Exhibit 10.3





Exhibit 10.3




$1,488,000,000




CREDIT AGREEMENT




among




RRI ENERGY, INC. (TO BE RENAMED GENON ENERGY, INC.),

as a Borrower,




MIRANT AMERICAS, INC. (TO BE RENAMED GENON AMERICAS, INC.),

as a Borrower,




The Several Lenders from Time to Time Parties Hereto,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




CREDIT SUISSE SECURITIES (USA) LLC




and




DEUTSCHE BANK SECURITIES INC.,

as Co-Syndication Agents




Dated as of September 20, 2010




J.P. MORGAN SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA and MORGAN

STANLEY SENIOR FUNDING, INC.,

as Co-Lead Arrangers and Joint Bookrunners,




RBC CAPITAL MARKETS and THE ROYAL BANK OF SCOTLAND PLC,

as Co-Lead Arrangers




and




GOLDMAN SACHS BANK USA and MORGAN STANLEY SENIOR FUNDING, INC.,

as Co-Documentation Agents




$788,000,000 Revolving Facility

$700,000,000 Term Facility




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. DEFINITIONS
	 	 	6	 
	 
	 	 	 	 
	1.1. Defined Terms
	 	 	6	 
	1.2. Other Definitional Provisions
	 	 	36	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	37	 
	 
	2.1. Term Commitments
	 	 	37	 
	2.2. Procedure for Term Loan Borrowing
	 	 	37	 
	2.3. Repayment of Term Loans
	 	 	38	 
	2.4. Revolving Commitments
	 	 	38	 
	2.5. Procedure for Revolving Loan Borrowing
	 	 	38	 
	2.6. Commitment Fees, etc.
	 	 	39	 
	2.7. Termination or Reduction of Revolving Commitments
	 	 	39	 
	2.8. Optional Prepayments
	 	 	40	 
	2.9. Mandatory Prepayments
	 	 	40	 
	2.10. Conversion and Continuation Options
	 	 	41	 
	2.11. Limitations on Eurodollar Tranches
	 	 	42	 
	2.12. Interest Rates and Payment Dates
	 	 	42	 
	2.13. Computation of Interest and Fees
	 	 	43	 
	2.14. Inability to Determine Interest Rate
	 	 	43	 
	2.15. Pro Rata Treatment and Payments
	 	 	43	 
	2.16. Requirements of Law
	 	 	45	 
	2.17. Taxes
	 	 	47	 
	2.18. Indemnity
	 	 	49	 
	2.19. Change of Lending Office
	 	 	50	 
	2.20. Replacement of Lenders
	 	 	50	 
	2.21. Incremental Term Loan Commitments
	 	 	51	 
	2.22. Incremental Revolving Commitments
	 	 	53	 
	2.23. Defaulting Lenders
	 	 	55	 
	2.24. Joint and Several Liability
	 	 	56	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	56	 
	 
	 	 	 	 
	3.1. L/C Commitment
	 	 	56	 
	3.2. Procedure for Issuance of Letters of Credit
	 	 	57	 
	3.3. L/C Fees and Other Charges
	 	 	57	 
	3.4. L/C Participations
	 	 	58	 






 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	3.5. L/C Reimbursement Obligation of the Borrowers
	 	 	59	 
	3.6. Obligations Absolute
	 	 	59	 
	3.7. Letter of Credit Payments
	 	 	60	 
	3.8. Applications
	 	 	60	 
	3.9. Existing Letters of Credit
	 	 	60	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	 
	 	 	 	 
	4.1. Organization; Power and Authority
	 	 	60	 
	4.2. Due Authorization
	 	 	61	 
	4.3. Governmental Approval
	 	 	61	 
	4.4. Binding and Enforceable
	 	 	61	 
	4.5. No Violation
	 	 	61	 
	4.6. No Default
	 	 	61	 
	4.7. Litigation
	 	 	61	 
	4.8. Financial Condition
	 	 	61	 
	4.9. Material Adverse Change
	 	 	62	 
	4.10. Investment Company Act
	 	 	62	 
	4.11. Environmental Matters
	 	 	62	 
	4.12.
Accuracy of Information, etc.
	 	 	62	 
	4.13. Employee Benefit Plans
	 	 	62	 
	4.14. Tax Returns and Payments
	 	 	62	 
	4.15. Security Documents
	 	 	63	 
	4.16. Ownership of Property
	 	 	63	 
	4.17. Subsidiaries
	 	 	63	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	63	 
	 
	 	 	 	 
	5.1. Conditions to Initial Extension of Credit
	 	 	63	 
	5.2. Conditions to Each Extension of Credit
	 	 	67	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	67	 
	 
	 	 	 	 
	6.1. Compliance with Law; Maintenance of Existence
	 	 	67	 
	6.2. Financial Statements
	 	 	67	 
	6.3. Certificates; Other Information
	 	 	68	 
	6.4. Notices
	 	 	69	 
	6.5. Inspection
	 	 	69	 
	6.6. Maintenance of Property; Insurance
	 	 	70	 
	6.7. Subsequent Acquired Property; New Subsidiaries
	 	 	70	 
	6.8. Collateral Information
	 	 	71	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.9. Further Assurances
	 	 	72	 
	6.10. Use of Proceeds
	 	 	72	 
	6.11. New York Regulatory Approvals
	 	 	72	 
	 
	 	 	 	 
	SECTION 7. FINANCIAL COVENANT
	 	 	72	 
	 
	 	 	 	 
	7.1. Consolidated Secured Leverage Ratio
	 	 	72	 
	 
	 	 	 	 
	SECTION 8. NEGATIVE COVENANTS
	 	 	73	 
	 
	 	 	 	 
	8.1. Debt
	 	 	73	 
	8.2. Restricted Payments
	 	 	73	 
	8.3. Liens
	 	 	75	 
	8.4. Mergers
	 	 	78	 
	8.5. Asset Sales
	 	 	78	 
	8.6. Investments
	 	 	78	 
	8.7. Transactions with Affiliates
	 	 	80	 
	8.8. Sales and Leasebacks
	 	 	81	 
	8.9. Changes in Fiscal Periods
	 	 	81	 
	 
	 	 	 	 
	SECTION 9. EVENTS OF DEFAULT
	 	 	81	 
	 
	 	 	 	 
	SECTION 10. THE AGENTS
	 	 	84	 
	 
	 	 	 	 
	10.1. Appointment
	 	 	84	 
	10.2. Delegation of Duties
	 	 	84	 
	10.3. Exculpatory Provisions
	 	 	85	 
	10.4. Reliance by Administrative Agent
	 	 	85	 
	10.5. Notice of Default
	 	 	85	 
	10.6. Non-Reliance on Agents and Other Lenders
	 	 	86	 
	10.7. Indemnification
	 	 	86	 
	10.8. Agent in Its Individual Capacity
	 	 	87	 
	10.9. Successor Administrative Agent
	 	 	87	 
	10.10. Co-Syndication Agents and Co-Documentation Agents
	 	 	87	 
	 
	 	 	 	 
	SECTION 11. MISCELLANEOUS
	 	 	88	 
	 
	 	 	 	 
	11.1. Amendments and Waivers
	 	 	88	 
	11.2. Notices
	 	 	90	 
	11.3. No Waiver; Cumulative Remedies
	 	 	91	 
	11.4. Survival of Representations and Warranties
	 	 	91	 
	11.5. Payment of Expenses and Taxes
	 	 	92	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	11.6. Successors and Assigns; Participations and Assignments
	 	 	94	 
	11.7. Adjustments; Set-off
	 	 	98	 
	11.8. Counterparts
	 	 	98	 
	11.9. Severability
	 	 	98	 
	11.10. Integration
	 	 	98	 
	11.11. GOVERNING LAW
	 	 	99	 
	11.12. Submission To Jurisdiction; Waivers
	 	 	99	 
	11.13. Acknowledgements
	 	 	99	 
	11.14. Releases of Guarantees and Liens
	 	 	100	 
	11.15. Confidentiality
	 	 	100	 
	11.16. WAIVERS OF JURY TRIAL
	 	 	100	 
	11.17. Delivery of Addenda
	 	 	101	 
	11.18. Termination by the Company Prior to Closing Date or for Failure of Closing
Date to Occur
	 	 	101	 






 


iv









 





	 	 	 
	SCHEDULES:	 	 
	 
	1.1A

	 	Commitments
	1.1B

	 	Mortgaged Property
	1.1C

	 	Immaterial Subsidiaries
	1.1D

	 	Unrestricted Subsidiaries
	4.15(a)

	 	UCC Filing Jurisdictions
	4.17

	 	Subsidiaries
	8.3(k)

	 	Existing Liens
	8.6(l)

	 	Existing Investments






	 	 	 
	EXHIBITS:	 	 
	 
	A

	 	Form of Guarantee Agreement
	B

	 	Form of Security Agreement
	C

	 	Form of Collateral Trust Agreement
	D

	 	Form of Compliance Certificate
	E-1

	 	Form of Closing Certificate
	E-2

	 	Form of Secretary’s Certificate
	F-1

	 	Form of Incremental Term Loan Commitment Agreement
	F-2

	 	Form of Incremental Revolving Commitment Agreement
	G

	 	Form of Assignment and Assumption
	H-1

	 	Form of JPMCB Letter of Credit Application
	H-2

	 	Form of DBNY Letter of Credit Application
	I

	 	Form of Exemption Certificate
	J

	 	Form of Lender Addendum





 


v









 





CREDIT AGREEMENT (this “Agreement”), dated as of September 20, 2010, among RRI ENERGY,
INC. (to be renamed GENON ENERGY, INC. on the Closing Date (as defined herein)), a Delaware
corporation (the “Company”), from and after Closing Date, MIRANT AMERICAS, INC. (to be
renamed GENON AMERICAS, INC. on the Closing Date), a Delaware corporation (“GAI”; each of
GAI and the Company, a “Borrower” and, together, the “Borrowers”), the several
banks and other financial institutions or entities from time to time parties to this Agreement (the
“Lenders”), CREDIT SUISSE SECURITIES (USA) LLC and DEUTSCHE BANK SECURITIES INC., as
co-syndication agents (in such capacity, the “Co-Syndication Agents”), GOLDMAN SACHS BANK
USA and MORGAN STANLEY SENIOR FUNDING, INC., as co-documentation agents (in such capacity, the
“Co-Documentation Agents”) and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as
administrative agent.



RECITALS




WHEREAS, concurrently with the initial funding of Loans hereunder, RRI Energy Holdings, Inc.
(“Merger Sub”), a Delaware corporation and wholly-owned Subsidiary of RRI Energy, Inc.
(“RRI”), a Delaware corporation, will merge (the “Merger”) with and into Mirant
Corporation (“Mirant”), a Delaware corporation, as set forth in the Agreement and Plan of
Merger, dated as of April 11, 2010 (the “Merger Agreement”), by and among RRI, Merger Sub
and Mirant;




WHEREAS, as a result of the Merger, Mirant will become a wholly-owned Subsidiary of RRI;



WHEREAS, in connection with the Merger, RRI will change its name to GenOn Energy, Inc. and
certain existing Debt of MNA (as defined below) and RRI, as described in Section 5.22 of the Merger
Agreement, will be refinanced and related fees and expenses will be paid (the Merger, together with
the refinancing and payment of related fees and expenses in connection therewith, the
“Transaction”);



WHEREAS, in connection with the Transaction, the Borrowers have requested the Lenders to make
loans and other extensions of credit available to them to enable them to refinance or replace
certain Debt of MNA and the Company and for the Borrowers’ and their Subsidiaries’ working capital
purposes and general corporate purposes, and the Lenders have agreed, subject to the terms and
conditions hereof, to enter into this Agreement;




Accordingly, the parties hereto hereby agree as follows:



SECTION 1.  DEFINITIONS




1.1. Defined Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.



“ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar Rate for a
one-month Interest Period beginning on such day (or if such day is not a Business Day, the
immediately preceding Business Day) plus 1%. For purposes hereof, “Prime Rate”
shall mean
the rate of interest per annum publicly announced from time to time by JPMCB, as its prime
rate in effect at its principal office in New York City (the Prime Rate not being intended to be
the lowest rate of interest charged by JPMCB, in connection with extensions of credit to debtors).
Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Eurodollar Rate shall be effective as of the opening of business on the effective day of such
change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Rate, respectively.


 


6









 






“ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.



“Addendum”: an instrument, substantially in the form of Exhibit J, by which a Lender
becomes a party to this Agreement on or prior to or as of the Closing Date.



“Administrative Agent”: JPMCB, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, or any successor thereto.




“Affected Loans”: as defined in Section 2.9(d).



“Affiliate”: as to any Person (other than an individual), any other Person (other
than an individual) that, directly or indirectly through one or more intermediaries, is in Control
of, is Controlled by, or is under common Control with, such Person.




“Agent Indemnitee”: as defined in Section 10.7.



“Agents”: the collective reference to the Co-Syndication Agents, Co-Documentation
Agents, the Administrative Agent and the Collateral Agent.



“Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b)
thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans
and Incremental Term Loans and (ii) the amount of such Lender’s Revolving Commitment then in effect
or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving
Extensions of Credit then outstanding.



“Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.




“Agreement”: as defined in the preamble hereto.



“Applicable Margin”: with respect to (a) each Tranche and Type of Incremental Term
Loans, the “Applicable Margins” as set forth in the Incremental Term Loan Commitment Agreement
governing such Tranche of Incremental Term Loans and (b) each other Type of Loan, the rate per
annum set forth under the relevant column heading below:



	 	 	 	 	 	 	 	 	 
	 	 	ABR Loans	 	 	Eurodollar Loans	 
	Revolving Loans
	 	 	2.50	%	 	 	3.50	%
	Term Loans
	 	 	3.25	%	 	 	4.25	%





 


7









 





“Application”: with respect to (a) JPMCB and DBNY, an application substantially in
the form of Exhibit H-1 and Exhibit H-2, respectively, or such other form as such Issuing Lender
may specify from time to time in connection with any request for a Letter of Credit, and (b) with
respect to any other Issuing Lender, an application in such form as such Issuing Lender may specify
from time to time in connection with any request for a Letter of Credit.




