenOn Energy.

Both Mirant and RRI Energy are subject to restrictions on their ability to solicit alternative acquisition proposals, provide information and engage in discussions with third parties, except under limited circumstances to permit Mirant’s and RRI Energy’s boards of directors to comply with their fiduciary duties. The Merger Agreement contains certain termination rights for both Mirant and RRI Energy, and further provides that, upon termination of the Merger Agreement under specified circumstances, Mirant or RRI Energy may be required to pay the other a termination fee of either $37.15 million or $57.78 million. Further information concerning the proposed merger was included in a joint proxy statement/prospectus contained in the registration statement on Form S-4 filed by RRI Energy with the SEC on May 28, 2010, and amended on July 6, 2010.

On July 15, 2010, Mirant and RRI Energy each received a request for additional information (commonly referred to as a “second request”) from the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act with respect to the merger. On July 20, 2010, the New York State Public Service Commission issued an order declaring that it will not further review the merger. On August 2, 2010, the FERC issued an order approving the merger.

Provided neither has experienced an ownership change between December 31, 2009, and the closing date of the merger, each of Mirant and RRI Energy is expected separately to experience an ownership change, as defined in Section (“§”) 382 of the Internal Revenue Code of 1986, on the merger date as a consequence of the merger. Immediately following the merger, Mirant and RRI Energy will be members of the same consolidated federal income tax group. The ability of this consolidated tax group to deduct the pre-merger NOL carry forwards of Mirant and RRI Energy against the post-merger taxable income of the group will be substantially limited as a result of these ownership changes.

The merger is expected to be completed by the end of 2010. Prior to the completion of the merger, Mirant and RRI Energy will continue to operate as independent companies. Except for specific references to the proposed merger and the associated debt financing transactions, the disclosures contained in this report on Form 10-Q relate solely to Mirant.

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Mid-Atlantic Collective Bargaining Agreement

During the second quarter of 2010, the Company entered into a new collective bargaining agreement with its employees represented by IBEW Local 1900. The Company’s previous collective bargaining agreement expired on June 1, 2010. The new agreement has a five-year term expiring on June 1, 2015. As part of the new agreement, the Company is required to provide additional retirement contributions through the defined contribution plan currently sponsored by Mirant Services, increases in pay and other benefits. In addition, the new agreement provides for a change to the postretirement healthcare benefit plan covering Mid-Atlantic union employees to eliminate employer-provided healthcare subsidies through a gradual phase-out. See Note F for further information on the curtailment of postretirement healthcare benefits.

Basis of Presentation

The accompanying unaudited condensed consolidated financial statements of Mirant and its wholly-owned subsidiaries have been prepared in accordance with GAAP for interim financial information and with the instructions for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. For further information, refer to the consolidated financial statements and notes thereto included in the Company’s 2009 Annual Report on Form 10-K.

The accompanying unaudited condensed consolidated financial statements include the accounts of Mirant and its wholly-owned and controlled majority-owned subsidiaries. The consolidated financial statements have been prepared from records maintained by Mirant and its subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation. As of June 30, 2010, substantially all of Mirant’s subsidiaries are wholly-owned and located in the United States.

The preparation of the unaudited condensed consolidated financial statements in conformity with GAAP requires management to make various estimates and assumptions that affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities at the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the period. Actual results could differ from those estimates. Certain prior period amounts have been reclassified to conform to the current period financial statement presentation.

The Company evaluates events that occur after its balance sheet date but before its financial statements are issued for potential recognition or disclosure. Based on the evaluation, the Company determined that there were no material subsequent events for recognition or disclosure other than those disclosed herein.

MC Asset Recovery

MC Asset Recovery, although wholly-owned by Mirant, is governed by managers who are independent of Mirant and its other subsidiaries. MC Asset Recovery is considered a VIE because of the Company’s potential tax obligations which could arise from potential recoveries from legal actions that MC Asset Recovery is pursuing. Prior to January 1, 2010, under previous accounting guidance, Mirant was considered the primary beneficiary of MC Asset Recovery and included the VIE in the Company’s consolidated financial statements. Based on the revised guidance related to accounting for VIEs that became effective on January 1, 2010, the Company reassessed its relationship with MC Asset Recovery and determined that the Company is no longer deemed to be the primary beneficiary. The characteristics of a primary beneficiary, as defined in the accounting

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guidance are: (a) the entity must have the power to direct the activities or make decisions that most significantly affect the VIE’s economic performance and (b) the entity must have an obligation to absorb losses or receive benefits that could be significant to the VIE. As MC Asset Recovery is governed by an independent Board of Managers that has sole power and control over the decisions that affect MC Asset Recovery’s economic performance, the Company does not meet the characteristics of a primary beneficiary. Additionally, the Company no longer has any obligation to provide funding to MC Asset Recovery. However, under the Plan, the Company is responsible for the taxes owed, if any, on any net recoveries up to $175 million obtained by MC Asset Recovery. The Company currently retains any tax obligations arising from the next approximately $74 million of potential recoveries by MC Asset Recovery. As a result of the initial application of this accounting guidance, the Company deconsolidated MC Asset Recovery effective January 1, 2010, and adjusted prior periods to conform to the current presentation. See Note K for further discussion of MC Asset Recovery.

At June 30, 2010 and December 31, 2009, MC Asset Recovery had current assets and current liabilities of $37 million and $39 million, respectively, which are not included in the Company’s unaudited condensed consolidated balance sheets. For both the three and six months ended June 30, 2010, MC Asset Recovery had operations and maintenance expense of less than $1 million. For both the three and six months ended June 30, 2009, MC Asset Recovery had operations and maintenance expense of $1 million, which is reflected in equity in income of affiliates in the Company’s unaudited condensed consolidated statements of operations. The net effect of deconsolidation on the unaudited condensed consolidated statement of cash flows for the six months ended June 30, 2009, was a net reduction of $47 million in net cash provided by operating activities and a $5 million increase in net cash used in investing activities resulting in a total decrease in cash and cash equivalents of $52 million. There was no effect on the Company’s unaudited condensed consolidated statement of cash flows for the six months ended June 30, 2010.

Inventories

Inventories consist primarily of fuel oil, coal, materials and supplies and purchased emissions allowances. Inventory is generally stated at the lower of cost or market value and is expensed on a weighted average cost basis. Fuel inventory is removed from the inventory account as it is used in the generation of electricity or sold to third parties. Materials and supplies are removed from the inventory account when they are used for repairs, maintenance or capital projects. Purchased emissions allowances are removed from inventory and charged to cost of fuel, electricity and other products in the accompanying unaudited condensed consolidated statements of operations as they are utilized for emissions volumes.

Inventories were comprised of the following (in millions):

	At June 30, 2010		At December 31, 2009
Fuel inventory:
Fuel oil	$	167	$	99
Coal		47		52
Other		1		1
Materials and supplies		69		66
Purchased emissions allowances		26		23
Total inventories	$	310	$	241

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Impairment of Long-Lived Assets

Mirant evaluates long-lived assets, such as property, plant and equipment and purchased intangible assets subject to amortization, for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. Such evaluations are performed in accordance with the accounting guidance related to evaluating long-lived assets for impairment. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to the estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated undiscounted future cash flows, an impairment charge is recognized as the amount by which the carrying amount of the asset exceeds its fair value. In the second quarter of 2010, Mirant evaluated the Dickerson generating facility for impairment, but did not record an impairment charge. See Note C for further discussion.

Capitalization of Interest Cost

Mirant capitalizes interest on projects during their construction period. The Company determines which debt instruments represent a reasonable measure of the cost of financing construction in terms of interest costs incurred that otherwise could have been avoided. These debt instruments and associated interest costs are included in the calculation of the weighted average interest rate used for determining the capitalization rate. Once a project is placed in service, capitalized interest, as a component of the total cost of the construction, is amortized over the estimated useful life of the asset constructed.

For the three and six months ended June 30, 2010 and 2009, the Company incurred the following interest costs (in millions):

	Three Months Ended June 30,						Six Months Ended June 30,
	2010			2009			2010			2009
Total interest costs	$	50		$	52		$	102		$	105
Capitalized and included in property, plant and equipment, net		(1	)		(18	)		(3	)		(33	)
Interest expense	$	49		$	34		$	99		$	72

The amounts of capitalized interest above include interest accrued. For the three and six months ended June 30, 2010, cash paid for interest was $93 million and $95 million, respectively, of which $3 million and $3 million, respectively, was capitalized. For the three and six months ended June 30, 2009, cash paid for interest was $93 million and $96 million, respectively, of which $31 million and $33 million, respectively, was capitalized.

Development Costs

Mirant capitalizes project development costs for generating facilities once it is probable that the project will be completed. These costs include professional fees, permits and other third party costs directly associated with the development of a new project. The capitalized costs are depreciated over the life of the asset or charged to operating expense if the completion of the project is no longer probable. Project development costs are expensed when incurred until the probable threshold is met. The Company began capitalizing project development costs related to the Marsh Landing generating facility upon signing the PPA with PG&E on September 2, 2009. As of June 30, 2010, the Company has capitalized approximately $3 million of project development costs related to the Marsh Landing generating facility.

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Recently Adopted Accounting Guidance

On June 12, 2009, the FASB issued guidance which requires the Company to perform an analysis to determine whether the Company’s variable interest gives it a controlling financial interest in a VIE. This analysis should identify the primary beneficiary of a VIE. This guidance also requires ongoing reassessments of whether an enterprise is the primary beneficiary of a VIE and enhances the disclosures to provide more information regarding the Company’s involvement in a VIE. This guidance is effective for fiscal years beginning after November 15, 2009. The Company adopted this accounting guidance on January 1, 2010, and as a result, deconsolidated MC Asset Recovery. See Note K for further details on MC Asset Recovery.

On January 21, 2010, the FASB issued guidance that enhances the disclosures for fair value measurements. The guidance requires the Company to disclose separately the amount of significant transfers between Level 1 and Level 2 of the fair value hierarchy, the reasons for the significant transfers, the valuation techniques and inputs used and the classes of assets and liabilities accounted for at fair value on a recurring basis. The Company adopted this accounting guidance for the quarter ended March 31, 2010. See Note B for additional information on fair value measurements.

On February 25, 2010, the FASB issued guidance that amends its requirement for public companies to disclose the date through which the Company has evaluated subsequent events and whether that date represents the date the financial statements were issued or were available to be issued. The Company adopted the subsequent event disclosure requirements for the quarter ended March 31, 2010, and the adoption had no effect on the Company’s unaudited condensed consolidated statements of operations, financial position or cash flows. The Company continues to evaluate subsequent events through the date when the financial statements are issued.

New Accounting Guidance Not Yet Adopted at June 30, 2010

On January 21, 2010, the FASB issued guidance that requires a reconciliation for Level 3 fair value measurements, including presenting separately the amounts of purchases, issuances and settlements on a gross basis. The Company currently discloses the amounts of purchases, issuances and settlements on a net basis within its roll forward of Level 3 fair value measurements in Note B. These disclosure requirements are effective for fiscal years beginning after December 15, 2010. The Company will present these disclosures in its Form 10-Q for the quarter ended March 31, 2011.

B. Financial Instruments

Derivative Financial Instruments

In connection with the business of generating electricity, the Company is exposed to energy commodity price risk associated with the acquisition of fuel and emissions allowances needed to generate electricity, the price of electricity produced and sold and the fair value of fuel inventories. In addition, the open positions in the Company’s trading activities, comprised of proprietary trading and fuel oil management activities, expose it to risks associated with changes in energy commodity prices. The Company, through its asset management activities, enters into a variety of exchange-traded and OTC energy and energy-related derivative financial instruments, such as forward contracts, futures contracts, option contracts and financial swap agreements to manage exposure to commodity price risks. These contracts have varying terms and durations, which range from a few days to years, depending on the instrument. The Company’s proprietary trading activities also utilize similar derivative financial instruments in markets where the Company has a physical presence to attempt to generate incremental gross margin. The Company’s fuel oil management activities use derivative financial instruments to hedge

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economically the fair value of the Company’s physical fuel oil inventories and to optimize the approximately three million barrels of storage capacity that the Company owns or leases.

Changes in the fair value and settlements of derivative financial instruments used to hedge electricity economically are reflected in operating revenue, and changes in the fair value and settlements of derivative financial instruments used to hedge fuel economically are reflected in cost of fuel, electricity and other products in the accompanying unaudited condensed consolidated statements of operations.

In May 2010, the Company concluded that it could no longer assert that physical delivery is probable for many of its coal agreements. The conclusion was based on expected generation levels, changes observed in the coal markets and substantial progress in the construction of the Company’s coal blending facility at its Morgantown generating facility that will allow for greater flexibility of the Company’s coal supply. Because the Company can no longer assert that physical delivery of coal from these agreements is probable, the Company is required to apply fair value accounting for these contracts in the current period and prospectively. The Company’s coal agreements requiring the application of fair value accounting represented a net derivative contract liability of approximately $98 million at June 30, 2010 in the accompanying unaudited condensed consolidated balance sheet.

Changes in the fair value and settlements of derivative contracts for trading activities, comprised of proprietary trading and fuel oil management, are recorded on a net basis as operating revenue in the accompanying unaudited condensed consolidated statements of operations. As of June 30, 2010, the Company does not have any derivative financial instruments for which hedge accounting has been elected and option contracts comprise less than 1% of the Company’s net derivative contract assets.

The Company also considers risks associated with interest rates, counterparty credit and Mirant’s own non-performance risk when valuing its derivative financial instruments. The nominal value of the derivative contract assets and liabilities is discounted to account for time value using a LIBOR forward interest rate curve based on the tenor of the Company’s transactions being valued.

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The following table presents the fair value of each class of derivative financial instruments related to commodity price risk (in millions):

		Fair Value at
Commodity Derivative Contracts	Balance Sheet Location	June 30, 2010			December 31, 2009
Asset management:
Power	Derivative contract assets	$	1,238		$	1,178
Fuel	Derivative contract assets		35			26
Total asset management			1,273			1,204
Trading activities	Derivative contract assets		1,165			811
Total derivative contract assets			2,438			2,015
Asset management:
Power	Derivative contract liabilities		(420	)		(488	)
Fuel	Derivative contract liabilities		(143	)		(15	)
Total asset management			(563	)		(503	)
Trading activities	Derivative contract liabilities		(1,161	)		(810	)
Total derivative contract liabilities			(1,724	)		(1,313	)
Asset management, net:
Power			818			690
Fuel			(108	)		11
Total asset management			710			701
Trading activities, net			4			1
Total derivative contracts, net		$	714		$	702

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The following tables present the net gains (losses) for derivative financial instruments recognized in income in the unaudited condensed consolidated statements of operations (in millions):

Commodity Derivative Contracts	Location of Net Gains (Losses) Recognized in Income	Amount of Net Gains (Losses) Recognized in Income for the Three Months Ended
		June 30, 2010									June 30, 2009
		Realized			Unrealized			Total			Realized			Unrealized			Total
Asset management	Operating revenues	$	91		$	(218	)	$	(127	)	$	191		$	(10	)	$	181
Trading activities	Operating revenues		(21	)		(13	)		(34	)		46			(34	)		12
Asset management	Cost of fuel, electricity and other products		(11	)		(109	)		(120	)		(28	)		30			2
Total		$	59		$	(340	)	$	(281	)	$	209		$	(14	)	$	195
Commodity Derivative Contracts	Location of Net Gains (Losses) Recognized in Income	Amount of Net Gains (Losses) Recognized in Income for the Six Months Ended
		June 30, 2010									June 30, 2009
		Realized			Unrealized			Total			Realized			Unrealized			Total
Asset management	Operating revenues	$	176		$	135		$	311		$	327		$	260		$	587
Trading activities	Operating revenues		(2	)		(3	)		(5	)		74			(49	)		25
Asset management	Cost of fuel, electricity and other products		(26	)		(120	)		(146	)		(44	)		29			(15	)
Total		$	148		$	12		$	160		$	357		$	240		$	597

The following table presents the notional quantity on long (short) positions for derivative financial instruments on a gross and net basis at June 30, 2010 (in equivalent MWh):

	Notional Quantity
	Derivative Contract Assets		Derivative Contract Liabilities	Net Derivative Contracts
	(in millions)
Commodity Type:
Power1	(91	)	48	(43	)
Natural gas	(66	)	68	2
Fuel oil	(3	)	2	(1	)
Coal	11		8	19
Total	(149	)	126	(23	)

¹ Includes MWh equivalent of natural gas transactions used to hedge power economically.

Fair Value Hierarchy

Based on the observability of the inputs used in the valuation techniques for fair value measurement, the Company is required to classify recorded fair value measurements according to the fair value hierarchy. The fair value hierarchy ranks the quality and reliability of the information used to determine fair values. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurement) and the lowest priority to unobservable inputs (Level 3 measurement). The fair value measurement inputs the Company uses vary from readily observable prices for exchange-traded instruments to price curves that cannot be validated through external pricing sources. The Company’s financial assets and liabilities carried at fair value in the unaudited condensed consolidated financial statements are classified in three categories based on the inputs used.

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In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, the level in the fair value hierarchy within which the fair value measurement in its entirety falls must be determined based on the lowest level input that is significant to the fair value measurement. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment and consideration of factors specific to the asset or liability.

The Company’s transactions in Level 1 of the fair value hierarchy primarily consist of natural gas and crude oil futures traded on the NYMEX and swaps cleared against the NYMEX prices. The Company’s transactions in Level 2 of the fair value hierarchy primarily include non-exchange-traded derivatives such as OTC forwards, swaps and options. The Company did not have any transfers between Levels 1 and 2 for the three and six months ended June 30, 2010. The Company’s transactions in Level 3 of the fair value hierarchy primarily consist of coal agreements and financial power swaps in less liquid locations. As described earlier in this note, the Company was required to apply fair value accounting for many of its coal agreements beginning in May 2010. The fair value of these agreements is reflected in Level 3 of the fair value hierarchy as of June 30, 2010.

The following tables set forth by level within the fair value hierarchy the Company’s financial assets and liabilities that were accounted for at fair value on a recurring basis as of June 30, 2010, by class and tenor, respectively. At June 30, 2010, the Company’s only financial assets and liabilities measured at fair value on a recurring basis are derivative financial instruments.

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The following table presents financial assets and liabilities accounted for at fair value on a recurring basis as of June 30, 2010, on a gross and net basis by class (in millions):

	Quoted Prices in Active Markets for Identical Assets (Level 1)			Significant Other Observable Inputs (Level 2)			Significant Other Unobservable Inputs (Level 3)			Total
Assets:
Commodity contracts—asset management:
Power	$	4		$	1,224		$	10		$	1,238
Fuel		7			3			25			35
Total commodity contracts—asset management		11			1,227			35			1,273
Commodity contracts—trading activities		637			501			27			1,165
Total derivative contract assets		648			1,728			62			2,438
Liabilities:
Commodity contracts—asset management:
Power		(20	)		(398	)		(2	)		(420	)
Fuel		(17	)		(1	)		(125	)		(143	)
Total commodity contracts—asset management		(37	)		(399	)		(127	)		(563	)
Commodity contracts—trading activities		(652	)		(501	)		(8	)		(1,161	)
Total derivative contract liabilities		(689	)		(900	)		(135	)		(1,724	)
Net:
Commodity contracts—asset management:
Power		(16	)		826			8			818
Fuel		(10	)		2			(100	)		(108	)
Total commodity contracts—asset management		(26	)		828			(92	)		710
Commodity contracts—trading activities, net		(15	)		—			19			4
Total derivative contract assets and liabilities, net	$	(41	)	$	828		$	(73	)	$	714

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The following table presents financial assets and liabilities accounted for at fair value on a recurring basis as of December 31, 2009, on a gross and net basis by class (in millions):

	Quoted Prices in Active Markets for Identical Assets (Level 1)			Significant Other Observable Inputs (Level 2)			Significant Other Unobservable Inputs (Level 3)			Total
Assets:
Commodity contracts—asset management:
Power	$	2		$	1,162		$	14		$	1,178
Fuel		11			8			7			26
Total commodity contracts—asset management		13			1,170			21			1,204
Commodity contracts—trading activities		374			415			22			811
Total derivative contract assets		387			1,585			43			2,015
Liabilities:
Commodity contracts—asset management:
Power		(11	)		(475	)		(2	)		(488	)
Fuel		(14	)		(1	)		—			(15	)
Total commodity contracts—asset management		(25	)		(476	)		(2	)		(503	)
Commodity contracts—trading activities		(368	)		(433	)		(9	)		(810	)
Total derivative contract liabilities		(393	)		(909	)		(11	)		(1,313	)
Net:
Commodity contracts—asset management:
Power		(9	)		687			12			690
Fuel		(3	)		7			7			11
Total commodity contracts—asset management		(12	)		694			19			701
Commodity contracts—trading activities, net		6			(18	)		13			1
Total derivative contract assets and liabilities, net	$	(6	)	$	676		$	32		$	702

The following table presents net financial assets and liabilities accounted for at fair value on a recurring basis as of June 30, 2010, by tenor (in millions):

	Commodity Contracts
	Asset Management		Trading Activities			Total
Remainder of 2010	$	137	$	(3	)	$	134
2011		152		11			163
2012		113		(4	)		109
2013		151		—			151
2014		157		—			157
Thereafter		—		—			—
Total	$	710	$	4		$	714

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The volumetric weighted average maturity, or weighted average tenor, of the asset management derivative contract portfolio at June 30, 2010 and December 31, 2009, was approximately 18 months and 22 months, respectively. The volumetric weighted average maturity, or weighted average tenor, of the trading derivative contract portfolio at June 30, 2010 and December 31, 2009, was approximately 10 months and 9 months, respectively.

Level 3 Disclosures

The following tables present a roll forward of fair values of net assets and liabilities categorized in Level 3 for the six months ended June 30, 2010 and 2009, and the amount included in income for the three and six months ended June 30, 2010 and 2009 (in millions):

	Commodity Contracts
	Asset Management			Trading Activities			Total
Fair value of assets and liabilities categorized in Level 3 at January 1, 2010	$	19		$	13		$	32
Total gains or losses (realized/unrealized):
Included in income of existing contracts (or changes in net assets or liabilities)1		(133	)		(16	)		(149	)
Purchases, issuances and settlements2		(16	)		22			6
Transfers in and/or out of Level 33		38			—			38
Fair value of assets and liabilities categorized in Level 3 at June 30, 2010	$	(92	)	$	19		$	(73	)

	Commodity Contracts
	Asset Management			Trading Activities			Total
Fair value of assets and liabilities categorized in Level 3 at January 1, 2009	$	24		$	22		$	46
Total gains or losses (realized/unrealized):
Included in income of existing contracts (or changes in net assets or liabilities)1		(11	)		(11	)		(22	)
Purchases, issuances and settlements2		22			19			41
Transfers in and/or out of Level 33		—			—			—
Fair value of assets and liabilities categorized in Level 3 at June 30, 2009	$	35		$	30		$	65

¹ Reflects the total gains or losses on contracts included in Level 3 at the beginning of each quarterly reporting period and at the end of each quarterly reporting period, and contracts entered into during each quarterly reporting period that remain at the end of each quarterly reporting period. Also reflects the Company’s coal agreements that were initially recognized at fair value in the second quarter of 2010.

² Represents the total cash settlements of contracts during each quarterly reporting period that existed at the beginning of each quarterly reporting period.

³ Denotes the total contracts that existed at the beginning of each quarterly reporting period and were still held at the end of each quarterly reporting period that were either previously categorized as a higher level for which the inputs to the model became unobservable or assets and liabilities that were previously classified as Level 3 for which the lowest significant input became observable during each quarterly reporting period. Amounts reflect fair value as of the end of each quarterly reporting period.

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	Three Months Ended June 30, 2010									Six Months Ended June 30, 2010
	Operating Revenues			Cost of Fuel			Total			Operating Revenues		Cost of Fuel			Total
Gains (losses) included in income	$	(36	)	$	(113	)	$	(149	)	$	2	$	(107	)	$	(105	)
Gains (losses) included in income (or changes in net assets) attributable to the change in unrealized gains or losses relating to assets still held at June 30, 2010	$	(31	)	$	(113	)	$	(144	)	$	7	$	(107	)	$	(100	)
	Three Months Ended June 30, 2009									Six Months Ended June 30, 2009
	Operating Revenues			Cost of Fuel			Total			Operating Revenues		Cost of Fuel			Total
Gains (losses) included in income	$	(10	)	$	3		$	(7	)	$	16	$	3		$	19
Gains (losses) included in income (or changes in net assets) attributable to the change in unrealized gains or losses relating to assets still held at June 30, 2009	$	(10	)	$	3		$	(7	)	$	18	$	3		$	21

Counterparty Credit Concentration Risk

The Company is exposed to the default risk of the counterparties with which the Company transacts. The Company manages its credit risk by entering into master netting agreements and requiring counterparties to post cash collateral or other credit enhancements based on the net exposure and the credit standing of the counterparty. The Company also has non-collateralized power hedges entered into by Mirant Mid-Atlantic. These transactions are senior unsecured obligations of Mirant Mid-Atlantic and the counterparties and do not require either party to post cash collateral for initial margin or for securing exposure as a result of changes in power or natural gas prices. The Company’s credit reserve on its derivative contract assets was $36 million and $13 million at June 30, 2010 and December 31, 2009, respectively.

At June 30, 2010 and December 31, 2009, less than $1 million and $12 million, respectively, of cash collateral posted to the Company by counterparties under master netting agreements were included in accounts payable and accrued liabilities on the unaudited condensed consolidated balance sheets.

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The Company also monitors counterparty credit concentration risk on both an individual basis and a group counterparty basis. The following tables highlight the credit quality and the balance sheet settlement exposures related to these activities (dollars in millions):

	At June 30, 2010
Credit Rating Equivalent	Gross Exposure Before Collateral1		Net Exposure Before Collateral2		Collateral3		Exposure Net of Collateral		% of Net Exposure
Clearing and Exchange	$	1,214	$	94	$	94	$	—	—
Investment Grade:
Financial institutions		916		718		—		718	79	%
Energy companies		481		159		23		136	15	%
Other		—		—		—		—	—
Non-investment Grade:
Financial institutions		—		—		—		—	—
Energy companies		15		15		1		14	2	%
Other		—		—		—		—	—
No External Ratings:
Internally-rated investment grade		24		22		—		22	2	%
Internally-rated non-investment grade		23		21		—		21	2	%
Not internally rated		—		—		—		—	—
Total	$	2,673	$	1,029	$	118	$	911	100	%

	At December 31, 2009
Credit Rating Equivalent	Gross Exposure Before Collateral1		Net Exposure Before Collateral2		Collateral3		Exposure Net of Collateral		% of Net Exposure
Clearing and Exchange	$	790	$	96	$	96	$	—	—
Investment Grade:
Financial institutions		997		646		12		634	81	%
Energy companies		497		125		13		112	14	%
Other		—		—		—		—	—
Non-investment Grade:
Financial institutions		—		—		—		—	—
Energy companies		—		—		—		—	—
Other		—		—		—		—	—
No External Ratings:
Internally-rated investment grade		34		27		—		27	4	%
Internally-rated non-investment grade		8		8		—		8	1	%
Not internally rated		—		—		—		—	—
Total	$	2,326	$	902	$	121	$	781	100	%

¹ Gross exposure before collateral represents credit exposure, including realized and unrealized transactions, before (a) applying the terms of master netting agreements with counterparties and (b) netting of transactions with clearing brokers and exchanges. The table excludes amounts related to contracts classified as normal purchases/normal sales and non-derivative contractual commitments that are not recorded at fair value in the unaudited condensed consolidated balance sheets, except for any related accounts receivable. Such contractual commitments contain credit and economic

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risk if a counterparty does not perform. Non-performance could have a material adverse effect on the future results of operations, financial condition and cash flows.

² Net exposure before collateral represents the credit exposure, including both realized and unrealized transactions, after applying the terms of master netting agreements.

³ Collateral includes cash and letters of credit received from counterparties.

The Company had credit exposure to two investment grade counterparties at June 30, 2010, and credit exposure to three investment grade counterparties at December 31, 2009, that each represented an exposure of more than 10% of total credit exposure, net of collateral and that totaled $507 million and $495 million at June 30, 2010 and December 31, 2009, respectively.

Mirant Credit Risk

The Company’s standard industry contracts contain credit-risk-related contingent features such as ratings-related thresholds whereby the Company would be required to post additional cash collateral or letters of credit as a result of a credit event, including a downgrade. Additionally, some of the Company’s contracts contain adequate assurance language, which is generally subjective in nature, but would most likely require the Company to post additional cash collateral or letters of credit as a result of a credit event, including a downgrade. However, as a result of the Company’s current credit rating, the Company is typically required to post collateral in the normal course of business to offset completely its net liability positions, after applying the terms of master netting agreements. At June 30, 2010, the fair value of the Company’s financial instruments with credit-risk-related contingent features in a net liability position was approximately $32 million for which the Company has posted collateral of $21 million, including cash and letters of credit, to offset substantially the position.

In addition, at June 30, 2010 and December 31, 2009, the Company had approximately $1 million and $25 million, respectively, of cash collateral posted with counterparties under master netting agreements that was included in funds on deposit on the unaudited condensed consolidated balance sheets.

Fair Values of Other Financial Instruments

Other financial instruments recorded at fair value include cash and interest-bearing cash equivalents. The following methods are used by Mirant to estimate the fair value of financial instruments that are not otherwise carried at fair value on the accompanying unaudited condensed consolidated balance sheets:

Notes and Other Receivables.    The fair value of Mirant’s notes receivable are estimated using interest rates it would receive currently for similar types of arrangements.

Long- and Short-Term Debt.    The fair value of Mirant’s long- and short-term debt is estimated using quoted market prices, when available.

The carrying amounts and fair values of Mirant’s financial instruments are as follows (in millions):

	At June 30, 2010				At December 31, 2009
	Carrying Amount		Fair Value		Carrying Amount		Fair Value
Assets:
Notes and other receivables	$	1	$	1	$	2	$	2
Liabilities:
Long- and short-term debt	$	2,562	$	2,513	$	2,631	$	2,559

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C. Impairments on Assets Held and Used

Dickerson Generating Facility

Background

During the second quarter of 2010, the County Council for Montgomery County, Maryland, adopted a law which will impose a levy of $5 per ton of CO2 emitted by Mirant Mid-Atlantic’s Dickerson generating facility. The Company currently estimates Mirant Mid-Atlantic will incur $10 million to $15 million in levies per year as a result of the CO2 levy which will cause a decrease in the cash flows that the Dickerson generating facility is projected to earn in future periods. See Note K for additional information related to the Montgomery County Carbon Emissions Levy and the Company’s legal challenge of it.

The Company viewed the adoption of the law by the Montgomery County council as a triggering event under accounting guidance because the law has caused management to review the economic viability of the Dickerson generating facility as a result of projected decreases in cash flows.

Asset Grouping

For purposes of impairment testing, a long-lived asset or assets must be grouped at the lowest level of identifiable cash flows. In performing the impairment analysis, the Company determined that the Dickerson generating facility was the lowest level for which identifiable cash flows are available. As a result, the Company included the cash flows associated with the Dickerson leased facilities as well as the owned combustion turbine units. The leased facilities are accounted for as operating leases, so only the leasehold improvements related to these facilities are recorded on the consolidated balance sheets. The most significant leasehold improvements for the Dickerson generating facility relate to capital expenditures made as part of the compliance with the Maryland Healthy Air Act.

Assumptions and Results

The Company’s assessment for recoverability of the Dickerson generating facility under the accounting guidance related to the impairment of a long-lived asset involved developing scenarios for the future expected operations of the Dickerson generating facility. The scenarios related to the success of the legal challenges to the law. The sum of the probability weighted undiscounted cash flows for the Dickerson generating facility exceeded the carrying value as of June 30, 2010. As a result, the Company did not record an impairment charge. The carrying value of the Dickerson generating facility represented approximately 18% of the Company’s total property, plant and equipment, net at June 30, 2010.

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D. Long-Term Debt

Long-term debt was as follows (dollars in millions):

	At June 30, 2010			At December 31, 2009			Interest Rate	Secured/ Unsecured
Long-term debt:
Mirant Americas Generation:
Senior notes:
Due May 2011	$	535		$	535		8.30%	Unsecured
Due October 2021		450			450		8.50%	Unsecured
Due May 2031		400			400		9.125%	Unsecured
Unamortized debt premiums (discounts), net		(3	)		(3	)
Mirant North America:
Senior secured term loan, due 2010 to 2013		306			373		LIBOR +  1.75%1	Secured
Senior notes, due December 2013		850			850		7.375%	Unsecured
Capital leases, due 2010 to 2015		24			26		7.375% - 8.19%
Total		2,562			2,631
Less: current portion of long-term debt		(563	)		(75	)
Total long-term debt, net of current portion	$	1,999		$	2,556

¹ The weighted average interest rate for the six months ended June 30, 2010 and the year ended December 31, 2009, was 2.021% and 2.130%, respectively.

Mirant Americas Generation Senior Notes

The senior notes are senior unsecured obligations of Mirant Americas Generation having no recourse to any subsidiary or affiliate of Mirant Americas Generation. The Company reclassified the principal balance of the Mirant Americas Generation senior notes due in May 2011 from long-term debt to current portion of long-term debt at June 30, 2010.

Mirant North America Senior Secured Credit Facilities

Mirant North America, a wholly-owned subsidiary of Mirant Americas Generation, entered into senior secured credit facilities in January 2006, which are comprised of a senior secured term loan, due January 2013 and a senior secured revolving credit facility due January 2012. The senior secured term loan had an initial principal balance of $700 million, which has amortized to $306 million as of June 30, 2010. At the closing, $200 million drawn under the senior secured term loan was deposited into a cash collateral account to support the issuance of up to $200 million of letters of credit. During 2008, Mirant North America transferred to the senior secured revolving credit facility approximately $78 million of letters of credit previously supported by the cash collateral account and withdrew approximately $78 million from the cash collateral account, thereby reducing the cash collateral account to approximately $122 million. At June 30, 2010, the cash collateral balance was approximately $124 million as a result of interest earned on the invested cash balances. At June 30, 2010, there were approximately $93 million of letters of credit outstanding under the senior secured revolving credit facility and $123 million of letters of credit outstanding under the senior secured term loan cash collateral account. At June 30, 2010, $662 million was available under the senior secured revolving credit facility and less than $1 million was available under the senior secured term loan for cash draws or for the issuance of

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letters of credit. Although the senior secured revolving credit facility has lender commitments of $800 million, availability thereunder reflects a $45 million effective reduction as a result of the bankruptcy filing of Lehman Commercial Paper, Inc., a lender under the facility.

In addition to quarterly principal installments, which are currently $0.8 million, Mirant North America is required to make annual principal prepayments under the senior secured term loan equal to a specified percentage of its excess free cash flow, which is based on adjusted EBITDA less capital expenditures and as further defined in the loan agreement. On March 10, 2010, Mirant North America made a mandatory principal prepayment of approximately $66 million on the term loan. At June 30, 2010, the current estimate of the mandatory principal prepayment of the term loan in March 2011 is approximately $21 million. This amount has been reclassified from long-term debt to current portion of long-term debt at June 30, 2010.

The senior secured credit facilities are senior secured obligations of Mirant North America. In addition, certain subsidiaries of Mirant North America (not including Mirant Mid-Atlantic or Mirant Energy Trading) have jointly and severally guaranteed, as senior secured obligations, the senior secured credit facilities. The senior secured credit facilities have no recourse to any other Mirant entities.

See Note A for a discussion of the contemplated repayment of the term loan and repayment and termination of the revolving credit facility in connection with the consummation of the proposed merger with RRI Energy.

Mirant North America Senior Notes

The senior notes due in 2013 are senior unsecured obligations of Mirant North America. In addition, certain subsidiaries of Mirant North America (not including Mirant Mid-Atlantic or Mirant Energy Trading) have jointly and severally guaranteed, as senior unsecured obligations, the senior notes. The Mirant North America senior notes have no recourse to any other Mirant entities, including Mirant Americas Generation.

See Note A for a discussion of the contemplated repayment of the senior notes in connection with the consummation of the proposed merger with RRI Energy.

E. Guarantees and Letters of Credit

Mirant generally conducts its business through various operating subsidiaries which enter into contracts as a routine part of their business activities. In certain instances, the contractual obligations of such subsidiaries are guaranteed by, or otherwise supported by, Mirant or another of its subsidiaries, including by letters of credit issued under the credit facilities of Mirant North America.

In addition, Mirant and its subsidiaries enter into various contracts that include indemnification and guarantee provisions. Examples of these contracts include financing and lease arrangements, purchase and sale agreements, including for commodities, construction agreements and agreements with vendors. Although the primary obligation of Mirant or a subsidiary under such contracts is to pay money or render performance, such contracts may include obligations to indemnify the counterparty for damages arising from the breach thereof and, in certain instances, other existing or potential liabilities. In many cases, the Company’s maximum potential liability cannot be estimated because some of the underlying agreements contain no limits on potential liability.

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Upon issuance or modification of a guarantee, the Company determines if the obligation is subject to initial recognition and measurement of a liability and/or disclosure of the nature and terms of the guarantee. Generally, guarantees of the performance of a third party are subject to the recognition and measurement, as well as the disclosure provisions of the accounting guidance related to guarantees. Such guarantees must initially be recorded at fair value, as determined in accordance with the accounting guidance. The Company did not have any guarantees at June 30, 2010, that met the recognition requirements of the accounting guidance.

For the six months ended June 30, 2010, Mirant had net increases to its guarantees and letters of credit of approximately $19 million, which included net increases of approximately $17 million to its letters of credit, approximately $1 million to other guarantees and approximately $1 million to its surety bonds.

This Note should be read in conjunction with the complete description under Note 7, Commitments and Contingencies—Guarantees, to the Company’s consolidated financial statements in its 2009 Annual Report on Form 10-K.

F. Pension and Other Postretirement Benefit Plans

Mirant has various defined benefit and defined contribution pension plans, and other postretirement benefit plans. For a further discussion of these plans see Note 6, Employee Benefit Plans in the Company’s 2009 Annual Report on Form 10-K.

Net Periodic Benefit Cost (Credit)

The components of the net periodic benefit cost (credit) are shown below (in millions):

	Pension Plans						Other Postretirement Benefit Plans
	Three Months Ended June 30,						Three Months Ended June 30,
	2010			2009			2010			2009
Service cost	$	2		$	2		$	—		$	—
Interest cost		4			4			1			1
Expected return of plan assets		(6	)		(5	)		—			—
Net amortization1		1			—			(2	)		(1	)
Curtailments		—			—			(37	)		—
Net periodic benefit cost (credit)	$	1		$	1		$	(38	)	$	—

	Pension Plans						Other Postretirement Benefit Plans
	Six Months Ended June 30,						Six Months Ended June  30,
	2010			2009			2010			2009
Service cost	$	4		$	4		$	—		$	1
Interest cost		8			8			2			2
Expected return of plan assets		(11	)		(11	)		—			—
Net amortization1		1			1			(4	)		(3	)
Curtailments		—			—			(37	)		—
Net periodic benefit cost (credit)	$	2		$	2		$	(39	)	$	—

¹ Net amortization amount includes prior service costs and actuarial gains or losses.

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Curtailment of Mid-Atlantic Other Postretirement Benefits

During the second quarter of 2010, the Company entered into a new collective bargaining agreement with its employees represented by IBEW Local 1900. The new agreement includes a change to the postretirement healthcare benefit plan covering Mid-Atlantic union employees to eliminate employer-provided healthcare subsidies through a gradual phase-out. For current employees who retire during the term of this collective bargaining agreement, the gradual phase-out will continue through 2015, at which time those retirees will be responsible for 100% of their healthcare coverage. Subsidies for employees who retired prior to June 1, 2010, will continue through December 31, 2010. The curtailment resulted in a remeasurement of the liability related to postretirement benefits for Mid-Atlantic union employees. In performing the remeasurement, the Company used an updated discount rate of 5.31% as compared to the discount rate of 5.62% used in the Company’s previous measurement at December 31, 2009. The Company did not adjust any other valuation assumptions as a result of the remeasurement. The Company recorded the effects of the plan curtailment during the second quarter of 2010 and recognized a reduction in other postretirement liabilities of approximately $45 million, an increase in other comprehensive income of approximately $8 million on the unaudited condensed consolidated balance sheets as of June 30, 2010, and a gain of $37 million reflected as a reduction in operations and maintenance expense on the unaudited condensed consolidated statement of operations.

G. Stock-based Compensation

On March 11, 2010, the Company granted stock options and issued restricted stock units to executives and certain other employees under the Mirant Corporation 2005 Omnibus Incentive Compensation Plan. The stock options have a ten-year term and the stock options and restricted stock units vest in three equal installments on each of the first, second and third anniversaries of the grant date. The stock options have an exercise price of $13.19, the Company’s closing stock price on the day of the grant, and a grant date fair value of $5.64. The restricted stock units have a grant date fair value of $13.19, the Company’s closing stock price on the day of the grant.

On May 12, 2010, the Company issued restricted stock units to non-management members of the Board of Directors under the Mirant Corporation 2005 Omnibus Incentive Compensation Plan. The restricted stock units vest on the first anniversary of the grant date and delivery of the underlying shares is deferred until their directorship terminates. The restricted stock units have a grant date fair value of $12.21, the Company’s closing stock price on the day of the grant.

During the three and six months ended June 30, 2010, the Company recognized approximately $4 million and $8 million, respectively, of compensation expense related to stock options and restricted stock units. During the three and six months ended June 30, 2009, the Company recognized approximately $12 million and $16 million, respectively, of compensation expense related to stock options and restricted stock units, which includes compensation expense associated with the separation of certain executives in 2009. These amounts are included in operations and maintenance expense in the unaudited condensed consolidated statements of operations.

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Stock-based compensation activity for the six months ended June 30, 2010, is as follows:

Stock Options—Service-based

	Number of Options			Weighted Average Exercise Price		Aggregate Intrinsic Value1 (in thousands)
Outstanding at January 1, 2010		4,040,576		$	24.05	$	5,818
Granted		951,224		$	13.19
Exercised or converted		(120,867	)	$	10.40
Forfeited		(37,130	)	$	13.64
Expired		(650,194	)	$	29.14
Outstanding at June 30, 2010		4,183,609		$	21.28	$	169
Exercisable or convertible at June 30, 2010		2,354,018		$	26.62	$	55
Cash proceeds from exercise of options for the six months ended June 30, 2010	$	1,257,017

¹ Aggregate intrinsic value is calculated based on the closing stock price at June 30, 2010, of $10.56.

Restricted Stock Units—Service-based

	Number of Units/ Shares		Weighted Average Grant Date Fair Value
Outstanding at January 1, 2010	1,587,324		$	14.95
Granted	1,037,499		$	13.15
Vested	(649,349	)	$	17.83
Forfeited	(32,745	)	$	12.78
Outstanding at June 30, 2010	1,942,729		$	13.06

Change of Control

If consummated, the proposed merger with RRI Energy will constitute a change of control as defined under the Mirant Corporation 2005 Omnibus Incentive Compensation Plan. As a result, all outstanding stock options and restricted stock units will become fully vested. The outstanding stock options will be converted into options to purchase RRI Energy common stock and restricted stock units will be converted into shares of RRI Energy based on the Exchange Ratio and the terms of the Merger Agreement. Upon the closing of the merger, RRI Energy will be renamed GenOn Energy. In addition, any unrecognized compensation expense associated with previously unvested stock options and restricted stock units will be immediately recognized as compensation expense. As of June 30, 2010, there was approximately $32 million of total unrecognized compensation cost, excluding estimated forfeitures, related to non-vested stock-based awards.

H. Earnings (Loss) Per Share

Mirant calculates basic EPS by dividing income available to stockholders by the weighted average number of common shares outstanding. Diluted EPS gives effect to dilutive potential common shares, including unvested restricted stock units, stock options and warrants. As a result of the net loss for the three months ended June 30, 2010, diluted EPS was computed in the same manner as basic EPS in accordance with accounting guidance.

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The following table shows the computation of basic and diluted EPS for the three and six months ended June 30, 2010 and 2009 (in millions except per share data):

	Three Months Ended June 30,					Six Months Ended June 30,
	2010			2009		2010		2009
Net income (loss)	$	(263	)	$	163	$	144	$	543
Basic and diluted:
Weighted average shares outstanding—basic		145			145		145		145
Shares from assumed vesting of restricted stock units		—			—		1		—
Weighted average shares outstanding—diluted		145			145		146		145
Basic and Diluted EPS
Basic EPS	$	(1.81	)	$	1.12	$	0.99	$	3.74
Diluted EPS	$	(1.81	)	$	1.12	$	0.99	$	3.74

For the three and six months ended June 30, 2010 and 2009, the weighted average number of securities that could potentially dilute basic EPS in the future that were not included in the computation of diluted EPS because to do so would have been antidilutive were as follows:

	Three Months Ended June 30,		Six Months Ended June 30,
	2010	2009	2010	2009
	(shares in millions)
Series A Warrants	27	27	27	27
Series B Warrants	7	7	7	7
Restricted stock units	1	—	1	1
Stock options	5	5	4	4
Total number of antidilutive shares	40	39	39	39

Change of Control—Series A Warrants and Series B Warrants

If the proposed merger with RRI Energy is consummated, the holders of the Series A Warrants and Series B Warrants will have the right to acquire and receive, upon the exercise of such warrants, the number of shares of RRI Energy common stock that would have been issued or paid to the holders of the Series A Warrants and Series B Warrants if such holders were to have exercised the Series A Warrants and Series B Warrants immediately prior to the closing of the merger. Upon the closing of the merger, RRI Energy will be renamed GenOn Energy. The obligations in respect of the outstanding Series A Warrants and Series B Warrants, which expire on January 3, 2011, will be assumed by GenOn Energy upon consummation of the proposed merger.

I. Stockholders’ Equity

Stockholder Rights Plan

On March 26, 2009, Mirant announced the adoption of a stockholder rights plan (the “Stockholder Rights Plan”) to help protect the Company’s use of its federal NOLs from certain restrictions contained in §382 of the Internal Revenue Code of 1986, as amended. In general, an ownership change would occur if certain shifts in ownership of the Company’s stock exceed 50 percentage points measured over a specified period of time. Given §382’s broad definition, an

32

ownership change could be the unintended consequence of otherwise normal market trading in the Company’s stock that is outside the Company’s control. The Stockholder Rights Plan was adopted to reduce the likelihood of such an unintended ownership change occurring. However, there can be no assurance that the Stockholder Rights Plan will prevent such an ownership change.

Under the Stockholder Rights Plan, when a person or group has obtained beneficial ownership of 4.9% or more of the Company’s common stock, or an existing holder with greater than 4.9% ownership acquires more shares representing at least an additional 0.2% of the Company’s common stock, there would be a triggering event causing potential significant dilution in the economic interest and voting power of such person or group. Such triggering event would also occur if an existing holder with greater than 4.9% ownership but less than 5.0% ownership acquires more shares that would result in such stockholder obtaining beneficial ownership of 5.0% or more of the Company’s common stock. The Board of Directors has the discretion to exempt an acquisition of common stock from the provisions of the Stockholder Rights Plan if it determines the acquisition will not jeopardize tax benefits or is otherwise in the Company’s best interests.

On February 26, 2010, Mirant announced that the Board of Directors had extended the Stockholder Rights Plan and on April 28, 2010, the Company entered into a further amendment to the Stockholders Rights Plan (the “Second Amendment”) with Mellon Investor Services LLC, as Rights Agent (the “Rights Agent”). The Second Amendment reduces the maximum term of the Stockholders Rights Plan from ten years to three years. Under the terms of the Stockholder Rights Plan (prior to the Second Amendment), the rights (as defined in the Stockholder Rights Plan) would have expired on the earliest of (i) February 25, 2020 (the “Fixed Date”), (ii) the time at which the rights are redeemed, (iii) the time at which the rights are exchanged, (iv) the repeal of §382 or any successor statute, or any other change, if the Board of Directors determines that the Stockholder Rights Plan is no longer necessary for the preservation of tax benefits, (v) the beginning of a taxable year of the Company for which the Board of Directors determines that no tax benefits may be carried forward and no built-in losses may be recognized, (vi) February 25, 2011 if stockholder approval has not been obtained, or (vii) a determination by the Board of Directors, prior to the time any person or group becomes an Acquiring Person (as defined in the Stockholder Rights Plan), that the Stockholder Rights Plan and the rights are no longer in the best interests of the Company and its stockholders. The Second Amendment amends the Fixed Date to February 25, 2013. On May 6, 2010, the Company’s stockholders approved the Stockholder Rights Plan at the Company’s 2010 Annual Meeting of Stockholders.

Provided neither has experienced an ownership change between December 31, 2009, and the closing date of the merger, each of Mirant and RRI Energy is expected separately to experience an ownership change, as defined in §382 of the Internal Revenue Code of 1986, on the merger date as a consequence of the merger. See Note A for further information on the proposed merger and the effect on the NOLs.

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J. Segment Reporting

The Company has four operating segments: Mid-Atlantic, Northeast, California and Other Operations. The Mid-Atlantic segment consists of four generating facilities located in Maryland and Virginia with total net generating capacity of 5,194 MW. The Northeast segment consists of three generating facilities located in Massachusetts and one generating facility located in New York with total net generating capacity of 2,535 MW. The California segment consists of three generating facilities located in or near the City of San Francisco, with total net generating capacity of 2,347 MW. The California segment also includes business development efforts for new generation including Mirant Marsh Landing. Other Operations includes proprietary trading and fuel oil management activities, unallocated corporate overhead, interest expense on debt at Mirant Americas Generation and Mirant North America and interest income on the Company’s invested cash balances. In the following tables, eliminations are primarily related to intercompany sales of emissions allowances and interest on intercompany notes receivable and notes payable.

Operating Segments

	Mid- Atlantic			Northeast			California		Other Operations			Eliminations			Total
	(in millions)
Three Months Ended June 30, 2010:
Operating revenues1	$	170		$	40		$	33	$	1		$	—		$	244
Cost of fuel, electricity and other products2		250			18			4		—			—			272
Gross margin		(80	)		22			29		1			—			(28	)
Operating Expenses:
Operations and maintenance		117			27			18		(30	)		—			132
Depreciation and amortization		36			6			7		4			—			53
Gain on sales of assets, net		(1	)		—			—		—			—			(1	)
Total operating expenses (income), net		152			33			25		(26	)		—			184
Operating income (loss)		(232	)		(11	)		4		27			—			(212	)
Total other expense, net		1			1			—		48			—			50
Income (loss) before income taxes		(233	)		(12	)		4		(21	)		—			(262	)
Provision for income taxes		—			—			—		1			—			1
Net income (loss)	$	(233	)	$	(12	)	$	4	$	(22	)	$	—		$	(263	)
Total assets at June 30, 2010	$	5,954		$	597		$	125	$	5,453		$	(2,283	)	$	9,846

¹ Includes unrealized losses of $205 million, $13 million and $13 million for Mid-Atlantic, Northeast and Other Operations, respectively.

² Includes unrealized losses of $112 million for Mid-Atlantic and unrealized gains of $3 million for Northeast.

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	Mid- Atlantic			Northeast			California		Other Operations			Eliminations			Total
	(in millions)
Six Months Ended June 30, 2010:
Operating revenues1	$	909		$	112		$	71	$	32		$	—		$	1,124
Cost of fuel, electricity and other products2		405			62			12		—			—			479
Gross margin		504			50			59		32			—			645
Operating Expenses:
Operations and maintenance		230			51			38		(21	)		—			298
Depreciation and amortization		69			12			15		8			—			104
Gain on sales of assets, net		(3	)		—			—		—			—			(3	)
Total operating expenses (income), net		296			63			53		(13	)		—			399
Operating income (loss)		208			(13	)		6		45			—			246
Total other expense, net		2			1			—		98			—			101
Income (loss) before income taxes		206			(14	)		6		(53	)		—			145
Provision for income taxes		—			—			—		1			—			1
Net income (loss)	$	206		$	(14	)	$	6	$	(54	)	$	—		$	144
Total assets at June 30, 2010	$	5,954		$	597		$	125	$	5,453		$	(2,283	)	$	9,846

¹ Includes unrealized gains of $133 million and $2 million for Mid-Atlantic and Northeast, respectively, and unrealized losses of $3 million for Other Operations

² Includes unrealized losses of $104 million and $16 million for Mid-Atlantic and Northeast, respectively.

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	Mid- Atlantic			Northeast		California		Other Operations			Eliminations			Total
	(in millions)
Three Months Ended June 30, 2009:
Operating revenues1	$	391		$	58	$	33	$	14		$	—		$	496
Cost of fuel, electricity and other products2		134			13		4		(1	)		—			150
Gross margin		257			45		29		15			—			346
Operating Expenses:
Operations and maintenance		101			35		24		(46	)		—			114
Depreciation and amortization		24			5		5		2			—			36
Gain on sales of assets, net		(2	)		—		—		—			—			(2	)
Total operating expenses (income), net		123			40		29		(44	)		—			148
Operating income		134			5		—		59			—			198
Total other expense, net		1			—		—		34			—			35
Income before income taxes		133			5		—		25			—			163
Provision for income taxes		—			—		—		—			—			—
Net income	$	133		$	5	$	—	$	25		$	—		$	163
Total assets at December 31, 2009	$	5,807		$	616	$	144	$	5,239		$	(2,278	)	$	9,528

¹ Includes unrealized losses of $4 million, $6 million and $34 million for Mid-Atlantic, Northeast and Other Operations, respectively.

² Includes unrealized gains of $4 million and $26 million for Mid-Atlantic and Northeast, respectively.

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	Mid- Atlantic			Northeast			California			Other Operations			Eliminations			Total
	(in millions)
Six Months Ended June 30, 2009:
Operating revenues1	$	1,063		$	210		$	68		$	36		$	(3	)	$	1,374
Cost of fuel, electricity and other products2		299			101			12			9			—			421
Gross margin		764			109			56			27			(3	)		953
Operating Expenses:
Operations and maintenance		206			67			43			(40	)		—			276
Depreciation and amortization		48			9			10			5			—			72
Gain on sales of assets, net		(10	)		(2	)		(1	)		—			(4	)		(17	)
Total operating expenses (income), net		244			74			52			(35	)		(4	)		331
Operating income		520			35			4			62			1			622
Total other expense, net		2			—			1			68			—			71
Income (loss) before income taxes		518			35			3			(6	)		1			551
Provision for income taxes		—			—			—			8			—			8
Net income (loss)	$	518		$	35		$	3		$	(14	)	$	1		$	543
Total assets at December 31, 2009	$	5,807		$	616		$	144		$	5,239		$	(2,278	)	$	9,528

¹ Includes unrealized gains of $238 million and $22 million for Mid-Atlantic and Northeast, respectively, and unrealized losses of $49 million for Other Operations.

² Includes unrealized gains of $5 million and $24 million for Mid-Atlantic and Northeast, respectively.

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K. Litigation and Other Contingencies

The Company is involved in a number of significant legal proceedings. In certain cases, plaintiffs seek to recover large and sometimes unspecified damages, and some matters may be unresolved for several years. The Company cannot currently determine the outcome of the proceedings described below or the ultimate amount of potential losses and therefore has not made any provision for such matters unless specifically noted below. Pursuant to guidance related to accounting for contingencies, management provides for estimated losses to the extent information becomes available indicating that losses are probable and that the amounts are reasonably estimable. Additional losses could have a material adverse effect on the Company’s results of operations, financial position or cash flows.

Stockholder Litigation

Mirant and its directors have been named as defendants in four putative stockholder class actions filed in the Superior Court of Fulton County, Georgia, in connection with the merger of Mirant and RRI Energy: Rosenbloom v. Cason, et al., No. 2010CV184223, filed April 13, 2010; The Vladmir Gusinsky Living Trust v. Muller, et al., No, 2010CV184331, filed April 15, 2010; Ng v. Muller, et al., No. 2010CV184449, filed April 16, 2010; and Bayne v. Muller, et al., No. 2010CV184648, filed April 21, 2010. The plaintiffs seek to enjoin the merger, alleging that Mirant’s directors breached their fiduciary duties by failing to maximize the value to be received by Mirant stockholders, by agreeing to certain deal protection measures, and by improperly considering certain directors’ personal interests in the transaction, such as future employment by the post-merger entity, in determining whether to enter into the Merger Agreement. Three of the complaints assert a claim of aiding and abetting breach of fiduciary duty against Mirant and RRI Energy; the fourth, Bayne, asserts this claim against RRI Energy alone. In three of the four actions, the plaintiffs have amended their complaints to add allegations that the defendants breached their fiduciary duties by failing to disclose certain information in the preliminary joint proxy statement/prospectus included in the Form S-4 Registration Statement related to the merger that RRI Energy filed on May 28, 2010, and amended on July 6, 2010. In addition to an order enjoining the transaction, the plaintiffs variously seek, among other things: additional disclosures regarding the merger; an accounting to plaintiffs or imposition of a constructive trust in favor of plaintiffs for all damages allegedly caused by defendants and for all profits and any special benefits obtained as a result of defendants’ purported breaches of fiduciary duties; rescission of the merger, if consummated, or an award to plaintiff of recessionary damages; and attorneys’ fees and expenses. Mirant and its directors have filed motions to dismiss each of the four amended complaints in their entirety for failure to state a claim. Mirant and its directors view the complaints to be without merit and intend to defend against them vigorously.

Scrubber Contract Issues

Mirant Mid-Atlantic is working through various issues with Stone & Webster, Inc. (“Stone & Webster”), the EPC contractor for the scrubber projects at the Chalk Point, Dickerson and Morgantown generating facilities to determine the final amount owed to Stone & Webster. Stone & Webster is estimating that the cost incurred under the EPC contract at completion will exceed the amount currently budgeted. If the costs actually incurred for the EPC work were to equal the amount projected by Stone & Webster, the costs incurred by Mirant Mid-Atlantic and Mirant Chalk Point for environmental controls to meet the Maryland Healthy Air Act would exceed the $1.674 billion currently budgeted for the total project by approximately 4%. Mirant Mid-Atlantic is questioning various costs incurred by Stone & Webster and is auditing various components of the costs incurred by Stone & Webster. Mirant Mid-Atlantic also has submitted

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owner change orders to Stone & Webster that would reduce the costs incurred under the EPC contract by removing work included in the contract specifications that ultimately was not performed or that was completed by Mirant Mid-Atlantic. Mirant Mid-Atlantic expects the final contract amount to be less than the amount projected by Stone & Webster, but cannot predict how much of a reduction will be achieved. The current budget of $1.674 billion continues to represent management’s best estimate of the Company’s total capital expenditures for compliance with the Maryland Healthy Air Act.

Environmental Matters

Brandywine Fly Ash Facility.    By letter dated November 19, 2009, the Defenders of Wildlife, Sierra Club, Patuxent Riverkeeper and Chesapeake Climate Action Network (the “Brandywine Noticing Parties”) notified Mirant, Mirant Mid-Atlantic and Mirant MD Ash Management of their intent to file suit for violations of the Clean Water Act and Maryland’s Water Pollution Control Law alleged to have occurred at the Brandywine Fly Ash Facility owned by Mirant MD Ash Management in Prince George’s County, Maryland. They contend that the operation of the Brandywine facility has resulted in unpermitted discharges of certain pollutants, including aluminum, arsenic, cadmium, copper, lead, mercury, selenium and zinc, through three outfalls and through seepage to the ground water from the disposal cells at the facility. They also assert that the discharges cause violations of certain of Maryland’s water quality criteria. Finally, the Brandywine Noticing Parties contend that Mirant MD Ash Management failed to perform certain monitoring and sampling or to file certain reports required under its existing National Pollutant Discharge Elimination System (“NPDES”) permit for the Brandywine Fly Ash Facility. The notice states that the Brandywine Noticing Parties will request the court to enjoin further violations, to impose civil penalties under the Clean Water Act of up to $37,500 per day per violation for the period after January 4, 2006, and to award them attorney’s fees. By letter dated January 15, 2010, the MDE advised Mirant Mid-Atlantic and Mirant MD Ash Management of its intent to file suit for violations of the Clean Water Act and Maryland’s Water Pollution Control Law based upon factual allegations similar to those asserted by the Brandywine Noticing Parties. Mirant disputes the allegations of violations of the Clean Water Act and Maryland’s Water Pollution Control Law made by the Brandywine Noticing Parties in the November 19, 2009, letter and by MDE in its letter of January 15, 2010.

On April 2, 2010, the MDE filed a complaint against Mirant Mid-Atlantic and Mirant MD Ash Management in the United States District Court for the District of Maryland asserting violations of the Clean Water Act and Maryland’s Water Pollution Control Law on the grounds alleged in the November 19, 2009, letter from the Brandywine Noticing Parties and the MDE’s letter of January 15, 2010. Four environmental advocacy groups have filed a motion seeking to intervene as plaintiffs in the proceeding. Mirant MD Ash Management and Mirant Mid-Atlantic have filed a motion seeking dismissal of the complaint on various grounds, including that the complaint fails to state a claim under the Clean Water Act because the discharges alleged were within the scope of possible discharges identified in filings made by Mirant MD Ash Management with the MDE to obtain its existing NPDES permit for the Brandywine Fly Ash Facility.

EPA Information Request.    In January 2001, the EPA issued a request for information to Mirant concerning the implications under the EPA’s NSR regulations promulgated under the Clean Air Act of past repair and maintenance activities at the Potomac River generating facility in Virginia and the Chalk Point, Dickerson and Morgantown generating facilities in Maryland. The requested information concerned the period of operations that predates the ownership and lease of those facilities by Mirant Potomac River, Mirant Chalk Point and Mirant Mid-Atlantic. Mirant responded fully to this request. Under the APSA, Pepco is responsible for fines and penalties arising from any violation of the NSR regulations associated with operations prior to the

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acquisition or lease of the facilities by Mirant Potomac River, Mirant Chalk Point and Mirant Mid-Atlantic. If a violation is determined to have occurred at any of the facilities, Mirant Potomac River, Mirant Chalk Point and Mirant Mid-Atlantic, as the owner or lessee of the facility, may be responsible for the cost of purchasing and installing emissions control equipment, the cost of which may be material. Mirant Chalk Point and Mirant Mid-Atlantic have installed a variety of emissions control equipment on the Chalk Point, Dickerson and Morgantown generating facilities in Maryland to comply with the Maryland Healthy Air Act, but that equipment may not include all of the emissions control equipment that could be required if a violation of the EPA’s NSR regulations is determined to have occurred at one or more of those facilities. If such a violation is determined to have occurred after the acquisition or lease of the facilities by Mirant Potomac River, Mirant Chalk Point and Mirant Mid-Atlantic or, if occurring prior to the acquisition or lease, is determined to constitute a continuing violation, Mirant Potomac River, Mirant Chalk Point or Mirant Mid-Atlantic could also be subject to fines and penalties by the state or federal government for the period after its acquisition or lease of the facility at issue, the cost of which may be material, although applicable bankruptcy law may bar such liability for periods prior to January 3, 2006, when the Plan became effective for Mirant Potomac River, Mirant Chalk Point and Mirant Mid-Atlantic.

Faulkner Fly Ash Facility.    By letter dated April 2, 2008, the Environmental Integrity Project and the Potomac Riverkeeper notified Mirant and various of its subsidiaries that they and certain individuals intended to file suit alleging that violations of the Clean Water Act were occurring at the Faulkner Fly Ash Facility owned by Mirant MD Ash Management. The April 2, 2008, letter alleged that the Faulkner facility discharged certain pollutants at levels that exceed Maryland’s water quality criteria, that it discharged certain pollutants without obtaining an appropriate NPDES permit, and that Mirant MD Ash Management failed to perform monthly monitoring required under an applicable NPDES permit. The letter indicated that the organizations intended to file suit to enjoin the violations alleged, to obtain civil penalties for past violations occurring after January 3, 2006, and to recover attorneys’ fees. Mirant disputes the allegations of violations of the Clean Water Act made by the two organizations in the April 2, 2008, letter.

In May 2008, the MDE filed a complaint in the Circuit Court for Charles County, Maryland, against Mirant MD Ash Management and Mirant Mid-Atlantic. The complaint alleges violations of Maryland’s water pollution laws similar to those asserted in the April 2, 2008, letter from the Environmental Integrity Project and the Potomac Riverkeeper. The MDE complaint requests that the court (1) prohibit continuation of the alleged unpermitted discharges, (2) require Mirant MD Ash Management and Mirant Mid-Atlantic to cease from disposing of any further coal combustion byproducts at the Faulkner Fly Ash Facility and close and cap the existing disposal cells within one year and (3) assess civil penalties of up to $10,000 per day for each violation. The discharges that are the subject of the MDE’s complaint result from a leachate treatment system installed by Mirant MD Ash Management in accordance with a December 18, 2000, Complaint and Consent Order (the “December 2000 Consent Order”) entered by the Maryland Secretary of the Environment, Water Management Administration pursuant to an agreement between the MDE and Pepco, the previous owner of the Faulkner Fly Ash Facility. Mirant MD Ash Management and Mirant Mid-Atlantic on July 23, 2008, filed a motion seeking dismissal of the MDE complaint, arguing that the discharges are permitted by the December 2000 Consent Order. In September 2009, the court denied a motion by Environmental Integrity Project seeking to intervene as a party to the suit, and the Environmental Integrity Project has appealed that ruling.

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Suit Regarding Chalk Point Emissions.    On June 25, 2009, the Chesapeake Climate Action Network and four individuals filed a complaint against Mirant Mid-Atlantic and Mirant Chalk Point in the United States District Court for the District of Maryland. The plaintiffs allege that Mirant Chalk Point has violated the Clean Air Act and Maryland environmental regulations by failing to install controls to limit emissions of particulate matter on unit 3 and unit 4 of the Chalk Point generating facility, which at times burn residual fuel oil. The plaintiffs seek to enjoin the alleged violations, to obtain civil penalties of up to $32,500 per day for past noncompliance and to recover attorneys’ fees. Mirant Mid-Atlantic and Mirant Chalk Point dispute the plaintiffs’ allegations of violations of the Clean Air Act and Maryland environmental regulations. On October 13, 2009, Mirant Mid-Atlantic and Mirant Chalk Point filed a motion seeking dismissal of the complaint on the grounds that it was barred (1) under principles of res judicata by the dismissal with prejudice in January 2007 of similar claims filed by environmental advocacy organizations asserting that emissions from Chalk Point units 3 and 4 violated the Clean Air Act and (2) by actions taken by the MDE currently and over a number of years to ensure compliance by Chalk Point units 3 and 4 with regulations under the Clean Air Act and Maryland law limiting emissions of particulate matter.

Mirant Mid-Atlantic and Mirant Chalk Point 2008 Consent Decree.    In March 2008, Mirant Mid-Atlantic, Mirant Chalk Point and the MDE entered into a consent decree that provided stipulated penalties for various future violations of Maryland regulations related to emissions from the Chalk Point, Dickerson and Morgantown generating facilities. That consent decree provided in part that if emissions from the stacks for Morgantown units 1 and 2, the common stack for Chalk Point units 1 and 2, or the common stack for Dickerson units 1, 2 and 3 failed to achieve compliance with certain opacity limits in the period July 1, 2009 through December 31, 2009, a stipulated penalty would apply of $1,000 per day of violation. In February 2010, the MDE notified Mirant Mid-Atlantic that it was seeking payment of a stipulated penalty of $134,000 for failures to comply with these opacity limits during the third quarter of 2009. In April 2010, the MDE notified Mirant Mid-Atlantic and Mirant Chalk Point that it was seeking payment of a stipulated penalty of $91,000 for exceedances of the opacity limits in the fourth quarter of 2009. Mirant Mid-Atlantic has paid the stipulated penalties.

Mirant Mid-Atlantic NOV Regarding Reporting of Ozone Season NOx Emissions.    In March 2010, the MDE issued an NOV to Mirant Mid-Atlantic asserting that it had failed in 2009 to comply with state regulations requiring it to notify MDE when the Chalk Point, Dickerson and Morgantown generating facilities had exceeded 80% of the applicable limitation on ozone season NOx emissions. The NOV states that such a violation can result in a civil penalty of up to $25,000 for each day of violation.

Mirant Potomac River NOV Regarding Particulate Matter Continuous Emissions Monitoring System.    By letter dated April 6, 2010, the Virginia DEQ issued an NOV to Mirant Potomac River asserting that it had failed to include required particulate matter continuous emissions monitoring system (“PM CEMS”) data in compliance reports submitted for the second half and fourth quarter of 2009. The NOV alleges that when the PM CEMS data were subsequently provided, they indicated that particulate matter emissions may have occurred above the permitted limit. Mirant Potomac River thinks that the PM CEMS equipment was not functioning properly and that the data indicating exceedances of the emissions limit for particulate matter are erroneous. The NOV states that such violations can result in various civil penalties, including a civil penalty of up to $32,500 per day for each violation.

Mirant Potomac River NOV Regarding Opacity Excursions.    By letter dated May 12, 2010, the Virginia DEQ issued an NOV to Mirant Potomac River asserting that in four six-minute intervals in February 2010 the opacity readings from one of the stacks at the Potomac River generating facility exceeded the applicable limit. On July 8, 2010, the Virginia DEQ issued

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another NOV to Mirant Potomac River asserting that on June 21, 2010, the Potomac River generating facility exceeded its permitted opacity limits for three six-minute intervals. The NOVs state that such violations can result in various civil penalties, including a civil penalty of up to $32,500 per day for each violation.

Mirant Mid-Atlantic, Mirant Chalk Point and Mirant Potomac River Amended NOx Consent Decree.    In 2006, Mirant Mid-Atlantic, Mirant Chalk Point, Mirant Potomac River, the MDE, the Virginia DEQ, the EPA and the United States Department of Justice (“DOJ”) signed a consent decree that was entered by the court in 2007 to address alleged NOx exceedances from Mirant Potomac River in 2003. Among other things, the consent decree provided more stringent NOx emission limits for the Morgantown units and various reporting requirements along with stipulated penalties for future violations. In April 2010, the DOJ notified Mirant Mid-Atlantic that it was seeking a stipulated penalty of $168,000 based upon unit 2 of the Morgantown generating facility exceeding the 30-day rolling average emission rate limit specified by the consent decree on 16 days in November 2009, the failure to provide a written report of those exceedances within ten days and the late submission of NOx data for the fourth quarter of 2008. The DOJ subsequently reduced the stipulated penalty to $163,000, and Mirant Mid-Atlantic has paid that amount.

Montgomery County Carbon Emissions Levy.    Mirant Mid-Atlantic’s Dickerson generating facility is located in Montgomery County, Maryland. The Montgomery County Council enacted a law (the “CO2 Levy”) effective May 29, 2010, that imposes a levy on major emitters of CO2 in Montgomery County of $5 per ton of CO2 emitted. The CO2 Levy defines a major emitter of CO2 in Montgomery County to be a source emitting 1 million tons or more annually of CO2. Based upon historical emissions, the Dickerson generating facility is expected to fall within the definition of a major emitter, and is currently the only facility in Montgomery County that would meet the criteria to be a major emitter. Mirant estimates that the CO2 Levy will impose an additional $10 million to $15 million per year in levies owed to Montgomery County. On June 1, 2010, Mirant Mid-Atlantic filed an action against Montgomery County in the United States District Court for the District of Maryland seeking a determination that the CO2 Levy is unlawful. In its complaint, Mirant Mid-Atlantic contends that the CO2 Levy violates its equal protection and due process rights, imposes an unconstitutional excessive fine, is an unconstitutional bill of attainder, constitutes a prohibited special law under the Maryland Constitution, and is preempted by Maryland law and the RGGI, an interstate compact to which Maryland is a party. Montgomery County filed a motion to dismiss, arguing that the CO2 Levy is a tax and that the district court lacks the jurisdiction to hear challenges to such a tax under the federal Tax Injunction Act. On July 12, 2010, the district court ruled that the CO2 Levy is a tax rather than a fee as argued by Mirant Mid-Atlantic, and it dismissed the suit for lack of jurisdiction. Mirant Mid-Atlantic has appealed that ruling to the United States Court of Appeals for the Fourth Circuit. If the district court’s ruling is not reversed on appeal, Mirant Mid-Atlantic intends to refile its legal challenges to the CO2 Levy in the Maryland state courts.

Riverkeeper Suit Against Mirant Lovett.    On March 11, 2005, Riverkeeper, Inc. filed suit against Mirant Lovett in the United States District Court for the Southern District of New York under the Clean Water Act. The suit alleges that Mirant Lovett failed to implement a marine life exclusion system at its former Lovett generating facility and to perform monitoring for the exclusion of certain aquatic organisms from the facility’s cooling water intake structures in violation of Mirant Lovett’s water discharge permit issued by the State of New York. The plaintiff requested the court to impose civil penalties of $32,500 per day of violation and to award the plaintiff attorneys’ fees. Mirant Lovett’s view is that it complied with the terms of its water discharge permit, as amended by a Consent Order entered June 29, 2004. Mirant Lovett filed a motion seeking dismissal of the suit on the grounds that it complied with the terms of its water

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discharge permit, the closure of the Lovett generating facility in April 2008 moots the plaintiff’s request for injunctive relief, and the discharge in bankruptcy received by Mirant Lovett in 2007 bars any claim for penalties. On December 15, 2009, the district court granted in part and denied in part Mirant Lovett’s motion to dismiss. The court dismissed the plaintiff’s claims for injunctive relief and for penalties for any period prior to Mirant Lovett’s emergence from bankruptcy on October 2, 2007. It allowed to go forward claims alleging that Mirant Lovett violated its water discharge permit by not implementing the marine life exclusion system between the later of February 23, 2008 or when ice conditions on the Hudson River allowed for the system’s safe deployment and April 19, 2008, when the Lovett generating facility ceased operation, concluding that the June 29, 2004 Consent Order did not have the effect of modifying the water discharge permit.

Chapter 11 Proceedings

On July 14, 2003, and various dates thereafter, Mirant Corporation and certain of its subsidiaries (collectively, the “Mirant Debtors”) filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court. Mirant and most of the Mirant Debtors emerged from bankruptcy on January 3, 2006, when the Plan became effective. The remaining Mirant Debtors (Mirant New York, Mirant Bowline, Mirant Lovett, Mirant NY-Gen and Hudson Valley Gas) emerged from bankruptcy on various dates in 2007. As of June 30, 2010, approximately 837,000 of the shares of Mirant common stock to be distributed under the Plan had not yet been distributed and have been reserved for distribution with respect to claims disputed by the Mirant Debtors that have not been resolved. Under the terms of the Plan, upon the resolution of such a disputed claim, the claimant will receive the same pro rata distributions of Mirant common stock, cash, or both common stock and cash as previously allowed claims, regardless of the price at which Mirant common stock is trading at the time the claim is resolved.

To the extent the aggregate amount of the payouts determined to be due with respect to disputed claims ultimately exceeds the amount of the funded claim reserve, Mirant would have to issue additional shares of common stock to address the shortfall, which would dilute existing Mirant stockholders, and Mirant and Mirant Americas Generation would have to pay additional cash amounts as necessary under the terms of the Plan to satisfy such pre-petition claims. If Mirant is required to issue additional shares of common stock to satisfy unresolved claims, certain parties who received approximately 21 million of the 300 million shares of common stock distributed under the Plan are entitled to receive additional shares of common stock to avoid dilution of their distributions under the Plan.

Actions Pursued by MC Asset Recovery

Under the Plan, the rights to certain actions filed by Mirant and various of its subsidiaries against third parties were transferred to MC Asset Recovery. MC Asset Recovery, although wholly-owned by Mirant, is governed by managers who are independent of Mirant and its other subsidiaries. Under the Plan, any cash recoveries obtained by MC Asset Recovery from the actions transferred to it, net of fees and costs incurred in prosecuting the actions, are to be paid to the unsecured creditors of Mirant Corporation in the Chapter 11 proceedings and the holders of the equity interests in Mirant immediately prior to the effective date of the Plan except where such a recovery results in an allowed claim in the bankruptcy proceedings, as described below. MC Asset Recovery is a disregarded entity for income tax purposes, and Mirant is responsible for income taxes related to its operations. The Plan provides that Mirant may not reduce payments to be made to unsecured creditors and former holders of equity interests from recoveries obtained by MC Asset Recovery for the taxes owed by Mirant, if any, on any net recoveries up to $175 million. If the aggregate recoveries exceed $175 million net of costs, then under the Plan Mirant may

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reduce the payments to be made to such unsecured creditors and former holders of equity interests by the amount of any taxes it will owe or NOLs utilized with respect to taxable income resulting from the amount in excess of $175 million.

The Plan and MC Asset Recovery’s Limited Liability Company Agreement also obligated Mirant to make contributions to MC Asset Recovery as necessary to pay professional fees and certain other costs reasonably incurred by MC Asset Recovery, including expert witness fees and other costs of the actions transferred to MC Asset Recovery. In June 2008, Mirant and MC Asset Recovery, with the approval of the Bankruptcy Court, agreed to limit the total amount of funding to be provided by Mirant to MC Asset Recovery to $67.8 million, and the amount of such funding obligation not already incurred by Mirant at that time was fully accrued. Mirant was entitled to be repaid the amounts it funded from any recoveries obtained by MC Asset Recovery before any distribution was made from such recoveries to the unsecured creditors of Mirant Corporation and the former holders of equity interests.

On March 31, 2009, The Southern Company (“Southern Company”) and MC Asset Recovery entered into a settlement agreement (the “MCAR Settlement”) resolving claims asserted by MC Asset Recovery in MC Asset Recovery, LLC v. Southern Company, a suit that was pending in the Northern District of Georgia (the “Southern Company Litigation”). Southern Company filed a Form 8-K dated April 2, 2009, that described the settlement and the claims that it resolved. Southern Company and MC Asset Recovery finalized certain terms of the settlement on June 8, 2009. Pursuant to the settlement, Southern Company paid $202 million to MC Asset Recovery in settlement of all claims asserted in the Southern Company Litigation. MC Asset Recovery used a portion of that payment to pay fees owed to the managers of MC Asset Recovery and other expenses of MC Asset Recovery not previously funded by Mirant, and it retained $47 million from that payment to fund future expenses and to apply against unpaid expenditures. MC Asset Recovery distributed the remaining $155 million to Mirant. In accordance with the Plan, Mirant retained approximately $52 million of that distribution as reimbursement for the funds it had provided to MC Asset Recovery and costs it incurred related to MC Asset Recovery that had not been previously reimbursed. The Company recognized the $52 million as a reduction of operations and maintenance expense for the year ended December 31, 2009. Pursuant to MC Asset Recovery’s Limited Liability Company Agreement and an order of the Bankruptcy Court dated October 31, 2006, Mirant distributed approximately $1.7 million to the managers of MC Asset Recovery. In September 2009, the remaining approximately $101 million of the amount recovered by MC Asset Recovery was distributed pursuant to the terms of the Plan. Following these distributions, Mirant has no further obligation to provide funding to MC Asset Recovery. As a result, Mirant reversed its remaining accrual of $10 million of funding obligations as a reduction in operations and maintenance expense for the year ended December 31, 2009. The Company does not expect to owe any taxes related to the MC Asset Recovery settlement with Southern Company. MC Asset Recovery had $37 million and $39 million of assets included in funds on deposit and liabilities included in accounts payable and accrued liabilities in its unconsolidated balance sheets at June 30, 2010 and December 31, 2009, respectively.

One of the two remaining actions transferred to MC Asset Recovery seeks to recover damages for fraudulent transfers that occurred prior to the filing of Mirant’s bankruptcy proceedings. That action alleges that the defendants engaged in transactions with Mirant at a time when it was insolvent or was rendered insolvent by the resulting transfers and that it did not receive fair value for those transfers. If MC Asset Recovery succeeds in obtaining any recoveries on these avoidance claims transferred to it, the party or parties from which such recoveries are obtained could seek to file claims in Mirant’s bankruptcy proceedings. Mirant would vigorously contest the allowance of any such claims on the ground that, among other things, the recovery of such amounts does not reinstate any enforceable pre-petition obligation that could give rise to a claim. If such a claim

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were to be allowed by the Bankruptcy Court as a result of a recovery by MC Asset Recovery, then the party receiving the claim would be entitled to either Mirant common stock or such stock and cash as provided under the Plan. Under such circumstances, the order entered by the Bankruptcy Court on December 9, 2005, confirming the Plan provides that Mirant would retain from the net amount recovered an amount equal to the dollar amount of the resulting allowed claim rather than distribute such amount to the unsecured creditors and former equity holders as described above.

California and Western Power Markets

FERC Refund Proceedings Arising Out of California Energy Crisis.    High prices experienced in California and western wholesale electricity markets in 2000 and 2001 caused various purchasers of electricity in those markets to initiate proceedings seeking refunds. Several of those proceedings remain pending either before the FERC or on appeal to the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). The proceedings that remain pending include proceedings (1) ordered by the FERC on July 25, 2001, (the “FERC Refund Proceedings”) to determine the amount of any refunds and amounts owed for sales made by market participants, including Mirant Americas Energy Marketing, in the CAISO or the Cal PX markets from October 2, 2000, through June 20, 2001 (the “Refund Period”), (2) ordered by the FERC to determine whether there had been unjust and unreasonable charges for spot market bilateral sales in the Pacific Northwest from December 25, 2000, through June 20, 2001 (the “Pacific Northwest Proceeding”), and (3) arising from a complaint filed in 2002 by the California Attorney General that sought refunds for transactions conducted in markets administered by the CAISO and the Cal PX outside the Refund Period set by the FERC and for transactions between the DWR and various owners of generation and power marketers, including Mirant Americas Energy Marketing and subsidiaries of Mirant Americas Generation. Various parties appealed the FERC orders related to these proceedings to the Ninth Circuit seeking review of a number of issues, including changing the Refund Period to include periods prior to October 2, 2000, and expanding the sales of electricity subject to potential refund to include bilateral sales made to the DWR and other parties. Although various of these appeals remain pending, the Ninth Circuit ruled in orders issued on August 2, 2006, and September 9, 2004, that the FERC should consider further whether to grant relief for sales of electricity made in the CAISO and Cal PX markets prior to October 2, 2000, at rates found to be unjust, and, in the proceeding initiated by the California Attorney General, what remedies, including potential refunds, are appropriate where entities, including Mirant Americas Energy Marketing, purportedly did not comply with certain filing requirements for transactions conducted under market-based rate tariffs.

On January 14, 2005, Mirant and certain of its subsidiaries (the “Mirant Settling Parties”) entered into a Settlement and Release of Claims Agreement (the “California Settlement”) with PG&E, Southern California Edison Company, San Diego Gas and Electric Company, the CPUC, the DWR, the EOB and the Attorney General of the State of California (collectively, the “California Parties”). The California Settlement was approved by the FERC on April 13, 2005, and became effective on April 15, 2005, upon its approval by the Bankruptcy Court. The California Settlement resulted in the release of most of Mirant Americas Energy Marketing’s potential liability (1) in the FERC Refund Proceedings for sales made in the CAISO or the Cal PX markets, (2) in the Pacific Northwest Proceeding, and (3) in any proceedings at the FERC resulting from the complaint filed in 2002 by the California Attorney General. Based on the California Settlement, on April 15, 2008, the FERC dismissed Mirant Americas Energy Marketing and the other subsidiaries of the Company from the proceeding initiated by the complaint filed in 2002 by the California Attorney General.

Under the California Settlement, the California Parties and those other market participants who have opted into the settlement have released the Mirant Settling Parties, including Mirant

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Americas Energy Marketing, from any liability for refunds related to sales of electricity and natural gas in the western markets from January 1, 1998, through July 14, 2003. Also, the California Parties have assumed the obligation of Mirant Americas Energy Marketing to pay any refunds determined by the FERC to be owed by Mirant Americas Energy Marketing to other parties that do not opt into the settlement for transactions in the CAISO and Cal PX markets during the Refund Period, with the liability of the California Parties for such refund obligation limited to the amount of certain receivables assigned by Mirant Americas Energy Marketing to the California Parties under the California Settlement. The settlement did not relieve Mirant Americas Energy Marketing of liability for any refunds that the FERC determines it to owe (1) to participants in the Cal PX and CAISO markets that did not opt into the settlement for periods outside the Refund Period and (2) to participants in bilateral transactions with Mirant Americas Energy Marketing that did not opt into the settlement.

Resolution of the refund proceedings that remain pending before the FERC or that currently are on appeal to the Ninth Circuit could ultimately result in the FERC concluding that the prices received by Mirant Americas Energy Marketing in some transactions occurring in 2000 and 2001 should be reduced. The Company’s view is that the bulk of any obligations of Mirant Americas Energy Marketing to make refunds as a result of sales completed prior to July 14, 2003, in the CAISO or Cal PX markets or in bilateral transactions either have been addressed by the California Settlement or have been resolved as part of Mirant Americas Energy Marketing’s bankruptcy proceedings. To the extent that Mirant Americas Energy Marketing’s potential refund liability arises from contracts that were transferred to Mirant Energy Trading as part of the transfer of the trading and marketing business under the Plan, Mirant Energy Trading may have exposure to any refund liability related to transactions under those contracts.

Complaint Challenging Capacity Rates Under the RPM Provisions of PJM’s Tariff

On May 30, 2008, a variety of parties, including the state public utility commissions of Maryland, Pennsylvania, New Jersey and Delaware, ratepayer advocates, certain electric cooperatives, various groups representing industrial electricity users, and federal agencies (the “RPM Buyers”), filed a complaint with the FERC asserting that capacity auctions held to determine capacity payments under the reliability pricing model (“RPM”) provisions of PJM’s tariff had produced rates that were unjust and unreasonable. PJM conducted the capacity auctions that are the subject of the complaint to set the capacity payments in effect under the RPM provisions of its tariff for twelve month periods beginning June 1, 2008, June 1, 2009, and June 1, 2010. The RPM Buyers allege that (i) the times between when the auctions were held and the periods that the resulting capacity rates would be in effect were too short to allow competition from new resources in the auctions, (ii) the administrative process established under the RPM provisions of PJM’s tariff was inadequate to restrain the exercise of market power by the withholding of capacity to increase prices, and (iii) the locational pricing established under the RPM provisions of PJM’s tariff created opportunities for sellers to raise prices while serving no legitimate function. The RPM Buyers asked the FERC to reduce significantly the capacity rates established by the capacity auctions and to set June 1, 2008, as the date beginning on which any rates found by the FERC to be excessive would be subject to refund. If the FERC were to reduce the capacity payments set through the capacity auctions to the rates proposed by the RPM Buyers, the capacity revenue the Company has received or expects to receive for the period June 1, 2008 through May 31, 2011, would be reduced by approximately $600 million. On September 19, 2008, the FERC issued an order dismissing the complaint. The FERC found that no party had violated the RPM provisions of PJM’s tariff and that the prices determined during the auctions were in accordance with the tariff’s provisions. The RPM Buyers filed a request for rehearing, which the FERC denied on June 18, 2009. Certain of the RPM Buyers have appealed

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the orders entered by the FERC to the United States Court of Appeals for the Fourth Circuit. That appeal has been transferred to the United States Court of Appeal for the District of Columbia Circuit.

Other Legal Matters

The Company is involved in various other claims and legal actions arising in the ordinary course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company’s results of operations, financial position or cash flows.

L. Settlements and Other Charges

Potomac River Settlement

In July 2008, the City of Alexandria, Virginia (in which the Potomac River generating facility is located) and Mirant Potomac River entered into an agreement containing certain terms that were included in a proposed comprehensive state operating permit for the Potomac River generating facility issued by the Virginia DEQ that month. Under that agreement, Mirant Potomac River committed to spend $34 million over several years to reduce particulate emissions. The $34 million was placed in escrow and included in funds on deposit and other noncurrent assets in the accompanying unaudited condensed consolidated balance sheets. At June 30, 2010, the balance in the escrow account was approximately $33 million and is included in the Company’s estimated capital expenditures. On July 30, 2008, the Virginia State Air Pollution Control Board approved the comprehensive permit with terms consistent with the agreement between Mirant Potomac and the City of Alexandria, and the Virginia DEQ issued the permit on July 31, 2008.

Prior to the issuance of the comprehensive state operating permit in July 2008, the Potomac River generating facility operated under a state operating permit issued June 1, 2007, that significantly restricted the facility’s operations by imposing stringent limits on its SO2 emissions and constraining unit operations so that no more than three of the facility’s five units could operate at one time. In compliance with the comprehensive permit, in 2008 Mirant Potomac River merged the stacks for units 3, 4 and 5 into one stack at the Potomac River generating facility and, in January 2009, Mirant Potomac River merged the stacks for units 1 and 2 into one stack. With the completion of the stack mergers, the permit issued in July 2008 does not constrain operations of the Potomac River generating facility below historical operations and allows operation of all five units at one time. In January 2010, the Virginia DEQ informed Mirant Potomac River that in light of the decision of the Virginia Court of Appeals vacating Virginia’s rules restricting trading in CAIR allowances, the Virginia DEQ has determined that issuing a state operating permit to limit NOx emissions during the Ozone Season is warranted. In July 2010, the Virginia DEQ issued a permit that limits NOx emissions from Mirant Potomac River’s generating facility to 890 tons during the Ozone Season that the Virginia DEQ asserts is effective for the 2010 Ozone Season. The Company thinks that at current market prices the new limit on NOx emissions during the Ozone Season will not have a material effect upon the Company’s results of operations, financial position or cash flows.