“Approved Fund”: as defined in Section 11.6(b).



“Arrangers”: the collective reference to J.P. Morgan Securities Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P. and Morgan
Stanley Senior Funding, Inc.



“Asset Sale”: any Disposition or series of related Dispositions other than any
Excluded Asset Sale.




“Assignee”: as defined in Section 11.6(b).



“Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit G.



“Attributable Debt”: on any date, (a) in respect of a sale and leaseback transaction,
the present value of the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction including any period for which such
lease has been extended or may, at the option of the lessor, be extended (such present value to be
calculated using a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP; provided, that if such sale and leaseback transaction
results in a Capital Lease Obligation, the amount of Debt represented thereby will be determined in
accordance with the definition of “Capital Lease Obligation”) and (b) in respect of any Synthetic
Lease Obligation or financing lease, the amount of the remaining lease payments under the relevant
lease that would as of such date be required to be capitalized on a balance sheet in accordance
with GAAP if such lease were accounted for as a Capital Lease Obligation.



“Available Amount”: (a) $250,000,000 plus (b) the Net Cash Proceeds received
by the Company from the sale of Capital Stock since the Closing Date (other than from the issuance
of Disqualified Stock) not otherwise committed or required to be used to prepay Debt plus
(c) the greater of zero and the FCF Percentage of any Free Cash Flow minus (d) Restricted
Payments and Investments made in reliance on the Available Amount since the Closing Date.



“Available Revolving Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding.


 


8









 





“Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, has taken any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding
or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person or a parent
company thereof by a Governmental Authority or instrumentality thereof, as long as such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made by such Person.




“Benefitted Lender”: as defined in Section 11.7(a).



“Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




“Borrower” and “Borrowers”: as defined in the preamble hereto.



“Borrowing Date”: any Business Day specified by the Company as a date on which the
Company requests the relevant Lenders to make Loans hereunder.



“Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.



“Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including replacements,
repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries. For purposes of this definition,
the purchase price of equipment that is purchased simultaneously with the trade-in of existing
equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent
of the gross amount of such purchase price less the credit granted by the seller of such equipment
for the equipment being traded in at such time or the amount of such proceeds, as the case may be.



“Capital Lease Obligation”: as applied to any Person, at the time any determination
is to be made, the amount of the liability in respect of a capital lease that would at that time be
required to be capitalized on a balance sheet of such Person in accordance with GAAP in the
reasonable judgment of such Person, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such
lease may be prepaid by the lessee without payment of a penalty.



“Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase
any of the foregoing.


 


9









 





“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition issued by any Lender
or by any commercial bank organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than 30 days, with respect to securities
issued or fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with
maturities of six months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying
the requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i)
(x) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940,
as amended and are rated A by S&P and A by Moody’s or (y) are rated AAA by S&P and Aaa by Moody’s
and (ii) have portfolio assets of at least $2,500,000,000.




“Change of Control”: the occurrence of any of the following:




	 	(i)	 	the direct or indirect sale, transfer, conveyance or other
Disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole to any “person” (as that term is
used in Section 13(d) of the Exchange Act, but excluding any employee benefit
plan of the Company or any of the Restricted Subsidiaries, and any Person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan);






	 	(ii)	 	the adoption of a plan relating to the liquidation or
dissolution of the Company other than (a) the consolidation with, merger into
or transfer of all or part of the assets of any Restricted Subsidiary of the
Company to the Company or any other Restricted Subsidiary of the Company and
(b) the merger of the Company with an Affiliate solely for the purpose of re-incorporating the Company or re-forming the Company in another jurisdiction;




 


10









 











	 	(iii)	 	the consummation of any transaction (including any merger or
consolidation) the result of which is that any “person” (as defined above)
becomes the beneficial owner, directly or indirectly, of more than 50% of the
voting stock of the Company, measured by voting power rather than number of
 shares; or






	 	(iv)	 	the first day on which a majority of the members of the board
of directors of the Company are not Continuing Directors.





“Closing Date”: the date designated as the Closing Date by the Company and the
Administrative Agent, on which the conditions precedent set forth in Section 5.1 shall have been
satisfied or waived.




“Co-Documentation Agents”: as defined in the preamble hereto.



“Co-Lead Arrangers”: J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P. and Morgan Stanley Senior
Funding, Inc.




“Co-Syndication Agents”: as defined in the preamble hereto.



“Code”: the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder.



“Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.



“Collateral Trust Agreement”: the Collateral Trust Agreement to be entered into among
the Borrowers, the Subsidiary Guarantors, the Administrative Agent, the Collateral Trustee, and the
other parties named therein, substantially in the form of Exhibit C.



“Collateral Trustee”: U.S. Bank National Association or any successor thereto and, as
the context may require, any co-trustee appointed pursuant to the terms of the Collateral Trust
Agreement.



“Commitment”: as to any Lender, the sum of the Term Commitment, the Revolving
Commitment and the Incremental Term Loan Commitment of such Lender.




“Commitment Fee Rate”: 0.750% per annum.



“Commodity Agreement”: any contract for commercial and trading activities (including
any option, exchange, swap, forward contract or futures contract, whether for physical delivery or
financial settlement) for the purchase, transmission, transportation, distribution, sale, lease or
hedge of any emissions or fuel-related or energy- or capacity-related commodity or service.


 


11









 





“Common Stock”: with respect to any Person, any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of
such Person’s common stock whether or not outstanding on the Closing Date, including all series and
classes of such common stock.




“Company”: as defined in the preamble hereto.



“Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit D.



“Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 11.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.



“Confidential Information Memorandum”: the Confidential Information Memorandum dated
September 7, 2010 and furnished to certain Lenders.



“Consolidated Net Tangible Assets”: as of any date of determination, the total amount
of all assets of the Company and the Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP, as of the end of the most recent fiscal quarter for which the Company’s
financial statements are available, less the sum of: (1) the Company’s and the Restricted
Subsidiaries’ consolidated current liabilities as of such quarter end, determined on a consolidated
basis in accordance with GAAP; and (2) the Company’s and the Restricted Subsidiaries’ consolidated
assets that are properly classified as intangible assets as of such quarter end, determined on a
consolidated basis in accordance with GAAP. Consolidated Net Tangible Assets as of June 30, 2010
shall be deemed to equal $11,078,000,000.



“Consolidated Secured Debt”: as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP, all outstanding Debt of the Company
and its Subsidiaries on such date (other than such amounts which are attributable to Debt which is
unsecured by any Lien) minus, (a) without duplication, all (i) cash and Cash Equivalents
(limited, for purposes only of calculating compliance with Section 7.1, to $500,000,000 at any
time), and (ii) broker, counterparty, and customer margin and collateral assets and deposits
advanced to or held on behalf of such broker, counterparty, customer or other party, as each of the
foregoing appears on the consolidated balance sheet of the Company and its Subsidiaries and (b) the
Debt of any Unrestricted Subsidiary. Notwithstanding the foregoing, but without duplication,
Consolidated Secured Debt shall exclude an amount equal to the Expected Net Proceeds if the Company
shall have notified the Administrative Agent in writing that the
Company will apply such Expected Net Proceeds on receipt to the prepayment of secured Debt as
if such Expected Net Proceeds were not Excluded Proceeds.



 


12









 





“Consolidated Secured Leverage Ratio”: as of any date of determination, the ratio of
(a) Consolidated Secured Debt as of such date (which, if less than zero, will be deemed to equal
zero for this purpose) to (b) EBITDA for the period of the four fiscal quarters most recently ended
for which financial statements are available.



“Consolidated Total Debt”: as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP, all outstanding Debt of the Company
and its Subsidiaries on such date minus (a) all (i) cash and Cash Equivalents, and (ii)
broker, counterparty, and customer margin and collateral assets and deposits advanced to or held on
behalf of such broker, counterparty, customer or other party, as each of the foregoing appears on
the consolidated balance sheet of the Company and its Subsidiaries and (b) the Debt of any
Unrestricted Subsidiary. Notwithstanding the foregoing, but without duplication, Consolidated
Total Debt shall exclude an amount equal to the Expected Net Proceeds if the Company shall have
notified the Administrative Agent in writing that the Company will apply such Expected Net Proceeds
on receipt to the prepayment of Debt as if such Expected Net Proceeds were not Excluded Proceeds.



“Continuing Directors”: as of any date of determination, any member of the board of
directors of the Company who (a) was a member of such board of directors on the Closing Date; or
(b) was nominated for election or elected to such board of directors with the approval of a
majority of the Continuing Directors who were members of such board of director at the time of such
nomination or election.



“Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.



“Control”: with respect to any Person, the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; and the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.



“Corporate Interest”: for any period, with reference to the Company’s consolidated
financial statements, the aggregate of interest expense accrued during such period by the Company
and its Subsidiaries on a consolidated basis on Debt less the sum of, without duplication, (a) the
amount of interest, if any, included in such interest expense which was capitalized in accordance
with GAAP, (b) the total interest income of such Person and the Restricted Subsidiaries, (c)
interest expense attributable to Debt repaid or required to be repaid under any Debt for which the
Company has notified the Administrative Agent in writing that it agrees it will not designate the
Net Cash Proceeds of Asset Sales as Excluded Proceeds, in each case in connection with an Asset
Sale, and (d) the interest expense attributable to Debt of any Unrestricted Subsidiary.


 


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“Credit Party”: the Administrative Agent, the Issuing Lender or any other Lender.




“DBNY”: Deutsche Bank AG New York Branch.



“Debt”: with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses or trade payables), whether or not contingent (without duplication):




	 	(i)	 	in respect of borrowed money;






	 	(ii)	 	evidenced by bonds, notes, debentures or similar instruments or
letters of credit or reimbursement agreements in respect thereof;






	 	(iii)	 	in respect of banker’s acceptances;






	 	(iv)	 	representing Capital Lease Obligations or Attributable Debt in
respect of sale and leaseback transactions (excluding the REMA Lease and the
MIRMA Lease which shall not constitute Debt), Synthetic Lease Obligations or
financing leases;






	 	(v)	 	representing all obligations of such Person in respect of the
deferred purchase price of property or services due more than six months after
such property is acquired or such services are completed;






	 	(vi)	 	representing any Hedging Obligations; or
	 
	 	(vii)	 	consisting of Disqualified Stock;





whether or not any of the preceding items appear as a liability on a balance sheet of the specified
Person prepared in accordance with GAAP, provided, however, “Debt” shall not
include indebtedness which has been irrevocably defeased, or in the case of the Existing RRI
Secured Notes or the Existing MNA Senior Notes, irrevocably discharged in accordance with Section
8.02 and Section 8.1, respectively, of the indenture relating thereto, or debt securities held by
the issuer thereof. In addition, the term “Debt” includes all Debt of others secured by a Lien on
any asset of the specified Person (whether or not such Debt is assumed by the specified Person, but
excluding Liens securing Project Finance Debt and Liens on Capital Stock of any Unrestricted
Subsidiary) and, to the extent not otherwise included, the Guarantee by the specified Person of any
Debt of any other Person.



The amount of any Debt outstanding as of any date will be:




	 	(i)	 	the accreted value of the Debt, in the case of any Debt issued
with original issue discount;






	 	(ii)	 	the principal amount of and premium (if any) on the Debt, in
the case of any other Debt;




 


14









 











	 	(iii)	 	in respect of Debt of other Persons secured by a Lien on the
assets of the specified Person, the lesser of: (A) the Fair Market Value of
such asset at such date of determination, and (B) the amount of such Debt of
such other Persons;






	 	(iv)	 	in respect of any Guarantee, an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith;
	 
	 	(v)	 	zero for undrawn letters of credit and undrawn revolvers; and






	 	(vi)	 	in respect of any Hedging Obligations, the amount, if any,
which is then due and payable thereunder.





“Default”: any of the events specified in Section 9, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.



“Defaulting Lender”: any Lender that (a) has failed, within three Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of such Lender’s good faith
determination that a condition precedent to funding (specifically identified and including the
particular Default, if any) has not been satisfied, (b) has notified the Company or any Credit
Party in writing, or has made a public statement to the effect, that it does not intend or expect
to comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular Default, if any) to
funding a Loan cannot be satisfied) or generally under other agreements in which it commits to
extend credit, (c) has failed, within three Business Days after request by the Company or a Credit
Party, acting in good faith, to provide a certification in writing from an authorized officer of
such Lender that it will comply with its obligations (and is prepared to meet such obligations) to
fund prospective Loans and participations in then outstanding Letters of Credit under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon the Company or such Credit Party’s receipt, as applicable, of such certification in
form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject
of a Bankruptcy Event.




“Designated Party”: has the meaning set forth in Section 9(i).



“Disposition”: (a) with respect to any assets, any sale, lease (other than an
operating lease), conveyance or other disposition thereof and (b) the sale or issuance of Capital
Stock in any of the Restricted Subsidiaries. The terms “Dispose” and “Disposed of”
shall have correlative meanings.


 


15









 





“Disqualified Stock”: with respect to any Person, any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is convertible, or for which it
is exchangeable, in each case, at the option of the holder of such Capital Stock), (i) matures or
is subject to a scheduled redemption, pursuant to a sinking fund obligation or otherwise, on or
prior to the date that is 91 days after the Term Loan Termination Date or (ii) matures or is
subject to mandatory redemption upon the happening of any event unless such maturity or mandatory
redemption is conditioned on the prior repayment in full of the Facilities. The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement shall be
equal to the maximum amount that the Borrowers and the Restricted Subsidiaries may become obligated
to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such
Disqualified Stock, exclusive of accrued dividends.




“Dollars” and “$”: dollars in lawful currency of the United States.



“Domestic Subsidiary”: any Subsidiary of the Company organized in or under the laws
of the United States, any state thereof or the District of Columbia other than (1) a Subsidiary in
which a Foreign Subsidiary directly or indirectly owns a majority of the voting equity interests or
(2) a Subsidiary that owns no material assets other than the equity interests of one or more
Foreign Subsidiaries.