Mirant Potrero Settlement Agreement with City of San Francisco

Mirant Potrero and the City and County of San Francisco, California entered into a Settlement Agreement (the “Potrero Settlement”) dated August 13, 2009. The Potrero Settlement became effective in November 2009 upon its approval by the City’s Board of Supervisors and Mayor. The Potrero Settlement addressed certain disputes that had arisen between the City of

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San Francisco and Mirant Potrero related to the Potrero generating facility. Among other things, the Potrero Settlement obligates Mirant Potrero to close permanently each of the remaining units of the Potrero generating facility at the end of the year in which the CAISO determines that such unit is no longer needed to maintain the reliable operation of the electricity system. The agreement also bars Mirant Potrero from building any additional generating facilities on the site of the Potrero generating facility. Mirant Potrero expects that the completion of the TransBay Cable project, which is an underwater electric transmission cable in the San Francisco Bay, will decrease the need for generating resources in the City of San Francisco. While the TransBay Cable project has encountered some delays in startup, it is expected to become operational in 2010. As a result, Mirant Potrero expects the CAISO to determine in 2010 that unit 3 of the Potrero generating facility is no longer needed for reliability purposes and that unit 3 will close by the end of 2010. By letter dated January 12, 2010, the CAISO advised the City of San Francisco that the expected replacement in 2010 of two underground transmission cables, if completed successfully, would allow the CAISO not to require the continued operation of the remaining units of the Potrero generating facility, units 4, 5 and 6, for reliability purposes after 2010. The CAISO will not determine which units of the Potrero generating facility are required to operate in 2011 for reliability purposes until the fall of 2010. If none of the units of the Potrero generating facility will be required to operate for reliability purposes after 2010, then all of the units will close by the end of 2010.

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Item 2. Management’s Discussion and Analysis of Results of Operations and Financial Condition

The following discussion should be read in conjunction with our unaudited condensed consolidated financial statements and the notes thereto, which are included elsewhere in this report.

Overview

We are a competitive energy company that produces and sells electricity in the United States. We own or lease 10,076 MW of net electric generating capacity in the Mid-Atlantic and Northeast regions and in California. We also operate an integrated asset management and energy marketing organization based in Atlanta, Georgia.

Proposed Merger with RRI Energy

On April 11, 2010, we entered into the Merger Agreement with RRI Energy and RRI Energy Holdings, Inc. (“Merger Sub”), a direct and wholly-owned subsidiary of RRI Energy. Upon the terms and subject to the conditions set forth in the Merger Agreement, which has been unanimously approved by each of the boards of directors of Mirant and RRI Energy, Merger Sub will merge with and into Mirant, with Mirant continuing as the surviving corporation and a wholly-owned subsidiary of RRI Energy. The merger is intended to qualify as a tax-free reorganization under the Internal Revenue Code of 1986, as amended, so that none of RRI Energy, Merger Sub, Mirant or any of the Mirant stockholders generally will recognize any gain or loss in the transaction, except that Mirant stockholders will recognize gain with respect to cash received in lieu of fractional shares of RRI Energy common stock. Pursuant to the Merger Agreement, upon the closing of the merger, each issued and outstanding share of Mirant common stock, including grants of restricted common stock, will automatically be converted into shares of common stock of RRI Energy based on the Exchange Ratio. Additionally, upon the closing of the merger, RRI Energy will be renamed GenOn Energy. Mirant stock options and other equity awards will generally convert upon completion of the merger into stock options and equity awards with respect to RRI Energy common stock, after giving effect to the Exchange Ratio. As a result of the merger, Mirant stockholders will own approximately 54% of the equity of the combined company and RRI Energy stockholders will own approximately 46%.

Completion of the merger is subject to various customary conditions, including, among others, (i) approval by RRI Energy stockholders of the issuance of RRI Energy common stock in the merger, (ii) adoption of the Merger Agreement by Mirant stockholders, (iii) effectiveness of the registration statement for the RRI Energy common stock to be issued in the merger, (iv) approval of the listing on the NYSE of the RRI Energy common stock to be issued in the merger, (v) expiration or termination of the applicable Hart-Scott-Rodino Act waiting period, (vi) receipt of all required regulatory approvals and (vii) consummation by GenOn Energy of debt financings in an amount sufficient to fund the refinancing transactions contemplated by, and on terms consistent with, the Merger Agreement.

Among the refinancing transactions noted above, the completion of the merger is conditioned on GenOn Energy consummating certain debt financing transactions, including securing a new revolving credit facility. The new GenOn Energy debt financing and revolving credit facility will be used, in part, to redeem the Mirant North America senior notes and to repay and terminate the Mirant North America term loan and revolving credit facility. See Note D to our unaudited condensed consolidated financial statements contained elsewhere in this report and “Liquidity and Capital Resources” in this Item 2 for additional information on Mirant North America’s debt.

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Mirant and RRI Energy are in the process of arranging mutually acceptable debt financing as contemplated under the Merger Agreement. Mirant, together with RRI Energy, have entered into agreements pursuant to which financial institutions have committed to provide a $750 million to $1.0 billion five-year revolving credit facility, subject to customary conditions to closing, including:

• the consummation of the merger;

• the receipt of at least $1.9 billion in gross cash proceeds from the issuance of senior unsecured notes and term loan borrowings; and

• the closing of the credit facility on or before December 31, 2010.

The revolving credit facility and term loan facility, and the subsidiary guarantees thereof, will be senior secured obligations of RRI Energy (proposed to be renamed GenOn Energy in connection with the merger) and certain of its subsidiaries; provided, however, that Mirant Americas Generation’s subsidiaries (other than Mirant Mid-Atlantic and Mirant Energy Trading and their subsidiaries) will guarantee the revolving credit facility and term loan only to the extent permitted under the indenture for the senior notes of Mirant Americas Generation. The participating financial institutions, or affiliates thereof, have also agreed:

• to use commercially reasonable efforts to arrange a syndication of a $500 million term loan; and

• to act as underwriters or placement agents in connection with the proposed offering of senior unsecured notes.

Mirant and RRI Energy anticipate closing the proposed note offering into escrow. Upon consummation of the merger and satisfaction of the other escrow conditions, such notes will be senior unsecured obligations of GenOn Energy.

Both Mirant and RRI Energy are subject to restrictions on their ability to solicit alternative acquisition proposals, provide information and engage in discussions with third parties, except under limited circumstances to permit Mirant’s and RRI Energy’s boards of directors to comply with their fiduciary duties. The Merger Agreement contains certain termination rights for both Mirant and RRI Energy, and further provides that, upon termination of the Merger Agreement under specified circumstances, Mirant or RRI Energy may be required to pay the other a termination fee of either $37.15 million or $57.78 million. Further information concerning the proposed merger was included in a joint proxy statement/prospectus contained in the registration statement on Form S-4 filed by RRI Energy with the SEC on May 28, 2010, and amended on July 6, 2010.

On July 15, 2010, Mirant and RRI Energy each received a request for additional information (commonly referred to as a “second request”) from the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act with respect to the merger. On July 20, 2010, the New York State Public Service Commission issued an order declaring that it will not further review the merger. On August 2, 2010, the FERC issued an order approving the merger.

Provided neither has experienced an ownership change between December 31, 2009, and the closing date of the merger, each of Mirant and RRI Energy is expected separately to experience an ownership change, as defined in Section (“§”) 382 of the Internal Revenue Code of 1986, on the merger date as a consequence of the merger. Immediately following the merger, Mirant and RRI Energy will be members of the same consolidated federal income tax group. The ability of this consolidated tax group to deduct the pre-merger NOL carry forwards of Mirant and RRI Energy against the post-merger taxable income of the group will be substantially limited as a result of these ownership changes. See Note A to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information on the proposed merger and the effect on the NOLs.

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The merger is expected to be completed by the end of 2010. Prior to the completion of the merger, Mirant and RRI Energy will continue to operate as independent companies. Except for specific references to the proposed merger and the associated debt financing transactions, the disclosures contained in this report on Form 10-Q relate solely to Mirant.

For further information concerning the proposed merger see Item 1A. “Risk Factors.”

Hedging Activities

We hedge economically a substantial portion of our Mid-Atlantic coal-fired baseload generation and certain of our Mid-Atlantic and Northeast gas and oil-fired generation through OTC transactions. However, we generally do not hedge our intermediate and peaking units for tenors greater than 12 months. We hedge using products which we expect to be effective to mitigate the price risk of our generation. However, as a result of market liquidity limitations, our hedges often are not an exact match for the generation being hedged, and, we then have some risks resulting from price differentials for different delivery points and for implied differences in heat rates when we hedge power using natural gas. A majority of our hedges are financial swap transactions between Mirant Mid-Atlantic and financial counterparties that are senior unsecured obligations of such parties and do not require either party to post cash collateral either for initial margin or for securing exposure as a result of changes in power or natural gas prices. At July 13, 2010, our aggregate hedge levels based on expected generation for the remainder of 2010 and subsequent years were as follows:

	Aggregate Hedge Levels Based on Expected Generation
	2010		2011		2012		2013		2014
Power	100	%	70	%	62	%	33	%	33	%
Fuel	77	%	70	%	40	%	9	%	—	%

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) which was enacted in July 2010 in response to the global financial crisis, increases the regulation of transactions involving OTC derivative financial instruments. The statute provides that standardized swap transactions between dealers and large market participants will have to be cleared and traded on an exchange or electronic platform. Although the legislative history of the Dodd-Frank Act, including a letter from Senators Dodd and Lincoln, provides strong evidence that market participants, such as Mirant, which utilize OTC derivative financial instruments to hedge commercial risks, are not to be subject to these clearing and other requirements, it is uncertain what the implementing regulations to be issued by the Commodities Futures Trading Commission (“CFTC”) will provide. Greater regulation of OTC derivative financial instruments could materially affect our ability to hedge economically our generation by reducing liquidity in the energy and commodity markets, increasing hedge pricing through the imposition of capital requirements on our swap counterparties and, if we are required to clear such transactions on exchanges, by significantly increasing our requirements for cash collateral.

Capital Expenditures and Capital Resources

For the six months ended June 30, 2010, we invested $157 million for capital expenditures, excluding capitalized interest, of which $77 million related to compliance with the Maryland Healthy Air Act. As of June 30, 2010, we have invested approximately $1.482 billion for capital expenditures related to compliance with the Maryland Healthy Air Act. As the final part of our compliance with the Maryland Healthy Air Act, we placed our scrubbers in service in the fourth quarter of 2009. Provisions in our construction contracts for the scrubbers provide for certain payments to be made after final completion of the project. The current budget of $1.674 billion

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continues to represent our best estimate of the total capital expenditures for compliance with the Maryland Healthy Air Act. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for further discussion of scrubber contract issues.

For the six months ended June 30, 2010, our capitalized interest was approximately $3 million compared to $33 million for the same period in 2009. The decrease in capitalized interest from prior periods is a result of placing our scrubbers in service in the fourth quarter of 2009.

The following table details the expected timing of payments for our estimated capital expenditures, excluding capitalized interest, for the remainder of 2010 and for 2011 (in millions):

	2010		2011
Maryland Healthy Air Act	$	192	$	—
Other environmental		7		33
Maintenance		45		45
Marsh Landing generating facility		45		185
Other construction		18		42
Other		13		11
Total	$	320	$	316

We expect that available cash and future cash flows from operations will be sufficient to fund these capital expenditures. However, we plan to fund a substantial portion of the capital expenditures for the Marsh Landing generating facility with project financing.

Scrubber Operating Expenses

Our capital expenditures related to compliance with the Maryland Healthy Air Act included the installation of scrubbers in the fourth quarter of 2009 at our Chalk Point, Dickerson and Morgantown coal-fired units. We incur additional operations and maintenance expenses associated with operating the scrubbers. Examples of these costs include limestone, water and chemicals used during the removal of SO2 emissions, and handling and marketing related to the recyclable gypsum byproduct created during the scrubbing process. The gypsum is sold to third parties for use in drywall production. In addition, we recognize higher depreciation expense because the scrubbers were placed in service in December 2009, and we began depreciating the capitalized costs associated with them over their expected life or, for the leased Dickerson and Morgantown generating units, their remaining lease term.

Commodity Prices

The prices for power and natural gas remain low compared to several years ago. The energy gross margin from our baseload coal units is negatively affected by these price levels. However, we are generally economically neutral for that portion of the generation volumes that we have hedged because our realized gross margin will reflect the contractual prices of our power and fuel contracts. We continue to add hedges opportunistically, including to maintain projected levels of cash flows from operations for future periods to help support continued compliance with the covenants in our debt and lease agreements.

As a result of the installation of the pollution control equipment at our Maryland generating facilities, we have excess SO2 and NOx emissions allowances. In July 2010, the EPA issued a proposed replacement for the CAIR. The market prices for SO2 and NOx emissions allowances continued to decline in the second quarter and declined further as a result of the proposed rule. As a result, the estimated fair value of our projected excess SO2 and NOx emissions allowances is immaterial. See “Environmental and Regulatory Matters” later in this section for further information on the EPA’s proposed replacement of the CAIR.

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California Development Activities

Mirant Marsh Landing

On September 2, 2009, Mirant Marsh Landing entered into a ten-year PPA with PG&E for 760 MW of natural gas-fired peaking generation to be constructed adjacent to our Contra Costa generating facility near Antioch, California. Construction of the Marsh Landing generating facility is scheduled to begin in late 2010 and is expected to be completed by mid-2013.

During the ten-year term of the PPA, Mirant Marsh Landing will receive fixed monthly capacity payments and variable operating payments. The contract provides PG&E with the entire output of the 760 MW generating facility, which will be capable of producing 719 MW during peak July conditions. The Mirant Marsh Landing PPA was approved by the CPUC on July 29, 2010. The California Energy Commission also issued its preliminary approval of environmental permits on July 23, 2010, with final approval expected on August 25, 2010.

On May 6, 2010, Mirant Marsh Landing entered into an EPC Agreement with Kiewit Power Constructors Co. (“Kiewit”) for the construction of the Marsh Landing generating facility. Under the EPC Agreement, Kiewit is to design and construct the Marsh Landing generating facility on a turnkey basis, including all engineering, procurement, construction, commissioning, training, start-up and testing. The lump sum cost of the EPC Agreement is $499 million (including the $212 million total cost under the Siemens Turbine Generator Supply and Services Agreement which was assigned to Kiewit in connection with the execution of the EPC Agreement), plus the reimbursement of California sales and use taxes. See “Debt Obligations, Off-Balance Sheet Arrangements and Contractual Obligations” in this Item 2 for additional information on the EPC Agreement with Kiewit.

Contra Costa Toll Extension

On September 2, 2009, Mirant Delta entered into a new agreement with PG&E for the 674 MW of Contra Costa units 6 and 7 for the period from November 2011 through April 2013. At the end of the agreement, and subject to any necessary regulatory approval, Mirant Delta has agreed to retire Contra Costa units 6 and 7, which began operations in 1964, in furtherance of state and federal policies to retire aging power plants that utilize once-through cooling technology. The new Mirant Delta agreement was approved by the CPUC on July 29, 2010.

Potrero Settlement Agreement

On August 13, 2009, Mirant Potrero entered into a Settlement Agreement (“the Potrero Settlement”) with the City and County of San Francisco. Among other things, the Potrero Settlement obligates Mirant Potrero to close permanently each of the remaining units of the Potrero generating facility at the end of the year in which the CAISO determines that such unit is no longer needed to maintain the reliable operation of the electricity system. Mirant Potrero expects to be notified by the CAISO by October 2010 if any of the units of the Potrero generating facility will be required to operate for reliability purposes for 2011. Otherwise, all of the units will close by the end of 2010. See Note L to our unaudited condensed consolidated financial statements contained elsewhere in this report for further discussion of the Potrero Settlement.

Mid-Atlantic Collective Bargaining Agreement

During the second quarter of 2010, we entered into a new collective bargaining agreement with our employees represented by IBEW Local 1900. The previous collective bargaining agreement expired on June 1, 2010. The new agreement has a five-year term expiring on June 1, 2015. As part of the new agreement, we are required to provide additional retirement contributions through the defined contribution plan currently sponsored by Mirant Services, increases in pay and other benefits. In addition, the new agreement provides for a change to the postretirement healthcare benefit plan covering Mid-Atlantic union employees to eliminate

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employer-provided healthcare subsidies through a gradual phase-out. We recorded the effects of the plan curtailment during the second quarter of 2010 and recognized a reduction in other postretirement liabilities of approximately $45 million, an increase in other comprehensive income of approximately $8 million on the unaudited condensed consolidated balance sheets and a gain of $37 million reflected as a reduction in operations and maintenance expense on the unaudited condensed consolidated statement of operations. See Note F to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information on the postretirement healthcare benefit curtailment.

Results of Operations

The following discussion of our performance is organized by reportable segment, which is consistent with the way we manage our business.

In the tables below, the Mid-Atlantic region includes our Chalk Point, Dickerson, Morgantown and Potomac River generating facilities. The Northeast region includes our Bowline, Canal, Kendall and Martha’s Vineyard generating facilities. The California region includes our Contra Costa, Pittsburg and Potrero generating facilities. The California region also includes business development efforts for new generation in California, including Mirant Marsh Landing. Other Operations includes proprietary trading and fuel oil management activities. Other Operations also includes unallocated corporate overhead, interest expense on debt at Mirant Americas Generation and Mirant North America and interest income on our invested cash balances.

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Three Months Ended June 30, 2010 versus Three Months Ended June 30, 2009

Consolidated Financial Performance

We reported a net loss of $263 million for the three months ended June 30, 2010, compared to net income of $163 million for the three months ended June 30, 2009. The change in net income (loss) is detailed as follows (in millions):

	Three Months Ended June 30,						Increase/ (Decrease)
	2010			2009
Realized gross margin	$	312		$	360		$	(48	)
Unrealized gross margin		(340	)		(14	)		(326	)
Total gross margin		(28	)		346			(374	)
Operating Expenses:
Operations and maintenance		132			114			18
Depreciation and amortization		53			36			17
Gain on sales of assets, net		(1	)		(2	)		1
Total operating expenses, net		184			148			36
Operating income (loss)		(212	)		198			(410	)
Total other expense, net		50			35			15
Income (loss) before income taxes		(262	)		163			(425	)
Provision for income taxes		1			—			1
Net income (loss)	$	(263	)	$	163		$	(426	)

The following discussion includes non-GAAP financial measures because we present our consolidated financial performance in terms of gross margin. Gross margin is our operating revenue less cost of fuel, electricity and other products, and excludes depreciation and amortization. We present gross margin, excluding depreciation and amortization, as well as its two components—realized gross margin and unrealized gross margin—in order to be consistent with how we manage our business. Realized gross margin and unrealized gross margin are both non-GAAP financial measures. Realized gross margin represents our gross margin less unrealized gains and losses on derivative financial instruments for the periods presented. Conversely, unrealized gross margin is our unrealized gains and losses on derivative financial instruments for the periods presented. Management generally evaluates our operating results excluding the impact of unrealized gains and losses. None of our derivative financial instruments recorded at fair value is designated as a hedge and changes in their fair values are recognized currently in income as unrealized gains or losses. As a result, our financial results are, at times, volatile and subject to fluctuations in value primarily because of changes in forward electricity and fuel prices. Adjusting our gross margin to exclude unrealized gains and losses provides a measure of performance that eliminates the volatility created by significant shifts in market values between periods. However, our realized and unrealized gross margin may not be comparable to similarly titled non-GAAP financial measures used by other companies. We encourage our investors to review our unaudited condensed consolidated financial statements and other publicly filed reports in their entirety and not to rely on a single financial measure.

For the three months ended June 30, 2010, our realized gross margin decrease of $48 million was principally a result of the following:

• a decrease of $74 million in realized value of hedges. In 2010 and 2009, realized value of hedges were $78 million and $152 million, respectively, which reflects the amount by which

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the settlement value of power contracts exceeded market prices for power, offset in part by the amount by which contract prices for fuel exceeded market prices for fuel; partially offset by

• an increase of $25 million in energy, primarily as a result of an increase in the average settlement price for power and a decrease in the cost of emissions allowances, partially offset by lower Mid-Atlantic baseload generation volumes as a result of planned outages in 2010; and

• an increase of $1 million in contracted and capacity primarily as a result of higher capacity prices in the Northeast.

Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $340 million in 2010, which included a $205 million net decrease in the value of hedge and proprietary trading contracts for future periods primarily related to increases in forward power prices and the recognition of many of our coal agreements at fair value beginning in the second quarter of 2010. The $340 million also includes unrealized losses of $135 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized losses of $14 million in 2009, which included unrealized losses of $167 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods, partially offset by a $153 million net increase in the value of hedge and proprietary trading contracts for future periods primarily related to decreases in forward power and natural gas prices.

Operating Expenses

Our operating expense increase of $36 million was primarily a result of the following:

• an increase of $18 million in operations and maintenance expense primarily related to the following:

• an increase of $62 million related to the MC Asset Recovery settlement with Southern Company in 2009, including a $52 million reduction in operations and maintenance expense for the reimbursement of funds provided to MC Asset Recovery and costs incurred related to MC Asset Recovery not previously reimbursed, and a $10 million reversal of accruals for future funding to MC Asset Recovery. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the settlement between MC Asset Recovery and Southern Company; and

• an increase of $6 million in other operations and maintenance expenses; partially offset by

• a decrease of $37 million as a result of a curtailment gain resulting from an amendment to our postretirement healthcare benefits plan covering Mid-Atlantic union employees. See Note F to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the postretirement healthcare benefit curtailment; and

• a decrease of $13 million related to severance and stock-based compensation costs primarily as a result of the departure of certain executives in 2009;

• an increase of $17 million in depreciation and amortization expense primarily as a result of the scrubbers that were placed in service in December 2009; and

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• a decrease of $1 million in gain on sales of assets primarily related to emissions allowances sold to third parties in 2009.

Other Expense, Net

The increase of $15 million primarily reflects higher interest expense as a result of lower capitalized interest because of the scrubbers that were placed in service in December 2009.

Provision for Income Taxes

The increase of $1 million was primarily the result of federal alternative minimum tax in 2010.

Gross Margin Overview

The following tables detail realized and unrealized gross margin for the three months ended June 30, 2010 and 2009, by operating segments (in millions):

	Three Months Ended June 30, 2010
	Mid- Atlantic			Northeast			California		Other Operations			Eliminations		Total
Energy	$	78		$	4		$	—	$	14		$	—	$	96
Contracted and capacity		85			24			29		—			—		138
Realized value of hedges		74			4			—		—			—		78
Total realized gross margin		237			32			29		14			—		312
Unrealized gross margin		(317	)		(10	)		—		(13	)		—		(340	)
Total gross margin	$	(80	)	$	22		$	29	$	1		$	—	$	(28	)
	Three Months Ended June 30, 2009
	Mid- Atlantic			Northeast			California		Other Operations			Eliminations		Total
Energy	$	19		$	3		$	—	$	49		$	—	$	71
Contracted and capacity		86			22			29		—			—		137
Realized value of hedges		152			—			—		—			—		152
Total realized gross margin		257			25			29		49			—		360
Unrealized gross margin		—			20			—		(34	)		—		(14	)
Total gross margin	$	257		$	45		$	29	$	15		$	—	$	346

Energy represents gross margin from the generation of electricity, fuel sales and purchases at market prices, fuel handling, steam sales and our proprietary trading and fuel oil management activities.

Contracted and capacity represents gross margin received from capacity sold in ISO and RTO administered capacity markets, through RMR contracts, through tolling agreements and from ancillary services.

Realized value of hedges represents the actual margin upon the settlement of our power and fuel hedging contracts and the difference between market prices and contract costs for coal. Power hedging contracts include sales of both power and natural gas used to hedge power prices, as well as hedges to capture the incremental value related to the geographic location of our physical assets.

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Unrealized gross margin represents the net unrealized gain or loss on our derivative contracts, including the reversal of unrealized gains and losses recognized in prior periods and changes in value for future periods.

Operating Statistics

The following table summarizes Net Capacity Factor by region for the three months ended June 30, 2010 and 2009:

	Three Months Ended June 30,				Increase/ (Decrease)
	2010		2009
Mid-Atlantic	30	%	30	%	—	%
Northeast	7	%	7	%	—	%
California	2	%	4	%	(2	)%
Total	18	%	18	%	—	%

The following table summarizes power generation volumes by region for the three months ended June 30, 2010 and 2009 (in gigawatt hours):

	Three Months Ended June 30,		Increase/ (Decrease)		Increase/ (Decrease)
	2010	2009
Mid-Atlantic:
Baseload	3,062	3,441	(379	)	(11	)%
Intermediate	277	34	243		715	%
Peaking	64	5	59		1,180	%
Total Mid-Atlantic	3,403	3,480	(77	)	(2	)%
Northeast:
Baseload	355	333	22		7	%
Intermediate	49	38	11		29	%
Peaking	1	—	1		100	%
Total Northeast	405	371	34		9	%
California:
Intermediate	88	213	(125	)	(59	)%
Peaking	—	1	(1	)	(100	)%
Total California	88	214	(126	)	(59	)%
Total	3,896	4,065	(169	)	(4	)%

The total decrease in power generation volumes for the three months ended June 30, 2010, as compared to the three months ended June 30, 2009, was primarily the result of the following:

Mid-Atlantic.    A decrease in our Mid-Atlantic baseload generation as a result of an increase in planned outages in 2010 compared to 2009, partially offset by an increase in our Mid-Atlantic intermediate and peaking generation.

Northeast.    An increase in our Northeast baseload and intermediate generation as a result of an increase in market spark spreads.

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California.    All of our California generating facilities operate under tolling agreements or are subject to RMR arrangements. Our natural gas-fired units in service at Contra Costa and Pittsburg operate under tolling agreements with PG&E for 100% of the capacity from these units and our Potrero units are subject to RMR arrangements. Therefore, changes in power generation volumes from those generating facilities, which can be caused by weather, planned outages or other factors, generally do not affect our gross margin.

Mid-Atlantic

Our Mid-Atlantic segment includes four generating facilities with total net generating capacity of 5,194 MW.

The following table summarizes the results of operations of our Mid-Atlantic segment (in millions):

	Three Months Ended June 30,						Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	78		$	19		$	59
Contracted and capacity		85			86			(1	)
Realized value of hedges		74			152			(78	)
Total realized gross margin		237			257			(20	)
Unrealized gross margin		(317	)		—			(317	)
Total gross margin		(80	)		257			(337	)
Operating Expenses:
Operations and maintenance		117			101			16
Depreciation and amortization		36			24			12
Gain on sales of assets, net		(1	)		(2	)		1
Total operating expenses, net		152			123			29
Operating income (loss)		(232	)		134			(366	)
Total other expense, net		1			1			—
Net income (loss)	$	(233	)	$	133		$	(366	)

Gross Margin

The decrease of $20 million in realized gross margin was principally a result of the following:

• a decrease of $78 million in realized value of hedges. In 2010 and 2009, realized value of hedges were $74 million and $152 million, respectively, which reflects the amount by which the settlement value of power contracts exceeded market prices for power, partially offset by the amount by which contract prices for coal exceeded market prices for coal; and

• a decrease of $1 million in contracted and capacity primarily related to lower average capacity prices, offset in part by additional megawatts of capacity sold in 2010; partially offset by

• an increase of $59 million in energy, primarily as a result of an increase in the average settlement price for power, a decrease in the cost of emissions allowances and higher intermediate and peaking generation volumes, partially offset by an increase in the price of coal and lower baseload generation volumes.

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Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $317 million in 2010, which included a $203 million net decrease in the value of hedge contracts for future periods primarily related to increases in forward power prices and the recognition of many of our coal agreements at fair value beginning in the second quarter of 2010. The $317 million also includes unrealized losses of $114 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized gross margin in 2009 included a $123 million net increase in the value of hedge contracts for future periods primarily related to decreases in forward power and natural gas prices, offset by unrealized losses of $123 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods.

Operating Expenses

Our operating expense increase of $29 million was primarily a result of the following:

• an increase of $16 million in operations and maintenance expense primarily as a result of an increase in costs related to the operation of our scrubbers and an increase in planned outages in 2010 compared to 2009;

• an increase of $12 million in depreciation and amortization expense primarily as a result of the scrubbers that were placed in service in December 2009, offset in part by a decrease in the carrying value of the Potomac River generating facility as a result of the impairment charge taken in the fourth quarter of 2009; and

• a decrease of $1 million in gain on sales of assets primarily related to emissions allowances sold to third parties in 2009.

Northeast

Our Northeast segment is comprised of our three generating facilities located in Massachusetts and one generating facility located in New York with total net generating capacity of 2,535 MW.

The following table summarizes the results of operations of our Northeast segment (in millions):

	Three Months Ended June 30,					Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	4		$	3	$	1
Contracted and capacity		24			22		2
Realized value of hedges		4			—		4
Total realized gross margin		32			25		7
Unrealized gross margin		(10	)		20		(30	)
Total gross margin		22			45		(23	)
Operating Expenses:
Operations and maintenance		27			35		(8	)
Depreciation and amortization		6			5		1
Total operating expenses, net		33			40		(7	)
Operating income (loss)		(11	)		5		(16	)
Total other expense, net		1			—		1
Net income (loss)	$	(12	)	$	5	$	(17	)

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Gross Margin

The increase of $7 million in realized gross margin was principally a result of the following:

• an increase of $4 million in realized value of hedges. In 2010, realized value of hedges was $4 million, which reflects the amount by which the settlement value of power contracts exceeded market prices, offset by the amount by which contract prices for fuel exceeded market prices for fuel;

• an increase of $2 million in contracted and capacity primarily related to higher capacity prices in 2010; and

• an increase of $1 million in energy primarily as a result of higher generation volumes.

Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $10 million in 2010, which included a $6 million net decrease in the value of hedge contracts for future periods primarily related to increases in forward power and fuel prices and unrealized losses of $4 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized gains of $20 million in 2009, which included a $29 million net increase in the value of hedge contracts for future periods primarily related to decreases in forward power and fuel prices, partially offset by unrealized losses of $9 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods.

Operating Expenses

Our operating expense decrease of $7 million was primarily a result of a decrease in shutdown costs associated with the demolished Lovett generating facility, a decrease in property taxes because of a lower assessed value for the site of the demolished Lovett generating facility and a decrease in costs related to planned outages in 2010 compared to 2009 for our other generating facilities.

California

Our California segment consists of the Contra Costa, Pittsburg and Potrero generating facilities with total net generating capacity of 2,347 MW and includes business development efforts for new generation in California, including Mirant Marsh Landing.

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The following table summarizes the results of operations of our California segment (in millions):

	Three Months Ended June 30,				Increase/ (Decrease)
	2010		2009
Gross Margin:
Contracted and capacity	$	29	$	29	$	—
Total realized gross margin		29		29		—
Unrealized gross margin		—		—		—
Total gross margin		29		29		—
Operating Expenses:
Operations and maintenance		18		24		(6	)
Depreciation and amortization		7		5		2
Total operating expenses, net		25		29		(4	)
Net income	$	4	$	—	$	4

Gross Margin

All of our California generating facilities operate under tolling agreements or are subject to RMR arrangements. Our natural gas-fired units in service at Contra Costa and Pittsburg operate under tolling agreements with PG&E for 100% of the capacity from these units, and our Potrero units are subject to RMR arrangements. Therefore, our gross margin generally is not affected by changes in power generation volumes from those facilities.

Operating Expenses

Our operating expense decrease of $4 million was primarily a result of a decrease in outages and property taxes, partially offset by an increase in depreciation expense as a result of a decrease in the useful life of our Potrero generating facility because of the settlement with the City of San Francisco executed in the third quarter of 2009. See Note L to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information on the Mirant Potrero settlement with the City of San Francisco.

Other Operations

Other Operations includes proprietary trading and fuel oil management activities, unallocated corporate overhead, interest expense on debt at Mirant Americas Generation and Mirant North America and interest income on our invested cash balances.

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The following table summarizes the results of operations of our Other Operations segment (in millions):

	Three Months Ended June 30,						Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	14		$	49		$	(35	)
Total realized gross margin		14			49			(35	)
Unrealized gross margin		(13	)		(34	)		21
Total gross margin		1			15			(14	)
Operating Expenses:
Operations and maintenance		(30	)		(46	)		16
Depreciation and amortization		4			2			2
Total operating expenses (income), net		(26	)		(44	)		18
Operating income		27			59			(32	)
Total other expense, net		48			34			14
Income (loss) before income taxes	$	(21	)	$	25		$	(46	)

Gross Margin

The decrease of $35 million in realized gross margin was principally a result of a $40 million decrease in gross margin from our fuel oil management activities, partially offset by a $5 million increase in gross margin from proprietary trading activities. The decrease in the contribution from fuel oil management was a result of lower gross margin on positions used to hedge economically the fair value of our physical fuel oil inventory. The increase in the contribution from proprietary trading was a result of an increase in the realized value associated with trading positions in 2010 as compared to 2009.

Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $13 million in 2010, which included unrealized losses of $17 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods, partially offset by a $4 million net increase in the value of contracts for future periods; and

• unrealized losses of $34 million in 2009, which included unrealized losses of $35 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods, partially offset by a $1 million net increase in the value of contracts for future periods.

Operating Expenses

The increase of $18 million in operating expenses was principally the result of the following:

• an increase of $62 million related to the MC Asset Recovery settlement with Southern Company in 2009, including a $52 million reduction in operations and maintenance expense for the reimbursement of funds provided to MC Asset Recovery and costs incurred related to MC Asset Recovery not previously reimbursed, and a $10 million reversal of accruals for future funding to MC Asset Recovery. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the settlement between MC Asset Recovery and Southern Company; and

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• an increase of $3 million related to merger-related costs incurred in 2010; partially offset by

• a decrease of $37 million in operations and maintenance primarily as a result of a curtailment gain resulting from an amendment to our postretirement healthcare benefits plan covering Mid-Atlantic union employees. See Note F to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the postretirement healthcare benefit curtailment; and

• a decrease of $13 million related to severance and stock-based compensation costs primarily as a result of the departure of certain executives in 2009.

Other Expense, Net

The increase of $14 million in other expense, net was principally the result of an increase of $15 million in interest expense primarily related to lower capitalized interest because of the scrubbers that were placed in service in December 2009.

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Six Months Ended June 30, 2010 versus Six Months Ended June 30, 2009

Consolidated Financial Performance

We reported net income of $144 million and $543 million for the six months ended June 30, 2010 and 2009, respectively. The change in net income is detailed as follows (in millions):

	Six Months Ended June 30,						Increase/ (Decrease)
	2010			2009
Realized gross margin	$	633		$	713		$	(80	)
Unrealized gross margin		12			240			(228	)
Total gross margin		645			953			(308	)
Operating Expenses:
Operations and maintenance		298			276			22
Depreciation and amortization		104			72			32
Gain on sales of assets, net		(3	)		(17	)		14
Total operating expenses, net		399			331			68
Operating income		246			622			(376	)
Total other expense, net		101			71			30
Income before income taxes		145			551			(406	)
Provision for income taxes		1			8			(7	)
Net income	$	144		$	543		$	(399	)

Gross Margin

For the six months ended June 30, 2010, our realized gross margin decrease of $80 million was principally a result of the following:

• a decrease of $113 million in realized value of hedges. In 2010 and 2009, realized value of hedges were $147 million and $260 million, respectively, which reflects the amount by which the settlement value of power contracts exceeded market prices for power, offset in part by the amount by which contract prices for fuel exceeded market prices for fuel; partially offset by

• an increase of $24 million in energy, primarily as a result of an increase in the average settlement price for power and a decrease in the cost of emissions allowances, partially offset by lower generation volumes; and

• an increase of $9 million in contracted and capacity primarily as a result of higher capacity revenues in California, higher capacity prices in the Northeast and an increase in ancillary services revenue and additional megawatts of capacity sold in Mid-Atlantic.

Our unrealized gross margin for both periods reflects the following:

• unrealized gains of $12 million in 2010, which included a $228 million net increase in the value of hedge and proprietary trading contracts for future periods primarily related to decreases in forward power and natural gas prices and also includes the recognition of many of our coal agreements at fair value beginning in the second quarter of 2010. The increase in value is partially offset by unrealized losses of $216 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized gains of $240 million in 2009, which included a $494 million net increase in the value of hedge and proprietary trading contracts for future periods primarily related to

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decreases in forward power and natural gas prices, partially offset by unrealized losses of $254 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods.

Operating Expenses

Our operating expense increase of $68 million was primarily a result of the following:

• an increase of $22 million in operations and maintenance expense primarily related to the following:

• an increase of $62 million related to the MC Asset Recovery settlement with Southern Company in 2009, including a $52 million reduction in operations and maintenance expense for the reimbursement of funds provided to MC Asset Recovery and costs incurred related to MC Asset Recovery not previously reimbursed, and a $10 million reversal of accruals for future funding to MC Asset Recovery. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the settlement between MC Asset Recovery and Southern Company; and

• an increase of $9 million in other operations and maintenance expenses; partially offset by

• a decrease of $37 million as a result of a curtailment gain resulting from an amendment to our postretirement healthcare benefits plan covering Mid-Atlantic union employees. See Note F to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the postretirement healthcare benefit curtailment; and

• a decrease of $12 million related to severance and stock-based compensation costs primarily as a result of the departure of certain executives in 2009;

• an increase of $32 million in depreciation and amortization expense primarily as a result of the scrubbers that were placed in service in December 2009; and

• a decrease of $14 million in gain on sales of assets primarily related to emissions allowances sold to third parties in 2009.

Other Expense, Net

The increase of $30 million primarily reflects higher interest expense as a result of lower capitalized interest because of the scrubbers that were placed in service in December 2009.

Provision for Income Taxes

The decrease of $7 million was primarily a result of $5 million of federal alternative minimum tax for 2009 and $3 million in California income taxes as a result of the state’s suspension of the utilization of NOL carry forwards for the 2008 and 2009 tax years, offset by $1 million of federal alternative minimum tax for 2010.

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Gross Margin Overview

The following tables detail realized and unrealized gross margin for the six months ended June 30, 2010 and 2009, by operating segments (in millions):

	Six Months Ended June 30, 2010
	Mid- Atlantic		Northeast			California		Other Operations			Eliminations			Total
Energy	$	170	$	1		$	—	$	35		$	—		$	206
Contracted and capacity		174		47			59		—			—			280
Realized value of hedges		131		16			—		—			—			147
Total realized gross margin		475		64			59		35			—			633
Unrealized gross margin		29		(14	)		—		(3	)		—			12
Total gross margin	$	504	$	50		$	59	$	32		$	—		$	645
	Six Months Ended June 30, 2009
	Mid- Atlantic		Northeast			California		Other Operations			Eliminations			Total
Energy	$	91	$	18		$	—	$	76		$	(3	)	$	182
Contracted and capacity		171		44			56		—			—			271
Realized value of hedges		259		1			—		—			—			260
Total realized gross margin		521		63			56		76			(3	)		713
Unrealized gross margin		243		46			—		(49	)		—			240
Total gross margin	$	764	$	109		$	56	$	27		$	(3	)	$	953

Energy represents gross margin from the generation of electricity, fuel sales and purchases at market prices, fuel handling, steam sales and our proprietary trading and fuel oil management activities.

Contracted and capacity represents gross margin received from capacity sold in ISO and RTO administered capacity markets, through RMR contracts, through tolling agreements and from ancillary services.

Realized value of hedges represents the actual margin upon the settlement of our power and fuel hedging contracts and the difference between market prices and contract costs for coal. Power hedging contracts include sales of both power and natural gas used to hedge power prices, as well as hedges to capture the incremental value related to the geographic location of our physical assets.

Unrealized gross margin represents the net unrealized gain or loss on our derivative contracts, including the reversal of unrealized gains and losses recognized in prior periods and changes in value for future periods.

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Operating Statistics

The following table summarizes Net Capacity Factor by region for the six months ended June 30, 2010 and 2009:

	Six Months Ended June  30,				Increase/ (Decrease)
	2010		2009
Mid-Atlantic	32	%	32	%	—	%
Northeast	7	%	12	%	(5	)%
California	2	%	4	%	(2	)%
Total	19	%	20	%	(1	)%

The following table summarizes power generation volumes by region for the six months ended June 30, 2010 and 2009 (in gigawatt hours):

	Six Months Ended June  30,		Increase/ (Decrease)		Increase/ (Decrease)
	2010	2009
Mid-Atlantic:
Baseload	7,034	7,167	(133	)	(2	)%
Intermediate	332	139	193		139	%
Peaking	70	36	34		94	%
Total Mid-Atlantic	7,436	7,342	94		1	%
Northeast:
Baseload	720	698	22		3	%
Intermediate	58	572	(514	)	(90	)%
Peaking	1	—	1		100	%
Total Northeast	779	1,270	(491	)	(39	)%
California:
Intermediate	211	389	(178	)	(46	)%
Peaking	—	1	(1	)	(100	)%
Total California	211	390	(179	)	(46	)%
Total	8,426	9,002	(576	)	(6	)%

The total decrease in power generation volumes for the six months ended June 30, 2010, as compared to the six months ended June 30, 2009, was primarily the result of the following:

Mid-Atlantic.    An increase in our Mid-Atlantic intermediate and peaking generation, partially offset by an increase in planned outages for our baseload generation in 2010 compared to 2009.

Northeast.    A decrease in our Northeast intermediate generation as a result of transmission upgrades in 2009 which reduced the demand for the oil-fired intermediate units at our Canal generating facility.

California.    All of our California generating facilities operate under tolling agreements or are subject to RMR arrangements. Our natural gas-fired units in service at Contra Costa and Pittsburg operate under tolling agreements with PG&E for 100% of the capacity from these units

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and our Potrero units are subject to RMR arrangements. Therefore, changes in power generation volumes from those generating facilities, which can be caused by weather, planned outages or other factors, generally do not affect our gross margin.

Mid-Atlantic

Our Mid-Atlantic segment includes four generating facilities with total net generating capacity of 5,194 MW.

The following table summarizes the results of operations of our Mid-Atlantic segment (in millions):

	Six Months Ended June  30,						Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	170		$	91		$	79
Contracted and capacity		174			171			3
Realized value of hedges		131			259			(128	)
Total realized gross margin		475			521			(46	)
Unrealized gross margin		29			243			(214	)
Total gross margin		504			764			(260	)
Operating Expenses:
Operations and maintenance		230			206			24
Depreciation and amortization		69			48			21
Gain on sales of assets, net		(3	)		(10	)		7
Total operating expenses, net		296			244			52
Operating income		208			520			(312	)
Total other expense, net		2			2			—
Net income	$	206		$	518		$	(312	)

Gross Margin

The decrease of $46 million in realized gross margin was principally a result of the following:

• a decrease of $128 million in realized value of hedges. In 2010 and 2009, realized value of hedges were $131 million, and $259 million, respectively, which reflects the amount by which the settlement value of power contracts exceeded market prices for power, partially offset by the amount by which contract prices for coal exceeded market prices for coal; partially offset by

• an increase of $79 million in energy, primarily as a result of an increase in the average settlement price for power, a decrease in the cost of emissions allowances and higher intermediate and peaking generation volumes, partially offset by lower baseload generation volumes; and

• an increase of $3 million in contracted and capacity primarily related to ancillary services revenue and additional megawatts of capacity sold in 2010, partially offset by lower average capacity prices.

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Our unrealized gross margin for both periods reflects the following:

• unrealized gains of $29 million in 2010, which included a $193 million net increase in the value of hedge contracts for future periods primarily related to decreases in forward power and natural gas prices and also includes the recognition of many of our coal agreements at fair value beginning in the second quarter of 2010. The increase in value is partially offset by unrealized losses of $164 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized gains of $243 million in 2009, which included a $434 million net increase in the value of hedge contracts for future periods primarily related to decreases in forward power and natural gas prices, partially offset by unrealized losses of $191 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods.

Operating Expenses

Our operating expense increase of $52 million was primarily a result of the following:

• an increase of $24 million in operations and maintenance expense primarily as a result of an increase in costs related to the operation of our scrubbers and an increase in planned outages in 2010 compared to 2009;

• an increase of $21 million in depreciation and amortization expense primarily as a result of the scrubbers that were placed in service in December 2009, offset in part by a decrease in the carrying value of the Potomac River generating facility as a result of the impairment charge taken in the fourth quarter of 2009; and

• a decrease of $7 million in gain on sales of assets primarily related to emissions allowances sold to third parties in 2009.

Northeast

Our Northeast segment is comprised of our three generating facilities located in Massachusetts and one generating facility located in New York with total net generating capacity of 2,535 MW.

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The following table summarizes the results of operations of our Northeast segment (in millions):

	Six Months Ended June  30,						Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	1		$	18		$	(17	)
Contracted and capacity		47			44			3
Realized value of hedges		16			1			15
Total realized gross margin		64			63			1
Unrealized gross margin		(14	)		46			(60	)
Total gross margin		50			109			(59	)
Operating Expenses:
Operations and maintenance		51			67			(16	)
Depreciation and amortization		12			9			3
Gain on sales of assets, net		—			(2	)		2
Total operating expenses, net		63			74			(11	)
Operating income (loss)		(13	)		35			(48	)
Total other expense, net		1			—			1
Net income (loss)	$	(14	)	$	35		$	(49	)

Gross Margin

The increase of $1 million in realized gross margin was principally a result of the following:

• an increase of $15 million in realized value of hedges. In 2010 and 2009, realized value of hedges were $16 million and $1 million, respectively, which reflects the amount by which the settlement value of power contracts exceeded market prices for power, partially offset by the amount by which contract prices for fuel exceeded market prices for fuel; and

• an increase of $3 million in contracted and capacity primarily related to higher capacity prices in 2010; partially offset by

• a decrease of $17 million in energy primarily as a result of a decrease in generation volumes from our oil-fired intermediate units as a result of transmission upgrades in 2009.

Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $14 million in 2010, which included unrealized losses of $14 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods; and

• unrealized gains of $46 million in 2009, which included a $54 million net increase in the value of hedge contracts for future periods primarily related to decreases in forward power and fuel prices; partially offset by unrealized losses of $8 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods.

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Operating Expenses

Our operating expense decrease of $11 million was primarily a result of a decrease in shutdown costs associated with the demolished Lovett generating facility and a decrease in property taxes because of a lower assessed value for the site of the demolished Lovett generating facility.

California

Our California segment consists of the Contra Costa, Pittsburg and Potrero generating facilities with total net generating capacity of 2,347 MW and includes business development efforts for new generation in California, including Mirant Marsh Landing.

The following table summarizes the results of operations of our California segment (in millions):

	Six Months Ended June  30,					Increase/ (Decrease)
	2010		2009
Gross Margin:
Contracted and capacity	$	59	$	56		$	3
Total realized gross margin		59		56			3
Unrealized gross margin		—		—			—
Total gross margin		59		56			3
Operating Expenses:
Operations and maintenance		38		43			(5	)
Depreciation and amortization		15		10			5
Gain on sales of assets, net		—		(1	)		1
Total operating expenses, net		53		52			1
Operating income		6		4			2
Total other expense, net		—		1			(1	)
Net income	$	6	$	3		$	3

Gross Margin

All of our California generating facilities operate under tolling agreements or are subject to RMR arrangements. Our natural gas-fired units in service at Contra Costa and Pittsburg operate under tolling agreements with PG&E for 100% of the capacity from these units, and our Potrero units are subject to RMR arrangements. Therefore, our gross margin generally is not affected by changes in power generation volumes from those facilities.

Operating Expenses

Our operating expense increase of $1 million was primarily a result of an increase in depreciation expense as a result of a decrease in the useful life of our Potrero generating facility because of the settlement with the City of San Francisco executed in the third quarter of 2009 and a decrease in gain on sales of assets primarily related to emissions allowances sold to third parties in 2009, partially offset by a decrease in outages and property taxes. See Note L to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information on the Mirant Potrero settlement with the City of San Francisco.

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Other Operations

Other Operations includes proprietary trading and fuel oil management activities, unallocated corporate overhead, interest expense on debt at Mirant Americas Generation and Mirant North America and interest income on our invested cash balances.

The following table summarizes the results of operations of our Other Operations segment (in millions):

	Six Months Ended June  30,						Increase/ (Decrease)
	2010			2009
Gross Margin:
Energy	$	35		$	76		$	(41	)
Total realized gross margin		35			76			(41	)
Unrealized gross margin		(3	)		(49	)		46
Total gross margin		32			27			5
Operating Expenses:
Operations and maintenance		(21	)		(40	)		19
Depreciation and amortization		8			5			3
Total operating expenses (income), net		(13	)		(35	)		22
Operating income		45			62			(17	)
Total other expense, net		98			68			30
Loss before income taxes	$	(53	)	$	(6	)	$	(47	)

Gross Margin

The decrease of $41 million in realized gross margin was principally a result of a $33 million decrease in gross margin from our fuel oil management activities and an $8 million decrease in gross margin from proprietary trading activities. The decrease in the contribution from fuel oil management was a result of lower gross margin on positions used to hedge economically the fair value of our physical fuel oil inventory. The decrease in the contribution from proprietary trading was primarily a result of a decrease in the realized value associated with power positions in 2010 as compared to 2009.

Our unrealized gross margin for both periods reflects the following:

• unrealized losses of $3 million in 2010, which included unrealized losses of $38 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods, partially offset by a $35 million net increase in the value of contracts for future periods; and

• unrealized losses of $49 million in 2009, which included unrealized losses of $54 million from power and fuel contracts that settled during the period for which net unrealized gains had been recorded in prior periods, partially offset by a $5 million net increase in the value of contracts for future periods.

Operating Expenses

The increase of $22 million in operating expenses was principally the result of the following:

• an increase of $62 million related to the MC Asset Recovery settlement with Southern Company in 2009, including a $52 million reduction in operations and maintenance expense

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for the reimbursement of funds provided to MC Asset Recovery and costs incurred related to MC Asset Recovery not previously reimbursed, and a $10 million reversal of accruals for future funding to MC Asset Recovery. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the settlement between MC Asset Recovery and Southern Company; and

• an increase of $5 million related to merger-related costs incurred in 2010; partially offset by

• a decrease of $37 million in operations and maintenance primarily as a result of a curtailment gain resulting from an amendment to our postretirement healthcare benefits plan covering Mid-Atlantic union employees. See Note F to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information related to the postretirement healthcare benefit curtailment; and

• a decrease of $13 million related to severance and stock-based compensation costs primarily as a result of the departure of certain executives in 2009.

Other Expense, Net

The increase of $30 million in other expense, net was principally the result of an increase of $28 million in interest expense primarily related to lower capitalized interest because of the scrubbers that were placed in service in December 2009.

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Financial Condition

Liquidity and Capital Resources

We expect that we will have sufficient liquidity for our future operations and capital expenditures, and to service our debt obligations. We regularly monitor our ability to finance the needs of our operating, investing and financing activities. See Note D to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional discussion of our debt.

Sources of Funds

The principal sources of our liquidity are expected to be: (1) existing cash on hand (including approximately $1.4 billion at Mirant Corporation) and expected cash flows from the operations of our subsidiaries, (2) letters of credit issued or borrowings made under Mirant North America’s senior secured revolving credit facility, (3) letters of credit issued under Mirant North America’s senior secured term loan and (4) planned project financing for the Mirant Marsh Landing generating facility. As described in “Overview” in this Item 2, the completion of the proposed merger with RRI Energy is conditioned on GenOn Energy consummating certain debt financing transactions, including securing a new revolving credit facility. The new GenOn Energy debt financing and revolving credit facility will be used, in part, to redeem the Mirant North America senior notes and to repay and terminate the Mirant North America term loan and revolving credit facility.

The table below sets forth total cash, cash equivalents and availability under credit facilities of Mirant and its subsidiaries (in millions):

	At June 30, 2010			At December 31, 2009
Cash and Cash Equivalents:
Mirant Corporation	$	1,388		$	1,524
Mirant Americas Generation		—			1
Mirant North America		272			278
Mirant Mid-Atlantic		159			125
Other		30			25
Total cash and cash equivalents		1,849			1,953
Less: cash restricted and reserved for other purposes		(11	)		(11	)
Total available cash and cash equivalents		1,838			1,942
Available under credit facilities		662			680
Total cash, cash equivalents and credit facilities availability	$	2,500		$	2,622

We consider all short-term investments with an original maturity of three months or less to be cash equivalents. At June 30, 2010 and December 31, 2009, except for amounts held in bank accounts to cover upcoming payables, all of our cash and cash equivalents were invested in AAA-rated United States Treasury money market funds.

Available under credit facilities at June 30, 2010 and December 31, 2009, reflects a $45 million effective reduction as a result of the bankruptcy filing of Lehman Commercial Paper, Inc., a lender under the Mirant North America senior secured revolving credit facility.

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We and certain of our subsidiaries, including Mirant Americas Generation and Mirant North America, are holding companies. The chart below is a summary representation of our capital structure and is not a complete corporate organizational chart.

Except for existing cash on hand and, in the case of Mirant North America, borrowings and letters of credit under its credit facilities, the Mirant Corporation, Mirant Americas Generation and Mirant North America holding companies are dependent for liquidity on the distributions and dividends of their subsidiaries. The ability of Mirant North America and its subsidiary, Mirant Mid-Atlantic, to make distributions and pay dividends is restricted under the terms of their debt agreements and leveraged lease documentation, respectively. At June 30, 2010, Mirant North America had distributed to its parent, Mirant Americas Generation, all available cash that was permitted to be distributed under the terms of its debt agreements, leaving $431 million at Mirant North America and its subsidiaries. Of this amount, $159 million was held by Mirant Mid-Atlantic which, as of June 30, 2010, met the tests under the leveraged lease documentation permitting it to make distributions to Mirant North America. After taking into account the financial results of Mirant North America for the six months ended June 30, 2010, we expect Mirant North America will distribute approximately $110 million to its parent, Mirant Americas Generation, in August 2010. Although we expect Mirant North America to remain in compliance with its financial

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covenants in future periods, and to have sufficient liquidity and capital resources to meet its obligations, it is likely that it will be restricted from making distributions by the free cash flow requirements under the restricted payment test of its senior credit facility in future periods. The primary factor lowering the free cash flow calculation for Mirant North America is the significant capital expenditure program of Mirant Mid-Atlantic to install emissions controls at its Chalk Point, Dickerson and Morgantown coal-fired units to comply with the Maryland Healthy Air Act. When the capital expenditures no longer affect the calculation of its free cash flow, Mirant North America is expected to be able again to make distributions. We do not expect the liquidity effect of the restriction on distributions under the Mirant North America senior credit facility to be material given that the majority of our liquidity needs arise from the activities of Mirant North America and its subsidiaries, the restriction does not limit Mirant North America from making distributions to Mirant Americas Generation to fund interest payments on its senior notes and the majority of our total available cash and cash equivalents is held unrestricted at Mirant Corporation.

Uses of Funds

Our requirements for liquidity and capital resources, other than for the day-to-day operation of our generating facilities, are significantly influenced by the following activities: (1) capital expenditures, (2) debt service and payments under the Mirant Mid-Atlantic leveraged leases, (3) collateral required for our asset management and proprietary trading and fuel oil management activities and (4) the development of new generating facilities, in particular, the Mirant Marsh Landing generating facility.

Capital Expenditures.    Our capital expenditures, excluding capitalized interest for the six months ended June 30, 2010, were $157 million. Our estimated capital expenditures, excluding capitalized interest, for the period July 1, 2010, through December 31, 2011, are expected to be $636 million. See “Capital Expenditures and Capital Resources” in this Item 2 for further discussion of our capital expenditures.

Cash Collateral and Letters of Credit.    In order to sell power and purchase fuel in the forward markets and perform other energy trading and marketing activities, we often are required to provide credit support to our counterparties or make deposits with brokers. In addition, we often are required to provide cash collateral or letters of credit to access the transmission grid, to participate in power pools, to fund debt service and rent reserves and for other operating activities. Credit support includes cash collateral, letters of credit, surety bonds and financial guarantees. In the event that we default, the counterparty can draw on a letter of credit or apply cash collateral held to satisfy the existing amounts outstanding under an open contract. As of June 30, 2010, we had approximately $77 million of posted cash collateral and $228 million of letters of credit outstanding primarily to support our asset management activities, trading activities, debt service and rent reserve requirements, and other commercial arrangements. Included in the letter of credit amount outstanding is a $12 million cash-collateralized letter of credit in support of the Mirant Marsh Landing PPA with PG&E, which amount is expected to increase in the third quarter to approximately $80 million as a result of the approval of the PPA by the CPUC on July 29, 2010. Our liquidity requirements are highly dependent on the level of our hedging activities, forward prices for energy, emissions allowances and fuel, commodity market volatility, credit terms with third parties and regulation of energy contracts. See Item 1A “Risk Factors” for our discussion on the Dodd-Frank Act. See Note E to our unaudited condensed consolidated financial statements contained elsewhere in this report for additional information.

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The following table summarizes cash collateral posted with counterparties and brokers, letters of credit issued and surety bonds provided (in millions):

	At June 30, 2010		At December 31, 2009
Cash collateral posted—energy trading and marketing	$	36	$	41
Cash collateral posted—other operating activities		41		43
Letters of credit—energy trading and marketing		69		51
Letters of credit—debt service and rent reserves		107		101
Letters of credit—other operating activities		52		59
Surety bonds		6		5
Total	$	311	$	300

Debt Obligations, Off-Balance Sheet Arrangements and Contractual Obligations

Marsh Landing Generating Facility EPC Agreement

On May 6, 2010, Mirant Marsh Landing entered into an EPC Agreement with Kiewit for the construction of the Marsh Landing generating facility. Under the EPC Agreement, Kiewit is to design and construct the Marsh Landing generating facility on a turnkey basis, including all engineering, procurement, construction, commissioning, training, start-up and testing. The lump sum cost of the EPC Agreement is $499 million (including the $212 million total cost under the Siemens Turbine Generator Supply and Services Agreement which was assigned to Kiewit in connection with the execution of the EPC Agreement), plus the reimbursement of California sales and use taxes due under the Siemens Turbine Generator Supply and Services Agreement.

As security for its obligations, Kiewit will provide a corporate guarantee from Kiewit Construction Company of its obligations under the EPC Agreement and a letter of credit in the amount of $31.8 million, reducing to $10.6 million upon substantial completion of the Marsh Landing generating facility. Likewise, Mirant Marsh Landing will provide a corporate guarantee from Mirant Corporation in an amount not to exceed $43.0 million and a letter of credit in an amount up to $72.0 million, as security for the termination amount from time to time under the turbine equipment supply contract assumed by Kiewit upon execution of the EPC Agreement. In addition, as further security for successful completion of the work, Mirant Marsh Landing is retaining a portion of the payments made to Kiewit under the EPC Agreement which will be paid to Kiewit in two disbursements, one upon substantial completion of the Marsh Landing generating facility (including successful performance testing and commercial operation) and the other at final completion.

Cash Flows

Continuing Operations

Operating Activities.    Our cash provided by operating activities is affected by seasonality, changes in energy prices and fluctuations in our working capital requirements. Net cash provided by operating activities from continuing operations decreased $234 million for the six months ended June 30, 2010, compared to the same period in 2009, primarily as a result of the following:

• Realized gross margin.    A decrease in cash provided of $82 million in 2010, compared to the same period in 2009, excluding a decrease in non-cash lower of cost or market fuel inventory adjustments of $2 million. See “Results of Operations” in this Item 2 for additional discussion of our performance in 2010 compared to the same period in 2009;

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• Inventories.    An increase in cash used of $46 million primarily as a result of larger volumes of fuel oil purchased at higher prices in 2010 as compared to 2009;

• Accounts payable, collateral.    An increase in cash used of $43 million as a result of $1 million received from counterparties in 2010 as compared to $44 million received from counterparties in 2009;

• Interest expense, net.    An increase in cash used of $30 million primarily as a result of a decrease in capitalized interest which is included in investing activities;

• Funds on deposit.    A decrease in cash provided of $24 million. We received an additional $6 million in collateral returned from our counterparties in 2010 compared to an additional $30 million received in 2009; and

• Other operating assets and liabilities.    An increase in cash used of $9 million related to changes in other operating assets and liabilities.

Investing Activities.    Net cash used in investing activities decreased by $176 million for the six months ended June 30, 2010, compared to the same period in 2009. This difference was primarily a result of the following:

• Capital expenditures.    A decrease in cash used of $218 million, including $30 million related to a decrease in capitalized interest, primarily related to placing scrubbers for our Maryland generating facilities in service in the fourth quarter of 2009 as part of our compliance with the Maryland Healthy Air Act; and

• Capital contributions paid to subsidiaries.    A decrease in cash used of $5 million related to our obligation to fund MC Asset Recovery in 2009 which, in 2010, we are no longer obligated to fund; partially offset by

• Proceeds from the sales of assets.    A decrease in cash provided of $14 million primarily related to the sales of emissions allowances in 2009 as compared to 2010; and

• Payments into restricted deposits.    An increase in cash used of $33 million primarily related to the funding of a Rabbi Trust established to fund severance payments for certain key employees in connection with the proposed merger with RRI Energy.

Financing Activities.    Net cash used in financing activities increased by $28 million for the six months ended June 30, 2010, compared to the same period in 2009. This difference was primarily a result of the repayment of long-term debt.

Discontinued Operations

Operating Activities.    In 2010 and 2009, net cash provided by operating activities from discontinued operations was primarily from the sale of transmission credits from our previously owned Wrightsville generating facility.

Environmental and Regulatory Matters

Regulation of Greenhouse Gases, including the RGGI.    Concern over climate change has led to significant legislative and regulatory efforts at the state and federal level to limit greenhouse gas emissions, especially CO2. One such effort is the RGGI, a multi-state initiative in the Mid-Atlantic and Northeast outlining a cap-and-trade program to reduce CO2 emissions from electric generating units with capacity of 25 MW or greater. The RGGI program calls for signatory states, which include Maryland, Massachusetts and New York, to stabilize CO2 emissions to an

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established baseline from 2009 through 2014, followed by a 2.5% reduction each year from 2015 through 2018. Each of these three states has promulgated regulations implementing the RGGI. Complying with the RGGI could have a material adverse effect upon our operations and our operating costs, depending upon the availability and cost of emissions allowances and the extent to which such costs may be offset by higher market prices to recover increases in operating costs caused by the RGGI.

During 2009, we produced approximately 14.6 million tons of CO2 at our Maryland, Massachusetts and New York generating facilities for a total cost of $45 million under the RGGI. In 2010, we expect to produce approximately 17.1 million tons of CO2 at our Maryland, Massachusetts and New York generating facilities. The RGGI regulations required those facilities to obtain allowances to emit CO2 beginning in 2009. Annual allowances generally were not granted to existing sources of such emissions. Instead, allowances have been made available for such facilities by purchase through periodic auctions conducted quarterly or through subsequent purchase from a party that holds allowances sold through a quarterly auction process. The Maryland regulations implementing the RGGI, which were amended on May 8, 2009, also provide that if the allowance clearing price reaches or exceeds $7 per ton of CO2 in the auctions of allowances that occur during 2009 to 2011 for the current year’s allowances, Maryland will withhold the remainder of that year’s allowances from sale in any future auction during that calendar year and make those allowances available by direct sale to generators in Maryland. In this scenario, between 0% and 50% of Maryland’s allowances allocated for sale in that year may be made available for purchase by such generators. Any such allowances made available for each generator to purchase at $7 per ton will be in proportion to each generator’s annual average heat input during specified historical periods as compared to the total average input for all affected Maryland generators in existence at that time. In none of the auctions held to date has the price reached $7 per ton.

The eighth auction of allowances by the RGGI states was held on June 9, 2010. The clearing price for the approximately 41 million allowances sold in the auction allocated for use beginning in 2009 was $1.88 per ton. Allowances allocated for use beginning in 2012 were also made available, and substantially all of the 2.1 million allowances available at the auction were sold at a price of $1.86 per ton. The allowances sold in this auction may be used for compliance in any of the RGGI states. Further auctions will occur quarterly through the end of the first compliance period in 2011, with the next auction scheduled for September 8, 2010.

In California, emissions of greenhouse gases are governed by California’s Global Warming Solutions Act (“AB 32”), which requires that statewide greenhouse gas emissions be reduced to 1990 levels by 2020. In December 2008, the California Air Resources Board (“CARB”) approved a Scoping Plan for implementing AB 32. The Scoping Plan requires that the CARB adopt a cap-and-trade regulation by January 2011 and that the cap and trade program begin in 2012. The CARB’s schedule for developing regulations to implement AB 32 is being coordinated with the schedule of the Western Climate Initiative (“WCI”) for development of a regional cap-and-trade program for greenhouse gas emissions. Through the WCI, California is working with other western states and Canadian provinces to coordinate and implement a regional cap-and-trade program. AB 32, and any plans, rules and programs approved to implement AB 32, could have a material adverse effect on how we operate our California generating facilities and the costs of operating the facilities.

In August 2008, Massachusetts adopted its Global Warming Solutions Act (the “Climate Protection Act”), which establishes a program to reduce greenhouse gas emissions significantly over the next 40 years. Under the Climate Protection Act, the Commonwealth of Massachusetts Department of Environmental Protection (“MADEP”) has established a reporting and verification system for statewide greenhouse gas emissions, including emissions from generating facilities

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producing all electricity consumed in Massachusetts, and determined the state’s greenhouse gas emissions level from 1990. The Massachusetts Executive Office of Energy and Environmental Affairs (“MAEEA”) is to establish statewide greenhouse gas emissions limits effective beginning in 2020 that will reduce such emissions from the 1990 levels by a range of 10% to 25% beginning in 2020, with the reduction increasing to 80% below 1990 levels by 2050. In setting these limits, the MAEEA is to consider the potential costs and benefits of various reduction measures, including emissions limits for electric generating facilities, and may consider the use of market-based compliance mechanisms. A violation of the emissions limits established under the Climate Protection Act may result in a civil penalty of up to $25,000 per day. Implementation of the Climate Protection Act could have a material adverse effect on how we operate our Massachusetts generating facilities and the costs of operating those facilities.

In April 2009, the Maryland General Assembly passed the Greenhouse Gas Reduction Act of 2009 (the “Maryland Act”), which became effective in October 2009. The Maryland Act requires a reduction in greenhouse gas emissions in Maryland by 25% from 2006 levels by 2020. However, this provision of the Maryland Act is only in effect through 2016 unless a subsequent statutory enactment extends its effective period. The Maryland Act requires the MDE to develop a proposed implementation plan to achieve these reductions by the end of 2011 and to adopt a final plan by the end of 2012.

In light of the United States Supreme Court ruling in Massachusetts v. EPA that greenhouse gases fit within the Clean Air Act’s definition of “air pollutant,” the EPA has proposed and promulgated regulations regarding the emission of greenhouse gases. In September 2009, the EPA promulgated a rule that requires owners of facilities in many sectors of the economy, including power generation, to report annually to the EPA the quantity and source of greenhouse gas emissions released from those facilities. In addition to this reporting requirement, the EPA has promulgated several rules that address greenhouse gas emissions. In December 2009, under a portion of the Clean Air Act that regulates vehicles, the EPA determined that elevated concentrations of greenhouse gases in the atmosphere endanger the public’s health and welfare through their contribution to climate change (“Endangerment Finding”). In April 2010, the EPA finalized the rule to regulate greenhouse gases from vehicles beginning in model year 2012. In April 2010, the EPA also issued its “Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs,” which addresses the scope of pollutants subject to certain permitting requirements under the Clean Air Act as well as when such requirements become effective. The EPA has stated that, because of the vehicle rule, emissions of greenhouse gases from new stationary sources such as power plants and from major modifications to such sources will become subject to certain Clean Air Act permitting requirements as of January 2011. These permitting requirements will require such sources to use “best available control technology” to limit their greenhouse gases, but the EPA has not provided guidance as to what this technology may be. We expect various parties to seek judicial review of these regulations and that the legal challenges to these regulations will not be resolved for several years. The additional substantive requirements under the Clean Air Act that may apply or may come to apply to stationary sources such as power plants are not clear at this time.

Various bills have been proposed in Congress to govern CO2 emissions from generating facilities. Current proposals include a cap-and-trade system that would require us to purchase allowances for some or all of the CO2 emitted by our generating facilities. Although we expect that market prices for electricity would increase following such legislation and would allow us to recover a portion of the cost of these allowances, we cannot predict with any certainty the actual increases in costs such legislation could impose upon us or our ability to recover such cost increases through higher market rates for electricity, and such legislation could have a material adverse effect on our consolidated statements of operations, financial position and cash flows. It is

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possible that Congress will take action to regulate greenhouse gas emissions within the next several years. The form and timing of any final legislation will be influenced by political and economic factors and is uncertain at this time. During 2009, we produced approximately 16.1 million tons of CO2 at our generating facilities. We expect to produce approximately 19 million total tons of CO2 at our generating facilities in 2010.

Clean Air Interstate Rule.    In 2005, the EPA promulgated the CAIR, which established in the eastern United States SO2 and NOx cap-and-trade programs applicable directly to states and indirectly to generating facilities. The NOx cap-and-trade program has two components, an annual program and an Ozone Season program. The CAIR SO2 cap-and-trade program builds off of the existing acid rain cap-and-trade program but requires generating facilities to surrender twice as many allowances to cover emissions from 2010 through 2014 and approximately three times as many allowances starting in 2015. Maryland, New York and Virginia are subject to the CAIR’s SO2 and both NOx trading programs. Massachusetts is subject only to the CAIR’s Ozone Season NOx trading program. These cap-and-trade programs were to be implemented in two phases, with the first phase going into effect in 2009 for NOx and 2010 for SO2 and more stringent caps going into effect in 2015. Various parties challenged the EPA’s adoption of the CAIR, and on July 11, 2008, the DC Circuit in State of North Carolina v. Environmental Protection Agency issued an opinion that would have vacated the CAIR. Various parties filed requests for rehearing with the DC Circuit and on December 23, 2008, the DC Circuit issued a second opinion in which it granted rehearing only to the extent that it remanded the case to the EPA without vacating the CAIR. Accordingly, the CAIR will remain effective until it is replaced by a rule consistent with the DC Circuit’s opinions. The four states in which we operate that are subject to CAIR (i.e., Maryland, Massachusetts, New York and Virginia) have promulgated regulations implementing the federal CAIR.

The EPA has stated that it expects to finalize the regulations to replace the CAIR in 2011, and on August 2, 2010, the EPA proposed a rule to replace the CAIR and two possible alternatives. If finalized, the CAIR replacement proposal and each of the alternatives would impose more stringent emission reductions than were required under the CAIR. The EPA’s proposed replacement rule would establish an emissions budget for each of thirty-one eastern and midwestern states and the District of Columbia, and would allow only limited interstate trading. For SO2, generating facilities in a region comprised of Illinois, Indiana, Iowa, Georgia, Kentucky, Ohio, Michigan, Missouri, New York, North Carolina, Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin would be subject to a more stringent cap on SO2 emissions than the other states subject to the rule, and would not be allowed to use emissions allowances from sources in a separate region comprised of Alabama, Delaware, the District of Columbia, Florida, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, Rhode Island and South Carolina. For both SO2 and NOx, interstate trading of emissions allowances would be allowed only to the extent that the total number of emissions allowances used within a particular state did not exceed the state’s budgeted allowances plus a “variability limit” intended to account for the variability of emissions due to changes in demand for electricity, timing of maintenance activities and unit outages. If total emissions allowances used within a state in a year exceed the annual budget plus the variability limit, then owners of generating facilities in that state that are deemed responsible for the state’s exceedance would be required to surrender additional allowances. The two alternatives on which the EPA is seeking comment would further restrict trading. Under the first alternative, only intrastate trading of allowances would be allowed. The second alternative would establish an emissions limit for each generating facility, with some averaging allowed. Finally, the EPA has also stated that it may issue a subsequent, more stringent rule if the EPA concludes that recent or planned revisions to the particulate matter and ozone NAAQS make necessary more stringent limits on SO2 and NOx emissions from electric generating facilities. We continue to monitor developments related to the EPA’s proposed alternatives issued on July 6, 2010 to replace the existing CAIR rule.

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Virginia CAIR Implementation.    In April 2006, Virginia enacted legislation that, among other things, granted the Virginia State Air Pollution Control Board the discretion to prohibit electric generating facilities located in a non-attainment area from purchasing SO2 and NOx allowances to achieve compliance under the EPA’s CAIR. In the fourth quarter of 2007, the Virginia State Air Pollution Control Board approved regulations that it interpreted as prohibiting the acquisition in any manner of SO2 and NOx allowances by facilities in non-attainment areas to satisfy the requirements of the CAIR as implemented by Virginia. Mirant Potomac River’s generating facility is located in a non-attainment area for ozone. Thus, this Virginia regulation effectively capped the Potomac River generating facility’s SO2 and NOx emissions at amounts equal to the allowances allocated to the facility, which constrained the facility’s operations. Mirant Potomac River challenged the legality of the regulations regarding the trading of NOx allowances in Virginia state court. On June 23, 2009, the Court of Appeals of Virginia issued an opinion concluding that the Virginia State Air Pollution Control Board exceeded its statutory authority. The Virginia State Air Pollution Control Board petitioned the Virginia Supreme Court to review the decision by the Virginia Court of Appeals, and the Virginia Supreme Court denied that request on October 15, 2009. In January 2010, the Virginia DEQ informed Mirant Potomac River that in light of the decision of the Virginia Court of Appeals vacating Virginia’s rules restricting trading, the Virginia DEQ had determined that issuing a state operating permit to limit NOx emissions during the Ozone Season was warranted. In July 2010, the Virginia DEQ issued a permit that limits NOx emissions from Mirant Potomac River’s generating facility to 890 tons during the Ozone Season that the Virginia DEQ asserts is effective for the 2010 Ozone Season. We think that at current market prices the new limit on NOx emissions during the Ozone Season will not have a material effect upon our results of operations, financial position or cash flows.

EPA Regulations Regarding Coal Combustion Byproducts.    In June 2010, the EPA proposed two alternatives for regulating byproducts of coal combustion (e.g., ash and gypsum) under the federal Resource Conservation and Recovery Act of 1976. Under the first proposal, these byproducts would be regulated as solid wastes. Under the second proposal, these byproducts would be regulated as “special wastes” in a manner similar to the regulation of hazardous waste with an exception for beneficial reuse of these byproducts. The second alternative would impose significantly more stringent requirements on and increase materially the cost of disposal of coal combustion byproducts. The EPA expects to finalize this rule in 2011.

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Critical Accounting Estimates

The sections below contain updates to our summary of critical accounting estimates included under Item 7, Management’s Discussion and Analysis of Results of Operations and Financial Condition, in our 2009 Annual Report on Form 10-K.

Revenue Recognition and Accounting for Energy Trading and Marketing Activities

Nature of Estimates Required.    We utilize two comprehensive accounting models, an accrual model and a fair value model, in reporting our results of operations and financial position. We determine the appropriate model for our operations based on applicable accounting standards.

The accrual model is used to account for our revenues from the sale of energy, capacity and ancillary services. We recognize revenue when it has been earned and collection is probable as a result of electricity delivered or capacity available to customers pursuant to contractual commitments that specify volume, price and delivery requirements. Sales of energy are based on economic dispatch, or they may be ‘as-ordered’ by an ISO or RTO, based on member participation agreements, but without an underlying contractual commitment. ISO and RTO revenues and revenues for sales of energy based on economic dispatch are recorded on the basis of MWh delivered, at the relevant day-ahead or real-time prices.

The fair value model is used to measure fair value on a recurring basis for derivative energy contracts that are used to manage our exposure to commodity price risk or that are used in our proprietary trading and fuel oil management activities. We use a variety of derivative financial instruments, such as futures, forwards, swaps and option contracts, in the management of our business. Such derivative financial instruments have varying terms and durations, or tenors, which range from a few days to a number of years, depending on the instrument.

Derivative financial instruments are reflected in our unaudited condensed consolidated financial statements at fair value, with changes in fair value recognized currently in income unless they qualify for a scope exception pursuant to the accounting guidance. Management considers fair value techniques and valuation adjustments related to credit and liquidity to be critical accounting estimates. These estimates are considered significant because they are highly susceptible to change from period to period and are dependent on many subjective factors. The fair value of derivative financial instruments is included in derivative contract assets and liabilities in our unaudited condensed consolidated balance sheets. Transactions that are not accounted for using the fair value model under the accounting guidance for derivative financial instruments are either not derivatives or qualify for a scope exception and are accounted for under accrual accounting. We recognize immediately in income inception gains and losses for transactions at other than the bid price or ask price.

Key Assumptions and Approach Used.    Determining the fair value of our derivatives is based largely on observable quoted prices from exchanges and independent brokers in active markets. We think that these prices represent the best available information for valuation purposes. For most delivery locations and tenors where we have positions, we receive multiple independent broker price quotes. In accordance with the exit price objective under the fair value measurements accounting guidance, the fair value of our derivative contract assets and liabilities is determined based on the net underlying position of the recorded derivative contract assets and liabilities using bid prices for our assets and ask prices for liabilities. If no active market exists, we estimate the fair value of certain derivative financial instruments using price extrapolation, interpolation and other quantitative methods. We have not identified any distressed market conditions that would alter our valuation techniques at June 30, 2010. Fair value estimates involve uncertainties and matters of significant judgment. Our techniques for fair value estimation include assumptions for market prices, correlation and volatility. The degree of estimation increases for longer

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duration contracts, contracts with multiple pricing features, option contracts and off-hub delivery points. Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report explains the fair value hierarchy. Our assets and liabilities classified as Level 3 in the fair value hierarchy represent approximately 3% of our total assets and 8% of our total liabilities measured at fair value at June 30, 2010.

The fair value of derivative contract assets and liabilities in our unaudited condensed consolidated balance sheets is also affected by our assumptions as to time value, credit risk and non-performance risk. The nominal value of the contracts is discounted using a forward interest rate curve based on LIBOR. In addition, the fair value of our derivative contract assets is reduced to reflect the estimated default risk of counterparties on their contractual obligations to us. The default risk of our counterparties for a significant portion of our overall net position is measured based on published spreads on credit default swaps. The fair value of our derivative contract liabilities is reduced to reflect our estimated risk of default on our contractual obligations to counterparties and is measured based on published default rates of our debt. The credit risk reflected in the fair value of our derivative contract assets and the non-performance risk reflected in the fair value of our derivative contract liabilities are calculated with consideration of our master netting agreements with counterparties and our exposure is reduced by cash collateral posted to us against these obligations.

Effect if Different Assumptions Used.    The amounts recorded as revenue or cost of fuel, electricity and other products change as estimates are revised to reflect actual results and changes in market conditions or other factors, many of which are beyond our control. Because we use derivative financial instruments and have not elected cash flow or fair value hedge accounting, certain components of our financial statements, including gross margin, operating income and balance sheet ratios, are at times volatile and subject to fluctuations in value primarily as a result of changes in forward energy and fuel prices. Significant negative changes in fair value could require us to post additional collateral either in the form of cash or letters of credit. Because the fair value measurements of our material assets and liabilities are based on observable market information, there is not a significant range of values around the fair value estimate. For our derivative financial instruments that are measured at fair value using quantitative pricing models, a significant change in estimate could affect our results of operations and cash flows at the time contracts are ultimately settled. The estimated fair value of our derivative contract assets and liabilities was a net asset of $714 million at June 30, 2010. A 10% change in electricity and fuel prices would result in approximately a $180 million change in the fair value of our net asset at June 30, 2010. See Item 3, “Quantitative and Qualitative Disclosures About Market Risk” for further sensitivities in our assumptions used to calculate fair value. See Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report for further information on derivative financial instruments related to energy trading and marketing activities.

Estimated Useful Lives

Nature of Estimates Required.    The estimated useful lives of our long-lived assets are used to compute depreciation expense, determine the carrying value of asset retirement obligations and estimate expected future cash flows attributable to an asset for the purposes of impairment testing. Estimated useful lives are based, in part, on the assumption that we provide an appropriate level of capital expenditures while the assets are still in operation. Without these continued capital expenditures, the useful lives of these assets could decrease significantly.

Key Assumptions and Approach Used.    Estimated useful lives are the mechanism by which we allocate the cost of long-lived assets over the asset’s service period. We perform depreciation studies periodically to update changes in estimated useful lives. The actual useful life of an asset

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could be affected by changes in estimated or actual commodity prices, environmental regulations, various legal factors, competitive forces and our liquidity and ability to sustain required maintenance expenditures and satisfy asset retirement obligations. We use composite depreciation for groups of similar assets and establish an average useful life for each group of related assets. In accordance with the accounting guidance related to evaluating long-lived assets for impairment, we cease depreciation on long-lived assets classified as held for sale. Also, we may revise the remaining useful life of an asset held and used subject to impairment testing.

We completed a depreciation study in the first quarter of 2010 that resulted in a change to the estimated useful lives of our long-lived assets. The change in useful lives resulted in a decrease of approximately $1 million and $2 million in depreciation and amortization expense for the three and six months ended June 30, 2010, respectively, and an increase of $0.01 and $0.01 in basic and diluted earnings per share for the three and six months ended June 30, 2010, respectively. In addition, the change in useful lives also resulted in an increase of $9 million in asset retirement obligations and a corresponding increase of $9 million in property, plant and equipment, net at June 30, 2010.

Effect if Different Assumptions Used.    The determination of estimated useful lives is dependent on subjective factors such as expected market conditions, commodity prices and anticipated capital expenditures. Since composite depreciation rates are used, the actual useful life of a particular asset may differ materially from the useful life estimated for the related group of assets.

Asset Impairments

Nature of Estimates Required.    We evaluate our long-lived assets, including intangible assets, for impairment in accordance with applicable accounting guidance. The amount of an impairment charge is calculated as the excess of the asset’s carrying value over its fair value, which generally represents the discounted expected future cash flows attributable to the asset, or in the case of an asset we expect to sell, as its fair value less costs to sell.

The accounting guidance related to impairments of long-lived assets requires management to recognize an impairment charge if the sum of the undiscounted expected future cash flows from a long-lived asset or definite-lived intangible asset is less than the carrying value of that asset. We evaluate our long-lived assets (property, plant and equipment) and definite-lived intangible assets for impairment whenever indicators of impairment exist or when we commit to sell the asset. These evaluations of long-lived assets and definite-lived intangible assets may result from significant decreases in the market price of an asset, a significant adverse change in the extent or manner in which an asset is being used or in its physical condition, a significant adverse change in legal factors or in the business climate that could affect the value of an asset, as well as other economic or operational analyses. If the carrying amount is not recoverable, an impairment charge is recorded.

The prices for power and natural gas remain low compared to several years ago. The energy gross margin from our baseload coal units is negatively affected by these price levels. Additionally, the current economic recession and various demand-response programs have resulted in a decrease in the forecasted gross margin of our generating facilities. On an ongoing basis, we evaluate our long-lived assets for indications of impairment; however, given the remaining useful lives for many of our generating facilities, the total undiscounted cash flows for these generating facilities are more significantly affected by the long-term view of supply and demand than by the short term fluctuations in energy prices and demand. As such, we typically do not consider short term decreases in either energy prices or demand to cause an impairment evaluation.

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Key Assumptions and Approach Used.    The impairment evaluation is a two-step process, the first of which involves comparing the undiscounted cash flows to the carrying value of the asset. If the carrying value exceeds the undiscounted cash flows, the fair value of the asset must be calculated on a discounted basis. The fair value of an asset is the price that would be received from a sale of the asset in an orderly transaction between market participants at the measurement date. Quoted market prices in active markets are the best evidence of fair value and are used as the basis for the measurement, when available. In the absence of quoted prices for identical or similar assets, fair value is estimated using various internal and external valuation methods. These methods include discounted cash flow analyses and reviewing available information on comparable transactions. The determination of fair value requires management to apply judgment in estimating future capacity and energy prices, environmental and maintenance expenditures and other cash flows. Our estimates of the fair value of the assets include significant assumptions about the timing of future cash flows, remaining useful lives and the selection of a discount rate that represents the estimated weighted average cost of capital consistent with the risk inherent in future cash flows.

Mirant Mid-Atlantic—Our Dickerson generating facility is located in Montgomery County, Maryland. On May 19, 2010, the Montgomery County Council passed a law that imposes a levy on major emitters of CO2 in Montgomery County of $5 per ton of CO2 emitted. The law defines a major emitter of CO2 in Montgomery County to be a stationary source emitting 1 million tons or more annually of CO2. The Dickerson generating facility would fall within the definition of a major emitter, and is currently the only facility in Montgomery County that would meet the criteria to be a major emitter. We estimate that the law will impose an additional $10 million to $15 million per year in levies owed to Montgomery County. We have challenged the legality of the law, but cannot predict the outcome of any such challenge. As a result of Montgomery County enacting the levy, we reviewed the Dickerson generating facility for impairment in the second quarter.

As a result of the impairment analysis, we determined that no impairment charge was required as the scenario-weighted undiscounted cash flows exceeded the carrying value. Our estimate of future cash flows related to the Dickerson generating facility involved considering scenarios related to the Montgomery County levy. The scenarios relate to the success of the legal challenges to the law.

Our assessment of the Dickerson generating facility in the second quarter of 2010 included assumptions about the following:

• electricity, fuel and emissions prices;

• capacity payments under the RPM provisions of PJM’s tariff;

• costs related to the Montgomery County CO2 emissions levy;

• costs of CO2 allowances under a potential federal cap-and-trade program;

• timing of announced transmission projects;

• timing and extent of generating capacity additions and retirements; and

• future capital expenditure requirements for the generating facility.

Our assumptions related to future electricity and fuel prices were based on observable market prices to the extent available and long-term prices derived from proprietary fundamental market modeling. The long-term capacity prices were based on the assumption that the PJM RPM capacity market would continue consistent with the current structure, with expected increases in revenue as a result of declines in reserve margins for periods beyond those for which auctions

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have already been completed. The total CO2 costs under the levy were determined by applying the cost of CO2 emissions to the expected generation forecasts. We also assumed that a federal CO2 cap-and-trade program would be instituted later this decade which would supplant all pre-existing CO2 programs, including the Montgomery County levy. There are several transmission projects currently planned in the Mid-Atlantic region, including the Trans-Allegheny Interstate Line (“TrAIL”), Mid-Atlantic Power Pathway transmission line (“MAPP”) and the Potomac-Appalachian transmission line (“PATH”). The assumptions regarding the timing of these projects were based on the current status of permitting and construction of each project. The assumptions regarding electricity demand are based on forecasts from PJM and assumptions for generating capacity additions and retirements consider publicly-announced projects, including renewable sources of electricity and additions of nuclear capacity. Capital expenditures include the remaining contract retention payments for the remainder of 2010 for the completion of the Maryland Healthy Air Act pollution control equipment.

The estimates and assumptions used in the impairment analysis of the Dickerson generating facility are subject to a high degree of uncertainty, and changes in these assumptions could result in future impairment losses. The scenario-weighted undiscounted cash flows exceeded the carrying value of the Dickerson generating facility by less than 5%. A decrease in projected electricity prices or an increase in coal prices would decrease the future cash flows of the Dickerson generating facility. Additionally, changes to the structure of the PJM RPM capacity market could negatively affect the future capacity prices the facility will earn. The assumptions include the development of a potential federal cap-and-trade program for CO2 emissions. If we are not compensated for the costs of complying with a federal CO2 program through allocated CO2 allowances, increased electricity and capacity prices or decreased coal prices, the cash flows of the Dickerson generating facility would be negatively affected. In addition, if pre-existing CO2 emission programs such as the Montgomery County levy are allowed to remain in effect under a federal CO2 program, the cash flows of the Dickerson generating facility would be negatively affected. If the planned transmission projects are completed earlier than assumed, this could negatively affect the cash flows of the facility. Also, changes in assumptions regarding generating capacity additions and retirements in the PJM region could affect the cash flows, depending on the timing and extent of additions and retirements. The assumptions include only those capital expenditures needed to keep the plant operational through its estimated remaining useful life. However, changes in laws or regulations could require additional capital investments beyond amounts forecasted to keep the plant operational.

The estimates of future cash flows did not include contracts entered into to hedge economically the expected generation of Mirant Mid-Atlantic’s generating facilities. The cash flows related to these contracts were excluded because they were not directly attributable to the Dickerson generating facility.

For purposes of impairment testing, a long-lived asset or assets must be grouped at the lowest level of independent identifiable cash flows. The Dickerson generating facility was determined to be its own group, which includes the leasehold improvements for the leased generating units at the facility. The carrying value of the Dickerson generating facility represented approximately 18% of our total property, plant and equipment, net at June 30, 2010.

Mirant Bowline—In April 2010, the NYISO issued its annual peak load and energy forecast, which we have evaluated and utilized to develop cash flow projections for our Bowline generating facility. Incorporating these assumptions, along with the current status related to the property tax proceedings, our undiscounted cash flows significantly exceed the carrying value of the long-lived assets. The carrying value of the Bowline generating facility represented approximately 4% of our total property, plant and equipment, net at June 30, 2010.

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Emissions Allowances—In July 2010, the EPA issued a proposed replacement for the CAIR. The market prices for SO2 and NOx emissions allowances continued to decline in the second quarter and declined further as a result of the proposed rule. Our historical accounting policy has been to include emissions allowances in our asset groupings when evaluating long-lived assets for impairment. However, to the extent the final EPA rule significantly modifies or ends the current cap-and-trade program, we may evaluate whether our SO2 and NOx emissions allowances included in property, plant and equipment and intangible assets should be evaluated separately from the underlying generating facilities. The carrying value of the SO2 and NOx emissions allowances included in property, plant and equipment and intangible assets at June 30, 2010 was approximately $190 million. See “Environmental and Regulatory Matters” earlier in this section for further information on the EPA’s proposed replacement of the CAIR.