“EBITDA”: for any period, with reference to the Company’s consolidated financial
statements (a) income from continuing operations before income taxes and non-controlling interest;
plus (b) depreciation and amortization; plus (c) Corporate Interest; plus
(d) cash dividends or distributions actually received by the Company or any Restricted Subsidiary
during such period from any Unrestricted Subsidiary or any other entity which is not a consolidated
Subsidiary or any Restricted Subsidiary whose income is excluded pursuant to the third sentence
hereof. “EBITDA” shall not include the effect of (i) gains or losses on sales or dispositions of
assets; (ii) non-recurring items (including, for the avoidance of doubt, restructuring expenses),
(iii) non-cash expenses and non-cash gains or losses, including as a result of hedge transactions
being marked to market, but shall include cash payments and receipts from and in respect of
settlement of Swap Agreements, or (iv) any income from continuing operations before income taxes
and non-controlling interest attributable to Unrestricted Subsidiaries, except to the extent
provided in clause (d) of the immediately preceding sentence. Except for purposes of calculating
compliance with Section 7.1 hereof, and except to the extent provided in clause (d) of the first
sentence hereof, “EBITDA” shall not include the effect of any income from continuing operations
before income taxes and non-controlling interest attributable to any Restricted Subsidiary of the
Company to the extent that such Subsidiary is prohibited from making distributions or dividends as
of the date of determination (unless such prohibition arises solely from the requirement under the
MIRMA Lease that MIRMA and its Subsidiaries deliver financial statements for the most recently
completed fiscal year or fiscal quarter, as the case may be, and the date of determination is less
than 90 or 60 days, as the case may be, from the end of such fiscal year or fiscal quarter). In
addition, for purposes of calculating EBITDA, the amounts accrued as rent expense under the MIRMA
Lease and REMA Lease shall be treated as operating expenses for purposes of determining income from
continuing operations, and no portion of such amounts shall be treated as Corporate Interest or
principal amortization, such that, to the extent possible, the treatment



 


16









 






of the obligations under
the MIRMA Lease and REMA Lease as such obligations are treated on the Closing Date is preserved. If during any period for which EBITDA is being determined, the
Company or any of its Subsidiaries shall have (a) made or consummated any acquisition for gross
consideration of $10,000,000 or more (including Debt assumed), then EBITDA shall be determined on a
pro forma basis for such period as if such acquisition had been made or consummated
as of the beginning of the first day of such period or (b) made or consummated any Asset Sale that
is not fully included in discontinued operations or shall have elected to deduct Expected Net
Proceeds from Consolidated Secured Debt or Consolidated Total Debt, then EBITDA shall be determined
on a pro forma basis for such period as if such Asset Sale had been made or
consummated as of the beginning of the first day of such period. EBITDA for periods prior to the
closing date of the Merger (to the extent not determined by the following sentence) will be
estimated in good faith by the Company giving pro forma effect to the Merger.
EBITDA will be deemed to equal the following amounts for the fiscal quarters ended on the following
dates: September 30, 2009, $400,000,000; December 31, 2009, $192,000,000; March 31, 2010,
$180,000,000; June 30, 2010, $153,000,000.




“Eligible Assignee”: any assignee permitted under Section 11.6.



“Eligible Commodity Hedging Agreement”: any Commodity Agreement entered into by any
Loan Party from time to time which (i) is intended to reduce risk to the Company or any Restricted
Subsidiary associated with fluctuations in the price or availability of any emissions or
fuel-related or energy- or capacity-related commodity or service (“commodity”), and (ii) is
structured such that the net mark-to-market credit exposure of (a) the counterparties to such
Commodity Agreements (taken as a whole) to (b) the Company or any other Loan Party, is (x)
positively correlated with the price of the relevant commodity or (y) positively correlated with
changes in the relevant fuel to energy spread.



“Eligible Commodity Hedging Obligations”: with respect to any Loan Party, the
obligations of such Person under an Eligible Commodity Hedging Agreement. For purposes of
designating obligations as Eligible Commodity Hedging Obligations secured by the Collateral
pursuant to the Security Agreement, such designation shall be deemed effective if accompanied by a
certification by the Company representing that such obligations meet the definition of Eligible
Commodity Hedging Obligations.



“Environmental Capital Expenditures”: Capital Expenditures required by, or reasonably
related to the Company’s or its Subsidiaries’ compliance with, Environmental Laws.



“Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.



“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations promulgated thereunder.



“ERISA Affiliate”: all members of a group of corporations and all members of a group
of trades or businesses (whether or not incorporated) under common control which,
together with the Company, are treated as a single employer under Section 414(b) or (c) of the
Code.


 


17









 





“ERISA Event”: any of the following events: (i) the appointment of a trustee to
administer or terminate any Plan, (ii) the termination of a Plan, (iii) any failure by any Plan to
satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or
Section 302 of ERISA), whether or not waived, (iv) the filing pursuant to Section 412(c) of the
Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, the failure to make by its due date a required installment under Section
430(j) of the Code with respect to any Plan or the failure by the Company or any of its ERISA
Affiliates to make any required contribution to a Multiemployer Plan, (v) a determination that any
Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code
or Section 303 of ERISA), (vi) the imposition of a Lien under the Code or ERISA on the assets of
the Company on account of any Plan, (vii) the occurrence of a reportable event described in Section
4043(c) of ERISA (other than those events as to which the 30-day notice period is waived) with
respect to a Plan, or (viii) the incurrence by the Company of any liability in connection with a
withdrawal from a Multiemployer Plan, or the determination that a Multiemployer Plan is, or is
expected to be, insolvent (within the meaning of Section 4245 of ERISA), in reorganization (within
the meaning of Section 4241 of ERISA) or in endangered or critical status (within the meaning of
Section 432 of the Code or Section 305 or Title IV of ERISA).



“Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.



“Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.



“Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, the rate per annum determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first day of such Interest Period
appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period; provided, that for the Term Facility only, in no
event shall the Eurodollar Rate (including for the purpose of determining ABR) be less than 1.75%
per annum. In the event that such rate does not appear on such page (or otherwise on such screen),
the “Eurodollar Rate” shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which the Administrative Agent
is offered Dollar deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number of days
comprised therein.



 


18









 





“Eurodollar Tranche”: the collective reference to Eurodollar Loans under a particular
Facility the then current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have been made on the same
day).



“Event of Default”: any of the events specified in Section 9, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.




“Exchange Act”: the Securities Exchange Act of 1934, as amended from time to time.




“Excluded Asset Sale”: each of the following transactions:




	 	(i)	 	the Disposition of damaged, obsolete, uneconomic or worn out
property, or property which in the good faith judgment of the Company is no
longer useful in its or the Restricted Subsidiaries’ business, in each case, in
the ordinary course of business;






	 	(ii)	 	Dispositions among the Company and Restricted Subsidiaries, or
among Restricted Subsidiaries;






	 	(iii)	 	Dispositions of Cash Equivalents or other short-term
investments;






	 	(iv)	 	Dispositions by the Company or any Restricted Subsidiary of
fuel or emission or environmental credits;






	 	(v)	 	any Disposition or series of related Dispositions resulting in
proceeds not in excess of $50,000,000;
	 
	 	(vi)	 	Restricted Payments permitted by Section 8.2;






	 	(vii)	 	any Disposition in connection with a foreclosure, transfer or
deed in lieu of foreclosure or other exercise of remedial action;






	 	(viii)	 	Dispositions, not resulting in the Disposing of all or substantially all of
the assets of the Company and the Restricted Subsidiaries, of inventory,
products, electric energy, commodities, capacity, ancillary services, fuel,
rights, services or accounts receivable;
	 
	 	(ix)	 	Investments permitted by Section 8.6;






	 	(x)	 	a Disposition resulting from any condemnation;
provided, if such Disposition involves assets with gross cash proceeds
in excess of $50,000,000, that any cash proceeds received in connection
therewith are treated as Net Cash Proceeds of an Asset Sale;




 


19









 











	 	(xi)	 	compromises and settlements of claims against third-parties and
Dispositions of assets in connection with the settlement of claims and
litigation; and






	 	(xii)	 	grants by the Company or any of its Subsidiaries of licenses,
sublicenses, leases or subleases or easements to other Persons not materially
interfering with the conduct by the Company or such Subsidiary of its business
on or at the property that is the subject of such license, sublicense, lease or
sublease or easement.





“Excluded Proceeds”: Net Cash Proceeds from Asset Sales or Recovery Events in an
amount not to exceed $300,000,000 in the aggregate in any fiscal year and $1,000,000,000 in the
aggregate during the term of this Agreement.



“Existing Credit Agreements”: the collective reference to the Existing RRI Credit
Agreement and the Existing MNA Credit Agreement.



“Existing Letters of Credit”: the letters of credit issued pursuant to the Existing
MNA Credit Agreement and the Existing RRI Credit Agreement that are outstanding thereunder on the
Closing Date.



“Existing MNA Credit Agreement”: the Credit Agreement, dated as of January 3, 2006,
among MNA, JPMorgan Chase Bank, N.A., as the administrative agent, and the lenders and other agents
party thereto.



“Existing MNA Senior Notes”: the 7.375% Senior Notes due 2010 issued pursuant to the
Indenture, dated as of December 23, 2005, among Mirant North America Escrow, LLC, MNA and MNA
Finance Corp., as issuers, and Law Debenture Trust Company of New York, as trustee.



“Existing PEDFA Bonds”: the Seward Tax-Exempt Bonds outstanding immediately prior to
the Closing Date.



“Existing RRI Credit Agreement”: the Credit and Guaranty Agreement, dated as of June
12, 2007, among RRI, Deutsche Bank AG New York Branch, as the administrative agent, and the lenders
and other agents party thereto.



“Existing RRI Secured Notes”: the 6.75% Senior Secured Notes due 2014 issued pursuant
to the First Supplemental Indenture, dated as of December 22, 2004, among RRI, as issuer, and
Wilmington Trust Company, as trustee.




“Extended Expiration Date”: as defined in Section 11.18.



“Expected Net Proceeds”: the Net Cash Proceeds that the Company expects to receive in
connection with a pending and binding Asset Sale or issuance or sale of Capital Stock.



“Facility”: each of (a) the Term Commitments and the Term Loans made thereunder (the
“Term Facility”), (b) the Revolving Commitments and the extensions of credit
made thereunder (the “Revolving Facility”) and (c) the Incremental Term Loan
Commitments and the Incremental Term Loans made thereunder (the “Incremental Term
Facility”).



 


20









 





“Fair Market Value”: the value that would be paid by a willing buyer to a willing
seller in a transaction not involving distress or necessity of either party, determined in good
faith by the chief financial officer, treasurer, assistant treasurer, controller or board of
directors of the Company or the selling entity.




“FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement.



“FCF Percentage”: the following percentages of Free Cash Flow based on the
Consolidated Secured Leverage Ratio of the Company and its Subsidiaries: (i) if greater than or
equal to 3.0 to 1.0, 50% of Free Cash Flow, (ii) if less than 3.0 to 1.0 but greater than 2.0 to
1.0, 75% of Free Cash Flow and (iii) if less than or equal to 2.0 to 1.0, 100% of Free Cash Flow.



“Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by JPMCB from three federal funds brokers
of recognized standing selected by it.



“Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.



“Foreign Subsidiary”: any Subsidiary of the Company that is not a Domestic
Subsidiary.



“Foundation”: RRI Energy Foundation, Inc, a Texas non-profit corporation, or any
successor thereto.



“Free Cash Flow”: for the period from January 1, 2010 through any date of its
determination, without duplication, (a) EBITDA for such period, minus (b) Corporate
Interest for such period, minus (c) the aggregate amount of any cash payments made in
respect of Taxes during such period by the Company or any of the Restricted Subsidiaries net of
cash tax refunds for such period, minus (d) the aggregate amount of all scheduled amortized
principal payments of Debt, if any, of the Company and the Restricted Subsidiaries made during such
period, minus (e) Capital Expenditures made by the Company and the Restricted Subsidiaries
for such period (other than Capital Expenditures made with (x) Net Cash Proceeds of Recovery
Events, (y) Net Cash Proceeds of Asset Sales, and (z) the proceeds of the incurrence of Permitted
Debt), provided, however, that the amounts deducted pursuant to clauses (b) through
(e) of the foregoing shall not include amounts described therein attributable to any Restricted
Subsidiary that is subject to the exclusion under the third sentence of the definition of “EBITDA”.


 


21









 





“Funding Office”: the office of the Administrative Agent specified in Section 11.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Company and the Lenders.



“GAAP”: those generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.



“Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).



“Group Members”: the collective reference to the Company and the Restricted
Subsidiaries.



“Guarantee”: a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including by way
of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof,
of all or any part of any Debt (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise). The term “Guarantee” as a verb has a
corresponding meaning.



“Guarantee Agreement”: the Guarantee Agreement to be executed and delivered by the
Subsidiary Guarantors, substantially in the form of Exhibit A.



“Hedging Agreement”: any agreement or arrangement referred to in the definition of
“Hedging Obligations” entered into between any Loan Party and any Hedging Counterparty.



“Hedging Counterparties”: with respect to any Hedging Agreement, any Specified
Hedging Counterparty or Non-Specified Hedging Counterparty thereunder.



“Hedging Obligations”: with respect to any Loan Party, the net obligations of such
Person under: (a) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements; (b) other agreements or
arrangements designed to manage interest rate risk; and (c) other agreements or arrangements
designed to protect such Person against fluctuations in currency exchange rates.




“Identified Competitor”: has the meaning set forth in Section 11.6(b)(A).



“Incremental Loan Commitment”: an Incremental Revolving Commitment or Incremental
Term Loan Commitment, as the case may be.


 


22









 





“Incremental Loan Commitment Date”: an Incremental Revolving Commitment Date or
Incremental Term Loan Commitment Date, as the case may be.



“Incremental Loan Commitment Requirements”: with respect to any provision of an
Incremental Loan Commitment on a given Incremental Loan Commitment Date, the satisfaction of each
of the following conditions on or prior to the closing date of the respective Incremental Loan
Commitment Agreement:




	 	(i)	 	no Default or Event of Default has occurred and is continuing
or would be caused thereby and all of the representations and warranties
contained herein (other than as set forth in Sections 4.7, 4.9 and 4.12) are
true and correct in all material respects at such time; and






	 	(ii)	 	the delivery by the Borrowers to the Administrative Agent of an
officer’s certificate executed by a Responsible Officer of each Borrower and
certifying as to compliance with preceding clause (i).





“Incremental Revolving Commitment”: for any Lender, any commitment by such Lender to
make Revolving Loans pursuant to Section 2.4 in such amount as agreed to by such Lender in the
respective Incremental Revolving Commitment Agreement delivered pursuant to Section 2.22; it being
understood, however, that on each date upon which an Incremental Revolving Commitment of any Lender
becomes effective, such Incremental Revolving Commitment of such Lender shall be added to (and
thereafter become a part of) the Revolving Commitment of such Lender for all purposes of this
Agreement as contemplated by Section 2.22.



“Incremental Revolving Commitment Agreement”: each Incremental Revolving Commitment
Agreement substantially in the form of Exhibit F-2 (appropriately completed) executed in accordance
with Section 2.22.



“Incremental Revolving Commitment Date”: each date upon which an Incremental
Revolving Commitment under an Incremental Revolving Commitment Agreement becomes effective as
provided in Section 2.22(b).




“Incremental Revolving Lender”: as defined in Section 2.22(b).




“Incremental Term Loan”: as defined in Section 2.1.



“Incremental Term Loan Borrowing Date”: with respect to each Tranche of Incremental
Term Loans, each date on which Incremental Term Loans of such Tranche are incurred pursuant to
Section 2.1 and as otherwise permitted by Section 2.21.



“Incremental Term Loan Commitment”: for each Lender, any commitment to make
Incremental Term Loans provided by such Lender pursuant to Section 2.21, in such amount as agreed
to by such Lender in the respective Incremental Term Loan Commitment Agreement and as set forth
opposite such Lender’s name in Schedule 1.1A (as modified in accordance with Section 2.21) directly
below the column entitled “Incremental Term Loan Commitment”, as the same may be terminated
pursuant to Section 2.10 or Section 9.


 


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“Incremental Term Loan Commitment Agreement”: each Incremental Term Loan Commitment
Agreement in the form of Exhibit F-1 (appropriately completed) executed in accordance with Section
2.21.



“Incremental Term Loan Commitment Date”: each date upon which an Incremental Term
Loan Commitment under an Incremental Term Loan Commitment Agreement becomes effective as provided
in Section 2.21(b).




“Incremental Term Loan Lender”: as defined in Section 2.21(b).



“Incremental Term Loan Maturity Date”: for the Incremental Term Loans, the final
maturity date set forth for such Tranche of Incremental Term Loans in the respective Incremental
Term Loan Commitment Agreement relating thereto, provided that the final maturity date for
all Incremental Term Loans of a given Tranche shall be the same date.




“Indemnified Liabilities”: as defined in Section 11.5(a).




“Indemnitee”: as defined in Section 11.5(a).



“Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Loan that is an ABR Loan), the date of any repayment or prepayment made in respect
thereof.



“Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter (or such other period as the Company and all
Lenders of the relevant Facility may agree), as selected by the Company in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months (or such other period as the Company and
all Lenders of the relevant Facility may agree) thereafter, as selected by the Company by
irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City time, on
the date that is three Business Days prior to the last day of the then current Interest Period with
respect thereto; provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:




(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;


 


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(ii) the Borrowers may not select an Interest Period under a particular Facility that
would extend beyond, with respect to (x) Revolving Loans, the Revolving Termination Date or
(y) Term Loans, the Term Loan Termination Date or (z) Incremental Term Loans, the
Incremental Term Loan Maturity Date, as the case may be; and




(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month.




“Investments”: as defined in Section 8.6.



“Issuing Lender”: each of JPMCB, DBNY and any other Revolving Lender from time to time
designated by the Company as an Issuing Lender with the consent of such other Revolving Lender and
the Administrative Agent, or any Affiliate thereof, in its capacity as issuer of any Letter of
Credit; collectively, the “Issuing Lenders”.




“JPMCB”: as defined in the preamble hereto.



“L/C Commitment”: at any time, the aggregate amount of the Revolving Commitments then
in effect.



“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.



“L/C Participants”: as to any Letter of Credit, the collective reference to all the
Revolving Lenders other than the Issuing Lender of such Letter of Credit.



“Lenders”: as defined in the preamble hereto; provided, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender.



“Letters of Credit”: any letter of credit issued pursuant to this Agreement. As of
the Closing Date, each Existing Letter of Credit shall be deemed to be a Letter of Credit hereunder
as though issued hereunder on the Closing Date and the Company shall be the account party
thereunder.



“Lien”: any mortgage, pledge, lien, hypothecation, security interest or other charge,
encumbrance or other arrangement in the nature of a security interest in property;
provided, however, that the term “Lien” shall not mean any easements, survey
exceptions, reservations (including those for, rights-of-way, sewers, electric lines, telegraph and
telephone lines, other utilities, mineral reservations and rights), zoning restrictions,
encroachments, minor title deficiencies, leases, subleases, licenses, sublicenses, or other
restrictions on the use of property or other similar encumbrances.



“Loan”: any loan made by any Lender pursuant to this Agreement.


 


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“Loan Documents”: this Agreement, the Guarantee Agreement, the Security Documents,
the Notes and any amendment, waiver, supplement or other modification to any of the foregoing.




“Loan Parties”: the Borrowers and each of the Subsidiary Guarantors.



“MAG”: Mirant Americas Generation, LLC, a Delaware limited liability company, or any
successor thereto.



“Majority Facility Lenders”: with respect to any Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Term Loans, Incremental Term Loans or the Total
Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the
case of the Revolving Facility, prior to any termination of the Revolving Commitments, the holders
of more than 50% of the Total Revolving Commitments).



“Majority Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans and Incremental Term Loans then outstanding and (ii) the
Total Revolving Commitments then in effect or, if the Revolving Commitments have been terminated,
the Total Revolving Extensions of Credit then outstanding.



“Material Adverse Effect”: a material adverse change in, or material adverse effect
on, (i) the financial condition, operations, business or assets of the Company or its Subsidiaries,
taken as a whole, which would have a material adverse effect on the ability of the Borrowers to pay
amounts owed by it from time to time under the Facilities, or (ii) the validity or enforceability
of this Agreement or any of the other Loan Documents against the Company or any Subsidiary
Guarantor which would have a material adverse effect on the rights, remedies and benefits available
to, or conferred upon, the Administrative Agent or the Lenders, taken as a whole.



“Material Agreement”: a Contractual Obligation to which a Loan Party is a party or
affecting a Loan Party or the properties of a Loan Party or its Subsidiaries, where such
Contractual Obligation (x) evidences Debt of such Loan Party or (y) is identified in the exhibit
list from time to time in filings made by the Company with the SEC as material to the Company.




“Merger”: as defined in the recitals hereto.




“Merger Agreement”: as defined in the recitals hereto.




“Merger Sub”: as defined in the recitals hereto.



“MET”: Mirant Energy Trading, LLC, a Delaware limited liability company, or any
successor thereto.




“Mirant”: as defined in the recitals hereto.



“Mirant New York Party”: as defined in Section 6.11.


 


26









 





“MIRMA”: Mirant Mid-Atlantic, LLC, a Delaware limited liability company, or any
successor thereto.



“MIRMA Lease”: collectively, the obligations of MIRMA as facility lessee under the
eleven facility lease agreements, each dated as of December 19, 2000, and under the related
participation agreements and other documents executed in connection therewith, in each case as
amended, modified or supplemented from time to time.



“MML”: Mirant Marsh Landing, LLC, a Delaware limited liability company, or any
successor thereto, and any entity formed for the sole purpose of owning the capital stock of MML.



“MNA”: Mirant North America, LLC, a Delaware limited liability company, or any
successor thereto.




“Moody’s”: Moody’s Investors Service, Inc. or any successor thereto.



“Mortgaged Properties”: the real properties listed on Schedule 1.1B and designated as
properties for which a Mortgage will be delivered.



“Mortgages”: each of the mortgages and deeds of trust made by any Loan Party in favor
of, or for the benefit of, the Collateral Trustee for the benefit of the Secured Parties, in form
and substance reasonably satisfactory to the Administrative Agent.




“Multiemployer Plan”: as defined in Section 4001(a)(3) of ERISA.




“New York Regulatory Approvals”: as defined in Section 6.11.



“Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Debt
secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale
or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees
and expenses actually incurred in connection therewith and net of Taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any issuance or sale of
Capital Stock or any incurrence of Debt, the cash proceeds received from such issuance or
incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting
discounts and commissions and other customary fees and expenses actually incurred in connection
therewith.




“Non-Consenting Lender”: as defined in Section 11.1.



“Non-Excluded Taxes”: as defined in Section 2.17(a).


 


27









 





“Non-Specified Hedging Counterparty”: with respect to any Hedging Agreement, any
counterparty thereto other than a Specified Hedging Counterparty.




“Non-U.S. Lender”: as defined in Section 2.17(e).




“Notes”: the collective reference to any promissory note evidencing Loans.



“Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to either Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations (including guarantee
obligations) and liabilities of the Borrowers or any other Loan Party to the Administrative Agent
or to any Lender (or, in the case of Hedging Agreements, any Specified Hedging Counterparty),
whether direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the
Guarantee Agreement, any other Loan Document, the Letters of Credit, any Hedging Agreement or any
other document made, delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all
fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by either Borrower pursuant hereto) or otherwise.



“Other Taxes”: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, including any interest, additions to tax or penalties applicable thereto.




“Participant”: as defined in Section 11.6(c).




“Participant Register”: as defined in Section 11.6(c).




“Patriot Act”: as defined in Section 5.1(p).




“Permitted Debt”:




(i) (A) the Loans and other obligations of any Loan Party under any Loan Document and
(B) Debt of the Borrowers and the Restricted Subsidiaries (which may be secured as to the
extent currently secured) existing on the Closing Date and not refinanced with the proceeds
of the Debt referred to in clause (v) below;




(ii) up to $800,000,000 of additional Debt;




(iii) Subordinated Debt;




(iv) Debt incurred to finance environmental Capital Expenditures and other Capital
Expenditures made to comply with law and, additionally, with respect to MIRMA and its
Subsidiaries and REMA and its Subsidiaries, to finance Required Improvements
(which may be secured by the capital assets or Required Improvements and related
assets) of such Persons;


 


28









 






(v) new senior unsecured notes in an amount not exceeding $1,200,000,000;




(vi) Hedging Obligations consistent with industry practice;




(vii) Debt in respect of workers’ compensation claims, self-insurance obligations,
bankers’ acceptances, performance and surety bonds;




(viii) Debt arising from overdrafts, so long as such Debt is repaid within five
Business Days;




(ix) Debt arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations incurred in connection with the sales of assets,
provided that the maximum aggregate liability in respect of all such debt shall not
exceed the gross proceeds (including non-cash proceeds) actually received;




(x) Debt of REMA and its Subsidiaries of up to $60,000,000;




(xi) Debt of a Person existing at the time such Person first became a Subsidiary of the
Company; provided that such Debt was not incurred in contemplation of such
acquisition (it being agreed that, in the case of a fluctuating balance facility, the Debt
permitted hereunder will include amounts later drawn on unfunded commitments existing at the
time such Person first became a Subsidiary of the Company);




(xii) Project Finance Debt;




(xiii) Debt between or among the Company and any of its Subsidiaries, other than Debt
of a Restricted Subsidiary that is not a Subsidiary Guarantor owed to an Unrestricted
Subsidiary; provided, that (A) any such Debt of a Loan Party owed to an Unrestricted
Subsidiary shall be subordinated to the prior payment in full in cash of the obligations
under this Agreement in a customary manner (it being agreed that no blockage of payments
will apply except after written notice by the Administrative Agent given while an Event of
Default has occurred and is continuing); and (B) (x) any subsequent issuance or transfer of
Capital Stock that results, (1) in any such Debt of a Restricted Subsidiary that is not a
Subsidiary Guarantor being held by a Person other than the Company or a Restricted
Subsidiary or (2) in any such Debt of any Subsidiary Guarantor being held by a Person other
than the Company or any Subsidiary and (y) any sale or other transfer of any such Debt (1)
of a Restricted Subsidiary that is not a Subsidiary Guarantor to a Person other than the
Company or a Restricted Subsidiary or (2) of a Loan Party to a Person other than the
Company or any other Subsidiary shall be deemed, in each case, to constitute an incurrence
of such Debt by the Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause;




(xiv) Debt secured by Liens permitted under clauses (f) and (g) of Sections 8.3; and


 


29









 






(xv) refinancings or renewals or replacements of Debt permitted under this Agreement
(which may be secured by the same assets as the refinanced or renewed Debt);
provided, that any such refinancing, renewal or replacement of Debt is (A) either in
an amount not in excess of the principal amount outstanding or committed under the Debt
being refinanced or renewed immediately prior to such refinancing (plus any
applicable fees or expenses and redemption or repurchase premiums or penalties) or
renewal, or such excess amount is otherwise permitted to be incurred under this Agreement
without reference to this clause (xiv), (B) provides for a final maturity date no earlier
than the existing scheduled maturity date of the Debt being refinanced or renewed and (C) if
the Debt refinanced or renewed is Subordinated Debt, is subordinated in a like manner and
extent.



“Permitted PEDFA Bond Debt”: means Debt incurred or guaranteed by the Company and/or
the Restricted Subsidiaries that is not supported by Letters of Credit outstanding under this
Agreement, the proceeds of which are used: (a) to build the Seward Facility; (b) to reimburse the
Company, the Restricted Subsidiaries for amounts advanced or incurred, or for Debt incurred to fund
such construction costs, prior to the date of incurrence of such Debt; or (c) to refund or defease
the Seward-Tax Exempt Bonds or refinance Debt evidenced by or in support of the Seward-Tax Exempt
Bonds.



“Person”: an individual, company, corporation, firm, partnership, joint venture,
undertaking, association, organization, trust, state or agency of a state or limited liability
company (in each case whether or not having separate legal personality).



“Plan”: any plan described in Section 3(2) of ERISA that is subject to Title IV of
ERISA, maintained or contributed to by the Company or any ERISA Affiliate.




“Pre-Closing Incremental Revolving Commitments”: as defined in Section 2.22(a).




“Proceedings”: as defined in Section 11.5(b).