Litigation

We are currently involved in certain legal proceedings. We estimate the range of liability through discussions with applicable legal counsel and analysis of case law and legal precedents. We record our best estimate of a loss, or the low end of our range if no estimate is better than another estimate within a range of estimates, when the loss is considered probable and can be reasonably estimated. As additional information becomes available, we reassess the potential liability related to our pending litigation and revise our estimates. Revisions in our estimates of the potential liability could materially affect our results of operations and the ultimate resolution may be materially different from the estimates that we make.

See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for further information related to our legal proceedings.

Recently Adopted Accounting Guidance

See Note A to our unaudited condensed consolidated financial statements contained elsewhere in this report for further information related to our recently adopted accounting guidance.

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Item 3. Quantitative and Qualitative Disclosures About Market Risk

We are exposed to market risk, primarily associated with commodity prices. We also consider risks associated with interest rates and credit when valuing our derivative financial instruments.

The estimated net fair value of our derivative contract assets and liabilities was a net asset of $714 million and $898 million at June 30, 2010 and 2009, respectively. The following tables provide a summary of the factors affecting the change in fair value of the derivative contract asset and liability accounts for the six months ended June 30, 2010 and 2009 (in millions):

	Commodity Contracts
	Asset Management			Trading Activities			Total
Fair value of portfolio of assets and liabilities at January 1, 2010	$	701		$	1		$	702
Gains (losses) recognized in the period, net:
New contracts and other changes in fair value1		36			44			80
Roll off of previous values2		(177	)		(39	)		(216	)
Purchases, issuances and settlements3		150			(2	)		148
Fair value of portfolio of assets and liabilities at June 30, 2010	$	710		$	4		$	714
	Commodity Contracts
	Asset Management			Trading Activities			Total
Fair value of portfolio of assets and liabilities at January 1, 2009	$	549		$	106		$	655
Gains (losses) recognized in the period, net:
New contracts and other changes in fair value1		217			(80	)		137
Roll off of previous values2		(197	)		(54	)		(251	)
Purchases, issuances and settlements3		283			74			357
Fair value of portfolio of assets and liabilities at June 30, 2009	$	852		$	46		$	898

¹ The fair value, as of the end of each quarterly reporting period, of contracts entered into during each quarterly reporting period and the gains or losses attributable to contracts that existed as of the beginning of each quarterly reporting period and were still held at the end of each quarterly reporting period.

² The fair value, as of the beginning of each quarterly reporting period, of contracts that settled during each quarterly reporting period.

³ Denotes cash settlements during each quarterly reporting period of contracts that existed at the beginning of each quarterly reporting period.

In May 2010, we concluded that we could no longer assert that physical delivery is probable for many of our coal agreements. The conclusion was based on expected generation levels, changes observed in the coal markets and substantial progress in the construction of a coal blending facility at the Morgantown generating facility that will allow for greater flexibility of our coal supply. Because we can no longer assert that physical delivery of coal from these agreements is probable, we are required to apply fair value accounting for these contracts in the current period and prospectively. The fair value of these derivative contracts is included in the tables above.

We did not elect the fair value option for any financial instruments under the accounting guidance. However, we do transact using derivative financial instruments and they are required to be recorded at fair value under the accounting guidance related to derivative financial instruments in our unaudited condensed consolidated balance sheets.

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Counterparty Credit Risk

The valuation of our derivative contract assets is affected by the default risk of the counterparties with which we transact. We recognized a reserve, which is reflected as a reduction of our derivative contract assets, related to counterparty credit risk of $36 million and $13 million at June 30, 2010 and December 31, 2009, respectively.

In accordance with the fair value measurements accounting guidance, we calculate the credit reserve through consideration of observable market inputs, when available. Our non-collateralized power hedges entered into by Mirant Mid-Atlantic with our major trading partners, which represent 61% of our net notional power position at June 30, 2010, are senior unsecured obligations of Mirant Mid-Atlantic and the counterparties, and do not require either party to post cash collateral for initial margin or for securing exposure as a result of changes in power or natural gas prices. We calculate the credit reserve for our non-collateralized power hedges entered into by Mirant Mid-Atlantic using published spreads on credit default swaps for our counterparties applied to our current exposure and potential loss exposure from the financial commitments in our risk management portfolio. Potential loss exposure is calculated as our current exposure plus a calculated VaR over the remaining life of the contracts. We applied a similar approach to calculate the fair value of our coal contracts included in derivative contract assets and liabilities in the unaudited condensed consolidated balance sheets and which also do not require either party to post cash collateral for initial margin or for securing exposure as a result of changes in coal prices. We do not, however, transact in credit default swaps or any other credit derivative. An increase of 10% in the spread of credit default swaps of our major trading partners for our non-collateralized power hedges entered into by Mirant Mid-Atlantic would result in an increase of $3 million in our credit reserve as of June 30, 2010. An increase of 10% in the spread of credit default swaps of our coal suppliers would result in an increase of less than $1 million in our credit reserve for our coal agreements included in derivative contract assets and liabilities in the unaudited condensed consolidated balance sheet as of June 30, 2010.

We have historically calculated the credit reserve for the remainder of our portfolio considering our current exposure, net of the effect of credit enhancements, and potential loss exposure from the financial commitments in our risk management portfolio, and applied historical default probabilities using current credit ratings of our counterparties. In the fourth quarter of 2009, we changed our methodology to calculate the credit reserve for the remainder of our portfolio to also use published spreads, where available, or proxies based upon published spreads, on credit default swaps for our counterparties applied to our current exposure and potential loss exposure from the financial commitments in our risk management portfolio. The change in credit reserve methodology did not have a material effect on the fair value of our derivative contract assets and liabilities for the remainder of the portfolio because the default risk is generally offset by cash collateral or other credit enhancements. An increase in counterparty credit risk could affect the ability of our counterparties to deliver on their obligations to us. As a result, we may require our counterparties to post additional collateral or provide other credit enhancements. An increase of 10% in the spread of credit default swaps of our trading partners for the remainder of our portfolio would result in an immaterial increase in our credit reserve as of June 30, 2010.

Once we have delivered a physical commodity or agreed to financial settlement terms, we are subject to collection risk. Collection risk is similar to credit risk and collection risk is accounted for when we establish our provision for uncollectible accounts. We manage this risk using the same techniques and processes used in credit risk discussed above.

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We also monitor counterparty credit concentration risk on both an individual basis and a group counterparty basis. See Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report for further discussion of our counterparty credit concentration risk.

Mirant Credit Risk

In valuing our derivative contract liabilities, we apply a valuation adjustment for our non-performance, which is based on the probability of our default. Historically, we determined this non-performance adjustment value by multiplying our liability exposure, including outstanding balances for realized transactions, unrealized transactions and the effect of credit enhancements, by the one year probability of our default based on our current credit rating. The one year probability of default rate considers the tenor of our portfolio and the correlation of default between counterparties within our industry. In the fourth quarter of 2009, we changed our methodology to incorporate published spreads on our credit default swaps, where available, or proxies based upon published spreads. An increase of 10% in the spread of our credit default swap rate would have an immaterial effect on our unaudited condensed consolidated statement of operations for the six months ended June 30, 2010.

Broker Quotes

In determining the fair value of our derivative contract assets and liabilities, we use third-party market pricing where available. We consider active markets to be those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis. Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report explains the fair value hierarchy. Our transactions in Level 1 of the fair value hierarchy primarily consist of natural gas and crude oil futures traded on the NYMEX and swaps cleared against NYMEX prices. For these transactions, we use the unadjusted published settled prices on the valuation date. Our transactions in Level 2 of the fair value hierarchy primarily include non-exchange-traded derivatives such as OTC forwards, swaps and options. We value these transactions using quotes from independent brokers or other widely-accepted valuation methodologies. Transactions are classified in Level 2 if substantially all (greater than 90%) of the fair value can be corroborated using observable market inputs such as transactable broker quotes. In accordance with the exit price objective under the fair value measurements accounting guidance, the fair value of our derivative contract assets and liabilities is determined based on the net underlying position of the recorded derivative contract assets and liabilities using bid prices for our assets and ask prices for liabilities. The quotes that we obtain from brokers are non-binding in nature, but are from brokers that typically transact in the market being quoted and are based on their knowledge of market transactions on the valuation date. We typically obtain multiple broker quotes on the valuation date for each delivery location that extend for the tenor of our underlying contracts. The number of quotes that we can obtain depends on the relative liquidity of the delivery location on the valuation date. If multiple broker quotes are received for a contract, we use an average of the quoted bid or ask prices. If only one broker quote is received for a delivery location and it cannot be validated through other external sources, we will assign the quote to a lower level within the fair value hierarchy. In some instances, we may combine broker quotes for a liquid delivery hub with broker quotes for the price spread between the liquid delivery hub and the delivery location under the contract. We also may apply interpolation techniques to value monthly strips if broker quotes are only available on a seasonal or annual basis. We perform validation procedures on the broker quotes at least on a monthly basis. The validation procedures include reviewing the quotes for accuracy and comparing them to our internal price curves. In certain instances, we may discard a broker quote if it is a clear

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outlier and multiple other quotes are obtained. At June 30, 2010, we obtained broker quotes for 100% of our delivery locations classified in Level 2 of the fair value hierarchy.

Inactive markets are considered to be those markets with few transactions, noncurrent pricing or prices that vary over time or among market makers. Our transactions in Level 3 of the fair value hierarchy may involve transactions whereby observable market data, such as broker quotes, are not available for substantially all of the tenor of the contract or we are only able to obtain indicative broker quotes that cannot be corroborated by observable market data. In such cases, we may apply valuation techniques such as extrapolation to determine fair value. Proprietary models may also be used to determine the fair value of certain of our derivative contract assets and liabilities that may be structured or otherwise tailored. The degree of estimation increases for longer duration contracts, contracts with multiple pricing features, option contracts and off-hub delivery points. Our techniques for fair value estimation include assumptions for market prices, correlation and volatility. At June 30, 2010, our assets and liabilities classified as Level 3 in the fair value hierarchy represented approximately 3% of our total assets and 8% of our total liabilities measured at fair value. See Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report for further explanation of the fair value hierarchy.

Interest Rate Risk

Fair Value Measurement

We are also subject to interest rate risk when determining the fair value of our derivative contract assets and liabilities. The nominal value of our derivative contract assets and liabilities is also discounted to account for time value using a LIBOR forward interest rate curve based on the tenor of our transactions. An increase of 100 basis points in the average LIBOR rate would result in a decrease of $25 million to our derivative contract assets and a decrease of $12 million to our derivative contract liabilities at June 30, 2010.

Debt

Our debt that is subject to variable interest rates consists of the Mirant North America senior secured term loan and senior secured revolving credit facility. If both were fully drawn, the amount subject to variable interest rates would be approximately $1.1 billion and a 1% per annum increase in the average market rate would result in an increase in our annual interest expense of approximately $11 million.

Coal Agreement Risk

Our coal supply comes primarily from the Central Appalachian and Northern Appalachian coal regions. We enter into contracts of varying tenors to secure appropriate quantities of fuel that meet the varying specifications of our generating facilities. For our coal-fired generating facilities, we purchase most of our coal from a small number of strategic suppliers under contracts with terms of varying lengths, some of which extend to 2013. We had exposure to four counterparties at June 30, 2010, and exposure to five counterparties at December 31, 2009, that each represented an exposure of more than 10% of our total coal commitments, by volume, and in aggregate represented approximately 74% and 85% of our total coal commitments at June 30, 2010 and December 31, 2009, respectively.

In addition, we have non-performance risk associated with our coal agreements. There is risk that our coal suppliers may not provide the contractual quantities on the dates specified within the agreements or the deliveries may be carried over to future periods. If our coal suppliers do not perform in accordance with the agreements, we may have to procure coal in the market to meet

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our needs, or power in the market to meet our obligations. In addition, a number of the coal suppliers do not currently have an investment grade credit rating and, accordingly, we may have limited recourse to collect damages in the event of default by a supplier. We seek to mitigate this risk through diversification of coal suppliers, to the extent possible, and through guarantees. Despite this, there can be no assurance that these efforts will be successful in mitigating credit risk from coal suppliers. Non-performance or default risk by our coal suppliers could have a material adverse effect on our future results of operations, financial condition and cash flows. See Note B to our unaudited condensed consolidated financial statements contained elsewhere in this report for further explanation of these agreements and our credit concentration tables.

Certain of our coal contracts are not required to be recorded at fair value under the accounting guidance for derivative financial instruments. As such, these contracts are not included in derivative contract assets and liabilities in the accompanying unaudited condensed consolidated balance sheets. As of June 30, 2010, the estimated net fair value of these coal agreements was approximately $13 million.

For a further discussion of market risks, our risk management policy and our use of VaR to measure some of these risks, see Item 7A, Quantitative and Qualitative Disclosures About Market Risk in our 2009 Annual Report on Form 10-K.

Item 4. Controls and Procedures

Effectiveness of Disclosure Controls and Procedures

As required by Exchange Act Rule 13a-15(b), our management, including our Chief Executive Officer and our Chief Financial Officer, conducted an assessment of the effectiveness of the design and operation of our disclosure controls and procedures (as defined by Rules 13a-15(e) and 15d-15(e) under the Exchange Act), as of June 30, 2010. Based upon this assessment, our management concluded that, as of June 30, 2010, the design and operation of these disclosure controls and procedures were effective.

Changes in Internal Control over Financial Reporting

There have been no changes in Mirant’s internal control over financial reporting that have occurred during the quarter ended June 30, 2010, that have materially affected, or are reasonably likely to materially affect, such internal control over financial reporting.

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PART II

Item 1. Legal Proceedings

See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for discussion of the material legal proceedings to which we are a party.

Item 1A. Risk Factors

The following are factors that could affect our future performance. Further information concerning the proposed merger with RRI Energy was included in a joint proxy statement/prospectus contained in the registration statement on Form S-4 filed by RRI Energy with the SEC on May 28, 2010, and amended on July 6, 2010.

Risks related to the proposed merger with RRI Energy

We may be unable to obtain the approvals required to complete the merger with RRI Energy or, in order to do so, the combined company may be required to comply with material restrictions or conditions.

On April 11, 2010, we announced the execution of a Merger Agreement with RRI Energy. Before the merger may be completed, both Mirant and RRI Energy will need to obtain stockholder approval in connection with the proposed transaction. In addition, various filings must be made with FERC and various regulatory, antitrust and other authorities in the United States. These governmental authorities may impose conditions on the completion, or require changes to the terms, of the merger, including restrictions or conditions on the business, operations or financial performance of the combined company following completion of the merger. These conditions or changes could have the effect of delaying completion of the merger or imposing additional costs on or limiting the revenues of the combined company following the merger, which could have a material adverse effect on the financial results of the combined company and/or cause either Mirant or RRI Energy to abandon the merger.

In addition, several putative class actions have been brought on behalf of holders of Mirant common stock seeking to enjoin the merger or other alternative relief. If these actions or similar actions that may be brought are successful, the merger could be delayed or prevented. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in the report for further information on pending litigation related to the merger.

If we are unable to complete the merger, we still will incur and will remain liable for significant transaction costs, including legal, accounting, filing, printing and other costs relating to the merger. Also, depending upon the reasons for not completing the merger, including whether we have received or entered into a competing takeover proposal, we may be required to pay RRI Energy a termination fee of either $37.15 million or $57.78 million.

If completed, our merger with RRI Energy may not achieve its intended results.

We entered into the Merger Agreement with the expectation that the merger would result in various benefits, including, among other things, cost savings and operating efficiencies. Achieving the anticipated benefits of the merger is subject to a number of uncertainties, including whether the businesses of Mirant and RRI Energy are integrated in an efficient and effective manner. Failure to achieve these anticipated benefits could result in increased costs, decreases in the amount of expected revenues generated by the combined company and diversion of management’s time and energy and could have an adverse effect on the combined company’s business, financial results and prospects.

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We will be subject to business uncertainties and contractual restrictions while the merger with RRI Energy is pending that could adversely affect our financial results.

Uncertainty about the effect of the merger with RRI Energy on employees, customers and suppliers may have an adverse effect on our business. Although we intend to take steps designed to reduce any adverse effects, these uncertainties may impair our ability to attract, retain and motivate key personnel until the merger is completed and for a period of time thereafter, and could cause customers, suppliers and others that deal with us to seek to change existing business relationships.

Employee retention and recruitment may be particularly challenging prior to the completion of the merger, as employees and prospective employees may experience uncertainty about their future roles with the combined company. If, despite our retention and recruiting efforts, key employees depart or fail to accept employment with us because of issues relating to the uncertainty and difficulty of integration or a desire not to remain with the combined company, our financial results could be affected.

The pursuit of the merger and the preparation for the integration of Mirant and RRI Energy may place a significant burden on management and internal resources. The diversion of management attention away from day-to-day business concerns and any difficulties encountered in the transition and integration process could affect our business, results of operations and financial condition.

In addition, we are restricted under the Merger Agreement, without RRI Energy’s consent, from making certain acquisitions and taking other specified actions until the merger occurs or the Merger Agreement terminates. These restrictions may prevent us from pursuing otherwise attractive business opportunities and making other changes to our business prior to completion of the merger or termination of the Merger Agreement.

Risks Related to the Operation of our Business

Our revenues are unpredictable because most of our generating facilities operate without long-term power sales agreements, and our revenues and results of operations depend on market and competitive forces that are beyond our control.

We sell capacity, energy and ancillary services from our generating facilities into competitive power markets on a short-term fixed price basis or through power sales agreements. Since mid-2007, our revenues from selling capacity have become a significant part of our overall revenues. Except for our Potrero generating facility, we are not guaranteed recovery of our costs or any return on our capital investments through mandated rates. The market for wholesale electric energy and energy services reflects various market conditions beyond our control, including the balance of supply and demand, our competitors’ marginal and long-run costs of production, and the effect of market regulation. The price for which we can sell our output may fluctuate on a day-to-day basis, and our ability to transact may be affected by the overall liquidity in the markets in which we operate. The markets in which we compete remain subject to one or more forms of regulation that limit our ability to raise prices during periods of shortage to the degree that would occur in a fully deregulated market and may thereby limit our ability to recover costs and an adequate return on our investment. Our revenues and results of operations are influenced by factors that are beyond our control, including:

• the failure of market regulators to develop and maintain efficient mechanisms to compensate merchant generators for the value of providing capacity needed to meet demand;

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• actions by regulators, ISOs, RTOs and other bodies that may artificially modify supply and demand levels and prevent capacity and energy prices from rising to the level necessary for recovery of our costs, our investment and an adequate return on our investment;

• legal and political challenges to the rules used to calculate capacity payments in the markets in which we operate;

• the ability of wholesale purchasers of power to make timely payment for energy or capacity, which may be adversely affected by factors such as retail rate caps, refusals by regulators to allow utilities to recover fully their wholesale power costs and investments through rates, catastrophic losses and losses from investments by utilities in unregulated businesses;

• increases in prevailing market prices for fuel oil, coal, natural gas and emissions allowances that may not be reflected in prices we receive for sales of energy;

• increases in electricity supply as a result of actions of our current competitors or new market entrants, including the development of new generating facilities or alternative energy sources that may be able to produce electricity less expensively than our generating facilities and improvements in transmission that allow additional supply to reach our markets;

• increases in credit standards, margin requirements, market volatility or other market conditions that could increase our obligations to post collateral beyond amounts that are expected, including additional collateral costs associated with OTC hedging activities as a result of the recently enacted OTC regulations and the Dodd-Frank Act;

• decreases in energy consumption resulting from demand-side management programs such as automated demand response, which may alter the amount and timing of consumer energy use;

• the competitive advantages of certain competitors, including continued operation of older power plants in strategic locations after recovery of historic capital costs from ratepayers;

• existing or future regulation of our markets by the FERC, ISOs and RTOs, including any price limitations and other mechanisms to address some of the price volatility or illiquidity in these markets or the physical stability of the system;

• regulatory policies of state agencies that affect the willingness of our customers to enter into long-term contracts generally, and contracts for capacity in particular;

• changes in the rate of growth in electricity usage as a result of such factors as national and regional economic conditions and implementation of conservation programs;

• seasonal variations in energy and natural gas prices, and capacity payments; and

• seasonal fluctuations in weather, in particular abnormal weather conditions.

In addition, unlike most other commodities, electric energy can only be stored on a very limited basis and generally must be produced at the time of use. As a result, the wholesale power markets are subject to substantial price fluctuations over relatively short periods of time and can be unpredictable.

Because of the current market design in California, our existing generating facilities may have a limited life unless we make significant capital expenditures to increase their commercial and environmental performance.

Our existing generating facilities in California depend almost entirely on payments in support of system reliability. The energy market, as currently constituted, will not justify the capital

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expenditures necessary to repower or reconstruct our facilities to make them commercially viable in a merchant market. If a commercially reasonable capacity market were to be instituted by the CAISO or we could obtain a contract with a creditworthy buyer, it is possible that we could justify investing the necessary capital to repower or reconstruct our facilities. Absent that, our existing generating facilities will be commercially viable only as long as they are necessary for reliability. We plan to shut down the Contra Costa generating facility in April 2013 and the Potrero generating facility when it is no longer needed for reliability as determined by the CAISO. The CAISO will not determine which units of the Potrero generating facility are required to operate in 2011 for reliability purposes until the fall of 2010. If none of the units of the Potrero generating facility will be required to operate for reliability purposes after 2010, then all of the units will close by the end of 2010.

Our Mirant Marsh Landing development project is subject to permitting, construction and financing risks and, if we are unsuccessful in addressing those risks, we may not recover our investment in the project or our return on the project may be lower than expected.

In 2009, Mirant Marsh Landing entered into a ten-year PPA with PG&E for 760 MW of natural gas-fired peaking generation to be constructed adjacent to our Contra Costa generating facility near Antioch, California. Under the terms of the PPA, Mirant Marsh Landing bears the risks of (i) obtaining the permits and approvals necessary for construction and operation of the generating facility, (ii) securing the necessary financing for construction of the generating facility and (iii) completing the construction of the generating facility by May 2013. The process for obtaining governmental permits and approvals is complicated and lengthy and is subject to significant uncertainties. Mirant Marsh Landing has posted letters of credit of approximately $12 million to secure its obligations under the PPA, which amount is expected to increase in the third quarter to approximately $80 million as a result of the approval of the PPA by the CPUC on July 29, 2010. Mirant Marsh Landing has also posted a surety bond of $4 million to secure obligations for transmission system improvements. Although we have attempted to minimize the financial risks in the development of the Marsh Landing generating facility, in the event that we are unsuccessful in securing the required permits, approvals and financing necessary to construct the facility, we may not be able to recover our investment in the development of the project. If we do not complete the construction of the Marsh Landing generating facility by May 2013, our return on the project may be lower than expected. Should the facility not perform as required under the terms of the PPA, PG&E may have the right to terminate the PPA. As there is currently no wholesale capacity market in California, if PG&E were to terminate the PPA, our return on the project might be materially lower than expected.

We are exposed to the risk of fuel and fuel transportation cost increases and volatility and interruption in fuel supply because our generating facilities generally do not have long-term agreements for the supply of natural gas, coal and oil.

Although we attempt to purchase fuel based on our expected fuel requirements, we still face the risks of supply interruptions and fuel price volatility. Our cost of fuel may not reflect changes in energy and fuel prices in part because we must pre-purchase inventories of coal and oil for reliability and dispatch requirements, and thus the price of fuel may have been determined at an earlier date than the price of energy generated from it. The price we can obtain from the sale of energy may not rise at the same rate, or may not rise at all, to match a rise in fuel costs. This may have a material adverse effect on our financial performance. The volatility of fuel prices could adversely affect our financial results and operations.

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We enter into contracts of varying terms to secure appropriate quantities of fuel that meet the varying specifications of our generating facilities. For our coal-fired generating facilities, we purchase most of our coal from a small number of strategic suppliers under contracts with terms of varying lengths, some of which extend to 2013. We have non-performance risk associated with our coal agreements. There is risk that our coal suppliers may not provide the contractual quantities on the dates specified within the agreements, or the deliveries may be carried over to future periods. If our coal suppliers do not perform in accordance with the agreements, we may have to procure coal in the market to meet our needs, or power in the market to meet our obligations. In addition, a number of the coal suppliers do not currently have an investment grade credit rating and, accordingly, we may have limited recourse to collect damages in the event of default by a supplier. We seek to mitigate this risk through diversification of coal suppliers, to the extent possible, and through guarantees. Despite this, there can be no assurance that these efforts will be successful in mitigating credit risk from coal suppliers. Non-performance or default risk by our coal suppliers could have a material adverse effect on our future results of operations, financial condition and cash flows.

For our oil-fired generating facilities, we typically purchase fuel from a limited number of suppliers under contracts with terms of varying lengths. If our oil suppliers do not perform in accordance with the agreements, we may have to procure oil in the market to meet our needs, or power in the market to meet our obligations.

Operation of our generating facilities involves risks that may have a material adverse effect on our cash flows and results of operations.

The operation of our generating facilities involves various operating risks, including, but not limited to:

• the output and efficiency levels at which those generating facilities perform;

• interruptions in fuel supply and quality of available fuel;

• disruptions in the delivery of electricity;

• adverse zoning;

• breakdowns or equipment failures (whether a result of age or otherwise);

• violations of our permit requirements or changes in the terms of or revocation of permits;

• releases of pollutants and hazardous substances to air, soil, surface water or groundwater;

• ability to transport and dispose of coal ash at reasonable prices;

• shortages of equipment or spare parts;

• labor disputes;

• operator errors;

• curtailment of operations because of transmission constraints;

• failures in the electricity transmission system which may cause large energy blackouts;

• implementation of unproven technologies in connection with environmental improvements; and

• catastrophic events such as fires, explosions, floods, earthquakes, hurricanes or other similar occurrences.

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A decrease in, or the elimination of, the revenues generated by our facilities or an increase in the costs of operating such facilities could materially affect our cash flows and results of operations, including cash flows available to us to make payments on our debt or our other obligations.

Our operating results are subject to quarterly and seasonal fluctuations.

Our operating results have fluctuated in the past and are likely to continue to do so in the future as a result of a number of factors, including seasonal variations in demand and fuel prices.

Our generating facilities are located in a few geographic markets, resulting in concentrated exposure to the Mid-Atlantic market.

Our generating facilities are located in California, Maryland, Massachusetts, New York and Virginia. For the three and six months ended June 30, 2010 and 2009, we earned a significant portion of our operating revenue and gross margin from the PJM market, where our Mid-Atlantic generating facilities are located. Having our generating facilities in a few geographic markets results in our concentrated exposure to those markets, especially PJM.

Our income tax NOL carry forwards could be substantially limited if we experience an ownership change as defined in the Internal Revenue Code.

As of December 31, 2009, we had approximately $2.7 billion of federal NOL carry forwards. Our ability to deduct the NOL carry forwards against future taxable income could be substantially limited if we experience an “ownership change,” as defined in Section (“§”) 382 of the Internal Revenue Code of 1986, at or near our recent stock price levels. In general, an ownership change would occur if certain shifts in ownership of the Company’s stock exceed 50 percentage points measured over a specified period of time. Given §382’s broad definition, an ownership change could be the unintended consequence of otherwise normal market trading in the Company’s stock that is outside our control. On March 26, 2009, we adopted a stockholder rights plan (the “Stockholder Rights Plan”) to reduce the likelihood of such an unintended ownership change occurring. However, there can be no assurance that the Stockholder Rights Plan will prevent such an ownership change.

Under the Stockholder Rights Plan, when a person or group has obtained beneficial ownership of 4.9% or more of our common stock, or an existing holder with greater than 4.9% ownership acquires more shares representing at least an additional 0.2% of our common stock, there would be a triggering event causing potential significant dilution in the economic interest and voting power of such person or group. Such triggering event would also occur if an existing holder with greater than 4.9% ownership but less than 5.0% ownership acquires more shares that would result in such stockholder obtaining beneficial ownership of 5.0% or more of our common stock. The Board of Directors has the discretion to exempt an acquisition of common stock from the provisions of the Stockholder Rights Plan if it determines the acquisition will not jeopardize tax benefits or is otherwise in our best interests.

On February 26, 2010, Mirant announced that the Board of Directors had extended the Stockholder Rights Plan and on April 28, 2010, the Company entered into a further amendment to the Stockholders Rights Plan (the “Second Amendment”) with Mellon Investor Services LLC, as Rights Agent (the “Rights Agent”). The Second Amendment reduces the maximum term of the Stockholders Rights Plan from ten years to three years. Under the terms of the Stockholder Rights Plan (prior to the Second Amendment), the rights (as defined in the Stockholder Rights Plan) would have expired on the earliest of (i) February 25, 2020 (the “Fixed Date”), (ii) the time at which the rights are redeemed, (iii) the time at which the rights are exchanged, (iv) the repeal

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of §382 or any successor statute, or any other change, if the Board of Directors determines that the Stockholder Rights Plan is no longer necessary for the preservation of tax benefits, (v) the beginning of a taxable year of the Company for which the Board of Directors determines that no tax benefits may be carried forward and no built-in losses may be recognized, (vi) February 25, 2011 if stockholder approval has not been obtained, or (vii) a determination by the Board of Directors, prior to the time any person or group becomes an Acquiring Person (as defined in the Stockholder Rights Plan), that the Stockholder Rights Plan and the rights are no longer in the best interests of the Company and its stockholders. The Second Amendment amends the Fixed Date to February 25, 2013. On May 6, 2010, the Company’s stockholders approved the Stockholder Rights Plan at the Company’s 2010 Annual Meeting of Stockholders.

Mirant has previously announced its intention to enter into a merger with RRI Energy Inc. In connection with entering into the Merger Agreement, we took such actions necessary to render the Stockholder Rights Plan inapplicable to the merger transaction with RRI Energy.

Provided neither has experienced an ownership change between December 31, 2009 and the closing date of the merger, each of Mirant and RRI Energy is expected separately to experience an ownership change on the merger date as a consequence of the merger. Immediately following the merger, Mirant and RRI Energy will be members of the same consolidated federal income tax group. The ability of this consolidated tax group to deduct pre-merger NOL carry forwards of Mirant and RRI Energy against the post merger taxable income of the group will be substantially limited as a result of these ownership changes.

If Mirant were to experience an ownership change after December 31, 2009 but prior to the closing date of the merger and the merger were subsequently consummated, Mirant would be subject to the limitation on its NOLs determined as of the date of such ownership change and not as of the date of the merger. This limitation would apply to Mirant’s use of its NOLs against Mirant’s taxable income up to the date of the merger, and to the use of Mirant’s NOLs against the post merger taxable income of the consolidated federal income tax group resulting from the merger. The effect of such an ownership change has not been quantified.

If Mirant were to experience an ownership change after December 31, 2009 but prior to the closing date of the merger and the merger were not subsequently consummated, Mirant would be subject to the limitation on its NOLs determined as of the date of such ownership change. This limitation would apply to Mirant’s use of its NOLs against Mirant’s taxable income from the date of such ownership change forward. In this case, our inability to utilize Mirant’s NOL carry forwards at the rates at which they are currently available could result in the payment of cash taxes above the amounts currently estimated for future periods and have a negative effect on our future results of operations and financial position.

We compete to sell energy, capacity and ancillary services in the wholesale power markets against some competitors that enjoy competitive advantages, including the ability to recover fixed costs through rate-base mechanisms and a lower cost of capital.

Regulated utilities in the wholesale markets generally enjoy a lower cost of capital than we do and often are able to recover fixed costs through regulated retail rates, including, in many cases, the costs of generation, allowing them to build, buy and upgrade generating facilities without relying exclusively on market-clearing prices to recover their investments. The competitive advantages of such participants could adversely affect our ability to compete effectively and could have an adverse effect on the revenues generated by our facilities.

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The expected decommissioning and/or site remediation obligations of certain of our generating facilities may negatively affect our cash flows.

Some of our generating facilities and related properties are subject to decommissioning and/or site remediation obligations that may require material expenditures. Furthermore, laws and regulations may change to impose material additional decommissioning and remediation obligations on us in the future. If we are required to make material expenditures to decommission or remediate one or more of our facilities, such obligations will affect our cash flows and may adversely affect our ability to make payments on our obligations.

Changes in technology may significantly affect our generating business by making our generating facilities less competitive.

We generate electricity using fossil fuels at large central facilities. This method results in economies of scale and lower costs than newer technologies such as fuel cells, microturbines, windmills and photovoltaic solar cells. It is possible that advances in those technologies will reduce their costs to levels that are equal to or below that of most central station electricity production, which could have a material adverse effect on our results of operations.

Terrorist attacks, future wars or risk of war may adversely affect our results of operations, our ability to raise capital or our future growth.

As a power generator, we face heightened risk of an act of terrorism, either a direct act against one of our generating facilities or an act against the transmission and distribution infrastructure that is used to transport our power, which would cause an inability to operate as a result of systemic damage. Further, we rely on information technology networks and systems to operate our generating facilities, engage in asset management activities, and process, transmit and store electronic information. Security breaches of this information technology infrastructure, including cyber-attacks and cyber terrorism, could lead to system disruptions, generating facility shutdowns or unauthorized disclosure of confidential information. If such an attack or security breach were to occur, our business, results of operations and financial condition could be materially adversely affected. In addition, such an attack could affect our ability to service our indebtedness, our ability to raise capital and our future growth opportunities.

Our operations are subject to hazards customary to the power generating industry. We may not have adequate insurance to cover all of these hazards.

Our operations are subject to many hazards associated with the power generating industry, which may expose us to significant liabilities for which we may not have adequate insurance coverage. Power generation involves hazardous activities, including acquiring, transporting and unloading fuel, operating large pieces of rotating equipment and delivering electricity to transmission and distribution systems. In addition to natural risks, such as earthquake, flood, storm surge, lightning, hurricane and wind, hazards, such as fire, explosion, collapse and machinery failure, are inherent risks in our operations. These hazards can cause significant injury to personnel or loss of life, severe damage to and destruction of property, plant and equipment, contamination of, or damage to, the environment and suspension of operations. The occurrence of any one of these events may result in our being named as a defendant in lawsuits asserting claims for substantial damages, environmental cleanup costs, personal injury and fines and/or penalties. We maintain an amount of insurance protection that we consider adequate, but we cannot assure that our insurance will be sufficient or effective under all circumstances and against all hazards or liabilities to which we may be subject. A successful claim for which we are not fully insured could have a material adverse effect on our financial results and our financial condition.

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We are currently involved in significant litigation that, if decided adversely to us, could materially adversely affect our results of operations and profitability.

We are currently involved in various litigation matters which are described in more detail in our 2009 Annual Report on Form 10-K and in Note K to our unaudited condensed consolidated financial statements contained elsewhere in this Form 10-Q. We intend to defend vigorously against those claims that we are unable to settle, but the results of this litigation cannot be determined. Adverse outcomes for us in this litigation could require significant expenditures by us and could have a material adverse effect on our results of operations and profitability.

Risks Related to Economic and Financial Capital Market Conditions

Maintaining sufficient liquidity in our business for maintenance and operating expenditures, capital expenditures and collateral is crucial in order to mitigate the risk of future financial distress to us. Accordingly, we maintain a revolving credit facility to manage our expected liquidity needs and contingencies. If the lenders under such facility were unable to perform, it could have a material adverse effect on our results of operations. As a result, we are exposed to systemic risk of the financial markets and institutions and the risk of non-performance of the individual lenders under our revolving credit facility.

Maintaining sufficient liquidity in our business for maintenance and operating expenditures, capital expenditures and collateral is crucial in order to mitigate the risk of future financial distress to us. Accordingly, we maintain a revolving credit facility to manage our expected liquidity needs and contingencies as described in more detail in this Form 10-Q. If the lenders under such facility were unable to perform, it could have a material adverse effect on our results of operations. For example, in October 2008, Lehman Commercial Paper, Inc., a subsidiary of Lehman Brothers Holdings, Inc. and a lender under the senior secured revolving credit facility of our subsidiary, Mirant North America, filed for bankruptcy. As a result of the Lehman Commercial Paper, Inc. bankruptcy, the total availability under our senior secured revolving credit facility has effectively decreased from $800 million to $755 million. Although we do not expect that the Lehman Commercial Paper, Inc. bankruptcy will have a material adverse effect on Mirant, a credit crisis could negatively affect availability under the Mirant North America senior secured revolving credit facility if other lenders under such facility are forced to file for bankruptcy or are otherwise unable to perform their obligations. Absent significant non-performance of lenders under the existing Mirant North America senior secured revolving credit facility, we think that we have sufficient liquidity for future operations (including potential working capital requirements) and capital expenditures as discussed in Item 2. “Management’s Discussion and Analysis of Results of Operations and Financial Condition—Liquidity and Capital Resources.” However, in the event of significant non-performance of lenders under the existing Mirant North America senior secured revolving credit facility, or in the event that financial institutions are unwilling or unable to renew our existing revolving credit facility or enter into new revolving credit facilities, our ability to hedge our assets or engage in proprietary trading could be impaired.

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Global financial institutions have been active participants in the energy and commodity markets, and we hedge economically a substantial portion of our Mid-Atlantic coal-fired baseload generation with such parties. As such financial institutions consolidate and operate under more restrictive capital constraints and regulations in response to the recent financial crisis, there could be less liquidity in the energy and commodity markets, which could have a negative effect on our ability to hedge and transact with creditworthy counterparties.

In recent years, global financial institutions have been active participants in the energy and commodity markets. We hedge economically a substantial portion of our Mid-Atlantic coal-fired baseload generation through OTC transactions. A majority of our hedges are financial swap transactions between Mirant Mid-Atlantic and financial counterparties that are senior unsecured obligations of such parties and do not require either party to post cash collateral, either for initial margin or for securing exposure as a result of changes in power or natural gas prices. As such financial institutions consolidate and operate under more restrictive capital constraints and regulations in response to the recent financial crisis, there could be less liquidity in the energy and commodity markets, which could have a negative effect on our ability to hedge and transact with creditworthy counterparties.

Greater regulation of energy contracts, including the regulation of OTC derivative financial instruments, could materially affect our ability to hedge economically our generation by reducing liquidity in the energy and commodity markets and, if we are required to clear such transactions on exchanges or meet other requirements, by significantly increasing the collateral costs associated with such activities.

The Dodd-Frank Act, which was enacted in July 2010 in response to the global financial crisis, increases the regulation of transactions involving OTC derivative financial instruments. The statute provides that standardized swap transactions between dealers and large market participants will have to be cleared and traded on an exchange or electronic platform. Although the legislative history of the Dodd-Frank Act, including a letter from Senators Dodd and Lincoln, provides strong evidence that market participants, such as Mirant, which utilize OTC derivative financial instruments to hedge commercial risks, are not to be subject to these clearing and other requirements, it is uncertain what the implementing regulations to be issued by the CFTC will provide. Greater regulation of OTC derivative financial instruments could materially affect our ability to hedge economically our generation by reducing liquidity in the energy and commodity markets, increasing hedge pricing through the imposition of capital requirements on our swap counterparties and, if we are required to clear such transactions on exchanges, by significantly increasing our requirements for cash collateral.

In addition to the Dodd-Frank Act, the CFTC has designated certain electricity contracts as significant price discovery contracts (“SPDCs”), including contracts that we trade on the Intercontinental Exchange Inc. based on CAISO and PJM West Hub locational marginal pricing. As a result of the SPDC designation, the contracts are subject to new more stringent requirements and could set a precedent for more contracts to be designated as SPDCs.

Further, the CFTC issued a notice of proposed rulemaking in which it proposed to adopt all-months-combined, single (non-spot) month and spot-month position limits for exchange-listed natural gas, crude oil, heating oil and gasoline futures and options contracts. We continue to monitor the rulemaking proceeding, but do not think that the limits as proposed would have a material effect on our business.

While we do not expect the Dodd-Frank Act and the proposals at the CFTC to have a material adverse effect on our business, a continuation of the trend of greater regulation of energy

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contracts, including more restrictive regulation of OTC derivative contracts, could materially affect our ability to hedge economically our generation by reducing liquidity in the energy and commodity markets and, if we are required to clear such transactions on exchanges or meet other requirements, by significantly increasing our requirements for cash collateral.

We are exposed to credit risk resulting from a loss that may occur from the failure of a counterparty to perform according to the terms of a contractual arrangement with us, particularly in connection with our non-collateralized power hedges entered into by Mirant Mid-Atlantic with financial institutions.

We are exposed to credit risk resulting from the possibility that a loss may occur from the failure of a counterparty to perform according to the terms of a contractual arrangement with us, particularly in connection with our non-collateralized power hedges entered into by Mirant Mid-Atlantic with our major trading partners, which represent 61% of our net notional power position at June 30, 2010. Such hedges are senior unsecured obligations of Mirant Mid-Atlantic and the counterparties, and do not require either party to post cash collateral for initial margin or for securing exposure as a result of changes in power or natural gas prices. Deterioration in the financial condition of our counterparties and any resulting failure to pay amounts owed to us or to perform obligations or services owed to us beyond collateral posted could have a negative effect on our business and financial condition.

Changes in commodity prices may negatively affect our financial results by increasing the cost of producing power or lowering the price at which we are able to sell our power.

Our generating business is subject to changes in power prices and fuel costs, and these commodity prices are influenced by many factors outside our control, including weather, market liquidity, transmission and transportation inefficiencies, availability of competitively priced alternative energy sources, demand for energy commodities, production of natural gas, coal and crude oil, natural disasters, wars, embargoes and other catastrophic events, and federal, state and environmental regulation and legislation. In addition, significant fluctuations in the price of natural gas may cause significant fluctuations in the price of electricity. Significant fluctuations in commodity prices may affect our financial results and financial position by increasing the cost of producing power and decreasing the amounts we receive from the sale of power.

Our use of derivative financial instruments in our asset management activities will not fully protect us from fluctuations in commodity prices, and our risk management policy cannot eliminate the risks associated with these activities.

We engage in asset management activities related to sales of electricity and purchases of fuel. The income and losses from these activities are recorded as operating revenues and fuel costs. We may use forward contracts and other derivative financial instruments to manage market risk and exposure to volatility in prices of electricity, coal, natural gas, emissions and oil. We cannot provide assurance that these strategies will be successful in managing our price risks, or that they will not result in net losses to us as a result of future volatility in electricity, fuel and emissions markets. Actual power prices and fuel costs may differ from our expectations.

Our asset management activities include natural gas derivative financial instruments that we use to hedge power prices for our baseload generation. The effectiveness of these hedges is dependent upon the correlation between power and natural gas prices in the markets where we operate. If those prices are not sufficiently correlated, our financial results and financial position could be adversely affected.

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Additionally, we expect to have an open position in the market, within our established guidelines, resulting from the management of our portfolio. To the extent open positions exist, fluctuating commodity prices can affect our financial results and financial position, either favorably or unfavorably. Furthermore, the risk management procedures we have in place may not always be followed or may not always work as planned. However, we have designed a system of internal controls to prevent and/or detect unauthorized hedging and related activities, including our risk management policy. If any of our employees were able to engage in unauthorized hedging and related activities, it could result in significant penalties and financial losses. As a result of these and other factors, we cannot predict the outcome that risk management decisions may have on our business, operating results or financial position. Although management devotes considerable attention to these issues, their outcome is uncertain.

Our asset management, proprietary trading and fuel oil management activities may increase the volatility of our quarterly and annual financial results.

We engage in asset management activities to hedge economically our exposure to market risk with respect to: (1) electricity sales from our generating facilities; (2) fuel used by those facilities; and (3) emissions allowances. We generally attempt to balance our fixed-price purchases and sales commitments in terms of contract volumes and the timing of performance and delivery obligations through the use of financial and physical derivative financial instruments. We also use derivative financial instruments with respect to our limited proprietary trading and fuel oil management activities, through which we attempt to achieve incremental returns by transacting where we have specific market expertise. Derivatives from our asset management, proprietary trading and fuel oil management activities are recorded on our balance sheet at fair value pursuant to the accounting guidance for derivative financial instruments. None of our derivatives recorded at fair value is designated as a hedge under this guidance, and changes in their fair values currently are recognized in earnings as unrealized gains or losses. As a result, our financial results—including gross margin, operating income and balance sheet ratios—will, at times, be volatile and subject to fluctuations in value primarily because of changes in forward electricity and fuel prices.

Risks Related to Governmental Regulation and Laws

Our business and activities are subject to extensive environmental requirements and could be adversely affected by such requirements, including future changes to them.

Our business is subject to extensive environmental regulations promulgated by federal, state and local authorities, which, among other things, restrict the discharge of pollutants into the air, water and soil, and also govern the use of water from adjacent waterways. Such laws and regulations frequently require us to obtain permits and remain in continuous compliance with the conditions established by those permits. To comply with these legal requirements and the terms of our permits, we must spend significant sums on environmental monitoring, pollution control equipment and emissions allowances. If we were to fail to comply with these requirements, we could be subject to civil or criminal liability, injunctive relief and the imposition of liens or fines. We may be required to shut down facilities (including ash sites) if we are unable to comply with the requirements, or if we determine the expenditures required to comply are uneconomic.

From time to time, we may not be able to obtain necessary environmental regulatory approvals. Such approvals could be delayed or subject to onerous conditions. If there is a delay in obtaining environmental regulatory approval or if onerous conditions are imposed, the operation of our generating facilities or ash sites or the sale of electricity to third parties could be prevented or become subject to additional costs. Such delays or onerous conditions could have a material adverse effect on our financial performance and condition. In addition, environmental laws, particularly with respect to air emissions, disposal of ash, wastewater discharge and cooling water

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systems, are generally becoming more stringent, which may require us to make additional facility upgrades or restrict our operations.

Increased public concern and growing political pressure related to global warming have resulted in significant increases in the regulation of greenhouse gases, including CO2, at the state level. Future local, state and federal regulation of greenhouse gases is likely to create substantial environmental costs for us in the form of fees or taxes or purchases of emissions allowances and/or new equipment. For example, in May 2010, the Montgomery County Council imposed a levy on major emitters of CO2 in Montgomery County, which we estimate will impose on Mirant Mid-Atlantic an additional $10 million to $15 million per year of levies owed to Montgomery County. See Note K to our unaudited condensed consolidated financial statements contained elsewhere in this report for discussion of the action filed against Montgomery County in the United States District Court for the District of Maryland by Mirant Mid-Atlantic. Many of the states where we own generating facilities, including California, Maryland, Massachusetts and New York, have recently committed, or expressed an intent to commit, to mandatory reductions in statewide CO2 emissions through a regional cap-and-trade program. Maryland, Massachusetts and New York have already joined the RGGI, which required all allowances to be purchased initially through an auction process, the first of which took place in September 2008. Auctions, such as those mandated by the RGGI, may decrease the amount of available allowances and substantially increase emissions allowance prices. With respect to federal CO2 legislation, the United States House of Representatives passed a bill that would establish a cap-and-trade program for CO2 across multiple sectors, including the electric generating sector. In the House bill, the electric industry is granted a portion of allowances needed to comply with the program. The remaining allowances needed would have to be purchased through an auction process. The EPA has also begun regulating greenhouse gases from vehicles, which in turn has imposed certain permitting requirements on new large sources of CO2 and major modifications to large sources. Because our generating facilities emit CO2, regulations seeking to reduce emissions of CO2_, fees or taxes tied to emissions of CO2 or other greenhouse gases and similar future laws may significantly increase our operating costs.

Certain environmental laws, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and comparable state laws, impose strict and, in many circumstances, joint and several liability for costs of remediating contamination. Some of our facilities have areas with known soil and/or groundwater contamination. Releases of hazardous substances at our generating facilities, or at locations where we dispose of (or in the past disposed of) hazardous substances and other waste, could require us to spend significant sums to remediate contamination, regardless of whether we caused such contamination. The discovery of significant contamination at our generating facilities, at disposal sites we currently use or have used, or at other locations for which we may be liable, or the failure or inability of parties contractually responsible to us for contamination to respond when claims or obligations regarding such contamination arise, could have a material adverse effect on our financial performance and condition.

Our coal-fired generating units produce certain byproducts that involve extensive handling and disposal costs and are subject to government regulation. Changes in these regulations, or their administration, by legislatures, state and federal regulatory agencies, or other bodies may affect the costs of handling and disposing of these byproducts. Such costs, in turn, may negatively affect our results of operations and financial condition.

As a result of the coal combustion process, we produce significant quantities of ash at our coal-fired generating units that must be disposed of at sites permitted to handle ash. For most of

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our ash, we use our own ash management facilities, which are all dry landfills, in Maryland to dispose of the ash; however, one of these has reached design capacity and we expect that another one of these sites may reach full capacity in the next few years. As a result, we have developed a plan related to the disposition of ash, including developing new ash management facilities and preparing our ash for beneficial uses, but the costs associated with the plan could be material. The costs associated with purchasing new land and permitting the land to allow for ash disposal could be material, and the amount of time needed to obtain permits for the land could extend beyond the expected timeline. Additionally, costs associated with third-party ash handling and disposal are material and could have an adverse effect on our financial performance and condition.

We also produce gypsum as a byproduct of the SO2 scrubbing process at our coal-fired generating facilities, which is sold to third parties for use in drywall production. Should our ability to sell such gypsum to third parties be restricted as a result of the lack of demand or otherwise, our gypsum disposal costs could rise materially.

The EPA has proposed two alternatives for regulating byproducts such as ash and gypsum. One of these alternatives would regulate these byproducts as “special wastes” in a manner similar to the regulation of hazardous wastes. If these byproducts are regulated as special wastes, the cost of disposing of these byproducts would increase materially and may limit our ability to recycle them for beneficial use.

Our business is subject to complex government regulations. Changes in these regulations, or their administration, by legislatures, state and federal regulatory agencies, or other bodies may affect the prices at which we are able to sell the electricity we produce, the costs of operating our generating facilities or our ability to operate our facilities. Such prices and costs, in turn, may negatively affect our results of operations and financial condition.

We are subject to regulation by the FERC regarding the rates, terms and conditions of wholesale sales of electric capacity, energy and ancillary services and other matters, including mergers and acquisitions, the disposition of facilities under the FERC’s jurisdiction and the issuance of securities, as well as by state agencies regarding physical aspects of our generating facilities. The majority of our generation is sold at market prices under market-based rate authority granted by the FERC. If certain conditions are not met, the FERC has the authority to withhold or rescind market-based rate authority and require sales to be made based on cost-of-service rates. A loss of our market-based rate authority could have a materially negative impact on our generating business.

Even when market-based rate authority has been granted, the FERC may impose various forms of market mitigation measures, including price caps and operating restrictions, when it determines that potential market power might exist and that the public interest requires such potential market power to be mitigated. In addition to direct regulation by the FERC, most of our facilities are subject to rules and terms of participation imposed and administered by various ISOs and RTOs. Although these entities are themselves ultimately regulated by the FERC, they can impose rules, restrictions and terms of service that are quasi-regulatory in nature and can have a material adverse impact on our business. For example, ISOs and RTOs may impose bidding and scheduling rules, both to curb the potential exercise of market power and to ensure market functions. Such actions may materially affect our ability to sell and the price we receive for our energy, capacity and ancillary services.

To conduct our business, we must obtain and periodically renew licenses, permits and approvals for our facilities. These licenses, permits and approvals can be in addition to any required environmental permits. No assurance can be provided that we will be able to obtain and comply with all necessary licenses, permits and approvals for these facilities. If we cannot comply

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with all applicable regulations, our business, results of operations and financial condition could be adversely affected.

We cannot predict whether the federal or state legislatures will adopt legislation relating to the restructuring of the energy industry. There are proposals in many jurisdictions that would either roll back or advance the movement toward competitive markets for the supply of electricity, at both the wholesale and retail levels. In addition, any future legislation favoring large, vertically integrated utilities and a concentration of ownership of such utilities could affect our ability to compete successfully, and our business and results of operations could be adversely affected.

Risks Related to Level of Indebtedness

Our consolidated indebtedness could adversely affect our ability to raise additional capital to fund our operations, limit our ability to react to changes in the economy or our industry and prevent us from meeting or refinancing our obligations.

As of June 30, 2010, our consolidated indebtedness was $2.562 billion. In addition, the present value of lease payments under the Mirant Mid-Atlantic leveraged leases was approximately $921 million (assuming a 10% discount rate) and the termination value of the Mirant Mid-Atlantic leveraged leases was $1.3 billion. Our indebtedness and obligations under the leveraged leases could have important consequences, including the following: (1) they may limit our ability to obtain additional debt or equity financing for working capital, capital expenditures, debt service requirements, acquisitions and general corporate or other purposes; (2) a substantial portion of our cash flows from operations must be dedicated to the payment of rent and principal and interest on our indebtedness and will not be available for other purposes, including our operations, capital expenditures and future business opportunities; (3) the debt service requirements of our indebtedness could make it difficult for us to satisfy or refinance our financial obligations; (4) certain of our borrowings, including borrowings under our senior secured credit facilities, are at variable rates of interest, exposing us to the risk of increased interest rates; (5) they may limit our ability to adjust to changing market conditions and place us at a competitive disadvantage compared with our competitors that have less debt and are not burdened by such obligations and restrictions; and (6) we may be more vulnerable in a downturn in general economic conditions or in our business and we may be unable to carry out capital expenditures that are important to our long-term growth or necessary to comply with environmental regulations.

As discussed in Item 2. “Management’s Discussion and Analysis of Results of Operations and Financial Condition—Liquidity and Capital Resources,” at the closing of the merger, and as a condition thereto, the Mirant North America senior secured revolving credit facility and term loans are expected to be repaid and the Mirant North America senior notes are expected to be called for redemption.

Mirant Corporation and its subsidiaries that are holding companies, including Mirant Americas Generation and Mirant North America, may not have access to sufficient cash to meet their obligations if their subsidiaries, in particular, Mirant Mid-Atlantic, are unable to make distributions.

We and certain of our subsidiaries, including Mirant Americas Generation and Mirant North America, are holding companies and, as a result, we are dependent upon dividends, distributions and other payments from our operating subsidiaries to generate the funds necessary to meet our obligations. The ability of certain of our subsidiaries to pay dividends and distributions is restricted under the terms of their debt or other agreements. In particular, a significant portion of cash from our operations is generated by the power generating facilities of Mirant Mid-Atlantic.

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Under the Mirant Mid-Atlantic leveraged leases, Mirant Mid-Atlantic is subject to a covenant that restricts its right to make distributions to its immediate parent, Mirant North America. In turn, Mirant North America is subject to covenants that restrict its ability to make distributions to its parent, Mirant Americas Generation. The ability of Mirant North America and Mirant Mid-Atlantic to satisfy the criteria set forth in their respective debt covenants in the future could be impaired by factors which negatively affect their financial performance, including interruptions in operations or curtailments of operations to comply with environmental restrictions, significant capital and other expenditures, and adverse conditions in the power and fuel markets. Further, the Mirant North America senior notes and senior secured credit facilities include financial covenants that exclude from the calculation the financial results of any subsidiary that is unable to make distributions or dividends at the time of such calculation. Thus, the inability of Mirant Mid-Atlantic to make distributions to Mirant North America under the leveraged lease transactions would have a material adverse effect on the calculation of the financial covenants under the senior notes and senior secured credit facilities of Mirant North America, including the leverage and interest coverage maintenance covenants under its senior credit facility.

Further, we anticipate that the Mirant Marsh Landing generating facility will be financed pursuant to a project financing and, accordingly, will have restrictions in its ability to make distributions under the terms of those debt agreements.

The obligations of Mirant Corporation and its holding company subsidiaries, including the indebtedness of Mirant Americas Generation and Mirant North America, are effectively subordinated to the obligations or indebtedness of their respective subsidiaries, including the Mirant Mid-Atlantic leveraged leases.

As discussed in Item 2. “Management’s Discussion and Analysis of Results of Operations and Financial Condition—Liquidity and Capital Resources,” at the closing of the merger, and as a condition thereto, the Mirant North America senior secured revolving credit facility and term loans are expected to be repaid and the Mirant North America senior notes are expected to be called for redemption.

We may be unable to generate sufficient liquidity to service our debt and to post required amounts of cash collateral necessary to hedge market risk effectively.

Our ability to pay principal and interest on our debt depends on our future operating performance. If our cash flows and capital resources are insufficient to allow us to make scheduled payments on our debt, we may have to reduce or delay capital expenditures, sell assets, seek additional capital, restructure or refinance. There can be no assurance that the terms of our debt will allow these alternative measures, that the financial markets will be available to us on acceptable terms or that such measures would satisfy our scheduled debt service obligations.

We seek to manage the risks associated with the volatility in the price at which we sell power produced by our generating facilities and in the prices of fuel, emissions allowances and other inputs required to produce such power by entering into hedging transactions. These asset management activities may require us to post collateral either in the form of cash or letters of credit. As of June 30, 2010, we had approximately $77 million of posted cash collateral and $228 million of letters of credit outstanding primarily to support our asset management activities, debt service and rent reserve requirements and other commercial arrangements. Although we seek to structure transactions in a way that reduces our potential liquidity needs for collateral, we may be unable to execute our hedging strategy successfully if we are unable to post the amount of collateral required to enter into and support hedging contracts.

We are an active participant in energy exchange and clearing markets. These markets require a per-contract initial margin to be posted, regardless of the credit quality of the participant. The

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initial margins are determined by the exchanges through the use of proprietary models that rely on a variety of inputs and factors, including market conditions. We have limited notice of any changes to the margin rates. Consequently, we are exposed to changes in the per unit margin rates required by the exchanges and could be required to post additional collateral on short notice.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

As of June 30, 2010, we repurchased 551 shares of common stock for approximately $5,786 for the settlement of payroll taxes associated with the vesting of restricted stock units. These restricted stock units relate to grants that were made to executives and certain employees and are not related to a publicly announced share repurchase plan. See Note G contained elsewhere in this report for additional information related to stock-based compensation.

The following table sets forth information regarding repurchases of our common stock during the three-month period ended June 30, 2010:

Period	Total number of shares repurchased	Average price paid per share		Total number of shares purchased as part of publicly announced plans	Approximate dollar value of shares that may yet be purchased  under the plans
April 1, 2010—April 30, 2010	—	$	—	—	$	—
May 1, 2010—May 31, 2010	551	$	10.50	—	$	—
June 1, 2010—June 30, 2010	—	$	—	—	$	—
Total	551			—

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Item 6. Exhibits

(a) Exhibits.

Exhibit No.	Exhibit Name
2.1	Agreement and Plan of Merger, dated as of April 11, 2010, by and among RRI Energy, Inc., RRI Energy Holdings, Inc. and Mirant Corporation (Incorporated herein by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed April 12, 2010)
3.1	Amended and Restated Certificate of Incorporation of Registrant (Incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed January 3, 2006)
3.2	Amended and Restated Bylaws of Registrant (Incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed August 6, 2009)
4.1	Rights Agreement, dated as of March 26, 2009, between Mirant Corporation and Mellon Investor Services LLC (Incorporated herein by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed March 27, 2009)
4.2	First Amendment to the Rights Agreement, dated as of February 25, 2010, between Mirant Corporation and Mellon Investor Services LLC. (Incorporated herein by reference to Exhibit 4.26 to the Registrant’s Annual Report on Form 10-K filed February 26, 2010)
4.3	Second Amendment to the Rights Agreement, dated as of April 28, 2010, between Mirant Corporation and Mellon Investor Services LLC. (Incorporated herein by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed April 28, 2010)
4.4	The Company agrees to furnish to the Securities and Exchange Commission, upon request, a copy of any instrument defining the rights of holders of long-term debt of the Company and all of its consolidated subsidiaries for which financial statements are required to be filed with the Securities and Exchange Commission
10.1*	Amended and Restated Mirant Services Severance Pay Plan
10.2*†	Engineering, Procurement and Construction Agreement, dated as of May 6, 2010, between Mirant Marsh Landing, LLC and Kiewit Power Constructors Co.
31.1*	Certification of the Chief Executive Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(a))
31.2*	Certification of the Chief Financial Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(a))
32.1*	Certification of the Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(b))
32.2*	Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 13a-14(b))
101**	The following unaudited financial statements from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, filed on August 6, 2010, formatted in XBRL (Extensible Business Reporting Language): (i) the Condensed Consolidated Statements of Operations, (ii) the Condensed Consolidated Balance Sheets, (iii) the Condensed Consolidated Statements of Stockholders’ Equity and Comprehensive Income, (iv) the Condensed Consolidated Statements of Cash Flows, and (v) Notes to Condensed Consolidated Financial Statements, tagged as blocks of text.

* Asterisk indicates exhibits filed herewith.

** To be filed by amendment.

† The Registrant has requested confidential treatment for certain portions of this Exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	MIRANT CORPORATION
Date: August 6, 2010	By:	/s/ ANGELA M. NAGY
		Angela M. Nagy
		Vice President and Controller
		(Duly Authorized Officer and Principal Accounting Officer)

EX-10.1

Exhibit 10.1

MIRANT SERVICES

SEVERANCE PAY PLAN

(as amended and restated effective as of April 1, 2010)

MIRANT SERVICES

SEVERANCE PAY PLAN

TABLE OF CONTENTS

	Page
ARTICLE 1 - PURPOSE AND ADOPTION OF PLAN	2
ARTICLE 2 - DEFINITIONS	2
ARTICLE 3 - ELIGIBILITY FOR BENEFITS	6
ARTICLE 4 - BASIC SEVERANCE BENEFITS	9
ARTICLE 5 - ENHANCED SEVERANCE AND WELFARE BENEFITS	11
ARTICLE 6 - CLAIMS PROCEDURE	16
ARTICLE 7 - ADMINISTRATION	17
ARTICLE 8 - MAXIMUM BENEFITS	19
ARTICLE 9 - MISCELLANEOUS	19
APPENDIX A - FORM OF RELEASE

MIRANT SERVICES

SEVERANCE PAY PLAN

(as amended and restated effective as of April 1, 2010)

ARTICLE 1 - PURPOSE AND ADOPTION OF PLAN

1.1 Adoption of Plan. Mirant Services, LLC (the “Company”) sponsors and maintains this Mirant Services Severance Plan, as amended and restated herein. The Plan shall be an unfunded severance pay plan that is a welfare plan as such term is defined by the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), the benefits of which shall be paid solely from the general assets of the Company.

1.2 Purpose. The Plan is primarily designed to provide benefits to Eligible Employees of Participating Companies, as those terms are defined in Article 2 below, who are involuntarily terminated by the Participating Company. The Plan shall be interpreted and administered in a manner that is consistent with this intent.

1.3 Effect on Other Plans Sponsored by A Participating Company. Nothing herein is intended to or shall be construed to require the Company or a Participating Company to institute or continue in effect any particular plan or benefit sponsored by a Participating Company. The Company and any Participating Companies hereby reserve the right to amend or terminate any benefit plans or programs, including this Plan, at any time in accordance with the procedures set forth in such plans or programs.

ARTICLE 2 - DEFINITIONS

As used in this document, the masculine pronoun shall be construed to include the feminine pronoun and singular shall include the plural where the context so requires.

2.1 “Affiliate” means an entity (other than the Company) which is (a) a member of a “controlled group of corporations” (within the meaning of Code Section 414(b)) with the Company, (b) a trade or business under common control (within the meaning of Code Section 414(c)) with the Company, (c) any organization which is a member of an “affiliated service group” (within the meaning of Section 414(m)) which includes the Company, and (d) any other entity required to be aggregated with the Company pursuant to regulations under Code Section 414(o).

2.2 “Base Salary.” See Section 2.29.

2.3 “Claimant.” See Article 6.

2.4 “Claims Reviewer.” See Article 6.

2.5 “COBRA” means the elective continuation coverage provisions of Code Section 4980B.

2.6 “COBRA Coverage” means any continuation coverage to which a Participant or his dependents may be entitled pursuant to Code Section 4980B.

2.7 “Code” means the Internal Revenue Code of 1986, as amended from time to time.

2.8 “Committee” means the Mirant Benefits Committee or any successor committee appointed by the Company to administer the Plan. The term is interchangeable with “Plan Administrator.”

2.9 “Company” means Mirant Services, LLC.

2.10 “Effective Date” of this amended and restated plan means April 1, 2010.

2.11 “Election Form and Waiver Agreement” or “Release” means the agreement provided to the Employee by the Plan Administrator or its designee as provided in Section 5.1 hereof, substantially in the form of Appendix A attached hereto.

2.12 “Eligible Employment Classification” means those employment classifications (as determined by the Company) set forth in Section 5.2(b).

2.13 “Eligible Employee” means an Employee who:

(1) is classified for payroll purposes by the Company as a full-time or regular part-time employee of a Participating Company who is regularly scheduled to work at least 20 hours per week; and

(2) has successfully completed any probationary period imposed by a Participating Company on new Employees; and

(3) is either (A) actively at work on his Termination Date or, if not, is capable of returning to work within twelve (12) weeks of the beginning of any leave of absence; or(B) employed by a Participating Company and designated by the Committee, at its sole discretion, as eligible to participate in this Plan.

Notwithstanding the above provisions and unless specifically designated as eligible by the Committee, the term Eligible Employee shall not include any Employee or other individual who is:

(a) covered by a collective bargaining agreement between a union and a Participating Company unless the collective bargaining agreement expressly provides for participation in this Plan;

(b) deemed to be an employee of a Participating Company pursuant to regulations under Code Section 414(o);

(c) classified by a Participating Company as a temporary employee;

(d) a leased employee within the meaning of Code Section 414(n)(2);

(e) classified by a Participating Company as an independent contractor or a leased employee (including those who are at any time reclassified as employees by the Internal Revenue Service or a court of competent jurisdiction);

(f) covered by another plan, program, or policy, whether written or unwritten, relating to the payment of severance or unemployment benefits of any kind by the Company or the individual’s Participating Company;

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(g) covered by an outsourcing agreement between a third party and the Participating Company; or

(h) has otherwise waived participation under this Plan.

For purposes of subsection (e) above, any individual who pays or agrees to pay self-employment tax in lieu of withholding is deemed to have consented to his or her designation as an independent contractor. If an independent contractor, an individual covered under an outsourcing agreement, or a leased employee subsequently becomes reclassified as an employee, such an individual may only participate in the Plan prospectively from the date of such reclassification rather than from its effective date. Any prior service by such individual as an independent contractor, an outsourced individual or a leased employee does not count as a Month of Service or a Year of Service under the Plan.

2.14 “Employee” means an individual who is considered by the Company or a Participating Company to be an employee for the purposes of federal income tax withholding.

2.15 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

2.16 “Employee Outplacement Services” means services established by the Company from time to time for the purpose of assisting Participants in finding employment outside of the Company or any Participating Company. The level and type of services that each Participant is eligible to receive shall be determined in the sole discretion of the Plan Administrator on a case by case basis and the Plan Administrator is not bound by prior determinations.

2.17 “Health and Welfare Plan” means the Mirant Services, LLC and Affiliated Companies Health and Welfare Benefits Plan for Non-Union Employees, as amended from time to time.

2.18 “Individual Arrangement” See Section 3.4.

2.19 “Month of Service” includes any calendar month during which a Participant has worked at least one (1) hour or was on approved leave of absence while in the employ of a Participating Company, including any Southern Company Affiliate for periods prior to April 2, 2001, but shall not include:

(a) any service which is not included in the employee’s “adjusted service date” as determined by the Committee or its designee; and

(b) any service for which the Participant has previously received credit for purposes of calculating a severance benefit of any type paid on account of termination of employment with a Participating Company.

“Month of Service” never includes any period of employment with any entity other than a Participating Company or any Southern Company Affiliate, unless such period of employment is credited as service with a Participating Company under a Retirement Plan.

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2.20 “Other Payments” See Section 3.4.

2.21 “Participant” means an Eligible Employee who meets the eligibility requirements of Article 3 of the Plan.

2.22 “Participating Company” means the Company and any Affiliate, which, with the approval of the Company, adopts this Plan for the benefit of its Eligible Employees.

2.23 “Plan” means the Mirant Services Severance Pay Plan, as amended from time to time.

2.24 “Plan Administrator” means the Committee.

2.25 “Pro Rata Bonus” means a pro rata payment of the Target Annual Bonus for which a Participant would have been eligible but for the Participant’s termination of employment with a Participating Company, calculated as follows:

(a) For any Participant whose Termination Date occurs on or after January 1 of any calendar year, but prior to December 1 of that calendar year, the Pro Rata Bonus is based on the Participant’s Target Annual Bonus, prorated according to the number of months of employment with the Participating Company during such calendar year.

(b) For any Participant whose Termination Date occurs on or after December 1 of any calendar year, but prior to January 1 of the following calendar year, the Pro Rata Bonus will be equal to the actual annual bonus amount that would have been paid to the Participant but for his termination from the Participating Company.

(c) For purposes of determining the number of months of employment during any calendar year, a Participant who has worked at least one (1) hour of the month will be given credit for such month.

(d) For any Participant whose Termination Date occurs on or after January 1 of any calendar year, but prior to the payment of the annual bonus amount for the prior calendar year, in addition to any amount otherwise determined under this Section 2.25, the Participant’s Pro Rata Bonus shall include the actual annual bonus amount that would have been paid to the Participant for such prior calendar year but for his termination with the Participating Company.

2.26 “Retiree Plan” means the Mirant Services, LLC and Affiliated Companies Health and Welfare Benefits Plan for Retirees, as amended from time to time.

2.27 “Retirement Plan” means the Mirant Services Pension Plan and/or the Mirant Services Employee Savings Plan.

2.28 “Southern Company Affiliate” means an affiliate or a former affiliate of Southern Company as designated by the Committee.

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2.29 “Straight Time Pay” or “Base Salary” for an Eligible Employee means such Employee’s annualized rate of pay on his Termination Date, excluding any employer contributions for benefits, bonuses, commissions, premium pay, overtime pay or income from stock options, stock grants or other incentive compensation.

2.30 “Target Annual Bonus” means, with respect to a Participant, the Participant’s target bonus opportunity under the annual bonus plan applicable to the Participant, or if no target bonus opportunity has been established for the year in which the Participant’s Termination Date occurs, the year immediately preceding, but in no event greater than one times the Participant’s Base Salary.

2.31 “Termination Date” means the date on which an Employee is separated from a Participating Company’s regular payroll; provided, however, the Termination Date of Employees who are deemed to be retired pursuant to the provisions of Section 3.1 is the effective date of their retirement pursuant to the terms of the applicable Retirement Plan. Payment by the Participating Company of any amount under this Plan in any period subsequent to the Employee’s separation from the Participating Company’s regular payroll does not alter or extend his Termination Date.

2.32 “Years of Service” shall mean the total of an Employee’s Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7).

ARTICLE 3 - ELIGIBILITY FOR BENEFITS

3.1 Eligibility to Receive Benefits. Subject to the exceptions set forth in Section 3.2, any Eligible Employee of a Participating Company whose employment is involuntarily terminated (as determined by the Committee in its sole discretion) on or after the Effective Date shall be eligible to receive benefits under the Plan, the amount and type of which shall be determined by Articles 4 and 5.

Notwithstanding anything to the contrary above, any Participant who is eligible and elects to receive benefits under Section 5.1 and who is otherwise age 50 or older with at least 10 Years of Service shall be deemed to have retired for purposes of all employee benefit plans sponsored by the Company or a Participating Company of which the Employee is a participant. An Employee of a Participating Company who is deemed to have retired in accordance with the preceding sentence shall be eligible to receive benefits under this Plan, the amount and type of which shall be determined by Articles 4 and 5.

3.2 Exceptions to Eligibility Criteria. An Employee of a Participating Company is not eligible to receive the benefits under the Plan if the Employee:

(a) has entered into an individual employment agreement with a Participating Company (unless such agreement specifically provides for severance benefits to be paid under this Plan);

(b) voluntarily terminates his employment for any reason;

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(c) is terminated by a Participating Company as a result of insubordination, violation of a Participating Company’s rules, unacceptable performance (including, but not limited to, the failure to satisfactorily carry out duties related to the Employee’s position), or failure to satisfactorily demonstrate competency to perform the Employee’s job duties (as determined by the Committee in its sole discretion);

(d) is offered continued employment with a Participating Company or any Affiliate in a position with a “similar base salary” regardless of whether the Employee accepts such employment unless such employment is: (i) more than 50 miles from the location at which the Employee was stationed immediately prior to the Termination Date, and (ii) farther from the Employee’s primary residence than was the location at which the Employee was stationed immediately prior to the Termination Date;

(e) is eligible to receive the benefits of any other voluntary or involuntary severance, separation or outplacement program maintained by a Participating Company (as determined by the Committee in its sole discretion); or

(f) is offered a position with similar base salary, responsibilities and duties with any employer that succeeds by way of agreement, merger, sale or outsourcing contract to all or any portion of the business of a Participating Company (as determined by the Committee in its sole discretion).

A position shall have a “similar base salary” if the Base Salary of the position (as determined by the Committee in its sole discretion) is at least 80% of the actual Straight Time Pay which the Employee is receiving in his current position.

3.3 Determination of Eligibility. The Committee (or its designee) shall automatically determine each person’s eligibility for participation in this Plan prior to an Eligible Employee’s Termination Date. All determinations shall be made by the Committee in its sole and complete discretion and shall be conclusive and binding on all persons. All Eligible Employees shall receive written notification from the Committee (or its designee) of their eligibility to receive a benefit hereunder.

3.4 Offset For Other Severance Benefits. To the extent permitted by law, benefits under the Plan shall be reduced by any severance pay, payments made in lieu of notice and/or any other payments made under federal (e.g., the WARN Act), state or local law to which an Employee is, or in the future becomes, entitled (the “Other Payments”); provided, however, that no such reduction shall cause an Employee’s severance benefit calculated under Article 5 of the Plan to be less than one week of the Employee’s Straight Time Pay.

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In addition, any severance benefit amount to which any Employee may otherwise be entitled under the Plan shall be reduced by the amount of any salary, wages or other compensation (as determined by the Plan Administrator) such Employee receives from a Participating Company with respect to any period of paid leave of absence of such Employee that immediately precedes any permanent termination of the Employee’s employment with a Participating Company.

In the event that the Employee has already received a payment under this Plan, and is subsequently found to be entitled to any Other Payments, the amount previously paid to the Employee under this Plan shall be recharacterized as, and applied toward, fulfillment of the Other Payments. In such situation, benefits payable under this Plan shall be recalculated such that the amount payable under this Plan shall be the amount determined by application of Articles 4 and 5 (if applicable), minus the amount of the Other Payments.

Notwithstanding any other provision of this Plan, if the value of the Other Payments exceeds the value of benefits under this Plan, then the value of any benefits the Eligible Employee is entitled to under the Plan, if any, shall be determined by the Committee in its sole discretion.

To the extent an Employee receives severance or other termination payments, or benefits from a Participating Company pursuant to an individually negotiated employment or severance agreement, resolution of litigation, offer letter, or any other similar individual arrangement (“Individual Arrangement”), any payments and/or benefits otherwise payable to the Employee under this Plan may, at the discretion of the Plan Administrator, be reduced by the amount of any such payments or benefits provided to the Employee under such Individual Agreement.

3.5 Reemployment. Notwithstanding any other provision of this Plan to the contrary, an Eligible Employee who is re-employed by a Participating Company (a) prior to his receipt of benefits under this Plan, or (b) while he is currently receiving payments or benefits under this Plan, shall cease to be entitled to any further benefits under the Plan after the date of re-employment and all benefit payments under the Plan will end immediately upon the Participant’s re-employment date.

3.6 Impact on Other Benefits. Except as otherwise required by law or provided in the applicable benefit plan or policy, any and all employee insurance and welfare benefits, profit-sharing match and pension accruals shall cease as of the Participant’s Termination Date, and severance payments and benefits hereunder shall not be included as covered compensation under such benefit plans or policies.

3.7 Conditions on Payment of Benefits. Payment of benefits under this Plan shall be subject to and conditioned upon the Eligible Employee’s compliance with each of the following requirements:

(a) The Eligible Employee must return all Participating Company property on or before his last day worked;

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(b) The Eligible Employee must continue to work in a satisfactory manner during any notice period through the Termination Date or, if the Eligible Employee is released from performing job-related duties earlier by his manager, supervisor or other designated official, through his last day worked;

(c) The Eligible Employee must cooperate in transitioning all of his work in consultation with his manager, supervisor or other designated official; and

(d) If the Eligible Employee elects benefits under Article 5, the Eligible Employee must (1) submit an executed Election Form and Waiver Agreement with the Plan Administrator not later than the deadline determined by the Company and (2) must allow such Election Form and Waiver Agreement to become effective.

3.8 Restrictive Covenant and Repayment Obligation.

(a) Notwithstanding any other provision of this Plan, for Eligible Employees whose employment with a Participating Company is involuntarily terminated in connection with the sale, merger, spin-off or similar transfer of some or all assets or membership interest of the Company to an unrelated entity (the “Buyer”), it shall be a condition precedent to the obligation of the Plan to provide any payment or benefits under Articles 4 and 5 (if applicable) hereof that, at all times during the six-month period beginning the date of termination of employment (the “Restricted Period”), the Employee shall not, without the prior written consent of the Company, render nor agree or promise to render services, whether directly or indirectly on behalf of any person, firm or corporation, to the Buyer or any of its affiliates, whether as an employee, a consultant or in any other capacity (the “Restrictive Covenant”).

(b) Notwithstanding any other provision of this Plan, in the event an Employee shall violate the Restrictive Covenant, in addition to relieving the Plan and any Participating Company of any obligation to provide any further payment or benefits under Articles 4 and 5 (if applicable) hereof, the Plan shall be entitled to recover the full amount of all past cash payments that the Plan shall have made pursuant to Articles 4 and 5 (if applicable) hereof.

ARTICLE 4 - BASIC SEVERANCE BENEFITS

4.1 Basic Severance Benefit.

(a) A Participant who is involuntarily terminated from his employment with a Participating Company shall receive an amount equal to four (4) weeks’ Straight Time Pay. Such amount shall be paid in a lump sum payment within thirty (30) business days of the Participant’s Termination Date.

(b) A Participant who is involuntarily terminated from his employment with a Participating Company shall be eligible to receive Employee Outplacement Services in the amount and duration determined by the Plan Administrator or its designee and communicated to the Participant.

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4.2 Basic Welfare Benefit.

(a) In addition to the lump sum benefit described above, the Company will pay the first month of the required contribution due for the Participant’s COBRA Coverage for medical benefits under the Health and Welfare Plan if the Participant is eligible to elect and actually makes a complete and timely election for such COBRA Coverage. The Company shall also pay the first month of required contributions due for COBRA Coverage for medical benefits for the Participant’s spouse and dependent children who are COBRA “qualified beneficiaries” (within the meaning of Code Section 4980B(g)(1)) as of the Participant’s Termination Date if the Participant (or the Participant’s spouse or child) makes a complete and timely election for such COBRA Coverage.

The Company may terminate such payment for COBRA Coverage if COBRA Coverage is cancelled as permitted by COBRA. The one month for which the COBRA Coverage premiums are paid by the Company pursuant to this Section 4.2(a) shall be a part of and not in addition to the COBRA Coverage required to be made available by law. Medical benefits as described under this section do not include benefits for dental, health flexible spending, vision or employee assistance.

(b) In addition to the lump sum benefit described above, the Company will pay the first three months of the required contribution due for the Participant’s COBRA Coverage for employee assistance program benefits under the Health and Welfare Plan if the Participant is eligible to elect and actually makes a complete and timely election for such COBRA Coverage. The Company shall also pay the first three months of required contributions due for COBRA Coverage for employee assistance program benefits for the Participant’s spouse and dependent children who are COBRA qualified beneficiaries as of the Participant’s Termination Date if the Participant makes a complete and timely election for such COBRA Coverage.

The Company may terminate such payment for COBRA coverage if COBRA Coverage is cancelled as permitted by COBRA. The three months for which the COBRA Coverage premiums are paid by the Company pursuant to this Section 4.2(b) shall be a part of and not in addition to the COBRA Coverage required to be made available by law.

4.3 Basic Benefits in the Event of Death. In the event of the Participant’s death after his Termination Date but prior to the payment of the benefits in Section 4.1, such benefits shall be paid to the Participant’s spouse, or if no spouse exists, to the beneficiary designated by the Participant for his life insurance under the Health and Welfare Plan, or, if no beneficiary is so designated, to the Participant’s estate. The payment of COBRA Coverage premiums under Section 4.2 (or any unpaid portion thereof) shall be paid on behalf of a dependent if the Participant dies before payment is complete, the dependent was a COBRA qualified beneficiary at the time of the Participant’s Termination Date and the dependent is actually covered for such benefits under the Group Health and Welfare Plan immediately prior to the Participant’s death.

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ARTICLE 5 - ENHANCED SEVERANCE AND WELFARE BENEFITS

5.1 Eligibility. Any Participant may additionally elect to receive the enhanced benefits under this Article 5 if: (i) the Participant submits an executed Election Form and Waiver Agreement to the Plan Administrator not later than the deadline determined by the Company; and (ii) allows such Election Form and Waiver Agreement to become effective. If an Election Form and Waiver Agreement is not properly executed (as determined by the Committee in its sole discretion) and submitted by the deadline, or is revoked before its effective date, the Plan Administrator will interpret the failure or revocation as a rejection of the benefits under Article 5 of the Plan.

Any benefits received under this Article 5 are in addition to and not in lieu of benefits receivable under Article 4.

5.2 Amount of Enhanced Severance Benefit. Subject to Article 8, any Participant who meets the requirements of Section 5.1 is eligible for the benefits described in subsection (a) below. Notwithstanding the foregoing, if such Participant is in an Eligible Employment Classification (as set forth in Section 5.2(b)) immediately prior to his Termination Date, he shall be eligible for the benefits described in subsections (a) or (b) below, whichever is greater in value.

(a) an amount equal to the aggregate of the amounts in (1), (2) and (3) below:

(1) an amount equal to the sum of the following:

(A) 4 weeks’ Straight Time Pay;

(B) 1 week’s Straight Time Pay for each of the Participant’s first 10 Years of Service;

(C) 2 weeks’ Straight Time Pay for each of the Participant’s 11th through 15th Years of Service;

(D) 3 weeks’ Straight Time Pay for each of the Participant’s 16th through 20th Years of Service;

(E) 4 weeks’ Straight Time Pay for each of the Participant’s 21st through 25th Years of Service; and

(F) 5 weeks’ Straight Time Pay for each of the Participant’s Years of Service in excess of 25 Years of Service.

(2) an amount equal to the Participant’s Pro Rata Bonus.

(3) an amount equal to the monthly cost to provide the same level of medical and dental coverage as maintained by the Participant under the Health and Welfare Plan immediately prior to his Termination Date, multiplied by six (6). For purposes of this Section 5.2(a)(3), the monthly cost shall be based on the amount of ‘applicable premium’ under COBRA for such coverage for the year in which the Termination Date occurs.

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(b) for each Eligible Employment Classification as described below, an amount equal to the sum of the amount described under the “Severance Pay” column and the amount described under the “Medical and Dental” column.

Eligible Employment Classification	Severance Pay	Medical and Dental
All Corporate Executive Officers at Senior  Vice President level and above	12 months of Base Salary, plus the  Participant’s Pro Rata Bonus, plus 100%  of the Participant’s Target Annual Bonus  amount	12 months of contributions
Elected Corporate Vice President with a  base salary of $175,000 or greater	9 months of Base Salary, plus the  Participant’s Pro Rata Bonus, plus 75%  of the Participant’s Target Annual Bonus  amount	9 months of contributions
Corporate Directors with salary level of  $120,000 or greater*	6 months of Base Salary, plus the  Participant’s Pro Rata Bonus, plus 50% of  the Participant’s Target Annual Bonus  amount	6 months of contributions
Other individuals suggested for participation  by business unit and approved by the  Committee	6 months of Base Salary, plus the  Participant’s Pro Rata Bonus. (Unless  otherwise approved by the Committee,  such Participants receive no Target  Annual Bonus amount.)	6 months of contributions

* This would also include positions with the following titles – which are considered equivalent to Corporate Directors: Regional VP and Associate General Counsel.

Amounts representing medical and dental contributions as indicated in the chart above are determined based on the total cost to the Company to provide the same level of medical and dental coverage maintained by the Participant on the Termination Date for the number of months indicated above. The cost of such medical and dental coverage is based on the monthly premium charged to the Company for such coverage on the Termination Date by an insurance carrier of such benefit if provided pursuant to an insurance contract issued by an insurance carrier to the Company. If the Company is self-insured for such coverage, the cost of such coverage is based on the “applicable premium” under COBRA for such coverage for the year in which the Termination Date occurs.

The Target Annual Bonus amount for purposes of this Section 5.2(b) shall be an amount equal the product of (A) the Participant’s Target Annual Bonus under the short term incentive plan for the year in which the Termination Date occurs, and (B) a fraction, the numerator of which is the number of months indicated in the chart and the denominator of which is 12.

Any benefits received under this Section 5.2(b) are in lieu of any benefits for which the Participant may be eligible under Section 5.2(a).

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5.3 Partial Acceleration of Equity Award Vesting. Subject to Article 8 hereof, vesting of each outstanding stock option, stock appreciation right, restricted stock award, restricted stock unit award and other equity-based compensation award held by a Participant who is eligible to receive benefits under Section 5.1 shall accelerate such that the portion of each such award that would have vested had the Participant remained employed by a Participating Company through the next vesting date (as specified in the applicable award agreement) immediately following such Participant’s Termination Date shall vest and become fully exercisable.

5.4 Payment of Benefits. The total amount determined pursuant to Section 5.2(a) or (b) (as applicable) will be payable in a single lump sum payment within 60 calendar days of the Participant’s Termination Date; provided, however, that:

(a) Such payment is conditioned upon the Eligible Employee having completed, submitted, and allowed to become effective an Election Form and Waiver Agreement with the Plan Administrator not later than the deadline determined by the Company. Notwithstanding the foregoing, the Eligible Employee shall not be able to influence the calendar year of payment based on the timing of his signing and submission of the Election Form and Waiver Agreement. To that end, in the event the time period during which a completed Election Form and Waiver Agreement must be submitted and made effective (the “Relevant Period”) begins and ends in a single calendar year, payment under this Section 5.4 shall be made at any time during such period at the discretion of the Plan Administrator. In the event the Relevant Period spans two calendar years, payment under this Section 5.4 shall be made during the second such calendar year (or any later date specified for such payment under the applicable provision of this Plan), even if the Election Form and Waiver Agreement is submitted and made effective during the first such calendar year; and

(b) In the event the Participant’s Termination Date is in the month of December, the total amount under Section 5.2(a) or (b) (as applicable) may be paid, subject to the conditions as set forth in paragraph (a) above and to the extent necessary for the determination of the Pro Rata Bonus amount, not later than the earlier of (i) March 15th of the following calendar year or (ii) 30 business days after the date that bonuses are actually paid to Employees of the Company under the short term incentive plan.

5.5 Extended Medical Coverage.

(a) Eligibility. Participants who meet the requirements in section 5.1 are eligible for group medical coverage that may extend beyond the Participant’s maximum COBRA Coverage period (“Extended Medical Coverage”), provided that they timely elect COBRA Coverage for medical benefits under the Health and Welfare Plan for themselves and any dependents who are qualified beneficiaries.

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(b) Benefits. The Extended Medical Coverage shall consist of the availability of group medical coverage (and no other coverage such as for dental, vision, or employee assistance program) under the Health and Welfare Plan for a period equal to one-half of the Participant’s Years of Service. Except as otherwise provided in this Section 5.5, Extended Medical Coverage shall be identical in all respects to COBRA Coverage available under the Health and Welfare Plan (including cost and payment obligations) and, during such time as COBRA Coverage under the Health and Welfare Plan is in effect for the Participant, Extended Medical Coverage and the medical coverage under COBRA shall be deemed one and the same. Nothing in this Section 5.5 or any other part of this Plan is intended to extend the availability or increase the amount of any federal COBRA premium subsidy or similar governmental assistance beyond the maximum availability and amount prescribed under applicable law and regulations.

(c) Duration. The Extended Medical Coverage (i.e., the availability of extended coverage) for the Participant and Participant’s dependents shall end on the earliest of the following dates:

(1) The date the Company no longer provides group health coverage to any of its Employees;

(2) The date medical benefits under the Health and Welfare Plan are terminated;

(3) The date as of which the Participant’s COBRA Coverage is terminated for any reason other than exhaustion of the maximum COBRA coverage period available under the Health and Welfare Plan;

(4) The date the Participant fails to timely pay the contribution for the continuation coverage elected (i.e. within 30 days of the first day of the month).

(5) The date the Participant or a covered dependent becomes covered under another group health plan (as an employee or otherwise);

(6) The date the Participant or a covered dependent become entitled to Medicare;

(7) The date the Participant’s or dependent’s coverage would be terminated if the Participant were an active employee for any other reason (e.g. fraudulent claims);

(8) For the Participant’s dependents, the date of the Participant’s death; or

(9) Thirty-six months from the Participant’s Termination Date.

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5.6 Benefits in the Event of Death. If the Participant has completed and allowed to become effective an Election Form and Waiver Agreement, but dies prior to the payment of all benefits due under Sections 5.2, 5.3 and 5.4, the Participant’s spouse, or if no spouse exists, the Participant’s surviving life insurance beneficiary under the Health and Welfare Plan, or, if no such beneficiary is so designated, the Participant’s estate shall be entitled to receive such unpaid benefits. Eligibility for Extended Medical Coverage under Section 5.5 for any dependents shall cease upon the death of the Participant.