“Project Finance Debt”: Debt (not exceeding the cost of the acquisition, construction
or creation of the relevant asset or project) of the Company or a Restricted Subsidiary incurred or
existing in connection with the financing or refinancing of any asset or project, the repayment of
which Debt is to be made from the revenues arising out of, or other proceeds of realization from,
the acquired or created asset or project, with recourse to those revenues and proceeds and assets
forming the subject matter of such asset or project (including, without limitation, insurance,
contracts and shares or other rights of ownership in the entity(ies) which own the relevant assets
or project) and other assets ancillary thereto but without substantial recourse to any other asset
or otherwise to any Person other than the borrower under such Project Finance Debt;
provided that substantial recourse shall not be deemed to exist by reason of (i) normal and
customary sponsor support arrangements, including, without limitation, services and operational and
administrative support, (ii) recourse against any Project Subsidiary including any direct or
indirect parent entity of any Project Subsidiary, substantially all of the assets of which consist
of the equity of one or more Project Subsidiaries, or (iii) recourse against the equity of a
Project Subsidiary pledged by the Company or any of the Restricted Subsidiaries to secure the debt
of such Project Subsidiary or any Subsidiary of such Project Subsidiary.



“Project Subsidiary”: any Person other than the Company obligated in respect of any
Project Finance Debt.



“Projections”: as defined in Section 6.3(b).


 


30









 





“Recovery Event”: any settlement of or payment in respect of any insurance or
indemnity claim or any condemnation proceeding relating to any asset of any Group Member.




“Register”: as defined in Section 11.6(b).




“Regulation U”: Regulation U of the Board as in effect from time to time.



“Reimbursement Obligation”: the obligation of the Borrowers to reimburse any Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.




“Reimbursement Payment”: as defined in Section 2.5(b).



“Reinvestment Commitment Notice”: a written notice executed by a Responsible Officer
on or prior to the date falling 365 days after the receipt of Net Cash Proceeds from an Asset Sale
or Recovery Event, stating (x) that, in the case of an Asset Sale only, no Event of Default has
occurred and is continuing and (y) that the Company (directly or through a Restricted Subsidiary)
has committed to use all or a specified portion of the Net Cash Proceeds thereof within 18 months
after the date of such notice, in each case to acquire or repair assets useful in its business.



“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Company has delivered a Reinvestment Notice.



“Reinvestment Notice”: a written notice executed by a Responsible Officer stating (i)
in the case of an Asset Sale only, that no Event of Default has occurred and is continuing and (ii)
that the Company (directly or indirectly through a Restricted Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to
acquire or repair assets useful in its business.



“REMA”: RRI Energy Mid-Atlantic Power Holdings, LLC, a Delaware limited liability
company, or any successor thereto.



“REMA Lease”: collectively, the obligations of REMA as facility lessee under the
three facility lease agreements, each dated as of August 24, 2000, and under the related
participation agreements and other documents executed in connection therewith, in each case as
amended, modified or supplemented from time to time.



“Required Improvements”: modifications, alterations, additions or improvements to any
MIRMA or REMA owned or leased project facility required (x) by Requirements of Law or by any
Governmental Authority having jurisdiction thereon, (y) by any insurance policy required to be
maintained by MIRMA or REMA, as applicable, under any document related to the MIRMA Lease or REMA
Lease, as applicable, or (z) by the terms of any document related to the MIRMA Lease or REMA Lease,
as applicable.



“Requirement of Law”: as to any Person, any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.


 


31









 






“RES”: RRI Energy Services, Inc., a Delaware corporation, or any successor thereto.



“Responsible Officer”: as to each Borrower, the chief executive officer, president,
chief financial officer, treasurer, assistant treasurer or controller of such Borrower.




“Restricted Payments”: as defined in Section 8.2.



“Restricted Subsidiaries”: all Subsidiaries of the Company other than Unrestricted
Subsidiaries.




“Returns”: as defined in Section 4.14.



“Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Letters of Credit in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such
Lender’s name on Schedule 1.1A (as modified in accordance with Section 2.22) or in the Assignment
and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof.



“Revolving Commitment Period”: the period from and including the Closing Date to the
Revolving Termination Date.



“Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding and (b) such Lender’s Revolving Percentage of the L/C Obligations then
outstanding.



“Revolving Lender”: each Lender that has a Revolving Commitment or that holds
Revolving Loans.




“Revolving Loans”: as defined in Section 2.4(a).



“Revolving Percentage”: as to any Revolving Lender at any time, the percentage which
such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments
(disregarding any Defaulting Lender’s Revolving Commitment) or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate principal amount
of such Lender’s Revolving Loans then outstanding constitutes of the aggregate principal amount of
the Revolving Loans then outstanding (disregarding any Defaulting Lender’s Revolving Loans),
provided, that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving Percentages shall be
determined in a manner designed to ensure that the other outstanding Revolving Extensions of Credit
shall be held by the Revolving Lenders on a comparable basis.




“Revolving Termination Date”: the fifth anniversary of the Closing Date.



“RRI”: as defined in the recitals hereto.


 


32









 





“S&P”: Standard & Poor’s Ratings Services, a division of the McGraw Hill Companies,
Inc., or any successor thereto.



“SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




“Secured Parties”: as defined in the Security Agreement.



“Security Agreement”: the Security Agreement to be executed and delivered by the
Borrowers and each Subsidiary Guarantor, substantially in the form of Exhibit B.



“Security Documents”: the collective reference to the Security Agreement, the
Collateral Trust Agreement, the Mortgages, any intercreditor agreement in respect of second-lien or
subordinated Debt and all other security documents hereafter delivered to the Collateral Trustee
granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.



“Seward Facility”: the 521 MW coal facility and related assets located in New
Florence, Indiana County, Pennsylvania.



“Seward Tax-Exempt Bonds”: (1) the Pennsylvania Economic Financing Authority Exempt
Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2001A, in the original
aggregate principal amount of $150,000,000, (2) the Pennsylvania Economic Financing Authority
Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2002A, in the original
aggregate principal amount of $75,000,000, (3) the Pennsylvania Economic Financing Authority Exempt
Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2002B, in the original
aggregate principal amount of $75,000,000, (4) the Pennsylvania Economic Financing Authority Exempt
Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2003A, in the original
aggregate principal amount of $100,000,000, (5) the Pennsylvania Economic Financing Authority
Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2004A, in the original
aggregate principal amount of $100,000,000, and (6) any bonds issued by the Pennsylvania Economic
Financing Authority on or after the Closing Date as permitted hereunder and supported by letters of
credit outstanding hereunder.



“Specified Hedging Counterparty”: with respect to any Hedging Agreement, any
counterparty thereto that, at the time any such Hedging Agreement was entered into, was a Lender or
an Affiliate of a Lender.



“Specified Issuing Lender Commitment”: with respect to JPMCB, its commitment to act
as Issuing Lender for $500,000,000 of the L/C Commitment; with respect to DBNY, its commitment to
act as Issuing Lender for $400,000,000 of the L/C Commitment; and with respect to any other Issuing
Lender, its commitment to act as Issuing Lender for up to a percentage of the L/C Commitment agreed
by the Borrowers and such Issuing Lender.



“Subordinated Debt”: unsecured Debt of the Company and/or any Subsidiary Guarantor
that is contractually subordinated and junior in right of payment to the Obligations (as
defined in the Guarantee Agreement) and the Secured Obligations (as defined in the Security
Agreement) where the subordination provisions shall be in all respects reasonably satisfactory to
the Administrative Agent.


 


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“Subsidiary”: as to any Person, any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the voting stock,
(b) the interest in the capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of its Subsidiaries
or by one or more of such Person’s other Subsidiaries. Unless otherwise qualified, all references
to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.



“Subsidiary Guarantor”: each Restricted Subsidiary of the Company other than (a) any
Foreign Subsidiary, (b) MET, (c) MIRMA, (d) REMA, (e) MC Asset Recovery, LLC, (f) RES and (g) MAG
(including, with respect to the Persons referred to in clauses (b) through (g), each of their
respective Subsidiaries) and (h) each of the entities listed on Schedule 1.1C (so long as after the
date hereof, such Subsidiary does not acquire any material assets), attached hereto;
provided, however, that Subsidiaries of MAG (other than MET and MIRMA and their
respective Subsidiaries, which shall not be Subsidiary Guarantors), shall be Subsidiary Guarantors
to the extent permitted by Section 102 of that certain Seventh Supplemental Indenture, dated as of
January 3, 2006, between MAG and Wells Fargo Bank, National Association; provided,
further, however, none of the Mirant New York Parties shall be a Subsidiary
Guarantor unless and until such Mirant New York Party shall have received the New York Regulatory
Approvals referred to in Section 6.11.



“Swap Agreement”: any agreement, including any Hedging Agreement, with respect to any
swap, forward, future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of services provided
by current or former directors, officers, employees or consultants of the Company or any of its
Subsidiaries shall be a “Swap Agreement”.



“Synthetic Lease Obligation”: the monetary obligation of a Person under a so-called
synthetic, off-balance sheet or tax retention lease.



“Taxes”: any present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



“Term Commitment”: as to any Lender, the obligation of such Lender, if any, to make a
Term Loan to the Borrowers on the Closing Date in a principal amount not to exceed the amount set
forth under the heading “Term Commitment” opposite such Lender’s name on Schedule 1.1A. The
aggregate amount of the Term Commitments is $700,000,000.


 


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“Term Lender”: each Lender that has a Term Commitment or that holds a Term Loan.




“Term Loan”: as defined in Section 2.1.




“Term Loan Termination Date”: the seventh anniversary of the Closing Date.



“Term Percentage”: as to any Term Lender at any time, the percentage which such
Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans
then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).



“Threshold Amount”: on any date of determination, that such Subsidiary or
Subsidiaries had either (i) $25,000,000 or more of EBITDA during the four-fiscal quarter period
most recently ended or (ii) assets the aggregate book value of which was $50,000,000 or more.



“Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect. The original amount of the Total Revolving Commitments is
$788,000,000.



“Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.



“Tranche”: the respective Facility and commitments utilized in making Loans
hereunder, including one or more Tranches of Incremental Term Loans.




“Transaction”: as defined in the recitals hereto.




“Transferee”: any Assignee or Participant.




“Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




“United States”: the United States of America.



“Unrestricted Subsidiaries”: The entities listed on Schedule 1.1D and any Subsidiary
of the Company that is designated by the Company as an Unrestricted Subsidiary, but only to the
extent that such Subsidiary (i) has no Debt with substantial recourse to the Company or a
Restricted Subsidiary; provided that substantial recourse shall not be deemed to exist by
reason of normal and customary sponsor support arrangements, including, without limitation,
services and operational and administrative support, (ii) except as permitted under Section 8.7, is
not party to any agreement or contract with the Company or a Restricted Subsidiary unless the terms
of such agreement are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained from an unaffiliated third-party, and (iii) is a Person with respect to
which neither the Company nor any Restricted Subsidiary has any direct or indirect obligation to
make capital contributions or to maintain such Subsidiary’s financial condition.


 


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“Weighted Average Life to Maturity”: when applied to any Debt at any date, the number
of years obtained by dividing:




	 	(i)	 	the sum of the products obtained by multiplying (A) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
of the Debt, by (B) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by
	 
	 	(ii)	 	the then outstanding principal amount of such Debt.






“Withholding Agent:” any Loan Party and the Administrative Agent.



1.2. Other Definitional Provisions. (a)  Unless otherwise specified therein, all
terms defined in this Agreement shall have the same defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant hereto or thereto.



(b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms relating to any Group Member not defined
in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP. Unless otherwise specified, all accounting
determinations and computations made hereunder (including under Section 7.1 and the definitions
used in such calculation) shall be made in accordance with GAAP. In the event that any Accounting
Change (as defined below) shall occur and such change results in a change in the method of
determination or calculation under this Agreement, then the Company and the Administrative Agent
agree to enter into good faith negotiations in order to amend such provisions of this Agreement so
as to equitably reflect such Accounting Change with the desired result that the criteria for
evaluating the Company and its Subsidiaries consolidated financial condition shall be the same
after such Accounting Change as if such Accounting Change had not been made. Until such time as
such an amendment shall have been executed and delivered by the Borrowers, the Administrative Agent
and the Majority Lenders, all accounting determinations and computations made hereunder (including
under Section 7.1 and the definitions used in such calculation) shall continue to be calculated or
construed as if such Accounting Change had not occurred. “Accounting Change” refers to any
change in accounting principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board or, if applicable, the SEC. Unless
otherwise expressly provided, Section 7.1 and all defined financial terms shall be computed on a
consolidated basis for the Company and its Subsidiaries, in each case without duplication.
Additionally, it is hereby agreed that any requirement to consistently apply GAAP shall not apply
to items treated inconsistently by Mirant and its Subsidiaries, on the one hand, and RRI and its
pre-Merger Subsidiaries, on the other hand.



 


36









 





(c) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) the words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation”, (ii) the word
“incur” shall be construed to mean incur, create, issue, assume, become liable in respect of
or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings),
(iii) the words “asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, Capital
Stock, securities, accounts, leasehold interests and contract rights, and (iv) references to
agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer
to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise
modified from time to time.



(d) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.



(e) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



(f) Notwithstanding any other provision contained herein, all computations of amounts and
ratios referred to in this Agreement shall be made without giving effect to any election under FASB
ASC Topic 825 “Financial Instruments” (or any other financial accounting standard having a similar
result or effect) to value any Debt or other liabilities of the Borrowers at “fair value” as
defined therein.



SECTION 2.   AMOUNT AND TERMS OF COMMITMENTS




2.1. Term Commitments. Subject to the terms and conditions hereof, each Term Lender
severally agrees to make a term loan (a “Term Loan”) to the Borrowers on the Closing Date
in an amount not to exceed the amount of the Term Commitment of such Lender. The Term Loans may
from time to time be Eurodollar Loans or ABR Loans, as determined by the Company and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.10. Subject to and upon the terms
and conditions set forth in Section 2.21 and in the related Incremental Term Loan Commitment
Agreement, each Incremental Term Loan Lender with an Incremental Term Loan Commitment severally
agrees to make a term loan or term loans (each, an “Incremental Term Loan” and,
collectively, the “Incremental Term Loans”) to the Borrowers at the time or times set forth
in the related Incremental Term Loan Commitment Agreement and in an amount equal to the Incremental
Term Loan Commitment of such Incremental Term Loan Lender. Incremental Term Loans may be ABR Loans
or Eurodollar Loans.