5.7 Code Section 409A

(a) All payments under this Plan, together with any other severance plans or arrangements that may be deemed aggregated with this Plan as a single plan or arrangement for purposes of Code Section 409A, are designed and intended to be exempt from the application of Section 409A of the Code by reason of the combination of the short-term deferral exemption described in Treas. Reg. Section 1.409A-1(b)(4) and the two-times and two-year exemption described in Treas. Reg. Section 1.409A-1(b)(9)(iii). With regard to the foregoing, the short-term deferral exemption shall be deemed to apply first by operation of Section 5.4 hereof and, if for any reason the short-term deferral exemption is inapplicable to any amount, such amount, to the extent not in excess of the amount as described in Treas. Reg. section 1.409A-1(b)(9)(iii)(A), shall be paid no later than the last day of the second calendar year following the calendar year in which occurs the Participant’s separation from service.

(b) Notwithstanding anything in this Plan to the contrary, if and to the extent any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Plan by reason of an Eligible Employee’s separation from service during a period in which he is a Specified Employee (as defined below), then, subject to any permissible acceleration of payment by the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes), the Eligible Employee’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of his death or the first day of the seventh month following his separation from service. For purposes of this Section 5.7, the term “Specified Employee” has the meaning given such term in Code Section 409A and the final regulations thereunder (“Final 409A Regulations”); provided, however, that, as permitted in the Final 409A Regulations, the Company’s Specified Employees and its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted by the Board of Directors or a committee thereof, which shall be applied consistently with respect to all nonqualified deferred compensation arrangements of the Company.

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5.8 Restructuring Terminations During Specified Period. Notwithstanding the foregoing provisions of this Article 5 (except Section 5.7), the total cash amount available to a Special Participant pursuant to this Article shall not be less than an amount which, when added to the total cash amount available to that person pursuant to Article 4, would result in an amount equal to twelve (12) weeks’ Straight Time Pay. For purposes of this Section 5.8, “Special Participant” is a Participant who meets all of the following conditions:

(a) The Participant is terminated from his employment with a Participating Company;

(b) The Participant’s Termination Date is on or after April 1, 2010. For purposes of this Section 5.8, Termination Date shall be determined by the Committee without regard to the deemed retirement date as described in Section 2.31 hereof.”

ARTICLE 6 - CLAIMS PROCEDURE

Prior to an Eligible Employee’s Termination Date, the Committee (or its designee) shall determine whether Plan benefits are payable. Any former Employee who believes that he is entitled to a benefit hereunder which has not been received or which is different than that which has been officially communicated to the former Employee, and wishes to appeal such decision must file a claim in writing with the Plan Administrator. With respect to benefits under Article 5, Eligible Employees who may become entitled to such benefits shall be sent a written notice of eligibility in connection with their termination and must execute and return the Election Form and Waiver Agreement provided with such notice to the Company’s Human Resources Manager within the time period specified in the Release. The Committee (or, if designated by the Committee, another claims processor) is referred to as the “Claims Reviewer.” In reviewing and making determinations with respect to any claim under the Plan, each such Claims Reviewer shall have the discretionary authority and powers of the Plan Administrator described in Article 7 below.

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An Employee who has not received a written notice of eligibility in connection with his termination or an Employee or beneficiary (“Claimant”) who has a dispute regarding the amount of benefits paid, and wishes to have the decision reviewed, must submit a written claim for benefits within 120 days after the Employee’s Termination Date. The Claims Reviewer shall notify the Claimant as to the disposition of the claim for benefits under the Plan within 90 days after the Claimant has filed his claim, unless special circumstances require an extension of time for processing the claim. If such an extension of time for processing is required, written notice of the extension shall be furnished to the Claimant prior to the termination of the initial 90-day period, indicating the special circumstances requiring an extension of time and the date by which the Plan expects to render the final decision. In no event shall such extension exceed a period of 90 days from the end of such initial period. If the claim for benefits under the Plan is denied by the Claims Reviewer, a written notice shall be provided to the Claimant that the claim for benefits has been denied. Such written notice shall indicate the specific reasons for the denial of the claim for benefits, citing the specific provisions of the Plan that set forth the reason or reasons for the denial. A Claimant who is denied a claim for benefits under the Plan and wishes to appeal must submit a written appeal of the denial within 60 days after the Claimant’s receipt of the notice of denial of claim for benefits. The Claims Reviewer (or other person or entity designated by the Committee) shall conduct a full and fair review of the denial of claim for benefits within 60 days after receipt of the written appeal; provided, however, that an extension, not to exceed 60 days, may be necessary in special circumstances. Written notice of such extension shall be furnished to the Claimant prior to the commencement of the extension period.

The Claimant shall be notified in writing of the final decision of such full and fair review. Such decision shall be written in a manner calculated to be understood by the Claimant, shall state the specific reason for the decision and shall include specific reference to the pertinent Plan provisions upon which the decision is based.

Any legal action to recover a benefit under the Plan must be filed within 60 days of the decision on appeal. Failure to file suit within this time period shall extinguish any right to benefits under the Plan. In no event may any legal action arising under the Plan be commenced later than the earlier to occur of the second anniversary of the Termination Date and the expiration of the applicable statute of limitations period.

ARTICLE 7 - ADMINISTRATION

7.1 The Committee.

(a) The Committee shall be responsible for the general administration of the Plan. As such, the Committee is the “Plan Administrator” and a “named fiduciary” of the Plan (as those terms are used in ERISA) and is the agent for the service of process with respect to the Plan. In the absence of the appointment of a Committee, the functions and powers of the Committee shall reside with the Company. The Committee, in the exercise of its authority, shall discharge its duties with respect to the Plan in accordance with ERISA and corresponding regulations, as amended from time to time.

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(b) The Committee and its designated agents shall have the exclusive right and discretion to interpret the terms and conditions of the Plan and to decide and interpret all matters arising with respect to the Plan’s administration and operation (including factual issues). Any interpretations or decisions so made shall be conclusive and binding on all persons. The Committee or its designee may pay the expenses of administering the Plan or may reimburse the Company or other person performing administrative services with respect to the Plan if the Company or such other person directly pays such expenses at the request of the Committee.

(c) The composition of the Committee and the identity of its members may be changed, either formally or informally, by the Company or by the remainder of all members of the Committee.

7.2 Authority to Appoint Advisors and Agents. The Committee may appoint and employ such persons as it may deem advisable and as it may require in carrying out the provisions of the Plan. To the extent permitted by law, the members of the Committee shall be fully protected by any action taken in reliance upon advice given by such persons and in reliance on tables, valuations, certificates, determinations, opinions and reports which are furnished by any accountant, counsel, claims administrator or other expert who is employed or engaged by the Committee.

7.3 Compensation and Expenses of Committee. The members of the Committee shall receive no compensation for their duties hereunder, but the Committee shall be reimbursed for all reasonable and necessary expenses incurred in the performance of its duties, including counsel fees and expenses. Such expenses of the Committee, including the compensation of administrators, actuaries, counsel, agents or others that the Committee may employ, shall be paid by the Participating Company.

7.4 Records The Committee shall keep or cause to be kept books and records with respect to the operations and administration of this Plan.

7.5 Indemnification of Committee. The Company agrees to indemnify and to defend to the fullest extent permitted by law any employee serving as a member of the Committee or as its delegate against all liabilities, damages, costs and expenses, including attorneys’ fees and amounts paid in settlement of any claims approved by the Company, occasioned by any act or failure to act in connection with the Plan, unless such act or omission arises out of such employee’s gross negligence, willful neglect or willful misconduct. The Company may purchase fiduciary liability insurance to insure its obligation under this Section.

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ARTICLE 8 - MAXIMUM BENEFITS

8.1 Maximum Benefits. Notwithstanding anything to the contrary herein:

(a) The maximum cash benefit that may be available to a Participant under Article 4 and Article 5 shall be an amount equal to 2 times the sum of such Participant’s (i) W-2 pay (Box 1) for the most recently completed calendar year, (ii) total pre-tax 401(k) elective deferrals for such year (if any), and (iii) total pre-tax medical premium contributions pursuant to Code Section 125 for such year (if any). When necessary, the Plan Administrator shall reduce the severance benefits to such extent and in such manner as it deems necessary or appropriate to comply with this Article 8; and

(b) All payments under this Plan, together with any other severance plans or arrangements that may be deemed aggregated with this Plan as a single plan or arrangement for purposes of Code Section 409A, shall be subject to the requirements as set forth in Section 5.7 (Code Section 409A).

(c) Notwithstanding Section 8.1(a), the maximum cash amount that may be available under this Plan to a Special Participant (as described in Section 5.8 hereof) is an amount equal to the greater of (i) the amount as described in Section 8.1(a) or (ii) twelve (12) weeks’ Straight Time Pay.

ARTICLE 9 - MISCELLANEOUS

9.1 Funding of Benefits. Neither the creation of any fund or accounts, nor the payment of benefits under the Plan shall be construed as giving any legal or equitable right to any Employee, former Employee, or beneficiary against the Company, any Participating Company, or their officers or employees except as expressly provided herein, and all obligations under the Plan shall be satisfied, if at all, only out of the general assets of the Company or a Participating Company.

9.2 Settlement of Accounts. Except as prohibited by applicable law, there shall be deducted from the payment of any benefit due under the Plan the amount of any indebtedness, obligations, or liabilities owed by the Participant to the Company or any Participating Company, including, but not limited to, amounts owed for loans, travel advances, and miscellaneous clothing.

9.3 Withholding. Any payment of benefits to a Participant shall be subject to normal withholding for state, local and federal income taxes and Social Security taxes, as well as legally enforceable garnishments.

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9.4 Spendthrift. Except as permitted by law and this section, no assignment of any rights or benefits arising under the Plan is permitted or recognized. No rights or benefits are subject to attachment or other legal or equitable process or subject to the jurisdiction of any bankruptcy court. If any Participant is adjudicated bankrupt or attempts to assign any benefits, then in the Company’s discretion, those benefits may cease. If that happens, the Committee may apply those benefits for that Participant or his dependents, as the Committee sees fit. Neither the Company, nor any Participating Company, is liable for or subject to the debts, contracts, liabilities, or torts of any person entitled to benefits under this Plan.

9.5 Amendment, Termination and Vesting. The Plan may be amended or terminated at any time by Mirant Services, LLC by or through action of the Plan Administrator. No Participating Company other than the Company shall have the right to amend or terminate the Plan. Any amendment to the Plan by the Company shall be binding upon every Participating Company without further action by such Participating Company. Upon termination or discontinuance of the Plan, all payments with respect to benefits shall be made only with respect to claims incurred on or prior to the date of the Plan’s termination.

Nothing in this Plan, the Summary Plan Description (the “SPD”), or any other document describing, interpreting or relating to the Plan shall be construed to provide vested, nonforfeitable, nonterminable or nonchangeable benefits or rights thereto. No communication, written or oral, may modify, supersede, or void the written terms of the Plan unless such communication constitutes a valid amendment of the Plan executed by the Committee.

The Committee or its designee may amend the SPD attached hereto at any time by preparation and publication of a revised SPD (or Summary of Material Modifications). Any amendment will apply to those currently receiving benefits as well as future benefit recipients.

9.6 No Guarantee of Employment. The Plan is not a contract of employment and neither the Plan nor the payment of any benefits under the Plan shall be construed as giving any person any legal or equitable right to employment by any Participating Company. Nothing herein shall be construed to interfere with the right of the Company or any Participating Company to discharge, with or without cause, any Employee at any time.

9.7 Construction. This Plan shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent such laws are not otherwise superseded by the laws of the United States.

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9.8 Right to Require Information and Reliance Thereon. Each Participating Company, Plan Administrator and Claims Reviewer shall have the right to require any Employee, spouse or beneficiary to provide it and its agents with such information, in writing, and in such forms as it may deem necessary to the administration of the Plan and may rely on that information in carrying out its duties hereunder. Any payment to an Employee, spouse or beneficiary, in accordance with the provisions of the Plan and in good faith reliance upon any written information provided by such individual, shall be in full satisfaction of all claims by the individual.

9.9 Conclusiveness of Records. The records of the Company and the Participating Companies with respect to age, service, employment history, compensation, absences, illnesses and other relevant matters shall be conclusive for purposes of the administration of, and the resolution of claims arising under, the Plan.

IN WITNESS WHEREOF, the Mirant Benefits Committee has caused this Amended and Restated Plan to be executed on behalf of Mirant Services, LLC, this      day of                     , 2010, to be effective as provided herein.

MIRANT SERVICES, LLC
By:
	Kevin P. Boudreaux
	VP, Administration

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APPENDIX A – FORM OF RELEASE

Election Form and Waiver Agreement

(1) Benefits. I understand that in order to receive the Enhanced Severance and/or the Enhanced Medical Benefits under the Mirant Services Severance Pay Plan (“Plan”), and other benefits and/or compensation identified on Attachment A (collectively, “Benefits”), I must execute this Election Form and Waiver Agreement (“Agreement”) and return it to the Mirant Services, LLC (“Company”), on or before                      [date].

I understand that I am entitled to receive the Basic Severance and Welfare Benefits under the Plan even if I do not execute this Agreement. I understand that the Benefits I have elected to receive under the Plan and under other plans or policies identified on Attachment A are in excess of those I would have received from the Company if I had not elected to sign this Agreement. I understand and acknowledge that nothing in this Agreement is intended to or requires the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans.

(2) General. In exchange for the Benefits I elect to receive, as set forth on Attachment A, I agree to irrevocably and unconditionally waive and release all Claims, as that term is defined in this Agreement, that I may now have against the Released Parties, as that term is defined in this Agreement, including the Company and other parties as set forth in this Agreement. I understand and agree that I am releasing the rights set forth below on behalf of myself, and anyone else entitled to assert any rights on my behalf such as my estate or my beneficiaries, now and forever.

(3) Released Parties. As used in this Agreement, the “Released Parties” are Mirant Corporation, Mirant Services, LLC, and all other subsidiaries or affiliates of Mirant Corporation, and with respect to each of them, their predecessors and successors, and with respect to each entity all of its past, present and future officers, directors, employees, agents, stockholders, owners, attorneys, insurers, employee benefit programs (including but not limited to the Mirant Services, LLC and Affiliated Companies Health and Welfare Benefits Plan for Non-Union Employees and the Mirant Services Severance Pay Plan) (and the trustees, administrators, fiduciaries, and insurers of such programs) and any other persons acting by, through, under or in concert with any of the persons or entities listed in this subsection. For purposes of this Agreement, I understand and agree that a “related business entity” includes, but is not limited to, any entity that was a subsidiary or affiliate of The Southern Company for periods prior to April 2, 2001 (hereinafter “Southern Business Entity”). I further understand and agree that the waiver and release of claims attributable to a Southern Business Entity under this Agreement applies only to those claims arising from such entity during periods prior to April 2, 2001.

(4) Claims Released. I understand and agree that I am releasing all known and unknown claims, promises, causes of action or similar rights of any type that I may have as of this date (the “Claims”) against any and all Released Parties, except that I am not releasing any claim that relates to (i) my right to enforce this Agreement; (ii) my right, if any, to claim government-provided unemployment benefits, or (iii) any rights or claims which may arise or accrue after I sign this Agreement. I further understand that the Claims I am releasing may arise under many different laws (including statutes, regulations, other administrative guidance, and common law doctrines), including but not limited to:

• Anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act, which prohibit discrimination based on race, color, age, national origin, religion, or sex; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; the Americans With Disabilities Act, as amended, which prohibits discrimination based on disability; and any other federal, state, or local laws prohibiting employment or wage discrimination.

• Federal employment statutes, such as the WARN Act, which requires that advance notice be given of certain work force reductions; the Employee Retirement Income Security Act of 1974, which, among other things, protects employee benefits; the Fair Labor Standards Act of 1938 and state laws which regulate wage and hour matters; the Family and Medical Leave Act of 1993, which requires employers to provide leaves of absence under certain circumstances; and any other federal laws relating to employment, such as veterans’ reemployment rights laws.

• Other laws, such as any federal, state, or local laws restricting an employer’s right to terminate employees, or otherwise regulating employment; any federal, state, or local law enforcing express or implied employment contracts or requiring an employer to deal with employees fairly or in good faith.

• Tort and Contract Claims, such as claims for wrongful discharge, physical or personal injury, emotional distress, fraud, fraud in the inducement, negligent misrepresentation, defamation, invasion of privacy, interference with contract or with prospective economic advantage, breach of express or implied contract, breach of covenants of good faith and fair dealing, and similar or related claims.

• Examples of Released Claims include, but are not limited to: (i) Claims that in any way relate to my employment with the Company, or the termination of that employment, such as Claims for compensation, bonuses, commissions, lost wages, or unused accrued vacation or sick pay; (ii) Claims that in any way relate to the design or administration of any employee benefit program; (iii) Claims that I have irrevocable or vested rights to severance or similar benefits or to post-employment health or group insurance benefits other than the Benefits set forth in Attachment A; or (iv) any Claims to attorneys’ fees or other indemnities.

• General Release. The releases set forth in Paragraph 2 and in this Paragraph 4 extend to all claims of every nature and kind, known or unknown, suspected or unsuspected, vested or contingent, past, present, or future, arising from or attributable to any alleged act or omission of the Company or of the Released Parties, their past, present and future officers, directors,

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partners, agents, servants, lawyers, employees, assigns, insurers, predecessors-in-interest, successors-in-interest, underwriters, and all their parent, affiliated and subsidiary entities occurring prior to the execution of this Agreement and the release contained in this Agreement, and any and all rights granted Employee under Section 1542 of the California Civil Code or any analogous law or regulation affecting any other jurisdiction are hereby waived. Said Section 1542 of the California Civil Code reads in full as follows:

Section 1542. General Release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

(5) Promises, Representations and Acknowledgment. In further exchange for the Benefits I elect to receive:

• Reemployment: I understand and agree that for a period of 6 months following my execution of this Agreement and in exchange for payments to be received upon execution of this Agreement, I will not apply for or otherwise seek reemployment with the Released Entities. I further understand because I am receiving the Benefits due to involuntary termination of employment in connection with the sale, merger, spin-off or similar transfer of some or all assets or membership interest of the Company to an unrelated entity (the “Buyer”), I must not, during the six-month period immediately following the termination of employment with Company, become – or agree or promise to become – an employee or independent contractor of the Buyer or its affiliate, or otherwise directly or indirectly render – or agree or promise to render – services to the Buyer or its affiliate in any manner.

• Confidentiality, Non-Disparagement & Cooperation: I understand and agree that for 3 years, or for so long as the relevant information remains confidential, I will not disclose any information of a proprietary and/or confidential nature of any entity in the Mirant Corporation system or any third party that I have obtained in the course of my service with the Company or any subsidiary, affiliate, predecessor or related business entity of Mirant Corporation. I will not engage in any communications which shall criticize, denigrate, or disparage the Released Parties or interfere with its existing or prospective business relationships. I also agree to fully cooperate with the Company in connection with any transition issues or litigation that continues following my termination.

• Non-Solicitation: In further exchange for the Benefits I elect to receive, I understand and agree that for a period of 3 years following termination of my employment with Mirant, I shall not solicit or attempt to solicit, directly or indirectly by assisting others, any individuals who were employees of Mirant at the time of my termination of employment for purposes of inducing them to leave Mirant’s employment or to accept employment or engagement with another company or entity.

3

• Acknowledgment of Wages: With the possible exception of my final paycheck, which will include a payout of any outstanding accrued but unused vacation I may have remaining at the time of termination, I acknowledge and agree that I have received all monies earned and due me during my employment with the Company and that I am not entitled to receive, any other severance pay or benefits, bonus payments, stock options or other rights related to stock plans or other long-term incentive plans, accrued vacation pay, or accrued holiday pay, or any other form of compensation or benefit other than what is set forth under this Agreement.

• Waiver of Pursuit of Released Claims and Financial Recovery: I have not filed or caused to be filed any lawsuit, complaint, or charge with respect to any Claim this Agreement purports to release. Except to the extent that applicable law requires that I be allowed to file an EEOC Charge or other administrative charge with a governmental agency, I hereby agree not to file a lawsuit or other legal claim or charge to assert any claim based on facts that occurred prior to, or that exist as of, the time I execute this Agreement against any of the Released Parties. I will not seek and hereby waive any right to any monetary or other personal relief whatsoever based on such Claims brought by anyone on my behalf in any court or before any administrative agency. I further agree that if anyone (including, but not limited to, Employee, the Equal Employment Opportunity Commission or any other government agency or similar such body) makes a claim or undertakes an investigation involving me in any way, I hereby waive any and all right and claim to financial recovery resulting from such claim or investigation.

• Taxes: I am solely responsible for paying any taxes on Benefits I receive because I signed this Agreement. I agree that the Company may withhold all taxes it determines it is legally required to withhold. I understand that I may obtain advice from an attorney or tax advisor regarding the tax consequences of the payments and benefits provided for in this Paragraph, and I represent that I have not relied on any representations by the Company regarding the tax consequences of such payments and benefits.

• Ownership of Claims: I have not assigned or transferred any Claim I am releasing, nor have I purported to do so.

• Nonadmission of Liability: I agree not to assert that this Agreement is an admission of guilt or wrongdoing by any Released Party and I acknowledge that the Released Parties deny that they have engaged in wrongdoing of any kind or nature.

• Implementation: I agree to sign any documents and do anything else that is necessary in the future to implement this Agreement.

(6) Consequences of Violating my Promises. Except with respect to claims pursuant to the ADEA, if I violate the terms of this Agreement by attempting to rescind, revoke or annul this Agreement after the Effective Date (set forth below), or otherwise by violating any of the promises set forth in Paragraph 5, or if any representation I made in this Agreement was false when made, I agree that I am required to repay to the Plan in advance of filing a claim or as a consequence of any violation of my promises all Benefits received as a result of entering into this Agreement. In addition, except with respect to claims under the ADEA, if Company or any

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Released Party prevails in defending the enforceability of any portion of the Agreement or in defending itself against any such claim brought by me, I will pay Company’s reasonable attorneys’ fees, costs, and damages incurred by any Released Party in defending itself against the claim(s) and/or the attempted revocation, rescission or annulment. Nothing in this Agreement shall limit Company’s rights to seek and obtain other remedies for breach of this Agreement.

(7) Governing Law and Severability. This Agreement and the rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of the State of Georgia. If any provision hereof is unenforceable or is held to be unenforceable, such provision shall be fully severable, and this document and its terms shall be construed and enforced as if such unenforceable provision had never comprised a part hereof, the remaining provisions hereof shall remain in full force and effect, and the court or tribunal construing the provisions shall add as a part hereof a provision as similar in terms and effect to such unenforceable provision as may be enforceable, in lieu of the unenforceable provision.

This is the entire agreement between the Company and me. It supersedes and invalidates any previous agreements or contracts. No representations, inducements, promises or agreements, oral or otherwise, which are not in this Agreement shall be of any force or effect. If any provision in this Agreement is found to be unenforceable, all other provisions will remain fully enforceable.

(8) Acknowledgment. Limited Revocation Rights, and Effective Date.

I HAVE CAREFULLY READ THIS RELEASE AND ACKNOWLEDGE THAT IT CONSTITUTES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AGAINST THE COMPANY, INCLUDING CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. I HAVE BEEN ENCOURAGED AND ADVISED IN WRITING TO SEEK ADVICE FROM ANYONE OF MY CHOOSING REGARDING THIS AGREEMENT, INCLUDING MY ATTORNEY, ACCOUNTANT OR TAX ADVISOR. PRIOR TO SIGNING THIS AGREEMENT, I HAVE BEEN GIVEN THE OPPORTUNITY AND SUFFICIENT TIME TO SEEK SUCH ADVICE AND I FULLY UNDERSTAND THE MEANING AND CONTENTS OF THIS AGREEMENT.

I UNDERSTAND THAT I MAY TAKE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER WHETHER OR NOT I DESIRE TO ENTER INTO THIS AGREEMENT. I WAS NOT COERCED, THREATENED OR OTHERWISE FORCED TO SIGN THIS AGREEMENT. I HAVE MADE MY CHOICE TO SIGN THIS AGREEMENT VOLUNTARILY AND OF MY OWN FREE WILL AND WITH THE FULL INTENT OF RELEASING THE COMPANY FROM ALL SUCH CLAIMS. IF I SIGN THIS AGREEMENT BEFORE EXPIRATION OF THE FORTY-FIVE (45) DAY REVIEW PERIOD, I HAVE DONE SO OF MY OWN CHOICE, FREELY, AND WITHOUT COERCION.

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I understand that I may revoke this Agreement at any time during the seven (7) calendar day period after I sign and deliver this Agreement to the Company. If I revoke this Agreement, I must do so in writing delivered to                      [Insert name and contact information of appropriate Company personnel]. I understand that this Agreement is not effective until the expiration of this seven (7) calendar day revocation period (the “Effective Date”). I understand that upon-the expiration of such seven (7) calendar day revocation period this entire Agreement will be binding upon me and will be irrevocable. However, if I revoke this Agreement within such seven (7) day period, no Benefits will be payable to me under the Plan.

I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP RIGHTS I MAY HAVE. I UNDERSTAND I DO NOT HAVE TO SIGN THIS AGREEMENT.

IN WITNESS WHEREOF, the undersigned hereby executes this Agreement this      day of                     , 20    .

Sworn to and subscribed before me,	EMPLOYEE’S SIGNATURE
NOTARY PUBLIC	EMPLOYEE’S PRINTED NAME
My Commission Expires:
	*EMPLOYEE’S DAYTIME PHONE

* Please provide us with a daytime telephone number where we may reach you in order to discuss and assist you with the completion of the necessary forms associated with your other benefit plans.

Witnessed, Acknowledged and Accepted by a representative of the Administrator of the Mirant Services Severance Pay Plan.

By:

Title:

6

EX-10.2

Exhibit 10.2

FOIA CONFIDENTIAL TREATMENT REQUESTED

PORTIONS OF THE EXHIBITS HERETO MARKED BY *** HAVE BEEN

OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

Execution Version

LUMP SUM TURNKEY AGREEMENT

for the

ENGINEERING, PROCUREMENT AND CONSTRUCTION

of the

MARSH LANDING GENERATING STATION

by and between

MIRANT MARSH LANDING, LLC

as Owner

and

KIEWIT POWER CONSTRUCTORS CO.

as Contractor

Dated as of the 6th Day of May, 2010

TABLE OF CONTENTS

RECITALS		1
ARTICLE 1	DEFINITIONS	1
ARTICLE 2	RELATIONSHIP OF OWNER, CONTRACTOR AND SUBCONTRACTORS	14
2.1	Status of Contractor	14
2.2	Key Personnel, Organization Chart and Contractor Representative	15
2.3	Subcontractors and Sub-subcontractors	15
2.4	Subcontracts and Sub-subcontracts	16
2.5	Contractor Acknowledgements	17
ARTICLE 3	CONTRACTOR’S RESPONSIBILITIES	19
3.1	Scope of Work	19
3.2	Specific Obligations	20
3.3	Design and Engineering Work	21
3.4	Spare Parts	23
3.5	Training Program in General	24
3.6	Environmental Regulations and Environmental Compliance	25
3.7	Contractor’s Tools and Equipment	25
3.8	Employment of Personnel	25
3.9	Clean-up	27
3.10	Safety and Security	27
3.11	Emergencies	28
3.12	Approvals, Certificates, Permits and Licenses	28
3.13	Books, Records and Audits	28
3.14	Tax Accounting	29
3.15	Temporary Utilities, Roads, Facilities and Storage	29
3.16	Subordination of Liens	29
3.17	Hazardous Materials	30
3.18	Quality Assurance	30
3.19	Reports and Meetings	30
3.20	Payment	32
3.21	Commercial Activities	32
3.22	Title to Materials Found	32
3.23	Survey Control Points and Layout	32
3.24	Cooperation with Others	32
3.25	Responsibility for Property	33
3.26	Explosives	33
3.27	Nondiscrimination	34
3.28	Used or Salvaged Materials	34
3.29	Supervision of Owner’s Operation Personnel	34
3.30	Compliance with Real Property Interests	34
3.31	Compliance with Site Rules	34

ARTICLE 4	OWNER’S RESPONSIBILITIES	35
4.1	Payment	35
4.2	Permits	35
4.3	Site Access	35
4.4	Operation Personnel	35
4.5	Taxes	36
4.6	Legal Description and Survey	36
4.7	Fuel and Power	36
4.8	Utility and Interconnection Studies	36
ARTICLE 5	COMMENCEMENT OF WORK, KEY MILESTONE SCHEDULE, AND SCHEDULING OBLIGATIONS	36
5.1	Commencement of Work	36
5.2	Limited Notice to Proceed/Notice to Proceed	36
5.3	Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date	38
5.4	CPM Schedule	39
5.5	Recovery and Recovery Schedule	41
5.6	Acceleration and Acceleration Schedule	42
ARTICLE 6	CHANGES; FORCE MAJEURE; AND OWNER-CAUSED DELAY	43
6.1	Change Orders Requested by Owner	43
6.2	Change Orders Requested by Contractor	44
6.3	Contract Price Adjustment; Contractor Documentation	47
6.4	Change Orders Act as Accord and Satisfaction	48
6.5	Timing Requirements for Notifications and Change Order Requests by Contractor	48
6.6	Adjustment Only Through Change Order	50
6.7	Force Majeure	50
6.8	Delay Caused by Owner or Changes in Scope of Work	50
6.9	Schedule Extension	51
6.10	Delay	51
6.11	Contractor Obligation to Mitigate Delay	51
ARTICLE 7	CONTRACT PRICE AND PAYMENTS TO CONTRACTOR	51
7.1	Contract Price	51
7.2	Interim Payments	52
7.3	Final Completion and Final Payment	54
7.4	Payments Not Acceptance of Work	54
7.5	Payments Withheld	54
7.6	Substitution for Retainage; Release of Retainage	55
7.7	Interest on Late Payments	56
7.8	Payments During Default	56
7.9	Offset	56
7.10	Currency	56

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ARTICLE 8	TAXES	56
ARTICLE 9	TITLE AND RISK OF LOSS	57
9.1	Title	57
9.2	Risk of Loss	58
ARTICLE 10	INSURANCE AND PERFORMANCE SECURITY	58
10.1	Insurance	58
10.2	Contractor Letter of Credit	58
10.3	Contractor’s Parent Guarantee	58
10.4	Owner’s Letter of Credit	58
10.5	Owner’s Parent Guarantee	58
ARTICLE 11	OWNERSHIP OF DOCUMENTATION	59
11.1	Ownership of Work Product	59
11.2	Computer Programs	59
11.3	Owner Provided Documents	60
ARTICLE 12	COMPLETION AND PERFORMANCE LIQUIDATED DAMAGES	60
12.1	Notice and Requirements for Pre-Commissioning and Mechanical Completion	60
12.2	Notice and Requirements for Substantial Completion	61
12.3	Owner Acceptance of Mechanical Completion and Substantial Completion	61
12.4	Minimum Acceptance Criteria as a Condition of Substantial Completion	61
12.5	Punchlist	63
12.6	Notice and Requirements for Final Completion	64
12.7	Performance Guarantees as a Condition of Final Completion	64
12.8	***	65
12.9	Partial Occupancy and Use	65
12.10	Long-Term Obligations	66
ARTICLE 13	WARRANTY AND CORRECTION OF WORK	66
13.1	Warranty	66
13.2	Inspection	67
13.3	Correction of Work After Substantial Completion	68
13.4	Exclusivity	69
13.5	Assignability of Warranties	69
ARTICLE 14	SUBSTANTIAL COMPLETION DELAY LIQUIDATED DAMAGES AND PAYMENT OF LIQUIDATED DAMAGES	69
14.1	Delay in Substantial Completion	69
14.2	Suspension or Cessation of Substantial Completion Delay Liquidated Damages	69
14.3	Payment of Liquidated Damages	70
ARTICLE 15	CONTRACTOR’S REPRESENTATIONS	70
15.1	Corporate Standing	70

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15.2	No Violation of Law; Litigation	70
15.3	Licenses	70
15.4	No Breach	70
15.5	Corporate Action	71
15.6	Financial Solvency	71
ARTICLE 16	OWNER’S REPRESENTATIONS	71
16.1	Corporate Standing	71
16.2	No Violation of Law; Litigation	71
16.3	Licenses	71
16.4	No Breach	71
16.5	Corporate Action	72
ARTICLE 17	DEFAULT, TERMINATION AND SUSPENSION	72
17.1	Default by Contractor	72
17.2	Termination for Convenience by Owner	74
17.3	Suspension of Work	76
17.4	Suspension by Contractor	76
17.5	Termination by Contractor	76
17.6	Termination in the Event of Extended Force Majeure	77
ARTICLE 18	INDEMNITIES	77
18.1	General Indemnification	77
18.2	Owner Indemnification	78
18.3	Patent and Copyright Indemnification	78
18.4	Lien Indemnification	79
18.5	Legal Defense	80
18.6	Enforceability	80
ARTICLE 19	DISPUTE RESOLUTION	81
19.1	Negotiation - Parties’ Representatives	81
19.2	Negotiation - Senior Executives	81
19.3	Litigation	81
19.4	Continuation of Work During Dispute	82
ARTICLE 20	CONFIDENTIALITY	82
20.1	Contractor’s Obligations	82
20.2	Owner’s Obligations	82
20.3	Definitions	83
20.4	Exceptions	83
20.5	Equitable Relief	83
20.6	Term	83
20.7	Siemens Confidential Information	83
ARTICLE 21	LIMITATION OF LIABILITY	84
21.1	Contractor Aggregate Liability	84
21.2	Limitation on Contractor’s Liability for Liquidated Damages	84

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21.3	Liquidated Damages In General	84
21.4	Consequential Damages	85
ARTICLE 22	MISCELLANEOUS PROVISIONS	85
22.1	Entire Agreement	85
22.2	Amendments	85
22.3	Joint Effort	85
22.4	Captions	85
22.5	Notice	86
22.6	Severability	86
22.7	Assignment of the Agreement	87
22.8	Assignment of the Siemens Contract	87
22.9	No Waiver	88
22.10	Governing Law	88
22.11	Foreign Corrupt Practice Act	88
22.12	Successors and Assigns	88
22.13	Attachments and Schedules	88
22.14	Obligations	88
22.15	Further Assurances	88
22.16	Priority	88
22.17	Restrictions on Public Announcements	89
22.18	Language	89
22.19	Counterparts	89
22.20	Owner’s Lender	89
22.21	Survival	90

v

LIST OF ATTACHMENTS AND SCHEDULES

ATTACHMENT A	Scope of Work and Design Basis
SCHEDULE A-1	Scope of Work
SCHEDULE A-2	Design, Engineering and Codes
SCHEDULE A-3	Engineered Equipment List
SCHEDULE A-4	Utility Interface Schedule
SCHEDULE A-5	Engineering Drawings
SCHEDULE A-6	Grading and Drainage Drawing
ATTACHMENT B	Contractor Deliverables
SCHEDULE B-1	Outline of Owner Document Submittal Requirements for Review or Information
SCHEDULE B-2	Outline of Minimum Vendor Document Requirements by Equipment Category
ATTACHMENT C	Payment Schedule
SCHEDULE C-1	EPC Payment Milestones
SCHEDULE C-2	Siemens Equipment Payment Milestones
SCHEDULE C-3	Maximum Cumulative Payment Schedule
ATTACHMENT D	Form of Change Order
SCHEDULE D-1	Change Order Form
SCHEDULE D-2	Owner-Directed Change Order Form
SCHEDULE D-3	Contractor’s Change Order Request Form
SCHEDULE D-4	Pricing for Change Orders
ATTACHMENT E	Key Milestone Schedule
ATTACHMENT F	Key Personnel and Contractor’s Organization
ATTACHMENT G	Approved Subcontractors and Sub-subcontractors

vi

ATTACHMENT H	Notice to Proceed Forms
SCHEDULE H-1	Form of Limited Notice to Proceed
SCHEDULE H-2	Form of Notice to Proceed
ATTACHMENT I	Form of Contractor’s Invoices
SCHEDULE I-1	Form of Contractor’s Interim Invoice
SCHEDULE I-2	Form of Contractor’s Final Invoice
ATTACHMENT J	Health, Safety and Environmental Policies
ATTACHMENT K	Form of Lien and Claim Waivers
SCHEDULE K-1	Contractor’s Interim Waiver and Release of Liens
SCHEDULE K-2	Contractor’s Interim Claim Waiver
SCHEDULE K-3	Subcontractor’s Interim Waiver and Release of Liens
SCHEDULE K-4	Subcontractor Interim Claim Waiver
SCHEDULE K-5	Contractor’s Final Waiver and Release of Liens
SCHEDULE K-6	Contractor’s Final Claim Waiver
SCHEDULE K-7	Subcontractor’s Final Waiver and Release of Liens
SCHEDULE K-8	Subcontractor’s Final Claim Waiver
ATTACHMENT L	Form of Mechanical Completion Certificate
ATTACHMENT M	Form of Substantial Completion Certificate
ATTACHMENT N	Form of Final Completion Certificate
ATTACHMENT O	Insurance Requirements
ATTACHMENT P	Contractor Permits
ATTACHMENT Q	Owner Permits
ATTACHMENT R	Form of Irrevocable Standby Letters of Credit
SCHEDULE R-1	Form of Contractor Letter of Credit
SCHEDULE R-2	Form of Owner Letter of Credit

vii

ATTACHMENT S	Performance Tests
ATTACHMENT T	Performance Guarantees, Performance Liquidated Damages, *** and Minimum Acceptance Criteria
ATTACHMENT U	Critical Path Method Schedule Requirements
ATTACHMENT V	Pre-Commissioning, Commissioning, Start-Up and Training Program
ATTACHMENT W	Spare Parts List
ATTACHMENT X	Reporting Requirements
ATTACHMENT Y	Site
SCHEDULE Y-1	Description of the Site
SCHEDULE Y-2	Site and Surrounding Areas
SCHEDULE Y-3	Parcel Map
ATTACHMENT Z	Parent Guarantees
SCHEDULE Z-1	Form of Contractor’s Parent Guarantee
SCHEDULE Z-2	Form of Owner’s Parent Guarantee
ATTACHMENT AA	Demolition Work and Demolition Information
ATTACHMENT BB	Confidentiality Obligations for Siemens Confidential Information
ATTACHMENT CC	Ground Water Specifications

viii

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (this “Agreement”), dated as of the 6th Day of May, 2010 (the “Effective Date”), is entered into by and between Mirant Marsh Landing, LLC, a Delaware limited liability company (“Owner”), and Kiewit Power Constructors Co., a Delaware corporation (“Contractor” and, together with Owner, each a “Party” and together the “Parties”).

RECITALS

WHEREAS, Owner desires to enter into an agreement with Contractor to provide the engineering, procurement and construction of a natural gas-fired turbine generator facility to be owned by Owner, located near Antioch, California, and all related appurtenances thereto (as more fully described below, the “Facility”), and to pre-commission, commission, start-up, and test the Facility, all as further described herein; and

WHEREAS, Contractor, itself or through its vendors, suppliers, and subcontractors, desires to provide the foregoing engineering, procurement, construction, pre-commissioning, commissioning, start-up and testing services on a turnkey lump sum basis;

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

ARTICLE 1

DEFINITIONS

1.1 In addition to other defined terms used throughout this Agreement, when used herein, the following capitalized terms have the meanings specified in this Section 1.1.

“Acceleration Schedule” has the meaning set forth in Section 5.6.

“Affiliate” shall mean, with respect to either Party, any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such party. The term “control” means the possession, directly or indirectly, of the power to cause the direction of the management of such entity, whether through ownership of securities, by contract or otherwise.

“Agreement” means this Agreement for the performance of the Work (including all Attachments and Schedules attached hereto), as it may be amended from time to time in accordance with this Agreement.

“Applicable Codes and Standards” means any and all codes, standards or requirements set forth in Attachments A, J and S or in any Applicable Law, which codes, standards and requirements shall govern Contractor’s performance of the Work, as provided herein. In the event of an inconsistency or conflict between any of the Applicable Codes and

Standards, the highest performance standard as contemplated therein shall govern Contractor’s performance under this Agreement.

“Applicable Law” means all laws, statutes, ordinances, certifications, orders, decrees, injunctions, licenses, Permits, approvals, agreements, rules and regulations, including any conditions thereto, of any Governmental Instrumentality having jurisdiction over any Party, all or any portion of the Site or the Facility or performance of all or any portion of the Work or the operation of the Facility, or other legislative or administrative action of a Governmental Instrumentality, or a final decree, judgment or order of a court which relates to the performance of Work hereunder or the interpretation or application of this Agreement, including (i) any and all Permits, (ii) any Applicable Codes and Standards set forth in Applicable Law, and (iii) Applicable Law related to (y) conservation, improvement, protection, pollution, contamination or remediation of the environment or (z) Hazardous Materials or any handling, storage, release or other disposition of Hazardous Materials.

“Auxiliary Power Load” has the meaning set forth in Attachment S.

“Books and Records” has the meaning set forth in Section 3.13A.

“Business Day” means every Day other than (i) a Saturday, (ii) a Sunday or (iii) a Day that is an official holiday for employees of the federal government of the United States of America or for employees of banks located in New York or California.

“CAD” has the meaning set forth in Section 3.3E.

“California Revenue Taxes” has the meaning set forth in Section 8.2.

“CAISO” means the California Independent Systems Operator.

“Change Order” means a written order issued by Owner to Contractor after the execution of this Agreement, in the form of Schedule D-2, or a written instrument signed by both Parties after the execution of this Agreement in the form of Schedule D-1, that authorizes an addition to, deletion from, suspension of, or any other modification or adjustment to the requirements of this Agreement, including an addition to, deletion from or suspension of the Work or any modification or adjustment to any Changed Criteria. Owner and Contractor are entitled to a Change Order in accordance with Article 6.

“Changed Criteria” has the meaning set forth in Section 6.1A.

“Changes in Law” means any amendment, modification, superseding act, deletion, addition or change in or to Applicable Law affecting the Work to be performed in California (excluding changes to Tax laws where such Taxes are based upon Contractor’s revenue (except as set forth in Section 8.2), income, profits/losses or cost of finance or withholding Tax) that occurs and takes effect after the Effective Date.

“Computer Programs” shall mean those “Computer Programs” (as defined in the Siemens Contract) that are provided by Siemens under the Siemens Contract.

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“Confidential Information” has the meaning set forth in Section 20.3.

“Contract Price” has the meaning set forth in Section 7.1.

“Contractor” has the meaning set forth in the preamble hereto.

“Contractor Group” means (i) Contractor, its parents and Affiliates, and (ii) the directors, officers, employees, agents, attorneys and other professional advisors of any Persons specified in clause (i) above.

“Contractor Letter of Credit” has the meaning set forth in Section 10.2.

“Contractor Representative” means that Person or Persons designated by Contractor in a written notice to Owner and acceptable to Owner, who shall have complete authority to act on behalf of Contractor on all matters pertaining to this Agreement or the Work, including giving instructions and making changes in the Work.

“Contractor’s Confidential Information” has the meaning set forth in Section 20.2.

“Contractor’s Intellectual Property” has the meaning set forth in Section 11.1.

“Corrective Work” has the meaning set forth in Section 13.3.

“CPM Performance Measurement Baseline Schedule” has the meaning set forth in Section 5.4B.

“Critical Spare Parts” means the Owner-requested operating spare parts to be provided by Contractor in accordance with Sections 3.4 and 12.4C for (i) the gas turbine and turbine generator, (ii) the selective catalytic reduction system, (iii) the water treatment system and (iv) the continuous emissions monitoring system.

“Day” means a calendar day.

“Default” has the meaning set forth in Section 17.1A.

“Defect” or “Defective” has the meaning set forth in Section 13.1A.

“Defect Correction Period” shall mean ***.

“Demobilization and Subcontract Cancellation Cost” has the meaning set forth in Section 17.2A.

“Demolition LNTP” has the meaning set forth in Section 5.2D.

“Design Basis” means the basis of design and technical limits and parameters of the Facility as set forth in the Agreement, including Schedule A-2.

“Disclosing Party” has the meaning set forth in Section 20.3.

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“Dispute” has the meaning set forth in Section 19.1.

“Drawings” means the graphic and pictorial documents, plans or models (in written or electronic format) showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams, which are prepared as a part of and during the performance of the Work, including those which fix and describe the Facility with respect to the civil engineering, structural, instrumentation, control, mechanical, electrical, plumbing, fire protection, acoustical and life safety systems.

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

“Electric Delivery Point” has the meaning set forth in Attachment T.

“Emissions Minimum Acceptance Criteria” or “Emissions MAC” has the meaning set forth in Attachment T.

“EPC Payment Milestone” shall mean a designated portion of the Contract Price as shown in Schedule C-1.

“EPC Payment Milestone portion of the Contract Price” shall have the meaning set forth in Section 7.2A. The EPC Payment Milestone portion of the Contract Price shall only be adjusted by Change Order.

“Equipment” means all equipment, materials, supplies and systems (including the Siemens Equipment) required for the completion of and incorporation into the Work.

“Facility” means the facilities contemplated in this Agreement, including the natural gas-fired power generation facilities to be engineered, procured, constructed, pre-commissioned, commissioned and tested by Contractor under this Agreement, all of which are described and as set forth in more detail in Attachment A.

“Final Completion” means that all Work and all other obligations under the Agreement (except for that Work and obligations that survive the termination or expiration of this Agreement, including obligations for Warranties and correction of Defective Work), are fully and completely performed in accordance with the terms of this Agreement, including: (i) the successful achievement of Mechanical Completion and Substantial Completion; (ii) the completion of all Punchlist items; (iii) delivery by Contractor to Owner of Contractor’s fully executed Final Waiver and Release of Liens in the form of Schedule K-5 and Final Claim Waiver in the form of Schedule K-6; (iv) delivery by Contractor to Owner of all documentation required to be delivered under this Agreement, including Record As-Built Drawings and Specifications, Owner’s Confidential Information and the final operating and maintenance manuals for the Facility; (v) delivery to Owner, in content and form reasonably satisfactory to Owner, copies of all required Subcontracts, written assignments of Subcontractor warranties and a list of the names, addresses and telephone numbers of the Subcontractors providing such warranties; (vi) removal from the Site of all of Contractor’s, Subcontractors’ and Sub-subcontractor’s personnel, supplies, waste, materials, equipment (except Equipment), rubbish, Hazardous Materials, and temporary facilities; (vii) delivery by Contractor to Owner of evidence acceptable to Owner that all

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Major Subcontractors and Major Sub-subcontractors have been fully and finally paid, including fully executed Final Waiver and Release of Liens in the form of Schedule K-7 and Final Claim Waivers in the form of Schedule K-8 from all Major Subcontractors; (viii) if requested by Owner, fully executed Final Waiver and Release of Liens from Major Sub-subcontractors in a form substantially similar to the form in Schedule K-7 and fully executed Final Claim Waivers from Major Sub-subcontractors in a form substantially similar to the form in Schedule K-8; (ix) achievement of all Performance Guarantees, or if all Performance Guarantees are not achieved, the payment of all applicable Performance Liquidated Damages; (x) achievement of the Starting Reliability Requirement; (xi) delivery to Owner of all specialty tools required for the operation and maintenance of the Facility and the operating spare parts (if any) required to be provided to Owner under this Agreement (other than those operating spare parts for the Siemens Equipment which are provided by Contractor pursuant to Section 3.4C); (xii) delivery by Contractor to Owner of a Final Completion Certificate in the form of Attachment N and as required under Section 12.6, which Owner has accepted by signing such certificate; and (xiii) performance by Contractor of all other obligations required under this Agreement for Final Completion.

“Final Completion Certificate” has the meaning set forth in Section 12.6.

“Final Geotechnical Report” has the meaning set forth in Section 2.5B.1.

“Final Claim Waiver” means the waiver and release of claims provided to Owner by Contractor, Major Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.3.

“Final Waiver and Release of Liens” means the waiver and release of liens provided to Owner by Contractor, Major Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.3.

“Force Majeure” shall mean any event or circumstance that (i) causes a failure in or delay in the affected Party’s performance of its obligations under the Agreement, (ii) is beyond the control of the affected Party and not due to its fault or negligence (or any Person over whom that Party has control) and (iii) cannot be avoided or overcome by the exercise of due diligence by the Party (or any Person over whom that Party has control). To the extent meeting the foregoing requirements, Force Majeure may include, but is not necessarily limited to, acts of God, landslide, lightning, earthquake, hurricane, abnormally severe storms, typhoons, cyclones, flood, tornado, or other natural disasters, fire or explosions, sabotage, riot, acts of terrorism, war, blockade, insurrection, civil disturbance, epidemic, transportation accidents affecting delivery of Equipment only if such accident occurs prior to delivery to the Site, and acts of public enemy or restraint by court order or other Governmental Instrumentality. For the avoidance of doubt, Force Majeure shall not include (a) any strike, lockout or other labor dispute affecting Contractor or any subcontractor unless such strike, lockout or labor dispute is an industry-wide or national event and otherwise meets the conditions above for a Force Majeure, (b) any difficulty in obtaining or maintaining sufficient, or appropriately skilled personnel to perform the Work, (c) late delivery, failure or breakages of materials, equipment or supplies (including Equipment) unless otherwise caused by Force Majeure, (d) normal wear and tear or

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obsolescence of any parts or equipment (including the Equipment) utilized in or as part of the Work, (e) shortages, cost increases or unavailability of equipment (including the Equipment) or materials, except with respect to transportation accidents affecting delivery of equipment occurring prior to the delivery of such equipment to the Site, (f) changes in market conditions, (g) rain, snow, wind and temperature, regardless of the magnitude, severity, duration or frequency, except to the extent comprising an abnormally severe storm that meets the other requirements of a Force Majeure as set forth above, (h) economic hardship or (i) nonperformance or delay by Contractor or any subcontractor, unless such nonperformance or delay is otherwise caused by Force Majeure.

“Fuel Requirements” has the meaning set forth in Attachment T.

“Good Engineering and Construction Practices” or “GECP” means the generally accepted practices, methods, skill, care and techniques employed by the United States power engineering and construction industries with respect to: (i) the engineering, procurement, construction, pre-commissioning, commissioning, testing and start-up of natural gas-fired power generation facilities, which includes the Applicable Codes and Standards, Applicable Law, and the written recommendations of the suppliers and manufacturers of Equipment provided hereunder necessary to maintain supplier and manufacturer warranties and designed performance; (ii) personnel and facility safety and environmental protection; (iii) optimizing the scheduling of Work; and (iv) optimizing the reliability and availability of the Facility under the operating conditions reasonably expected at the Site, as specified in Attachment A. GECP are not intended to be limited to the optimum practices, methods or techniques to the exclusion of all others, but rather to be a spectrum of reasonable and prudent practices, methods and techniques employed by the United States power generation, engineering and construction industries.

“Governmental Instrumentality” shall mean any applicable federal, provincial, regional, state or local government including any agencies, authorities, departments or other subdivisions of each as well as the California Independent Systems Operator, having or claiming an interest in or jurisdiction over a Party or any portion of the Site, the Facility or the Work.

“GTG LNTP” has the meaning set forth in Section 5.2B.

“Guaranteed Net Heat Rate” has the meaning set forth in Attachment T.

“Guaranteed Net Power Output” has the meaning set forth in Attachment T.

“Guaranteed Substantial Completion Date” has the meaning set forth in Section 5.3B.

“Hazardous Materials” means any substance that under Applicable Law is considered to be hazardous or toxic or is or may be required to be remediated, including (i) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls and processes and certain cooling systems that use chlorofluorocarbons, (ii) any chemicals, materials or substances which are now or hereafter become defined as or included in the definition of “hazardous substances,”

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“hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” or any words of similar import pursuant to Applicable Law, or (iii) any other chemical, material, substance or waste, exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Instrumentality, or which may be the subject of liability for damages, costs or remediation.

“Indemnified Party” means any member of Owner Group or Contractor Group, as the context requires.

“Indemnifying Party” means Owner or Contractor, as the context requires.

“Interim Claim Waiver” means the waiver and release of claims provided to Owner by Contractor, Major Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.2C.

“Interim Waiver and Release of Liens” means the waiver and release of liens provided to Owner by Contractor, Major Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.2C.

“Investment Grade” has the meaning set forth in Section 10.2.

“Invoice” means Contractor’s request for a payment pursuant to Section 7.2B for a progress payment and pursuant to Section 7.3 for final payment, which invoice shall be in the form of Schedule I-1 for progress payments and Schedule I-2 for final payment.

“ISO Conditions” has the meaning set forth in Attachment T.

“Key Milestones” shall mean certain portions of the Work, as further described in the Key Milestone Schedule in Attachment E, which Contractor is to complete by the applicable Key Milestone Date. For the avoidance of doubt, the Key Milestones do not include the Guaranteed Substantial Completion Date or the Required Final Completion Date.

“Key Milestone Dates” shall mean those dates for completion of Key Milestones set forth in the Key Milestone Schedule in Attachment E.

“Key Milestone Schedule” means the schedule of Key Milestone Dates in which Contractor is required to complete certain Key Milestones in the Work as more particularly described in Attachment E. For purposes of clarity, the Key Milestone Schedule shall mean the actual dates specified for each Key Milestone as set forth in Attachment E and shall not incorporate (or otherwise be a reference to) the time periods set forth in Attachment E which relate to time periods of delay obligating Contractor to commence recovery efforts or giving rise to a Default.

“Key Personnel” or “Key Persons” has the meaning set forth in Section 2.2A.

“Kiewit Termination Charge” has the meaning set forth in Section 17.2.

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“Lender” means any entity or entities providing temporary or permanent debt financing to Owner for the Facility.

“Limited Notice to Proceed” or “LNTP” has the meaning set forth in Section 3.3B.

“Liquidated Damages” means Performance Liquidated Damages and Substantial Completion Delay Liquidated Damages.

“Major Subcontract” means any Subcontract either (i) having an aggregate value in excess of One Million U.S. Dollars (U.S.$1,000,000) or (ii) multiple Subcontracts with one Subcontractor that have an aggregate value in excess of One Million U.S. Dollars (U.S.$1,000,000). For the avoidance of doubt, the Siemens Contract shall be a Major Subcontract.

“Major Subcontractor” means any Subcontractor with whom Contractor enters, or intends to enter, into a Major Subcontract. For the avoidance of doubt, Siemens shall be a Major Subcontractor.

“Major Sub-subcontract” means (A) any Sub-subcontract that the Siemens Contract identifies as a “Major Subcontract” (as such term is defined in the Siemens Contract) or (B) (i) any Sub-subcontract not falling under the Siemens Contract which has an aggregate value in excess of One Million U.S. Dollars (U.S.$1,000,000), or (ii) multiple Sub-subcontracts with one Sub-subcontractor (not falling under the Siemens Contract) that have an aggregate value in excess of One Million U.S. Dollars (U.S.$1,000,000).

“Major Sub-subcontractor” means any Sub-subcontractor with whom a Subcontractor or Sub-subcontractor enters, or intends to enter, into a Major Sub-subcontract.

“Maximum Cumulative Payment Schedule” has the meaning set forth in Section 7.2E.

“Mechanical Completion” shall mean, with respect to an applicable system or subsystem of Equipment for the Facility, that, with the exception of Punchlist items, all of the following have occurred: (i) Contractor has completed all procurement, fabrication, assembly, erection and installation and pre-commissioning checks and tests for such system or subsystem (as further described in the Scope of Work) to ensure that the applicable system or subsystem (including all Equipment related to such system or subsystem) was correctly fabricated, assembled, erected and installed and is capable of being operated safely and reliably within the requirements and specifications contained in the Agreement, including the setting of such Equipment on foundations, connecting such Equipment to other applicable Equipment with piping, wiring, controls, and safety systems, ensuring that such Equipment and such related operating systems are individually cleaned, leak checked, lubricated, and point-to-point checked to verify that such Equipment and operating systems have been correctly installed so as to respond to simulated test signals equivalent to actual signals received during operation, and are ready for initial operation, adjustment and testing and may be so operated, adjusted and tested without damage thereto or to any other property and without injury to any Person, all as set forth in greater detail in Attachments A and V and the Mechanical Completion checklists agreed by Owner and Contractor in accordance with Section 12.1B; (ii) Contractor has

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completed the Work, to the extent necessary, to cause such system or subsystem to be capable of operating safely in accordance with Applicable Laws, prudent utility practices, and GECP for further commissioning and testing; (iii) Contractor has submitted to Owner an initial Punchlist of items as set forth in Section 12.5A; (iv) Contractor has delivered to Owner a Mechanical Completion Certificate for the applicable system or subsystem in the form of Attachment L and Owner has accepted such certificate by signing such certificate; and (v) Contractor has performed all other obligations required under the Agreement for Mechanical Completion.

“Mechanical Completion Certificate” has the meaning set forth in Section 12.1B.

“Memorandum of Understanding” or “MOU” means the Memorandum of Understanding between Owner and Contractor, dated April 16, 2009, including any amendments thereto.

“Minimum Acceptance Criteria” or “MAC” means the Net Power Output Minimum Acceptance Criteria, the Net Heat Rate Minimum Acceptance Criteria, the Emissions Minimum Acceptance Criteria, the Ramp Time Minimum Acceptance Criteria and the Sound Level Minimum Acceptance Criteria.

“Minimum Acceptance Criteria Correction Period” has the meaning set forth in Section 12.4A.

“Mirant Delta Facility” means the existing electric generation facility of Mirant Delta, LLC located near Antioch, California which is adjacent to the location where the Facility will be built.

“Month” means a Gregorian calendar month; “month” means any period of thirty (30) consecutive Days.

“Monthly” means an event occurring or an action taken once every Month.

“Monthly Progress Reports” has the meaning set forth in Section 3.19A.4.

“Monthly Updated CPM Schedule” has the meaning set forth in Section 5.4D.

“NERC” means the North American Electric Reliability Corporation.

“Net Heat Rate” has the meaning set forth in Attachment T.

“Net Heat Rate Minimum Acceptance Criteria” or “Net Heat Rate MAC” has the meaning set forth in Attachment T.

“Net Heat Rate Performance Liquidated Damages” has the meaning set forth in Attachment T.

“Net Power Output” has the meaning set forth in Attachment T.

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“Net Power Output Minimum Acceptance Criteria” or “Net Power Output MAC” has the meaning set forth in Attachment T.

“Net Power Output Performance Liquidated Damages” has the meaning set forth in Attachment T.

“Notice to Proceed” or “NTP” has the meaning set forth in Section 3.3B.

“Owner” has the meaning set forth in the preamble hereto.

“Owner Group” means (i) Owner and its parents, Affiliates and Lenders, and (ii) the directors, officers, employees, agents, attorneys and other professional advisors of any of the Persons specified in clause (i) above.

“Owner Letter of Credit” has the meaning set forth in Section 10.4.

“Owner Representative” means that Person or Persons designated by Owner in a written notice to Contractor who shall have complete authority to act on behalf of Owner on all matters pertaining to the Work, including giving instructions and making changes in the Work. Owner designates Mike Ammer as the Owner Representative. Notification of a change in Owner Representative shall be provided in advance, in writing, to Contractor.

“Owner’s Confidential Information” has the meaning set forth in Section 20.1.

“Party” or “Parties” means Owner and/or Contractor and their successors and permitted assigns.

“Payment Milestone” shall mean, as the context requires, a Siemens Equipment Payment Milestone, a EPC Payment Milestone or both. “Payment Milestones” shall mean, as the context requires, any or all Siemens Equipment Payment Milestones and EPC Payment Milestones.

“Payment Schedule” is set forth in Attachment C, which sets out the payments to be paid based on achievement of Siemens Equipment Payment Milestones and EPC Payment Milestones.

***

“Performance Guarantee(s)” means the Guaranteed Net Power Output and the Guaranteed Net Heat Rate.

“Performance Liquidated Damages” means the Net Power Output Performance Liquidated Damages and the Net Heat Rate Performance Liquidated Damages.

“Performance Tests” means those tests performed to determine whether the Facility meets the Performance Guarantees and Minimum Acceptance Criteria, which tests shall be set forth in Attachment S and, to the extent not specified therein, as developed in accordance with Section 12.2.

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“Permit” means any valid waiver, certificate, approval, consent, license, exemption, variance, franchise, permit, authorization or similar order or authorization from any Governmental Instrumentality required to be obtained or maintained in connection with the Facility, the Site or the Work.

“Person” means any individual, company, joint venture, corporation, partnership, association, joint stock company, limited liability company, trust, estate, unincorporated organization, Governmental Instrumentality or other entity having legal capacity.

“PG&E” means Pacific Gas and Electric Company, or its successors or assigns.

“PLA” means the Project Labor Agreement for the Marsh Landing Generating Station Project entered into by and among Contractor, the State Building and Construction Trades Council of California, the Contra Costa County Building and Construction Trades Council and various local unions.

“Preliminary Engineering LNTP” has the meaning set forth in Section 5.2B.

“Progress As-Built Drawings and Specifications” means Drawings and Specifications that show all current “as-built” conditions, as required under Attachment B.

“Punchlist” means a list of those finishing items required to complete the Work, the completion of which shall not interrupt, disrupt or interfere with the safe and reliable operation or use of all or any part of the Facility as contemplated by this Agreement, as more fully described in Section 12.5.

“Ramp Time Minimum Acceptance Criteria” or “Ramp Time MAC” has the meaning set forth in Attachment T.

“Receiving Party” has the meaning set forth in Section 20.3.

“Record As-Built Drawings and Specifications” means final, record Drawings and Specifications of the Facility showing the “as-built” conditions of the completed Facility, as required under Attachment B.

“Recovery Schedule” has the meaning set forth in Section 5.5.

“Release for Engineering LNTP” has the meaning set forth in Section 5.2C.

“Required Final Completion Date” has the meaning set forth in Section 5.3C.

“Retainage” means the amount retained by Owner from Contractor from each Invoice for payments owed under this Agreement, except for payments owed on the Siemens Equipment Payment Milestone portion of the Contract Price. The Retainage shall be in the amount of *** of the foregoing payments owed by Owner to Contractor.

“Scope of Work” means the description of Work to be performed by Contractor as set forth in this Agreement, including Attachment A.

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“Siemens” means Siemens Energy, Inc. Due to the assignment of the Siemens Contract to Contractor pursuant to Section 22.8, Siemens shall be considered a Subcontractor to Contractor.

“Siemens Confidential Information” has the meaning set forth in Section 20.7.

“Siemens Contract” means that certain Contract for Gas Turbine Generator Equipment Supply and Services between Owner and Siemens, dated September 2, 2009, together with all amendments and change orders thereto, which has been assigned from Owner to Contractor pursuant to Section 22.8.

“Siemens Equipment” means all equipment to be provided under the Siemens Contract, including four (4) Siemens SGT6-PAC 5000F simple cycle gas turbine generating units, four (4) generator step-up transformers, fuel gas conditioning equipment and fuel gas compressors.

“Siemens Equipment Payment Milestone” shall mean a designated portion of the Contract Price as shown in Schedule C-2.

“Siemens Equipment Payment Milestone portion of the Contract Price” shall have the meaning set forth in Section 7.2A. The Siemens Equipment Payment Milestone portion of the Contract Price shall only be adjusted by Change Order.

“Siemens Termination Payment” has the meaning set forth in Section 10.4.

“Site” means those parcels of land where the Facility shall be located, as shown in greater detail in Attachment Y.

“Soil Report” has the meaning set forth in Section 2.5B.1.

“Sounds Level Minimum Acceptance Criteria” or “Sound Level MAC” has the meaning set forth in Attachment T.

“Specifications” means those documents consisting of the written requirements for Equipment, standards of workmanship for the Work and performance of related services, which are prepared as a part of and during the performance of the Work.

“Starting Reliability Requirement” shall have the meaning set forth in Attachment T.

“Subcontract” means an agreement by Contractor with a Subcontractor for the performance of any portion of the Work.

“Subcontractor” means any Person, including an Equipment supplier or vendor, who has a direct contract with Contractor to manufacture or supply Equipment which is a portion of the Work, to lease equipment to Contractor in connection with the Work, to perform a portion of the Work or to otherwise furnish labor or materials or equipment (including Equipment).

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“Substantial Completion” means that all of the following have occurred with respect to the Facility: (i) Mechanical Completion of the Facility; (ii) all Minimum Acceptance Criteria have been achieved; (iii) Contractor and Owner have agreed upon a revised and updated Punchlist of items as set forth in Section 12.5B; (iv) all Work has been completed (including training and the delivery of all documentation, manuals and instruction books necessary for safe and proper operation), except for Work on the Punchlist and the Final Completion requirements identified in clauses (ii) through (xii) of the definition of Final Completion set forth in this Article 1, in accordance with the requirements and specifications of this Agreement; (v) Contractor has delivered to Owner the Substantial Completion Certificate in the form of Attachment M and as required under Section 12.2 and Owner has accepted such certificate by signing such certificate; (vi) the Facility is available for commercial operation and can be safely used for its intended purpose and all four (4) Units and all related systems can be safely and reliably operated within the requirements and specifications of the Agreement in order to deliver electrical output in accordance with the requirements and specifications of the Agreement; (vii) Contractor has obtained all Permits for the Facility that it is obligated to obtain under this Agreement; (viii) certificates of occupancy for all applicable buildings at the Facility have been issued; (ix) Contractor has assigned to or provided Owner with all Warranties to the extent Contractor is obligated to do so pursuant to this Agreement (including Section 13.1C); and (x) Contractor has performed all other obligations required under this Agreement for Substantial Completion.

“Substantial Completion Certificate” has the meaning set forth in Section 12.2.

“Substantial Completion Delay Liquidated Damages” has the meaning set forth in Section 14.1.

“Sub-subcontract” means any agreement by a Subcontractor with a Sub-subcontractor or by a Sub-subcontractor with another Sub-subcontractor for the performance of any portion of the Work.

“Sub-subcontractor” means any Person, including an Equipment supplier or vendor, who has a direct or indirect contract with a Subcontractor or another Sub-subcontractor to manufacture or supply Equipment which comprises a portion of the Work, to lease equipment to Subcontractor or another Sub-subcontractor in connection with the Work, to perform a portion of the Work or to otherwise furnish labor, materials or equipment (including Equipment).

“Taxes” means any and all taxes, assessments, levies, duties, fees, charges and withholdings of any kind or nature whatsoever and howsoever described, including value-added, sales and use taxes, gross receipts, license, payroll, federal, state, local or foreign income, environmental, profits, severance, premium, franchise, property, excise, capital stock, import, stamp, transfer, employment, occupation, generation, privilege, utility, regulatory, energy, consumption, lease, filing, recording and activity taxes, levies, duties, fees, charges, imposts and withholding, together with any and all penalties, interest and additions thereto.

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“Third Party Proprietary Work Product” has the meaning set forth in Section 11.1.

“U.S. Dollars” or “U.S.$” means the legal tender of the United States of America.

“Unit” shall mean a gas turbine generator package to be installed into and form a part of the Facility, including the combustion turbine, the electric generator, the generator step-up transformer, the selective catalytic reduction system and oxidation catalyst and all other components, accessories, and ancillary parts and systems between the fuel supply interface and the high-side of the generator step up transformers related to such the gas turbine generator package, as well as that portion of the Work associated with such Equipment. The Facility shall have four (4) Units.

“Warranty” or “Warranties” has the meaning set forth in Section 13.1A.

“Weekly Progress Report” has the meaning set forth in Section 3.19A.3.

“Work” means all obligations, duties and responsibilities required of Contractor pursuant to this Agreement, including all Equipment (including all Siemens Equipment and all Units), construction equipment (including materials, apparatus, structures, supplies, tools, machinery, equipment and scaffolding), spare parts, procurement, engineering, design, fabrication, erection, installation, manufacture, delivery, transportation, storage, construction, workmanship, labor, pre-commissioning, commissioning, inspection, training, Performance Tests, other tests, start-up and any other services, work or things furnished or used or required to be furnished or used, by Contractor in the performance of this Agreement, including that set forth in Attachment A and Section 3.1A and any Corrective Work.

“Work Cost” has the meaning set forth in Section 17.2A.

“Work Product” has the meaning set forth in Section 11.1.

1.2 The meanings specified in this Article 1 are applicable to both the singular and plural. As used in this Agreement, the terms “herein,” “herewith,” “hereunder” and “hereof” are references to this Agreement taken as a whole, and the terms “include,” “includes” and “including” mean “including, without limitation,” or variant thereof. Unless expressly stated otherwise, reference in this Agreement to an Article or Section shall be a reference to an Article or Section contained in this Agreement (and not in any Attachments or Schedules to this Agreement) and reference in this Agreement to an Attachment or Schedule shall be a reference to an Attachment or Schedule attached to this Agreement.

ARTICLE 2

RELATIONSHIP OF OWNER, CONTRACTOR AND SUBCONTRACTORS

2.1 Status of Contractor. The relationship of Contractor to Owner shall be that of an independent contractor. Any provisions of this Agreement which may appear to give Owner or the Owner Representative the right to direct or control Contractor as to details of performing the Work, or to exercise any measure of control over the Work, shall be deemed to mean that Contractor shall follow the desires of Owner or the Owner Representative in the results of the

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Work only and not in the means by which the Work is to be accomplished, and Contractor shall have the complete right, obligation and authoritative control over the Work as to the manner, means or details as to how to perform the Work. Nothing herein shall be interpreted to create a master-servant or principal-agent relationship between Contractor, or any of its Subcontractors or Sub-subcontractors, and Owner. Nevertheless, Contractor shall strictly comply with all provisions, terms and conditions of this Agreement, and the fact that Contractor is an independent contractor does not relieve it from its responsibility to fully, completely, timely and safely perform the Work in strict compliance with this Agreement.

2.2 Key Personnel, Organization Chart and Contractor Representative.

A. Key Personnel and Organization Chart. Attachment F sets forth Contractor’s organizational chart to be implemented for the Work and also contains a list of key personnel (“Key Personnel” or “Key Persons”) from Contractor’s organization who will be assigned to the Work. Owner and Contractor acknowledge and agree the continuity of Key Personnel during the performance of the Work is a material requirement of this Agreement and that replacement of a Key Person may be detrimental to the Owner and the overall quality of the Work. Key Personnel shall, unless otherwise expressly stated in Attachment F, be devoted essentially full-time to the Work for the entire duration of the Work, and Key Personnel shall not be removed or reassigned without Owner’s prior written approval, which shall not be unreasonably withheld. All requests for the substitution of Key Personnel shall include a detailed explanation and reason for the request and the resumes of professional education and experience for one or more substitute candidates for Owner’s approval (such approval not to be unreasonably withheld). The additional cost of any replacement of such Key Personnel and any overlap time during the transition from one Key Person to another shall be entirely at Contractor’s expense. Owner has the right, but not the obligation, to require Contractor to remove or cause to be removed a Key Person who is not, in Owner’s reasonable judgment, acting safely and reasonably in the performance of the portion of the Work assigned to such Key Person.

B. Contractor Representative. Contractor designates *** as the Contractor Representative. Notification of a change in Contractor Representative shall be provided in advance, in writing, to Owner. The Contractor Representative is a Key Person.

2.3 Subcontractors and Sub-subcontractors. Owner acknowledges and agrees that Contractor intends to have portions of the Work accomplished by Subcontractors pursuant to written Subcontracts between Contractor and such Subcontractors, and that such Subcontractors may have certain portions of the Work performed by Sub-subcontractors. All Subcontractors and Sub-subcontractors shall be reputable, qualified firms with an established record of successful performance in their respective trades performing identical or substantially similar work. NO SUBCONTRACTOR OR SUB-SUBCONTRACTOR IS INTENDED TO BE OR SHALL BE DEEMED A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT. Contractor shall be fully responsible to Owner for the acts and omissions of Subcontractors and Sub-subcontractors and of Persons directly or indirectly employed by any of them, as Contractor is for the acts or omissions of Persons directly employed by Contractor. All Subcontractors and Sub-subcontractors and their respective personnel are to be instructed by Contractor in the terms and requirements of Owner-approved

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safety and environmental protection policies and procedures and shall be expected to comply with such policies and procedures. In the event that any personnel do not adhere to such policies and procedures, such personnel shall be removed by Contractor. In no event shall Contractor be entitled to any adjustment of the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date or the Required Final Completion Date as a result of compliance with such policies and procedures or any removal of personnel necessitated by non-compliance. Nothing contained herein shall (i) create any contractual relationship between any Subcontractor and Owner, or between any Sub-subcontractor and Owner, or (ii) obligate Owner to pay or cause the payment of any amounts to any Subcontractor or Sub-subcontractor.

2.4 Subcontracts and Sub-subcontracts.

A. Approved List. Attachment G sets forth a list of Subcontractors and Sub-subcontractors that Contractor and Owner have agreed are approved Subcontractors and Sub-subcontractors for the performance of that portion of the Work specified in Attachment G. Approval by Owner of any Subcontractors or Sub-subcontractors (either as set forth in Attachment G, pursuant to this Section 2.4 or otherwise) does not relieve Contractor of any responsibilities under this Agreement.

B. Additional Proposed Major Subcontractors and Major Sub-subcontractors. In the event that Contractor is considering the selection of a Subcontractor or Sub-subcontractor not listed on Attachment G that would qualify as a Major Subcontractor or Major Sub-subcontractor, Contractor shall (i) notify Owner of its proposed Major Subcontractor or Major Sub-subcontractor as soon as possible during the selection process and furnish to Owner all information reasonably requested by Owner with respect to Contractor’s selection criteria, and (ii) notify Owner no less than fifteen (15) Days prior to the execution of a Major Subcontract with a Major Subcontractor or Major Sub-subcontract with a Major Sub-subcontractor not listed on Attachment G. Owner shall have the discretion, not to be unreasonably exercised, to reject any proposed Major Subcontractor or Major Sub-subcontractor not listed on Attachment G for a Major Subcontract or Major Sub-subcontract. Contractor shall not enter into any Major Subcontract with a proposed Major Subcontractor or Major Sub-subcontract with a Major Sub-subcontractor that is rejected by Owner in accordance with the preceding sentence. Owner shall undertake in good faith to review the information provided by Contractor pursuant to this Section 2.4B expeditiously and shall notify Contractor of its decision to accept or reject a proposed Major Subcontractor or Major Sub-subcontractor as soon as practicable after such decision is made. Failure of Owner to accept a proposed Major Subcontractor or Major Sub-subcontractor within fifteen (15) Days after Owner’s receipt of the notice to be provided by Contractor as set forth above shall be deemed to be an acceptance of such Major Subcontractor or Major Sub-subcontractor. For purposes of clarity, Owner’s approval shall not be required for the selection or replacement of a Subcontractor or Sub-subcontractor that is not a Major Subcontractor or Major Sub-subcontractor.

C. Other Additional Proposed Subcontractors and Sub-subcontractors. For any Subcontractor not covered by Sections 2.4A or 2.4B, Contractor shall, within thirty (30) Days prior to the selection of any such Subcontractor, notify Owner in writing of the

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selection of such Subcontractor and inform Owner generally what portion of the Work such Subcontractor is performing.

D. Delivery of Major Subcontracts. Contractor shall furnish Owner with a copy of all Subcontracts within ten (10) Days after Owner’s written request. Contractor may deliver such Subcontracts with the pricing information redacted therefrom. Notwithstanding the above, Owner’s receipt and review of any Subcontracts shall not relieve the Contractor of any obligations under this Agreement nor shall such action constitute a waiver of any right or duty afforded Owner under this Agreement or approval of or acquiescence in a breach hereunder.

E. Terms of Major Subcontracts and Major Sub-subcontracts. In addition to the requirements in Section 2.3 and without in any way relieving Contractor of its full responsibility to Owner for the acts and omissions of Subcontractors and Sub-subcontractors, Contractor shall:

1. include in each Major Subcontract and Major Sub-subcontract, a provision that each such Major Subcontract and Major Sub-subcontract may be assigned to Owner without the consent of the respective Major Subcontractor or Major Sub-subcontractor upon termination of this Agreement; and

2. use reasonable commercial efforts to include in each Major Subcontract and Major Sub-subcontract a provision requiring each such Major Subcontractor and Major Sub-subcontractor to comply with and perform for the benefit of Owner all requirements and obligations of Contractor to Owner under this Agreement, as such requirements and obligations are applicable to the performance of the work under the respective Major Subcontract or Major Sub-subcontract; provided, however, at a minimum, Contractor shall include in each Major Subcontract and Major Sub-subcontract (except for Major Sub-subcontracts for the supply of bulk materials or commodities), for the benefit of Owner, provisions substantially similar to the following provisions set forth in this Agreement: Article 11, and Sections 3.16, 9.1, and 22.11.

2.5 Contractor Acknowledgements.

A. The Agreement. Prior to the execution of this Agreement, Contractor performed engineering, cost estimating and related services and developed and provided the information that forms the Scope of Work and Design Basis listed in Attachment A, which was performed pursuant to the MOU. Owner has relied upon Contractor’s expertise in developing and providing such information. Contractor hereby represents that such information and the attached Scope of Work and the Design Basis in Attachment A are accurate, adequate and complete to engineer, procure, construct, pre-commission, commission, start-up and test a fully operational natural gas-fired power generation facility for the Contract Price, within the required times set forth by the Key Milestone Schedule, the Guaranteed Substantial Completion Date and Required Final Completion Date, and in accordance with all requirements of this Agreement, including Applicable Codes and

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Standards, Applicable Law, the Warranties, Minimum Acceptance Criteria and Performance Guarantees, and that with respect to any information (if any) not so developed or provided by Contractor, Contractor has examined all such information and has determined that it is accurate, adequate and complete. Accordingly, Contractor (i) hereby agrees that it shall have no right to claim or seek an increase in the Contract Price or an adjustment to the Key Milestone Schedule, Guaranteed Substantial Completion Date or Required Final Completion Date with respect to any incomplete, inaccurate or inadequate information or requirements that may be contained or referenced in Attachment A, and (ii) hereby waives and releases Owner from and against such claims. Owner makes no guaranty or warranty, express or implied, as to the accuracy, adequacy or completeness of any such information that is contained or referenced in Attachment A.

B. Conditions of the Site. Except as expressly provided for in this Section 2.5B.1, Contractor further agrees and acknowledges that it has made all investigations and inspections that it deems necessary to perform the Work in accordance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date, and understands the climate, terrain and other difficulties that it may encounter in performing the Work in accordance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and Required Final Completion Date. Contractor warrants that it has the experience, resources, qualifications and capabilities at its disposal to perform the Work in accordance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date. Except as expressly provided for in Sections 2.5B.1, 6.2A.5, and 6.2A.6, Contractor assumes all risks related to, and waives any right to claim an adjustment in the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date or the Required Final Completion Date in respect of, any failure to timely perform the Work in accordance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date as a result of any conditions at the Site or at any other location where the Work is performed (excluding Force Majeure events), including assuming all risk and waiving all rights with respect to: (i) river levels, topography and subsurface conditions; (ii) climatic conditions, tides, and seasons; (iii) availability of laborers, Subcontractors, Sub-subcontractors, equipment or any other items or supplies; (iv) adequate availability and transportation of Equipment; and (v) breakdown or other failure of equipment under the control of or provided by Contractor or its Subcontractors or Sub-subcontractors.

1. The Contract Price included herein is based on the subsurface soil report titled “Geotechnical Data Report, Geotechnical Investigation, Contra Costa Power Plant Unit 8 Project, Contra Costa County, California,” dated May 25, 2001 (“Soil Report”), which is based on a site near the Site. A final geotechnical study will be performed at the Site by, or on behalf of, Contractor (which will include testing of the subsurface under the existing structures at the Site), and a report will be generated from such study by or on behalf of Contractor and based upon Contractor’s specifications (the “Final Geotechnical Report”) prior to Owner’s issuance of the Demolition LNTP. If the subsurface conditions as shown by the Final Geotechnical Report are materially different from the Soil Report, the Contract Price shall be adjusted up or down pursuant to a Change Order to the

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extent the different subsurface conditions require additional work or reduce work. Contractor’s relief for any material differences between the Soil Report and the Final Geotechnical Report shall be limited to an adjustment in the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date; provided, however, Contractor shall use best efforts to prevent any extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date as a result of such differences. The Parties agree that only significant differences in subsurface conditions that would cause a major change in the manner, means or methods of constructing the foundations would require an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, but mere changes in the number or type of piles would not entitle Contractor to such an extension. After the Final Geotechnical Report is issued, and the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date is adjusted (if and to the extent allowed under this Section 2.5B.1), Contractor shall assume all subsurface risks at the Site, except for unknown underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes and archeological finds as further provided for in Section 6.2A.5.

C. Applicable Law and Applicable Codes and Standards.

1. Subject to Section 2.5C.2. Contractor has investigated to its satisfaction Applicable Law and Applicable Codes and Standards and warrants that it can perform the Work at the Contract Price and within the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date in accordance with Applicable Law and Applicable Codes and Standards.

2. If a Change in Law occurs, Contractor shall perform the Work in accordance with such Change in Law and shall be entitled to a Change Order for such Change in Law to the extent allowed under Section 6.2A.1.

ARTICLE 3

CONTRACTOR’S RESPONSIBILITIES

3.1 Scope of Work.

A. Generally. Subject to Section 3.1B, the Work shall be performed on a turnkey basis and shall include all engineering, procurement, construction, pre-commissioning, commissioning, start-up and testing of the Facility, all Equipment, construction equipment (including materials, apparatus, structures, supplies, tools, machinery, equipment and scaffolding), spare parts, labor, workmanship, inspection, manufacture, fabrication, installation, design, delivery, transportation, storage, training of Owner’s operating personnel and all other items or tasks that are set forth in Attachment A, or otherwise required to achieve Final Completion in accordance with the requirements of this Agreement, including achieving the Minimum Acceptance Criteria and Performance

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Guarantees. Contractor shall be required to integrate and use Owner’s operations personnel (which are provided by Owner pursuant to Section 4.4) in Contractor’s pre-commissioning, commissioning, testing and start-up efforts. Contractor shall perform the Work in accordance with GECP, Applicable Law, Applicable Codes and Standards, and all other terms and provisions of this Agreement, with the explicit understanding that the Facility will operate as a natural gas-fired power generation facility meeting all requirements and specifications of this Agreement, including Warranties, Minimum Acceptance Criteria and Performance Guarantees. It is understood and agreed that the Work shall include any incidental work that can reasonably be inferred as required and necessary to complete the Facility in accordance with GECP, Applicable Law, Applicable Codes and Standards, and all other terms and provisions of this Agreement, excluding only those items which Owner has specifically agreed to provide under the terms of the Agreement. Without limiting the generality of the foregoing, the Work is more specifically described in Attachment A.

B. Exception to Scope of Work. Contractor shall not be responsible for providing those items identified in Article 4 as Owner’s obligations.

3.2 Specific Obligations. Without limiting the generality of Section 3.1 or the requirements of any other provision of this Agreement, Contractor shall:

A. procure, supply, transport, handle, properly store, assemble, erect and install all Equipment;

B. provide construction, construction management (including the furnishing of all field supplies, tools, construction equipment, and all Site supervision and craft labor), civil/structural, electrical, instrumentation, field design, inspection and quality control services required to ensure that the Work is performed in accordance herewith;

C. negotiate all guarantees, warranties, delivery schedules and performance requirements with all Subcontractors so that all Subcontracts are consistent with this Agreement to the extent required under Sections 2.3 and 2.4;

D. perform shop and other inspections of the work of Subcontractors and Sub-subcontractors to ensure that such work meets all of the requirements of this Agreement;

E. pay Subcontractors in a timely fashion in accordance with the respective Subcontracts;

F. ensure that the Work is performed in accordance with the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date;

G. conduct and manage all pre-commissioning, start-up operations, commissioning, Performance Tests and other testing of the Facility, while supervising operating personnel provided by Owner;

H. obtain all Permits required per Section 3.12;

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I. provide pre-commissioning, commissioning, testing and start-up spare parts and operating spare parts as required per Section 3.4 (the cost of such operating spare parts to be reimbursed by Owner in accordance with Section 6.2A.11);

J. remove waste materials and rubbish from the Site as required per Section 3.9;

K. provide reasonable and prompt assistance, information and documentation required or requested by Owner to enable Owner to obtain or modify the Permits listed in Attachment Q;

L. provide training and certification for Owner’s operating and maintenance personnel per Section 3.5;

M. ensure all Subcontractors perform their Subcontract obligations;

N. cooperate with and respond promptly to inquiries from Owner;

O. supply all initial fills of lubricants and chemicals and transformer oils and all consumables necessary to perform the Work through Substantial Completion; and

P. perform all design and engineering Work in accordance with this Agreement, including that specified in Section 3.3.

3.3 Design and Engineering Work.

A. General. Contractor shall, as part of the Work, perform all design and engineering Work in accordance with this Agreement and cause the Work to meet and achieve the requirements of this Agreement, including achieving the Minimum Acceptance Criteria and Performance Guarantees.

B. Drawings and Specifications. Upon receipt of a limited notice to proceed (“Limited Notice to Proceed” or “LNTP”) or the full notice to proceed (“Notice to Proceed” or “NTP”) issued in accordance with Section 5.2, Contractor shall commence the preparation of the Drawings and Specifications for all Work relating to such LNTP or NTP. The Drawings and Specifications shall be based on the requirements of this Agreement, including the Scope of Work, Design Basis, GECP, Applicable Codes and Standards, Applicable Law, and all applicable provisions of this Agreement.

C. Review Process.

1. Over-the-Shoulder Review. During the development of the Drawings and Specifications, Contractor shall provide Owner with the opportunity to perform “over-the-shoulder” reviews of the design and engineering in progress. Such reviews may be conducted at Contractor’s office located in Lenexa, Kansas, remotely by electronic internet access or, if agreed upon by Contractor (such agreement not to be unreasonably withheld), at the applicable Subcontractor’s or Sub-subcontractor’s offices. The reviews

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may be of progress prints, computer images, draft documents, working calculations, draft specifications or reports, Drawings, Specifications or other design documents as reasonably determined by Owner.

2. Submission by Contractor. Contractor shall submit copies of the Drawings and Specifications to Owner for formal review, comment, disapproval and approval in accordance with Attachment B.

3. Review Periods. Owner shall have up to fifteen (15) Days from its receipt of Drawings and Specifications submitted in accordance with Section 3.3C.2 to issue written comments, proposed changes and/or written approvals or disapprovals of the submission of such Drawings and Specifications to Owner; provided, however, with respect to those Drawings and Specifications identified in Attachment B as being time sensitive, Owner shall provide its comments, approvals or disapprovals within ten (10) Days after receipt.

4. No Owner Response. If Owner does not issue any comments, proposed changes or written approvals or disapprovals within such time periods, Contractor may proceed with the development of such Drawings and Specifications and any construction relating thereto, and such lack of Owner response shall be treated as an approval of the Drawings and Specifications in accordance with the terms of Section 3.3C.6

5. Disapproval by Owner. In the event that Owner disapproves the Drawings or Specifications, Owner shall provide Contractor with a written statement of the reasons for such rejection within the time period required for Owner’s response for disapproval of Drawings and Specifications. Contractor shall provide Owner with revised and corrected Drawings and Specifications as soon as possible thereafter and Owner’s rights with respect to the issuing of comments, proposed changes or approvals or disapprovals of such revised and corrected Drawings or Specifications are governed by the procedures specified above in this Section 3.3C; provided that Contractor shall not be entitled to any extensions of time to the Key Milestone Schedule, Guaranteed Substantial Completion Date or Required Final Completion Date, an adjustment to the Contract Price or any adjustment to any other Changed Criteria.

6. Approval by Owner. Upon Owner’s written approval of the Drawings and Specifications, such Drawings and Specifications shall be the Drawings and Specifications that Contractor shall use to construct the Work; provided that Owner’s review, comment or approval of any Drawings and Specifications shall not in any way be deemed to limit or in any way alter Contractor’s responsibility to perform and complete the Work in strict accordance with the requirements of this Agreement, and in the event that there is a discrepancy, difference or ambiguity between the terms of this Agreement and any Drawings and Specifications, the interpretation imposing the greater obligation on Contractor shall control. Due to the limited time for

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Owner’s review of Drawings and Specifications, Contractor’s or its Subcontractors’ or Sub-subcontractors’ expertise in the Work and Owner’s reliance on Contractor to prepare accurate and complete Drawings and Specifications, Contractor recognizes and agrees that Owner is not required or expected to make detailed reviews of Drawings and Specifications, but instead Owner’s review of Drawings and Specifications may be of only a general, cursory nature. Accordingly, any review, comment or approval given by Owner under this Agreement with respect to any Drawings or Specifications shall not in any way be, or deemed to be, an approval of any Work, Drawings or Specifications not meeting the requirements of this Agreement, as Contractor has the sole responsibility for performing the Work in accordance with this Agreement.

D. Design Licenses. Contractor shall perform all design and engineering Work in accordance with Applicable Law and Applicable Codes and Standards, and all Drawings, Specifications and design and engineering Work shall be signed and stamped by design professionals licensed in accordance with Applicable Law.

E. CAD Drawings. Unless otherwise expressly provided under this Agreement, all Drawings and Record As-Built Drawings prepared by Contractor or its Subcontractors or Sub-subcontractors under this Agreement shall be prepared using computer aided design (“CAD”). All Record As-Built Drawing files shall be in fully operable and editable AutoCAD.dwg (2005 or later) format; provided, however, the Drawings (including Record As-Built Drawings) prepared by Siemens for the Siemens Equipment shall be provided in the formats required under the Siemens Contract. Contractor shall use commercially reasonable efforts to also provide Drawings, including Record As-Built Drawings, in other formats requested by Owner. All Drawings not Record As-Built Drawings shall utilize Microstation software and shall also be provided in .pdf format.

F. As-Built Drawings and Specifications. During construction, Contractor shall keep a redlined, marked, up-to-date set of Progress As-Built Drawings and Specifications on the Site as required under Attachment B. As a condition precedent to Final Completion, Contractor shall deliver to Owner the Record As-Built Drawings and Specifications in accordance with Attachment B, which shall include delivery of final as-built drawing files in fully operable and editable AutoCAD.dwg (2005 or later) format for Record As-Built Drawings; provided that the Record As-Built Drawings prepared by Siemens for the Siemens Equipment shall be provided in the formats required under the Siemens Contract.

G. Other Information. Contractor shall deliver copies of all other documents required to be delivered pursuant to Attachment B within and in accordance with the requirements and timing set forth in Attachment B.

3.4 Spare Parts.

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A. Commissioning Spare Parts. Prior to Mechanical Completion of the Facility, Contractor shall deliver to the Site all pre-commissioning, commissioning, testing and start-up spare parts (but not operating spare parts) necessary to commission, test and start-up the Facility. The cost associated with all Work related to such pre-commissioning, commissioning, testing and start-up spare parts is included in the Contract Price, including the procurement of such spare parts and the actual purchase price of such spare parts.

B. Operating Spare Parts. Subject to Section 3.4C below, Contractor shall deliver to Owner, for Owner’s written approval, one or more detailed lists of all manufacturer and Contractor-recommended spare parts necessary for operating all Equipment for the Work (including components and systems of such Equipment) for two (2) years after Substantial Completion. Contractor’s proposed operating spare parts list(s) shall include the information set forth in Attachment W. The cost associated with generating the list of such operating spare parts is included in the Contract Price. Within thirty (30) days after Owner’s receipt of the operating spare parts list(s) from Contractor identifying the recommended operating spare parts, Owner shall request, in writing, which operating spare parts, if any, that it elects Contractor to procure from such list. In the event Owner requests in writing that Contractor procure any operating spare parts on Owner’s behalf, Contractor shall be entitled to request a Change Order in accordance with Section 6.2A.11 to increase the Contract Price for the actual purchase price of such requested operating spare parts. With the exception of Critical Spare Parts (which shall be delivered in accordance with Section 12.4C), any operating spare parts purchased by Owner pursuant to this Section 3.4 shall be delivered to Owner at the Site no later than ninety (90) Days after Substantial Completion.

C. Siemens Equipment. Notwithstanding anything to the contrary in Section 3.4B above, the responsibilities regarding the operating spare parts for the Siemens Equipment shall be governed by this Section 3.4C. Within sixty (60) Days after issuance of the GTG LNTP, Contractor shall provide Owner a list of recommended initial operating spare parts for the gas turbine and turbine generator with prices included for each such spare part. The cost associated with generating the list of such Siemens Equipment operating spare parts is included in the Contract Price. Within sixty (60) Days after Owner’s receipt of the foregoing list from Contractor, Owner shall identify which of the recommended initial operating spare parts that Owner desires to purchase under this Agreement. If Owner elects to purchase any such recommended initial operating spare parts for the Siemens Equipment, then Contractor shall be entitled to a Change Order for the agreed upon price of the Owner-requested initial operating spare parts as allowed under Section 6.2A.11. In addition to the foregoing, Contractor shall provide Owner with a list of recommended operating spare parts for all other Siemens Equipment (other than the gas turbine and turbine generator) at or before the time such Siemens Equipment arrives at the Site, provided that Contractor shall not be required to procure any such operating spare parts for the other Siemens Equipment under this Agreement (unless the Parties otherwise agree pursuant to a Change Order).

3.5 Training Program in General. As part of the Work, a reasonable number of personnel designated by Owner in its sole discretion (but not to exceed the number of Persons listed in Attachment V) shall be given training designed and administered by Contractor at its

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expense, which shall be based on the program requirements contained in Attachment V and shall cover at a minimum the following topics: (i) the testing of each item of Equipment; (ii) the start-up, operation and shut-down of each item of Equipment; (iii) the performance of routine, preventative and emergency maintenance for each item of Equipment; (iv) spare parts to be maintained for each item of Equipment, and their installation and removal; and (v) control system operations. Such training shall include instruction for Owner’s operations personnel in the operation and routine maintenance of each item of Equipment prior to completion of commissioning of each item of Equipment. Training shall be provided by personnel selected by Contractor who, in Contractor’s and the Equipment Subcontractor’s or Sub-subcontractor’s judgment, are qualified to provide such training, and shall take place at such locations and at such times as agreed upon by the Parties, but shall occur no earlier than one (1) year prior to the anticipated date of Substantial Completion and end no later than forty-five (45) Days prior to the anticipated date of Substantial Completion. Contractor shall provide trainees with materials described in Attachment V. Contractor shall also provide to Owner all training materials and aids developed to conduct such training in order to facilitate future training by Owner of personnel hired after Substantial Completion; provided, however, that all such training materials and aids for the Siemens Equipment shall be limited to those provided under the Siemens Contract.

3.6 Environmental Regulations and Environmental Compliance. Without limitation of Section 3.1, Contractor is fully responsible for ensuring that the Work is performed in an environmentally sound manner and in compliance with all provisions of this Agreement regarding the environment and Applicable Law and in compliance with the policies and procedures set forth in Attachment J. Contractor shall maintain all environmental compliance records required by Applicable Law and shall provide, or cause to be provided, necessary training to its employees, Subcontractors and Sub-subcontractors to ensure their compliance with the environmental rules and requirements of the Agreement. Contractor shall, at its sole cost and expense, dispose of all non-hazardous wastes and Hazardous Materials generated, brought onto the Site or used during performance of the Work by Contractor or any of its Subcontractors or Sub-subcontractors at off-Site disposal facilities approved by Owner and permitted to receive such wastes and Hazardous Materials. Contractor shall report to Owner, as soon as reasonably possible after having knowledge thereof and in no event later than one (1) Day after such occurrence, any violation of the foregoing. Contractor shall, at its sole cost and expense, remediate the release of any substance or other event by Contractor or any of its Subcontractors or Sub-subcontractors in violation of this Section 3.6 and shall repair any damage caused thereby.

3.7 Contractor’s Tools and Equipment. Contractor shall furnish all tools, machinery, structures, scaffolding and other equipment necessary and appropriate for the timely and safe completion of the Work in strict compliance with this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Contractor shall be responsible for damage to or destruction or loss of, from any cause whatsoever, all such tools, machinery, structures, scaffolding and equipment owned, rented or leased by Contractor or its Subcontractors or Sub-subcontractors for use in accomplishing the Work.

3.8 Employment of Personnel.

A. Contractor agrees to promptly remove (or to require any Subcontractor or Sub-subcontractor to remove) from the Work any Person who is not skilled or qualified or

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is otherwise unfit to perform the work assigned to such Person. In addition, Contractor agrees that within forty-eight (48) hours after receipt of written notice from Owner, it shall remove from the Work any employee or agent of Contractor or of Contractor’s Subcontractors or Sub-subcontractors who, in Owner’s reasonable opinion, is unsafe, incompetent, careless, unqualified to perform the Work assigned to such Person, creates an unsafe or hostile work environment, disregards the terms and conditions of this Agreement, or is interrupting, interfering with or impeding the timely and proper completion of the Work. NOTWITHSTANDING THE FOREGOING, OWNER SHALL HAVE NO LIABILITY AND CONTRACTOR AGREES TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER GROUP FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, LOSSES, COST AND EXPENSES (INCLUDING ALL ATTORNEYS’ FEES AND LITIGATION EXPENSES) AND LIABILITIES, OF WHATSOEVER KIND OR NATURE, WHICH MAY DIRECTLY OR INDIRECTLY ARISE OR RESULT FROM CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR TERMINATING THE EMPLOYMENT OF OR REMOVING FROM THE WORK ANY SUCH EMPLOYEE WHO FAILS TO MEET THE FOREGOING REQUIREMENTS FOLLOWING A REQUEST BY OWNER TO HAVE SUCH EMPLOYEE REMOVED FROM THE WORK. Contractor shall replace any such employee at its sole cost and expense.

B. Contractor is responsible for complying with the PLA and maintaining labor relations in such manner that there is harmony among the employees of Contractor and its on-Site Subcontractors and Sub-subcontractors. Contractor and its Subcontractors and Sub-subcontractors shall conduct their labor relations in accordance with the recognized prevailing state and local practices (including via the PLA) in order to minimize the likelihood or effect of any labor disputes and ensure an adequate supply of quality labor. Contractor shall inform Owner promptly of any labor dispute, anticipated labor dispute, request or demand by a labor organization, its representatives or members which may reasonably be expected to affect the Work.

C. Contractor and its Subcontractors and Sub-subcontractors and the personnel of any of them shall not bring onto the Site: (i) any firearm of whatsoever nature or knife with a blade exceeding four (4) inches (100 millimeters) in length (unless specifically authorized by Contractor to be used in the performance of the Work); (ii) alcoholic beverages of any nature; (iii) any substance or object that creates a hazard and not related to the Work; (iv) any animal (other than services animals); (v) illegal drugs of any nature; (vi) any drugs (whether prescription or non-prescription) which impair physical or mental faculties; or (vii) any prescription drugs without a valid prescription.

In connection with the enforcement of this Section 3.8C, all employees and agents of Contractor and its Subcontractors and Sub-subcontractors shall successfully complete a drug screening test prior to performing Work at the Site and periodically thereafter, and upon Owner’s request, Contactor shall provide Owner with copies of such drug screening test results (pass/fail). Contractor and its Subcontractors and Sub-subcontractors shall abide by and enforce the requirements of this Section 3.8C, and shall immediately remove from the Work and the Site any employee or agent of Contractor, Subcontractor or Sub-subcontractor who has violated the requirements of this Section 3.8C. The provisions of Section 3.8A with regard to liability of any of member of the Owner Group and

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Contractor’s release, indemnification, defense and hold harmless obligations shall apply to the removal of any such Person under this Section 3.8C.

3.9 Clean-up. Contractor shall, to Owner’s reasonable satisfaction, at all times keep the Site free from all waste materials or rubbish caused by the activities of Contractor or any of its Subcontractors or Sub-subcontractors. Without limitation of the foregoing or limiting Contractor’s obligations, Contractor shall clean up all such waste materials or rubbish at Owner’s request with reasonable notice. As soon as practicable after the completion of all Punchlist items, Contractor shall remove, at its own cost, all of its equipment, materials and other items not constituting part of the Facility and remove all waste material and rubbish from the Site and restore the Site in accordance with this Agreement. In the event of Contractor’s failure to comply with any of the foregoing, Owner may, after ten (10) Days written notice to Contractor and opportunity to cure, accomplish the same; provided, however, that Contractor shall be liable for and pay to Owner (directly or by offset, at Owner’s sole option) all costs associated with such removal and/or restoration, including costs associated with permitting, transportation and disposal at an authorized location.

3.10 Safety and Security. Contractor recognizes and agrees that safety and physical security are of paramount importance in the performance of the Work and that Contractor is responsible for performing the Work in a safe and physically secure manner. Contractor agrees to implement a safety program that is to be received by Owner for its written approval ten (10) Days prior to the commencement of the Work at the Site. Contractor further agrees to perform the Work in accordance with the safety and health rules and standards of Applicable Law (including OSHA) and such safety program, as approved by Owner, and Contractor shall assume all costs associated with compliance therewith. Contractor’s safety program shall include the standards set forth in Attachment J. Owner’s review and approval of Contractor’s safety program shall not in any way relieve Contractor of its responsibility regarding safety, and Owner, in reviewing and approving such safety program, assumes no liability for such safety program. Contractor shall appoint one or more (as appropriate) safety representative(s) acceptable to Owner who shall be resident at the Site, have responsibility to immediately correct unsafe conditions or unsafe acts associated with the Work and the Facility, act on behalf of Contractor on safety and health matters, and participate in periodic safety meetings with Owner at least once per week after Work has commenced on the Site. Contractor further agrees to provide or cause to be provided necessary training and safety equipment to its employees, Subcontractors and Sub-subcontractors to ensure their compliance with the foregoing safety and health rules and standards and enforce the use of such training and equipment. Contractor shall maintain all accident, injury and any other records required by Applicable Law or by Owner and shall furnish Owner a Monthly summary of injuries and labor hours lost due to injuries. Should Owner at any time observe Contractor, or any of its Subcontractors or Sub-subcontractors, performing the Work in an unsafe manner, or in a manner that may, if continued, become unsafe, then Owner shall have the right (but not the obligation) to require Contractor to stop the Work until such time as the manner of performing the Work has been rendered safe to the satisfaction of Owner; provided, however, that at no time shall Contractor be entitled to an adjustment of the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date or Required Final Completion Date based on such work stoppage. Contractor shall be responsible for the security, fencing, guarding, lighting, and supervision of the Facility and Site until all of the requirements of Substantial Completion have been satisfied. Nothing in this Section 3.10 shall affect Contractor’s status as an independent contractor.

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3.11 Emergencies. In the event of any emergency endangering life or property in any way relating to the Work, the Facility or the Site, whether on the Site or otherwise, Contractor shall take such action as may be reasonable and necessary to prevent, avoid or mitigate injury, damage, or loss and shall, as soon as possible, report any such incidents, including Contractor’s response thereto, to Owner. If Contractor has not taken reasonable precautions for the safety of the public or the protection of the Work, and such failure creates an emergency requiring immediate action, then Owner, with or without notice to Contractor may, but shall be under no obligation to, take reasonable action as required to address such emergency. The taking of any such action by Owner, or Owner’s failure to take any action, shall not limit Contractor’s liability. Contractor shall reimburse Owner for the performance of any work or furnishing of any equipment or other items in connection with any emergency in an amount equal to the reasonable costs incurred by Owner in such performance of work or furnishing of equipment or other items.

3.12 Approvals, Certificates, Permits and Licenses. Contractor shall obtain those Permits listed in Attachment P as well as any other Permits required by Applicable Law to be procured in Contractor’s name. Contractor shall provide Owner with copies of such Permits promptly after they are obtained. Contractor shall provide information, assistance and documentation to Owner as reasonably requested in connection with the Permits to be obtained by Owner under Section 4.2.

3.13 Books, Records and Audits.

A. Contractor shall keep full and detailed books, construction and manufacturing logs, records, daily reports, accounts, schedules, payroll records, receipts, statements, electronic files, correspondence and other pertinent documents as may be necessary for proper management under this Agreement or as required under Applicable Law or this Agreement, and in any way relating to this Agreement (“Books and Records”). Contractor shall maintain all such Books and Records in accordance with generally accepted accounting principles applicable in the United States and shall retain all such Books and Records for a minimum period of three (3) years after Final Completion, or such greater period of time as may be required under Applicable Law.

B. Upon reasonable notice, Owner, Lender, and any of their representatives, including Lender’s independent engineer, shall have the right to audit or to have audited Contractor’s Books and Records (including all amounts billed under Owner-directed Change Orders executed in accordance with this Agreement); provided, however, that such parties shall not have the right to audit or have audited Contractor’s Books and Records in connection with the internal composition of any compensation that is fixed in amount hereunder, except to the extent that any such compensation is reasonably necessary to evaluate any claims brought by Contractor for extra compensation or schedule relief and such claims depend in whole or in part on the internal composition of any such fixed amounts or has any reasonable bearing with respect to: (i) any proceeding (including any civil, criminal or administrative proceeding or investigation) before any Governmental Instrumentality in which Owner is involved, (ii) any litigation brought by third parties against Owner and such internal composition of any fixed amounts is in Owner’s reasonable opinion necessary to defend against such litigation, or (iii) regulatory compliance, standards or demands. When requested by Owner, Contractor shall provide

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the auditors with reasonable access to all such Books and Records, and Contractor’s personnel shall cooperate with the auditors to effectuate the audit or audits hereunder. The auditors shall have the right to copy all such Books and Records. Contractor shall bear at its own cost and expense all costs incurred by it in reasonably assisting Owner with audits performed pursuant to this Section 3.13. The restrictions in this Section 3.13B to the audit rights of Owner, Lender or Lender’s independent engineer shall not control over any rights such parties have under Applicable Law, in discovery in any litigation arising out of Article 19.

3.14 Tax Accounting. Within a reasonable period of time following a request therefor, Contractor shall provide Owner with any information regarding quantities, descriptions and costs of any Equipment installed on or ordered for the Facility and any other information, including Books and Records, as Owner may deem reasonably necessary in connection with the preparation of its tax returns or other tax documentation.

3.15 Temporary Utilities, Roads, Facilities and Storage. Owner shall provide Contractor with a connection to the City of Antioch water supply near the Site for use by Contractor as construction water during the performance of the Work, and Owner shall pay for the reasonable use of such water by Contractor. In addition, Owner shall provide Contractor with an interconnection for electrical power near the Site for use by Contractor as construction power during the performance of the Work, and Owner shall pay for the reasonable use of such electricity by Contractor. Contractor shall provide and pay for all other temporary utilities (e.g., telecommunications, cable, waste and sanitary), including all connections, necessary for the performance of the Work, including installation, Permit and usage costs; provided, however, in addition to Owner’s obligations set forth by the first two sentences of this Section 3.15, Owner shall also be responsible for (i) the fuel and power costs as set forth under Section 4.7 and (ii) any utility or interconnection-related system studies. Notwithstanding Owner’s obligations with respect to construction water and construction power as set forth in this Section 3.15, Contractor shall provide and pay for the distribution of electrical power and water within the Site as well as any bottled water used during the performance of the Work. Contractor shall construct and maintain temporary access and haul roads as may be necessary for the proper performance of this Agreement. Roads constructed on the Site shall be subject to Owner’s approval (such approval not to be unreasonably withheld). Contractor shall provide Owner with sufficient office space at the time of Contractor’s mobilization at the Site to accommodate Owner’s Site representatives, Lenders’ representatives and support staff. Contractor shall provide Owner with all office space, construction trailers, utilities, storage and warehousing, security, telephones, furnishings, and other temporary facilities required for their oversight of the Work, as set forth in more detail in Attachment A. All Equipment stored at a location other than on the Site shall be segregated from other goods, and shall be clearly marked as “Property of Mirant Marsh Landing, LLC.”

3.16 Subordination of Liens. In consideration of ten and no/100 U.S. Dollars (U.S.$10) incorporated into the Contract Price and as part of the consideration of receiving this Agreement and other valuable consideration received and acknowledged by Contractor, Contractor hereby subordinates any mechanics’ and materialmen’s liens or other claims or encumbrances that may be brought by Contractor against any or all of the Work, the Site or the Facility to any liens granted in favor of Lender, whether such lien in favor of Lender is created, attached or perfected prior to or after any such liens, claims or encumbrances, and shall require its

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Subcontractors to similarly subordinate their lien, claim and encumbrance rights. Contractor agrees to comply with reasonable requests of Owner for supporting documentation required by Lender, including any necessary lien subordination agreements, affidavits or other documents that may be required to demonstrate that Owner’s property and premises are free from liens, claims and encumbrances arising out of the furnishing of Work under this Agreement.

3.17 Hazardous Materials. Contractor shall not, nor shall it permit or allow any Subcontractor or Sub-subcontractor to, bring any Hazardous Materials on the Site and shall bear all responsibility and liability for such materials; provided, however, that Contractor may bring onto the Site such Hazardous Materials as are necessary to perform the Work so long as the same is done in compliance with Applicable Law, Applicable Codes and Standards, and the requirements specified in Attachment J, and Contractor shall remain responsible and liable for all such Hazardous Materials. If Contractor or any Subcontractor or Sub-subcontractor encounter pre-existing Hazardous Materials at the Site, and Contractor or any Subcontractor or Sub-subcontractor knows or reasonably should know that such material is Hazardous Material, Contractor and its Subcontractors and Sub-subcontractors shall immediately stop Work in the affected area and notify Owner. If under such circumstances Contractor or any of its Subcontractors or Sub-subcontractors fail to stop Work and notify Owner and through its negligent action exacerbate the circumstances of such pre-existing Hazardous Material, Contractor shall be responsible and liable to Owner in accordance with Section 18.1C for all damages, costs, losses and expenses to the extent relating to such failure.

3.18 Quality Assurance. No later than thirty (30) Days after the date Owner issues NTP, Contractor shall submit to Owner for its review and written approval, a Work-specific quality control and quality assurance plan and an inspection plan, including witness points, shop inspections and shop tests (including those inspections, tests and witness points provided under the Siemens Contract for the Siemens Equipment). No later than sixty (60) Days after the date Owner issues NTP, Contractor shall submit to Owner for its written approval, detailed inspection procedures. Contractor’s quality control and quality assurance plan and inspection plan shall be substantially similar to ISO 9001:2000; provided that Contractor is not required to maintain an ISO 9001:2000 certification. Contractor’s quality control and quality assurance plan shall provide for a quality control and quality assurance individual to be present at the Site to supervise the implementation of the quality control and quality assurance plan, the inspection plan, and the inspection procedures. Owner’s review and approval of Contractor’s quality control and quality assurance plan, inspection plan and inspection procedures shall in no way relieve Contractor of its responsibility for performing the Work in compliance with this Agreement. As part of the quality control and quality assurance plan, inspection plan and inspection procedures, Contractor shall keep a log of inspections performed, and Contractor shall make available at the Site for Owner’s review a copy of all such inspections.

3.19 Reports and Meetings.

A. Reports. Contractor shall provide Owner with four (4) hardcopies and one (1) electronic copy of progress reports and such other information as reasonably requested by Owner, including the following:

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1. minutes for all status and other Work-related meetings within five (5) Business Days following such meeting;

2. safety or environmental incident reports within twenty-four (24) hours after the occurrence of any such incident (including “near miss” incidents where no individual was injured or property was damaged), except for any safety or environmental incident involving a significant non-scheduled event such as natural gas releases, fires, explosions, mechanical failures, unusual over-pressurizations or major injuries which shall be provided to Owner within eight (8) hours of the occurrence of such incident; provided, however, notification shall be provided to Owner immediately if any safety or environmental incident threatens public or employee safety, causes significant property damage, or interrupts the Work;

3. weekly (or such duration as otherwise agreed by Owner in writing) progress reports (“Weekly Progress Reports”), in a form substantially similar to that set forth in Attachment X for Weekly Progress Reports (and meeting the criteria set forth in such Attachment X for Weekly Progress Reports), which shall be provided two (2) Days prior to the weekly progress meeting and shall cover all activities up to the end of the previous week; and

4. Monthly progress reports (“Monthly Progress Reports”), in a form substantially similar to that set forth in Attachment X for Monthly Progress Reports (and meeting the criteria set forth in such Attachment X for Monthly Progress Reports). Contractor shall provide the Monthly Progress Report no later than five (5) Days after the end of each Month, which shall cover activities up through the end of the previous Month. Contractor shall arrange for the distribution of the Monthly Progress Reports as Owner may reasonably request.

B. Meetings.

1. Contractor shall hold weekly progress meetings with applicable Subcontractors and Sub-subcontractors and will discuss the matters described in the Weekly Progress Report for the prior week. Contractor shall provide Owner with the date, time and location for each such meeting and the agenda for each such meeting and, to the extent reasonably possible, such meetings shall be held at the same time and place each week. Owner shall have the right, at its sole discretion, to attend, and have the Lenders’ representatives to attend, any or all weekly progress meetings held by Contractor. In addition to the attendees required by Contractor, the meetings shall be attended by those Contractor employees, Subcontractors and Sub-subcontractors reasonably requested by Owner.

2. A Monthly progress meeting shall be held by Contractor at the Site, or at an alternate site mutually agreeable to Owner and Contractor, to discuss the matters described in Attachment X for the prior Month and to review the

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Monthly Progress Report for that Month with Owner and, at Owner’s sole discretion, the Lenders’ representatives. In addition to any other attendees required by Contractor, the meetings shall be attended by those Contractor employees, Subcontractors and Sub-subcontractors reasonably requested by Owner.

3. In addition to the Monthly progress meeting set forth in Section 3.19B.2, Contractor’s and Owner’s senior executives (including the Owner Representative and Contractor Representative), and if requested by Owner, the Lenders’ representatives, shall meet on a Monthly basis (at a mutually agreeable time and location) to review the progress of the Work and discuss any safety, schedule, Work or Subcontractor issues.

3.20 Payment. Contractor shall timely make all payments required to be paid to Owner pursuant to the terms of this Agreement.

3.21 Commercial Activities. Neither Contractor nor its employees shall establish any commercial activity or issue concessions or permits of any kind to third parties for establishing commercial activities on the Site or any other lands owned or controlled by Owner.

3.22 Title to Materials Found. As between Owner and Contractor, the title to water, soil, rock, gravel, sand, minerals, timber, and any other materials developed or obtained in the excavation or other operations of Contractor, any Subcontractor or Sub-subcontractor and the right to use said materials or dispose of same is hereby expressly reserved by Owner. Contractor may, at the sole discretion of Owner, be permitted, without charge, to use in the Work any such materials that comply with the requirements of this Agreement.

3.23 Survey Control Points and Layout. Contractor shall establish all survey control points and layout the entire Work in accordance with the requirements of this Agreement, which shall be based on the survey control point established by Owner pursuant to Section 4.6. Contractor shall confirm the proper placement of such Owner-provided survey control point. If Contractor or any of its Subcontractors, Sub-subcontractors or any of the representatives or employees of any of them move or destroy or render inaccurate the survey control point provided by Owner pursuant to Section 4.6, such control point shall be replaced by Contractor at Contractor’s own expense and Contractor shall be liable to Owner for all other damages, costs, losses and expenses arising out of such relocation or destruction.

3.24 Cooperation with Others.

A. Subject to the provisions of this Agreement, including Section 4.3, Contractor acknowledges that Owner, other contractors and other subcontractors or other Persons may be working at or near the Site during the performance of this Agreement, that the Site is near the location of the Mirant Delta Facility which may be operating during the performance of Work at the Site and the Work or use by Contractor of certain facilities may be interfered with as a result of such concurrent activities. Contractor agrees to coordinate the performance of its Work at the Site with the operation and maintenance of the Mirant

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Delta Facility or other Persons activities at or near the Site so as not to interfere with such operations or other Persons performing work at or near the Site.

B. It is the Parties’ intent that the performance of the Work and Contractor’s other obligations under this Agreement will not interfere with the operation of the Mirant Delta Facility, and Contractor shall use its best efforts to coordinate the performance of the Work at the Site with the operation and maintenance of the Mirant Delta Facility so as not to interfere with such operation and maintenance. During the performance of the Work, should a situation arise that has the potential of interfering with the operation of the Mirant Delta Facility, Contractor shall give Owner written notice as soon as possible but no later than seven (7) Days prior to the time that Contractor plans to perform such Work, detailing a plan that describes how such Work will be performed to minimize, to the greatest extent possible, interference with the operation of the Mirant Delta Facility. The plan proposed by Contractor shall be the least disruptive to operations of the Mirant Delta Facility;. Prior to the execution of such Work, Owner, in its discretion (not to be unreasonably withheld), shall approve or disapprove of such plan; provided, however if the agreed upon plan delays pile driving activities which are on the critical path of the CPM Performance Measurement Baseline Schedule or materially increases the costs of such pile driving activities, then Contractor shall be entitled to a Change Order in accordance with Section 6.8.

3.25 Responsibility for Property. Contractor shall plan and conduct its operations so that neither Contractor nor any of its Subcontractors or Sub-subcontractors shall (i) enter upon lands (other than the Site) or waterbodies in their natural state unless authorized by Owner in writing; (ii) close or obstruct any utility installation, highway, waterway, harbor, road or other property unless and until Permits and Owner’s permission therefore have been obtained; (iii) disrupt or otherwise interfere with the operation of any portion of any pipeline, telephone, conduit or electric transmission line, ditch, navigational aid, dock or structure unless otherwise specifically authorized by Owner in writing; (iv) damage any property listed in (ii) or (iii); and (v) damage or destroy maintained, cultivated or planted areas or vegetation such as trees, plants, shrubs, shore protection, paving, or grass on or adjacent to the premises which, as determined by Owner, do not interfere with the performance of this Agreement. The foregoing includes damage arising from performance of the Work through operation of equipment or stockpiling of materials. Contractor shall be fully responsible for all damages, losses, costs and expenses arising out of damage to the Site and shall promptly restore at its own cost and expense the Site to the condition it was in before such damage. Contractor and its Subcontractors and Sub-subcontractors shall coordinate and conduct the performance of the Work so as to not interfere with or disrupt the use and peaceful enjoyment of any adjacent property to the Site.

3.26 Explosives. Explosives shall be transported to the Site only when required to perform the Work under this Agreement and with abundant, prior notice to and written approval of Owner. Contractor shall be responsible for properly purchasing, transporting, storing, safeguarding, handling and using explosives required to perform the Work under this Agreement. Contractor shall employ competent and qualified personnel for the use of explosives and shall assume full responsibility for all costs, losses, damages and expenses caused by the use of explosives. Residual surplus explosives shall be promptly removed from the Site and properly disposed of by Contractor. Contractor shall strictly comply with Applicable Law and Applicable Codes and Standards in the handling of explosives pursuant to this Agreement, shall perform all

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obligations and obtain all Permits with respect to explosives, and shall develop and file and provide copies to Owner of all documentation regarding same.

3.27 Nondiscrimination. Contractor agrees that it shall conduct its activities without regard to race, religion, color, sex, gender identity, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age, protected medical condition, disability or any other protected status in accordance with all applicable federal, state and local laws.

3.28 Used or Salvaged Materials. If, after Substantial Completion and prior to Final Completion, Contractor has any Equipment that it purchased for the Facility but did not incorporate into the Facility, Owner has the option of either taking such Equipment at a reasonable, market-based cost to Owner or requiring that Contractor haul off such Equipment at Contractor’s own cost and expense; provided, however, if such Equipment was provided by Contractor as part of any Work performed on a time and materials basis, then Owner shall have the right to take such Equipment without paying any further cost to Contractor. Notwithstanding the foregoing, all commissioning spare parts and, to the extent purchased by Owner, operating spare parts shall be the property of Owner.

3.29 Supervision of Owner’s Operation Personnel. Until Substantial Completion, Owner’s operating and maintenance personnel shall be under the control of and supervised by Contractor. To the extent not set forth in Attachment V, Contractor shall, no later than one hundred eighty (180) Days prior to the Guaranteed Substantial Completion Date, prepare for Owner’s review a proposed plan regarding the utilization of Owner’s operation and maintenance personnel and Contractor’s personnel during commissioning and for the conduct of Performance Tests and any other tests. Such plan shall be mutually agreed-upon by the Parties no later than forty-five (45) Days after Owner’s receipt of Contractor’s proposed plan. Without in any way limiting Contractor’s obligation to provide forces and labor during commissioning and Performance Testing, Contractor agrees that if any activity requires direct supervision by Contractor, such activity shall be performed by Contractor or a Subcontractor or Sub-subcontractor. Nothing in this Agreement, including this Section 3.29 or Section 3.2G, shall be interpreted to create a master-servant or principal-agent relationship between Contractor and any of Owner’s operation or maintenance personnel.

3.30 Compliance with Real Property Interests. Contractor shall, in the performance of the Work, comply, and cause all Subcontractors and Sub-subcontractors to comply, with any easement, lease, right-of-way or other property interests that affect or govern the Site or any other real property used for the purposes of completing the Work.

3.31 Compliance with Site Rules. Contractor shall, in the performance of the Work, comply, and cause all Subcontractors and Sub-subcontractors to comply, with any applicable safety, security, and similar work-related policies, procedures, controls and rules which are applicable to the Site, including those imposed by Owner, PG&E, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council or the Federal Energy Regulatory Commission and any Site access rules and procedures.

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ARTICLE 4

OWNER’S RESPONSIBILITIES

Owner shall comply with the following provisions in a timely manner:

4.1 Payment. Owner shall timely pay the Contract Price in accordance with the provisions of Article 7 hereof.

4.2 Permits. Owner shall be responsible for obtaining the Permits listed in Attachment Q and any other Permits required to be procured in Owner’s name under Applicable Law. Owner shall provide Contractor with copies of such Permits within ten (10) Business Days after obtaining them. Owner shall provide information, assistance and documentation to Contractor as reasonably requested in connection with the Permits to be obtained by Contractor under this Agreement.

4.3 Site Access. Owner shall secure and maintain at its expense all real property rights for the Site, and Owner shall provide Contractor with reasonably unrestricted access on the Site for Contractor to perform the Work. Subject to Section 3.24, such access shall be sufficient to permit Contractor to progress with construction on a continuous basis without substantial interruption or interference and shall otherwise be in accordance with the Site access plan to be developed and agreed upon by the Parties prior to Contractor’s mobilization to the Site.

4.4 Operation Personnel. As further set forth in Attachment V, Owner, at its cost, will provide a sufficient number of qualified operating and maintenance personnel and technicians in a sufficient number to be trained by Contractor and to assist Contractor by performing normal operating and maintenance duties in connection with the start-up of the Facility and the performance of the Performance Tests. Until Substantial Completion, such personnel shall be under the control of and supervised by Contractor in accordance with Section 3.29. Contractor shall be fully responsible for the supervision, direction and instruction of all Owner-provided personnel and shall be liable, and shall indemnify, defend and hold the Owner Group harmless, for all acts or omissions of such Owner personnel to the extent under Contractor’s supervision and direction; provided, however, Contractor shall not be liable to Owner, and shall not be required to indemnify, defend or hold the Owner Group harmless for claims related to Owner personnel’s gross negligence or willful misconduct or Owner’s personnel’s failure to comply with Contractor’s Site-specific, written directions or procedures (which are consistent with GECP and a safe working environment) applicable to the tasks being performed by such Owner personnel (including lock-out/tag-out procedures, de-energizing procedures and other applicable safety procedures, operating manuals, maintenance manuals and commissioning and startup procedures); provided further, however, notwithstanding the foregoing, such Owner’s personnel shall remain employees or agents of Owner and shall not be considered employees of Contractor for any reason. If any operating and maintenance personnel under the supervision, direction and instruction of Contractor as provided in this Section 4.4 do not follow Contractor’s verbal or written instructions and such instructions are given in accordance with GECP and are consistent with a safe working environment, Contractor shall have the right to require Owner to immediately remove such personnel from the operating and maintenance duties for which Owner’s operating and maintenance personnel are being provided in accordance with this Section 4.4.

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4.5 Taxes. Owner shall reimburse Contractor for California sales and use Taxes as set forth in Article 8. In addition, Owner shall administer and pay (a) property Taxes assessed on the Site, and on Equipment after delivery at the Site (and passage of title to Owner in accordance with Section 9.1), and (b) all Taxes incurred due to Owner’s sale of electricity from the Facility.

4.6 Legal Description and Survey. Owner shall provide to Contractor for Contractor’s information a legal description of the Site and a survey of the Site showing the boundaries of the Site and one (1) survey control point, the proper placement of which Contractor will confirm as set forth in Section 3.23.

4.7 Fuel and Power. Owner shall, at no cost to Contractor, provide (i) natural gas at the gas delivery point near the Site meeting or exceeding typical pipeline quality specifications and within the temperature and pressure ranges set forth in Attachment S and (ii) testing power (including back-feed power) for the Facility at the times designated for commissioning and startup of the Facility and conducting the Performance Tests; provided, however, Contractor shall nominate to Owner in writing the natural gas fuel it will require for commissioning, start-up and testing of the Facility at least ten (10) Days in advance of the date upon which such natural gas fuel is required. In addition, Owner shall, at no cost to Contractor, make arrangements to accept the power generated from the Facility during the Performance Tests.

4.8 Utility and Interconnection Studies. Owner shall be responsible for conducting and paying for all utility and interconnection-related system studies.

ARTICLE 5

COMMENCEMENT OF WORK, KEY MILESTONE SCHEDULE, AND SCHEDULING OBLIGATIONS

5.1 Commencement of Work. Upon Contractor’s receipt from Owner of an LNTP or NTP, Contractor shall immediately commence with the performance of the Work specified in such LNTP or NTP.

5.2 Limited Notice to Proceed/Notice to Proceed.

A. Limited Notice to Proceed. At any time prior to the date of issuance of the NTP, Owner may issue an LNTP which shall authorize Contractor to commence performance of a specified portion of the Work. An LNTP shall specify the maximum total cost of such specified Work, and Contractor shall be paid for such specified Work pursuant to the terms and conditions of this Agreement, with all such payments credited against the Contract Price and the first payments to become due hereunder. The LNTP shall be issued in the form attached hereto as Schedule H-1.

B. Limited Notices to Proceed for Siemens. At least thirty (30) Days prior to Owner’s issuance of the GTG LNTP (described below), Owner shall issue to Contractor an LNTP directing Contractor to (i) issue a limited notice to proceed to Siemens under the Siemens Contract so that Siemens can perform certain preliminary engineering work (as contemplated in Section 11.1.1 of the Siemens Contract) for timely delivery of certain document packages pursuant to Appendix 6 of the Siemens Contract and (ii) commence engineering oversight and project management activities related to Siemens’ work in

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clause (i) above (collectively, the “Preliminary Engineering LNTP”). Thereafter, and in accordance with the timing requirements established by the Siemens Contract for issuance of full notice to proceed to Siemens under such Siemens Contract, Owner shall issue a LNTP to Contractor directing Contractor to issue a full notice to proceed to Siemens pursuant to the Siemens Contract (such limited notice to proceed issued by Owner to Contractor being the “GTG LNTP”). If Owner fails to issue the GTG LNTP or the Preliminary Engineering LNTP within the time periods established by this Section 5.2B, and as a result thereof Contractor is unable to issue the corresponding limited notice to proceed and full notice to proceed (respectively) to Siemens within the time allowed under the Siemens Contract, then Contractor shall be entitled to an increase to the Contract Price and an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date by Change Order if and to the extent Siemens is allowed a change to its contract price or schedule under the Siemens Contract; provided that Contractor complies with the Change Order request, notice and mitigation requirements in this Agreement. Notwithstanding anything to the contrary herein, other than payments corresponding to Work performed by Siemens pursuant to the Preliminary Engineering LNTP, Owner shall not be obligated to make any payments to Contractor under this Agreement that correspond to payments to be made by Contractor under the Siemens Contract until Siemens provides a letter of credit to Contractor meeting the requirements set forth in the Siemens Contract.

C. Release for Engineering LNTP. Owner shall issue to Contractor a limited notice to proceed with all remaining engineering Work (including applicable engineering oversight functions) (“Release for Engineering LNTP”) no later than ***. If Owner fails to provide the Release for Engineering LNTP by the foregoing date (or such other date as the Parties may agree upon in writing), then Contractor shall be entitled to a Change Order for the delay associated with such failure in accordance with Section 6.8.

D. Demolition LNTP. Owner shall issue to Contractor a limited notice to proceed with demolition work and the relocation of certain utilities (“Demolition LNTP”) no later than ***. After issuance of the Demolition LNTP, Contractor shall be responsible for the demolition of existing structures at the Site as further set forth in Attachments A and AA. As part of the demolition Work, Contractor shall coordinate with Owner, the Owner-provided environmental remediation contractor and any PG&E representatives involved in remediation efforts to ensure the efficient performance of the demolition Work and any remediation efforts necessary to remediate Hazardous Materials associated with the demolition Work. In addition, Contractor shall also be entitled to a Change Order (to the extent allowed under Article 6) for an adjustment to the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date to the extent the actual demolition Work to be performed by Contractor materially differs from the information provided in this Agreement or that information that Contractor gathered, or should have gathered, through a visual investigation (using GECP) of the above ground structures to be demolished. In addition, to the extent Owner (or its environmental remediation contractor) fails to timely perform its remediation obligations in accordance with the schedule allowance for such work set out in the Monthly Updated CPM Schedule, Contractor shall be entitled to a Change Order for the delay associated with such failure in accordance with Section 6.8; provided, however, if such failure is due to an

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event of Force Majeure, Contractor shall be entitled to a Change Order for such delay in accordance with Section 6.7.

E. Notice to Proceed. Unless otherwise specifically set forth in an LNTP, Contractor shall not commence performance of the Work until Owner issues the NTP authorizing the same pursuant to the terms and conditions of this Agreement. Upon Contractor’s receipt from Owner of the NTP, Contractor shall immediately commence with the performance of the Work specified in such NTP. The NTP shall be issued in the form attached hereto as Schedule H-2.

F. Delay in Issuance of Notice to Proceed. If Owner fails to issue NTP by ***, Contractor shall be entitled to an increase to the Contract Price and an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, by Change Order if and to the extent Contractor can demonstrate to Owner that receiving the NTP after such date (as compared to on or before such date) has resulted in increased time of performance or costs, on a per-unit basis, for the Work; provided that Contractor complies with the Change Order request, notice and mitigation requirements in Article 6. Conversely, if Owner has not issued NTP by ***, Owner shall be entitled to a decrease to the Contract Price by Change Order if and to the extent it can be demonstrated that receiving the NTP after such date (as compared to on or before such date) has resulted in lower costs, on a per-unit basis, for the Work. Contractor shall use commercially reasonable efforts to assist Owner in identifying lower prices or rates available to Contractor as a result of NTP being issued after *** which would allow a decrease to the Contract Price. The change, if any, in per-unit prices shall be evidenced by Contractor through competitive re-bidding of the per-unit price for the work near the time of issuance of NTP. For the avoidance of doubt, any adjustment to the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date or Required Final Completion Date shall not be based upon a change in quantity of materials or equipment or the amount of labor, engineering or field in-directs.

5.3 Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date. Contractor shall perform the Work in accordance with the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion date set forth in this Section 5.3 and in Attachment E.

A. Key Milestone Schedule. The Key Milestone Dates set forth in the Key Milestone Schedule may only be adjusted by Change Order. Contractor shall be entitled to request a Change Order (which acceptance of such Change Order shall not be unreasonably withheld by Owner and will be subject to the limitations referenced in Section 22.20) in order for Contractor, using GECP, to re-sequence the Work and adjust Key Milestone Dates to improve schedule, efficiency and resource allocation; provided that such changes to the Key Milestone Schedule shall not adjust the Guaranteed Substantial Completion Date. Any Change Order that sets forth an adjustment to any Key Milestone Date or a re-sequencing of the Work pursuant to this Section 5.3A shall also set forth the corresponding update to the CPM Performance Measurement Baseline Schedule.

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B. Guaranteed Substantial Completion Date. Contractor shall achieve Substantial Completion no later than *** (“Guaranteed Substantial Completion Date”). The Guaranteed Substantial Completion Date shall only be adjusted by Change Order as provided under this Agreement.

C. Required Final Completion Date. Contractor shall achieve Final Completion no later than *** (“Required Final Completion Date”); provided however, the requirements set out in clauses (ii), (iv) and (vii) of the definition of Final Completion in Section 1.1 shall be completed by Contractor ***. The Required Final Completion Date shall only be adjusted by Change Order as provided under this Agreement.

5.4 CPM Schedule.

A. CPM Schedule Submission. Within sixty (60) Days after issuance of the GTG LNTP, Contractor shall prepare and submit to Owner for its review a preliminary critical path method schedule for the Work using Oracle Primavera P6 and showing evidence of the preliminary incorporation of the Siemens engineering deliverable dates within Contractor’s schedule for engineering and construction. Thereafter, Contractor shall submit a detailed critical path method schedule for the Work, for Owner’s review and written approval, no later than one hundred twenty (120) Days after issuance of GTG LNTP which meets the requirements set forth in Attachment U. This detailed critical path method schedule (as well as, for the avoidance of doubt, any CPM Performance Measurement Baseline Schedule and Monthly Updated CPM Schedule) shall adhere to the guidelines set forth in this Section 5.4, including Attachment U.

B. Owner Review of CPM Schedule. Owner may review the detailed critical path method schedule, provided within 120 Days after GTG LNTP pursuant to Section 5.4A, for general conformance with this Agreement, including the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, and issue written comments, proposed changes and/or written approval or disapproval of such critical path method schedule. If Owner reasonably determines that such critical path method schedule does not conform with this Agreement, in any respect, including the Key Milestone Schedule, the Guaranteed Substantial Completion Date or the Required Final Completion Date, Contractor shall revise and resubmit such schedule to Owner within ten (10) Days. Once the critical path method schedule and the required submittals have been reviewed and approved by Owner, this version of the critical path method schedule shall be the baseline critical path method schedule for the Work (the “CPM Performance Measurement Baseline Schedule”). Owner’s review or approval of the CPM Performance Measurement Baseline Schedule (or any updates thereto) shall not relieve Contractor of any obligations for the performance of the Work nor shall it be construed to establish the reasonableness of the CPM Performance Measurement Baseline Schedule. Notwithstanding any approval by Owner of the CPM Performance Measurement Baseline Schedule or any Monthly Updated CPM Schedule, Owner shall be entitled to reasonably rely upon the CPM Performance Measurement Baseline Schedule and any Monthly Updated CPM Schedules, including reliance that Contractor has developed a comprehensive, reasonable and accurate schedule to plan, organize, direct, coordinate, perform, execute and complete each portion of the Work within the times set forth by the

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Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date. Contractor shall use the CPM Performance Measurement Baseline Schedule in planning, organizing, directing, coordinating, performing and executing the Work, and the CPM Performance Measurement Baseline Schedule shall be the basis for evaluating progress of the Work.

C. Changes to the CPM Performance Measurement Baseline Schedule. The Contractor shall maintain the CPM Performance Measurement Baseline Schedule which shall contain the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date (as such dates may be adjusted by Change Order in accordance with this Agreement) as well as cost loading data corresponding to the Payment Milestones (as such Payment Milestones may be adjusted by Change Order in accordance with this Agreement). Notwithstanding anything to the contrary in this Agreement, the CPM Performance Measurement Baseline Schedule (including the Key Milestone Schedule, Guaranteed Substantial Completion Date, Required Final Completion Date as well as the cost loading data corresponding to the Payment Milestones) shall only be revised by Change Order executed by both Parties. Within Change Orders executed by the Parties which, due to the nature of the change, necessitate a corresponding modification of the CPM Performance Measurement Baseline Schedule, such modification of the CPM Performance Measurement Baseline Schedule shall be included within such Change Order. This updated CPM Performance Measurement Baseline Schedule shall thereafter be included as the comparison baseline with each Monthly Updated CPM Schedule until the next Change Order (if any) is executed that modifies the CPM Performance Measurement Baseline Schedule again.

D. Monthly Updates to CPM Schedule. After approval by Owner of the CPM Performance Measurement Baseline Schedule, Contractor shall manage and update a critical path method schedule for the Work no less frequently than once per Month to reflect the actual progress to date (“Monthly Updated CPM Schedule”); provided, however, this Monthly Updated CPM Schedule shall not modify the CPM Performance Measurement Baseline Schedule, the Key Milestone Schedule, Guaranteed Substantial Completion Date or Required Final Completion Date, nor shall it change any dates that relate to Owner’s obligations under the Agreement. If Contractor changes the schedule logic, any durations or cost-loading with respect to any activity in its Monthly Updated CPM Schedule such that it deviates from the CPM Performance Measurement Baseline Schedule, Contractor shall provide Owner with a written explanation of each such change along with such Monthly Updated CPM Schedule (but the CPM Performance Measurement Baseline Schedule shall not be changed). The Monthly Updated CPM Schedule shall be statused through the date of the applicable Invoice so that the Work represented in the Monthly Updated CPM Schedule matches the Payment Milestones proposed for payment by Contractor in the Invoice. The Monthly Updated CPM Schedule will have attached to it the current CPM Performance Measurement Baseline Schedule for comparison. The Monthly Updated CPM Schedule shall be in the same detail and form as required by the CPM Performance Measurement Baseline Schedule and shall be submitted by Contractor to Owner with each Invoice. Contractor shall promptly correct any errors or inconsistencies in the updates to the Monthly Updated CPM Schedule identified to Contractor by Owner and resubmit a corrected Monthly Updated CPM Schedule for

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Owner’s review. Owner’s review or approval of any Monthly Updated CPM Schedule shall not relieve Contractor of any obligations for the performance of the Work, change the Key Milestone Schedule, the Guaranteed Substantial Completion Date or the Required Final Completion Date, nor shall it be construed to establish the reasonableness of any Monthly Updated CPM Schedule.

E. Form of Submittals. All submittals by Contractor to Owner of the CPM Performance Measurement Baseline Schedule and any Monthly Updated CPM Schedule shall be in both native electronic and paper format. Four (4) hard copies of each submittal shall be provided to Owner, and one (1) electronic copy shall be provided to Owner in a mutually agreeable form. The CPM Performance Measurement Baseline Schedule and Monthly Updated CPM Schedules shall be submitted to Owner with printed reports meeting the requirements set forth in Attachment X.

5.5 Recovery and Recovery Schedule. If, at any time during the prosecution of the Work, should (i) the Monthly Updated CPM Schedule or Monthly Progress Report show that any activity on the critical path of the CPM Performance Measurement Baseline Schedule is delayed such that completion of any Key Milestone, Substantial Completion or Final Completion will occur *** Days after the applicable Key Milestone Date, the Guaranteed Substantial Completion Date or the Required Final Completion Date, respectively, (ii) (a) Contractor fail to provide a Monthly Updated CPM Schedule in compliance with the requirements of this Agreement and (b) Owner notifies Contractor in writing that it has reasonably determined (based upon objective criteria) that the critical path is delayed such that completion of any Key Milestone, Substantial Completion or Final Completion will occur *** Days after the applicable Key Milestone Date, the Guaranteed Substantial Completion Date or the Required Final Completion Date, respectively, or (iii) Contractor fail to complete any Key Milestone, Substantial Completion or Final Completion within *** after the applicable Key Milestone Date, the Guaranteed Substantial Completion Date or the Required Final Completion Date, respectively, then Owner may provide Contractor with a written request for Contractor to prepare a schedule to explain and display how it intends to complete the future Key Milestones, Substantial Completion and Final Completion in accordance with the applicable Key Milestone Dates, the Guaranteed Substantial Completion Date and the Required Final Completion Date (“Recovery Schedule”) as further set forth in this Section 5.5.

A. Within fifteen (15) Days after receipt of Owner’s written request for Contractor to develop a Recovery Schedule, Contractor shall prepare the Recovery Schedule and submit it to Owner for its review. The Recovery Schedule shall represent Contractor’s best judgment as to how it shall complete the remaining Key Milestones, Substantial Completion and Final Completion by the applicable Key Milestone Dates, the Guaranteed Substantial Completion Date and the Required Final Completion Date, respectively. The Recovery Schedule shall be prepared in accordance with GECP and to a similar level of detail as the CPM Performance Measurement Baseline Schedule, and shall be developed for and cover that period of time reasonably necessary to regain compliance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and Required Final Completion Date using all commercially practicable efforts and diligence (including, where effective, establishing additional shifts, hiring additional manpower, working overtime, providing additional equipment, obtaining priority shipments and re-sequencing activities). Within the Recovery Schedule proposed by Contractor, and in

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accordance with GECP, Contractor may request (which such request shall not be unreasonably denied by Owner and will be subject to the limitations referenced in Section 22.20) re-sequencing the Work and adjusting the Key Milestone Dates to improve schedule, efficiency and resource allocation; provided that such Recovery Schedule proposal shall not adjust the Guaranteed Substantial Completion Date; provided further that any requested re-sequencing of the Work or requested adjustment to any Key Milestone Date shall be expressly stated in writing by Contractor in a notice to Owner (in addition to being illustrated by the proposed Recovery Schedule).

B. At Owner’s written request after Contractor’s initial submission of the Recovery Schedule, Contractor shall participate in a conference with Owner, and with any other Person, including Subcontractors and Sub-subcontractors, whom Owner designates to participate, to review and evaluate the Recovery Schedule. Any revisions necessary as a result of this review shall be resubmitted for review by Owner within three (3) Business Days after the conference. The revised Recovery Schedule, once agreed upon by Owner in writing, shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing the Work (including all activities of Subcontractors and Sub-subcontractors) to regain compliance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date. The agreed upon Recovery Schedule, including any changes to the Key Milestone Dates, shall be incorporated into the CPM Performance Measurement Baseline Schedule by Change Order; provided that the Guaranteed Substantial Completion Date shall not be adjusted by such incorporation of the Recovery Schedule.

C. The cost of preparing and performing in accordance with the Recovery Schedule shall be for Contractor’s account. Owner’s requirement, review and approval of the Recovery Schedule shall not relieve Contractor of any obligations for the performance of the Work, change the Guaranteed Substantial Completion Date or Required Final Completion Date, or be construed to establish the reasonableness of the Recovery Schedule.

5.6 Acceleration and Acceleration Schedule. Even if the Work is otherwise in compliance with the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date, Owner may, at any time, direct Contractor by an Owner-directed or mutually agreed Change Order to accelerate the Work by, among other things, establishing additional shifts, paying or authorizing overtime, providing additional construction equipment or expediting Equipment; provided, however, Owner’s direction to Contractor to accelerate the Work shall be reasonable and in no event shall Owner unilaterally order acceleration of the Work requiring Contractor to achieve Substantial Completion or Final Completion prior to the respectively, original Guaranteed Substantial Completion Date or Required Final Completion Date. In the event of this directive, Owner’s sole liability shall be to pay to Contractor any documented costs attributable to such acceleration. Such costs may include any shift differential, premium, or overtime payments to workers or field supervisors and other employees of Contractor dedicated to the Work on a full-time basis actually incurred over and above Contractor’s normal rates, and overtime charges for equipment and any additional field overhead or expenses resulting from the acceleration directive. Any adjustment to the Contract Price or any other Changed Criteria that the Parties agree will be changed by such acceleration for Owner’s acceleration of the

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Work shall be implemented by Change Order. If Owner directs Contractor to accelerate the Work pursuant to a Change Order, Contractor shall immediately commence and diligently perform the acceleration of the Work as directed by Owner, and shall prepare a schedule to explain and display how it intends to accelerate the Work and how that acceleration will affect the critical path of the CPM Performance Measurement Baseline Schedule (the “Acceleration Schedule”). With respect to the Acceleration Schedule, Contractor shall do the following:

A. No later than the fifteenth (15^th) Day after such directive, Contractor shall prepare the Acceleration Schedule and submit it to Owner for its review. The Acceleration Schedule shall represent Contractor’s best judgment as to how it shall satisfy Owner’s acceleration directive. The Acceleration Schedule shall be prepared using GECP and to a similar level of detail as the CPM Performance Measurement Baseline Schedule.

B. On the fifteenth (15^th) Day after such directive (or such longer time as specified in writing by Owner), Contractor shall participate in a conference with Owner, and with any other Person, including Subcontractors and Sub-subcontractors, whom Owner designates to participate, to review and evaluate the Acceleration Schedule. Any revisions to the Acceleration Schedule necessary as a result of this review shall be resubmitted for review by Owner no later than the tenth (10^th) Day of such meeting or such other date as Owner may permit. The revised Acceleration Schedule shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing that portion of the Work that is affected by such acceleration, with the CPM Performance Measurement Baseline Schedule governing the performance of all other Work.

Owner’s review and approval of the Acceleration Schedule shall not constitute an independent evaluation or determination by Owner of the workability, feasibility, or reasonableness of that schedule.

ARTICLE 6

CHANGES; FORCE MAJEURE; AND OWNER-CAUSED DELAY

6.1 Change Orders Requested by Owner. Owner shall be entitled to a Change Order upon request in accordance with this Section 6.1.

A. If Owner submits to Contractor in writing a duly signed proposed Change Order, Contractor must respond to Owner within fifteen (15) Days with a written statement setting forth the effect, if any, which such proposed Change Order would have on the Contract Price, the Key Milestone Schedule, the Design Basis, the Guaranteed Substantial Completion Date, the Required Final Completion Date, the Payment Schedule, any of the Minimum Acceptance Criteria or Performance Guarantees, or any other obligation or potential liability of Contractor hereunder (collectively or individually, the “Changed Criteria”). The written statement shall be in the form of Schedule D-3, and shall include all information required by Section 6.5B.

B. If the Parties agree on such Changed Criteria of the proposed Change Order (or modify such Change Order so that the Parties agree on such Changed Criteria), the

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Parties shall execute such Change Order, which shall be in the form of Schedule D-1 and such Change Order shall become binding on the Parties, as part of this Agreement.

C. If the Parties cannot agree on such Changed Criteria of the proposed Change Order within ten (10) Business Days after Contractor’s receipt of Owner’s proposed Change Order, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately without the requirement of a written statement by Contractor as required under Section 6.1A, Owner may, by issuance of an Owner-directed Change Order in the form attached hereto as Schedule D-2, require Contractor to commence and perform the changed Work specified in the Owner-directed Change Order on a time and materials basis in accordance with Section 6.3. Thereafter, the Parties may discuss the effect of such Owner-directed Change Order on the Changed Criteria (or if the Parties agree on the effect of such Owner-directed Change Order for some but not all of the Changed Criteria, the impact of each of the components of the Changed Criteria on which the Parties have not yet agreed), and if the effects of the Changed Criteria are agreed upon (including the adjustment to the Contract Price, if any), the Parties shall enter into a mutual Change Order in the form of Schedule D-1 superseding the applicable Owner-directed Change Order (previously issued in the form of Schedule D-2). The Parties acknowledge that, with respect to changed Work affecting the Siemens Equipment which can only be performed pursuant to the Siemens Contract, the scope of such changed Work requested by an Owner-directed Change Order may be restricted by the terms set forth in Section 10.2 of the Siemens Contract; provided, however, that Contractor shall use commercially reasonable efforts to have Siemens perform such changed Work notwithstanding the restrictions available to Siemens in Section 10.2 of the Siemens Contract. If the Parties cannot agree on the effect of such Owner-directed Change Order by the date of Final Completion, then the dispute shall be resolved as provided in Article 19. Pending resolution of the dispute, Contractor shall perform the Work as specified in such Owner-directed Change Order in accordance with this Section 6.1C and Owner shall continue to pay Contractor in accordance with the terms of this Agreement and any previously agreed Change Orders. When Owner and Contractor agree on the effect of such Owner-directed Change Order on all of the Changed Criteria, such agreement shall be recorded by execution by the Parties of a mutually agreed Change Order in the form attached hereto as Schedule D-1, which shall supersede the Owner-directed Change Order previously issued and relating to such changed Work.

6.2 Change Orders Requested by Contractor.

A. Contractor shall have the right to request a Change Order in the event of any of the following occurrences:

1. Changes in Law that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such Changes in Law, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial

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Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;

2. Acts or omissions of Owner that constitute a breach of any express obligation of Owner under this Agreement and materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or ability to perform any material requirement under this Agreement and, with respect to delays (as that term is defined Section 6.10) caused by Owner, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;

3. Force Majeure to the extent allowed under Section 6.7A;

4. Acceleration of the Work ordered by Owner pursuant to Section 5.6;

5. If Contractor discovers at the Site any underground utilities, manmade subsurface obstructions, rocks that require blasting, sinkholes or archeological finds which were (a) not indicated in, or which materially differ from, the Soil Report or the Final Geotechnical Report and (b) otherwise unknown or not identified by or to Contractor, to the extent such discovery has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;

6. To the extent expressly permitted under Section 2.5B.1 for material differences between the Soils Report and the Final Geotechnical Report;

7. If the ground water constituents and flow rate potential existing at the Site are materially different from the information set forth in Attachment CC, to the extent such difference has a material and adverse impact on Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such difference, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;

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8. To the extent expressly permitted under Sections 5.2B, 5.2C, 5.2D, 5.2F, 5.3A, 9.2A, 10.2, 12.9 and 13.2A, Section 1.10.5 of Attachment O, and Attachment AA;

9. Subject to Contractor’s liabilities and responsibilities assumed under Section 3.17, if pre-existing Hazardous Materials are discovered at the Site (other than those discovered during the course of the demolition Work, for which relief is available to the extent provided in Section 5.2D or Attachment AA) that materially and adversely affect Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work or Contractor’s ability to perform any material requirement under this Agreement, and with respect to any delays (as that term is defined in Section 6.10) caused by such discovery, compensation and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent allowed under Section 6.8;

10. An emergency causing imminent and immediate danger to human health or property (excluding the Work), which was not caused by, or did not arise out of, any acts or omission of Contractor or any Subcontractor or Sub-subcontractor or an event of Force Majeure, and which materially and adversely affects Contractor’s actual cost (which costs shall be adequately documented and supported by Contractor) of performance of the Work;

11. Purchase of operating spare parts in accordance with Section 3.4 (including Section 3.4C); or

12. Suspension in Work ordered by Owner pursuant to Section 17.3.

B. Should Contractor desire to request a Change Order under this Section 6.2, Contractor shall, pursuant to Section 6.5, notify Owner in writing and issue to Owner, at Contractor’s expense, a request for a proposed Change Order in the form attached hereto as Schedule D-3, a detailed explanation of the proposed change and Contractor’s reasons for proposing the change, all documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 6.5. Any adjustments to the Contract Price shall be requested on a lump sum basis.

C. If Owner agrees that a Change Order is necessary and agrees with Contractor’s statement regarding the effect of the proposed Change Order on the Changed Criteria, then Owner shall issue such Change Order, which shall be in the form of Schedule D-1, and such Change Order shall become binding on the Parties as part of this Agreement upon execution thereof by the Parties.

D. If the Parties agree that Contractor is entitled to a Change Order but cannot agree on the effect of the proposed Change Order on the Changed Criteria within ten (10) Business Days of Owner’s receipt of Contractor’s written notice and proposed Change Order and all other required information, or if Owner desires that the proposed changed

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Work set forth in the proposed Change Order commence immediately the rights, obligations and procedures set forth in Section 6.1C are applicable.

E. If the Parties cannot agree upon whether Contractor is entitled to a Change Order within ten (10) Business Days (or such longer period as may be mutually agreed in writing) of Owner’s receipt of Contractor’s written notice and proposed Change Order, then the dispute shall be resolved as provided in Article 19. Pending resolution of the dispute, Contractor shall continue to perform the Work required under this Agreement, and Owner shall continue to pay Contractor in accordance with the terms of this Agreement and any previously agreed upon or Owner-directed Change Orders. In addition, Contractor shall maintain a detailed accounting of the costs (and any other impacts) incurred by Contractor for Work performed by Contractor for which it has requested a Change Order and which Owner disagrees that a Change Order is entitled pursuant to this Section 6.2E. Such costs and other impacts to the Work shall be reported to Owner within the Monthly Progress Reports.

6.3 Contract Price Adjustment; Contractor Documentation. If a Change Order is executed on a time and materials basis pursuant to Section 6.1C or 6.2D, then the costs incurred in performing such Change Order shall be determined as follows:

A. Direct Craft Labor. Direct craft labor costs shall be based upon actual hours expended by such craft labor for the time and materials Work at the published union wage scales.

B. Small Tool and Supplies. Costs for small tools and supplies shall be determined by ***.

C. Construction Equipment. With respect to construction equipment used to perform the time and materials Work, Contractor shall be paid for incremental costs incurred only (over and above that which is incurred to perform the Work for the Contract Price) at ***.

D. Materials and Subcontracts. Materials purchased by Contractor for the time and materials Work, and time and materials Work performed by Subcontractors and Sub-subcontractors, shall be invoiced to Owner ***.

E. Management, Engineering and Design. Costs for Contractor’s project management, engineering and design services in performing time and materials Work shall be based upon ***.

F. Taxes. If Contractor incurs any California sales and use Taxes in the course of performing the time and materials Work, Owner shall reimburse Contractor for the actual cost of such California sales and use Taxes properly paid by Contractor under Applicable Law.

G. General and Administrative Expenses. Contractor shall be reimbursed for general and administrative expenses and all other overhead, markups and multipliers applicable to the time and materials Work by ***.

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H. Profit. Contractor’s profit for the time and materials Work ***.

Unless otherwise agreed in writing by Owner prior to the incurrence of the cost, the foregoing costs and markups shall be the sole costs and markups invoiced to Owner for Change Order Work performed on a time and materials basis. Contractor shall use reasonable efforts to minimize costs incurred on a time and material basis (consistent with the requirements of this Agreement) and shall provide Owner with options for reducing such costs whenever possible. The foregoing costs shall be supported by reasonable documentation, including daily work logs, time sheets, invoices and receipts.

6.4 Change Orders Act as Accord and Satisfaction. Change Orders agreed pursuant to Section 6.1B or 6.2C by the Parties, and Owner-directed Change Orders entered into pursuant to Section 6.1C or 6.2D on a time and materials basis and which the Parties have subsequently agreed upon the effect of such Owner-directed Change Order and executed a superseding and mutually agreed upon Change Order as provided in Section 6.1B or 6.2C shall constitute a full and final settlement and accord and satisfaction of all effects of the change as described in the Change Order upon the Changed Criteria and shall be deemed to compensate Contractor fully for such change. Accordingly, Contractor expressly waives and releases any and all right to make a claim or demand or to take any action or proceeding against Owner for any other consequences arising out of, relating to, or resulting from such change reflected in such Change Order, whether the consequences result directly or indirectly from such change reflected in such Change Order, including any claim or demand for damages due to delay, disruption, hindrance, impact, interference, inefficiencies or extra work arising out of, resulting from, or related to, the change reflected in that Change Order (including any claims or demands that any Change Order or number of Change Orders, individually or in the aggregate, have impacted the unchanged Work).

6.5 Timing Requirements for Notifications and Change Order Requests by Contractor. Should Contractor desire to seek an adjustment to the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date, the Required Final Completion Date, the Payment Schedule, any of the Minimum Acceptance Criteria or Performance Guarantees or any other modification to any other obligation of Contractor under this Agreement for any circumstance that Contractor has reason to believe may give rise to a right to request the issuance of a Change Order, Contractor shall, with respect to each such circumstance:

A. notify Owner in writing of the existence of such circumstance within twenty (20) Days after the date that Contractor knew or reasonably should have known of the first occurrence or beginning of such circumstance, provided that (i) if such circumstance is an emergency, oral notice shall be given immediately, followed by a written notice within five (5) Business Days after the date such oral notice is provided, (ii) if such circumstance is considered by Contractor to be an event of Force Majeure, written notice shall be provided within four (4) Business Days after the commencement of such occurrence that is considered a Force Majeure and (iii) such notice shall be given as soon as practicable, and prior to the expiration of such twenty (20) Day period, should any action or inaction by Owner or Contractor be required or necessary in relation to such circumstance to prevent or mitigate any damages or losses to either Party. In the notice required under this Section 6.5A notice, Contractor shall state, in as reasonable of detail as is practicable under the circumstances, all known and presumed facts upon which its claim is based, including the

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character, duration and extent of such circumstance, the date Contractor first knew of such circumstance, any activities impacted by such circumstance, the cost and time consequences of such circumstance (including showing the impact of such circumstance, if any, on the critical path of the CPM Performance Measurement Baseline Schedule) and any other details or information that are expressly required under this Agreement and any reasonably available information and documents relevant to such claim or circumstance. Contractor shall only be required to comply with the notice requirements of this Section 6.5A once for continuing circumstances, provided the notice expressly states that the circumstance is continuing and includes Contractor’s best estimate of the impact on any Changed Criteria by such circumstance; and

B. submit to Owner a request for a proposed Change Order as soon as reasonably practicable after giving Owner written notice but in no event later than twenty (20) Days after the completion of each such circumstance, together with a written statement (i) detailing why Contractor believes that a Change Order should be issued, plus all documentation reasonably requested by or necessary for Owner to determine the factors necessitating the possibility of a Change Order and all other information and details expressly required under this Agreement (including the information required by Schedule D-4, detailed estimates and cost records, daily time sheets and a graphic demonstration using the CPM Performance Measurement Baseline Schedule, showing Contractor’s entitlement to a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, pursuant to the terms of this Agreement, which shall be provided in hard copy and in an electronic format meeting the requirements of Attachment U); and (ii) setting forth the effect, if any, which such proposed Change Order would have for the Work on any of the Changed Criteria. If it is not possible for Contractor to provide all of the information required under this Section 6.5B to be submitted with such proposed Change Order within such twenty (20) Day period, Contractor shall provide Owner with as much information as possible as well as a written explanation of the reason additional time is required. With respect to any information not provided within such twenty (20) Day period, Contractor shall exercise reasonable diligence to provide such information as soon as possible, but in no event later than thirty (30) Days following Contractor’s submission of such proposed Change Order.

The Parties acknowledge that Owner may be prejudiced if Contractor fails to provide the notices and proposed Change Orders as required under this Section 6.5, and agree that such requirements are an express condition precedent necessary to any right for an adjustment in Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date, the Required Final Completion Date, the Payment Schedule, any Work, any of the Minimum Acceptance Criteria or Performance Guarantees or any other modification to any other obligation of Contractor under this Agreement. Accordingly, if Contractor fails to materially comply with the requirements of this Section 6.5 in connection with notices and proposed Change Orders (with the exception of the timing requirements set forth in this Section 6.5, which require strict compliance), any and all claims (including any claim for an adjustment in the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date, Required Final Completion Date or any other modification to any other obligation of Contractor under this Agreement) that should have been provided in such notice or proposed Change Order are waived and released by Contractor to the extent that

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Owner is prejudiced as a result of Contractor failing to comply with the requirements of this Section 6.5.

6.6 Adjustment Only Through Change Order. No change in the requirements of this Agreement, whether an addition to, deletion from, suspension of or modification to this Agreement, including any Work, shall be the basis for an adjustment for any change in the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date, the Required Final Completion Date, Payment Schedule, any Work, any of the Minimum Acceptance Criteria or Performance Guarantees or any other obligations of Contractor or right of Owner under this Agreement unless and until such addition, deletion, suspension or modification has been authorized by a Change Order executed and issued in accordance with and in strict compliance with the requirements of this Article 6. Contractor shall not perform any change in the Work unless and until such change is authorized pursuant to this Article 6, and should Contractor perform or claim to perform any changes in the Work prior to authorization by Change Order, all such costs and expenses incurred by Contractor shall be for Contractor’s account. No course of conduct or dealings between the Parties, nor express or implied acceptance of additions, deletions, suspensions or modifications to this Agreement, including any Work, and no claim that Owner has been unjustly enriched by any such addition, deletion, suspension or modification to this Agreement shall be the basis for any claim for an adjustment in the Contract Price, the Key Milestone Schedule, the Guaranteed Substantial Completion Date, the Required Final Completion Date, the Payment Schedule, any Work, any of the Minimum Acceptance Criteria, Performance Guarantees or any other obligations of Contractor under this Agreement.

6.7 Force Majeure.

A. Contractor Relief. If the commencement, prosecution or completion of the Work is delayed by Force Majeure, then Contractor shall be entitled to an extension to the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date, as applicable, if such delay affects the performance of any Work that is on the critical path of the CPM Performance Measurement Baseline Schedule and Contractor complies with the notice and Change Order request requirements in Section 6.5 and the mitigation requirements in Section 6.11. The Parties agree that Contractor’s sole remedy for such delay shall be an adjustment to the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date, as applicable, pursuant to a Change Order. Any adjustment to the Key Milestone Schedule, the Guaranteed Substantial Completion Date and the Required Final Completion Date, as applicable, shall be recorded in a Change Order.

B. Owner Relief. Subject to Section 6.7C, Owner’s obligations under this Agreement shall be suspended to the extent that performance of such obligations is delayed by Force Majeure.

C. Payment Obligations. No obligation of a Party to pay moneys due and owing under this Agreement shall be excused by reason of Force Majeure.

6.8 Delay Caused by Owner or Changes in Scope of Work. Should Owner or any Person acting on behalf of or under the control of Owner delay the commencement, prosecution or

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completion of the Work, and to the extent such delay is not attributable to Contractor or its Subcontractors or Sub-subcontractors but is caused by Owner’s breach of an express obligation of Owner under this Agreement or is caused by Owner’s ordering a change in the Scope of the Work (provided that a Change Order has been issued in accordance with Section 6.1), then Contractor shall be entitled to an adjustment in the Contract Price and an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, to the extent (a) such delay affects the performance of any Work that is on the critical path of the CPM Performance Measurement Baseline Schedule and (b) Contractor complies with the notice and Change Order request requirements in Section 6.5 and the mitigation requirements of Section 6.11. Any adjustment to the Contract Price shall be for reasonable, additional direct costs incurred by Contractor for such delay meeting the requirements of this Section 6.8, and any adjustments to the Contract Price, Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, shall be recorded in a Change Order. The Parties agree that if they execute a Change Order with respect to any change in the Scope of Work described in this Section 6.8, any delay arising out of such change in the Scope of Work and meeting the requirements of this Section 6.8 shall be included in the Change Order incorporating such change in the Scope of Work.

6.9 Schedule Extension. ***

6.10 Delay. For the purposes of Article 6, the term “delay” shall include hindrances, disruptions or obstructions, or any other similar term in the industry and the resulting impact from such hindrances, disruptions or obstructions, including inefficiency, impact, ripple or lost production. For the avoidance of doubt, the Parties recognize and agree that for the purposes of Article 6, a work activity not on the critical path can become on the critical path, and if a delay causes a work activity off the critical path to become a critical path activity, Contractor is entitled to an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, for those days of delay after which the non-critical path activity became a critical path activity, provided that such delay satisfies the other requirements under Article 6.

6.11 Contractor Obligation to Mitigate Delay. In no event shall Contractor be entitled to any adjustment to the Key Milestone Schedule, Guaranteed Substantial Completion Date, Required Final Completion Date and the Contract Price for that portion of delay to the extent Contractor could have taken, but failed to take, commercially reasonable actions to mitigate such delay.

ARTICLE 7

CONTRACT PRICE AND PAYMENTS TO CONTRACTOR

7.1 Contract Price. As compensation in full to Contractor for the full and complete performance of the Work and all of Contractor’s other obligations under this Agreement, Owner shall pay and Contractor shall accept *** (the “Contract Price”). The Contract Price is subject to adjustment only by Change Order as provided in Article 6, and includes all Taxes, costs, charges, and expenses of whatever nature applicable to the Work (other than those California sales and use Taxes for which Owner shall reimburse Contractor pursuant to Article 8). For the avoidance of doubt, the Contract Price includes all costs, markups and other expenses for the Siemens

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Equipment (other than the California sales and use Taxes for which Owner shall reimburse Contractor pursuant to Article 8). The Parties agree that (i) amounts paid by Owner to Contractor pursuant to the MOU shall be credited towards the EPC Payment Milestone portion of the Contract Price and (ii) amounts paid by Owner to Siemens prior to assignment of the Siemens Contract to Contractor pursuant to Section 22.8 shall be credited towards the Siemens Equipment Payment Milestone portion of the Contract Price.

7.2 Interim Payments.

A. Payments. Payments shall be made by Owner to Contractor in accordance with the Payment Schedule set forth in Attachment C (as may be amended by Change Order pursuant to Section 6.1B or 6.2C), which allocates (i) *** of the Contract Price to be paid based on completion of the EPC Payment Milestones set forth in Schedule C-1 (the “EPC Payment Milestone portion of the Contract Price”) and (ii) *** of the Contract Price to be paid based on completion of the Siemens Equipment Payment Milestones set forth in Schedule C-2 (“Siemens Equipment Payment Milestone portion of the Contract Price”), provided that Contractor is otherwise in material compliance with the terms of this Agreement. That portion of the Contract Price set forth in the foregoing sentence to be paid based upon Siemens Equipment Payment Milestones corresponds to the payment milestones and progress payments to be made by Contractor to Siemens under the Siemens Contract and contains no further costs, expenses, markups, profit, overhead or other expenditures. Owner shall also make payments to Contractor for any Owner-directed Change Orders issued in accordance with Section 6.1C or 6.2D and shall reimburse applicable California sales and use Taxes in accordance with Article 8. Each payment shall be subject to Retainage and Owner’s right to withhold payments under this Agreement, including Sections 7.5 and 14.3. Payments shall be made in U.S. Dollars to an account designated by Contractor. The Payment Schedule, including the Payment Milestones, shall be amended only by Change Order pursuant to this Agreement.

B. Invoices. Within ten (10) Days after the end of each Month, Contractor shall submit to Owner an Invoice for (i) all EPC Payment Milestones completed during the prior Month, if any, as set forth in Schedule C-1, less the Retainage to be withheld by Owner for such amount, (ii) all Siemens Equipment Payment Milestones completed during the prior Month, if any, as set forth in Schedule C-2 and (iii) California sales and use Taxes incurred in the procurement of the Siemens Equipment in accordance with Article 8. Contractor shall not be entitled to any payment whatsoever for any portion of the Work relating to a particular Payment Milestone until such Payment Milestone is fully completed. Such Monthly Invoice shall also include amounts properly due and owing for Work performed during the prior Month and pursuant to an Owner-directed Change Order issued pursuant to Section 6.1C or 6.2D, less Retainage. All Invoices, other than the Invoice for final payment under this Agreement, shall be in the form of Schedule I-1, and shall include all documentation supporting its request for payment as required under this Agreement. Contractor shall provide documentation such as invoices and receipts supporting all amounts billed for Owner-directed Change Orders issued pursuant to Section 6.1C or 6.2D.

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C. Interim Lien and Claim Waivers. Each Invoice received by Owner prior to Final Completion shall be accompanied by (i) a fully executed Interim Waiver and Release of Liens from Contractor in the form of Schedule K-1, and a fully executed Interim Claim Waiver from Contractor in the form of Schedule K-2, for all Work performed through the date for which payment is requested, (ii) fully executed Interim Waiver and Release of Liens from each Major Subcontractor in the form set forth in Schedule K-3, and fully executed Interim Claim Waivers from each Major Subcontractor in the form set forth in Schedule K-4, for all Work performed through the date for which payment is requested and (iii) if requested by Owner, fully executed Interim Waiver and Release of Liens from all Major Sub-subcontractors requested substantially in the form set forth in Schedule K-3 (but nevertheless conforming with Applicable Law), and fully executed Interim Claim Waivers from all Major Sub-subcontractors requested in substantially the form set forth in Schedule K-4, for all Work performed through the date for which payment is requested; provided, however, with respect Siemens, receipt of Interim Waiver and Release of Liens and Interim Claim Waivers from Siemens will be in accordance with the form and content requirements set forth in the Siemens Contract; provided further, however, with respect to Major Sub-subcontractors under Siemens, receipt of Interim Waiver and Release of Liens and Interim Claim Waivers from such Major Sub-subcontractors will be in accordance with the form, content and timing requirements set forth in the Siemens Contract. Interim Waiver and Release of Liens and Interim Claim Waivers, however, shall not be required from Major Subcontractors or Major Sub-subcontractors until they have performed Work, and Major Subcontractors and Major Sub-subcontractors shall be required to submit additional Interim Waiver and Release of Liens and Interim Claim Waivers only if they have performed Work not covered by a previous Interim Waiver and Release of Liens and Interim Claim Waiver. Submission of all Interim Waiver and Release of Liens and Interim Claim Waivers in accordance with this Section 7.2C is a condition precedent to payment of any Invoice.

D. Review and Approval. Each Invoice shall be reviewed by Owner and, upon Owner’s reasonable request, Contractor shall furnish such supporting documentation and certificates and provide such further information as may be reasonably requested by Owner. Unless disputed by Owner, each Invoice (less any withholdings allowed under this Agreement, including Retainage) shall be due and payable thirty (30) Days after it, and all documentation required under this Agreement, is received by Owner. If an Invoice is disputed by Owner, then payment shall be made for all undisputed amounts and the dispute shall be resolved pursuant to Article 19. Payment on disputed amounts shall be made as soon as such dispute is resolved.

E. Maximum Cumulative Payment Amounts. The Parties have agreed upon and set forth in Schedule C-3 a schedule of the maximum cumulative amounts that Contractor is allowed to invoice Owner at any one time during the performance of the Work (the “Maximum Cumulative Payment Schedule”). Schedule C-3 sets forth both (a) the maximum amount that Contractor can invoice at any one time and allocate to the Siemens Equipment Payment Milestone portion of the Contract Price and (b) the maximum amount Contractor can invoice at any one time (before giving effect to Retainage) and allocate to the EPC Payment Milestone portion of the Contract Price. Schedule C-3 shall only be subject to adjustment pursuant to a Change Order.

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F. Cooperation in Invoicing Process. Without in anyway altering the rights, obligations and remedies set forth in this Agreement, the Parties acknowledge that they will reasonably cooperate in the timing of the receipt and review of Invoices and coordinate same with invoices received by Contractor under the Siemens Contract with the view to have payment milestones that are properly earned and invoiced under the Siemens Contract included as a Siemens Equipment Payment Milestone in the Invoice under this Agreement in the corresponding Month.

7.3 Final Completion and Final Payment. Upon Final Completion, Contractor shall, in addition to any other requirements in this Agreement for achieving Final Completion, including those requirements set forth in Section 1.1 for the definition of Final Completion, submit a fully executed final Invoice in the form attached hereto as Schedule I-2, along with (i) a statement summarizing and reconciling all previous Invoices, payments and Change Orders, (ii) an affidavit that all payrolls, Taxes, liens, charges, claims, demands, judgments, security interests, bills for Equipment, and any other indebtedness connected with the Work have been paid, (iii) fully executed Final Waiver and Release of Liens and Final Claim Waiver from Contractor in the forms of Schedule K-5 and K-6, respectively, (iv) fully executed Final Waiver and Release of Liens and Final Claim Waivers from each Major Subcontractor in the forms set forth in Schedule K-7 and K-8, respectively and (v) if requested by Owner, fully executed Final Waiver and Release of Liens and Final Claim Waivers from each Major Sub-subcontractor in substantially the form set forth in Schedule K-7 and K-8, respectively (but nevertheless conforming with Applicable Law); provided, however, with respect Siemens, receipt of the Final Waiver and Release of Liens and Final Claim Waiver from Siemens will be in accordance with the form and content requirements set forth in the Siemens Contract; provided further, however, with respect to Major Sub-subcontractors under Siemens, receipt of the Final Waiver and Release of Liens and Final Claim Waivers from such Major Sub-subcontractors will be in accordance with the form and content requirements set forth in the Siemens Contract. No later than thirty (30) Days after receipt by Owner of such final Invoice and all requested documentation and achieving Final Completion, Owner shall, subject to its rights to withhold payment under this Agreement, pay Contractor the balance of the Contract Price, including any remaining Retainage.

7.4 Payments Not Acceptance of Work. No payment made hereunder by Owner shall be considered as approval or acceptance of any Work by Owner or a waiver of any claim or right Owner may have hereunder. All payments shall be subject to correction or adjustment in subsequent payments.

7.5 Payments Withheld. In addition to disputed amounts set forth in an Invoice, Owner may, in addition to any other rights under this Agreement, at law or in equity, withhold payment on an Invoice or a portion thereof in an amount and to such extent as may be reasonably necessary to protect Owner from loss due to:

A. Defective Work not remedied in accordance with this Agreement;

B. liens or other encumbrances on all or a portion of the Site, the Work or the Facility, which are filed by any Subcontractor, any Sub-subcontractor or any other Person acting through or under any of them;

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C. any material breach by Contractor of this Agreement;

D. the assessment of any fines or penalties against Owner as a result of Contractor’s failure to comply with Applicable Law or Applicable Codes and Standards;

E. a discovery that a Payment Milestone or other Work associated with a prior payment was not in fact achieved, or that Work associated with a prior Payment Milestone contained Defective Work;

F. amounts paid by Owner to Contractor in a preceding Month incorrectly or for which there was insufficient or inaccurate supporting information;

G. Liquidated Damages which Contractor owes under the terms of this Agreement;

H. failure of Contractor to make payments to Subcontractors as required under their respective Subcontracts;

I. failure of Contractor to comply with its monthly progress reporting obligations and scheduling obligations under this Agreement, including as set forth in Sections 3.19A.4, 5.4 and 5.5; or

J. any other reason for which Owner is entitled to withhold payment under this Agreement.

Owner shall pay Contractor the amount withheld if Contractor (i) pays, satisfies or discharges the applicable claim of Owner against Contractor under or by virtue of this Agreement and provides Owner with reasonable evidence of such payment, satisfaction or discharge, (ii) cures all such breaches and Defaults in the performance of this Agreement, or (iii) provides Owner with a standby letter of credit reasonably satisfactory to Owner in the amount of the withheld payment. Owner’s failure to withhold in the event of any of the circumstances described in this Section shall not be deemed to be a waiver of any of Owner’s rights under this Agreement, including Owner’s right to withhold at any time one of the circumstances in Section 7.5A through 7.5J exists.

7.6 Substitution for Retainage; Release of Retainage.

A. Substitution for Retainage. In Contractor’s sole discretion, Contractor may elect to substitute an irrevocable standby letter of credit, in a form acceptable to Owner in its reasonable discretion, in the amount of *** in lieu of Owner withholding Retainage under this Agreement (which such amount of the substitute letter of credit shall be adjusted as the EPC Payment Milestone portion of the Contract Price is adjusted by Change Order). If Contractor makes such an election, Owner shall release any Retainage previously withheld upon receipt of such letter of credit in a form acceptable to Owner and shall thereafter not collect Retainage under this Agreement. The letter of credit provided pursuant to this Section 7.6A shall be issued by a commercial bank in the United States with a long term rating of at least Investment Grade and shall be issued in a form substantially similar to that in Schedule R-1, and Contractor shall replace any substitute

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letter of credit, with a letter of credit that meets the requirements of this Section 7.6A, within three (3) Business Days in the event that such commercial bank’s long term rating falls below Investment Grade. Owner shall have the same rights to collect on this substitute letter of credit, upon Owner’s demand, as is set forth in Section 10.2, in the event Contractor fails to timely provide a replacement letter of credit for (i) a substitute letter of credit that is to expire within thirty (30) Days or (ii) a substitute letter of credit issued by a bank that is no longer Investment Grade. In addition, Owner shall have the right to collect upon the substitute letter of credit, upon Owner’s demand, in any instance under this Agreement where Owner is able to (a) withhold or offset payments otherwise due and owing to Contractor, including under Sections 7.5, 12.5B and 14.3, or (b) collect on the Contractor Letter of Credit pursuant to Section 10.2.

B. Release of Retainage at Substantial Completion. Within thirty (30) Days after Substantial Completion and receipt of an Invoice therefor, Owner shall, subject to its right to withhold under this Agreement, release to Contractor all Retainage withheld under this Agreement except for that portion of the Retainage that is equal to ***. In the event Contractor has elected, pursuant to Section 7.6A, to issue a substitute letter of credit in lieu of having Retainage withheld, such substitute letter of credit shall be reduced in value to ***.

7.7 Interest on Late Payments. Any amounts due but not paid hereunder shall bear interest at the lesser of (i) an annual rate equal to ***, or (ii) the maximum rate permitted under Applicable Law.

7.8 Payments During Default. Owner shall not be obligated to make any payments hereunder or payments withheld, at any time in which a Contractor Default shall have occurred and is continuing.

7.9 Offset. Owner may, upon prior written notice to Contractor, offset any amount due and payable from Contractor to Owner against any amount due and payable to Contractor hereunder.

7.10 Currency. Unless otherwise specified, all amounts contained herein are in and shall be paid in U.S. Dollars.

ARTICLE 8

TAXES

8.1 Taxes Generally. The Contract Price includes all Taxes which arise out of or are related to the performance of the Work and Contractor shall be responsible for timely paying all such Taxes; provided, however, Owner shall reimburse Contractor for California sales and use Taxes incurred in the procurement of any Siemens Equipment as well as any interest or penalties which may be imposed by a Governmental Instrumentality at any time on Contractor due to Owner’s failure to timely reimburse Contractor for California sales and use Taxes incurred in the procurement of any Siemens Equipment. Owner’s obligation shall survive termination or completion of the Agreement and shall end only upon the completion of any time period allowed for audit or investigation by applicable Governmental Instrumentalities. To the extent Owner

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timely reimburses Contractor for all such California sales and use Taxes for Siemens Equipment, (1) Contractor shall release Owner of any further obligations for payment of such California sales and use Taxes and (2) Contractor shall be responsible for the payment of any interest or penalties related to Contractor’s failure to timely pay such California sales and use Taxes. Owner and Contractor will provide documents, information and data, make submission to Governmental Instrumentalities, and otherwise cooperate as reasonably necessary to minimize the amount of California sales and use Taxes payable for the Siemens Equipment. In the event that Contractor is audited for California sales and use Taxes for the Siemens Equipment, Contractor shall timely inform Owner of such audit, allow Owner to assist with audit strategy and, at Owner’s expense, allow Owner to take responsibility for defending the audit, protest or appeal based on mutually satisfactory arrangements. Contractor shall reasonably cooperate with Owner to assist in attempting to allocate local and district California sales and use Taxes to the Site (which may include Contractor applying for a jobsite sub-permit), including reasonable assistance in causing local California sales and use Taxes to be assigned to the Site rather than to Contractor’s (or any Subcontractor’s) regular place of business in California. Contractor will reasonably cooperate with any joint refund claim that Owner, or its agents, wishes to file for potentially overpaid California sales and use Taxes up to a period of three (3) years after Substantial Completion or until the running of the applicable statute of limitations, whichever is longer.

8.2 California Revenue Taxes. Notwithstanding Section 8.1, if a Change in Law occurs relating to the method in or the rate at which revenue received by Contractor through payments made by Owner under this Agreement is taxed by the State of California or other local California taxing jurisdiction (collectively, “California Revenue Taxes”), Contractor or Owner, as applicable, shall be entitled to a Change Order to adjust the Contract Price (upwards or downwards, as applicable) solely to reflect the net impact of the imposition of the California Revenue Taxes, accounting for any reduction in the Contractor’s Taxes attributable to changes in Applicable Law occurring after the Effective Date that have reduced Contractor’s Taxes in the State of California arising out of the performance of the Work (excluding those Taxes reimbursed by Owner pursuant to Section 8.1). Notwithstanding Section 3.13B, Owner shall have all audit rights necessary to develop or review a proposed Change Order related to this Section 8.2. In addition, either Party may, at its sole expense, employ an independent accounting firm to review the changes to Contractor’s Tax liability in the context of this Section 8.2 and opine as to the amount of any Contract Price adjustment available under this Section 8.2; provided that such opinion shall not be binding upon either Party. In the event the Parties cannot agree upon the adjustment to the Contract Price due under this Section 8.2, such Dispute shall be resolved in accordance with Article 19.