2.2. Procedure for Term Loan Borrowing. The Company shall give the Administrative
Agent notice (which notice must be received by the Administrative Agent prior to 10:00 A.M., New
York City time, one Business Day prior to the anticipated Closing Date) requesting that the Term
Lenders make the Term Loans on the Closing Date and specifying the amount to be borrowed. Upon
receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof.
Not later than 12:00 Noon, New York City time, on the Closing Date each Term Lender shall make
available to the Administrative Agent at the Funding Office an amount in immediately available
funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent
shall credit the account of the Borrowers on
the books of such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Lenders in immediately available funds.


 


37









 





2.3. Repayment of Term Loans. The principal amount of the Term Loan of each Term
Lender shall mature in 28 consecutive installments (each due on the last day of each calendar
quarter, except for the last such installment), commencing on the last day of the first calendar
quarter ending after the Closing Date, each of which shall be in an amount equal to such Lender’s
Term Percentage multiplied by (i) in the case of the first 27 such installments, $1,750,000, as
reduced from time to time in accordance with Section 2.15(b), and (ii) in the case of the last such
installment (which shall be due on the Term Loan Termination Date), the remaining aggregate
principal amount of the Term Loans. The principal amount of the Incremental Term Loans of each
Incremental Term Loan Lender shall mature on the dates set forth in the Incremental Term Loan
Commitment Agreement with respect to such Lender.



2.4. Revolving Commitments. (a) Subject to the terms and conditions hereof (and, with
respect to any Incremental Revolving Commitments, subject to the terms and conditions of Section
2.22 and the related Incremental Revolving Commitment Agreement), each Revolving Lender and
Incremental Revolving Lender severally agrees to make revolving credit loans (“Revolving
Loans”) to each Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving
Percentage of the L/C Obligations then outstanding, does not exceed the amount of such Lender’s
Revolving Commitment. During the Revolving Commitment Period each Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Company and notified to the Administrative
Agent in accordance with Sections 2.5 and 2.10.



(b) The Borrowers shall repay all outstanding Revolving Loans on the Revolving Termination
Date.



2.5. Procedure for Revolving Loan Borrowing. (a) The Borrowers may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, provided the
Company shall give the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent (i) prior to 11:00 A.M., New York City time, three Business Days prior to
the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) prior to 11:00 A.M., New
York City time on the requested Borrowing Date, in the case of ABR Loans (including for purposes of
financing payments required by Section 3.5), specifying (A) the amount and Type of Revolving Loans
to be borrowed, (B) the requested Borrowing Date and (C) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Any Revolving Loans made on the Closing Date shall initially be ABR Loans. Each
borrowing under the Revolving Commitments shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then aggregate Available Revolving Commitments
are less than $1,000,000, such lesser amount). Upon receipt of any such notice from a Borrower,
the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving
Lender will make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrowers at the Funding Office prior to 12:00
Noon, New York City time, on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. Such borrowing will then be made available to the Borrowers
by the Administrative Agent crediting the account of the Borrowers on the books of such office with
the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders
and in like funds as received by the Administrative Agent.


 


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(b) In the event that either Borrower fails to reimburse any Issuing Lender in accordance with
Section 3.5 for the amount of any draft paid by such Issuing Lender under any Letter of Credit
issued by it, and for all other amounts due in connection therewith pursuant to Section 3.5 (the
“Reimbursement Payment”), then on the date that the Reimbursement Payment is due, the
Borrowers shall be deemed to have made a request for a borrowing of ABR Loans in an amount equal to
the Reimbursement Payment, which deemed request shall not be subject to any condition precedent set
forth in Section 5.2 and shall be irrevocable. Each Revolving Lender acknowledges and agrees that
its obligation to make its pro rata share of any such borrowing available to the Administrative
Agent is absolute and unconditional and shall not be affected by any event, happening or
circumstance whatsoever, including the failure of any condition precedent set forth in Section 5 to
be satisfied at the time of such deemed request.



2.6. Commitment Fees, etc. (a) The Company agrees to pay to the Administrative Agent
for the account of each Revolving Lender a commitment fee for the period from and including the
Closing Date to the last day of the Revolving Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing
on the first such date to occur after the Closing Date.



(b) The Company agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.



2.7. Termination or Reduction of Revolving Commitments. The Company shall have the
right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided that no such termination or reduction of Revolving Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Loans made on the effective
date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect.


 


39









 





2.8. Optional Prepayments. (a) The Borrowers may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty (except as provided below in
Section 2.8(b) with respect to Term Loans), upon irrevocable notice delivered to the Administrative
Agent no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the case of
Eurodollar Loans (or such shorter time as Administrative Agent accepts in its sole discretion), and
no later than 11:00 A.M., New York City time, on the same
Business Day, in the case of ABR Loans (or such shorter time as Administrative Agent accepts
in its sole discretion), which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrowers
shall also pay any amounts owing pursuant to Section 2.18. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans that are ABR Loans) accrued interest to such
date on the amount prepaid, unless such notice is rescinded in writing. Partial prepayments of
Term Loans and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.



(b) In the event the Term Loans are prepaid or repaid in whole or in part by the Borrowers or
either of them pursuant to Section 2.8(a) prior to the first anniversary of the date hereof, the
Borrowers shall pay to the Term Lenders a prepayment premium of 1.00% on the amount so prepaid or
repaid.



2.9. Mandatory Prepayments. (a) (i)  If within ten (10) Business Days of any date
the Company or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event (other than Excluded Proceeds), then, if the Company shall not have delivered a
Reinvestment Notice in respect thereof on or prior to such date, the Company shall apply such Net
Cash Proceeds on such date to the prepayment of the Term Loans as set forth in Section 2.9(c). If
the Company shall have delivered a Reinvestment Notice in respect thereof, then on the tenth
(10th) Business Day after the date of receipt of such Net Cash Proceeds, the Borrowers
shall apply the portion thereof, if any, that neither the Company nor any Restricted Subsidiary
intends to use to acquire or repair assets useful in its business to such prepayment.



(ii) If on or prior to the date falling 365 days after the receipt of Net Cash Proceeds (other
than Excluded Proceeds) from a Reinvestment Event, the Company shall not have delivered a
Reinvestment Commitment Notice in respect of the Net Cash Proceeds described in clause (i) above
not constituting Excluded Proceeds, the Borrowers shall apply such Net Cash Proceeds on such date
(to the extent not previously so applied or expended) to the prepayment of the Term Loans as set
forth in Section 2.9(c). If on or prior to the date falling 365 days after the receipt of Net Cash
Proceeds (other than Excluded Proceeds) from a Reinvestment Event, the Company shall have delivered
a Reinvestment Commitment Notice in respect of the Net Cash Proceeds not constituting Excluded
Proceeds described in clause (i) above, then (x) on the date of such notice, the Borrowers shall
apply (to the extent not previously so applied or expended) the portion, if any, of such Net Cash
Proceeds that the Company or any Restricted Subsidiary has not committed in such notice to use to
acquire or to repair assets useful in its business to such prepayment and (y) on the date falling
18 months from the date of receipt of such Net Cash Proceeds, the Borrowers shall apply any Net
Cash Proceeds not applied to the acquisition or repair of assets useful in its business to such
prepayment as set forth in Section 2.9(c) (to the extent not previously so applied).


 


40









 





(b) If any Debt shall be issued or incurred by any Loan Party (other than Debt permitted to be
issued or incurred under Section 8.1), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans as set forth in Section 2.9(d).



(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.9 shall be
applied to the prepayment of the Term Loans in accordance with Section 2.15(b). The application of
any prepayment pursuant to Section 2.9 shall be made, first, to ABR Loans and,
second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.9 shall be
accompanied by accrued interest to the date of such prepayment on the amount prepaid.



(d) If the Borrowers are required by this Section 2.9 to prepay any Eurodollar Loans and such
prepayment will result in the Borrowers being required to pay breakage costs under Section 2.18
(any such Eurodollar Loans, “Affected Loans”), the Company may elect, by written notice to
the Administrative Agent so long as no Default or Event of Default shall have occurred and be
continuing, to deposit with the Administrative Agent, on or prior to the date of prepayment of such
Affected Loans, 100% (or such lesser percentage elected by the Company) of the principal amounts
that otherwise would have been paid in respect of the Affected Loans and defer the date of
prepayment of such Affected Loans to the extent such Loans are cash collateralized as provided in
this Section 2.9(d). Such amounts will be held as security for the obligations of the Borrowers
hereunder pursuant to an account control agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent, with such cash collateral to be released from
such cash collateral account (and applied to repay the principal amount of Affected Loans) upon
each occurrence thereafter of the last day of an Interest Period applicable to the relevant Loans
(or such earlier date or dates as shall be requested by the Company), with the amount to be so
released and applied on the last day of each Interest Period to be the amount of the relevant Loans
to which such Interest Period applies (or, if less, the amount remaining in such cash collateral
account); provided that, notwithstanding anything in this Agreement to the contrary, the
Borrowers acknowledge and agree that in calculating the Available Revolving Commitments, such
Eurodollar Loans that have not been prepaid in accordance with this Section 2.9(d) shall be treated
as Revolving Extensions of Credit until such unpaid Eurodollar Loans are actually prepaid; and
provided further that such unpaid Eurodollar Loans shall continue to bear interest
in accordance with Section 2.12 until such unpaid Eurodollar Loans or the related portion of such
Eurodollar Loans, as the case may be, have or has been prepaid.



2.10. Conversion and Continuation Options. (a) The Borrowers may elect from time to
time to convert Eurodollar Loans to ABR Loans by the Company giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business
Day preceding the proposed conversion date, provided that any such conversion of Eurodollar
Loans may only be made on the last day of an Interest Period with respect thereto. The Company may
elect from time to time to convert ABR Loans to Eurodollar Loans by the Company giving the
Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York
City time, on the third Business Day preceding the proposed conversion date (which notice shall
specify the length of the initial Interest Period therefor), provided that no ABR Loan
under a particular Facility may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect
of such Facility have determined in its or their sole
discretion not to permit such conversions. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.


 


41









 





(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Company giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued as such when
any Event of Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if the
Company shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender thereof.



2.11. Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to such elections so
that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000
in excess thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any one
time.



2.12. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest
for each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.



(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.



(c) (i) If (x) all or a portion of the principal amount of any Loan or Reimbursement
Obligation shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise) or (y) all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amounts shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto under this Agreement
plus 2%, in each case, with respect to sub-clauses (x) and (y) above, from the date of such
non-payment until such amount is paid in full (as well after as before judgment).



(d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.


 


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2.13. Computation of Interest and Fees. (a) Interest and fees payable pursuant
hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,
with respect to ABR Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case
may be) day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Company and the relevant Lenders of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable notify the Company
and Lenders of the effective date and the amount of each such change in interest rate.



(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver
to the Company a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.12(a).



2.14. Inability to Determine Interest Rate. If prior to the first day of any Interest
Period:




(a) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or




(b) the Administrative Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,



the Administrative Agent shall give telecopy or telephonic notice thereof to the Company and
Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans under
the relevant Facility requested to be made on the first day of such Interest Period shall be made
as ABR Loans, (y) any Loans under the relevant Facility that were to have been converted on the
first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any
outstanding Eurodollar Loans under the relevant Facility shall be converted, on the last day of the
then-current Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility shall be made or
continued as such, nor shall the Borrowers have the right to convert Loans under the relevant
Facility to Eurodollar Loans.



2.15. Pro Rata Treatment and Payments. (a) Each borrowing by the Borrowers from the
Lenders hereunder, each payment by the Company on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the
respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.


 


43









 





(b) Each payment (including each prepayment) by the Borrowers on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each
principal prepayment of the Term Loans shall be applied to reduce the then remaining installments
of the Term Loans pro rata based upon the respective then remaining principal
amounts thereof, provided that, in the case of any optional prepayment of Term Loans
pursuant to Section 2.8, the amount of principal prepayment shall be applied as directed by the
Company in its notice issued pursuant to such Section. Amounts prepaid or repaid on account of the
Term Loans or Incremental Term Loans may not be reborrowed.



(c) Each payment (including each prepayment) by the Borrowers on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.



(d) All payments (including prepayments) to be made by the Borrowers hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 2:00 p.m., New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate during such extension.



(e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the relevant Borrower a corresponding
amount. If such amount is not made available to the Borrowers by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and
(ii) a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrowers.


 


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(f) Unless the Administrative Agent shall have been notified in writing by the Company prior
to the date of any payment due to be made by the Borrowers hereunder that the Borrowers will not
make such payment to the Administrative Agent, the Administrative Agent may assume that the
Borrowers are making such payment, and the Administrative Agent may, but shall not be required to,
in reliance upon such assumption, make available to the Lenders their respective pro
rata shares of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrowers within three Business Days after such due date, the Administrative Agent
shall be entitled to recover, on demand, from each Lender to which any amount which was made
available pursuant to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to
limit the rights of the Administrative Agent or any Lender against the Borrowers.