ARTICLE 9

TITLE AND RISK OF LOSS

9.1 Title.

A. Clear Title. Contractor warrants and guarantees that legal title to and ownership of the Work and the Facility shall be free and clear of any and all liens, claims, security interests or other encumbrances when title thereto passes to Owner.

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B. Title to Work. Title to all or any portion of the Work (other than Work Product) shall pass to Owner upon the earlier of (i) payment by Owner therefor, (ii) incorporation of such Work into the Facility or (iii) storage at the Site. Transfer of title to Work shall be without prejudice to Owner’s right to reject Defective Work, or any other right in the Agreement.

9.2 Risk of Loss.

A. Prior to Substantial Completion. ***

B. After Substantial Completion. ***

ARTICLE 10

INSURANCE AND PERFORMANCE SECURITY

10.1 Insurance.

A. Provision of Insurance. The Parties shall provide the insurance as specified in Attachment O on terms and conditions stated therein.

B. Failure to Provide Required Insurance. IN THE EVENT THAT LIABILITY FOR ANY LOSS OR DAMAGE IS DENIED BY THE UNDERWRITER OR UNDERWRITERS IN WHOLE OR IN PART DUE TO THE VITIATION OF SAID INSURANCE RESULTING FROM AN ACT OR OMISSION BY CONTRACTOR, OR FOR ANY OTHER REASON ATTRIBUTABLE TO CONTRACTOR, OR IF CONTRACTOR FAILS TO MAINTAIN ANY OF THE INSURANCE HEREIN REQUIRED, THEN CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD THE OWNER GROUP HARMLESS AGAINST ALL LOSSES WHICH WOULD OTHERWISE HAVE BEEN COVERED BY SAID INSURANCE.

10.2 Contractor Letter of Credit. ***

10.3 Contractor’s Parent Guarantee. Within five (5) Days after the Effective Date, Contractor shall provide to Owner an irrevocable, unconditional corporate guarantee from Kiewit Construction Company, in the form of Schedule Z-1, in favor of Owner and guaranteeing all of Contractor’s obligations and liabilities under this Agreement for the full duration of Contractor’s obligation and liabilities under this Agreement. Contractor shall not be entitled to any compensation under the Agreement unless and until Contractor provided the foregoing corporate guarantee to Owner in accordance with this Section 10.3.

10.4 Owner’s Letter of Credit. ***

10.5 Owner’s Parent Guarantee. Upon issuance of the GTG LNTP, Owner shall provide Contractor with an irrevocable, unconditional corporate guarantee from Mirant Corporation, in the form of Schedule Z-2, in favor of Contractor, in an amount not to exceed ***, guaranteeing Owner’s payment of the Kiewit Termination Charge in the event of (i) a termination for convenience of this Agreement by Owner or (2) a termination of this Agreement by Contractor pursuant to Section 17.5.

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ARTICLE 11

OWNERSHIP OF DOCUMENTATION

11.1 Ownership of Work Product. Owner and Contractor acknowledge that during the course of, and as a result of, the performance of the Work and prior work related to the Facility done by Contractor for Owner (including any work done by Contractor or any of its Affiliates under the MOU), Contractor or its Affiliates, Subcontractors or Sub-subcontractors will create or have created for the Facility certain written materials, plans, Drawings, Specifications, calculations, Books and Records, computer files, or other tangible manifestations of Contractor’s and its Subcontractors’ and Sub-subcontractors’ efforts related to the Work (whether hard copies or electronic copies, but excluding Computer Programs) (hereinafter individually or collectively referred to as “Work Product”). Owner shall own the hard and electronic copies of any Work Product delivered or required to be delivered by Contractor to Owner under the Agreement irrespective of any copyright notices or confidentiality legends which may have been placed in or on such Work Product. Notwithstanding the foregoing, as between Owner and Contractor, Contractor shall retain ownership of all proprietary intellectual property rights owned, created, developed or delivered by Contractor during the performance of the Work or otherwise (including any such proprietary intellectual property embedded in the Work Product) (hereinafter referred to as “Contractor’s Intellectual Property”), and nothing in this Section 11.1 shall result in a transfer of ownership of any Contractor’s Intellectual Property or the proprietary intellectual property owned and developed by Contractor’s Subcontractors or Sub-subcontractors (“Third Party Proprietary Work Product”). With respect to such Contractor’s Intellectual Property and Third Party Proprietary Work Product relating to the Work or the Facility, Contractor hereby grants Owner an irrevocable, perpetual, non-exclusive and royalty-free license (including with the right to assign its rights in accordance with Owner’s assignment rights set forth in Section 22.7) to use, modify and copy such Contractor’s Intellectual Property and Third Party Proprietary Work Product solely for purposes of operating, maintaining, completing, repairing or modifying any part of the Facility and any interfaces between the Facility and the Mirant Delta Facility. All Subcontracts and Sub-subcontractors shall contain provisions consistent with this Section 11.1.

11.2 Computer Programs.

A. Contractor grants to Owner an irrevocable, non-exclusive, and royalty-free license (including with right to assign its rights in accordance with Owner’s assignment rights set forth in Section 22.7) to use Computer Programs for operating, maintaining, completing or repairing the Work; provided, however, that any modification of the Computer Program is either (a) required by Applicable Law, (b) necessary to resolve a Defect or ensure proper operation and maintenance of the Facility or (c) recommended by Siemens. The foregoing license rights granted to Owner shall be no greater than the license rights in such Computer Programs available to Siemens, but shall at all times be sufficient for Owner to operate, maintain and repair the Facility. The term of such license shall extend until the decommissioning or abandonment of the Facility by Owner, its Affiliate or current owner.

B. The license described in this Section 11.2 does not grant any right to the background technology from which the Computer Program was generated or to the source code underlying the Computer Program. Owner is not granted any right to create

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derivative works or modify the Computer Programs or merge it with other Computer Programs (except to the extent reasonably necessary to operate, maintain or repair the Facility).

11.3 Owner Provided Documents. All written materials, plans, drafts, specifications, computer files or other documents (if any) prepared or furnished by Owner, its Affiliates or any of Owner’s other consultants or contractors shall at all times remain the property of Owner, and Contractor shall not make use of any such documents or other media for any other project or for any other purpose than as set forth herein. All such documents and other media, including all copies thereof, shall, at Contractor’s option, either be returned to Owner or destroyed upon the earlier of the end of the Defect Correction Period and termination of this Agreement.

ARTICLE 12

COMPLETION AND PERFORMANCE LIQUIDATED DAMAGES

12.1 Notice and Requirements for Pre-Commissioning and Mechanical Completion.

A. Notice of Intent to Commence Pre-Commissioning. Contractor shall give Owner not less than sixty (60) Days’ prior written notice of its intention to commence any pre-commissioning activities required for Mechanical Completion, and, on the tenth (10^th) Day immediately prior to Contractor’s commencing such pre-commissioning activities, Contractor shall provide a second written notice to Owner. Contractor shall comply with all pre-commissioning activities required for Mechanical Completion set forth in this Agreement, including those requirements set forth in the definition of the term Mechanical Completion and those set forth in Attachments A and V.

B. Requirements of Mechanical Completion. No later than three hundred sixty (360) Days after the issuance of the NTP, Contractor shall provide to Owner for its review and comment detailed Mechanical Completion requirements, in the form of checklists, for each applicable system or subsystem of the Facility. Once Contractor has incorporated all of Owner’s comments to the Mechanical Completion checklists (to the extent such comments are consistent with the concepts embodied by Mechanical Completion), such Mechanical Completion checklists shall form a part of the requirements for achieving Mechanical Completion for each system or subsystem of the Facility, as applicable. Contractor shall comply with all requirements for Mechanical Completion set forth in this Agreement, including those requirements set forth in the definition of the term Mechanical Completion, Attachment A and Attachment V and the Mechanical Completion checklists agreed by Owner and Contractor pursuant to this Section. At such time as each system or subsystem of the Facility, as applicable, has achieved Mechanical Completion, Contractor shall certify to Owner in the form of Attachment L for Mechanical Completion of such system or subsystem (“Mechanical Completion Certificate”) that all requirements under this Agreement for Mechanical Completion of such system or subsystem, as applicable, have occurred, including all of the requirements specified in the applicable Mechanical Completion checklist have been completed. The Mechanical Completion Certificate shall be accompanied by all other supporting documentation as may be required to establish that the requirements for Mechanical Completion have been met.

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12.2 Notice and Requirements for Substantial Completion. Contractor shall comply with all requirements for Substantial Completion herein, including as set forth in the definition of the term Substantial Completion herein and in Attachment A, Attachment S and Attachment T. Contractor shall give Owner not less than ninety (90) Days’ prior written notice of its intention to commence the initial Performance Tests. Final test procedures shall be determined in accordance with Attachment S for the conduct of the Performance Tests, including the application of corrective curves as set forth in Attachment S. Contractor shall provide labor, equipment, supplies, and all other items necessary for the conduct of the Performance Tests; provided, however, that Owner shall provide operating personnel and natural gas fuel and power in accordance with Sections 4.4 and 4.7. Upon achieving all requirements under this Agreement for Substantial Completion, Contractor shall certify to Owner in the form of Attachment M (“Substantial Completion Certificate”) that all of the requirements under this Agreement for Substantial Completion have occurred. The Substantial Completion Certificate shall be accompanied by all supporting documentation required to establish that the requirements for Substantial Completion have been met.

12.3 Owner Acceptance of Mechanical Completion and Substantial Completion. Owner shall notify Contractor whether it accepts or rejects a Mechanical Completion Certificate or the Substantial Completion Certificate, as the case may be, within ten (10) Business Days following Owner’s receipt thereof. All Work shall continue during pendency of Owner’s review. Acceptance of such Mechanical Completion or Substantial Completion Certificate shall be evidenced by Owner’s signature on such Mechanical Completion or Substantial Completion Certificate, which shall be forwarded to Contractor with such notice. If Owner does not agree that Mechanical Completion or Substantial Completion, as the case may be, has occurred, then Owner shall state the basis for its rejection in reasonable detail in a written notice provided to Contractor. The Parties shall thereupon promptly and in good faith confer and make all reasonable efforts to resolve such issue. In the event such issue is not resolved within ten (10) Business Days after the delivery by Owner of its notice, Owner and Contractor shall resolve the Dispute in accordance with the dispute resolution procedures provided for under Article 19 herein. Owner’s acceptance shall not relieve Contractor of any of its obligations to perform the Work in accordance with the requirements of this Agreement.

12.4 Minimum Acceptance Criteria as a Condition of Substantial Completion. As a condition of achieving Substantial Completion, each and every Unit shall achieve all Minimum Acceptance Criteria as described in greater detail in this Section 12.4. The Performance Tests for determining whether a Unit achieves the Minimum Acceptance Criteria are described in Attachment S and Attachment T.

A. Minimum Acceptance Criteria Not Achieved. In the event that any Unit fails to achieve any of the Minimum Acceptance Criteria, as evidenced by the Performance Test results, then (i) Substantial Completion shall not occur and (ii) the provisions of Section 14.1 shall apply after the Guaranteed Substantial Completion Date passes without achievement of Substantial Completion. In addition to the foregoing, Contractor shall attempt for a period of one hundred eighty (180) Days (commencing on the date on which the Unit was shown, through the Performance Tests, to have failed to achieve one or more of the Minimum Acceptance Criteria) (“Minimum Acceptance Criteria Correction Period”) to correct the Work to enable the Unit to achieve all of the Minimum Acceptance

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Criteria. If the Unit has not achieved all of the Minimum Acceptance Criteria upon the termination of the Minimum Acceptance Criteria Correction Period, then Owner may, in its sole discretion, either (i) grant Contractor an additional Minimum Acceptance Criteria Correction Period under the same terms and conditions as the first, including the application of Section 14.1, or (ii) terminate Contractor for Default, in which case Owner shall be entitled to any and all damages, losses, costs and expenses to the extent permitted under Section 17.1. If, on the other hand, the Unit has achieved all of the Minimum Acceptance Criteria during the Minimum Acceptance Criteria Correction Period (or during the second period, should Owner elect that option), then Contractor shall remain liable to Owner for Substantial Completion Delay Liquidated Damages pursuant to the Agreement and any other damages, costs or expenses for which Contractor is responsible hereunder.

B. Access During Minimum Acceptance Criteria Correction Period. During any Minimum Acceptance Criteria Correction Period, Owner shall provide Contractor with access to the Work sufficient to perform its curative Work under this Agreement, subject to any reasonable security or safety requirements of Owner; provided, however, Owner shall be under no obligation to provide any access to Contractor that would interfere with the operation of the Mirant Delta Facility; provided further, however, if the Guaranteed Substantial Completion Date has passed and thereafter if Owner denies Contractor access to the Unit (or Units) that have failed to meet the Minimum Acceptance Criteria to the extent necessary for Contractor to perform its curative Work, then Contractor shall not be liable for Substantial Completion Delay Liquidated Damages for each Day that Owner so denies Contractor such access for performance of curative Work. Contractor shall provide at least one (1) week’s prior written notice to Owner if performance of the curative Work could interfere with the operation of the Mirant Delta Facility, in which case Owner may place reasonable limitations on Contractor’s access to the Facility such that performance of the Work will cause no disruption to the operation of the Mirant Delta Facility.

C. Delivery of Critical Spare Parts. Notwithstanding the timing of the delivery of operating spare parts under Section 3.4, Contractor shall deliver all Critical Spare Parts no later than the date upon which Contractor achieves Substantial Completion; provided, however, delivery of such Critical Spare Parts shall not be a condition of achievement of Substantial Completion by Contractor. Nevertheless, if Contractor fails to deliver any such Critical Spare Part by Substantial Completion, and thereafter such Critical Spare Part is necessary in order for the Facility to be fully available for commercial operation (as required by CAISO and/or NERC standards), then Contractor shall be liable to Owner for Substantial Completion Delay Liquidated Damages for each Day the Facility is not fully available as a result of such failure to provide such Critical Spare Part until such Critical Spare Part is delivered to the Facility. Such Substantial Completion Delay Liquidated Damages will be assessed in the same manner as if Contractor failed to achieve Substantial Completion by the Guaranteed Substantial Completion Date in accordance with Section 14.1, with the amount of the Substantial Completion Delay Liquidated Damages to be assessed against Contractor (on a per Day basis) being dependent upon the month(s) in which the Facility is not fully available for commercial operation due to the lack of such Critical Spare Part. For purposes of clarity, and by way of example and explanation only, if Contractor failed to timely provide a Critical Spare Part and the

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Facility was not fully available for commercial operation during the month of June due to the lack of such Critical Spare Part, then Contractor would be assessed Substantial Completion Delay Liquidated Damages in accordance with the amounts set forth in Section 14.1D.

12.5 Punchlist.

A. Punchlist for Mechanical Completion. Prior to Mechanical Completion for each system or subsystem of the Facility, as applicable, Owner and Contractor shall inspect such Work, and Contractor shall prepare a proposed Punchlist of items identified as needing to be completed or corrected as a result of such inspection. Contractor shall promptly provide the proposed Punchlist to Owner for its review, together with an estimate of the time necessary to complete or correct each Punchlist item. Contractor shall add to the proposed Punchlist any Punchlist items that are identified by Owner during its review, and Contractor shall immediately initiate measures to complete or correct, as appropriate, any item on Contractor’s proposed Punchlist that Owner, in the exercise of its reasonable judgment, believes must be completed or corrected so that such Work will achieve Mechanical Completion. Upon Contractor’s completion or correction of any items necessary to achieve Mechanical Completion, such Punchlist shall govern Contractor’s performance of the Punchlist items for such system or subsystem of the Facility, as applicable, up to Substantial Completion.

B. Punchlist for Substantial Completion. After Mechanical Completion of the Facility and prior to Substantial Completion, Owner and Contractor shall inspect the entire Work, and Contractor shall prepare an updated and revised proposed Punchlist of items identified as needing to be completed or corrected as a result of such inspection. Contractor shall promptly provide the proposed, updated and revised Punchlist to Owner for its review and written approval, together with an estimate of the time and cost necessary to complete or correct each Punchlist item. Contractor shall add to the proposed, updated and revised Punchlist any Punchlist items that are identified by Owner during its review, and Contractor shall immediately initiate measures to complete or correct, as appropriate, any item on Contractor’s proposed, updated and revised Punchlist or otherwise that Owner in the exercise of its reasonable judgment, believes must be completed or corrected to achieve Substantial Completion. Upon Contractor’s completion or correction of any items necessary to achieve Substantial Completion and Owner’s written approval of Contractor’s proposed Punchlist (such approval not to be unreasonably withheld), such Punchlist shall govern Contractor’s performance of the Punchlist items up to Final Completion. All Work on the Punchlist shall be completed within ninety (90) Days after achievement of Substantial Completion, or Owner may, in addition to any other rights that it may have under this Agreement, at law or in equity, complete such Punchlist Work at the expense of Contractor. In the event Owner elects to complete such Punchlist Work, Contractor shall immediately pay Owner (directly or by offset, at Owner’s sole discretion) all costs and expenses incurred in performing such Punchlist Work. Upon Contractor’s request, Owner shall provide documentation identifying the costs incurred to perform such Punchlist Work.

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12.6 Notice and Requirements for Final Completion. Final Completion shall be achieved when all requirements for Final Completion under this Agreement, including those set forth in the definition of Final Completion under Section 1.1, have been satisfied. Upon Final Completion, Contractor shall certify to Owner in the form of Attachment N (“Final Completion Certificate”) that all of the requirements under this Agreement for Final Completion have occurred. Owner shall notify Contractor whether it accepts or rejects the Final Completion Certificate within fifteen (15) Days following Owner’s receipt thereof. Acceptance of such certificate shall be evidenced by Owner’s signature on such certificate, which shall be forwarded to Contractor with such notice. If Owner does not agree that Final Completion has occurred, then Owner shall state the basis for its rejection in reasonable detail in a written notice provided to Contractor. The Parties shall thereupon promptly and in good faith confer and make all reasonable efforts to resolve such issue. In the event such issue is not resolved within ten (10) Business Days of the delivery by Owner of its notice, Owner and Contractor shall resolve the Dispute in accordance with the dispute resolution procedures provided for under Article 19; provided, however, if such deficiencies relate to the failure to complete Punchlist items, Owner may, in addition to any other rights that it may have under this Agreement, at law or in equity, complete such Punchlist Work at the expense of Contractor in accordance with Section 12.5.

12.7 Performance Guarantees as a Condition of Final Completion. As a condition of achieving Final Completion, each and every Unit shall achieve all Performance Guarantees and the Starting Reliability Requirement as described in greater detail in this Section 12.7. The Performance Tests for determining whether a Unit achieves the Performance Guarantees and the Starting Reliability Requirement are described in Attachment S and Attachment T.

A. Performance Guarantees Not Achieved. In the event that any Unit meets all of the Minimum Acceptance Criteria but fails to achieve one or more of the Performance Guarantees, as evidenced by the Performance Test results, then, at Contractor’s election, Contractor shall, with respect to each Performance Guarantee not achieved: (i) pay (directly, by offset, or by collection on the Contractor Letter of Credit, at Owner’s sole discretion) to Owner the applicable Performance Liquidated Damages for such Performance Guarantee; or (ii) take corrective actions to achieve such Performance Guarantee, provided that in the event such corrective actions do not result in the achievement of such Performance Guarantee within one hundred eighty (180) Days after achievement of Substantial Completion (or such longer period as Owner may allow), then Contractor shall pay (directly, by offset, or by collection on the Contractor Letter of Credit, at Owner’s sole discretion) to Owner the applicable Performance Liquidated Damages; provided further, however, in Owner’s reasonable discretion and in lieu of Contractor’s decision to pay Performance Liquidated Damage pursuant to clause (i) or (ii) above, Owner may require Contractor to perform curative Work in an attempt to achieve the failed Performance Guarantee(s), in which case all reasonable, direct costs incurred by Contractor in the performance of the curative Work, up to the value of the foregone Performance Liquidated Damages, shall be borne by Contractor and all reasonable, direct costs incurred by Contractor thereafter for the curative Work shall be reimbursed by Owner. The Performance Liquidated Damages shall be calculated in accordance with Attachment T.

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B. Access During Performance of Curative Work. During any period of time in which Contractor is attempting to perform curative Work to achieve the Performance Guarantees as set forth in Section 12.7A, Owner shall provide Contractor with reasonable access to the applicable Unit sufficient for Contractor to perform its curative Work, subject to any reasonable security or safety requirements of Owner; provided, however, Owner shall be under no obligation to provide any access to Contractor that would interfere with the operation of the Facility or the Mirant Delta Facility; provided further, however, that if Owner denies Contractor reasonable access to the applicable Unit, then Contractor shall be entitled to an extension to the 180-Day period set forth in Section 12.7A for each Day that Owner so denies Contractor such reasonable access. Any such extension shall be set forth in a Change Order executed by the Parties. Contractor shall provide at least one (1) week’s prior written notice to Owner if performance of the curative Work could interfere with the operation of the Facility or the Mirant Delta Facility, in which case Owner, in its sole discretion, may place reasonable limitations on Contractor’s access to the Facility such that performance of the Work will cause no disruption to the operation of the Facility or the Mirant Delta Facility at the Site and no unreasonable loss of revenue to Owner.

C. Starting Reliability Requirement. In the event that any Unit fails to achieve the Starting Reliability Requirement, as evidenced by the Performance Test results for the Starting Reliability Requirement, then such failure shall be considered a Defect in accordance with Article 13 and Contractor and Owner shall have the rights and obligations set forth therein with respect to correcting such Defect. For the avoidance of doubt, achievement of the Starting Reliability Requirement is a material obligation under the Agreement.

12.8 ***

12.9 Partial Occupancy and Use. Prior to Contractor’s achieving Substantial Completion, Owner may occupy or use all or any portion of the Work then capable of functioning safely, provided that such occupancy or use is authorized by the Governmental Instrumentality and Owner’s insurance company or companies providing property insurance and builder’s risk coverage have consented to such partial occupancy or use. Contractor shall assist Owner and take reasonable steps in obtaining consent of the insurance company or companies and applicable Government Instrumentalities. Immediately prior to such partial occupancy or use, Owner and Contractor shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work and all personnel and environmental safety aspects of the Work. Such occupancy or use shall not in any way release Contractor or any surety of Contractor from any obligations or liabilities pursuant to this Agreement, including the obligation to engineer, procure and construct the Facility in accordance with all requirements of this Agreement; provided, however, Contractor shall be entitled to a Change Order for an extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, and adjustment to the Contract Price, to the extent Owner’s partial occupancy or use of the Facility delays the prosecution or completion of the Work, or increases Contractor’s cost of performing the Work, and Contractor satisfies the requirements for such time extension and Contract Price adjustment pursuant to Section 6.8. Such occupancy or use shall not be deemed to be an acceptance by Owner of such portion of the Facility.

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12.10 Long-Term Obligations. No acceptance by Owner of any or all of the Work or any other obligations of Contractor under this Agreement, including acceptance of Mechanical Completion, Substantial Completion or Final Completion, nor any payment made hereunder, whether an interim or final payment, shall in any way release Contractor or any surety of Contractor from any obligations or liability pursuant to this Agreement, including obligations with respect to unperformed obligations of this Agreement or for any Work that does not conform to the requirements of this Agreement, including Warranty obligations, any liabilities for which insurance is required or any other responsibility of Contractor, including the payment of any and all fines and penalties assessed as a result of Contractor’s failure to comply with any Applicable Law. It is expressly understood and agreed by the Parties that nothing in this Article 12 shall in any way modify or alter Contractor’s obligations under Article 13 and Article 14 hereof.

ARTICLE 13

WARRANTY AND CORRECTION OF WORK

13.1 Warranty.

A. General. The warranties set forth in this Article 13 (collectively, the “Warranty” or “Warranties”) are in addition to any of the Minimum Acceptance Criteria or Performance Guarantees set forth in this Agreement. Any Work, or component thereof, that is not in conformity with any Warranty is defective (“Defective”) and contains a defect (“Defect”).

B. Warranty of Work. Contractor hereby warrants that the Work, including Equipment, and each component thereof shall be:

1. new, complete, and of suitable grade for the intended function and use;

2. in accordance with all of the requirements of this Agreement, including in accordance with GECP, Applicable Law and Applicable Codes and Standards;

3. free from encumbrances to title, as set forth in greater detail in Section 9.1; and

4. free from defects in design, material and workmanship.

C. Assignment and Enforcement of Subcontractor Warranties. Contractor shall, without additional cost to Owner, obtain warranties from Subcontractors and Sub-subcontractors that meet or exceed the requirements of this Agreement; provided, however, Contractor shall not in any way be relieved of its responsibilities and liability to Owner under this Agreement, regardless of whether such Subcontractor or Sub-subcontractor warranties meet the requirements of this Agreement, as Contractor shall be fully responsible and liable to Owner for its Warranty and Corrective Work obligations and liability under this Agreement for all Work. All such warranties shall be deemed to run to the benefit of Owner and Contractor. Such warranties, with duly executed instruments assigning the warranties to Owner, shall be delivered to Owner upon Substantial

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Completion. All warranties provided by any Subcontractor or Sub-subcontractor shall be in such form as to permit direct enforcement by Contractor or Owner against any Subcontractor or Sub-subcontractor whose warranty is called for, and Contractor agrees that: (i) Contractor’s Warranty, as provided under this Article 13, shall apply to all Work regardless of the provisions of any Subcontractor or Sub-subcontractor warranty, and such Subcontractor or Sub-subcontractor warranties shall be in addition to, and not a limitation of, such Contractor Warranty; (ii) Contractor is jointly and severally liable with such Subcontractor or Sub-subcontractor with respect to such Subcontractor or Sub-subcontractor warranty; and (iii) service of notice on Contractor that there has been a breach of a Subcontractor or Sub-subcontractor warranty shall be sufficient to invoke the terms of the instrument. This Section 13.1C shall not in any way be construed to limit Contractor’s liability under this Agreement for the entire Work or its obligation to enforce Subcontractor warranties.

D. Exceptions to Warranty. The Warranty excludes remedy, and Contractor shall have no liability to Owner, for damage or defect to the extent caused by: (i) improper repairs or alterations, misuse, neglect or accident by Owner; (ii) operation, maintenance or use of Work or any component thereof in a manner not in compliance with a material requirement of operation and maintenance manuals delivered by Contractor to Owner; or (iii) normal wear and tear.

13.2 Inspection.

A. General Rights. All Work shall be subject to inspection by Owner, Lender and either of their representatives at all times to determine whether the Work conforms to the requirements of this Agreement. Contractor shall furnish Owner, Lender and either of their representatives with access to all locations where Work is in progress, including locations not on the Site. Prior to Substantial Completion, if any Work is Defective, then Contractor shall, at its own expense, promptly correct such Defective Work and any other portions of the Facility damaged or affected by such Defective Work, whether by repair, replacement or otherwise (including any and all obligations in connection with such repair, modification, re-performance or replacement, such as in and out costs, transportation costs, and any other costs necessary to fully correct the Work). Subject to Contractor’s right to pursue a dispute under Article 19, the decision of Owner shall be conclusive as to whether the Work is conforming or Defective, and Contractor shall comply with the instructions of Owner in all such matters while pursuing any such dispute. If it is later determined that the Work was not Defective, then Owner shall reimburse Contractor for all costs incurred in connection with such repair or replacement and a Change Order shall be issued for such amount and shall address any impact the repair or replacement may have had on the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable. If Contractor fails, after a reasonable period of time not to exceed one (1) week, to repair or replace any Defective Work, or to commence to repair or replace any Defective Work and thereafter continue to proceed diligently to complete the same, then Owner may repair or replace such Defective Work and the expense thereof shall be paid by Contractor (whether directly, by offset, or collection on the Contractor Letter of Credit, at Owner’s sole discretion).

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B. Witness Points. Contractor shall provide Owner a proposed list of witness points for each item of Equipment for Owner’s review and prior written approval no later than thirty (30) Days’ after placement of the applicable Subcontract for such item of Equipment (or, with respect to the Siemens Contract, thirty (30) Days after the Effective Date), and Owner shall notify Contractor which of the witness points it or its Lenders’ representatives wish to witness. Contractor shall provide Owner with at least five (5) Business Days’ prior written notice of the actual scheduled date of each of the tests Owner has indicated it or its Lenders’ representatives wish to witness. Contractor shall cooperate with Owner if Owner or its Lenders’ representatives elect to witness any additional tests, and Contractor acknowledges that Owner and its Lenders’ representatives shall have the right to witness all tests being performed in connection with the Work. Owner’s rights of inspection (and the rights given to the Lenders’ representatives) as set forth herein apply only to their witnessing of witness points for Equipment and shall not be construed to imply a limitation on Owner’s right to inspect any portion on the Work (including Equipment) at any time in accordance with this Agreement.

C. No Obligation to Inspect. Owner’s or Lender’s right to conduct inspections under Sections 13.2A and 13.2B shall not obligate Owner or Lender to do so. Neither the exercise of Owner or Lender of any such right, nor any failure on the part of Owner or Lender to discover or reject Defective Work shall be construed to imply an acceptance of such Defective Work or a waiver of such Defect.

D. Cost of Disassembling. The cost of disassembling, dismantling or making safe finished Work for the purpose of inspection, and reassembling such portions (and any delay associated therewith) shall be borne by Owner if such Work is found to conform with the requirements of this Agreement and by Contractor if such Work is found to be Defective.

13.3 Correction of Work After Substantial Completion. If, after Substantial Completion but prior to the expiration of the Defect Correction Period, any Work is found to be Defective, Contractor shall, at its sole cost and expense, immediately and on an expedited basis (i) correct such Defective Work, whether by repair, replacement or otherwise, as determined by Contractor (including any and all obligations in connection with such repair, modification, re-performance or replacement of the Defect, such as in and out costs, transportation costs, and any other costs necessary to fully correct the Defective Work) and (ii) subject to Contractor’s limitations of liability set forth in Section 9.2B, correct, and, if Owner performs any or all of the correction, be liable for Owner’s costs and expenses to correct, any other portions of the Facility damaged or affected by such Defective Work, whether by repair, replacement or otherwise (collectively, clauses (i) and (ii) shall be the “Corrective Work”). Owner shall provide Contractor with access to the Facility sufficient to perform its Corrective Work, so long as such access does not unreasonably interfere with the construction or operation of the Facility or the Mirant Delta Facility and subject to any reasonable security or safety requirements of Owner. In the event Contractor utilizes spare parts owned by Owner in the course of performing the Corrective Work, Contractor shall supply Owner free of charge with new spare parts equivalent in quality and quantity to all such spare parts used by Contractor as soon as possible following the utilization of such spare parts.

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A. Owner Right to Correct or Complete Defective Work. If Contractor fails to commence the Corrective Work within a reasonable period of time not to exceed ten (10) Days, or does not complete such Corrective Work on an expedited basis, then Owner, by written notice to Contractor, may (in addition to any other remedies that it has under this Agreement) correct such Defective Work, and Contractor shall be liable to Owner for all reasonable costs and expenses incurred by Owner in connection with correcting such Defective Work and arising out of or relating to such Defective Work and shall pay Owner (directly, by offset or by collection on the Contractor Letter of Credit, at Owner’s sole discretion) an amount equal to such reasonable costs and expenses; provided, however, if such Defective Work materially affects the construction, operation or use of any of the Work or the Facility or the Mirant Delta Facility or presents an imminent threat to the safety or health of any Person and Owner knows of such Defective Work, Owner may (in addition to any other remedies that it has under this Agreement) correct such Defective Work without giving prior written notice to Contractor (but shall give prompt notice to Contractor thereafter), and, in such event, Contractor shall be liable to Owner for all reasonable costs and expenses incurred by Owner in connection with correcting such Defective Work and arising out of or relating to such Defective Work and shall pay Owner (directly, by offset or by collection on the Contractor Letter of Credit, at Owner’s sole discretion) an amount equal to such reasonable costs and expenses (which costs and expenses shall be adequately documented and supported by Owner).

B. Standards for Corrective Work. All Corrective Work shall be performed subject to the same terms and conditions under this Agreement as the original Work is required to be performed. Any change to parts or Equipment that would alter the requirements of this Agreement may be made only with prior written approval of Owner.

C. Subject to Section 13.4, nothing contained in this Section 13.3 shall be construed to establish a period of limitation with respect to other obligations which Contractor might have under the Agreement.

13.4 Exclusivity. ***

13.5 Assignability of Warranties. The Warranties made in this Agreement shall be for the benefit of Owner and its successors and assigns and the respective successors and assigns of any of them, and are fully transferable and assignable.

ARTICLE 14

SUBSTANTIAL COMPLETION DELAY LIQUIDATED DAMAGES AND PAYMENT OF LIQUIDATED DAMAGES

14.1 Delay in Substantial Completion. If Substantial Completion for the Facility occurs after the Guaranteed Substantial Completion Date, Contractor shall pay to Owner delay liquidated damages (the “Substantial Completion Delay Liquidated Damages”) in the amounts for each full Day of delay until Substantial Completion occurs: ***.

14.2 Suspension or Cessation of Substantial Completion Delay Liquidated Damages. Notwithstanding the assessment of Substantial Completion Delay Liquidated Damages

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in accordance with Section 14.1, but subject always to the assessment of Substantial Completion Delay Liquidated Damages in accordance with Section 12.4C, Substantial Completion Delay Liquidated Damages shall cease to accrue, even though Substantial Completion has not yet been achieved, (i) on an on-going, permanent basis starting upon the earlier of the Day that (a) Owner is notified in writing by PG&E that PG&E has certified the Facility to have achieved commercial operation under the power purchase agreement between Owner and PG&E or (b) the Facility has been placed in commercial operation (for operation other than for commissioning, testing or tuning), whether under the power purchase agreement between Owner and PG&E or any other commercial arrangement, for more than one hundred (100) Equivalent Operating Hours in the aggregate and (ii) on a temporary basis, for any particular Day in which the Facility is placed into commercial operation (for operation other than for commissioning, testing or tuning) under the power purchase agreement between Owner and PG&E or any other commercial arrangement.

14.3 Payment of Liquidated Damages. With respect to any Liquidated Damages that accrue, Owner, at its sole discretion, may either (i) invoice Contractor for such owed Liquidated Damages, and within thirty (30) Days of Contractor’s receipt of such invoice, Contractor shall pay Owner Liquidated Damages, (ii) withhold from Contractor amounts that are otherwise due and payable to Contractor in the amount of such Liquidated Damages, or (iii) collect on the Contractor Letter of Credit in the amount of such Liquidated Damages.

ARTICLE 15

CONTRACTOR’S REPRESENTATIONS

Contractor represents and warrants that:

15.1 Corporate Standing. It is a corporation duly organized, validly existing and in good standing under the laws of Delaware, is authorized and qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would have a material adverse effect on its financial condition, operations, prospects, taxes or business.

15.2 No Violation of Law; Litigation. It is not in violation of any Applicable Law or judgment entered by any Governmental Instrumentality, which violations, individually or in the aggregate, would affect its performance of any obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Instrumentality, now pending or (to the best knowledge of Contractor) threatened against Contractor that, if adversely determined, could reasonably be expected to have a material adverse effect on the financial condition, operations, prospects or business, as a whole, of Contractor, or its ability to perform under this Agreement.

15.3 Licenses. It is the holder of, or will take the necessary action to obtain, all Permits required for Contractor to obtain under this Agreement or otherwise necessary to permit it to operate or conduct its business as contemplated by this Agreement.

15.4 No Breach. Neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated or compliance with the terms and provisions hereof will conflict with or result in a breach of, or require any consent under, the

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charter or by-laws of Contractor, or any Applicable Law or regulation, or any order, writ, injunction or decree of any court, or any agreement or instrument to which Contractor is a party or by which it is bound or to which it or any of its property or assets is subject, or constitute a default under any such agreement or instrument.

15.5 Corporate Action. It has all necessary power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by Contractor of this Agreement has been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by Contractor and constitutes a legal, valid and binding obligation of Contractor enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights generally.

15.6 Financial Solvency. It is financially solvent, able to pay all debts as they mature and possesses sufficient working capital to complete the Work and perform its obligations hereunder.

ARTICLE 16

OWNER’S REPRESENTATIONS

Owner represents and warrants that:

16.1 Corporate Standing. It is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would have a material adverse effect on its financial condition, operations, prospects or business.

16.2 No Violation of Law; Litigation. It is not in violation of any Applicable Law, or judgment entered by any Governmental Instrumentality, which violations, individually or in the aggregate, would affect its performance of any obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Instrumentality, now pending or (to the best knowledge of Owner) threatened against Owner that, if adversely determined, could reasonably be expected to have a material adverse effect on the financial condition, operations, prospects or business, as a whole, of Owner, or its ability to perform under this Agreement.

16.3 Licenses. It is the holder of, or will take the necessary action to obtain, all Permits required for Owner to obtain under this Agreement.

16.4 No Breach. Neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated or compliance with the terms and provisions hereof and thereof will conflict with or result in a breach of, or require any consent under, the operating agreement or by-laws of Owner, any Applicable Law, any order, writ, injunction or decree of any court, or any agreement or instrument to which Owner is a party or by which it is bound or to which it or any of its property or assets is subject, or constitute a default under any such agreement or instrument.

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16.5 Corporate Action. It has all necessary power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by Owner of this Agreement has been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by Owner and constitutes a legal, valid and binding obligation of Owner enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights generally.

ARTICLE 17

DEFAULT, TERMINATION AND SUSPENSION

17.1 Default by Contractor.

A. Events of Default. If Contractor shall at any time (i) materially fail to prosecute the Work in accordance with the Agreement; (ii) abandon the Work; (iii) fail to comply with Sections 10.2, 10.3, 12.4A, 22.7, or 22.8; (iv) fail to maintain insurance required under this Agreement; (v) fail to discharge liens filed by any Subcontractor or Sub-subcontractor as required under this Agreement; (vi) cause, by any action or omission, any material stoppage or delay of or interference with the work or operations of Owner or its other contractors or subcontractors; (vii) have a material violation of Applicable Law or Applicable Codes and Standards; (viii) materially fail to comply with any provision of this Agreement; (ix) fail to develop a Recovery Schedule in accordance with Section 5.5; (x) after a Recovery Schedule is implemented in accordance with Section 5.5, (a) update the Monthly Updated CPM Schedule showing completion of any remaining Key Milestone to be delayed beyond the applicable Key Milestone Date by more than the number of Days set forth in column 4 of Attachment E for such Key Milestone or (b) fail to provide an updated Monthly Updated CPM Schedule to the Owner in accordance with the Agreement and Owner notifies Contractor in writing that it has reasonably determined (based upon objective criteria) that achievement of any Key Milestone will be delayed beyond the applicable Key Milestone Date by more than the number of Days set forth in column 4 of Attachment E for such Key Milestone; (xi) fail to complete a Key Milestone within the number of Days set forth in column 4 of Attachment E after the passing of the applicable Key Milestone Date; or (xii) itself, or Kiewit Construction Company, becomes insolvent, has a receiver appointed, makes a general assignment or filing for the benefit of its creditors or files for bankruptcy protection, or be unable to pay its debts when due (each of the foregoing in clauses (i) through (xii) being a “Default”), then Owner may provide Contractor with written notice that Contractor is in Default; provided, however, Contractor shall not be considered in Default under clause (x) or (xi) above if Contractor can reasonably demonstrate to Owner, via the Monthly Updated CPM Schedule developed in accordance with the requirements of this Agreement (including GECP), that Contractor will achieve Substantial Completion no later than the number of Days set forth in column 4 of Attachment E beyond the Guaranteed Substantial Completion Date for the Key Milestone in column 1 of Attachment E which has been missed (per clause (xi) above) or which is scheduled to be missed (per clause (x) above); provided further, however, if two or more Key Milestones are delayed such that Contractor would otherwise be considered in Default in accordance with clause (x) or (xi) above, then the longest applicable duration in column 4 of Attachment E for the delayed Key Milestones shall determine the number of

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Days within which Contractor must reasonably demonstrate to Owner that Substantial Completion will be achieved after the Guaranteed Substantial Completion Date in order to avoid being considered in Default under this Section 17.1A. ***.

B. Cure Period for Defaults and Termination for Default. With respect to a Default under any of clauses (i), (ii), (iv), (vi), (vii), (viii) and (ix) in Section 17.1A, and following Owner’s written notice to Contractor specifying the general nature of such Default, Contractor shall cure such Default within thirty (30) Days, or if the Default cannot be cured with the exercise of reasonable diligence within such thirty (30) Days, Contractor shall immediately commence corrective action and cure such Default as expeditiously as feasible given the nature of the Default and the cure. If (i) Contractor fails to cure a Default occurring under any of the aforementioned clauses in accordance with the preceding sentence, or (ii) Contractor is in Default pursuant to clause (iii), (v), (x), (xi) or (xii) of Section 17.1A, then Owner, at its sole discretion and without prejudice to any other rights that it has under this Agreement, at law or in equity and without further notice to Contractor, may (1) take such steps as are necessary to overcome the Default condition, in which case Contractor shall be liable to Owner for any and all costs, damages, losses and expenses (including all attorneys’ fees, consultant fees and litigation expenses) incurred by Owner in connection therewith, (2) terminate for Default Contractor’s performance of all or any part of the Work, or (3) seek specific performance or interlocutory mandatory injunctive relief requiring performance of Contractor’s obligations, it being agreed by Contractor that such relief may be necessary to avoid irreparable harm to Owner. Notwithstanding the foregoing, if the Guaranteed Substantial Completion Date has passed, Contractor shall not be considered in Default pursuant to clause (x) or (xi) of Section 17.1A as long as Contractor is paying Substantial Completion Delay Liquidated Damages and has not reached its limitation of liability for such Substantial Completion Delay Liquidated Damages pursuant to Section 21.2A; provided, however, that after Contractor has paid Substantial Completion Delay Liquidated Damages up to the limitation of liability set forth in Section 21.2A, or if Contractor fails to pay Substantial Completion Delay Liquidated Damages when due, and Substantial Completion has not been achieved, Owner shall have the right to declare Contractor in Default pursuant to clause (x) or (xi) of Section 17.1A (as applicable).

C. Additional Rights of Owner Upon Termination. In the event that Owner terminates this Agreement for Default in accordance with Section 17.1A, Owner may, at its sole option, (i) enter onto the Site and, for the purpose of completing the Work, take possession of the information, documents and Books and Records for the Work, (ii) take assignment of any or all of the Subcontracts, and/or (iii) complete the Work either itself or through others. Contractor shall leave all third-party rented equipment, materials, tools, supplies, scaffolding, machinery and other items at the Site in place upon a termination in accordance with Section 17.1A unless otherwise requested by Owner and shall cooperate with such third-party rentors in the assignment of the rental Subcontract to Owner. If the unpaid balance of the Contract Price shall exceed all damages, costs, losses and expenses incurred by Owner (including all attorneys’ fees, consultant fees and litigation expenses, costs to complete the Work, Liquidated Damages and any and all damages for failure of performance and cost of financing or interest on such expense from the date such expense was incurred by Owner at the rate specified in Section 7.7), then such excess shall be paid

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by Owner to Contractor, but such amount shall not be paid until after Final Completion has been achieved. If such amount incurred by Owner shall exceed the unpaid balance of the Contract Price, then, at Owner’s sole option, Contractor shall pay Owner the difference on demand, or Owner shall have the right and authority to offset or collect on the Contractor Letter of Credit in the amount of such difference. While subject to Contractor’s limitations of liability under Article 21, Contractor’s liability under this Section 17.1C is in addition to any other liability provided for under this Agreement and Owner shall have the right and authority to set off against and deduct from any such excess due Contractor by Owner any other liability of Contractor to Owner under this Agreement. Owner agrees to act reasonably to mitigate any costs it might incur in connection with any termination for Default. In the event of a termination for Default, the Parties agree that Owner shall be entitled to any and all damages, losses, costs and expenses incurred by Owner arising out of or resulting from such Default, including any and all Liquidated Damages; provided that Contractor’s aggregate liability shall apply to the extent provided by Section 21.1. If Contractor is terminated for Default pursuant to Section 17.1, the Parties agree that, for purposes of this Section 17.1C, and with respect to Substantial Completion that was not achieved by Contractor prior to such termination, Substantial Completion Delay Liquidated Damages owed by Contractor to Owner shall be based on the date that the substitute contractor achieved Substantial Completion.

D. Erroneous Termination for Default. If any termination for Default by Owner is found to be not in accordance with the provisions of this Agreement or is otherwise deemed to be unenforceable, then such termination for Default shall be deemed to be a termination for convenience as provided in Section 17.2.

E. Obligations Upon Termination. Upon termination for Default, Contractor shall (i) immediately discontinue Work on the date and to the extent specified in the notice, (ii) place no further orders for Subcontracts, Equipment, or any other items or services except as may be necessary for completion of such portion of the Work as is not discontinued, (iii) inventory, maintain and leave on-Site all third-party equipment, machinery, materials, tools, supplies and scaffolding rented by Contractor or provided by Owner for performance of the terminated Work, (iv) promptly make every reasonable effort to procure assignment or cancellation upon terms satisfactory to Owner of all Subcontracts and rental agreements to the extent they relate to the performance of the Work that is discontinued; (v) cooperate with Owner in the transfer of Work Product, including Drawings and Specifications, Permits, licenses and any other items or information and disposition of Work in progress so as to mitigate damages; (vi) if requested by Owner in writing, assign the PLA to Owner or such other Person as directed by Owner; (vii) comply with other reasonable requests from Owner regarding the terminated Work; (viii) thereafter execute only that portion of the Work not terminated (if any) and that portion of the Work as may be necessary to preserve and protect Work already in progress and to protect Equipment at the Site or in transit thereto, and to comply with any Applicable Law and any Applicable Codes and Standards; and (ix) perform all other obligations under Section 17.1C.

17.2 Termination for Convenience by Owner. Owner shall have the right to terminate for convenience Contractor’s performance of all or any part of the Work by providing Contractor

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with a written notice of termination, to be effective upon receipt by Contractor. Upon termination for convenience, Contractor shall (i) immediately discontinue the Work on the date and to the extent specified in such notice, (ii) place no further orders for Subcontracts, Equipment, or any other items or services except as may be necessary for completion of such portion of the Work as is not discontinued, (iii) promptly make every reasonable effort to procure cancellation upon terms satisfactory to Owner of all Subcontracts and rental agreements to the extent they relate to the performance of the Work that is discontinued unless Owner elects to take assignment of any such Subcontracts, (iv) assist Owner in the maintenance, protection, and disposition of Work in progress, (v) cooperate with Owner for the efficient transition of the Work, (vi) cooperate with Owner in the transfer of Work Product, including Drawings and Specifications, Permits, licenses and any other items or information and disposition of Work in progress, (vii) if requested by Owner in writing, assign the PLA to Owner or such other Person as directed by Owner and (viii) thereafter execute only that portion of the Work not terminated (if any) and that portion of the Work as may be necessary to preserve and protect Work already in progress and to protect Equipment at the Site or in transit thereto, and to comply with any Applicable Law and Applicable Codes and Standards and Owner may, at its sole option, take assignment of any or all of the Subcontracts. Contractor shall be entitled to receive payment for: (1) if the Siemens Contract is terminated, the Siemens Termination Payment; plus (2) the difference between (A) the Work Cost (as defined below) and (B) the amounts Contractor has previously been paid under the Agreement for EPC Payment Milestones, including any down payments made by Owner (other than down payments made by Owner on account of the Siemens Contract) (this difference in clause (2) being the “Kiewit Termination Charge”). In no event shall Contractor be entitled to receive any amount for unabsorbed overhead, contingency, risk or anticipatory profit. Contractor shall submit its accounting of the Kiewit Termination Charge to Owner for verification and audit within sixty (60) Days following the effective date of termination. If no Work has been performed by Contractor at the time of termination, Contractor shall be paid the sum of One Hundred U.S. Dollars (U.S.$100) for its undertaking to perform. The Siemens Termination Payment and Kiewit Termination Payment shall be Owner’s sole liability to Contractor in the event of a termination under this Section 17.2.

A. The “Work Cost” shall mean the sum of (i) that part of the EPC Payment Milestone portion of the Contract Price that has been properly invoiced by Contractor under this Agreement for Work allocated to EPC Payment Milestones completed in accordance herewith prior to termination (as such amounts may be limited by the maximum cumulative payment amounts for which Contractor is able to invoice to Owner in a given Month for the EPC Payment Milestones, as further set forth in Schedule C-3) plus (ii) the Demobilization and Subcontract Cancellation Cost. The “Demobilization and Subcontract Cancellation Cost” shall mean the documented and reasonable costs (plus a profit of ***) incurred by Contractor to demobilize from the Site plus actual cancellation charges incurred by Contractor on any Subcontract terminated as a result of the terminated Work, all of which Contractor shall use commercially reasonable efforts to minimize; provided, however, notwithstanding the foregoing, the Demobilization and Subcontract Cancellation Cost shall not exceed the Maximum Demobilization and Subcontract Cancellation Cost set forth in Schedule C-3 as determined by the Month in which the Agreement is terminated. For purposes of clarity, in the event of a termination for convenience under Section 17.2 and with respect to the invoices provided by Contractor pursuant to clause (i) above for EPC Payment Milestones completed prior to termination,

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such invoices may include an invoice submitted by Contractor promptly after termination which accounts for EPC Payment Milestones completed between the last regularly submitted invoice and the date of termination.

17.3 Suspension of Work. Owner may, for any reason, at any time and from time to time, by written Owner-directed or mutual Change Order, suspend the carrying out the Work or any part thereof, whereupon Contractor shall suspend the carrying out of such suspended Work for such time or times and in such manner as Owner may require and shall take reasonable steps to minimize any costs associated with such suspension; provided, however, with respect to any suspension of Work being performed under the Siemens Contract, the Parties acknowledge that such suspension of Work shall be subject to the conditions on suspension set forth in Section 10.2.2 of the Siemens Contract and Contractor’s directives to, or agreements with, Siemens with respect to suspension of any Work under the Siemens Contract shall be subject to Owner’s written approval. During any suspension, Contractor shall properly protect and secure such suspended Work in accordance with GECP. Unless otherwise instructed by Owner, Contractor shall during any such suspension maintain its staff and labor on or near the Site and otherwise be ready to proceed expeditiously with the Work upon receipt of Owner’s further instructions. Except where such suspension ordered by Owner is the result of or due to the fault or negligence of Contractor or any Subcontractor or Sub-subcontractor, Contractor shall be entitled to the reasonable costs (including actual, but not unabsorbed, overhead, contingency, escalation, and risk and a profit of ***) of such suspension, including demobilization and remobilization costs, if necessary, along with appropriate supporting documentation to evidence such costs, and a time extension to the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date, as applicable, if and to the extent permitted under Section 6.8. Upon receipt of notice to resume suspended Work, Contractor shall immediately resume performance of the Work to the extent required in the notice; provided, however, with respect to resumption of suspended Work being performed under the Siemens Contract, such resumption of Work shall be further subject to the conditions and considerations set forth in Section 10.2.2 of the Siemens Contract. In no event shall Contractor be entitled to any additional profits or damages due to such suspension.

17.4 Suspension by Contractor. Notwithstanding anything to the contrary in this Agreement, Contractor shall have the responsibility at all times to prosecute the Work diligently and shall not suspend, stop or cease performance hereunder or permit the prosecution of the Work to be delayed; provided, however, subject to Owner’s right to withhold or offset payment to Contractor under this Agreement, if Owner fails to pay undisputed amounts due and owing to Contractor, and Owner has failed to cure such failure within fifteen (15) Days following Contractor’s written notice to Owner to cure such failure, Contractor may suspend performance of the Work until Contractor receives such undisputed amounts.

17.5 Termination by Contractor. Contractor may terminate this Agreement if, continuing at the time of such termination, Contractor has stopped the performance of all Work under this Agreement pursuant to Section 17.4 for thirty (30) Days, and after the expiration of such thirty (30) Day period, Contractor gives Owner written notice specifying the nature of the default and its intent to terminate the Agreement, and Owner fails to cure such default within fifteen (15) Days after receipt of Contractor’s notice. In addition, if Owner has suspended all Work pursuant to Section 17.3 and such suspension has lasted beyond three hundred sixty five (365) Days, Contractor shall have the right, upon written notice to Owner, to terminate the Agreement. In the

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event of any such termination under this Section 17.5, Contractor shall have the rights (and Owner shall make the payments) provided for in Section 17.2 in the event of an Owner termination for convenience. Contractor’s sole rights to terminate this Agreement are set forth in Sections 17.5 and 17.6.

17.6 Termination in the Event of Extended Force Majeure. If a Force Majeure occurring after issuance of NTP causes Contractor to suspend performance of all the Work for a period exceeding *** Days, either Party may, upon thirty (30) Days prior written notice to the other Party stating its intentions, terminate the Agreement. Termination of the Agreement in accordance with this Section 17.6 shall cause the Parties to have the rights and obligations as if such termination was initiated pursuant to Section 17.2; provided, however, and notwithstanding anything to the contrary, Owner shall not be responsible for the Siemens Termination Payment or the Kiewit Termination Charge in the event of a termination in accordance with this Section 17.6, and Contractor’s sole remedy, and Owner’s sole obligations, with respect to payment for such termination shall be payment for the Work performed, up to the date of termination, in accordance with Section 7.2.

ARTICLE 18

INDEMNITIES

18.1 General Indemnification. IN ADDITION TO ITS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS CONTAINED ELSEWHERE IN THIS AGREEMENT, CONTRACTOR SHALL FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND OWNER GROUP FROM ANY AND ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL FINES AND PENALTIES AS WELL AS ATTORNEYS’ FEES, CONSULTANT FEES AND LITIGATION EXPENSES) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RESULTING FROM OR RELATED TO ANY OF THE FOLLOWING:

A. ACTUAL OR ALLEGED FAILURE OF CONTRACTOR OR ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS TO COMPLY WITH APPLICABLE LAW, APPLICABLE CODES AND STANDARDS OR SAFETY PROCEDURES UNDER THIS AGREEMENT;

B. ACTUAL OR ASSERTED VIOLATION OR INFRINGEMENT OF ANY DOMESTIC OR FOREIGN PATENTS, COPYRIGHTS OR TRADEMARKS OR OTHER INTELLECTUAL PROPERTY, OR ANY IMPROPER USE OF CONFIDENTIAL INFORMATION OR OTHER PROPRIETARY RIGHTS THAT MAY BE ATTRIBUTABLE TO CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR IN CONNECTION WITH THE WORK;

C. SUBJECT TO OWNER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 18.2B AND 18.2C, ACTUAL OR ALLEGED CONTAMINATION, SPILL, RELEASE, DISCHARGE, POLLUTION OR OTHERWISE OF THE LAND OR WATER ARISING OUT OF ACTS OR OMISSIONS OF CONTRACTOR’S OR ANY SUBCONTRACTOR’S OR SUB-SUBCONTRACTOR’S USE, HANDLING OR DISPOSAL OF HAZARDOUS MATERIALS DURING THE PERFORMANCE OF THE WORK AND ANY ENVIRONMENTAL DAMAGE OF ANY OTHER NATURE TO THE EXTENT ARISING FROM THE ACTS OR OMISSIONS OF CONTRACTOR OR ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS;

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D. SUBJECT TO OWNER’S LIABILITIES SET FORTH IN SECTION 4.5, CLAIMS BY ANY GOVERNMENTAL INSTRUMENTALITY AS A RESULT OF A FAILURE BY CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR TO PAY TAXES IN ACCORDANCE WITH ARTICLE 8; OR

E. PERSONAL INJURY TO OR DEATH OF ANY PERSON, OR DAMAGE TO OR DESTRUCTION OF PROPERTY OF ANY PERSON (EXCLUDING THE WORK AND CONTRACTOR’S OR ANY SUBCONTRACTOR’S OR SUB-SUBCONTRACTOR’S CONSTRUCTION EQUIPMENT) ARISING OUT OF OR RELATING TO THE WORK OR THE FACILITY TO THE EXTENT CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM OR ANYONE FOR WHOSE ACTS THEY MAY BE LIABLE; ***.

18.2 Owner Indemnification. IN ADDITION TO ITS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS CONTAINED ELSEWHERE IN THIS AGREEMENT, OWNER SHALL FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND CONTRACTOR GROUP FROM ANY AND ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL FINES AND PENALTIES AS WELL AS ATTORNEYS’ FEES, CONSULTANT FEES AND LITIGATION EXPENSES) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RESULTING FROM OR RELATED TO ANY OF THE FOLLOWING:

A. PERSONAL INJURY TO OR DEATH OF ANY PERSON, OR DAMAGE TO OR DESTRUCTION OF PROPERTY OF ANY PERSON (EXCLUDING THE WORK AND CONTRACTOR’S OR ANY SUBCONTRACTOR’S OR SUB-SUBCONTRACTOR’S CONSTRUCTION EQUIPMENT) ARISING OUT OF OR RELATING TO THE WORK OR THE FACILITY TO THE EXTENT CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF OWNER GROUP OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM OR ANYONE FOR WHOSE ACTS THEY MAY BE LIABLE;

B. PRE-EXISTING HAZARDOUS MATERIALS AT THE SITE, EXCEPT TO THE EXTENT CONTRACTOR, OR ANY OF ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS, KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE PRESENCE OF SUCH HAZARDOUS MATERIALS AND THROUGH ITS NEGLIGENT ACTION EXACERBATED SUCH PRE-EXISTING HAZARDOUS MATERIALS; OR

C. THIRD PARTY CLAIMS ARISING OUT OF ANY HAZARDOUS MATERIALS BROUGHT ONTO AND MAINTAINED ON THE SITE BY CONTRACTOR OR ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS IN ACCORDANCE WITH THIS AGREEMENT AND THEREAFTER RELEASED BY OWNER (OR ANY PERSON FOR WHOM OWNER IS RESPONSIBLE OR WHO IS ACTING ON ITS BEHALF, OTHER THAN CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR) IN VIOLATION OF APPLICABLE LAW, APPLICABLE CODES AND STANDARDS OR OWNER’S ENVIRONMENTAL OR SAFETY REQUIREMENTS. “THIRD PARTY” AS USED IN THIS SECTION 18.2C SHALL ANY PERSON OTHER THAN A MEMBER OF OWNER GROUP OR CONTRACTOR GROUP.

18.3 Patent and Copyright Indemnification. IN THE EVENT THAT ANY SUIT, CLAIM, TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION IS GRANTED IN CONNECTION WITH

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SECTION 18.1B, CONTRACTOR SHALL, AT ITS OWN EXPENSE AND IN ADDITION TO ITS OBLIGATION UNDER SECTION 18.1B, MAKE EVERY REASONABLE EFFORT, BY GIVING A SATISFACTORY BOND OR OTHERWISE, TO SECURE THE SUSPENSION OF THE INJUNCTION OR RESTRAINING ORDER. IF, IN ANY SUCH SUIT OR CLAIM, THE WORK, THE FACILITY, OR ANY PART, COMBINATION OR PROCESS THEREOF, IS HELD TO CONSTITUTE AN INFRINGEMENT AND ITS USE IS PRELIMINARILY OR PERMANENTLY ENJOINED, CONTRACTOR SHALL PROMPTLY MAKE EVERY REASONABLE EFFORT TO SECURE FOR OWNER A LICENSE, AT NO COST TO OWNER, AUTHORIZING CONTINUED USE OF THE INFRINGING WORK. IF CONTRACTOR IS UNABLE TO SECURE SUCH A LICENSE WITHIN A REASONABLE TIME, CONTRACTOR SHALL, AT ITS OWN EXPENSE AND WITHOUT IMPAIRING PERFORMANCE REQUIREMENTS, EITHER REPLACE THE AFFECTED WORK, IN WHOLE OR PART, WITH NON-INFRINGING COMPONENTS OR PARTS OR MODIFY THE SAME SO THAT THEY BECOME NON-INFRINGING.

18.4 Lien Indemnification. SHOULD ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OR ANY OTHER PERSON ACTING THROUGH OR UNDER CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR FILE A LIEN, STOP NOTICE OR OTHER ENCUMBRANCE AGAINST ALL OR ANY PORTION OF THE WORK, THE SITE OR THE FACILITY, CONTRACTOR SHALL, AT ITS SOLE COST AND EXPENSE, REMOVE AND DISCHARGE, BY PAYMENT, BOND OR OTHERWISE, SUCH LIEN, STOP NOTICE OR ENCUMBRANCE WITHIN FIFTEEN (15) DAYS OF THE FILING OF SUCH LIEN, STOP NOTICE OR ENCUMBRANCE. IF CONTRACTOR FAILS TO REMOVE AND DISCHARGE ANY SUCH LIEN, STOP NOTICE OR ENCUMBRANCE WITHIN SUCH FIFTEEN (15) DAY PERIOD, THEN OWNER MAY, IN ITS SOLE DISCRETION AND IN ADDITION TO ANY OTHER RIGHTS THAT IT HAS UNDER THIS AGREEMENT, AT LAW OR EQUITY, TAKE ANY ONE OR MORE OF THE FOLLOWING ACTIONS:

A. REMOVE AND DISCHARGE SUCH LIEN, STOP NOTICE AND ENCUMBRANCE USING WHATEVER MEANS THAT OWNER, IN ITS SOLE DISCRETION, DEEMS APPROPRIATE, INCLUDING THE PAYMENT OF SETTLEMENT AMOUNTS THAT IT DETERMINES IN ITS SOLE DISCRETION AS BEING NECESSARY TO DISCHARGE SUCH LIEN, STOP NOTICE OR ENCUMBRANCE. IN SUCH CIRCUMSTANCE, CONTRACTOR SHALL BE LIABLE TO OWNER FOR ALL DAMAGES, COSTS, LOSSES AND EXPENSES (INCLUDING ALL ATTORNEYS’ FEES, CONSULTANT FEES AND LITIGATION EXPENSES, AND SETTLEMENT PAYMENTS) INCURRED BY OWNER ARISING OUT OF OR RELATING TO SUCH REMOVAL AND DISCHARGE. ALL SUCH DAMAGES, COSTS, LOSSES AND EXPENSES SHALL BE PAID BY CONTRACTOR NO LATER THAN THIRTY (30) DAYS AFTER RECEIPT OF EACH INVOICE FROM OWNER;

B. SEEK AND OBTAIN AN ORDER GRANTING SPECIFIC PERFORMANCE FROM A COURT OF COMPETENT JURISDICTION, REQUIRING THAT CONTRACTOR IMMEDIATELY DISCHARGE AND REMOVE, BY BOND, PAYMENT OR OTHERWISE, SUCH LIEN, STOP NOTICE OR ENCUMBRANCE. THE PARTIES EXPRESSLY AGREE THAT OWNER SHALL BE ENTITLED TO SUCH SPECIFIC PERFORMANCE AND THAT CONTRACTOR SHALL BE LIABLE TO OWNER FOR ALL DAMAGES, COSTS, LOSSES AND EXPENSES (INCLUDING ALL ATTORNEYS’ FEES, CONSULTANT FEES AND LITIGATION EXPENSES) INCURRED BY OWNER ARISING OUT OF OR RELATING TO SUCH SPECIFIC PERFORMANCE ACTION. CONTRACTOR AGREES THAT THE FAILURE TO DISCHARGE AND REMOVE ANY SUCH LIEN, STOP NOTICE OR ENCUMBRANCE WILL GIVE RISE TO IRREPARABLE INJURY TO OWNER AND OWNER’S AFFILIATES, AND FURTHER, THAT OWNER AND SUCH OWNER AFFILIATES WILL NOT BE ADEQUATELY COMPENSATED BY DAMAGES;

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C. CONDUCT THE DEFENSE OF ANY ACTION IN RESPECT OF (AND ANY COUNTERCLAIMS RELATED TO) SUCH LIENS, STOP NOTICES OR ENCUMBRANCES AS SET FORTH IN SECTION 18.5, WITHOUT REGARD TO CONTRACTOR’S RIGHTS UNDER SUCH SECTION; OR

D. WITHHOLD ANY AMOUNTS OTHERWISE DUE AND OWING TO CONTRACTOR UNDER THIS AGREEMENT EQUAL TO THE AMOUNT OF THE LIEN, STOP NOTICE OR ENCUMBRANCE PLUS ALL DAMAGES, COSTS, LOSSES AND EXPENSES ARISING OUT OF SUCH LIEN OR ENCUMBRANCE, INCLUDING REASONABLE ATTORNEYS’ FEES, CONSULTANT FEES AND EXPENSES.

18.5 Legal Defense. NOT LATER THAN FIFTEEN (15) DAYS AFTER RECEIPT OF WRITTEN NOTICE FROM THE INDEMNIFIED PARTY TO THE INDEMNIFYING PARTY OF ANY CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION ASSERTED AGAINST SUCH INDEMNIFIED PARTY FOR WHICH THE INDEMNIFYING PARTY HAS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS UNDER THIS AGREEMENT, WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS ASSERTED IN A LEGAL, JUDICIAL, ARBITRAL OR ADMINISTRATIVE PROCEEDING OR ACTION OR BY NOTICE WITHOUT INSTITUTION OF SUCH LEGAL, JUDICIAL, ARBITRAL OR ADMINISTRATIVE PROCEEDING OR ACTION, THE INDEMNIFYING PARTY SHALL AFFIRM IN WRITING BY NOTICE TO SUCH INDEMNIFIED PARTY THAT INDEMNIFYING PARTY WILL INDEMNIFY, DEFEND AND HOLD HARMLESS SUCH INDEMNIFIED PARTY AND SHALL, AT THE INDEMNIFYING PARTY’S OWN COST AND EXPENSE, ASSUME ON BEHALF OF THE INDEMNIFIED PARTY AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE THEREOF WITH COUNSEL SELECTED BY THE INDEMNIFYING PARTY AND REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY; PROVIDED, HOWEVER, THAT, WITHOUT RELIEVING THE INDEMNIFYING PARTY OF ITS OBLIGATIONS HEREUNDER, THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN SELECTION, AND AT ITS OWN EXPENSE; PROVIDED FURTHER THAT IF THE DEFENDANTS IN ANY SUCH ACTION OR PROCEEDING INCLUDE THE INDEMNIFYING PARTY AND AN INDEMNIFIED PARTY AND THE INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED THAT THERE MAY BE LEGAL DEFENSES AVAILABLE TO IT WHICH ARE DIFFERENT FROM OR ADDITIONAL TO, OR INCONSISTENT WITH, THOSE AVAILABLE TO THE INDEMNIFYING PARTY, SUCH INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO SELECT SEPARATE COUNSEL TO PARTICIPATE IN THE DEFENSE OF SUCH ACTION OR PROCEEDING ON ITS OWN BEHALF AT THE REASONABLE EXPENSE OF THE INDEMNIFYING PARTY. IN THE EVENT OF THE FAILURE OF THE INDEMNIFYING PARTY TO PERFORM FULLY IN ACCORDANCE WITH THE DEFENSE OBLIGATIONS UNDER THIS SECTION 18.5, SUCH INDEMNIFIED PARTY MAY, AT ITS OPTION, AND WITHOUT RELIEVING THE INDEMNIFYING PARTY OF ITS OBLIGATIONS HEREUNDER, SO PERFORM, BUT ALL DAMAGES, COSTS AND EXPENSES (INCLUDING ALL ATTORNEYS’ FEES, CONSULTANT FEES AND LITIGATION EXPENSES, SETTLEMENT PAYMENTS AND JUDGMENTS) SO INCURRED BY SUCH INDEMNIFIED PARTY IN THAT EVENT SHALL BE REIMBURSED BY THE INDEMNIFYING PARTY TO SUCH INDEMNIFIED PARTY, TOGETHER WITH INTEREST ON SAME FROM THE DATE ANY SUCH COST AND EXPENSE WAS PAID BY SUCH INDEMNIFIED PARTY UNTIL REIMBURSED BY THE INDEMNIFYING PARTY AT THE INTEREST RATE SET FORTH IN THIS AGREEMENT.

18.6 Enforceability.

A. THE INDEMNITY, DEFENSE AND HOLD HARMLESS OBLIGATIONS FOR PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE UNDER SECTIONS 18.1E AND 18.2A SHALL APPLY REGARDLESS OF WHETHER THE OWNER GROUP WAS CONCURRENTLY

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NEGLIGENT (WHETHER ACTIVELY OR PASSIVELY), IT BEING AGREED BY THE PARTIES THAT IN THIS EVENT, THE PARTIES’ RESPECTIVE LIABILITY OR RESPONSIBILITY FOR SUCH DAMAGES, LOSSES, COSTS AND EXPENSES UNDER THIS ARTICLE 18 SHALL BE DETERMINED IN ACCORDANCE WITH PRINCIPLES OF COMPARATIVE NEGLIGENCE.

B. IN THE EVENT THAT ANY INDEMNITY PROVISIONS IN THIS AGREEMENT ARE CONTRARY TO THE LAW GOVERNING THIS AGREEMENT, THEN THE INDEMNITY OBLIGATIONS APPLICABLE HEREUNDER SHALL BE APPLIED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY ACKNOWLEDGES SPECIFIC PAYMENT OF TEN AND NO/100 U.S. DOLLARS (U.S. $10.00) AS LEGAL CONSIDERATION FOR THE INDEMNITY OBLIGATIONS AS MAY BE PROVIDED IN THIS AGREEMENT.

ARTICLE 19

DISPUTE RESOLUTION

19.1 Negotiation - Parties’ Representatives. The Parties will attempt in good faith to resolve any dispute, controversy or claim (herein referred to as “Dispute”) arising out of or relating to the Agreement (whether based on contract, tort, statute, regulation or otherwise, and including the construction, validity, interpretation, termination, enforceability or breach of the Agreement) promptly by negotiations by the Contractor Representative and Owner Representative. If a Dispute should arise, the Contractor Representative and Owner Representative will meet at least once and will attempt to resolve the Dispute. Either Representative may request, by written notice to the other, to meet within seven (7) Days at a mutually agreed time and place.

19.2 Negotiation - Senior Executives. If the Dispute has not been resolved within fifteen (15) Days after receipt of the written notice in Section 19.1 (or such other period of time as the Parties may mutually agree upon in writing), either Party may refer the Dispute, by giving written notice to the other Party, to the senior executives of the Parties who shall have authority to settle the Dispute. Thereupon, the Parties shall promptly prepare and exchange memoranda stating the issues in the Dispute and their positions, summarizing the negotiations which have taken place and attaching relevant documents. The senior executives will meet for negotiations within fifteen (15) Days after the Party’s receipt of such written notice, at a mutually agreed time and place.

19.3 Litigation. In the event that the Dispute is not resolved by negotiations by senior executives within forty-five (45) Days after receipt of the written notice for senior executive meetings pursuant to Section 19.2 (or such other time agreed upon by the Parties in writing), then the Parties agree that such Dispute shall be decided by litigation pursuant to this Section 19.3. Litigation of any Dispute shall be brought exclusively in a federal or state court located in New York County in the State of New York. Each Party hereby consents to personal jurisdiction in any legal action, suit, or proceeding brought in any federal or state court within New York County in the State of New York having subject matter jurisdiction and irrevocably waives, to the fullest extent permitted by Applicable Law and the laws of the State of New York, any claim or any objection it may now or hereafter have, that venue or personal jurisdiction is not proper with respect to any such legal action, suit, or proceeding brought in such a court in the State of New York, including any claim that such legal action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by

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registered or certified mail, postage prepaid, to such Party at its address specified herein for the giving of notices, or by such other notice given in accordance with the rules and procedures of such courts.

19.4 Continuation of Work During Dispute. Notwithstanding any Dispute, it shall be the responsibility of Contractor to continue to prosecute all of the Work diligently and in a good and workmanlike manner in conformity with this Agreement. Except to the extent provided in Sections 17.4 or 17.5, Contractor shall have no right to cease performance hereunder or to permit the prosecution of the Work to be delayed. Owner shall, subject to its right to withhold or offset amounts pursuant to this Agreement, continue to pay Contractor undisputed amounts in accordance with this Agreement; provided, however, in no event shall the occurrence of any negotiation or litigation prevent or affect Owner from exercising its rights under this Agreement, at law or in equity, including Owner’s right to terminate pursuant to Article 17.

ARTICLE 20

CONFIDENTIALITY

20.1 Contractor’s Obligations. Contractor hereby covenants and warrants that Contractor and its employees, officers, directors and agents shall not (without in each instance obtaining Owner’s prior written consent) disclose, make commercial or other use of, or give or sell to any Person any of the following information: (i) any Work Product other than to Subcontractors or Sub-subcontractors as necessary to perform the Work or (ii) any other information relating to the business, products, services, research or development, clients or customers of Owner or any Owner Affiliate, or relating to similar information of a third party who has entrusted such information to Owner or any Owner Affiliate (hereinafter individually or collectively, “Owner’s Confidential Information”). Prior to disclosing any information in (i) of this Section 20.1 to any Subcontractor or Sub-subcontractor necessary to perform the Work, Contractor shall bind such Subcontractor or Sub-subcontractor to confidentiality obligations conforming to those contained in this Article 20. Nothing in this Section 20.1 or this Agreement shall in any way prohibit Contractor or any of its Subcontractors or Sub-subcontractors from making commercial or other use of, selling, or disclosing any of their respective Contractor’s Intellectual Property or Third Party Proprietary Work Product.

20.2 Owner’s Obligations. Owner hereby covenants and warrants that Owner and its employees and agents shall not (without in each instance obtaining Contractor’s prior written consent) disclose or sell to any Person any of Contractor’s Intellectual Property, Third Party Proprietary Work Product, technical or pricing methodologies, pricing information, techniques or other information of Contractor relating to the business, products, services, research or development of Contractor which is conspicuously marked and identified in writing as confidential by Contractor (hereinafter individually or collectively, “Contractor’s Confidential Information”). The Parties agree that Owner may disclose Contractor’s Confidential Information to its Affiliates, attorneys, consultants, underwriters, a bona fide prospective purchaser of all or a portion of Owner’s or any of its Affiliates’ assets or ownership interests, a bona fide prospective assignee of all or a portion of Owner’s interest in this Agreement, prospective or actual Lenders and their representatives, rating agencies or any other party in relation to project financing for the Facility, any proposed or actual customers of the Facility (including PG&E), any Persons performing any operations, maintenance or repair activities for the Facility or involved in any

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expansions or modifications to the Facility, and, in the event of a termination of Contractor pursuant to Article 17, any substitute contractor engaged by Owner to complete the Work, provided that Owner binds such Persons (other than rating agencies) to the confidentiality obligations conforming to this Article 20.

20.3 Definitions. The term “Confidential Information” shall mean one or both of Contractor’s Confidential Information and Owner’s Confidential Information, as the context requires. The Party having the confidentiality obligations with respect to such Confidential Information shall be referred to as the “Receiving Party,” and the Party to whom such confidentiality obligations are owed shall be referred to as the “Disclosing Party.”

20.4 Exceptions. Notwithstanding Sections 20.1 and 20.2, Confidential Information shall not include: (i) information which at the time of disclosure or acquisition is in the public domain, or which after disclosure or acquisition becomes part of the public domain without violation of this Article 20; (ii) information which at the time of disclosure or acquisition was already in the possession of the Receiving Party or its employees or agents and was not previously acquired from the Disclosing Party or any of its employees or agents directly or indirectly, other than directly or indirectly disclosed or acquired through the MOU, or any other agreements between the Parties related to the Facility; (iii) information which the Receiving Party can show was acquired by such entity after the time of disclosure or acquisition hereunder from a third party without any confidentiality commitment, if, to the best of Receiving Party’s or its employees’ or agent’s knowledge, such third party did not acquire it, directly or indirectly, from the Disclosing Party or any of its employees or agents; (iv) information independently developed by the Receiving Party without benefit of the Confidential Information, but specifically excluding the Work Product; and (v) information which is required to be disclosed by Applicable Law (including under any state or federal securities laws) or in connection with securing any Permits; provided, however, that prior to such disclosure, the Receiving Party gives reasonable notice to the Disclosing Party of the information required to be disclosed.

20.5 Equitable Relief. The Parties acknowledge that in the event of a breach of any of the terms contained in this Article 20, the Disclosing Party would suffer irreparable harm for which remedies at law, including damages, would be inadequate, and that the Disclosing Party shall be entitled to seek equitable relief therefor by injunction, in addition to any and all rights and remedies available to it at law and in equity, without the requirement of posting a bond.

20.6 Term. The confidentiality obligations of this Article 20 shall survive the expiration or termination of this Agreement for a period of *** following the expiration or earlier termination of this Agreement.

20.7 Siemens Confidential Information. Notwithstanding anything to the contrary in this Article 20, the Parties agree to adhere to the confidentiality obligations set forth in Attachment BB with respect to (A) (i) the Siemens Contract and (ii) any information conspicuously marked and identified in writing as confidential by Siemens, as further described in Attachment BB (such information identified in accordance with clause (ii) being the “Siemens Confidential Information”) and (B) Owner’s Confidential Information disclosed to Siemens.

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ARTICLE 21

LIMITATION OF LIABILITY

21.1 Contractor Aggregate Liability. ***

21.2 Limitation on Contractor’s Liability for Liquidated Damages.

A. Substantial Completion Delay Liquidated Damages. Subject to Section 21.2C, Contractor’s maximum liability to Owner for Substantial Completion Delay Liquidated Damages is ***.

B. Performance Liquidated Damages. Subject to Section 21.2C, Contractor’s maximum liability to Owner for Performance Liquidated Damages is ***.

C. Exceptions to Limitations of Liability Under Section 21.2. Sections 21.2A and 21.2B shall not be construed to limit Contractor’s other obligations or liabilities under this Agreement (including (i) its obligations to complete the Work for the compensation provided under this Agreement, (ii) its obligations to achieve Substantial Completion and Final Completion and (iii) its obligations with respect to Minimum Acceptance Criteria and Warranties).

21.3 Liquidated Damages In General.

A. Liquidated Damages Not Penalty. It is expressly agreed that Liquidated Damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith for such specific Liquidated Damages and having agreed that the amount of such Liquidated Damages is reasonable in light of the anticipated harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or nonfeasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of the per Day rate of the Substantial Completion Delay Liquidated Damages and the per unit rate for the Performance Liquidated Damages on the basis that such per Day rate or per unit rate constitutes a penalty. In the event Contractor, Kiewit Construction Company, or anyone on their behalf, successfully challenges the enforceability of the per day rate of any Substantial Completion Delay Liquidated Damages or the per unit rate of any Performance Liquidated Damages on the basis of being a penalty, Contractor specifically agrees to pay Owner all actual damages incurred by Owner in connection with such breach, plus reasonable costs incurred by Owner in proving the same, without regard to any limitations whatsoever set forth in the Agreement other than (with respect to a challenge to the Substantial Completion Delay Liquidated Damages) the cap on Substantial Completion Delay Liquidated Damages specified in Section 21.2A or (with respect to a challenge to the Performance Liquidated Damages) the cap on Performance Liquidated Damages specified in Section 21.2B; provided that the reimbursement of reasonable costs incurred by Owner in proving its actual damages (as set forth above) shall not be included within the foregoing caps.

B. Liquidated Damages as Exclusive Damages. Payment of any Liquidated Damages with respect to any Work shall be in addition to, and not in lieu of, Contractor’s other obligations under this Agreement and shall in no way affect Owner’s right to

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terminate this Agreement under Article 17 or receive other Liquidated Damages or remedies contemplated in this Agreement for any other aspect of Contractor’s obligations hereunder. Notwithstanding the foregoing and without limitation of Owner’s rights under Sections 17.1 or 21.3A:

1. Substantial Completion Delay Liquidated Damages shall be the sole damages owed by Contractor for delay in achieving Substantial Completion as set forth in Section 14.1; and

2. Performance Liquidated Damages shall be the sole damages owed by Contractor for failure of the Work to achieve any of the Performance Guarantees.

21.4 Consequential Damages. ***

ARTICLE 22

MISCELLANEOUS PROVISIONS

22.1 Entire Agreement. This Agreement, including the Attachments and Schedules attached to and incorporated into this Agreement, contains the entire understanding of the Parties with respect to the subject matter hereof and incorporates any and all prior agreements and commitments with respect thereto. There are no other oral understandings, terms or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement. General or special conditions included in any of Contractor’s price lists, invoices, tickets, receipts or other such documents presented to Owner shall have no applicability to Owner with respect to this Agreement. Without limitation, this Agreement supersedes in its entirety the MOU (including the term sheet attached thereto by subsequent amendment) and any other agreements between the Parties related to the Facility. All Work performed (i) under the MOU and any other agreements between the Parties related to the Facility and (ii) by Siemens under the Siemens Contract prior to assignment to Contractor pursuant to Section 22.8 shall be governed by the terms and conditions set forth in this Agreement, and the payments made under the MOU and any other agreements between the Parties related to the Facility and by Owner under the Siemens Contract shall be deemed to have been made under this Agreement and shall be credited towards the payment of the Contract Price herein.

22.2 Amendments. Other than Owner-directed Change Orders issued by Owner to Contractor pursuant to Section 6.1C or Section 6.2D, no change, amendment or modification of this Agreement shall be valid or binding upon the Parties hereto unless such change, amendment or modification is in writing and duly executed by both Parties hereto.

22.3 Joint Effort. Preparation of this Agreement has been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the Parties than against the other.

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

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22.5 Notice. Any notice, demand, offer, or other written instrument required or permitted to be given pursuant to this Agreement shall be in writing (in English) signed by a duly authorized representative of the Party giving such notice and shall reference the Agreement and shall be sent by: (i) registered or certified mail; (ii) recognized express courier; or (iii) facsimile (followed by registered mail), to the other Party at the address set forth below and shall be effective upon delivery:

A.	If delivered to Owner:
	Mirant Marsh Landing, LLC c/o Mirant Corporation 1155 Perimeter Center West Atlanta, Georgia 30338 Attention: Mike Ammer Phone: (678) 579-5103 Email: michael.ammer@mirant.com
	with a copy to:
	Mirant Corporation 1155 Perimeter Center West Atlanta, Georgia 30338 Facsimile: 678-579-5589 Attention: Steven Nickerson
B.	If delivered to Contractor:
	Kiewit Power Constructors Co. 9401 Renner Blvd. Lenexa, Kansas 66219 Facsimile: 913-928-7214 Attention: Kevin Needham
	with a copy to:
	Kiewit Power Constructors Co. 9401 Renner Blvd. Lenexa, Kansas 66219 Facsimile: 913-928-7895 Attention: Robert Osborn

Each Party shall have the right to change the place to which notice shall be sent or delivered by sending a similar notice to the other Party in like manner.

22.6 Severability. The invalidity of one or more phrases, sentences, clauses, Sections or Articles contained in this Agreement shall not affect the validity of the remaining portions of

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this Agreement so long as the material purposes of this Agreement can be determined and effectuated.

22.7 Assignment of the Agreement. This Agreement may be assigned to other Persons only upon the prior written consent of the non-assigning Party hereto, except Owner may assign this Agreement, in whole or part and without Contractor’s consent, to Mirant Corporation, Affiliates, any co-venturers, any Person jointly controlled by Owner and any co-venturers or any purchaser of the Facility or the Work; provided that, in the event of such an assignment by Owner, either (i) the assignee shall provide a parent guarantee, otherwise in compliance with the requirements set forth in Section 10.5, from a Person which, at that time, has an equal or better credit rating than Mirant Corporation or (ii) Mirant Corporation’s parent guarantee shall continue in effect as set forth in Section 10.5 notwithstanding such assignment, and the choice of either (i) or (ii) shall be at Owner’s sole discretion. Furthermore, Owner may assign, pledge and/or grant a security interest in this Agreement to any Lender without Contractor’s consent. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee; provided that any assignment by Contractor pursuant to this Section 22.7 shall not relieve Contractor of any of its obligations or liabilities under this Agreement. Any assignment not in accordance with this Section 22.7 shall be void and without force or effect, and any attempt to assign this Agreement in violation of this provision shall grant the non-assigning Party the right, but not the obligation, to terminate this Agreement at its option for Default.

22.8 Assignment of the Siemens Contract. Contractor acknowledges that one of Owner’s primary considerations in entering into this Agreement with Contractor is Contractor’s willingness to be fully responsible for, and assume all liabilities arising out of, the Siemens Contract and the work performed by Siemens thereunder. As such, on the Effective Date and concurrently with the execution of this Agreement, Contractor shall take assignment of the Siemens Contract (including the Siemens Corporation parent guarantee) from Owner and assume all responsibilities, obligations and liabilities thereto, including being bound by all releases, limitations of liability, indemnities and other protections afforded to Siemens under the Siemens Contract. Accordingly, Owner hereby assigns and transfers to Contractor all of Owner’s rights, title and interest in and to, and all obligations, responsibilities, rights and liabilities related to, the Siemens Contract, and Contractor hereby agrees to accept and assume, and does hereby accept and assume, the assignment and transfer to Contractor of the Siemens Contract. The Siemens Equipment shall be deemed to be Equipment provided by Contractor under this Agreement, and Contractor shall assume full responsibility and liability to Owner for such Siemens Equipment and the acts and omissions of Siemens (including with respect to any Minimum Acceptance Criteria, Performance Guarantees or Warranty obligations) without any exceptions whatsoever. Without limiting the foregoing in any way, after taking assignment of the Siemens Contract, Contractor shall not enter into any change orders or amendments, or otherwise waive or modify any rights of Contractor or obligations of Siemens, under the Siemens Contract without Owner’s prior written approval (such approval not to be unreasonably withheld). In addition, under no circumstances shall Contractor terminate, or assign to another Person, all or any portion of the Siemens Contract or the work to be performed thereunder without Owner’s prior written approval, and any such termination or assignment without Owner’s prior written approval shall be considered a Default under this Agreement.

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A. Contractor Parent Guarantee for Siemens. Upon assignment of the Siemens Contract to Contractor in accordance with Section 22.8, Contractor will provide a parent guarantee from Kiewit Construction Company, in a form acceptable to Contractor and Siemens, in favor of Siemens guaranteeing the payment of the Siemens Termination Payment in accordance with the Siemens Contract.

22.9 No Waiver. Any failure of either Party to enforce any of the provisions of this Agreement or to require compliance with any of its terms at any time during the term 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 such Party thereafter to enforce any and each such provisions.

22.10 Governing Law. THIS AGREEMENT, INCLUDING THE INTERPRETATION AND ENFORCEMENT HEREOF, AND THE RESOLUTION OF ALL DISPUTES BETWEEN THE PARTIES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, SHALL BE GOVERNED BY, INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCEPT FOR (I) ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR (II) LIEN AND STOP NOTICE RIGHTS, WHICH SHALL BE GOVERNED UNDER THE LAWS OF THE STATE OF CALIFORNIA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and shall be disclaimed in and excluded from any Subcontracts entered into by Contractor in connection with the Work or the Facility.

22.11 Foreign Corrupt Practice Act. With respect to the performance of the Work, Owner shall, Contractor shall, and Contractor shall cause each of its Subcontractors and Sub-subcontractors, and the agents and employees of such Subcontractors and Sub-subcontractors, to comply with all provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2) and shall not to take any action that could result in Contractor, Owner or any of their Affiliates becoming subject to any action, penalty or loss of benefits under such Act.

22.12 Successors and Assigns. This Agreement shall be binding upon the Parties hereto, their successors and permitted assigns.

22.13 Attachments and Schedules. All Attachments and Schedules shall be incorporated into this Agreement by such reference and shall be deemed to be an integral part of this Agreement.

22.14 Obligations. Nothing contained in this Agreement shall be construed as constituting a joint venture or partnership between Contractor and Owner.

22.15 Further Assurances. Contractor and Owner agree to provide such information, execute and deliver any such instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party that are not inconsistent with the provisions of this Agreement and that do not involve the assumptions of obligations greater than those provided for in this Agreement, in order to give full effect to this Agreement and to carry out the intent of this Agreement.

22.16 Priority. The documents that form this Agreement are listed below in order of priority, with the document having the highest priority listed first and the one with the lowest

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priority listed last. Subject to Section 1.1 under the definition of Applicable Codes and Standards regarding conflicts or inconsistencies between any Applicable Codes and Standards, in the event of any conflict or inconsistency between a provision in one document and a provision in another document, the document with the higher priority shall control. In the event of a conflict or inconsistency between provisions contained within the same document, then the provision that requires the highest standard of performance on the part of Contractor shall control. This Agreement is composed of the following documents, which are listed in priority:

A. Change Orders or written amendments to this Agreement;

B. this Agreement; and

C. Attachments and Schedules to this Agreement.

22.17 Restrictions on Public Announcements. Without the prior written consent of Owner, neither Contractor nor its Subcontractors or Sub-subcontractors shall publicly refer to the Work or any part of the Facility in any manner, including the issuance of a press release, advertisement, publication of photographs, publicity material, prospectus, financial document or similar material, the creation of any business development materials, proposals, reference materials or similar materials, or the participation in a media interview that mentions or refers to the Work or any part of the Facility. Under no circumstance shall Contractor permit access to the Site by third parties who are not involved in the performance of the Work without prior written consent of Owner.

22.18 Language. This Agreement and all notices, communications and submittals between the Parties pursuant to this Agreement shall be in the English language, unless otherwise directed by Owner.

22.19 Counterparts. This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if signed by each of the Parties. Facsimile signatures shall be deemed as effective as original signatures.