(g) Notwithstanding anything to the contrary in this Agreement, the Borrowers, with the
consent of the Lenders whose Loans are to be purchased or prepaid pursuant to this Section 2.15,
shall have the option, from time to time, to purchase or prepay Loans on a non-pro rata basis and
nothing in this Section 2.15 shall prohibit such transactions or require payments made in
connection therewith to be made on a pro rata basis; provided that (i) any Loans so
purchased or prepaid are cancelled (and, in the case of any prepayment of Revolving Loans of a
Revolving Lender pursuant to this Section 2.15, (x) the applicable Revolving Lender’s Revolving
Commitment shall be permanently reduced in proportion to the par value of the Revolving Loan so
purchased or prepaid (and if all of such Revolving Lender’s Revolving Loans are so purchased or
prepaid, such Revolving Lender’s entire Revolving Commitment shall be terminated, (y) each L/C
Participant’s Revolving Percentage shall be deemed automatically readjusted to reflect such
reduction in Revolving Commitments and (z) if the Revolving Extensions of Credit would otherwise
exceed the aggregate Revolving Commitments after giving effect to any such purchase or prepayment,
then the Company shall at the time of such purchase or prepayment cash collateralize for the
benefit of the relevant Issuing Lender only the Borrowers’ obligations corresponding to such
Revolving Lender’s Revolving Percentage of the L/C Obligations in accordance with the procedures
set forth in Section 9 for so long as such L/C Obligations are outstanding), (ii) at the time of
any such purchase or prepayment (x) no Event of Default has occurred or is continuing and (y)
after giving effect to any such purchase or prepayment, the Revolving Extensions of Credit shall
not exceed the aggregate Revolving Commitments (after giving effect to the collateralization of
Letters of Credit pursuant to clause (i) above) nor shall the Revolving Commitment of any Lender be
increased.



2.16. Requirements of Law. (a) If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:




(i) shall change the basis of taxation of payments to such Lender in respect of this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it (except
for changes in the rate of tax on, or determined by reference to, the overall net income or
gross income of such Lender); or


 


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(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate



and the result of any of the foregoing is to increase the cost to such Lender, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters
of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case,
the Borrowers shall promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the
Company (with a copy to the Administrative Agent) of the event by reason of which it has become so
entitled.



(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Company (with a copy to
the Administrative Agent) of a written request therefor, the Borrowers shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.



(c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Company (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrowers
shall not be required to compensate a Lender pursuant to this Section for any amounts incurred more
than four months prior to the date that such Lender notifies the Company of such Lender’s intention
to claim compensation therefor; provided that, if the circumstances giving rise to such
claim have a retroactive effect, then such four-month period shall be extended to include the
period of such retroactive effect. The obligations of the Borrowers pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.


 


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2.17. Taxes. (a) All payments made by or on account of any Loan Party under this
Agreement or any other Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding any tax imposed on or
measured by the net income or net profits or capital (or any franchise or similar tax imposed in
lieu thereof) of the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender or the principal
office or applicable lending office of such Lender or any subdivision thereof or therein and the
jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from the Administrative
Agent or such Lender having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document); provided that, if any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(“Non-Excluded Taxes”) or Other Taxes are required to be withheld or deducted from any
amounts payable to the Administrative Agent or any Lender hereunder (as determined by the
applicable Withholding Agent in good faith), (i) the applicable Withholding Agent shall deduct such
amounts and (ii) the amounts so payable by the applicable Loan Party to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such
Lender (including any Non-Excluded Taxes and Other Taxes imposed on additional amounts payable
pursuant to this section 2.17(a)) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement as if such withholding or deduction had not been
made, provided, further, however, that no Loan Party shall be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (x) that are
attributable to such Lender’s failure to comply with the requirements of paragraph (e) or (f) of
this Section or (y) that are United States withholding taxes resulting from any Requirement of Law
in effect (including FATCA) on (and, in the case of FATCA, including any regulations or official
interpretations thereof issued after) the date such Lender becomes a party to this Agreement,
except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment,
to receive additional amounts from the Loan Party with respect to such Non-Excluded Taxes pursuant
to this Section 2.17(a).



(b) In addition, the Borrowers shall pay, or at the option of the Administrative Agent timely
reimburse it for the payment of, any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.



(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by a Loan Party, within thirty
(30) days thereafter such Loan Party shall send to the Administrative Agent for its own account or
for the account of the relevant Lender, as the case may be, a certified copy of a tax receipt
received by such Loan Party showing payment thereof or such other document reasonably satisfactory
to the Administrative Agent showing payment thereof. If (i) any Non-Excluded Taxes or Other Taxes
are imposed directly on the Administrative Agent or any Lender, (ii) a Loan Party fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate Governmental Authority or (iii) a
Loan Party fails to remit to the Administrative Agent the required receipts or other required
documentary evidence, the applicable Loan Party shall indemnify the Administrative Agent and the
Lenders upon their written request for such amounts, incremental taxes, interest, penalties and
reasonable expenses arising therefrom or with respect thereto that may become payable by the
Administrative Agent or any Lender as a result of any such failure in the case of (ii) or (iii), or
any such direct imposition in the case of (i).


 


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(d) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but in the
case of Non-Excluded Taxes, only to the extent that the Borrowers have not already indemnified the
Administrative Agent for any such Non-Excluded Taxes and without limiting the obligation of the
Borrowers to do so) attributable to such Lender that are paid or
payable by the Administrative Agent in connection with this Agreement and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 2.17(d) shall be paid within 10 days after the Administrative Agent delivers to the
applicable Lender a certificate stating the amount of Taxes so paid or payable by the
Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent
manifest error.



(e) Each Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code
shall deliver to the Borrowers and the Administrative Agent on or before the date on which it
becomes a party to this Agreement two properly completed and duly signed copies of U.S. Internal
Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S.
federal withholding tax. Each Lender (or Transferee) that is not a “United States Person” as
defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the
Borrowers and the Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) (i) two copies of either U.S. Internal Revenue
Service Form W-8BEN (with respect to a complete exemption under an income tax treaty) or Form
W-8ECI, or Form W-8IMY (accompanied by applicable underlying Internal Revenue Service forms), or
any successors thereto, (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a statement substantially in the form of Exhibit I and the applicable Form W-8, or any
subsequent versions thereof or successors thereto, properly completed and duly signed and executed
by such Non-U.S. Lender claiming complete exemption from U.S. federal withholding tax on all
payments by the Borrowers under this Agreement and the other Loan Documents or (iii) any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in United States
federal withholding tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrowers to determine the withholding or deduction
required to be made. Such forms shall be delivered by each Non-U.S. Lender on or before the date
it becomes a party to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation) and from time to time thereafter upon the
request of the Company or the Administrative Agent. In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Company and the
Administrative Agent at any time it determines that it is no longer in a position to provide any
previously delivered certificate (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that such Non-U.S.
Lender is not legally able to deliver as a result of a change in applicable law after the date such
Lender becomes a party to this Agreement (or, in the case of any Participant, after the date such
Participant purchases the related participation).


 


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(f) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which a Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Company
(with a copy to the Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment
such completion, execution or submission would not materially prejudice the legal or commercial
position of such Lender.



(g) If the Administrative Agent or any Lender determines, in its sole discretion, that it has
received a refund or credit of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by a Borrower or with respect to which a Borrower has paid additional amounts pursuant
to this Section 2.17, it shall pay over such refund or credit to the Borrowers (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers under this Section
2.17 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund or credit),
net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund or
credit); provided, that the Borrowers, upon the written request of the Administrative Agent
or such Lender, shall repay the amount paid over to the Borrowers (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority. This paragraph shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information relating to its
Taxes which it deems confidential) to either Borrower or any other Person.



(h) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.



2.18. Indemnity. Each Borrower agrees, jointly and severally, to indemnify each
Lender for, and to hold each Lender harmless from, any actual and documented loss or expense
determined in accordance with this Section 2.18 that such Lender may sustain or incur as a
consequence of (a) default by either Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Company has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by either Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Company has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue,
the Interest Period that would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably determined
by such Lender) that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to the Company by any
Lender shall be conclusive in the absence of manifest error. Notwithstanding anything to the
contrary in this Section, neither Borrower shall be required to compensate a
Lender pursuant to this Section for any loss or expense resulting from any event set forth in
clauses (a), (b) or (c) of the first sentence of this Section if such event occurred more than
sixty (60) days prior to any demand for indemnification by such Lender. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.


 


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2.19. Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.16, 2.17(a) or 2.18(a) with respect to such Lender,
it will, if requested by the Company, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any of the obligations of
the Borrowers or the rights of any Lender pursuant to Section 2.16, 2.17(a) or 2.18(a).



2.20. Replacement of Lenders. The Company shall be permitted to replace any Lender in
accordance with Section 11.6 that (a) requests reimbursement for amounts owing pursuant to Section
2.16 or 2.17(a) or (b) is a Defaulting Lender, with a replacement financial institution;
provided that (i) such replacement does not conflict with any Requirement of Law, (ii) the
replacement financial institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement in accordance with Section 11.6, (iii) in
the case of clause (a) of this Section 2.20 only, the Borrowers shall be liable to such replaced
Lender under Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (iv) the Administrative Agent
and each Issuing Lender shall have consented to the replacement financial institution (such consent
not to be unreasonably withheld), (v) the replaced Lender shall be obligated to cooperate with such
replacement in accordance with the provisions of Section 11.6 (it being agreed that the
registration and processing fee referred to therein shall not apply to such transaction), (vi)
until such time as such replacement shall be consummated, the Borrowers shall pay all additional
amounts (if any) required pursuant to Section 2.16 or 2.17(a), as the case may be, and (vii) any
such replacement shall not be deemed to be a waiver of any rights that the Borrowers, the
Administrative Agent or any other Lender shall have against the replaced Lender. In connection with
the replacement of any Lender pursuant to this Section 2.20, the failure by such Lender to execute
and deliver assignment documentation shall not impair the validity of the removal of such Lender,
and the mandatory assignment of such Lender’s Commitments and outstanding Loans and participations
in Letters of Credit, as applicable, shall nevertheless be effective without the execution by such
Lender of such assignment documentation.


 


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2.21. Incremental Term Loan Commitments. (a) So long as the Incremental Loan Commitment
Requirements are satisfied at the time of the delivery of the request referred to below, the
Company shall have the right in coordination with the Administrative Agent as to all of the matters
set forth below in this Section 2.21, but without requiring the consent of any of the Lenders, to
request at any time and from time to time after the Closing Date, that one or more Lenders (and/or
one or more other Persons which are Eligible Assignees and which will become Lenders) provide
Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions
contained in this Agreement and in the respective Incremental Term Loan
Commitment Agreement, make Incremental Term Loans pursuant thereto; provided,
however, that:




(i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a
result of any such request by the Company, and until such time, if any, as such Lender has
agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed
and delivered to the Administrative Agent and the Borrowers an Incremental Term Loan
Commitment Agreement as provided in clause (b) of this Section 2.21, such Lender shall not
be obligated to fund any Incremental Term Loans;




(ii) any Lender (including any Eligible Assignee who will become a Lender) may so
provide an Incremental Term Loan Commitment without the consent of any other Lender;




(iii) the amount of each Tranche of Incremental Term Loan Commitments shall be in a
minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment
under such Tranche of Incremental Term Loans (including Eligible Assignees who will become
Lenders) of at least $50,000,000 and in integral multiples of $5,000,000 in excess thereof;




(iv) the aggregate amount of all Incremental Term Loan Commitments provided pursuant to
this Section 2.21 plus the aggregate amount of all Incremental Revolving Commitments
provided pursuant to Section 2.22 shall not exceed $250,000,000;




(v) any payable to each Incremental Term Loan Lender in respect of each Incremental
Term Loan Commitment shall be separately agreed to by the Borrowers (or the Company) and
each such Incremental Term Loan Lender;




(vi) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan
Maturity Date of no earlier than the Term Loan Maturity Date, (B) have a Weighted Average
Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for
the Term Loans and (C) be subject to the Applicable Margins as are set forth in the
Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans,




(vii) the proceeds of all Incremental Term Loans shall be used only for the purposes
permitted by Section 6.10;




(viii) each Incremental Term Loan Commitment Agreement shall specifically designate the
Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche
shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans
or other Term Loans) unless the requirements of Section 2.21(c) are satisfied);




(ix) all Incremental Term Loans (and all interest, fees and other amounts payable
thereon) shall be Obligations under this Agreement and the other applicable Loan Documents;
and


 


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(x) each Lender (including any Eligible Assignee who will become a Lender) agreeing to
provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment
Agreement shall, subject to the satisfaction of the relevant conditions set forth in this
Section 2.21, make Incremental Term Loans specified in the Incremental Term Loan Commitment
Agreement as provided in Section 2.1 and such Loans shall thereafter be deemed to be
Incremental Term Loans under such new Tranche for all purposes of this Agreement and the
other applicable Loan Documents.



(b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section
2.21, the Borrowers, the Administrative Agent and each such Lender or other Eligible Assignee which
agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term Loan
Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan
Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitments provided
therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which
date in any event shall be no earlier than the date on which (i) all fees required to be paid in
connection therewith at the time of such effectiveness shall have been paid (including, without
limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any
Affiliate thereof)), (ii) all Incremental Loan Commitment Requirements are satisfied and (iii) all
other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement
shall have been satisfied or waived. The Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, to the
extent requested by any Incremental Term Loan Lender, a Note will be issued, at the Company’s
expense, to such Incremental Term Loan Lender.



(c) Notwithstanding anything to the contrary contained above in this Section 2.21, the
Incremental Term Loans provided by an Incremental Term Loan Lender or Incremental Term Loan
Lenders, as the case may be, pursuant to an Incremental Term Loan Commitment Agreement shall
constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant
to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers
(1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, A-3, B-1, B-2, B-3, C-1, C-2, C-3, etc.),
provided that, with the consent of the Administrative Agent, the parties to a given
Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term
Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of
Incremental Term Loans or the outstanding Term Loans, so long as the following requirements are
satisfied:




(i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan
Commitment Agreement shall have the same maturity date and shall have the same Applicable
Margins as the Tranche of Term Loans or Incremental Term Loans to which the new Incremental
Term Loans are being added;




(ii) the new Incremental Term Loans shall have the same scheduled payments pursuant to
Section 2.3 as the then existing Term Loans or Incremental Term Loans (with the amount of
each scheduled repayment applicable to such new Incremental Term Loans to be the same (on a
proportionate basis) as is theretofore applicable to the Tranche to
which such new Incremental Term Loans are being added, thereby increasing the amount of
each then remaining payment of the respective Tranche proportionately; and


 


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(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding
anything to the contrary set forth in Section 2, such new Incremental Term Loans shall be
added to (and form part of) each borrowing of outstanding Term Loans or Incremental Term
Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the
various outstanding Tranches), so that each Incremental Term Loan Lender will participate
proportionately in each then outstanding borrowing of Term Loans or Incremental Term Loans
of the respective Tranche.