22.20 Owner’s Lender. In addition to other assurances provided in this Agreement, Contractor acknowledges that Owner intends to obtain project financing associated with the Facility and Contractor agrees to cooperate with Owner and Lender in connection with such project financing, including entering into direct agreements with Lender, as required by Lender, covering matters that are customary in project financings of this type such as Lender assignment or security rights with respect to this Agreement, direct notices to Lender, step-in/step-out rights, access by Lender’s representative and other matters applicable to such project financing. Contractor acknowledges and agrees that Owner’s execution of this Agreement (including issuance of any LNTP or NTP) is contingent upon obtaining such non-recourse project financing and agrees further that in the event Owner does not obtain such project financing, Owner shall not be liable to Contractor by reason of any terms and conditions contained in or connected with this Agreement. In addition, Contractor acknowledges that the ability of Owner to agree to amendments to, or Change Orders under, this Agreement may be restricted by the terms of the project financing for the Facility.

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A. For purposes of clarity, Contractor shall not be responsible for payments to Owner’s engineer or Lender’s independent engineer utilized for the Facility.

22.21 Survival. Article 8, Article 10, Article 11, Article 13, Article 15, Article 16, Article 17, Article 18, Article 19, Article 20 and Article 21, and Sections 3.6, 3.8, 3.13, 3.17, 7.4, 9.1, 9.2, 12.10, 22.8, 22.10, 22.11, 22.17 and this Section 22.21 shall survive termination or expiration of this Agreement, in addition to any other provisions which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of this Agreement.

[Signature Page Follows]

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

Owner:
MIRANT MARSH LANDING, LLC
By:	/s/ John Chillemi
Name:	John Chillemi
Title:	President
Contractor:
KIEWIT POWER CONSTRUCTORS CO.
By:	/s/ Thomas S. Shelby
Name:	Thomas S. Shelby
Title:	Executive Vice President

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Execution Version

ATTACHMENT A

SCOPE OF WORK AND DESIGN BASIS

SCHEDULE A-1

SCOPE OF WORK

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SCHEDULE A-2

DESIGN, ENGINEERING AND CODES

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SCHEDULE A-3

ENGINEERED EQUIPMENT LIST

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SCHEDULE A-4

UTILITY INTERFACE SCHEDULE

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SCHEDULE A-5

ENGINEERING DRAWINGS

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SCHEDULE A-6

GRADING AND DRAINAGE PLAN

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Execution Version

ATTACHMENT B

CONTRACTOR DELIVERABLES

In addition to the requirements under the Agreement, Contractor shall be responsible for providing Owner with all of the Drawings, Specifications and other documents required under this Attachment B and any and all other Drawings, Specifications and other documents not listed below but required under the Agreement or for the performance of the Work:

1. Documentation Preparation, Review and Distribution.

Contractor and its Subcontractors and Sub-subcontractors (including vendors) shall prepare all Drawings, Specifications and other documents as and when necessary for the timely performance of the Work, and in addition, Contractor shall distribute to Owner the Drawings, Specifications and other documents listed in Attachment B, Schedules B-1 and B-2 within the times required under this Attachment B, including Schedule B-1.

In addition to other requirements of the Agreement, Schedule B-1 provides details of Drawings, Specifications and other documents Owner requires for its review and approval or disapproval as provided in Section 3.3C of the Agreement (labeled in Schedule B-1 as “For Review”), or for its information only (labeled in Schedule B-1 for “For Information”). Within thirty (30) Days after issuance of NTP, Contractor shall prepare and submit to Owner for Owner’s written approval a matrix describing how and to whom the Drawings, Specifications and other documents will be distributed (hereinafter “Document Distribution Matrix”). All Drawings, Specifications and other documents identified in this Attachment B shall be distributed to Owner in accordance with the agreed Document Distribution Matrix.

Contractor shall issue an electronic notification that a Drawing, Specification or other document is available ‘For Review’ or ‘For Information’ to all parties identified on the agreed Document Distribution Matrix. In addition, except as otherwise provided in the Agreement, Contractor shall issue to Owner and all other parties identified in the Document Distribution Matrix an electronic submittal (in accordance with Section 6 herein) of all Drawings, Specifications and other documents, together with a transmittal letter addressed as agreed upon by Owner. The transmittal letter for the attached document shall state the action to be taken (‘For Review’ or ‘For Information’).

Schedule B-2 provides a representative sample of the minimum requirements for documentation and descriptions of the contents of such documents to be provided by Subcontractors or Sub-subcontractors supplying Equipment (such Equipment supply Subcontractors and Sub-subcontractors collectively being identified as “Vendors”). Contractor shall distribute to Owner the Vendor documentation (including Drawings and Specifications) required by Schedule B-2 in accordance with the times as required under this Attachment B, including Schedule B-1. The Vendor documentation in Schedule B-2 is a subset of the Drawings, Specifications and documentation listed in Schedule B-1.

1.1 For Review –

Owner shall be entitled to review and approve or disapprove all Drawings, Specifications and other documents listed as “For Review” in Schedule B-1. Review, approval and disapproval of such Drawings, Specifications and other documents are governed in accordance with the Agreement, including Section 3.3C of the Agreement.

B-1

1.2 For Information –

Drawings, Specifications and other documents labeled in Schedule B-1 as “For Information” is to keep Owner informed as to the development of the Project. Contractor shall review any comments provided by Owner with respect to these For Information documents, and Contractor shall review these comments and advise Owner of their disposition. Any comments provided by Owner, or failure of Owner to provide comments, with respect to such For Information documents shall not in any way be deemed to limit or in any way alter Contractor’s responsibility to perform and complete the Work in strict accordance with the requirements of the Agreement.

2. As-Built Classification.

Contractor shall develop a document describing the process for the management of Progress As-Built Drawings and Specifications and Record As-Built Drawings and Specifications (collectively, “As-Builts”), which shall include identification of requirements for As-Builts, identification of deliverables for As-Builts and turnover of As-Builts. Such document shall be submitted to Owner for Owner’s written approval within ninety (90) Days after issuance of the NTP. In the event of any conflicts or inconsistencies between this document and the Agreement, the terms and conditions in the Agreement shall govern.

As any changes to the Work occur through Change Order, Contractor shall update the Drawings and Specifications and As-Builts to reflect such changes. In addition, Contractor shall, on a timely basis, record in the Progress As-Built Drawings and Specifications any differences between the as-built conditions and the conditions shown in the issue for construction (IFC) Drawings, Specifications and other documents. These requirements are in addition to the requirements under Section 3.3F of the Agreement.

Contractor shall utilize the following two (2) criteria to define the completed status of the As-Builts:

2.1 As-Built (“AB”)

The information contained in this category of Drawings, Specifications and other documents has been subjected to dimensional and/or visual survey and has been verified by Contractor as being a true representation of the as-installed/as-constructed/as-commissioned condition of the Work. The Drawing or Specification shall be updated to show actual dimensions if a dimension exceeds the specified fabrication tolerance. As-Builts shall be revised, date stamped as a Contractor authorized “As-Built” and issued as a clean legible copy, Arch E size for Drawings and 8-1/2” X 11” size for Specifications and other documents (unless otherwise agreed in writing by Owner) free from any hand written or red line mark-up information, discoloration, holds or clouds.

Drawings, Specifications and other documents required to be verified in accordance with this Section 2.1 are shown in Schedule B-1.

2.2 Latest Issue (Revision) (“LR”)

The information contained in this category of Drawings, Specifications and other documents is limited to its current issued revision, and it also includes Drawings, Specifications and other documents that have been updated in accordance with the

B-2

Contractor change control system to reflect the latest “Issued for Construction” or “Issued for Commissioning” status of the Drawing, Specification or other document.

The accuracy of the content of each Drawing, Specification and other document shall not be verified by dimensional or visual survey and is only representative. An index for each category of the Drawing, Specification or other document revision record shall be issued to show Contractor’s latest revision.

3. Documentation Turnover.

3.1 Documentation Turnover General Requirements

Unless otherwise prescribed in the Agreement, Contractor shall provide to Owner an electronic copy (in accordance with Section 6 herein) of all Drawings, Specifications and other documents (including engineering, Vendor, construction and commissioning handover documentation) required in this Attachment B and elsewhere in the Agreement. For Record As-Built Drawings required under the Agreement, Contractor will provide Owner two hard copies of each Record As-Built Drawing and electronic copies of such Record As-Built Drawings in the formats set forth in Section 3.3E of the Agreement.

Vendor documentation may be delivered in the same format as received from the Vendor provided they follow the standard agreed upon by Owner and Contractor in writing to ensure that information is structured and indexed in a consistent format.

Hard copy of all engineering documentation shall be collated by document categories once the appropriate level of completeness for the As-Builts has been attained as set forth above.

Contractor shall ensure a consistent approach is used to verify the technical correctness and completeness of the information in relation to the appropriate categorization of the As-Builts and to enable the Facility to be safe and suitable for its intended function and use.

Areas of redundancy in Vendor documentation shall be identified to eliminate multiple occurrences or copies of the same information.

The handover of such documentation shall be executed progressively in accordance with a defined handover schedule that corresponds with Mechanical Completion of all systems of Equipment for the Facility and is otherwise consistent with the terms of the Agreement, including Section 3.3C. Contractor shall submit its proposed handover schedule to Owner for review and prior written approval.

All hard copies of Drawings, Specifications and other documents shall, unless specified otherwise, be clean, legible full size or 11” X 17” copies free from any type of handwritten or red line mark-up information, discoloration, or holds. The legibility of Drawings shall not be impaired if they are photo-reduced to 11” X 17” size (i.e., P&ID’s) or have punched holes. The technical content of a Drawing or Specification shall not be obscured by the inclusion of foreign stamps.

When full-size Drawings are provided they must be folded to show the title block and inserted into transparent wallets for inclusion in binders.

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When 11” X 17” Drawings are supplied within ring binders the punch holes shall not obscure any part of the Drawing details.

3.2 Engineering Documentation

All hard copy engineering documents by Contractor or any of its Subcontractors or Sub-subcontractors shall be logically collated and indexed (e.g., Specifications, calculations, lists, etc.).

Contractor shall present to Owner the engineering documents in hard back binders with front and back insert wallet, 3-post, expansion back from 5cm to 10 cm, 8 1/2” X 11” size sheets or 11” X 17” for Drawings, white colored. Binders shall not exceed 8cm in thickness. The contract number or project number, project title, Facility name, location, volume number and number of volumes shall be identified on the spine of the binder.

All Contractor, Subcontractor and Sub-subcontractor documentation shall be individually numbered and registered by Contractor in Contractor’s Electronic Document Management System (“EDMS”). Integrity of any cross-references shall be maintained.

Document number and document revision shall be consistent, complete and clearly visible on all documents/Drawings. Page numbers shall be clearly visible on multi-page documents. Document attributes shall be visible on the document front sheet or drawing.

Documents originated electronically shall be supplied in both their native format (provided that Contractor shall use commercially reasonable efforts to obtain such native file format from Vendors in each case) and/or scanned image file.

All engineering documents/Drawings shall be issued final according to their appropriate classification for As-Builts.

All turnover documentation shall be issued with a formal handover transmittal.

A complete document and Drawing index shall be provided both in hard copy and electronic versions.

3.2.1 Engineering Documentation Turnover

All Contractor submittals of documentation to Owner shall be organized in categories, with each category organized based on the type of document submitted. Listed below are examples of categories.

• Specifications

• Calculations – this will include process, system, Equipment, pipe stress, instrument, electrical, etc.

• Drawings – this will include process, P&ID’s, various lists (e.g. line list, valve list, Equipment list, etc.) civil, piping, cause and effects, electrical, instruments, architectural and building, civil and structural, etc.

• Design Reports – this will include the Final Geotechnical Report, hazard reviews, etc.

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• Agreement Procedures – this will include Facility procedures (including operation and maintenance procedures), Site QA/QC procedures, Facility start-up procedures, commissioning procedures, etc.

3.3 Vendor Documentation

Contractor shall ensure that Vendor data books and manufacturing record books required by Schedule B-2 comply with a standard index approved by Owner.

All documents and Drawings shall be individually numbered and registered in the EDMS. The integrity of internal cross-references shall be maintained.

Document number and document revision shall be consistent, complete and clearly visible on all documents/Drawings. Page numbers shall be clearly visible on multi-page documents.

All documents/Drawings within the Vendor data books shall be electronically scanned. Contractor shall also obtain from Vendors a copy of any electronically originated documents and Drawings in native file format, provided that Contractor shall use commercially reasonable efforts to obtain such native file format in each case from the Vendors. Such Drawings and documents shall be submitted to Owner in accordance with Schedules B-1 and B-2 and the Agreement.

All final Vendor turnover document packages shall have a Contractor acceptance stamp signed by the package engineer to verify that all the required documentation have been approved and all other documentation has been reviewed, is complete, technically accurate and to the required quality.

All turnover documentation is to be issued with a formal handover transmittal that indexes all Drawings and documents included in the turnover document package.

Contractor shall ensure Vendor documentation is revised as necessary to reflect any subsequent engineering or Vendor changes or modifications, which shall be done in accordance with the requirements of this Attachment B for As-Builts.

3.3.1 Vendor Documentation Turnover

All Contractor submittals of Vendor documentation to Owner shall be organized in categories, with each category organized based on the type of document submitted. Listed below are examples of categories.

• Vendor Purchase Order Information – this shall include Vendor contract information, unpriced copy of purchase order, master index, etc.

• Vendor Engineering Documents – this shall include calculations, data sheets, performance curves, etc.

• Vendor Engineering Drawings – this shall include Vendor P&ID’s, general arrangements, cross-sectional Drawings, wiring diagrams, logic diagrams, etc.

• Vendor Manufacturing Records– this shall include certificate of conformity, list of tagged items, certificates and reports by tagged item, etc.

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• Vendor Equipment Operating Information – this shall include installation information, operation information, maintenance information, special tools, etc.

4. Substantial Completion Documentation.

4.1 Substantial Completion Documentation Turnover.

Contractor shall deliver to Owner one (1) complete set of construction and pre-commissioning records (collectively, the “Substantial Completion Handover Package”) in hard copy upon submission to Owner of Contractor’s Substantial Completion Certificate. Contractor shall prepare a table of contents for a typical Substantial Completion Handover Package (which would, when completed, include the documentation set forth in this Section 4) and shall submit this to Owner for acceptance six (6) months before the Guaranteed Substantial Completion Date.

Contractor shall submit the Substantial Completion Handover Package in hard back binders with front and back insert wallet, 3-post, expansion back from 5cm to 10 cm, 8 1/2” X 11” size sheets or 11” X 17” for Drawings, white colored. Binders are not to exceed 8cm thickness. The contract number or project number, project title, Facility name, location, unit number, system/sub-system number, volume number and number of volumes shall be identified on the spine of the binder.

The following Sections 4.1.1 through to 4.1.9 outline the general contents for each section of the Substantial Completion Handover Package. The Facility will be divided into systems and Substantial Completion Handover Packages shall be prepared for each such system. Each package shall contain turnover documentation for mechanical, piping, electrical, instrumentation and DCS attributes contained in such system.

4.1.1 Listing of turnover documentation as applicable to that item of Equipment or system:

• Preventative maintenance logs for equipment

• Alignment data (pumps, motors, compressors, fans and turbines)

• Vibration data (compressors, pumps, fans and turbines)

• Vessel closure reports

• Instruments loop check data

• Hydro test packages (see hydro test guidelines)

• Line flush verification checklist

• Fire protection and fire suppression test reports and certifications

• Area lighting survey reports

• System/sub-system Mechanical Completion checklists

4.1.2 Hydro and Pneumatic Test Data

• Piping layout drawing(s) (underground only)

B-6

• Highlighted P&ID’s reflecting the piping system being tested

• Test gage certification and calibration sheet(s)

• Hydro or pneumatic test check and acceptance sheet(s)

• High and low point vent(s) and drains that Contractor has added to facilitate the hydro test shall be marked up on the pled or isometric drawings(s), and have to be indicated on the P&IDs unless they ultimately become process taps.

• Test certificate of test set relief valves

• Post hydro or pneumatic punch and restore checklist

• For stainless steel lines and Equipment, a water analysis certificate shall be provided by Contractor prior to hydrotest, as applicable.

4.1.3 Relief Valve Data

• P&ID’s for the relief system

• Relief device or vacuum breaker specification sheet(s) (data sheets)

• Calibration certificate

– Signed off by the qualified party that calibrated or set the relief point

– Signed by Contractor representative as “Accepted”.

Note: Should any modifications or other changes be required to any of the relief devices or vacuum breakers prior to, or after installation, all calculations, parts numbers for bellows, seats, spring changes, etc and certifications, must be included in the relief device package in order to reflect the corrections made to the relief device or vacuum breaker as installed.

4.1.4 Mechanical Equipment Data

The following guideline is to aid Contractor in building the mechanical Equipment packages. The packages shall reflect the As-Built condition of each item of rotating Equipment and/or fixed Equipment and the final status of any related auxiliary systems.

• Preliminary alignment reports

• Final alignment report(s)

4.1.5 Instrument Loop Data

A loop is designated as “the initiating device through all control devices and terminations of the final control element and/or display”.

• Instrument loop diagram(s)

• Instrument data sheet(s)

• Instrument Specification sheet(s) for each instrument in the loop

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• P&ID sheet(s) on which the instrument appears

• Certified calibration data sheet(s)

• Any electrical schematic Drawing(s) needed to determine the function of the instrument in the E.O. motor control schematics, etc.

• Loop acceptance data sheet on which the theoretical and actual value of the measured, manipulated, controlled, and/or calculated variables in the loop will be recorded during the acceptance testing of the loop function.

• Loop acceptance sheet or certificate with provisions for a dated signature of an authorized Contractor instrument technician performing the loop testing for approval and Contractor’s representative accepting the loop.

• Regarding the programmable logic controller (PLC) input/output (I/O) loops, the PLC I/O schematic Drawing shall be substituted for the loop diagram in the loop package if a loop Drawing for the PLC I/O was not produced. The affected input(s) and output(s) should be highlighted on the Drawing.

4.1.6 Electrical Test Data Guidelines

The following guidelines are to be used in generating the electrical test data, which are to be turned over to Owner for each Unit prior to the commissioning of the applicable Unit.

4.1.6.1 Megger Log

The Megger log is a compilation report that lists all cables that were tested and their results.

4.1.6.2 Preventative Maintenance (PM) Documentation

PM documentation for all motor lubrication, preventative maintenance logs, and records of all preventative maintenance done on the motor from receipt at the Site through Substantial Completion shall be included within the Substantial Completion Handover Package for the applicable system.

• Motor Megger Report (MMR)

• MMR shall show all readings taken from time of receipt on Site until Substantial Completion.

• Motor overload relay heater element size of setting as installed

• Motor Internal Heating Element (IHE) report, internal heaters are furnished

• Motor Internal Resistance Temperature Device (RTD) report

• Verify RTD type (nickel, platinum, etc.)

• Motor run-in logs

• The motor run-in logs provide a record of voltage, amperage, and temperature readings during the run-in period.

4.1.6.3 High Potential Test Packages

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• Test Equipment data, including Vendor, model number, serial number, and calibration data

• High potential test results for each cable, isolation, transfer switch, and switchgear tested

• All data pertinent to this Equipment shall be recorded (i.e., Vendor, serial number, etc.)

4.1.6.4 Transformer Testing

• Turns ratio comparison report

• Dobble test report

• Oil analysis report

• Other reports (as required to document fitness for use)

4.1.6.5 Breaker Coordination Testing and Calibration Results

This is a listing of all information for each breaker and apparatus tested (i.e., Vendor, serial number, model number, etc). Transformers, generator breakers and medium voltage breaker test data shall be provided in the Substantial Completion Handover Package as a separate system and as part of the initial energization plan.

4.1.6.6 Earthing /Grounding Test (EGT) Reports

The EGT reports are a compilation of earthing/grounding resistance tests results, identifying each earthing well tested and any corrective actions taken to meet applicable Specifications.

4.1.6.7 Dielectric Oil Test Reports

Dielectric oil testing reports identify each piece of Equipment that is tested, (to include the Vendor, serial number, model number, etc.), and the number of samples taken. Samples will be taken on transformers, oil switches, oil filled breakers, oil filled junction/splice boxes, etc.

4.1.6.8 Oil Sample Analysis

Vendor data shall be made available to ensure that no polychlorinated biphenyls (PCBs) are present. A listing of the test results for each piece of Equipment that has been tested shall be compiled, and is to include the Equipment Vendor, serial number, model number, etc.

4.1.6.9 Cathodic Protection System Packages

If cathodic protection is utilized, a Cathodic Protection (CP) Package shall be developed and shall include:

• Cathodic protection test results

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• All related underground Drawings showing cable locations, anode beds, etc.

• Initial Megger readings of the cables prior to termination at the Equipment

• Initial current readings imposed on the system(s)

4.1.6.10 Motor Control Centers (MCC) and Load Centers

Include Megger or high or high potential test reports, trip and overload relay settings, and installed overload headers (if required). The reports will reflect the Vendor, model, serial number, and test results for each piece of Equipment.

4.1.7 Permanent Overhead Crane & Lifting Devices

The test packages for any overhead cranes shall include:

• Descriptive literature

• Performance load charts

• Dimensional Drawings

• General arrangement Drawings

• Electrical /wiring schematics

• FAT documentation

• Load cell certificates

• Installation, operation and maintenance handbook

4.1.8 Progress As-Built Drawings and Specifications

Contractor shall provide to Owner a redline mark-up of all Progress As-Built Drawings and Specifications no later than Substantial Completion. One (1) copy of each redline shall be provided to Owner in addition to the copy returned to Contractor’s home office for Drawing revision to incorporate redline corrections as required. The requirements for Progress As-Built Drawings and Specifications are noted in Section 2 of this Attachment B.

4.1.9 Substantial Completion Additional Documentation

Contractor shall prepare and provide to Owner as a minimum the following documentation:

• General system Substantial Completion Handover Package listing

• Pre-commissioning procedures such as initial energization plan and piping flush plans

• Vendor visitation reports

• Equipment preservation & maintenance records

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• Material Safety Data Sheet handbook (a compilation of Vendor and other outside source supplied MSDS(s)).

• Vessel loading reports (desiccants, mol-sieves, etc.)

• Chemical cleaning procedures & reports (if any)

• Dryout procedures and reports

• Radiography film and reader sheets

• Non-destructive testing (NDT) reports other than radiography

• Contractor shall deliver separately to Owner all original certificates or Permits for Equipment which, according to Applicable Law, will require future testing and re-certification by Owner

• Building Inspection Reports/Fitness for Occupancy, including certificates of occupancy, building completion reports, HVAC performance test reports, building pressurization reports, fire detection system test report and fire protection system test report

5. Commissioning, Startup, and Performance Test Documentation.

In addition to other requirements under the Agreement, Contractor shall prepare the following documentation:

• Hot alignment reports,

• Mechanical Completion Certificate in the form of Attachment L,

• System start-up reports and completed and signed Mechanical Completion checklists, and

• Performance Test reports in accordance with Attachment S and the Agreement.

Documents prepared by Contractor shall be delivered to Owner in accordance with the document turnover requirements.

5.1 Laptops and Related Software for Turnover to Owner

Contractor shall prepare and maintain a list of all handhelds, laptops and related software packages that are required for future maintenance adjustments associated with Equipment related local logic control stations. These items are initially identifiable from the purchase order but are subject to change as a result of Vendor software changes/upgrades during commissioning. It is the responsibility of Contractor to maintain the list to ensure that the latest software version is recorded in the list.

For all computer based programmable Equipment supplied by Contractor as part of the Work, Contractor shall provide Owner with all software necessary to maintain and make minor modifications to the programmable Equipment. For illustrative purposes, examples of programmable Equipment are DCS, SIS, package unit PLC’s, PA/GA system, etc. This includes Contractor providing for the transfer to Owner of the software licenses at Substantial Completion. Contractor shall also provide electronic copies (EEPROM, SD Card, etc.) of “as left” programs on such programmable Equipment.

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5.2 Historical Records

The Contractor EDMS shall be capable of maintaining historical records of previous issued documents.

The EDMS should include complete document history, including copies of earlier document versions, revision logs, and access logs.

Historical versions of formal revisions of documents shall be maintained electronically in the Contractor EDMS and shall form part of the formal turnover requirements to Owner.

6. Electronic Document Turnover Requirements.

6.1 Native Files of Documents/Drawings

Documents generated by Contractor, its Subcontractors and Sub-subcontractors (including Vendors) using standard applications (i.e., MS Word, Excel, PowerPoint, Project, Visio, Access, etc.), shall also be delivered to Owner at Substantial Completion. These documents shall be turned-over in their native file format, provided that Contractor shall use reasonable efforts to obtain such native file format from Vendors in each case.

All Contractor-generated Drawings shall be provided in Microstation, AutoCad.dwg and .pdf format as required by Section 3.3E of the Agreement and shall be checked by Contractor for correctness after conversion to any such format.

6.2 Contractor Commercial Applications

When Contractor employs a commercial application to store and manipulate data during the execution of the Work, Contractor shall turnover the native data files associated with the commercial applications in a format agreed upon by Owner and Contractor.

6.3 Contractor Propriety Applications

Owner recognizes that Contractor may wish to employ computer applications proprietary to Contractor in the execution of the Work. Contractor shall either provide Owner with a perpetual, royalty-free license to use such proprietary software or, if allowed by Owner in writing, extract the data and provide it in a publicly available format specified by Owner.

6.4 EDMS Register

Contractor shall also transfer to Owner a register detailing the full contents of the Contractor EDMS.

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SCHEDULE B-1

OUTLINE OF OWNER DOCUMENT SUBMITTAL REQUIREMENTS FOR REVIEW OR INFORMATION

In addition to the requirements under the Agreement, Contractor shall be responsible for providing Owner with all of the Drawings, Specifications and other documents required under this Schedule B-1 and any and all other Drawings, Specifications and other documents not listed below but required under the Agreement or for the performance of the Work.

No	Category	Drawing/Specification/ Document Type	For Review* / For Information	Timing of Delivery of Drawings, Specifications/Documents**	As-Built Classification***
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SCHEDULE B-2

OUTLINE OF MINIMUM VENDOR DOCUMENT REQUIREMENTS BY EQUIPMENT CATEGORY

In addition to the requirements under the Agreement, Contractor shall be responsible for providing Owner with all of the following Vendor documentation (including Drawings and Specifications) required under this Schedule B-2 and any and all other Vendor documentation not listed below but required under the Agreement or for the performance of the Work.

No.	Equipment Category	Vendor Document Requirements	COMMENTS
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Execution Version

ATTACHMENT C

PAYMENT SCHEDULE

SCHEDULE C-1

EPC PAYMENT MILESTONES

EPC Payment Milestone Number	EPC Payment Milestone Description	Amount (U.S.$)
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Contractor shall provide reasonable, objectively verifiable information to evidence achievement of each EPC Payment Milestone which may include (i) notices to proceed sent to Subcontractors or Sub-subcontractors, (ii) invoices, (iii) executed Purchase Orders, (iv) photographs, (v) packing slips, (vi) bills of lading and (vii) test reports. Subcontractor and Sub-subcontractor pricing information may be redacted from such documentation.

As further set forth in Section 7.2E of the Agreement, the cumulative EPC Payment Milestone amounts which are due under the Agreement shall be subject to the Maximum Cumulative Payment Schedule for EPC Payment Milestones as set forth in Section II of Schedule C-3.

1. “Begin” means that full production operations with respect to the listed task is underway and such task is capable of being performed on a continuous basis.

2. “BOP” means all Equipment for the Facility other than the Siemens Equipment.

3. “Demobilization” means removal from the Site of all of Contractor’s, Subcontractors’ and Sub-subcontractor’s personnel, supplies, materials, rubbish, temporary facilities and construction equipment.

4. “Design Criteria” means a multi-discipline document produced by Contractor that details the engineering assumptions, code requirements, and analysis methods to be employed by Contractor for the calculations and analysis portion of the Work.

5. “Issue for Review” means that Contractor delivers an item for Owner’s review, unless otherwise noted. Items issued for review are completed upon Owner’s receipt of such items.

6. “Issue for Approval” means that Contractor delivers an item to Owner for review and written approval. Such item is complete upon Owner’s written approval in accordance with Section 3.3C of the Agreement.

7. “Mobilize” or “Mobilization” means (i) with respect to construction equipment, that such construction equipment has been inspected and is available for use at the Site and (ii) with respect to personnel, such personnel have been dispatched to the Site and are ready to Begin the Work.

8. “Purchase Order” means a Subcontract (as such term is defined in Section 1.1 of the Agreement) for the supply of Equipment.

9. “Shop PO” means a purchase order from Contractor to the applicable Subcontractor for purchase of the materials required to fabricate the Equipment purchased under the applicable Purchase Order.

Execution Version

SCHEDULE C-2

SIEMENS EQUIPMENT PAYMENT MILESTONES

Siemens Equipment Payment Milestone #	Siemens Equipment Payment Milestone*	Siemens Equipment Payment Milestone Amount  Due (US$)	Cumulative Siemens Equipment Payment Milestone Amounts** (US$)	Siemens Equipment Payment Milestone Portion Attributable  to Services*** (US$)	Siemens Equipment Payment Milestone Portion Attributable to Transportation*** (US$)	Siemens Equipment Payment Milestone Portion Attributable  to Equipment*** (US$)
***	***	***	***	***	***	***

Payment terms are per the Agreement.

* Contractor shall provide reasonable, objectively verifiable documentation to evidence achievement of each Siemens Equipment Payment Milestone. The Parties agree that the following is considered reasonable and objectively verifiable evidence to demonstrate completion of the portion of the Work associated with the Siemens Equipment Payment Milestone: notices to proceed sent to Sub-subcontractors, invoices, executed purchase orders, photographs, packing slips, and bills of lading. Pricing and proprietary information may be redacted from all documentation provided by Siemens.

** As further set forth in Section 7.2E of the Agreement, the cumulative Siemens Equipment Payment Milestone amounts which are due under the Agreement shall be subject to the Maximum Cumulative Payment Schedule for Payment Milestones as set forth in Section I of Schedule C-3.

*** The columns which illustrate the allocation of the Siemens Equipment Payment Milestone value among services, transportation and Equipment costs are set forth herein for purposes of calculation of applicable California sales and use Taxes under the Siemens Contract.

***

Execution Version

SCHEDULE C-3

MAXIMUM CUMULATIVE PAYMENT SCHEDULE

Section I. Maximum Cumulative Payment Schedule for Siemens Equipment Payment Milestones

Project Schedule*	Maximum Cumulative Payment Due for Siemens Equipment Payment Milestones (US$)1
***	***

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Section II. Maximum Cumulative Payment Schedule for the EPC Payment Milestones and Maximum Demobilization and Subcontractor Cancellation Cost Schedule ⁽¹⁾

Dates(2)	Maximum Cumulative Payment for EPC Payment Milestones Performed Through Such Month (US$)(3) (4)	Maximum Demobilization and Subcontract Cancellation Cost (US$)(5)	EPC Payment Milestone portion of the Contract Price (US$)
***	***	***	***
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Execution Version

ATTACHMENT D

FORM OF CHANGE ORDER

D-1

SCHEDULE D-1

CHANGE ORDER FORM

(for use when the Parties mutually agree upon and execute the Change Order pursuant to Section 6.1B or 6.2C)

PROJECT NAME: Marsh Landing Generating Station	CHANGE ORDER NUMBER:
OWNER: Mirant Marsh Landing, LLC	DATE OF CHANGE ORDER:
CONTRACTOR: Kiewit Power Constructors Co.
DATE OF AGREEMENT: [                    , 20    ]

The Agreement between the Parties listed above is changed as follows: (attach additional documentation if necessary)
Adjustment to Contract Price
1.	The original Contract Price was	$
2.	Net change by previously authorized Change Orders (#                )	$
3.	The Contract Price prior to this Change Order was	$
4.	The EPC Payment Milestone portion of the Contract Price prior to this Change Order was	$
5.	The Siemens Equipment Payment Milestone portion of the Contract Price prior to this Change Order was	$
6.	The EPC Payment Milestone portion of the Contract Price will be (increased) (decreased) (unchanged) by this Change Order in the amount of	$
7.	The Siemens Equipment Payment Milestone portion of the Contract Price will be (increased) (decreased) (unchanged) by this Change Order in the amount of	$
8.	As a result of the changes set forth by Lines 6 and 7 above, the Contract Price will be (increased) (decreased) (unchanged) by this Change Order in the amount of	$
9.	The new Contract Price including this Change Order will be	$

Adjustment to dates in Key Milestone Schedule & Completion Dates

The following dates are modified (list all dates modified; insert N/A if no dates modified; attach additional documentation if necessary):

The Key Milestone Date for                          will be (increased)(decreased)(unchanged) by              (    ) calendar days.

The Key Milestone Date for                          as of the date of this Change Order therefore is                         , 20    .

(list all Key Milestones that are modified by this Change Order using the format set forth above)

The Guaranteed Substantial Completion Date will be (increased)(decreased)(unchanged) by              (    ) calendar days.

The Guaranteed Substantial Completion Date as of the date of this Change Order therefore is                         , 20    .

The Required Final Completion Date will be (increased)(decreased)(unchanged) by              (    ) calendar days.

The Required Final Completion Date as of the date of this Change Order therefore is                         , 20    .

Impact to other Changed Criteria (insert N/A if no changes or impact; attach additional documentation if necessary)

Impact on Payment Schedule (including, as applicable, Payment Milestones and the Maximum Cumulative Payment Schedules):

D-2

If adjustment made to Siemens Equipment Payment Milestones, allocation of such adjustment among compensation for (i) Transportation, (ii) Services and (iii) Equipment:

Impact on Minimum Acceptance Criteria:

Impact on Performance Guarantees:

Impact on Design Basis:

Other impacts to liability or obligations of Contractor or Owner under the Agreement:

Upon execution of this Change Order by Owner and Contractor, the above-referenced change shall become a valid and binding part of the original Agreement without exception or qualification, unless noted in this Change Order. Except as modified by this and any previously issued Change Orders, all other terms and conditions of the Agreement shall remain in full force and effect. This Change Order is executed by each of the Parties’ duly authorized representatives.

Owner	Contractor
Name	Name
Title	Title
Date of Signing	Date of Signing

D-3

SCHEDULE D-2

OWNER-DIRECTED CHANGE ORDER FORM

(for use when only Owner executes the Change Order pursuant to Section 6.1C or 6.2D)

PROJECT NAME: Marsh Landing Generating Station	CHANGE ORDER NUMBER:
OWNER: Mirant Marsh Landing, LLC	DATE OF CHANGE ORDER:
CONTRACTOR: Kiewit Power Constructors Co.
DATE OF AGREEMENT: [                    , 20    ]

You are hereby directed to make the following change(s) in this Agreement: (attach additional documentation if necessary)

Compensation for the changes specified in this Change Order are on a time and materials basis as provided in Section 6.1C and 6.2D of the Agreement.

When signed by Owner and received by Contractor, this document becomes effective IMMEDIATELY as a Owner-directed Change Order, and Contractor shall commence with the performance of the change(s) described above within five (5) Business Days of its receipt unless another time is expressly stated above. This Change Order is signed by Owner’s duly authorized representative.

Owner

Name

Title

Date of Signing

D-4

SCHEDULE D-3

CONTRACTOR’S CHANGE ORDER REQUEST FORM

PROJECT NAME: Marsh Landing Generating Station	CHANGE ORDER REQUEST NUMBER:
OWNER: Mirant Marsh Landing, LLC	DATE OF CHANGE ORDER REQUEST:
CONTRACTOR: Kiewit Power Constructors Co.
DATE OF AGREEMENT: [                    , 20    ]

Contractor Proposes the Following Change(s) in the Agreement: (attach additional documentation, if necessary)

Detailed Reasons for Proposed Change(s) (provide detailed reasons for the proposed change, and attach all supporting documentation required under the Agreement)

Proposed Adjustments to Agreement (attach additional documentation, if necessary)

Contract Price Adjustment (including an itemization of the adjustment to the Siemens Equipment Payment Milestone and EPC Payment Milestone portions of the Contract Price):

If Siemens Equipment Payment Milestone adjustment is proposed, allocation of such proposed adjustment among (i) Transportation, (ii) Services and (iii) Equipment:

Adjustment to Key Milestones (list all Key Milestones to be adjusted):

Adjustment to Guaranteed Substantial Completion Date:

Adjustment to Required Final Completion Date:

Adjustment to Payment Schedule:

Adjustment to Minimum Acceptance Criteria:

Adjustment to Performance Guarantees:

Adjustment to Design Basis:

Other adjustments to liabilities or obligations of Contractor or Owner under the Agreement:

This request for Change Order is signed by Contractor’s duly authorized representative.

Contractor

Name

Title

Date of Signing

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SCHEDULE D-4

PRICING FOR CHANGE ORDERS

Initial Standard Published Rates for Contractor-Owned Construction Equipment¹

Description Make and Model	Hourly Rate	Daily Rate	Weekly Rate	Monthly Rate
***	***	***	***	***

¹ ***

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Initial Published 2.5 X Multiplier Engineering Services Rates for Project Management, Engineering and

Design Services from Kiewit Power Constructor Co.

(Effective April 1, 2009 to March 31, 2010)

Professional Level	Hourly Rate (U.S.$)
***	***

D-7

Initial Published 2.5 X Multiplier Engineering Services Rates for Home Office Project Management,

Engineering and Design Services from Kiewit Power Engineers Co.’s Engineers & Consultants

(Effective until April 26, 2010)

Professional Level	1 (U.S.$)	2 (U.S.$)	3 (U.S.$)
***	***	***	***

D-8

Execution Version

ATTACHMENT E

KEY MILESTONE SCHEDULE

1	2	3	4	5
Key Milestone	Key Milestone Date*	Days of Delay to Initiate Recovery	Total Days of Delay for Default**	Default Date*
***	***	***	***	***

* The Key Milestone Dates and Default Dates set forth herein are anticipated dates based upon preliminary project scheduling activities. The Key Milestone Dates and Default Dates set forth herein shall be updated by Change Order once the CPM Performance Measurement Baseline Schedule is agreed upon by the Parties in accordance with the Agreement.

** The “Total Days of Delay for Default” sets forth the total number of days of actual or expected delay (beyond the Key Milestone Date) upon which gives rise to a Contractor Default under the Agreement.

***

E-1

Execution Version

ATTACHMENT F

KEY PERSONNEL AND CONTRACTOR’S ORGANIZATION

The following individuals are Key Personnel. In accordance with Section 2.2A of the Agreement, Key Personnel shall, unless otherwise expressly stated in this Attachment F, be devoted essentially full-time to the Work for the entire duration of the Work, and Key Personnel shall not be removed or reassigned without Owner’s prior written approval.

Name	Position	Status / Duration
***	***	***

All initial Key Persons shall be subject to Owner’s written approval.

* After Substantial Completion, the Overall Project Manager shall remain available on a part-time basis in order to attend applicable meetings, assist in resolving issues regarding Defective Work and Warranties, etc.

** After Substantial Completion, the indicated Key Persons may reduce their commitment to a part-time basis (as opposed to full-time basis) to the extent that such reduced commitment continues to allow such Key Person to properly and timely manage Contractor’s performance of its remaining obligations under the Agreement.

F-1

Execution Version

ATTACHMENT G

APPROVED SUBCONTRACTORS AND SUB-SUBCONTRACTORS

Contractor and Owner have approved the following Subcontractors and Sub-subcontractors for the performance of the Work specified with respect to each such Subcontractor or Sub-subcontractor. Contractor may solicit bids from, and enter into a Subcontract with, any of the following Subcontractors; provided that Contractor shall, at a minimum, solicit bids from those Subcontractors marked with an asterisk (*) with respect to the portion of Work identified for such Subcontractors. Contractor’s selection of any Subcontractor or Sub-subcontractor in this Attachment G, including those marked with an asterisk, does not relieve Contractor of any obligations under the Agreement.

PORTION OF THE WORK	APPROVED SUBCONTRACTORS AND SUB-SUBCONTRACTORS
***	***

G-1

Execution Version

ATTACHMENT H

NOTICE TO PROCEED FORMS

H-1

SCHEDULE H-1

FORM OF LIMITED NOTICE TO PROCEED

                    , 20    

Kiewit Power Constructors Co.

9401 Renner Blvd.

Lenexa, Kansas 66219

Facsimile: 913-928-7214

Attention: Kevin Needham

Re: Limited Notice to Proceed

Pursuant to Section 5.2 of the Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station, dated as of [                    , 20    ] (the “Agreement”), by and between Mirant Marsh Landing, LLC (“Owner”) and Kiewit Power Constructors Co. (“Contractor”), this letter shall serve as a Limited Notice to Proceed from Owner to Contractor authorizing Contractor to proceed with that certain portion of the Work as described below pursuant to the terms and conditions of the Agreement:

(“LNTP Work”).        

Contractor is authorized under this Limited Notice to Proceed to incur no more than                      U.S. Dollars (U.S.$             ) for performance of the foregoing LNTP Work. No other amounts are authorized under this Limited Notice to Proceed for any other services, labor or Work. Contractor shall be paid for such specified LNTP Work pursuant to the terms and conditions of the Agreement, with all such payments credited against the Contract Price and the first payment(s) to become due under the Agreement.

For and on behalf of

MIRANT MARSH LANDING, LLC

By:

Title:

cc:

H-2

SCHEDULE H-2

FORM OF NOTICE TO PROCEED

                         , 20    

Kiewit Power Constructors Co.

9401 Renner Blvd.

Lenexa, Kansas 66219

Facsimile: 913-928-7214

Attention: Kevin Needham

Re: Notice to Proceed

Pursuant to Section 5.2E of the Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station, dated as of [                    , 20    ] (the “Agreement”), by and between Mirant Marsh Landing, LLC (“Owner”) and Kiewit Power Constructors Co. (“Contractor”), this letter shall serve as the Notice to Proceed from Owner to Contractor authorizing Contractor to proceed with the Work pursuant to the terms and conditions of the Agreement.

For and on behalf of

MIRANT MARSH LANDING, LLC

By:

Title:

cc:

H-3

Execution Version

ATTACHMENT I

FORM OF CONTRACTOR’S INVOICES

I-1

SCHEDULE I-1

FORM OF CONTRACTOR’S INTERIM INVOICE

PROJECT NAME: Marsh Landing Generating Station	INVOICE NUMBER:
OWNER: Mirant Marsh Landing, LLC	DATE OF INVOICE:                     , 20
CONTRACTOR: Kiewit Power Constructors Co.
DATE OF AGREEMENT: [                    ]

This Invoice covers EPC Payment Milestone No(s).              and Siemens Equipment Payment Milestone No(s).              set forth in Schedules C-1 and C-2 of the Agreement for the period (“Invoice Period”) from                     , 20     to                     , 20     (“Current Date”). Contractor hereby makes application for payment to Owner as shown below in connection with the above referenced Agreement between the Parties.

1.	Original Contract Price (Section 7.1 of Agreement)	US$
2.	Net change by Change Orders (except Owner-directed Change Orders) (Exhibit 3)	US$
3.	Contract Price to date (Line 1 + Line 2)	US$
4.	Total earned to date for completion of Work under EPC Payment Milestones including Retainage (Sum of Column E and F of Section 1 of Exhibit 1)	US$
5.	Retainage for completion of Work under EPC Payment Milestones (Column G of Section 1 of Exhibit 1)	US$
6.	Total earned to date for completion of Work under EPC Payment Milestones less Retainage (Line 4 - Line 5)	US$
7.	Total earned to date for completion of Work under Siemens Equipment Payment Milestones (Sum of Column E and F of Section 2 of Exhibit 1)	US$
8.	Total earned to date on Owner-directed Change Orders (Exhibit 2)	US$
9.	California sales and use Tax invoiced to Contractor to date under the Siemens Contract (Exhibit 6)	US$
10.	Total earned to date (not including Retainage) plus California sales and use Tax invoiced to date to Contractor under the Siemens Contract (Line 6 + Line 7+ Line 8 + Line 9)	US$
11.	Less previous Invoices (Line 10 from prior Invoice)	US$
12.	Current Payment Due (Line 10 less Line 11)	US$

Contractor certifies that (i) the Work is progressing in accordance with the Key Milestone Schedule and CPM Performance Measurement Baseline Schedule, except to the extent (if any) expressly set forth in the current Monthly Progress Report or Monthly Updated CPM Schedule, (ii) the Work described in or relating to this Invoice has been performed and supplied in full accordance with the Agreement, (iii) prices in this Invoice and attached Exhibits are correct and in accordance with the Agreement and the referenced Payment Milestone(s) are complete, (iv) Contractor is entitled to payment of the amount set forth as “Current Payment Due” in this Invoice, and such Current Payment Due constitutes in full all amounts due and owing as of the Current Date, (v) the Work and any portion thereof described in or relating to this Invoice and all previous Invoices are free and clear of all liens, security interests and encumbrances through the date of this Invoice, (vi) all Subcontractors have been paid the monies due and payable for Work performed in connection with the Facility (except for any amounts owed such Subcontractors for Work billed under this Invoice), (vii) fully completed and executed Interim Waiver and Release of Liens and Interim Claim Waivers from Contractor and from all Major Subcontractors who performed Work relating to this Invoice, are attached to this Invoice, (viii) if requested by Owner and required by the Agreement, fully completed and executed Interim Waiver and Release of Liens and Interim Claim Waivers from all Major Sub-subcontractors who performed Work relating to this Invoice, are attached to this Invoice, (ix) attached to this Invoice is all documentation supporting Contractor’s request for payment as required under the Agreement and (x) this Invoice is signed by an authorized representative of Contractor.

CONTRACTOR		Subscribed and sworn to before me this                      day of                     , 20    .
Signed:
Name:
Title:
Date:	, 20	Notary Public
		My Commission Expires:                     , 20

I-2

MARSH LANDING GENERATING STATION

INVOICE NUMBER              INVOICE DATE                     , 20    

OWNER APPROVAL

AMOUNT APPROVED by Owner for Payment: US$                                

OWNER
Signed:
Name:
Title:
Date:	, 20

The AMOUNT APPROVED by Owner is without prejudice to any rights of Owner under the Agreement.

Explanation is listed below or attached if the AMOUNT APPROVED is less than the amount requested by Contractor under this Invoice:

I-3

EXHIBIT 1

COMPLETION OF PAYMENT MILESTONES

1. EPC PAYMENT MILESTONES: The following EPC Payment Milestones were completed and invoiced in prior Invoices or were completed by Contractor within this Invoice Period.

A	B	C	D	E	F	G	H
Item No.	Description of EPC Payment Milestone	Original EPC Payment Milestone Amount	EPC Payment Milestone Amount as Adjusted by Change Order	EPC Payment Milestone Amount Previously Invoiced*	EPC Payment Milestone Amount for this Invoice Period**	Retainage Withheld***	Cumulative Amounts Paid by Owner, or Invoiced to Owner, for EPC Payment Milestones (less Retainage Withheld)
Total

* Column E contains the full EPC Payment Milestone amount for EPC Payment Milestones that were fully completed in accordance with the Agreement and invoiced in prior Invoices. No partial EPC Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed EPC Payment Milestones. If amounts listed in this Column E are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable EPC Payment Milestone was not completed and invoiced in a prior Invoice.

** Column F contains the full EPC Payment Milestone amount for EPC Payment Milestones that were fully completed in accordance with the Agreement during the Invoice Period covered by this Invoice. No partial EPC Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed EPC Payment Milestones. If amounts listed in this Column F are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable EPC Payment Milestone was not completed and invoiced within this Invoice Period.

*** Column G shall include the amount of Retainage withheld from each EPC Payment Milestone that was previously completed and invoiced in prior Invoices or completed and invoiced within this Invoice Period.

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2. SIEMENS EQUIPMENT PAYMENT MILESTONES: The following Siemens Equipment Payment Milestones were completed and invoiced in prior Invoices or were completed by Contractor within this Invoice Period.

A	B	C	D	E	F
Item No.	Description of Siemens Equipment Payment Milestone	Original Siemens Equipment Payment Milestone Amount	Siemens Equipment Payment Milestone Amount as Adjusted by Change Order	Siemens Equipment Payment Milestone Amount Previously Invoiced*	Siemens Equipment Payment Milestone Amount for this Invoice Period**
Total

* Column E contains the full Siemens Equipment Payment Milestone amount for Siemens Equipment Payment Milestones that were fully completed in accordance with the Agreement and invoiced in prior Invoices. No partial Siemens Equipment Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed Siemens Equipment Payment Milestones. If amounts listed in this Column E are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable Siemens Equipment Payment Milestone was not completed and invoiced in a prior Invoice.

** Column F contains the full Siemens Equipment Payment Milestone amount for Siemens Equipment Payment Milestones that were fully completed in accordance with the Agreement during the Invoice Period covered by this Invoice. No partial Siemens Equipment Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed Siemens Equipment Payment Milestones. If amounts listed in this Column F are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable Siemens Equipment Payment Milestone was not completed and is not being invoiced in this Invoice Period.

I-5

EXHIBIT 2

OWNER-DIRECTED CHANGE ORDERS

1. WORK COMPLETED UNDER OWNER-DIRECTED CHANGE ORDERS: The following Work has been completed in accordance with the Agreement under Owner-directed Change Orders executed by Owner pursuant to Section 6.1C or Section 6.2D.

No.	Description of Owner-directed Change Order	Work Completed (From Previous Invoices) (US$)	Work Completed (This Invoice Period) (US$)*
Total

* The amounts in this column shall be further detailed in Section 2 below for each Change Order.

2. CALCULATION OF TIME AND MATERIAL CHARGES FOR OWNER-DIRECTED CHANGE ORDERS: The following table illustrates the costs incurred in performing any Change Orders on a time and material basis for this Invoice Period and in accordance with Section 6.3 of the Agreement.

A	B	C	D	E	F	G	H	I	J
No.	Description of Owner-directed Change Order	Direct Craft Labor Costs (US$)	Small Tools and Supplies Costs (***)	Construction Equipment Costs (US$)	Materials and Subcontracts Costs (US$)	Project Management, Engineering & Design Costs (US$)	California Sales and Use Taxes (US$)	General and Administrative Expenses (US$)	Profit (US$)
Total

The direct craft labor costs set forth in Column C above shall be itemized by each craft laborer employed for such Work, the applicable hourly rate and the hours expended by each laborer for each of the above Change Orders. Contractor shall provide support for such hours and allocation to applicable Change Orders through daily work logs, time sheets and other reasonable, objectively verifiable supporting documentation.

The total direct craft labor hours expended on the applicable Change Order (as supported by the documentation set forth in the foregoing sentence) shall be used

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to determine the small tool and supplies amount for Column D above.

The construction equipment costs for Column E and materials and subcontract costs in Column F shall be supported by invoices, purchase orders, Contractor’s work logs (for Contractor-owed construction equipment) and other reasonable, objectively verifiable supporting documentation.

The project management, engineering and design costs set forth in Column G above shall be itemized by each professional employed for such Work, the applicable hourly rate and the hours expended by each professional for each of the above Change Orders. Contractor shall provide support for such hours and allocation to applicable Change Orders through daily work logs, time sheets and other reasonable, objectively verifiable supporting documentation.

For purposes of determining the reimbursement to Contractor of California sales and use Taxes pursuant to Section 6.3F of the Agreement, such California sales and use Taxes to be reimbursed to Contractor (as set forth in Column H above) shall be determined by applying the applicable sales and use tax rate to (a) the taxable materials and subcontracts costs within the amounts set forth in Column F and (b) any taxable third party construction equipment rental costs within the amounts set forth in Column E incurred by Contractor.

The amounts set forth in Column I (general and administrative expenses) and Column J (profit) shall be calculated in accordance with Sections 6.3G and 6.3H (respectively) of the Agreement.

I-7

EXHIBIT 3

LIST OF MUTUAL CHANGE ORDERS

The following Change Orders have been executed by Owner and Contractor pursuant to Section 6.1B or Section 6.2C.

No.	Description of Change Order	US$
Total

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EXHIBIT 4

INTERIM WAIVER AND RELEASE OF LIENS

AND

INTERIM CLAIM WAIVERS

I-9

EXHIBIT 5

INFORMATION REQUIRED OR REQUESTED BY OWNER

I-10

EXHIBIT 6

CALIFORNIA SALES AND USE TAX INVOICED TO CONTRACTOR

UNDER THE SIEMENS CONTRACT

Amount of California sales and use Tax invoiced to Contractor under the Siemens Contract and requested by Contractor Invoice No. and Invoice date in which California sales and use Tax was invoiced by Siemens to Contractor Date that such California sales and use Tax was paid to the State by Contractor

Total California sales and use Tax invoiced to Contractor by Siemens to date under the Siemens Contract:             

I-11

SCHEDULE I-2

FORM OF CONTRACTOR’S FINAL INVOICE

PROJECT NAME: Marsh Landing Generating Station	INVOICE NUMBER:
OWNER: Mirant Marsh Landing, LLC	DATE OF INVOICE:                     , 20
CONTRACTOR: Kiewit Power Constructors Co.
DATE OF AGREEMENT: [                    ]

This final Invoice covers (i) under Section I, EPC Payment Milestone No(s).              and Siemens Contract Payment Milestone No(s).              set forth in Schedules C-1 and C-2 of the Agreement for the period (the “Invoice Period”) from                     , 20     to                     , 20     and (ii) under Section II, any adjustments required to reconcile all previous Invoices, payments and Change Orders.

I. APPLICATION FOR PAYMENT. Contractor hereby makes application for final payment to Owner under the Agreement, as shown below.

1.	Original Contract Price (Section 7.1 of Agreement)	US$
2.	Net change by Change Orders (except Owner-directed Change Orders) (Section 1 of Exhibit 1)	US$
3.	Contract Price (Line 1 + Line 2)	US$
4.	Total California sales and use Tax invoiced to Contractor under the Siemens Contract (Exhibit 5)	US$
5.	Total earned to date on Owner-directed Change Orders (Exhibit 2)	US$
6	Total previously paid for completion of Work performed under EPC Payment Milestones, including any Retainage paid (Exhibit 1)	US$
7.	Total previously paid for Work performed under Siemens Equipment Payment Milestones (Exhibit 1)	US$
8.	Total previously paid for Work completed under Owner-directed Change Orders (Exhibit 2)	US$
9.	Total paid to date for California sales and use Tax invoiced to Contractor under the Siemens Contract	US$
10.	Total paid to date (Line 6 + Line 7 + Line 8 + Line 9)	US$
11.	Payment Due (Line 3 + Line 4 + Line 5 - Line 10)	US$

II. ADJUSTMENTS. Explanation is listed below of any adjustments required to reconcile all previous Invoices, payments and Change Orders.

(Attach supporting documentation.)

Total adjustments	US$
Total Final Payment Due (Line I(12) +/- total adjustment in II)	US$

Contractor certifies that (i) all Work (except for that Work and obligations that survive the termination or expiration of the Agreement) has been fully and completely performed in accordance with the terms of the Agreement, including the completion of all Punchlist items; (ii) prices in this final Invoice and attached Exhibits are correct and in accordance with the Agreement; (iii) fully completed and executed Final Waiver and Release of Liens and Final Claim Waivers from Contractor and from all Major Subcontractors who performed Work for the Facility, as provided in Section 7.3 of the Agreement, are attached to this final Invoice; (iv) if requested by Owner, fully completed and executed Final Waiver and Release of Liens and Final Claim Waivers from all Major Sub-subcontractors who performed Work for the Facility, as provided in Section 7.3 of the Agreement, are attached to this final Invoice; (v) all Subcontractors have been fully paid in accordance with the terms of their Subcontracts, except for amounts that are the subject of this final Invoice, and attached

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is evidence acceptable to Owner that all Subcontractors and Sub-subcontractors have been fully paid, less amounts that are the subject of this final Invoice; (vi) all payrolls, Taxes, liens, charges, claims, demands, judgments, security interests, bills for Equipment, and any other indebtedness connected with the Work has been paid, including California state and applicable local sales and use Taxes which Contractor is required under the Agreement to pay (including, without limitation, any California sales and use Taxes which Contractor is required to pay under the Siemens Contract); (vii) Contractor has delivered an executed Final Completion Certificate, which has been accepted by Owner by signing such certificate; (viii) Contractor has completed all other obligations required under the Agreement for Final Completion; (ix) attached to this final Invoice is all documentation supporting Contractor’s request for payment as required under the Agreement; and (x) this final Invoice is signed by an authorized representative of Contractor.

CONTRACTOR		Subscribed and sworn to before me this                      day of                     , 20    .
Signed:
Name:
Title:
Date:	, 20	Notary Public
		My Commission Expires:                     , 20

I-13

MARSH LANDING GENERATING STATION

INVOICE NUMBER              INVOICE DATE                     , 20    

OWNER APPROVAL

AMOUNT APPROVED by Owner for Payment: US$                                

OWNER
Signed:
Name:
Title:
Date:	, 20

The AMOUNT APPROVED by Owner is without prejudice to any rights of Owner under the Agreement.

Explanation is listed below or attached if the AMOUNT APPROVED is less than the amount requested by Contractor under this Invoice:

.

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EXHIBIT 1

COMPLETION OF PAYMENT MILESTONES AND MUTUAL CHANGE ORDERS

1. MUTUAL CHANGE ORDERS: The following Change Orders have been executed by Owner and Contractor pursuant to Section 6.1B or Section 6.2C:

No.	Description of Change Order	US$
Total

2. EPC PAYMENT MILESTONES: The following EPC Payment Milestones were completed and invoiced in prior Invoices or were completed by Contractor within this Invoice Period.

A	B	C	D	E	F	G	H
Item No.	Description of EPC Payment Milestone	Original EPC Payment Milestone Amount	EPC Payment Milestone Amount as Adjusted by Change Order	EPC Payment Milestone Amount Previously Invoiced*	EPC Payment Milestone Amount for this Invoice Period**	Retainage Withheld***	Cumulative Amounts Paid by Owner, or Invoiced to Owner, for EPC Payment Milestones (less Retainage Withheld)
Total

* Column E contains the full EPC Payment Milestone amount for EPC Payment Milestones that were fully completed in accordance with the Agreement and invoiced in prior Invoices. No partial EPC Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed EPC Payment Milestones. If amounts listed in this Column E are left blank or are identified as “$0” (or similar indication), such identification indicates that the

I-15

applicable EPC Payment Milestone was not completed and invoiced in a prior Invoice.

** Column F contains the full EPC Payment Milestone amount for EPC Payment Milestones that were fully completed in accordance with the Agreement during the Invoice Period covered by this Invoice. No partial EPC Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed EPC Payment Milestones. If amounts listed in this Column F are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable EPC Payment Milestone was not completed and invoiced in this Invoice Period.

*** Column G shall include the amount of Retainage withheld from each EPC Payment Milestone that was previously completed and invoiced in prior Invoices or completed and invoiced within this Invoice Period.

3. SIEMENS EQUIPMENT PAYMENT MILESTONES: The following Siemens Equipment Payment Milestones were completed and invoiced in prior Invoices or were completed by Contractor within this Invoice Period.

A	B	C	D	E	F
Item No.	Description of Siemens Equipment Payment Milestone	Original Siemens Equipment Payment Milestone Amount	Siemens Equipment Payment Milestone Amount as Adjusted by Change Order	Siemens Equipment Payment Milestone Amount Previously Invoiced*	Siemens Equipment Payment Milestone Amount for this Invoice Period**
Total

* Column E contains the full Siemens Equipment Payment Milestone amount for Siemens Equipment Payment Milestones that were fully completed in accordance with the Agreement and invoiced in prior Invoices. No partial Siemens Equipment Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed Siemens Equipment Payment Milestones. If amounts listed in this Column E are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable Siemens Equipment Payment Milestone was not completed and invoiced in a prior Invoice.

** Column F contains the full Siemens Equipment Payment Milestone amount for Siemens Equipment Payment Milestones that were fully completed in accordance with the Agreement during the Invoice Period covered by this Invoice. No partial Siemens Equipment Payment Milestone amounts shall be included, and Contractor shall not include any amounts for partially completed Siemens Equipment Payment Milestones. If amounts listed in this Column F are left blank or are identified as “$0” (or similar indication), such identification indicates that the applicable Siemens Equipment Payment Milestone was not completed and is not being invoiced in this Invoice Period.

I-16

EXHIBIT 2

PAYMENTS FOR OWNER-DIRECTED CHANGE ORDERS

1. WORK COMPLETED UNDER OWNER-DIRECTED CHANGE ORDERS: The following Work has been completed in accordance with the Agreement under Owner-directed Change Orders on a time and material basis executed by Owner pursuant to Section 6.1C or Section 6.2D:

No.	Description of Owner- directed Change Order	Work Completed (From Previous Invoices) (US$)	Work Completed (This Invoice Period) (US$)*	Total Work Completed (US$)
Total

* The amounts in this column shall be further detailed in Section 2 below for each Change Order.

2. CALCULATION OF TIME AND MATERIAL CHARGES FOR OWNER-DIRECTED CHANGE ORDERS: The following table illustrates the costs incurred in performing any Change Orders on a time and material basis for the Invoice Period covered by this Invoice and in accordance with Section 6.3 of the Agreement.

A	B	C	D	E	F	G	H	I	J
No.	Description of Owner-directed Change Order	Direct Craft Labor Costs (US$)	Small Tools and Supplies Costs (***)	Construction Equipment Costs (US$)	Materials and Subcontracts Costs (US$)	Project Management, Engineering & Design Costs (US$)	California Sales and Use Taxes (US$)	General and Administrative Expenses (US$)	Profit (US$)
Total

The direct craft labor costs set forth in Column C above shall be itemized by each craft laborer employed for such Work, the applicable hourly rate and the hours expended by each laborer for each of the above Change Orders. Contractor shall provide support for such hours and allocation to applicable Change Orders through daily work logs, time sheets and other reasonable, objectively verifiable supporting documentation.

I-17

The total direct craft labor hours expended on the applicable Change Order (as supported by the documentation set forth in the foregoing sentence) shall be used to determine the small tool and supplies amount for Column D above.

The construction equipment costs for Column E and materials and subcontract costs in Column F shall be supported by invoices, purchase orders, Contractor’s work logs (for Contractor-owed construction equipment) and other reasonable, objectively verifiable supporting documentation.

The project management, engineering and design costs set forth in Column G above shall be itemized by each professional employed for such Work, the applicable hourly rate and the hours expended by each professional for each of the above Change Orders. Contractor shall provide support for such hours and allocation to applicable Change Orders through daily work logs, time sheets and other reasonable, objectively verifiable supporting documentation.

For purposes of determining the reimbursement to Contractor of California sales and use Taxes pursuant to Section 6.3F of the Agreement, such California sales and use Taxes to be reimbursed to Contractor (as set forth in Column H above) shall be determined by applying the applicable sales and use tax rate to (a) the taxable materials and subcontracts costs within the amounts set forth in Column F and (b) any taxable third party construction equipment rental costs within the amounts set forth in Column E incurred by Contractor.

The amounts set forth in Column I (general and administrative expenses) and Column J (profit) shall be calculated in accordance with Sections 6.3G and 6.3H (respectively) of the Agreement.

I-18

EXHIBIT 3

FINAL WAIVER AND RELEASE OF LIENS

AND

FINAL CLAIM WAIVERS

I-19

EXHIBIT 4

INFORMATION REQUIRED OR REQUESTED BY OWNER

I-20

EXHIBIT 5

CALIFORNIA SALES AND USE TAX INVOICED TO CONTRACTOR

UNDER THE SIEMENS CONTRACT

Amount of California sales and use Tax invoiced to Contractor under the Siemens Contract and requested by Contractor Invoice No. and Invoice date in which California sales and use Tax was invoiced by Siemens to Contractor Date that such California sales and use Tax was paid to the State by Contractor

Total California sales and use Tax invoiced to Contractor by Siemens under the Siemens Contract:             

I-21

Execution Version

ATTACHMENT J

HEALTH, SAFETY AND ENVIRONMENTAL POLICIES

***

J-1

Execution Version

ATTACHMENT K

FORM OF LIEN AND CLAIM WAIVERS

K-1

SCHEDULE K-1

CONTRACTOR’S INTERIM CONDITIONAL LIEN WAIVER AND RELEASE UPON

PROGRESS PAYMENT

(To be provided by Contractor with each invoice for progress payment)

STATE OF CALIFORNIA

COUNTY OF                     

Upon receipt by the undersigned, Kiewit Power Constructors Co. (“Contractor”), of payment from Mirant Marsh Landing, LLC (“Owner”) in the sum of $                    , this document shall become effective to release any mechanic’s lien, stop notice, or bond right the undersigned has on the job of Owner located at the Marsh Landing electric generation facility near Antioch, California to the following extent. This release covers a progress payment for labor, services, equipment, or material furnished to Owner through                      (Date) only and does not cover any retentions retained before or after the release date; extras furnished before the release date for which payment has not been received; extras or items furnished after the release date. Rights based upon work performed or items furnished under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic’s lien, stop notice, or bond right shall not otherwise affect the contract rights, including rights between parties to the contract based upon a rescission, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if that furnished labor, services, equipment, or material was not compensated by the progress payment. Before any recipient of this document relies on it, said party should verify evidence of payment to the undersigned.

Contractor agrees that this waiver and release form is in compliance with Cal. Civ. Code § 3262(d).

FOR CONTRACTOR:

Dated:	Kiewit Power Constructors Co.
Applicable to Invoice No.	By
	Print Name:
	Title:

K-2

SCHEDULE K-2

CONTRACTOR’S INTERIM CLAIM WAIVER AND RELEASE

UPON PROGRESS PAYMENT

(To be provided by Contractor with each invoice for progress payment)

STATE OF CALIFORNIA

COUNTY OF                     

The undersigned, Kiewit Power Constructors Co. (“Contractor”), has been engaged under a contract with Mirant Marsh Landing, LLC (“Owner”) to furnish certain materials, equipment, services, and/or labor for the construction of improvements to the Marsh Landing electric generation facility, together with all improvements and appurtenances attendant thereto (the “Facility”), which is located near the City of Antioch, State of California, and more particularly described as follows:

Upon receipt of the sum of $                    , Contractor waives and releases any and all claims, demands, actions, causes of action or other rights (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Contractor’s Interim Conditional Lien Waiver and Release Upon Progress Payment, which is executed concurrently with this form) against Owner through the date of                     , 20     and reserving those rights that Contractor might have in any retained amounts, on account of materials, equipment, services and/or labor furnished by the undersigned to or on account of Owner or any other entity for said Facility. Exceptions as follows:

(If no exception or “none” is entered above, undersigned shall be deemed not to have reserved any claim.)

Contractor affirms and represents that all subconsultants, laborers, materialmen, mechanics, manufacturers, suppliers, and subcontractors who have furnished services, labor, equipment, or materials, or any one of these items to Contractor have been paid in full for all work performed and all materials, equipment, labor or services supplied to Contractor for use at the Facility through and including                     , 20     (date of Contractor’s last prior invoice), and (b) that Contractor is not indebted to any person or entity for labor, equipment, services or materials used in connection with or as a part of such Facility in any amount whatsoever through and including the date hereof, excepting amounts for retainage and amounts, if any, reasonably disputed between Contractor and such person or entity, as follows:

(If no exception or “none” is entered above, no amounts have been withheld by Contractor for disputed items.)

This Waiver and Release is freely and voluntarily given and the undersigned acknowledges and represents that it has fully reviewed the terms and conditions of this Waiver and Release, that it is fully informed with respect to the legal effect of this Waiver and Release, and that it has voluntary chosen to accept the terms and conditions of this Waiver and Release in return for the payment recited above.

FOR CONTRACTOR:

Applicable to invoice no(s).

Signed:

By:

Title:

Date:

K-3

SCHEDULE K-3

SUBCONTRACTOR’S INTERIM CONDITIONAL LIEN WAIVER AND RELEASE

UPON PROGRESS PAYMENT

(To be provided by Subcontractor with each invoice for progress payment)

STATE OF CALIFORNIA

COUNTY OF                     

Upon receipt by the undersigned,                      (“Subcontractor”), of payment from Kiewit Power Constructors Co. (“Contractor”) in the sum of $                    , this document shall become effective to release any mechanic’s lien, stop notice, or bond right the undersigned has on the job of Mirant Marsh Landing, LLC (“Owner”) located at the Marsh Landing electric generation facility near Antioch, California to the following extent. This release covers a progress payment for labor, services, equipment, or material furnished to Contractor through                     (Date) only and does not cover any retentions retained before or after the release date; extras furnished before the release date for which payment has not been received; extras or items furnished after the release date. Rights based upon work performed or items furnished under a written change order which has been fully executed by the parties prior to the release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic’s lien, stop notice, or bond right shall not otherwise affect the contract rights, including rights between parties to the contract based upon a rescission, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment, or material covered by this release if that furnished labor, services, equipment, or material was not compensated by the progress payment. Before any recipient of this document relies on it, said party should verify evidence of payment to the undersigned.

Subcontractor agrees that this waiver and release form is in compliance with Cal. Civ. Code § 3262(d).

FOR SUBCONTRACTOR:

Dated:
Applicable to Invoice No.	By
	Print Name:
	Title:

K-4

SCHEDULE K-4

SUBCONTRACTOR’S INTERIM CLAIM WAIVER AND

RELEASE UPON PROGRESS PAYMENT

(To be provided by Subcontractor with each invoice for progress payment)

STATE OF CALIFORNIA

COUNTY OF                     

The undersigned,                      (“Subcontractor”), has been engaged under a contract with Kiewit Power Constructors Co. (“Contractor”) to furnish certain materials, equipment, services, and/or labor for the construction of improvements to the Marsh Landing electric generation facility, together with all improvements and appurtenances attendant thereto (the “Facility”), which is located near the City of Antioch, State of California, and more particularly described as follows:

Upon receipt of the sum of $                    , the Subcontractor waives and releases any and all claims, demands, actions, causes of action or other rights (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Subcontractor’s Interim Conditional Lien Waiver and Release Upon Progress Payment, which is executed concurrently with this form) against Mirant Marsh Landing, LLC (“Owner”) through the date of                     , 20     and reserving those rights that the Subcontractor might have in any retained amounts, on account of materials, equipment, services and/or labor furnished by the undersigned to or on account of Owner or any other entity for said Facility. Exceptions as follows:

(If no exception or “none” is entered above, undersigned shall be deemed not to have reserved any claim.)

Subcontractor affirms and represents that all subconsultants, laborers, materialmen, mechanics, manufacturers, suppliers, and subcontractors who have furnished services, labor, equipment, or materials, or any one of these items to the Subcontractor have been paid in full for all work performed and all materials, equipment, labor or services supplied to the Subcontractor for use at the Facility through and including                     , 20     (date of Subcontractor’s last prior invoice), and (b) that the Subcontractor is not indebted to any person or entity for labor, equipment, services or materials used in connection with or as a part of such Facility in any amount whatsoever through and including the date hereof, excepting amounts for retainage.

This Waiver and Release is freely and voluntarily given and the undersigned acknowledges and represents that it has fully reviewed the terms and conditions of this Waiver and Release, that it is fully informed with respect to the legal effect of this Waiver and Release, and that it has voluntary chosen to accept the terms and conditions of this Waiver and Release in return for the payment recited above.

FOR SUBCONTRACTOR:

Applicable to invoice no(s).

Signed:

By:

Title:

Date:

K-5

SCHEDULE K-5

CONTRACTOR’S FINAL CONDITIONAL LIEN WAIVER AND RELEASE UPON

FINAL PAYMENT

(To be provided by Contractor with the invoice for final payment)

STATE OF CALIFORNIA

COUNTY OF                     

Upon receipt by the undersigned, Kiewit Power Constructors Co. (“Contractor”), of payment from Mirant Marsh Landing, LLC (“Owner”) in the sum of $                    , this document shall become effective to release any mechanic’s lien, stop notice, or bond right the undersigned has on the job of Owner located at the Marsh Landing electric generation facility near Antioch, California. This release covers the final payment to the undersigned Contractor for all labor, services, equipment, or material furnished on the job, except for disputed claims for additional work in the amount of $                    . Before any recipient of this document relies on it, the party should verify evidence of payment to the undersigned.

Contractor agrees that this waiver and release form is in compliance with Cal. Civ. Code § 3262(d).

FOR CONTRACTOR:

Dated:	Kiewit Power Constructors Co.
Applicable to Invoice No.	By
	Print Name:
	Title:

AFFIDAVIT

On this      day of                     , 20    , before me appeared the above-signed, known or identified to me personally, who, being first duly sworn, did say that s/he is the authorized representative of Contractor and that this document was signed under oath personally and on behalf of Contractor.

Notary Public

My term expires (date):                    

K-6

SCHEDULE K-6

CONTRACTOR’S FINAL CLAIM WAIVER AND RELEASE UPON FINAL PAYMENT

(To be executed by Contractor with the invoice for final payment)

STATE OF CALIFORNIA

COUNTY OF                     

The undersigned, Kiewit Power Constructors Co. (“Contractor”), has been engaged under a contract with Mirant Marsh Landing, LLC (“Owner”) to furnish certain materials, equipment, services, and/or labor for the construction of improvements to the Marsh Landing electric generation facility, together with all improvements and appurtenances attendant thereto (the “Facility”), which is located near the City of Antioch, State of California, and more particularly described as follows:

Upon receipt of the sum of U.S. $                    (amount in invoice for final payment), Contractor waives and releases all claims, demands, actions, causes of actions or other rights at law, in contract, tort, equity or otherwise (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Contractor’s Final Conditional Lien Waiver and Release Upon Final Payment, which is executed concurrently with this form) that Contractor has, may have had or may have in the future against Owner arising out of the contract with Owner. This Contractor’s Waiver and Release applies to all facts, acts, events, circumstances, changes, constructive or actual delays, accelerations, extra work, disruptions, interferences and the like which have occurred, or may be claimed to have occurred prior to the date of this Waiver and Release, whether or not known to Contractor at the time of the execution of this Waiver and Release.

Contractor represents that all of its obligations, legal, equitable, or otherwise, relating to or arising out of its work on the Facility have been fully satisfied (except for that work and obligations that survive the termination or expiration of the contract, including warranties and correction of defective work), including, but not limited to, payment to subcontractors and employees and payment of taxes.

This Waiver and Release is freely and voluntarily given, and Contractor acknowledges and represents that it has fully reviewed the terms and conditions of this Waiver and Release, that it is fully informed with respect to the legal effect of this Waiver and Release, and that it has voluntarily chosen to accept the terms and conditions of this Waiver and Release in return for the payment recited above. Contractor understands, agrees and acknowledges that, upon payment, this document waives rights unconditionally and is fully enforceable to extinguish all claims (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Contractor’s Final Conditional Lien Waiver and Release Upon Final Payment, which is executed concurrently with this form) of Contractor as of the date of execution of this document by Contractor.

FOR CONTRACTOR:

Applicable to Invoice No(s):         ALL        

Signed:

By:

Title:

Date:

K-7

AFFIDAVIT

On this      day of                     , 20    , before me appeared the above-signed, known or identified to me personally, who, being first duly sworn, did say that s/he is the authorized representative of Contractor and that this document was signed under oath personally and on behalf of Contractor.

Notary Public

My term expires (date):                    

K-8

SCHEDULE K-7

SUBCONTRACTOR’S FINAL CONDITIONAL LIEN WAIVER AND RELEASE UPON

FINAL PAYMENT

(To be provided by Subcontractor with the invoice for final payment)

STATE OF CALIFORNIA

COUNTY OF                     

Upon receipt by the undersigned,                      (“Subcontractor”), of payment from Kiewit Power Constructors Co. (“Contractor”) in the sum of $                    , this document shall become effective to release any mechanic’s lien, stop notice, or bond right the undersigned has on the job of Mirant Marsh Landing, LLC (“Owner”) located at the Marsh Landing electric generation facility near Antioch, California. This release covers the final payment to the undersigned Subcontractor for all labor, services, equipment, or material furnished on the job, except for disputed claims for additional work in the amount of $                    . Before any recipient of this document relies on it, the party should verify evidence of payment to the undersigned.

Subcontractor agrees that this waiver and release form is in compliance with Cal. Civ. Code § 3262(d).

FOR SUBCONTRACTOR:

Dated:
Applicable to Invoice No.	By
	Print Name:
	Title:

AFFIDAVIT

On this      day of                     , 20    , before me appeared the above-signed, known or identified to me personally, who, being first duly sworn, did say that s/he is the authorized representative of Subcontractor and that this document was signed under oath personally and on behalf of Subcontractor.

Notary Public

My term expires (date):                    

K-9

SCHEDULE K-8

SUBCONTRACTOR’S FINAL CLAIM WAIVER AND RELEASE UPON

FINAL PAYMENT

(To be executed by Subcontractor with the invoice for final payment)

STATE OF CALIFORNIA

COUNTY OF                     

The undersigned,                      (“Subcontractor”), has been engaged under a contract with Kiewit Power Constructors Co. (“Contractor”) to furnish certain materials, equipment, services, and/or labor for the construction of improvements to the Marsh Landing electric generation facility, together with all improvements and appurtenances attendant thereto (the “Facility”), which is located near the City of Antioch, State of California, and more particularly described as follows:

Upon receipt of the sum of U.S.$                     (amount in invoice for final payment), Subcontractor waives and releases all claims, demands, actions, causes of actions or other rights at law, in contract, tort, equity or otherwise (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Subcontractor’s Final Conditional Lien Waiver and Release Upon Final Payment, which is executed concurrently with this form) that Subcontractor has, may have had or may have in the future against Mirant Marsh Landing, LLC (“Owner”) arising out of, or in any way related to, Subcontractor’s subcontract with Contractor or the Facility. This Subcontractor’s Waiver and Release applies to all facts, acts, events, circumstances, changes, constructive or actual delays, accelerations, extra work, disruptions, interferences and the like which have occurred, or may be claimed to have occurred prior to the date of this Waiver and Release, whether or not known to Subcontractor at the time of the execution of this Waiver and Release.

Subcontractor represents that all of its obligations, legal, equitable, or otherwise, relating to or arising out of its work on the Facility have been fully satisfied, including, but not limited to, payment to lower tiered subcontractors and employees and payment of taxes.

This Waiver and Release is freely and voluntarily given, and Subcontractor acknowledges and represents that it has fully reviewed the terms and conditions of this Waiver and Release, that it is fully informed with respect to the legal effect of this Waiver and Release, and that it has voluntarily chosen to accept the terms and conditions of this Waiver and Release in return for the payment recited above. Subcontractor understands, agrees and acknowledges that, upon payment, this document waives rights unconditionally and is fully enforceable to extinguish all claims (except those concerning lien, stop notice or bond rights which are separately waived pursuant to Cal. Civ. Code § 3262(d) by the Subcontractor’s Final Conditional Lien Waiver and Release Upon Final Payment, which is executed concurrently with this form) of Subcontractor as of the date of execution of this document by Subcontractor.

FOR SUBCONTRACTOR:

Applicable to Invoice No(s):        ALL        

Signed:

By:

Title:

Date:

K-10

AFFIDAVIT

On this      day of                     , 20    , before me appeared the above-signed, known or identified to me personally, who, being first duly sworn, did say that s/he is the authorized representative of Subcontractor and that this document was signed under oath personally and on behalf of Subcontractor.

Notary Public

My term expires (date):                    

K-11

Execution Version

ATTACHMENT L

FORM OF MECHANICAL COMPLETION CERTIFICATE

Mirant Marsh Landing, LLC

c/o Mirant Corporation

1155 Perimeter Center West

Atlanta, Georgia 30338

Attention: Mike Ammer

Re: Mechanical Completion Certificate for                      (insert applicable system or subsystem) – The Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station dated as of [            , 20    ] (the “Agreement”), by and between Mirant Marsh Landing, LLC (“Owner”) and Kiewit Power Constructors Co. (“Contractor”)

Pursuant to Section 12.1B of Agreement, Contractor hereby certifies that it has completed all requirements under the Agreement for Mechanical Completion with respect to                      (insert applicable system or subsystem), and that, with the exception of Punchlist items, all of the following have occurred: (i) Contractor has completed all procurement, fabrication, assembly, erection and installation and pre-commissioning checks and tests for such system or subsystem (as further described in the Scope of Work) to ensure that the applicable system or subsystem (including all Equipment related to such system or subsystem) was correctly fabricated, assembled, erected and installed and is capable of being operated safely and reliably within the requirements and specifications contained in the Agreement, including the setting of such Equipment on foundations, connecting such Equipment to other applicable Equipment with piping, wiring, controls, and safety systems, ensuring that such Equipment and such related operating systems are individually cleaned, leak checked, lubricated, and point-to-point checked to verify that such Equipment and operating systems have been correctly installed so as to respond to simulated test signals equivalent to actual signals received during operation, and are ready for initial operation, adjustment and testing and may be so operated, adjusted and tested without damage thereto or to any other property and without injury to any Person, all as set forth in greater detail in Attachments A and V and the Mechanical Completion checklists agreed by Owner and Contractor in accordance with Section 12.1B of the Agreement; (ii) Contractor has completed the Work, to the extent necessary, to cause such system or subsystem to be capable of operating safely in accordance with Applicable Laws, prudent utility practices, and GECP for further commissioning and testing; (iii) Contractor has submitted to Owner an initial Punchlist of items as set forth in Section 12.5A of the Agreement; (iv) Contractor hereby delivers to Owner this Mechanical Completion Certificate; and (v) Contractor has performed all other obligations required under the Agreement for Mechanical Completion.

Contractor certifies that all requirements under the Agreement for Mechanical Completion with respect to                      (insert applicable system or subsystem) were achieved on             , 20    .

Attached is all documentation required to be provided by Contractor under the Agreement to establish that all requirements under the Agreement for Mechanical Completion of the applicable system or subsystem have been achieved.

IN WITNESS WHEREOF, Contractor has caused this Mechanical Completion Certificate to be duly executed and delivered as of the date first written above.

KIEWIT POWER CONSTRUCTORS CO.

By:

Name:

Title:

Date:

cc:                             

L-1

Owner Acceptance or Rejection of Mechanical Completion Certificate

Pursuant to Section 12.3 of the Agreement, Owner                      accepts or                      rejects (check one) the Mechanical Completion Certificate for                      (insert applicable system or subsystem)

If Mechanical Completion with respect to                      (insert applicable system or subsystem) was achieved, Mechanical Completion was achieved on             , 200    .

Acceptance of this Mechanical Completion Certificate shall not relieve Contractor of any of Contractor’s obligations to perform the Work in accordance with the requirements of the Agreement, nor shall it in any way release Contractor or any surety of Contractor from any obligations or liability pursuant to the Agreement, including obligations with respect to unperformed obligations of the Agreement or for any Work that does not conform to the requirements of the Agreement.

The basis for any rejection of Mechanical Completion is attached hereto.

For and on behalf of

MIRANT MARSH LANDING, LLC

By:

Name:

Title:

Date:

L-2

Execution Version

ATTACHMENT M

FORM OF SUBSTANTIAL COMPLETION CERTIFICATE

Mirant Marsh Landing, LLC

c/o Mirant Corporation

1155 Perimeter Center West

Atlanta, Georgia 30338

Attention: Mike Ammer

Re: Substantial Completion Certificate – The Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station dated as of [            , 20    ] (the “Agreement”), by and between Mirant Marsh Landing, LLC (“Owner”) and Kiewit Power Constructors Co. (“Contractor”)

Pursuant to Section 12.2 of Agreement, Contractor hereby certifies that it has completed all requirements under the Agreement for Substantial Completion with respect to the Facility, as follows: (i) Mechanical Completion of the Facility; (ii) all Minimum Acceptance Criteria have been achieved; (iii) Contractor and Owner have agreed upon a revised and updated Punchlist of items as set forth in Section 12.5B of the Agreement; (iv) all Work has been completed (including training and the delivery of all documentation, manuals and instruction books necessary for safe and proper operation), except for Work on the Punchlist and the Final Completion requirements identified in clauses (ii) through (xii) of the definition of Final Completion set forth in this Article 1, in accordance with the requirements and specifications of this Agreement; (v) Contractor hereby delivers to Owner this Substantial Completion Certificate; (vi) the Facility is available for commercial operation and can be safely used for its intended purpose and all four (4) Units and all related systems can be safely and reliably operated within the requirements and specifications of the Agreement in order to deliver electrical output in accordance with the requirements and specifications of the Agreement; (vii) Contractor has obtained all Permits for the Facility that it is obligated to obtain under this Agreement; (viii) certificates of occupancy for all applicable buildings at the Facility have been issued; (ix) Contractor has assigned to or provided Owner with all Warranties to the extent Contractor is obligated to do so pursuant to this Agreement (including Section 13.1C of the Agreement); and (x) Contractor has performed all other obligations required under this Agreement for Substantial Completion.

Contractor certifies that it achieved all requirements under the Agreement for Substantial Completion on                     , 20    .

Attached is all documentation required to be provided by Contractor under the Agreement to establish that Contractor has achieved all requirements under the Agreement for Substantial Completion, including all test reports.

IN WITNESS WHEREOF, Contractor has caused this Substantial Completion Certificate to be duly executed and delivered as of the date first written above.

KIEWIT POWER CONSTRUCTORS CO.

By:

Name:

Title:

Date:

cc:                             

M-1

Owner Acceptance or Rejection of Substantial Completion Certificate

Pursuant to Section 12.3 of the Agreement, Owner                      accepts or                      rejects (check one) the Substantial Completion Certificate.

If Substantial Completion was achieved, Substantial Completion was achieved on             , 20    .

Acceptance of this Substantial Completion Certificate shall not relieve Contractor of any of Contractor’s obligations to perform the Work in accordance with the requirements of the Agreement, nor shall it in any way release Contractor or any surety of Contractor from any obligations or liability pursuant to the Agreement, including obligations with respect to unperformed obligations of the Agreement or for any Work that does not conform to the requirements of the Agreement.

The basis for any rejection of Substantial Completion is attached hereto.

For and on behalf of

MIRANT MARSH LANDING, LLC

By:

Name:

Title:

Date:

M-2

Execution Version

ATTACHMENT N

FORM OF FINAL COMPLETION CERTIFICATE

Mirant Marsh Landing, LLC

c/o Mirant Corporation

1155 Perimeter Center West

Atlanta, Georgia 30338

Attention: Mike Ammer

Re: Final Completion Certificate – The Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station dated as of [            , 20    ] (the “Agreement”), by and between Mirant Marsh Landing, LLC (“Owner”) and Kiewit Power Constructors Co. (“Contractor”)

Pursuant to Section 12.6 of Agreement, Contractor hereby certifies that all Work and all other obligations under the Agreement (except for that Work and obligations that survive the termination or expiration of the Agreement, including obligations for Warranties and correction of Defective Work) are fully and completely performed in accordance with the terms of the Agreement, including: (i) the successful achievement of Mechanical Completion and Substantial Completion; (ii) the completion of all Punchlist items; (iii) delivery by Contractor to Owner of Contractor’s fully executed Final Waiver and Release of Liens in the form of Schedule K-5 and Final Claim Waiver in the form of Schedule K-6; (iv) delivery by Contractor to Owner of all documentation required to be delivered under this Agreement, including Record As-Built Drawings and Specifications, Owner’s Confidential Information and the final operating and maintenance manuals for the Facility; (v) delivery to Owner, in content and form reasonably satisfactory to Owner, copies of all required Subcontracts, written assignments of Subcontractor warranties and a list of the names, addresses and telephone numbers of the Subcontractors providing such warranties; (vi) removal from the Site of all of Contractor’s, Subcontractors’ and Sub-subcontractor’s personnel, supplies, waste, materials, equipment (except Equipment), rubbish, Hazardous Materials, and temporary facilities; (vii) delivery by Contractor to Owner of evidence acceptable to Owner that all Major Subcontractors and Sub-subcontractors have been fully and finally paid, including fully executed Final Waiver and Release of Liens in the form of Schedule K-7 and Final Claim Waivers in the form of Schedule K-8 from all Major Subcontractors; (viii) if requested by Owner, fully executed Final Waiver and Release of Liens from Major Sub-subcontractors in a form substantially similar to the form in Schedule K-7 and fully executed Final Claim Waivers from Major Sub-subcontractors in a form substantially similar to the form in Schedule K-8; (ix) achievement of all Performance Guarantees, or if all Performance Guarantees are not achieved, the payment of all applicable Performance Liquidated Damages; (x) achievement of the Starting Reliability Requirement; (xi) delivery to Owner of all specialty tools required for the operation and maintenance of the Facility and the operating spare parts (if any) required to be provided to Owner under this Agreement (other than those operating spare parts for the Siemens Equipment which are provided by Contractor pursuant to Section 3.4C of the Agreement); (xii) Contractor hereby delivers to Owner this Final Completion Certificate; and (xiii) performance by Contractor of all other obligations required under this Agreement for Final Completion.

Contractor certifies that all requirements under the Agreement for Final Completion were achieved on             , 20    .

Attached is all documentation required to be provided by Contractor under the Agreement to establish that all requirements under the Agreement for Final Completion have been achieved.

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IN WITNESS WHEREOF, Contractor has caused this Final Completion Certificate to be duly executed and delivered as of the date first written above.

KIEWIT POWER CONSTRUCTORS CO.

By:

Name:

Title:

Date:

cc:                             

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Owner Acceptance or Rejection of Final Completion Certificate

Pursuant to Section 12.6 of the Agreement, Owner                      accepts or              rejects (check one) the Final Completion Certificate.

If Final Completion was achieved, Final Completion was achieved on             , 20    .

Acceptance of this Final Completion Certificate shall not relieve Contractor of any of Contractor’s obligations to perform the Work in accordance with the requirements of the Agreement, nor shall it in any way release Contractor or any surety of Contractor from any obligations or liability pursuant to the Agreement, including obligations with respect to unperformed obligations of the Agreement or for any Work that does not conform to the requirements of this Agreement, including Warranty obligations.

The basis for any rejection of Final Completion is attached hereto.

For and on behalf of

MIRANT MARSH LANDING, LLC

By:

Name:

Title:

Date:

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Execution Version

ATTACHMENT O

INSURANCE REQUIREMENTS

1. Contractor’s Insurance. Prior to commencement of the Work, Contractor shall provide and maintain at its own cost and expense the following insurance coverages and limits until the earlier of Final Completion or termination of this Agreement, except for Products and Completed Operations coverage as described in the Sections below. The limits of coverage required by the Agreement may be satisfied by a combination of primary and excess (or umbrella) insurance policies provided that the form of the excess/umbrella coverage follows the form of the primary liability insurance. All insurance obtained by Contractor hereunder shall be written by a company or companies with a Best’s rating of no less than A minus: VII or equivalent and shall be written on an occurrence basis. Such company or companies must be lawfully authorized to do business in the jurisdiction in which the Project is located and/or where any services related to the Agreement are performed

1.1. Commercial General Liability Insurance.

1.1.1. Commercial General Liability Insurance providing coverage of *** as will protect Contractor and its respective employees, representatives and agents from third party bodily injury (including death) and property damage claims which may arise out of or result from the operations of Contractor under the Agreement. The policy limits shall apply on a per project basis.

1.1.2. The Liability insurance in this Section 1.1 shall be written on an occurrence form and include Comprehensive Form, Premises and Operations, Independent Contractors, Products and Completed Operations, Blanket Written Contractual, Broad Form Property Damage, Explosion, Collapse and Underground Hazard (XCU coverage), and Personal Injury liability coverages. A cross liability and severability of interest clause shall be included. Blanket Contractual Liability Insurance shall specifically include Contractor’s indemnification obligations under the Agreement for personal and bodily injury (including death) and property damage, and shall provide that any defense costs are included within the coverage.

1.1.3. Products and Completed Operations required in this Section 1.1 shall continue for a period of *** after the earlier of Substantial Completion of the Facility and termination of the Agreement.

1.2. Business Automobile Liability Insurance. Business Automobile Liability Insurance, including coverage for the operation of all owned, non-owned and hired vehicles (coverage code 1 – “any auto”) including trailers with limits of liability for bodily injury (including death) and property damage of *** for each accident. Coverage shall be as broad as the ISO Business Automobile Coverage Form. If scope of Work involves hauling hazardous materials, coverage shall be endorsed or be required of a hauling contractor in accordance with Section 30 of the Motor Carrier Act of 1980 (Category 2) and the CA 99 48 endorsement.

1.3. Workers’ Compensation and Employers’ Liability Insurance. Workers’ Compensation Insurance or its substantial equivalent on its employees for statutory obligations imposed by Workers’ Compensation or Occupational Disease laws and regulations of the applicable

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jurisdiction, including coverage for the benefits provided under the United States Longshoremen & Harbor Workers’ Act, the Jones Act and other appropriate extensions, with Employer’s Liability Insurance (Coverage B) including Maritime, to limits of *** each accident. Coverage under the Broad Form All States extension shall be included. For comparable exposures falling outside of the United States, Contractor shall comply with all legally required obligations related to employee injuries, including obligations related to compensation for medical costs and/or lost wages.

1.4. Aircraft Liability Insurance. Should aircraft be utilized under the Agreement, Aircraft Liability Insurance, including coverage for the operation of all owned, non-owned and hired aircraft with limits of liability for bodily injury and property damage of ***. Such insurance shall cover occurrences at and away from the Site.

1.5. Watercraft Liability Insurance. Should watercraft be utilized under the Agreement, Watercraft Liability Insurance, including coverage for the operation of all owned, non-owned and hired watercraft with limits of liability for bodily injury and property damage of ***. Such insurance shall cover occurrences at and away from the Site.

1.6. Contractor’s Pollution Liability. Contractor’s Pollution Liability providing coverage of *** for:

1.6.1. bodily injury, sickness, disease, mental anguish or shock sustained by any Person, including death;

1.6.2. property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean up costs, and the loss of use of tangible property that has not been physically injured or destroyed; and

1.6.3. defense including loss adjustment costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages.

1.7. Excess Liability Insurance. Umbrella Excess Liability Insurance with a limit of not less than *** and shall provide excess coverage and is to follow form of the primary Commercial General Liability, Business Automobile Liability, Employers’ Liability, Aircraft Liability (if applicable), and Watercraft Liability (if applicable). The policy limits shall apply on a per project basis.

1.8. Other Insurance.

1.8.1. International Insurance. Additional insurance may be required in accordance with the customs of the country where any part of the operation of the Agreement will occur.

1.8.2. Difference in Conditions Policy. If insurance under Section 1.8.1 is obtained, a Difference in Conditions Policy with the applicable limit required in Section 1.1 through 1.7 above shall be procured to complete gaps left by the local policy that are customarily included in a policy issued in the United States.

1.9. General Insurance Conditions. Other than (i) coverage under the builder’s risk insurance to be procured by Owner pursuant to Section 2.1 in this Attachment O and (ii) coverage under the marine cargo insurance (excluding coverage for the Siemens Equipment) to be procured

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by Owner pursuant to Section 2.2 in this Attachment O, all coverages provided by Contractor shall be primary coverage for incidents arising from the Work or otherwise under the Agreement and pay without contribution for any other coverage procured or maintained by Owner, its Affiliates and/or its Lender(s) regardless of whether or not Owner has similar coverage. Contractor shall bear all cost for payment of any and all deductibles or self-insured retentions under its policies and shall remain solely and fully liable for the full amount of any claim or item not compensated by insurance. Contractor’s deductible shall encompass the costs of defense, including court costs and attorneys fees. All insurance coverage required to be carried by Contractor under the Agreement (except workers’ compensation/employer’s liability insurance) shall be endorsed to name the Owner Group as additional insured and other parties reasonably requested by Owner for their imputed liability as a result of Contractor’s operations hereunder. Unless prohibited by Applicable Law, Contractor shall waive and will require its insurers to waive any right of recovery, under subrogation or otherwise, against the Owner Group.

1.10. Other Duties, Representations, and Obligations.

1.10.1. Certificates of Insurance. Certificates of Insurance will be provided by Contractor on an industry standard ACORD Form 25 and shall be filed with Owner prior to commencement of the Work. These Certificates and the insurance policies required by the Agreement shall contain a provision that the coverages afforded under Contractor’s policies shall not be canceled without first giving at least sixty (60) Days prior written notice thereof to Owner. No such cancellation shall affect Contractor’s obligation to maintain the insurance coverages required by the Agreement. Upon expiration of all required policies, renewal certificates shall be sent to Owner for verification of continued compliance of Contractor’s insurance requirements under the Agreement. Without relieving Contractor of any obligations to maintain the insurance required herein, Contractor shall give Owner prompt notice of any modification or change to the limits of any policy required herein.

1.10.2. Violation of Insurance Terms. Contractor shall not violate or knowingly permit any violation of any conditions or terms of the policies of insurance required by the Agreement.

1.10.3. Failure to Maintain Insurance. In the event Contractor neglects, refuses or fails to provide or maintain any of the insurance required under the Agreement or if such insurance is cancelled for any reason, Owner shall have the right, but not the obligation, to procure or maintain the same. In the event Owner does procure or maintain such insurance, Owner shall have, in addition to any and all other available remedies, the right to recover from Contractor all of the costs associated with procuring or maintaining such insurance.

1.10.4. No Waiver of Liability. The foregoing provisions requiring Contractor to carry insurance shall not be construed in any manner as waiving, restricting or limiting the liability of Contractor as to any obligations imposed under Agreement, whether or not same are, or may be, covered by insurance. In addition, the maintenance of Contractor’s insurance shall not in any way operate to limit the liability of Contractor to Owner under the Agreement.

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1.10.5. Additional Insurance. Upon a reasonable written request from Owner, Contractor shall provide as soon as practicable additional insurance, including increased coverage and/or limits of liability, as Owner deems appropriate for the risk involved, and Owner will pay Contractor the additional actual premium cost thereof by Change Order. In addition, Contractor agrees to cooperate with Owner as to any changes or additions to the insurance required to be provided by Contractor under the Agreement, which are made necessary by requirements imposed by the Lender(s), provided that any additional, actual premium cost resulting from such Lender’s requirements shall be paid by Owner to Contractor by Change Order.

1.10.6. Premium Audit. With respect to any special policies or additional limits procured as a result of the Agreement, Contractor herby grants permission to Owner, or Owner’s representative, to audit any request for premium reimbursement including permission for Owner to contact and receive its broker’s certification.

1.10.7. Contractor’s Property. In accordance with Section 3.7 of the Agreement, Contractor shall be responsible for and shall bear the risk of loss and damage to any (i) construction tools and equipment of Contractor (owned or rented) and (ii) any property (other than the Work) for which it is responsible or that is in its care, custody and control, wherever located. Any insurance provided for such construction tools and equipment and such other property shall be at Contractor’s expense and shall otherwise comply with the requirements of this Attachment O. All deductibles with respect to the Contractor’s insurance shall be for the account of Contractor.

1.11. Subcontractor’s Insurance.

1.11.1. Levels of Coverage. Contractor shall require all Subcontractors and Sub-subcontractors that may work on or in connection with the Project to maintain the coverages required in this Section 1, or at least equivalent coverage; provided however, that Contractor may vary the limits of such coverage of Subcontractors and Sub-subcontractors depending on the services provided, but such limits shall be comparable to those customarily provided by other contractors working within similar size and scope of business. In no event shall the insurance requirements be deemed to limit the liability or responsibility of Contractor or any of its Subcontractors or Sub-subcontractors to Owner.

1.11.2. Waiver of Rights. Contractor shall use commercially reasonable efforts to require (i) all Subcontractors and Sub-subcontractors to waive the rights of recovery, under subrogation or otherwise, against the Owner Group, and (ii) all insurance coverage required to be carried by any Subcontractor or Sub-subcontractor (except worker’s compensation/employer’s liability) shall be endorsed to name the Owner Group as additional insured and the other parties reasonably requested by Owner for their imputed liability as a result of any Subcontractor’s or Sub-subcontractor’s operations; provided, however, if Contractor is not able to so obtain these waivers and endorsements from any Subcontractor or Sub-subcontractor despite using commercially reasonable efforts, Contractor shall, in addition to any other indemnification and defense obligations under the Agreement, defend and indemnify the Owner Group from

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any and all damages, losses, costs and expenses that would have otherwise been covered if Contractor had obtained such waivers and endorsements.

1.12. Miscellaneous. Contractor shall do nothing to void or make voidable any of the insurance policies purchased and maintained by Contractor or Owner hereunder. Contractor shall promptly give Owner notice in writing of the occurrence of any casualty, claim, event, circumstance, or occurrence that may give rise to a claim under an insurance policy provided by Owner or Contractor pursuant to this Attachment O and arising out of or relating to the performance of the Work; provided, however, in no event shall such notice be no more than three (3) Days after Contractor has received notice of a claim or intent to file a claim. In addition, Contractor shall ensure that Owner is kept fully informed of any subsequent action and developments concerning the same, and assist in the investigation of any such casualty, claim, event, circumstance that may have a material impact on Owner or Contractor’s ability to meet any obligations under the Agreement.

2. Owner’s Insurance.

2.1. Builders All Risk Insurance. Owner shall provide and maintain, from commencement of any Work resulting in improvements at the Site until Substantial Completion of the Project, builder’s risk insurance written on an “all-risk” form insuring the Work intended to be permanently incorporated into the Project, on a replacement cost basis while under construction and during any testing, including hot testing. Such insurance will include design defect coverage of LEG 2/96 or equivalent, sublimits, conditions and exclusions (including for earthquake), and shall include the interests of Owner, its Lender(s), and Contractor (including Contractor’s Affiliates and Subcontractors). Prior to placement, Owner shall allow Contractor a reasonable period of time to review and comment (but not approve) the builder’s risk insurance policy, and Owner shall provide to Contractor a certificate of insurance or copy of the policy confirming the status of Contractor and its Subcontractors as an additional named insured on the builder’s risk insurance policy. The insurance policy shall provide a waiver of all rights of subrogation against the Lender(s) and Contractor (including Contractor’s Affiliates and Subcontractors), except to the extent limited by the terms of the policy. The furnishing of the builder’s risk insurance by Owner shall in no way relieve, or limit, or be construed to relieve or limit, the Contractor or the Subcontractors or Sub-subcontractors of any other responsibility or obligation otherwise imposed by the Agreement. Insured losses under the builder’s risk insurance shall be adjusted by or on behalf of Owner and Contractor and made payable to Contractor and Owner as their interest may appear or their designate(s), and Contractor shall pay its Subcontractors their respective shares of the insurance proceeds paid by the policy; provided, however, if Owner’s financing documents with its Lender(s) require the deposit of insurance proceeds to a Person other than Contractor or Owner, then, notwithstanding the foregoing, Owner shall only be obligated to pay to Contractor its respective share of the insurance proceeds to the extent Owner receives such proceeds under its financing documents.

2.2. Marine Cargo Insurance. Owner shall procure marine cargo insurance to provide coverage for loss of or damage to equipment and materials and all other property, including property in transit or temporary storage, used for or intended for incorporation in the Work. Coverage shall be arranged on an open-cover basis, written on an “all risk” basis to include war risks, transport requirements, (including waterborne and airborne transit requirements for the Work, and the unloading and reloading at temporary location and transshipment to the Site) and overland transit requirements (including overland and transshipments). Such insurance will include commercially reasonable sublimits, conditions and exclusions and shall attach at the

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commencement of loading at the applicable Contractor or Subcontractor premises, including temporary storage during transit, until safe unloading at the Site. With respect to Equipment other than the Siemens Equipment, Contractor shall bear any and all costs for insurer loss control inspections prior to and during shipment including loading and unloading. Such insurance shall provide coverage while the insured property is in conveyance in, by or on vessel, barge, air, road, rail or any other conveyance by land, sea or air including connections. Such insurance shall include the interests of Owner, its Lender(s), and Contractor (including Contractor’s Affiliates and Subcontractors). Prior to placement, Owner shall allow Contractor a reasonable period of time to review and comment (but not approve) the marine cargo insurance policy, and Owner shall provide to Contractor a certificate of insurance or copy of the policy confirming the status of Contractor and its Subcontractors as an additional named insured on the marine cargo insurance policy. The marine cargo insurance policy shall provide a waiver of all rights of subrogation against the Lender(s) and Contractor (including Contractor’s Affiliates and Subcontractors), except to the extent limited by the terms of the policy. The furnishing of said insurance by Owner shall in no way relieve, or limit, or be construed to relieve or limit, Contractor or its Subcontractors or Sub-subcontractors of any other responsibility or obligation otherwise imposed by the Agreement. Insured losses under the marine cargo insurance shall be adjusted by or on behalf of Owner and Contractor and made payable to Contractor and Owner as their interests may appear or their designate(s), and Contractor shall pay its Subcontractors their respective shares of the insurance proceeds paid by the policy; provided, however, if Owner’s financing documents with its Lender(s) require the deposit of insurance proceeds to a Person other than Contractor or Owner, then, notwithstanding the foregoing, Owner shall only be obligated to pay to Contractor its respective share of the insurance proceeds to the extent Owner receives such proceeds under its financing documents.

2.3. Contractor Compliance. Contractor will promptly comply with the written recommendations of Owner’s insurance carriers so that said insurance carriers will continue to provide the coverage to be maintained by Owner pursuant to the Agreement at a reasonable premium.

2.4. Delay In Start Up Insurance. Owner has the right, but not the obligation, to procure and maintain delay in startup insurance in connection with the builder’s risk insurance and marine cargo insurance. If Owner elects to procure and maintain such insurance, any such proceeds shall be payable solely to Owner and shall not in any way reduce or relieve Contractor of any of its obligations or liabilities under the Agreement.

2.5. Deductibles. With respect to insurance provided by Owner under Sections 2.1 and 2.2 of this Attachment O, Contractor shall be responsible for the deductibles under such insurance as set forth in Section 9.2A.1 of the Agreement.

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Execution Version

ATTACHMENT P

CONTRACTOR PERMITS

Contractor shall obtain the following Permits as well as any other Permits required by Applicable Law to be procured in Contractor’s name.

Permit Description

Demolition

Well Installation and Drilling

Certificates of Occupancy

Construction Permits, including for Grading and Drainage, Excavation, Building and Notice of Intent for Storm Water Construction

Transportation-related Permits (including Heavy Haul Permits) for transportation of Equipment to the Site

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Execution Version

ATTACHMENT Q

OWNER PERMITS

Owner shall be responsible for obtaining the following Permits and any other Permits required to be procured in Owner’s name under Applicable Law.

Permit Description

California Energy Commission Final Commission Decision

Bay Area Air Quality Management District Authority to Construct and Title V Permit

CAISO Interconnection

Notice of Intent to Comply with California Statewide General Industrial Stormwater Permit (State Water Resources Control Board Order No. 97-03-DWQ)

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Execution Version

ATTACHMENT R

FORM OF IRREVOCABLE STANDBY PERFORMANCE LETTERS OF CREDIT

SCHEDULE R-1

FORM OF CONTRACTOR LETTER OF CREDIT

***

Execution Version

SCHEDULE R-2

FORM OF OWNER LETTER OF CREDIT

***

Execution Version

ATTACHMENT S

PERFORMANCE TESTS

1. Performance Tests. The Performance Tests will be conducted to determine whether the Minimum Acceptance Criteria, the Performance Guarantees and the Starting Reliability Requirement are achieved for each Unit of the Facility. The Performance Tests shall include the following:

1.1. Net Power Output and Net Heat Rate Performance Test. The Performance Test to measure Net Power Output and Net Heat Rate of each Unit is generally described in Section 3.1 of this Attachment S.

1.2. Emissions Performance Test. The Performance Test to measure the emissions levels of each Unit is generally described in Section 3.2 of this Attachment S.

1.3. Sound Level Performance Test. The Performance Test to measure the near field sound level of each Unit is generally described in Section 3.3 of this Attachment S.

1.4. Ramp Time Performance Test. The Performance Test to determine whether the Ramp Time Minimum Acceptance Criteria is achieved for each Unit is generally described in Section 3.4 of this Attachment S.

1.5. Starting Reliability Performance Test. The Performance Test to determine whether the Starting Reliability Requirement is achieved for each Unit is generally described in Section 3.5 of this Attachment S.

2. Performance Test Procedures. The test procedures for each of the Performance Tests are set out in general detail in this Attachment S. Contractor shall, no later than one hundred eighty (180) Days prior to the scheduled date for commencement of Performance Tests for the first Unit (as shown by the then-current CPM Performance Measurement Baseline Schedule), submit to Owner for Owner’s comment and approval, proposed procedures, meeting the requirements set forth in this Attachment S, for each of the Performance Tests. Such proposed procedures shall include pre-test uncertainty calculations. Thereafter, the Parties shall meet and mutually agree upon written test procedures for all Performance Tests, and all such written test procedures shall be agreed upon at least ninety (90) Days prior to the commencement of any Performance Test.

3. Requirements for Performance Tests.

3.1. Net Power Output and Net Heat Rate Performance Tests. ***

3.2. Emissions Performance Test. ***

3.3. Sound Level Performance Test. ***

3.4. Ramp Time Performance Test. ***

3.5. Starting Reliability Performance Test. ***

4. Performance Test Measurement Uncertainty. ***

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5. Third Party Testing Specialist. Owner shall have the right to have a third party testing specialist witness any or all Performance Tests.

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Execution Version

ATTACHMENT T

PERFORMANCE GUARANTEES, PERFORMANCE LIQUIDATED DAMAGES, ***

AND MINIMUM ACCEPTANCE CRITERIA

1. Minimum Acceptance Criteria. The “Minimum Acceptance Criteria” for each Unit of the Facility shall be comprised of (i) the Net Power Output Minimum Acceptance Criteria, (ii) the Net Heat Rate Minimum Acceptance Criteria, (iii) the Emissions Minimum Acceptance Criteria, (iv) the Ramp Time Minimum Acceptance Criteria and (v) the Sound Level Minimum Acceptance Criteria, all as further set forth below.

1.1. Net Power Output Minimum Acceptance Criteria. Each Unit’s Net Power Output shall be greater than or equal to *** (the “Net Power Output Minimum Acceptance Criteria” or “Net Power Output MAC”). As used in this Attachment T and Attachment S, the “Electric Delivery Point” means the PG&E Contra Costa Switchyard.

1.2. Net Heat Rate Minimum Acceptance Criteria. Each Unit’s Net Heat Rate shall be less than or equal to *** (the “Net Heat Rate Minimum Acceptance Criteria” or “Net Heat Rate MAC”).

1.3. Emissions Minimum Acceptance Criteria. Each Unit’s emissions levels (measured at the Unit’s stack) shall be less than or equal to: ***. In accordance with the Performance Test Procedures and Attachment S, the emissions levels for each Unit shall be tested while, at Owner’s reasonable discretion, such Unit is either (i) operating in compliance with the Net Heat Rate MAC and Net Power Output MAC or (ii) is being tested for compliance with the Net Heat Rate MAC and Net Power Output MAC and successfully achieves both MACs in such test.

1.4. Sound Level Minimum Acceptance Criteria. Each Unit shall achieve the “Sound Level MPC” (as defined in the Siemens Contract) in accordance with the requirements, and under the conditions, set forth in Appendix 4 (including Schedule 4-C) of the Siemens Contract (the “Sound Level Minimum Acceptance Criteria” or “Sound Level MAC”). ***.

1.5. Ramp Time Minimum Acceptance Criteria. Each Unit shall successfully ramp from its initiation of the start-up sequence to the time that the CTG output is *** (the “Ramp Time Minimum Acceptance Criteria” or “Ramp Time MAC”).

2. Performance Guarantees. The “Performance Guarantees” for each Unit of the Facility shall be comprised of (i) the Guaranteed Net Power Output and (ii) the Guaranteed Net Heat Rate, all as further set forth below.

2.1. Guaranteed Net Power Output. Each Unit’s Net Power Output shall be greater than or equal to *** (the “Guaranteed Net Power Output”).

2.2. Guaranteed Net Heat Rate. Each Unit’s Net Heat Rate shall be less than or equal to *** (the “Guaranteed Net Heat Rate”).

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3. Performance Liquidated Damages. The “Performance Liquidated Damages” shall be comprised of the Net Power Output Performance Liquidated Damages and Net Heat Rate Performance Liquidated Damages as set forth below.

3.1. Net Power Output Performance Liquidated Damages. If the Guaranteed Net Power Output is not met for a Unit during the Performance Tests, but the Net Power Output Minimum Acceptance Criteria is met for such Unit during such Performance Tests, Contractor shall owe to Owner, as Net Power Output Performance Liquidated Damages, *** for each kilowatt that the Net Power Output for such Unit (as measured during the Performance Tests) is less than the Guaranteed Net Power Output (the “Net Power Output Performance Liquidated Damages”).

3.2. Net Heat Rate Performance Liquidated Damages. If the Guaranteed Net Heat Rate is not met for a Unit during the Performance Tests, but the Net Heat Rate Minimum Acceptance Criteria is met for such Unit during such Performance Tests, Contractor shall owe to Owner, as Net Heat Rate Performance Liquidated Damages, *** each Btu per kWh (HHV) that the Net Heat Rate for such Unit (as measured during the Performance Tests) is greater than the Guaranteed Net Heat Rate (the “Net Heat Rate Performance Liquidated Damages”).

4. ***

5. Starting Reliability Requirement. Each Unit of the Facility shall demonstrate the following: *** (the “Starting Reliability Requirement”). ***. In the event any Unit fails to meet the Starting Reliability Requirement, Contractor shall have the obligations set forth in Section 12.7C of the Agreement.

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Execution Version

ATTACHMENT U

CRITICAL PATH METHOD SCHEDULE REQUIREMENTS

In addition to the requirements set forth in the Agreement, the CPM Performance Measurement Baseline Schedule and each Monthly Updated CPM Schedule (hereinafter, as applicable, a “Schedule”) shall meet the scheduling requirements set forth in this Attachment U.

1. The Schedule shall be a critical path method (CPM) schedule prepared and updated in Oracle Primavera Version 6.2. At the request of Owner, Contractor shall submit this in a later version of Primavera specified by Owner, if during the term of the Agreement, Version 6.2 becomes sufficiently obsolete that a future version of Primavera used by Owner can no longer accurately import a Primavera schedule created with Version 6.2.

2. The Schedule shall be consistent with the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date and shall represent Contractor’s best judgment as to how it shall complete the Work in compliance with the Key Milestone Schedule, Guaranteed Substantial Completion Date and Required Final Completion Date.

3. The Schedule shall, at a minimum, include in a single CPM network all activities for the Work (including engineering, procurement, construction, pre-commissioning, commissioning, testing and start-up) and shall comply with GECP. Without limitation of the foregoing, the Schedule shall show: (i) the duration, early/late start dates, early/late finish dates and available float for each activity, (ii) an activity number, a unique activity description and responsible Contractor or Subcontractor for each activity, (iii) logical relationships between all activities with a reasonable duration for each activity and (iv) an uninterrupted critical path from GTG LNTP through Mechanical Completion, Substantial Completion and Final Completion.

4. The Schedule shall be constructed such that the critical path can be identified and managed as a subset of the overall Schedule. Contractor shall, in the development of the Schedule, create enough discrete activities such that the critical path is clearly defined. The creation of such activities and their corresponding durations shall be subject to review and approval by Owner.

5. Activity descriptions and coding in the Schedule shall facilitate finding and interpreting the Work scope within the Schedule. All activities shall have meaningful descriptions. The description shall clearly and uniquely communicate the Work being done and establish uniqueness from other tasks without the aid of other codes or groupings. No two activities shall have the same description. Non-milestone activities shall begin with an action verb wherever appropriate, and finish milestone descriptions shall end with a past tense of a verb wherever appropriate (e.g., received, installed, completed, etc.)

6. Within fifteen (15) Days after issuance of GTG LNTP, Contractor and Owner shall agree upon, in writing, Primavera standards such as activity codes, calendars, resources, etc.

7. Primavera “Activity Codes” or comparable shall be utilized to segregate schedule activities into the following categories, as a minimum. All activities are required to have an Activity Code value for each of the following listed categories:

7.1. Phase: which shall include, at a minimum, engineering, procurement, construction, and start-up/testing;

7.2. Discipline: which shall include, at a minimum and as applicable, demolition and removal, Site preparation and improvements, concrete, structural steel, architectural, mechanical

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equipment, mechanical piping, electrical, instrumentation/controls, system start-up, testing, and indirect activities;

7.3. System: which shall contain an Owner-approved number of categories to provide a sufficient breakdown of activities to support Facility start-up. Systems should be placed into two (2) categories: those integral to the operation of the Facility as designed and those not integral to operation of the Facility. Examples of non-integral systems would be architectural finishes, aesthetic Site improvements, etc.; and

7.4. Level: which shall contain, at a minimum, the following categories: “Key Milestone” (which, for this purpose, shall also include Substantial Completion and Final Completion); “Management Level” (which shall contain activities sufficient for upper management reporting and cursory review); and “Detail Level” (the detailed body of the Schedule).

8. The Schedule shall contain such detail that Owner can monitor the Work and meet Owner’s reporting requirements to its Lenders and its customer(s) under its power purchase agreement(s). Contractor shall limit activity durations commensurate with the type of activity being performed. The Schedule shall include a sufficient number of activities to accurately track progress at the following levels:

8.1. Engineering: A sufficient number of activities shall exist in the Schedule to enable separate progress and deliverable tracking of each engineering discipline’s activity for each Facility system. All engineering activities shall be interrelated and logically tied within the scheduling software to the appropriate procurement and construction activities;

8.2. Procurement: A sufficient number of activities shall exist in the Schedule to enable separate progress and deliverable tracking for all specific pieces of Equipment and for general categories of bulk materials such as: structural steel, piping (prefabricated and bulk), electrical cable, cable tray and conduit, bulk instrumentation, and any other applicable category. Activities should exist within each of these categories for specification preparation, request for quotations, award to Subcontractor/Sub-subcontractor, Subcontractor/Sub-subcontractor Drawing submission, fabrication time, delivery of Equipment and material, and delivery of Subcontractor/Sub-subcontractor manuals. All procurement activities shall be interrelated and logically tied within the scheduling software to the appropriate construction activities. Equipment shall be identified in the Schedule with the appropriate Equipment Mark Number as identified in the project equipment list (to be delivered to Owner pursuant to Attachment B

8.3. Construction: A sufficient number of activities shall exist in the Schedule to enable separate progress tracking of each discipline’s Work within each system of the Facility, both integral to operation and non-integral to operation, including separate activities for the erection of all integral and non-integral Equipment. An appropriate number of activities shall also be required to adequately track progress of any item of Equipment requiring extensive field assembly, including the Siemens Equipment, selective catalytic reduction Equipment, water treatment equipment, field erected tanks, large pumps, motors and fans, fuel handling equipment, natural gas conditioning package, and major electrical Equipment. All construction activities shall be interrelated and logically tied within the scheduling software to the appropriate start up and testing activities;

8.4. Commissioning, Start-Up and Testing: A sufficient number of activities shall exist in the Schedule to enable separate progress tracking of the commissioning, start-up and testing activities for each applicable system and sub-system of the Facility, both integral and non-integral to operation. Activities shall exist, as applicable and at a minimum, within each applicable system and sub-system of the Facility, for preparation and achievement of Mechanical Completion, preparation and issuance of system testing procedures, system

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checkout and inspection (including completion of Mechanical Completion checklists), development of Punchlist and completion of Punchlist Work, testing (including Performance Tests), Substantial Completion and Final Completion. All commissioning, start-up and testing activities shall be interrelated and logically tied within the Schedule to overall Facility testing activities as well as the Guaranteed Substantial Completion Date and Required Final Completion Date. A sufficient number of activities should also exist to adequately track progress of each Performance Test to be conducted to achieve Substantial Completion and Final Completion; and

8.5. Permits and Interfaces with Owner Activities: Detailed activities shall be included in the Schedule to identify the timing of receipt of Permits and interfaces with activities involving Owner and/or third parties (including tie-ins for natural gas fuel and utilities, electrical interconnections, demolition of existing structures at the Site and Work activities potentially affecting operations at the Mirant Delta Facility). In addition, Contractor will include any other activities that Owner reasonably requests to be tracked in the Schedule.

9. The EPC and Siemens Equipment Payment Milestones and their corresponding dollar values, as depicted in Schedule C-1 and C-2, shall be resource loaded into the Schedule. Notwithstanding the foregoing, the ability of Contractor to be paid for completion of those Payment Milestones shall not be withheld based on earned value reporting derived from the Schedule; such payment shall instead be in accordance with Article 7 of the Agreement and Attachment C.

10. A generic resource shall be loaded into the Schedule for each craft to indicate labor hours so as to produce a manhour loading curve for each craft. This resource does not need to be priced.

11. Contractor shall use standard scheduling techniques, in accordance with GECP, and avoid complex scheduling approaches unless absolutely necessary. Contractor shall identify any unusual, unique or otherwise complex scheduling techniques and provide Owner with an explanation of why such technique(s) may have been implemented.

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Execution Version

ATTACHMENT V

PRE-COMMISSIONING, COMMISSIONING, START-UP AND TRAINING PROGRAM

1. Introduction

In addition to other requirements of the Agreement, this Attachment V provides the general scope of activities to be performed by Contractor for the pre-commissioning, commissioning and start-up of the Facility. Unless otherwise expressly stated herein, any procedures developed by Contractor pursuant to this Attachment V shall be provided to Owner for review and written approval (not to be unreasonably withheld) no later than forty-five (45) Days prior to the scheduled commencement of commissioning activities (as evidenced by the then-current CPM Performance Measurement Baseline Schedule). This Attachment V does not constitute a substitute for the Commissioning Plan, commissioning reports completed by Contractor or the operating, training and maintenance manuals. Rather, it forms the basis for development of such manuals by Contractor. The following five (5) phases of activities are generally described in this Attachment V:

1.1 Construction Inspection – Cleanliness, Equipment maintenance, commissioning and start-up spare parts, inspection, and system checkout;

1.2 Training – Formal training program for Owner’s personnel, to be developed and implemented by Contractor for all aspects of the Facility (including the Siemens Equipment and the selective catalytic reduction system) and to be compliant with Applicable Law and Applicable Codes and Standards;

1.3 Pre-commissioning – Functional verification of Facility utility and auxiliary systems, including electrical power, control systems, firewater, fuel gas system and utilities necessary to support the Units during and after commissioning and reinstatement of Equipment components; preparation of Equipment for commissioning, start-up and testing;

1.4 Commissioning and Start-Up – Mechanical Completion of the Facility; first fire of each Unit; and start-up and tuning of each Unit;

1.5 Testing – Completion of all Performance Tests.

All obligations in this Attachment V are the responsibility of Contractor or its Subcontractors or Sub-subcontractors unless otherwise expressly stated to be the obligation of Owner. In addition, Contractor verifies that the procedures specified herein are in compliance with GECP, Applicable Law and Applicable Codes and Standards. In accordance with the Agreement, including Sections 3.29 and 3.2G therein, Owner shall provide Contractor with up to six (6) of Owner’s shift operations personnel to be integrated into the pre-commissioning, commissioning, Performance Testing and start-up activities.

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2. Construction Inspection

2.1 Construction Inspection Program

Contractor shall cause qualified inspectors with relevant experience to check each piece of Equipment installed. Contractor shall also implement and enforce a routine preventative maintenance program for all Equipment, which shall incorporate all Subcontractor and Sub-subcontractor recommendations and requirements for preservation and storage of such Equipment.

2.2 Commissioning and Start-up Spare Parts Receiving

Contractor shall establish an inspection and receiving system at the Site to ensure that the commissioning spare parts received for commissioning and start-up meet all requirements under the Agreement. Contractor shall develop, track and implement a material inspection, survey and transfer receiving system between warehouse facilities. The system shall validate quantity, completeness and condition of the commissioning and start-up spare parts at time of transfer. The system shall also incorporate procedures for the draw out and replacement of these commissioning and start-up spare parts for use during commissioning and start-up. In the event Contractor procures operating spare parts on Owner’s behalf, Contractor shall establish an inspection and receiving system for such operating spare parts substantially similar to the system required in this Section for commissioning and start-up spare parts which shall be provided to Owner for its review and prior written approval.

2.3 Equipment Check Out

2.3.1 Vessels

The internals of vessels shall be checked for conformance to design, including nozzle orientation, de-misting pad installation (as applicable) and instrument connections. Each vessel shall be inspected for cleanliness prior to closing such vessel. Such internal inspection shall be made as soon as the vessel arrives on Site, but nevertheless prior to installation. Following inspection the openings shall be resealed. If a vessel is found to contain free liquid, which may have entered at the fabrication yard or in transit, the liquid shall be analyzed and any chance of corrosion shall be reported promptly to Owner.

2.3.2 Pumps

All three phase motor drives for pumps shall be checked for proper rotation prior to being coupled to the applicable pump.

2.3.3 Fuel Gas Piping

After pressure testing, the fuel gas piping shall be blown with air or nitrogen and then tested to ensure that all lines are free of contaminants. Blows shall last approximately 10 seconds and shall be performed until the gas lines are verified as clean. Following the blows, the flanges shall be inspected and either connected to down stream piping or covered with temporary FME covers. Each manifold shall be blown for approximately 10 seconds per blow. Blows shall be

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performed until the gas lines are verified as clean. Once a gas manifold is complete, the pig tails and end-covers should be inspected and re-connected immediately prior to moving to the subsequent manifold.

2.3.4 Compressors and Blowers

A fine mesh screen shall be added by Contractor to the suction strainer of all compressors and blowers during initial operation and shall then be subsequently removed by Contractor.

2.3.5 Turbine Generators

The turbine generators shall be thoroughly inspected upon their arrival at the Site to ensure all Equipment for the turbine generators has been delivered and is free from Defects, including verification of the dimensions and arrangements of connections to the turbine generators with the balance of the Facility (e.g. the turbine generator foundations).

2.3.6 Turbine and Compressor Maintenance

The turbines and reciprocating compressors shall be stored and maintained per all Subcontractor and Sub-subcontractor recommendations.

2.3.7 Generator Step-Up Transformers and the Electrical Package

The generator step-up transformers and the Electrical Package (including all switchgear, distribution transformers and motor control centers) shall be thoroughly inspected upon their arrival at the Site to ensure that all components of such Equipment have been delivered and are free from Defects. Such Equipment shall be stored and maintained at the Site in accordance with all Subcontractor and Sub-subcontractor recommendations.

2.3.8 Piping Systems

All piping and pressurized Equipment shall be inspected, subjected to NDT, and pressure tested (pneumatic or hydrotest, as appropriate and to the extent possible) after fabrication, all in accordance with Applicable Law and Applicable Codes and Standards. Contractor shall records and provide test reports and other applicable documentation of such testing to Owner in accordance with Attachment B.

2.4 System Checkout

2.4.1 Each Equipment system or subsystem (e.g., support, utility, fuel gas, control, fire protection, etc.) at the Facility shall be identified by Contractor during detailed design. In accordance with Section 12.1B of the Agreement, Contractor shall provide to Owner for its review and approval detailed Mechanical Completion requirements, in the form of checklists, for each Equipment system or subsystem to track the progress of the pre-commissioning, commissioning and functional check-out of each system or subsystem in preparation for start-up of the Facility. Checklists will be organized into system

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turnover packages. Each system turnover package shall include, at a minimum, a definition of the system or subsystem boundaries, a system description, a list of incomplete Work (kept current as the Work progresses), checkout and testing records and a copy of the applicable Progress As-Built Drawings noting any modifications or additions during fabrication, installation and check-out.

2.4.2 Contractor shall develop and implement a schedule of required system checkouts to ensure that systems are completed and prepared for checkout in the required sequence. Contractor shall integrate this schedule into the CPM Performance Measurement Baseline Schedule and Monthly Updated CPM Schedule and shall report to Owner regarding the schedule on a regular basis. Progress of pre-commissioning and commissioning activities will be tracked and reported using Contractor’s commissioning status reports.

2.4.3 When a system has achieved Mechanical Completion, Contractor shall provide to Owner a fully executed Mechanical Completion Certificate, in the form of Attachment L, for the system as required under the Agreement.

3. Training

3.1 Training Requirements

Contractor shall develop and implement a training program to provide training to Owner’s operations and maintenance personnel for the Facility, who will be made available for training at the time required according to the Monthly Updated CPM Schedule, on the following topics, as a minimum: the hazard detection and instrumentation systems installed at the Facility; the gas turbine generator and its auxiliaries; the generator step-up transformers; the fuel gas compressors and conditioning equipment; the selective catalytic reduction system; the electrical package (including switchgear, distribution transformers and motor control centers and PLCs) and control systems; the water treatment system; and the operation and maintenance of all systems at the Facility for both standard and non-standard operations. The training shall include the training to be provided by Siemens under the Siemens Contract. Contractor shall submit this training program in writing for review and approval by Owner no later than eight (8) weeks prior to when the first training session is scheduled to commence.

Contractor’s training program shall be divided into modules that may be general (applicable to all of Owner’s personnel) or specific (geared toward specific disciplines, such as instrumentation, electrical, operations or maintenance). The training shall cover all items of Equipment that are installed in the Facility, and the training shall include Subcontractor and Sub-subcontractor literature, large detailed drawings, P&IDs, overhead projector slides, and any other useful visual aids. The training will also include training regarding Hazardous Materials throughout the Facility, including MSDS and a description of all such Hazardous Materials, as well as instructions on how to properly handle such Hazardous Materials.

3.2 Training Stages

3.2.1 Classroom Training – Contractor shall deliver classroom training using the prepared modules and any visual aids necessary. Classroom work will be supplemented by field visits, and field visits, as applicable, shall be subsequently

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discussed in the classroom. Classroom training shall be completed in time to conduct the field training set forth in Section 3.2.3 below.

3.2.2 Training Assessment – Assessments of Owner’s personnel receiving training shall be carried out jointly between Contractor and Owner.

3.2.3 Field Training (on-the-job training with Subcontractors and Sub-subcontractors supplying the Equipment) – After completing the classroom training, Contractor shall provide “on-the-job” training to Owner’s personnel. As Equipment is being prepared for initial commissioning, Contractor shall provide operation and maintenance training for each piece of Equipment. For major items of Equipment, Contractor shall require the Subcontractor or Sub-subcontractor supplying such Equipment to participate in (or conduct) the training as required under the training program.

4. Pre-Commissioning

4.1 Preparation Prior to Commissioning

4.1.1 Prior to commissioning, all Equipment shall be cleaned and inspected to ensure it is free from Defects, is in accordance with the final design for such Equipment and otherwise conforms with the requirements of the Agreement.

4.1.2 All Equipment and systems shall be proven operational, to the extent possible, prior to commencement of commissioning, including the completion of the following:

4.1.2.1 Contractor shall ensure that all valves are tight via an Owner-approved “valve tightness test” using instrument air or the applicable system fluid.

4.1.2.2 Normal electric power source shall have been checked out and functional.

4.1.2.3 Potable, service water, and firewater systems shall be operational.

4.1.2.4 The emergency shutdown systems shall be tested and verified operational as part of the overall Facility instrument loop certification and calibration.

4.1.2.5 Plant air and instrument air systems shall be operational.

4.1.2.6 The fire fighting systems shall be tested and proven prior to introduction of hydrocarbons into the Facility by using the largest firewater use case scenario from the Facility’s firewater study.

4.1.2.7 Relief valves will be shop calibrated and installed. A thorough check of the entire Facility shall be made to ensure that blinds have been removed from under any relief valves and block valves upstream and downstream of the relief valves have been locked open, with bypass

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valves locked closed. A blind list shall be instituted and checked carefully.

4.1.2.8 The water treatment system and wastewater disposal system shall be ready and functional.

4.1.2.9 All instruments shall be checked out, loop tested and calibrated (per manufacturers’ recommendations or, if not available, per Applicable Codes and Standards), and documentation completed.

4.1.2.10 Fire detection systems shall have been tested to satisfy Applicable Law and Applicable Codes and Standards and be operational. Demonstration and National Fire Protection Association testing of the fire system and gas relief system shall be completed and documented.

4.1.2.11 Portable gas detectors shall be available in accordance with Applicable Law and Applicable Codes and Standards.

4.1.2.12 The distributed control system for the Facility shall have all loop checks and other inspections completed and shall have been proven operational to the extent possible.

4.2 Pre-Commissioning – Electrical Interconnection

The electrical interconnection between the Facility and the utility grid shall be, to the extent possible, checked out, tested and otherwise capable of supplying or receiving backfeed power between the Facility and the utility grid.

5. Commissioning and Start-Up

5.1 Commissioning Plan Requirements

5.1.1 Commissioning Plan

Contractor shall establish a commissioning plan (which shall include the schedule of commissioning activities and the requirements for developing the system turnover packages in accordance with Section 2.4 above), which shall be submitted to Owner for review and comment in accordance with Section 1 (the Owner-approved plan hereinafter referred to as the “Commissioning Plan”). The Commissioning Plan shall outline Contractor’s plan to advance the Work from Mechanical Completion of each system and subsystem (as well as Mechanical Completion of the Facility as a whole) to ready for first fire of each Unit and ready for start-up of the Facility as a whole.

5.1.2 Commissioning Quality Requirements

The Commissioning Plan shall include commissioning procedures that address major commissioning activities to be performed for the Work as well as milestones and activities for readying the Units for first fire.

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Commissioning activities shall not begin on a system or subsystem of the Equipment until (1) the Mechanical Completion Certificate for such system or subsystem has been accepted by Owner in accordance with Section 12.3 of the Agreement, and (2) the applicable Equipment Subcontractor operating and maintenance manuals, and Owner-approved commissioning procedures for major systems, are in place and available at the Site. All commissioning personnel shall be experienced and fully conversant with the content and application of all such procedures and activities.

5.2 Start-Up Plan Requirements

5.2.1 Start-Up Plan

Contractor shall establish a start-up plan (“Start-Up Plan”) which shall be submitted to Owner for review and prior written approval in accordance with Section 1. The Start-Up Plan shall outline how Contractor shall (i) achieve first fire for each Unit, (ii) achieve initial synchronization to the utility grid for each Unit and the Facility as a whole and (iii) perform initial tuning and testing of each Unit and the Facility as a whole (including the control systems) to reach optimum performance (including with respect to Net Heat Rate, Net Power Output and emissions levels).

5.2.2 Minimum Acceptance Criteria, Performance Guarantees and Performance Tests Quality Requirements

The Start-Up Plan shall include start-up milestones and activities, fuel gas consumption schedules and start-up procedures. Such Start-Up Plan shall be in accordance with this Attachment V unless otherwise agreed upon by the Parties in writing.

Start-up activities shall not begin on a system or subsystem of the Equipment until (1) the Mechanical Completion Certificate has been accepted by Owner in accordance with Section 12.3 of the Agreement, and (2) the Owner-approved Start-Up Plan is in place and available at the Site. All personnel involved in this testing shall be trained and shall be fully conversant with the content and application of all such procedures. In accordance with Section 4.4 of the Agreement, Owner will provide operating and maintenance personnel to be supervised by Contractor for the start-up and testing activities.

5.3 Technical Support Requirements

Subject to Section 4.4 of the Agreement, Contractor shall provide all the required support services, Subcontractor and Sub-subcontractor representatives and technicians necessary for proper installation, preparation, commissioning, testing, and start-up of the Facility and Equipment.

6. Performance Testing

Performance Testing shall be conducted in accordance with the requirements of the Agreement.

7. Operation

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Contractor’s operation of the Facility through the achievement of Substantial Completion shall be performed in accordance with the requirements of the Agreement, including GECP, Applicable Codes and Standards and Applicable Law.

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Execution Version

ATTACHMENT W

SPARE PARTS LIST

Spare Part Manufacturer Name Manufacturer Contact Information Equipment/System
Containing the
Spare Part Part No. Current Price (US$)

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Execution Version

ATTACHMENT X

REPORTING REQUIREMENTS

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I. Monthly Progress Report Format

The Monthly Progress Report shall be provided by Contractor by the 5^th Day of each Month. The framework set forth below provides the format that should be used for each of Contractor’s Monthly Progress Reports. Each section set forth below shall be fully and accurately completed by Contractor in each Monthly Progress Report. In addition, Contractor shall include a statement in each Monthly Progress Report that all information set forth therein is true and accurate as of the date of issuance.

1. Project Summary

2. Executive Summary

a. Executive Summary Narrative

b. Significant Activities Completed Since Last Monthly Progress Report (including all Payment Milestones completed)

c. Significant Activities Planned but Not Completed Since Last Monthly Progress Report (including all Payment Milestones planned to be completed but not completed)

d. Significant Activities Planned for the Current Month (including all Payment Milestones planned to be completed)

e. Significant Problems Encountered & Remedial Actions Taken

3. Safety and Health Report / Environmental Report

a. Results of Safety Inspections

b. Safety Training

c. Lost work time accidents & other significant safety incidents

i. Recordable Incident Rate

Month YTD Project to Date

ii. Lost Time Incident Rate

Month YTD Project to Date

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d. Hours Worked

	Month	YTD	Project to date
Contractor
Subcontractors
Total

e. Work Stoppages due to Safety

f. Other Safety Concerns and Remedial Measures Taken

g. Results of Environmental Inspections

h. Environmental Training

i. Environmental Incidents

Month YTD Project to Date

j. Work Stoppages due to Environmental Incidents (including encountering pre-existing Hazardous Materials) and Remedial Measures Taken

4. Engineering Status

a. Engineering Summary

b. Major Engineering Activities by Discipline

i. Civil/Structural

1. Major Activities Completed

2. Major Activities Planned but Not Completed Since Last Monthly Progress Report

3. Major Activities Planned for the Current Month

4. Major Problems Encountered & Remedial Actions Taken

ii. Mechanical

1. Major Activities Completed

2. Major Activities Planned but Not Completed Since Last Monthly Progress Report

3. Major Activities Planned for the Current Month

4. Major Problems Encountered & Remedial Actions Taken

iii. Electrical/Controls

1. Major Activities Completed

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2. Major Activities Planned but Not Completed Since Last Monthly Progress Report

3. Major Activities Planned for the Current Month

4. Major Problems Encountered & Remedial Actions Taken

iv. Permitting

1. List of Contractor Permits

Contractor Permit Baseline Actual/
Forecast Days
Variance

2. Major Problems Encountered & Remedial Actions Taken

c. Engineering manpower histogram with cumulative curve (S Curve) with baseline, actual & forecasted manpower by Month

i. Overall Engineering Manpower

ii. Civil/Structural Manpower

iii. Mechanical Manpower

iv. Electrical/Controls Manpower

5. Procurement Status

a. Major Activities Completed

b. Major Activities Planned but Not Completed Since Last Monthly Progress Report

c. Major Activities Planned for the Current Month

d. Major Problems Encountered & Remedial Actions Taken

6. Construction Status

a. Construction Summary

b. Construction Activities directly performed by Contractor

i. Major Activities Completed

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ii. Major Activities Planned but Not Completed Since Last Monthly Progress Report

iii. Major Activities Planned for the Current Month

iv. Major Problems Encountered & Remedial Actions Taken

v. Photographs

c. Construction Activities by Major Subcontractor

1. Major Activities Completed

2. Major Activities Planned but Not Completed Since Last Monthly Progress Report

3. Major Activities Planned for the Current Month

4. Major Problems Encountered & Remedial Actions Taken

5. Photographs

d. Construction manpower histograms with cumulative curve (S Curve) with baseline, actual & forecasted manpower by Month

i. Overall Construction Manpower

ii. Craft A

iii. Craft B

iv. Craft C

v. (Etc. for each craft)

e. Quantity Installation Curves

i. Concrete

ii. Electrical

iii. Above Ground Piping (L/B & S/B)

iv. Etc. (other crafts as applicable)

7. Interconnections

a. Major Activities Completed

b. Major Activities Planned but Not Completed Since Last Monthly Progress Report

c. Major Activities Planned for the Current Month

d. Major Problems Encountered & Remedial Actions Taken

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8. Startup & Commissioning

a. Major Activities Completed

b. Major Activities Planned but Not Completed Since Last Monthly Progress Report

c. Major Activities Planned for the Current Month

d. Major Problems Encountered & Remedial Actions Taken

e. System Status (produced within 3 Months prior to the planned Mechanical Completion Date for the first system to be completed).

	Mechanical Completion		Mechanical Completion Handover Package Complete		Start-up and Performance Testing Procedure Complete		Ready for Performance Testing		Substantial Completion
System	Baseline	Actual/ Forecast	Baseline	Actual/ Forecast	Baseline	Actual/ Forecast	Baseline	Actual/ Forecast	Baseline	Actual/ Forecast

9. Third-Party Claims: Actual or potential third-party claims against Contractor or the Facility of which Contractor is aware or suspects may arise.

10. Monthly Updated CPM Schedule Analysis

a. Monthly Updated CPM Schedule Analysis Summary

i. Float/Critical Path Summary

ii. Earned Value Schedule Performance Index

b. Status of Major Milestones (including Key Milestones)

Activity ID Milestone Baseline
Finish Actual/
Forecast
Finish Days
Float

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Activity ID Milestone Baseline
Finish Actual/
Forecast
Finish Days
Float

c. Monthly Updated CPM Schedule Variance Report

d. Major Problems Encountered & Remedial Actions Taken

e. Recovery Plans, including Recovery Schedule (as applicable)

11. Contract Price Report

a. Contract Price Summary (identifying allocation between Siemens Payment Milestones and EPC Payment Milestones)

b. Curve showing Monthly baseline, actual, incurred and forecasted completion of Payment Milestones (cash flow)

c. Summary of changes to Contract Price (via approved Change Orders) showing changes, additions and deletions of Payment Milestones

d. Summary of potential changes to the Contract Price

i. Current Contractor Change Order Requests

ii. Trends and Exposures (identification of potential situations which may give rise to a Change Order request for an adjustment to the Contract Price in the future for which a Change Order Request has not yet been received)

e. Change Order Control Log

i. Approved Change Orders

Change Order #	Description	Contract Price			Schedule
		Change Amount	Prior Total	Revised Total	Key Milestones Affected	Prior Key Milestone Date	Revised Key Milestone Date

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Change Order #	Description	Contract Price			Schedule
		Change Amount	Prior Total	Revised Total	Key Milestones Affected	Prior Key Milestone Date	Revised Key Milestone Date

ii. Pending Change Orders (Contractor Change Order Requests and Owner-proposed changes)

Change Order #	Description	Proposed Contract Price Changes			Proposed Schedule Changes
		Proposed Change Amount	Prior Total	Proposed Revised Total	Key Milestones Proposed to be Affected	Current Key Milestone Date	Proposed Revised Key Milestone Date

iii. Rejected Change Orders

Change Order #	Description	Proposed Contract Price Changes	Proposed Schedule Changes
		Change Amount	Key Milestones Proposed  to be Affected	Current Key Milestone Date	Proposed Revised Key Milestone Date

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APPENDIX 1: PRIMAVERA SCHEDULE REPORTS

Appendix 1 shall include the following reports along with any other reports that may be specified by Owner as required:

A. Key Milestone Schedule with Target

B. Key & Payment Milestone Schedule with Target

C. Summary Monthly Updated CPM Schedule with Comparison to Summary CPM Performance Measurement Baseline Schedule (in native electronic format and hard copy as required by the Agreement, including Attachment U)

D. Detailed Monthly Updated CPM Schedule with Comparison to Detailed CPM Performance Measurement Baseline Schedule (in native electronic format and hard copy as required by the Agreement, including Attachment U)

E. Recovery Schedule (as applicable)

F. Acceleration Schedule (as applicable)

G. Critical Path with Target

H. Near Critical Activities (<10 Days float) with Target

I. 3 Month Look Ahead by System

J. 3 Month Look Ahead by Phase, & Engineering Discipline/Craft

K. Procurement Schedule

L. Engineering Schedule by Discipline

M. Construction Schedule by Area

N. Expected Mechanical Completion Date by System

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APPENDIX 2: DRAWING LOG /ISSUE FOR CONSTRUCTION (IFC) SCHEDULE

Drawing #	Title	Baseline IFC	Actual/ Forecast IFC	Days Variance
Civil/Structural Drawings
Mechanical Drawings
Electrical/Controls Drawings

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APPENDIX 3: EQUIPMENT LOG

			Bid Release Date			Equipment Release Date			Equipment Delivered to Site
PO #	Description	Subcontractor/ Subcontractor Shop  Location	Baseline	Actual/ Forecast	Days Variance	Baseline	Actual/ Forecast	Days Variance	Baseline	Actual/ Forecast	Days Variance

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II. Weekly Progress Report Format

The Weekly Progress Report shall be provided by Contractor on each Tuesday covering all Work performed up through the previous week. The framework set forth below provides the format that should be used for each of Contractor’s Weekly Progress Reports. Each section set forth below shall be fully and accurately completed by Contractor in each Weekly Progress Report. In addition, Contractor shall include a statement in each Weekly Progress Report that all information set forth therein is true and accurate as of the date of issuance.

1. Safety

a. Recordable Incident Rate

Week YTD To Date for the Work

b. Lost Time Incident Rate

Week YTD To Date for the Work

2. Environmental Incidents

Week YTD To Date for the Work

3. Hours Worked

	Week	To Date for the Work
Contractor
Subcontractors
Total

4. Schedule Summary

a. Status of Major Activities Scheduled for this Week

Activity Baseline Date Actual Date Current Forecasted

b. Major Activities Completed This Week

c. Major Activities Planned but Not Completed This Week

d. Major Activities Planned for the Next Week

e. Major Problems Encountered & Remedial Actions Taken

f. Other Issues and Concerns

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Execution Version

ATTACHMENT Y

SITE

***

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Execution Version

ATTACHMENT Z

FORM OF PARENT GUARANTEES

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SCHEDULE Z-1

FORM OF CONTRACTOR’S PARENT GUARANTEE

This GUARANTEE (this “Guarantee”), dated as of [                    ], is made by Kiewit Construction Company, a Delaware corporation (“Guarantor”), in favor of Mirant Marsh Landing, LLC, a Delaware limited liability company (“Owner,” and, together with Guarantor, each a “Party” and, collectively, the “Parties”). Capitalized terms used, but not otherwise defined, herein shall have the respective meanings ascribed to such terms in the Agreement (as defined below).

RECITALS

WHEREAS, Owner has agreed to enter into the Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station, dated [                    ] (the “Agreement”), with Kiewit Power Constructors Co. (“Contractor”), a subsidiary of Guarantor, which is hereby incorporated by reference in this Guarantee and made a part hereof, for the engineering, procurement and construction of a natural gas-fired electric generation facility located near Antioch, California;

WHEREAS, Contractor is a subsidiary of Guarantor;

WHEREAS, Guarantor is guaranteeing the payment and performance by Contractor of any and all obligations or amounts owed by Contractor to Owner under the Agreement; and

WHEREAS, it is a requirement within the Agreement that Guarantor execute and deliver this Guarantee.

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

1. Guarantee.

(a) On the terms and subject to the conditions contained herein, Guarantor hereby irrevocably guarantees, to and for the benefit of Owner, the full and punctual performance and payment, as and when each such payment or performance becomes due (whether at the stated due date, by acceleration or otherwise), by or on behalf of Contractor of any and all obligations or amounts owed by Contractor to Owner in connection with and to the extent provided for in the Agreement (the “Guaranteed Obligations”). The Guaranteed Obligations of Guarantor hereunder are direct and primary obligations.

(b) This Guarantee is a present, and continuing guarantee of performance and payment, and not of collection, is in no way conditioned or contingent upon any attempt to collect from or enforce performance or payment by Contractor, and shall remain in full force and effect and be binding upon and against Guarantor and its successors and permitted assigns (and shall inure to the benefit of Owner and its permitted successors, permitted endorsees, permitted transferees, and permitted assigns). If Contractor shall fail or be unable duly, punctually, and

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fully to perform or pay, as and when such performance or payment is due, any of the Guaranteed Obligations, and taking into account any grace period applicable with respect thereto under the Agreement, then upon receipt of written notice from Owner specifying the failure, Guarantor shall promptly perform or pay, or cause to be performed or paid, such Guaranteed Obligations as required pursuant to the terms and conditions of the Agreement.

(c) Guarantor agrees that any final judgment from any final award resulting from any litigation between Contractor and Owner under the Agreement (whether in contested litigation, by default or otherwise) shall be conclusive and binding on the Parties for the purposes of determining Guarantor’s obligations under the Guarantee.

2. Obligations Continuing.

(a) Guarantor agrees that the obligations of Guarantor set forth in this Guarantee shall be direct obligations of Guarantor, and that such obligations shall be irrevocable, and that except for those specific defenses which Contractor would be entitled to assert if an action or proceeding to enforce such obligations were to be asserted or instituted against Contractor based upon the Agreement (which defenses Guarantor hereby retains and is authorized to assert), including any limitation of liability under Section 21.1 of the Agreement, this Guarantee shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance with its obligations hereunder) based upon any claim Guarantor or any other Person may have against Owner or any other Person and shall remain in full force and effect without regard to and shall not be released, discharged or in any way affected or impaired by, any circumstance or condition whatsoever (other than full and strict compliance by Guarantor with its obligations hereunder) (whether or not Guarantor shall have any knowledge or notice thereof), including, without limitation: (i) any amendment or modification of or supplement to or other change in the Agreement or any other document to which Contractor or its permitted assigns are a party, including, without limitation, any change order, renewal, extension, acceleration or other changes to payment terms thereunder; (ii) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of the Agreement or any other related document or any related obligation or liability of Owner or Contractor, or any exercise or non-exercise of any right, remedy, power, or privilege under or in respect of any such instrument or agreement or any such obligation or liability; (iii) any bankruptcy, insolvency, reorganization, arrangement, readjustment, liquidation, or similar proceeding with respect to Owner, Contractor, or any other Person or any of their respective properties, or any action taken by any trustee or receiver or by any court in any such proceeding; (iv) any merger or consolidation of Guarantor or Contractor into or with any other Person or any sale, lease, or transfer of all or any of the assets of Guarantor or Contractor; (v) any change in the ownership of Guarantor, Contractor, or any other Person; (vi) any winding up or dissolution of Contractor; or (vii) to the extent permitted under Applicable Law, any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing, which might otherwise constitute a legal or equitable defense or discharge of the liabilities of guarantor or surety or which might otherwise limit recourse against Guarantor. The Guaranteed Obligations constitute the full recourse obligations of Guarantor enforceable against it to the full extent of all its assets and properties. Without limiting the generality of the foregoing, Guarantor agrees that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, Contractor shall fail to

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perform obligations or pay amounts owed by Contractor under the Agreement and that notwithstanding the recovery hereunder for or in respect of any given failure to so comply by Contractor under the Agreement, this Guarantee shall remain in full force and effect and shall apply to each and every subsequent such failure.

(b) Notwithstanding any other language in this Guarantee to the contrary (but subject at all times to the exception set forth in this Section 2(b)), Guarantor’s obligations and liability under this Guarantee shall not differ from or exceed the obligations and liabilities of Contractor under the Agreement, nor shall the remedies available to Owner under this Guarantee extend beyond the remedies available to Owner against Contractor under the Agreement; provided that in no case shall this Section 2(b) be interpreted to relieve Guarantor of any Guaranteed Obligations or preclude any remedy available to Owner due to any of the circumstances in Sections 2(a)(iii) or 2(a)(vi).

3. Reinstatement. Guarantor agrees that this Guarantee shall be automatically reinstated with respect to any payment made by or on behalf of Contractor pursuant to the Agreement if and to the extent that such payment is rescinded or must be otherwise restored pursuant to Applicable Law, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

4. Waiver of Demands, Notices. Guarantor hereby unconditionally waives, to the extent permitted by Applicable Law: (i) notice of any of the matters referred to in Section 2 hereof; (ii) all notices which may be required by Applicable Law, or otherwise, now or hereafter in effect, to preserve any rights against Guarantor hereunder, including, without limitation, any demand, proof, or notice of non-payment or non-performance of any Guaranteed Obligation; (iii) notice of acceptance of this Guarantee, demand, protest, presentment, notice of failure of performance or payment, and any requirement of diligence; and (iv) any requirement to exhaust any remedies.

5. Waiver of Subrogation. Until such time as the Guaranteed Obligations are performed and paid in full, Guarantor shall not seek or be entitled to assert or enforce any right of contribution, reimbursement, indemnification or any other right to payment from Contractor as a result of Guarantor’s performance of its obligations pursuant to this Guarantee. If any funds or property shall be paid or transferred to Guarantor on account of such subrogation, contribution, reimbursement or indemnification at any time when all of the Guaranteed Obligations have not been performed and paid in full, Guarantor shall hold such funds or property in trust for Owner and shall forthwith pay over to Owner such funds and/or property to be applied by Owner to the Guaranteed Obligations, whether or not matured, in such order as Owner may determine.

6. Representations and Warranties. Guarantor represents and warrants that:

(a) it is a corporation duly organized and validly existing under the laws of the State of Delaware and has the corporate power and authority to execute, deliver and carry out the terms and provisions of the Guarantee;

(b) the execution, delivery and performance of this Guarantee will not conflict with, violate or breach the terms of any agreement of Guarantor;

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(c) no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guarantee; and

(d) this Guarantee, when executed and delivered, will constitute a valid and legally binding agreement of Guarantor, except as the enforceability of this Guarantee may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity as they apply to the Guarantor.

7. Miscellaneous.

(a) This Guarantee shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns. Neither Party may assign or transfer this Guarantee or any rights or obligations hereunder without the other Party’s prior written consent. Notwithstanding the foregoing, this Guarantee may be assigned by Owner without the written consent of Guarantor (i) to assign, pledge and/or grant a security interest in, or payment obligation under this Guarantee or (ii) to the same extent that Owner is able to assign the Agreement pursuant to Section 22.7 therein. Except as provided in this Section 7, nothing herein, express or implied, is intended or shall be construed to confer upon or to give to any Person other than the Parties hereto any rights, remedies, or other benefits.

(b) This Guarantee shall be governed by, and construed in accordance with, the laws of the state of New York except for any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) other than Section 5-1401 of the New York General Obligations Law.

(c) The Parties agree that any dispute, controversy or claim (“Dispute”) arising out of or relating to this Guarantee shall be decided by litigation pursuant to this Section 7(c). Litigation of any Dispute shall be brought exclusively in a federal or state court located in New York County in the State of New York. Each Party hereby consents to personal jurisdiction in any legal action, suit, or proceeding brought in any federal or state court within New York County in the State of New York having subject matter jurisdiction and irrevocably waives, to the fullest extent permitted by Applicable Law and the laws of the State of New York, any claim or any objection it may now or hereafter have, that venue or personal jurisdiction is not proper with respect to any such legal action, suit, or proceeding brought in such a court in the State of New York, including any claim that such legal action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such Party at its address specified herein for the giving of notices, or by such other notice given in accordance with the rules and procedures of such courts.

(d) No modification or amendment of this Guarantee shall be of any force or effect unless made in writing, signed by the Parties hereto, and specifying with particularity the nature and extent of such modification or amendment. This Guarantee constitutes the entire and only understanding and agreement among the Parties hereto with respect to the subject matter hereof and cancels and supersedes any prior negotiations, proposals, representations, understandings,

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commitments, communications, or agreements, whether oral or written, with respect to the subject matter hereof.

(e) Notice. All notices pertaining to the Agreement shall be in the English language and signed by a duly authorized representative of the Party giving such notice, shall reference the Agreement, shall be sent by registered or certified mail, recognized express courier or facsimile (followed by registered mail) to the other Party at the address designated below, and shall be effective upon delivery:

(i) if delivered to Guarantor:

Kiewit Construction Company

9401 Renner Blvd.

Lenexa, KS 66219

Attention: Kevin Needham

Fax No.: 913-928-7214

with a copy to:

Kiewit Construction Company

9401 Renner Blvd.

Lenexa, KS 66219

Attention: Robert Osborn

Phone No.: 913-928-7895

Fax No.: 913-928-7895

(ii) if delivered to Owner:

Mirant Marsh Landing, LLC

1155 Perimeter Center West

Atlanta, GA 30338

Attn: Mike Ammer

Phone No.: (678) 579-5103

Email: michael.ammer@mirant.com

with a copy to:

Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: General Counsel

Fax No.: (678) 579-5951

or to such other address or telecopy number and with such other copies, as such Party may hereafter reasonably specify by notice to the other Parties. Each such notice, request or communication shall be effective upon receipt, provided that if the day of receipt is not a Business Day then it shall be deemed to have been received on the next succeeding Business Day.

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(f) The headings of the several provisions of this Guarantee are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Guarantee.

(g) No forbearance or delay by Owner in asserting rights against Contractor shall affect or impair in any way Guarantor’s obligations hereunder or the rights of Owner hereunder.

(h) The term “Person” shall mean any individual, company, joint venture, corporation, partnership, association, joint stock company, limited liability company, trust, estate, unincorporated organization, governmental entity or other entity having legal capacity.

(i) This Guarantee may be executed in any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

[Signature Page Follows]

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IN WITNESS WHEREOF, the undersigned have duly executed this Guarantee as of the date first above written.

KIEWIT CONSTRUCTION COMPANY

By:

Name:

Title:

MIRANT MARSH LANDING, LLC

By:

Name:

Title:

Acknowledged:

Kiewit Power Constructors Co.

By:

Name:

Title:

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Execution Version

SCHEDULE Z-2

FORM OF OWNER’S PARENT GUARANTEE

This GUARANTEE (this “Guarantee”), dated as of [                    ], is made by Mirant Corporation, a Delaware corporation (“Guarantor”), in favor of Kiewit Power Constructors Co. (“Contractor,” and, together with Guarantor, each a “Party” and, collectively, the “Parties”). Capitalized terms used, but not otherwise defined, herein shall have the respective meanings ascribed to such terms in the Agreement (as defined below).

RECITALS

WHEREAS, Contractor has agreed to enter into the Lump Sum Turnkey Agreement for the Engineering, Procurement and Construction of the Marsh Landing Generating Station, dated [                    ] (the “Agreement”), with Mirant Marsh Landing, LLC (“Owner”), a subsidiary of Guarantor, which is hereby incorporated by reference in this Guarantee and made a part hereof, for the engineering, procurement and construction of a natural gas-fired electric generation facility located near Antioch, California; and

WHEREAS, Owner is a subsidiary of Guarantor;

WHEREAS, Guarantor is guaranteeing the payment obligations by Owner of the Kiewit Termination Charge (as such term is defined in Section 17.2 of the Agreement) owed by Owner to Contractor under the Agreement.

WHEREAS, it is a requirement within the Agreement that Guarantor execute and deliver this Guarantee.

NOW THEREFORE, in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Guarantee.

(a) On the terms and subject to the conditions contained herein, Guarantor hereby irrevocably guarantees, to and for the benefit of Contractor, the full and punctual payment of the Kiewit Termination Charge (as such term is defined in Section 17.2 of the Agreement) in the event of (i) a termination for convenience of the Agreement by Owner pursuant to Section 17.2 of the Agreement or (ii) a termination of the Agreement by Contractor pursuant to Section 17.5 of the Agreement, as and when such payment becomes due, by or on behalf of Owner in connection with and to the extent provided for in the Agreement (the “Guaranteed Obligations”); provided, however, notwithstanding anything to the contrary, Guarantor’s payment guarantee for such Guaranteed Obligations shall not exceed ***. The Guaranteed Obligations of Guarantor hereunder are direct and primary obligations.

(b) This Guarantee is a present, and continuing guarantee of payment, and not of collection, is in no way conditioned or contingent upon any attempt to collect from or enforce

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payment by Owner, and shall remain in full force and effect and be binding upon and against Guarantor and its successors and permitted assigns (and shall inure to the benefit of Contractor and its permitted successors, permitted endorsees, permitted transferees, and permitted assigns). If Owner shall fail or be unable duly, punctually, and fully to pay, as and when such payment is due, any of the Guaranteed Obligations, and taking into account any grace period applicable with respect thereto under the Agreement, then upon receipt of written notice from Contractor specifying that the Kiewit Termination Charge is due under Section 17.2 of the Agreement, Guarantor shall promptly pay, or cause to be paid, such Guaranteed Obligations as required pursuant to the terms and conditions of the Agreement.

(c) Guarantor agrees that any final judgment from any final award resulting from any litigation between Contractor and Owner under the Agreement with respect to the Guaranteed Obligations (whether in contested litigation, by default or otherwise) shall be conclusive and binding on the Parties for the purposes of determining Guarantor’s obligations under the Guarantee.

2. Obligations Continuing; Etc.

(a) Guarantor agrees that the obligations of Guarantor set forth in this Guarantee shall be direct obligations of Guarantor, and that such obligations shall be irrevocable, and that except for those specific defenses which Owner would be entitled to assert if an action or proceeding to enforce such obligations were to be asserted or instituted against Owner based upon the Agreement (which defenses Guarantor hereby retains and is authorized to assert), including the limitation of liability for this Guarantee under Section 10.5 of the Agreement, this Guarantee shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance with its obligations hereunder) based upon any claim Guarantor or any other Person may have against Contractor or any other Person and shall remain in full force and effect without regard to and shall not be released, discharged or in any way affected or impaired by, any circumstance or condition whatsoever (other than full and strict compliance by Guarantor with its obligations hereunder) (whether or not Guarantor shall have any knowledge or notice thereof), including, without limitation: (i) any amendment or modification of or supplement to or other change in the Agreement or any other document to which Owner or its permitted assigns are a party, including, without limitation, any change order, renewal, extension, acceleration or other changes to payment terms thereunder; (ii) any waiver, consent, extension, indulgence, compromise, release or other action or inaction under or in respect of the Agreement or any other related document or any related obligation or liability of Owner or Contractor, or any exercise or non-exercise of any right, remedy, power, or privilege under or in respect of any such instrument or agreement or any such obligation or liability; (iii) any bankruptcy, insolvency, reorganization, arrangement, readjustment, liquidation, or similar proceeding with respect to Owner, Contractor or any other Person or any of their respective properties, or any action taken by any trustee or receiver or by any court in any such proceeding; (iv) any merger or consolidation of Guarantor or Owner into or with any other Person or any sale, lease, or transfer of all or any of the assets of Guarantor or Owner; (v) any change in the ownership of Guarantor, Owner or any other Person; (vi) any winding up or dissolution of Owner; or (vii) to the extent permitted under Applicable Law, any other occurrence or circumstance whatsoever, whether similar or dissimilar to the foregoing, which might otherwise constitute a legal or equitable defense or discharge of the liabilities of

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guarantor or surety or which might otherwise limit recourse against Guarantor. The Guaranteed Obligations constitute the full recourse obligations of Guarantor enforceable against it to the full extent of all its assets and properties. Without limiting the generality of the foregoing, Guarantor agrees that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, Owner shall fail to pay the Guaranteed Obligations owed by Owner under the Agreement and that notwithstanding the recovery hereunder for or in respect of any given failure to so comply by Owner under the Agreement, this Guarantee shall remain in full force and effect and shall apply to each and every subsequent such failure.

(b) Notwithstanding any other language in this Guarantee to the contrary (but subject at all times to (i) the limitation of liability for the Guaranteed Obligations set forth in Section 1(a) and (ii) the exception set forth in this Section 2(b)), Guarantor’s obligations and liability for the Guaranteed Obligations under this Guarantee shall not differ from or exceed the obligations and liabilities of Owner under the Agreement, nor shall the remedies available to Contractor under this Guarantee extend beyond the remedies available to Contractor against Owner under the Agreement; provided that in no case shall this Section 2(b) be interpreted to relieve Guarantor of any Guaranteed Obligations or preclude any remedy available to Contractor due to any of the circumstances in Sections 2(a)(iii) or 2(a)(vi).

3. Reinstatement. Guarantor agrees that this Guarantee shall be automatically reinstated with respect to any payment made by or on behalf of Owner pursuant to the Agreement if and to the extent that such payment is rescinded or must be otherwise restored pursuant to Applicable Law, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

4. Waiver of Demands, Notices; Etc. Guarantor hereby unconditionally waives, to the extent permitted by Applicable Law: (i) notice of any of the matters referred to in Section 2 hereof; (ii) all notices which may be required by Applicable Law, or otherwise, now or hereafter in effect, to preserve any rights against Guarantor hereunder, including, without limitation, any demand, proof, or notice of non-payment of the Guaranteed Obligations; (iii) notice of acceptance of this Guarantee, demand, protest, presentment, notice of failure of payment, and any requirement of diligence; and (iv) any requirement to exhaust any remedies.

5. Waiver of Subrogation. Until such time as the Guaranteed Obligations are paid in full, Guarantor shall not seek or be entitled to assert or enforce any right of contribution, reimbursement, indemnification or any other right to payment from Owner as a result of Guarantor’s performance of its obligations pursuant to this Guarantee. If any funds or property shall be paid or transferred to Guarantor on account of such subrogation, contribution, reimbursement or indemnification at any time when all of the Guaranteed Obligations have not been paid in full, Guarantor shall hold such funds or property in trust for Contractor and shall forthwith pay over to Contractor such funds and/or property to be applied by Contractor to the Guaranteed Obligations, whether or not matured, in such order as Contractor may determine.

6. Representations and Warranties. Guarantor represents and warrants that:

(a) it is a corporation duly organized and validly existing under the laws of the State of Delaware and has the corporate power and authority to execute, deliver and carry out the terms and provisions of the Guarantee;

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(b) the execution, delivery and performance of this Guarantee will not conflict with, violate or breach the terms of any agreement of Guarantor;

(c) no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guarantee; and

(d) this Guarantee, when executed and delivered, will constitute a valid and legally binding agreement of Guarantor, except as the enforceability of this Guarantee may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity as they apply to the Guarantor.

7. Miscellaneous.

(a) This Guarantee shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns. Neither Party may assign or transfer this Guarantee or any rights or obligations hereunder without the other Party’s prior written consent. Notwithstanding the foregoing, this Guarantee may be assigned by Contractor to the same extent that Contractor is able to assign the Agreement pursuant to Section 22.7 therein. Except as provided in this Section 7, nothing herein, express or implied, is intended or shall be construed to confer upon or to give to any Person other than the Parties hereto any rights, remedies, or other benefits.

(b) This Guarantee shall be governed by, and construed in accordance with, the laws of the state of New York except for any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) other than Section 5-1401 of the New York General Obligations Law.

(c) The Parties agree that any dispute, controversy or claim (“Dispute”) arising out of or relating to this Guarantee shall be decided by litigation pursuant to this Section 7(c). Litigation of any Dispute shall be brought exclusively in a federal or state court located in New York County in the State of New York. Each Party hereby consents to personal jurisdiction in any legal action, suit, or proceeding brought in any federal or state court within New York County in the State of New York having subject matter jurisdiction and irrevocably waives, to the fullest extent permitted by Applicable Law and the laws of the State of New York, any claim or any objection it may now or hereafter have, that venue or personal jurisdiction is not proper with respect to any such legal action, suit, or proceeding brought in such a court in the State of New York, including any claim that such legal action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such Party at its address specified herein for the giving of notices, or by such other notice given in accordance with the rules and procedures of such courts.

(d) No modification or amendment of this Guarantee shall be of any force or effect unless made in writing, signed by the Parties hereto, and specifying with particularity the nature and extent of such modification or amendment. This Guarantee constitutes the entire and only

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understanding and agreement among the Parties hereto with respect to the subject matter hereof and cancels and supersedes any prior negotiations, proposals, representations, understandings, commitments, communications, or agreements, whether oral or written, with respect to the subject matter hereof.

(e) Notice. All notices pertaining to the Agreement shall be in the English language and signed by a duly authorized representative of the Party giving such notice, shall reference the Agreement, shall be sent by registered or certified mail, recognized express courier or facsimile (followed by registered mail) to the other Party at the address designated below, and shall be effective upon delivery:

If delivered to Guarantor:

Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: Chief Financial Officer

Facsimile: (678) 579-5001

with a copy to:

Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: General Counsel

Facsimile: (678) 579-5951

and

Mirant Marsh Landing, LLC

P.O. Box 192

Pittsburg, CA 94565

Attn: President

Facsimile: (925) 427-3518

If to Contractor:

Kiewit Power Constructors Co.

9401 Renner Blvd.

Lenexa, KS 66219

Attention: Kevin Needham

Fax No.: 913-928-7214

with a copy to:

Kiewit Power Constructors Co.

9401 Renner Blvd.

Lenexa, KS 66219

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Attention: Robert Osborn

Phone No.: 913-928-7895

Fax No.: 913-928-7895

or to such other address or telecopy number and with such other copies, as such Party may hereafter reasonably specify by notice to the other Parties. Each such notice, request or communication shall be effective upon receipt, provided that if the day of receipt is not a Business Day then it shall be deemed to have been received on the next succeeding Business Day.

(f) The headings of the several provisions of this Guarantee are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Guarantee.

(g) No forbearance or delay by Owner in asserting rights against Contractor shall affect or impair in any way Guarantor’s obligations hereunder or the rights of Owner hereunder.

(h) The term “Person” shall mean any individual, company, joint venture, corporation, partnership, association, joint stock company, limited liability company, trust, estate, unincorporated organization, governmental entity or other entity having legal capacity.

(i) This Guarantee may be executed in any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

[Signature Page Follows]

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IN WITNESS WHEREOF, the undersigned have duly executed this Guarantee as of the date first above written.

MIRANT CORPORATION

By:

Name:

Title:

KIEWIT POWER CONSTRUCTORS CO.

By:

Name:

Title:

Acknowledged:

Mirant Marsh Landing, LLC

By:

Name:

Title:

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Execution Version

ATTACHMENT AA

DEMOLITION WORK AND DEMOLITION INFORMATION

Contractor shall perform demolition Work and relocation of existing utilities and underground interferences pursuant to this Attachment AA.

General Scope of the Demolition Work:

1. Contractor shall demolish, excavate, load, remove from the Site and properly dispose of the existing foundations, concrete structures and other underground interferences at the Site (to the extent such other interferences have been identified by Owner either during inspections or in Schedule Y-3 or the drawings listed below), including the foundations for fuel oil tanks No. 1 through 5, equipment pads and pipe trenches. Such Work shall include the excavation, loading, removal and disposal of the sand and gravel matting under the fuel oil tanks. Drawings and information for the fuel oil tank foundations and other structures to be demolished and disposed of are provided in Schedule Y-3 and the drawings listed below.

2. Contractor shall demolish, excavate, load, remove from the Site and properly dispose of existing concrete and asphalt berms and other secondary containment structures as necessary for the construction of the Facility and to properly manage Site drainage. Drawings and information for the berms and other secondary containment structures are shown in Schedule Y-3 and the drawings listed below.

3. Contractor shall remove and relocate existing utilities at the Site as part of the demolition Work, including those utilities identified by the drawings and documents listed below and utilities identified by Contractor in its investigations as set forth in Section 5.2D of the Agreement. For clarity, all underground utilities east of the existing Fuel Oil Tanks #2 and #4 (and within the Site) shall be relocated and remain functional with the exception of the 480v cable runs to and from Load Center #8 (as shown on the Owner-provided drawings). The impound basin drain lines that run east of the Fuel Oil Tanks #2 and #4 berm (as shown in the Owner-provided drawings) shall be relocated if necessary. Also, the 3” PVC piping run supplying potable water, running in the fuel oil piping rack from Fuel Oil Tank #8 to the northeast corner of Fuel Oil Tank #2 and beyond, shall be removed and relocated. And the 4” PVC conduit carrying communication cable and running along the fuel oil piping rack from the northwest corner of Fuel Oil Tank #6 to the northeast corner of Fuel Oil Tank #2 and beyond shall also be removed but shall not be placed back into service by Contractor. (Owner shall be responsible for installing the new conduit and communications cable for the Facility; Contractor shall avoid damaging such new conduit and communications cable during the performance of the Work.) Note: The Parties acknowledge that the foregoing PVC piping runs are not shown on the drawings listed herein but have been identified to Contractor. All relocated utilities shall be returned to proper working order by Contractor.

Interfaces Regarding Loading, Removal and Disposal of Demolished Structures and Excavated Materials

1. Except as otherwise set forth in this Attachment AA, all demolished structures and utilities and excavated materials resulting from the demolition Work shall be loaded, removed from the Site (and relocated, as applicable) and otherwise properly disposed of by Contractor in accordance with the Agreement.

2. If Contractor encounters pre-existing Hazardous Materials during the performance of the demolition Work (other than soil, including sand and gravel beneath the fuel oil tanks, containing oil-based compounds, including corrosion inhibiting oils), then Contractor shall proceed in accordance with

AA-1

Section 3.17 of the Agreement. After notification by Contractor to Owner of its encounter with the Hazardous Materials, Owner shall cause such Hazardous Materials to be remediated, removed from the Site and disposed of in a reasonably prompt manner.

3. If Contractor encounters soils (including sand and gravel beneath the fuel oil tanks) containing oil-based compounds (such as corrosion inhibiting oils) during the performance of the demolition Work, then Contractor will excavate such soil and load such soil onto Owner-provided trucks for disposal by Owner. If the amount of excavation necessary to remove this type of soil is greater than one foot deep of sand and gravel matting, then Contractor shall be entitled to a Change Order for the additional, direct costs incurred as a result of such additional excavation.

4. If Contractor encounters any groundwater contaminated by Hazardous Materials and such contaminated groundwater requires Contractor to provide additional, unanticipated treatment of such groundwater prior to its release or causes Contractor to provide temporary storage for such contaminated groundwater (for Owner’s subsequent treatment and disposal), then Contractor shall be entitled to a Change Order for the additional, direct costs incurred as a result of such additional water treatment or provision of temporary storage.

List of Drawings and Related Documents Provided to Contractor for Demolition Work

The following drawings were provided to Contractor for their review and use in the evaluation and performance of the demolition Work:

Drawing Number	Revision Number	Drawing Title
16432	0	Requirements for 480V Load Center No. 8
312372	12	Wiring Diagram - 480 V Switchgear Load Center No. 8 Starter Sections
404033	24	General Arrangement of Conduits - Outdoors (with annotation)
404326	11	Arrangement of Grounds 220 KV Switch and Bus Str.
404765	7	Schematic Diagram 480 V Bus Feeder & Bus Tie A.C.B.’s
404882	24	General Arrangement of Station Grounding
404026	18	General Arrangement of Lighting
404109	17	Oil Fire Protection Equipment Layout and Detail
404110	18	General Area, Finished Grading
404598	15	Fire Water Supply System Plan and Detail
404679	9	Arrangement of Grounds Fuel Oil Tank Area
406301	19	Utility Plan
426937	13	Oily Water System
454367	4	Single Line Diagram 480V Load Center No. 20
469040	1	Architectural - Plumbing Low Pressure Water System Site Plan, Schedules and Details (with annotation)
521886	2	Piping and Mechanical Sections and Details Waste Water Treatment System
53432	8	General Arrangement of Grounds Elev. 0-9 Areas 16-33
53433	2	General Arrangement of Grounds Area 1-15 Elev. 0-9
404612	8	Fuel Oil Storage Tank Area - Plans & Details
404613	11	Fuel Oil Service & Storage Tanks - Details
404615	1	Fuel Oil Tankage System - Plot Plan
405374	8	Fuel Oil Tank Area Grading & Surfacing

AA-2

478888	7	Mechanical - Piping Schematic Fire Protection System
502640	7	Firewater System Plan and Details Fuel Oil Tanks 6, 7, 8
4030480	9	Single Line Diagram Contra Costa Power Plant (Switching Station)
		Construction Trailer Load Centers
		Marsh Landing Satellite1
		Report of Foundation Investigation Proposed Contra Costa Steam Plant (Units 1-3)
		Excerpts from Foundation Investigation for Contra Costa Units 6 and 7
		Soil Report (as defined in Section 1.1 of the Agreement)
		Water Supply and Discharge Pipeline Photos (Mirant Marsh Landing)

AA-3

Execution Version

ATTACHMENT BB

CONFIDENTIALITY OBLIGATIONS FOR SIEMENS CONFIDENTIAL INFORMATION

***

BB-1

Execution Version

ATTACHMENT CC

GROUND WATER SPECIFICATIONS

Water-quality results from samples collected prior to the aquifer test (MCL-USEPA Maximum Contaminant Level; NSDWR-USEPA National Secondary Drinking Water Standard).

Parameter	Units	WS-04	WS-05	WS-06	WS-07	WS-09
***	***	***	***	***	***	***

CC-1

Water-quality results from samples collected during the aquifer test (MCL-USEPA Maximum Contaminant Level; NSDWR-USEPA National Secondary Drinking Water Standard).

Parameter	Units	MCL (NSDWR)	SJ River (20.5 hrs)	WS-01 (20 hrs)	WS-04 (21.5 hrs)	TW-01-01 (22 hrs)	TW-01-02 (70 hrs)
***	***	***	***	***	***	***	***

CC-2

EX-31.1

Exhibit 31.1

I, Edward R. Muller, certify that:

1. I have reviewed this Form 10-Q for the period ended June 30, 2010, of Mirant Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: August 6, 2010

By:	/s/ EDWARD R. MULLER
	Edward R. Muller
	Chairman of the Board, President and Chief Executive Officer
	(Principal Executive Officer)

EX-31.2

Exhibit 31.2

I, J. William Holden, III, certify that:

1. I have reviewed this Form 10-Q for the period ended June 30, 2010, of Mirant Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: August 6, 2010

By:	/S/ J. WILLIAM HOLDEN, III
	J. William Holden, III
	Senior Vice President and Chief Financial Officer (Principal Financial Officer)

EX-32.1

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

August 6, 2010

U. S. Securities and Exchange Commission

100 F Street, N. E.

Washington, D.C. 20549

Ladies and Gentlemen:

The certification set forth below is being submitted to the Securities and Exchange Commission solely for the purpose of complying with Section 1350 of Chapter 63 of Title 18 of the United States Code. This certification is not to be deemed to be filed pursuant to the Securities Exchange Act of 1934 and does not constitute a part of the Quarterly Report on Form 10-Q (the “Report”) accompanying this letter and is not to be incorporated by reference into any filing, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

I, Edward R. Muller, Chairman of the Board, President and Chief Executive Officer of Mirant Corporation, certify that, subject to the qualifications noted below, to the best of my knowledge:

1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Mirant Corporation.

/S/ EDWARD R. MULLER
Name:	Edward R. Muller
	Chairman of the Board, President and Chief Executive Officer

A signed original of this written statement required by Section 906 has been provided to Mirant Corporation and will be retained by Mirant Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

EX-32.2

Exhibit 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

August 6, 2010

U. S. Securities and Exchange Commission

100 F Street, N. E.

Washington, D.C. 20549

Ladies and Gentlemen:

The certification set forth below is being submitted to the Securities and Exchange Commission solely for the purpose of complying with Section 1350 of Chapter 63 of Title 18 of the United States Code. This certification is not to be deemed to be filed pursuant to the Securities Exchange Act of 1934 and does not constitute a part of the Quarterly Report on Form 10-Q (the “Report”) accompanying this letter and is not to be incorporated by reference into any filing, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

I, J. William Holden, III, Senior Vice President and Chief Financial Officer of Mirant Corporation, certify that, subject to the qualifications noted below, to the best of my knowledge:

1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Mirant Corporation.

/S/ J. WILLIAM HOLDEN, III
Name:	J. William Holden, III
	Senior Vice President and Chief Financial Officer

A signed original of this written statement required by Section 906 has been provided to Mirant Corporation and will be retained by Mirant Corporation and furnished to the Securities and Exchange Commission or its staff upon request.