To the extent the provisions of preceding clause (iii) require that Lenders making new
Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of
Eurodollar Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in
such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began
during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and
which will end on the last day of such Interest Period). In connection therewith, the Borrowers
shall compensate the Incremental Term Loan Lenders making the new Incremental Term Loans of the
respective Tranche for funding Eurodollar Rate Loans during an existing Interest Period on such
basis as may be agreed by the Company and the respective Incremental Term Loan Lender or Lenders as
may be provided in the respective Incremental Term Loan Commitment Agreement.



2.22. Incremental Revolving Commitments. (a) So long as the Incremental Loan Commitment
Requirements are satisfied at the time of the delivery of the request referred to below, the
Company shall have the right in coordination with the Administrative Agent as to all of the matters
set forth below in this Section 2.22 (and Administrative Agent agrees to so coordinate), but
without requiring the consent of any of the Lenders, to request at any time and from time to time
after the Closing Date, that one or more Lenders (and/or one or more other Persons which are
Eligible Assignees and which will become Lenders as provided below) provide Incremental Revolving
Commitments and, subject to the applicable terms and conditions contained in this Agreement, make
Revolving Loans and participate in Letters of Credit pursuant thereto; provided,
however, that:




(i) no Lender shall be obligated to provide an Incremental Revolving Commitment as a
result of any such request by the Company, and until such time, if any, as such Lender has
agreed in its sole discretion to provide an Incremental Revolving Commitment and executed
and delivered to the Administrative Agent an Incremental Revolving Commitment Agreement in
respect thereof as provided in clause (b) of this Section 2.22, such Lender shall not be
obligated to fund any Revolving Loans in excess of its Revolving Commitment as in effect
prior to giving effect to such Incremental Revolving Commitment provided pursuant to this
Section 2.22;




(ii) any Lender (including any Eligible Assignee who will become a Lender) may so
provide an Incremental Revolving Commitment without the consent of any other Lender;
provided that the consent of the Issuing Lenders shall be required for any Lender
providing an Incremental Revolving Commitment (such consent not to be unreasonably
withheld or delayed);


 


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(iii) each provision of Incremental Revolving Commitments on a given date pursuant to
this Section 2.22 shall be in a minimum aggregate amount (for all Lenders (including any
Eligible Assignee who will become a Lender)) of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof;




(iv) the aggregate amount of all Incremental Revolving Commitments provided pursuant to
this Section 2.22 plus the aggregate amount of all Incremental Term Loan Commitments
provided pursuant to Section 2.21 shall not exceed $250,000,000; and




(v) all obligations of the Borrowers in connection with Incremental Revolving
Commitments (and all Revolving Loans, interest, fees, obligations to reimburse drawings
under Letters of Credit and other amounts payable thereon) shall be Obligations under this
Agreement and the other applicable Loan Documents.



Notwithstanding anything to the contrary in Section 2.21 or Section 2.22, Incremental Revolving
Commitments provided prior to the Closing Date (“Pre-Closing Incremental Revolving
Commitments”) and Incremental Revolving Commitments provided within six months after the
Closing Date, to the extent not exceeding $212,000,000 in the aggregate, will not be counted
against the limits set forth in clause (iv) of either Section 2.21 or Section 2.22. In the case of
Pre-Closing Incremental Revolving Commitments, in lieu of compliance with the first sentence of
Section 2.22(b), and provided that all other requirements of this Section 2.22 shall have been
satisfied, the provision of such Pre-Closing Incremental Revolving Commitments may be implemented
by execution of an addendum to this Credit Agreement in form acceptable to the Incremental
Revolving Lender providing such commitments, the Administrative Agent and the Company.



(b) At the time of the provision of Incremental Revolving Commitments pursuant to this Section
2.22, the Borrowers, the Administrative Agent and each such Lender or other Eligible Assignee which
agrees to provide an Incremental Revolving Commitment (each, an “Incremental Revolving
Lender”) shall execute and deliver to the Administrative Agent an Incremental Revolving
Commitment Agreement, with the effectiveness of such Incremental Revolving Lender’s Incremental
Revolving Commitment to occur on the date set forth in such Incremental Revolving Commitment
Agreement, which date in any event shall be no earlier than the date on which (i) all fees required
to be paid in connection therewith at the time of such effectiveness shall have been paid
(including, without limitation, any agreed upon up-front or arrangement fees owing to the
Administrative Agent (or any Affiliate thereof)), (ii) all Incremental Loan Commitment Requirements
are satisfied, (iii) all other conditions set forth in this Section 2.22 shall have been satisfied
and (iv) all other conditions precedent that may be set forth in such Incremental Revolving
Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify
each Lender as to the effectiveness of each Incremental Revolving Commitment Agreement, and at such
time, (i) the Total Revolving Commitments under, and for all purposes of, this Agreement shall be
increased by the aggregate amount of such Incremental Revolving Commitments, (ii) Schedule 1.1A
shall be deemed
modified to reflect the revised Revolving Commitments of the affected Lenders and (iii) to the
extent requested by any Incremental Revolving Lender, a Note will be issued, at the Company’s
expense, to such Incremental Revolving Lender.



 


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(c) At the time of the effective date of any Incremental Revolving Commitments pursuant to
this Section 2.22, the Borrowers shall, in coordination with the Administrative Agent, repay
outstanding Revolving Loans of certain of the Revolving Lenders, and incur additional Revolving
Loans from certain other Revolving Credit Lenders (including the Incremental Revolving Lenders), in
each case to the extent necessary so that all of the Revolving Lenders participate in each
outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving
Commitments (after giving effect to any increase in the Total Revolving Commitments pursuant to
this Section 2.22) and with the Borrowers being obligated to pay to the respective Revolving
Lenders any costs of the type referred to in Section 2.18 in connection with any such repayment
and/or Borrowing.



2.23. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:



(a) Commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment
of such Defaulting Lender pursuant to Section 2.6;



(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender
shall not be included in determining whether all Lenders, the Majority Lenders or the Majority
Facility Lenders have taken or may take any action hereunder (including any consent to any
amendment, waiver or other modification pursuant to Section 11.1); provided that (i) such
Defaulting Lender’s Commitment may not be increased or extended without the consent of such
Defaulting Lender and (ii) the principal amount of, or interest or fees payable on, Loans or L/C
Obligations may not be reduced or excused and the scheduled date of payment may not be postponed as
to such Defaulting Lender without such Defaulting Lender’s consent;




(c) if any L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:




(i) all or any part of such Lender’s Revolving Percentage of the L/C Obligations shall
be reallocated among the non-Defaulting Lenders in accordance with their respective
Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’
Revolving Extensions of Credit plus such Defaulting Lender’s Revolving Percentage of
the L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving
Commitments;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Company shall within one Business Day following notice by the
Administrative Agent (which notice the Administrative Agent shall give at the direction of
the relevant Issuing Lender), cash collateralize for the benefit of the relevant Issuing
Lender only the Borrowers’ obligations corresponding to 100% of such Defaulting Lender’s
Revolving Percentage of the L/C Obligations (after giving effect to
any partial reallocation pursuant to clause (i) above) in accordance with the
procedures set forth in Section 9 for so long as such L/C Obligations are outstanding;


 


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(iii) if the Company cash collateralizes any portion of such Defaulting Lender’s
Revolving Percentage of the L/C Obligations pursuant to clause (ii) above, the Borrowers
shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with
respect to such Defaulting Lender’s Revolving Percentage of the L/C Obligations during the
period such Defaulting Lender’s Revolving Percentage of the L/C Obligations is cash
collateralized;




(iv) if the Revolving Percentage of the L/C Obligations of the non-Defaulting Lenders
is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant
to Section 2.6 and Section 3.3 shall be adjusted in accordance with such non-Defaulting
Lenders’ Revolving Percentages; and




(v) if all or any portion of such Defaulting Lender’s Revolving Percentage of the L/C
Obligations is neither reallocated nor cash collateralized pursuant to clause (i) or (ii)
above, then, without prejudice to any rights or remedies of the Issuing Lenders or any other
Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such
Defaulting Lender’s Revolving Percentage of the L/C Obligations shall be payable to the
relevant Issuing Lender(s) until and to the extent that such Defaulting Lender’s Revolving
Percentage of the L/C Obligations is reallocated and/or cash collateralized.



In the event that the Administrative Agent, the Borrowers and each relevant Issuing Lender
each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to
be a Defaulting Lender, then the Lenders’ Revolving Percentages of the L/C Obligations shall be
readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall
purchase at par such of the Revolving Loans of the other Lenders as the Administrative Agent shall
determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with
its Revolving Percentage.



2.24. Joint and Several Liability. The Borrowers shall be jointly and severally
liable for the Obligations.



SECTION 3.  LETTERS OF CREDIT




3.1. L/C Commitment. (a) Subject to the terms and conditions hereof, each Issuing
Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a),
agrees to issue Letters of Credit for the account of the Borrowers on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by such Issuing
Lender (such approval not to be unreasonably withheld); provided that any Issuing Lender is
entitled to conclusively rely on advice from the Administrative Agent that the issuance of Letters
of Credit is permitted under the Agreement without further inquiry; and provided,
further, that no Issuing Lender shall have any obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii)
the aggregate amount of the Available Revolving Commitments would be less



 


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than zero or (iii) the
L/C Obligations with respect to all Letters of Credit issued by such
Issuing Lender would exceed such Issuing Lender’s Specified Issuing Lender Commitment. Each Letter of Credit shall
(i) be denominated in Dollars and payable on an “at sight” basis and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business
Days prior to the Revolving Termination Date; provided, however, that any Letter of
Credit, whether newly requested or an existing Letter of Credit that is extended or automatically
renewed, may have an expiration date up to 90 days after the Revolving Termination Date so long as
the Borrowers cash collateralizes such Letter of Credit on or prior to the date which is five
Business Days prior to the Revolving Credit Termination Date and the relevant Issuing Lender shall
have agreed to provide such Letter of Credit at the time such Letter of Credit or extension is
requested or at the time such existing Letter of Credit is to be automatically renewed, as
applicable; provided, further, that any Letter of Credit (other than a Letter of
Credit to which Section 2.23(c)(ii) applies) with a one-year term may provide for the automatic
renewal thereof for additional one-year periods (which shall only extend beyond the date referred
to in clause (y) above if the condition described in the first proviso of this sentence is
satisfied). In the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of Application or other agreement submitted by the Company
to, or entered into by the Company with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.



(b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.



3.2. Procedure for Issuance of Letters of Credit. The Company may from time to time
request that the relevant Issuing Lender issue a Letter of Credit by delivering to such Issuing
Lender at its address for notices specified herein an Application therefor. Upon receipt of a duly
completed and executed Application and any certificates, documents and other papers and information
(referred to herein or in the Application) delivered to the Issuing Lender in connection therewith,
the relevant Issuing Lender shall process such Application in accordance with its customary
procedures and promptly issue the Letter of Credit requested thereby (but in no event shall any
Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days (or
such shorter period as such Issuing Lender may agree) after its receipt of the duly completed and
executed Application therefor and all such other certificates, documents and other papers and
information referred to herein and therein and relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender
and the Company. Such Issuing Lender shall furnish a copy of such Letter of Credit to the
Borrowers promptly following the issuance thereof. Each Issuing Lender shall promptly furnish to
the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).



3.3. L/C Fees and Other Charges. (a) The Borrowers shall pay a fee on all the
average daily aggregate maximum amount available to be drawn under all outstanding Letters of
Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Facility shared ratably among the Revolving Lenders and payable quarterly
in arrears on each Fee Payment Date after the issuance date. In addition, the Borrowers shall pay
to each Issuing Lender for its own account a fronting fee in an amount to be agreed by the Company
and the relevant Issuing Lender not to exceed 0.125% per annum on the
stated amount of each Letter of Credit issued by such Issuing Lender, payable quarterly in
arrears on each Fee Payment Date after the issuance date; provided that such fronting fee shall be
at least $100 per quarter for each Letter of Credit.


 


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(b) In addition to the foregoing fees, the Borrowers shall pay or reimburse each Issuing
Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.



3.4. L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of
Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving
Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of
Credit issued by such Issuing Lender and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant agrees with each Issuing Lender that, if a draft is paid under
any Letter of Credit issued by such Issuing Lender for which such Issuing Lender is not reimbursed
in full by the Borrowers in accordance with the terms of this Agreement, the Administrative Agent
(acting at the direction of the relevant Issuing Lender) shall make a demand on such L/C
Participant to pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices
specified herein an amount equal to such L/C Participant’s Revolving Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed. Each L/C Participant’s obligation to
pay such amount shall be absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C
Participant may have against any Issuing Lender, either Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure
to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of either Borrower, (iv) any breach of this Agreement or any
other Loan Document by either Borrower, any other Loan Party or any other L/C Participant or (v)
any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.



(b) If any amount required to be paid by any L/C Participant to any Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the date on which such
payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of
which is the number of days that elapse during such period and the denominator of which is 360. If
any such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made
available to the relevant Issuing Lender by such L/C Participant within three Business Days after
the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such due date at the rate
per annum applicable to ABR Loans under the Revolving Facility. A certificate of the relevant
Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.


 


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(c) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such payment in
accordance with Section 3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from a Borrower or otherwise, including proceeds of collateral applied
thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender
will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by such Issuing
Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return
to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.



3.5. L/C Reimbursement Obligation of the Borrowers. If any draft is paid under any
Letter of Credit, the Borrowers shall reimburse the relevant Issuing Lender for the amount of (a)
the draft so paid and (b) any Taxes, fees, charges or other costs or expenses incurred by such
Issuing Lender in connection with such payment, not later than 12:00 Noon, New York City time, on
(i) the Business Day that the Company receives notice of such draft, if such notice is received on
such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the
Business Day immediately following the day that the Company receives such notice. Each such
payment shall be made to the relevant Issuing Lender at its address for notices referred to herein
in Dollars and in immediately available funds. Interest shall be payable on any such amounts from
the date on which the relevant draft is paid until payment in full at the rate set forth in (x)
until the Business Day next succeeding the date of the relevant notice, Section 2.12(b) and (y)
thereafter, Section 2.12(c). If the Borrowers fail to reimburse any Issuing Lender in accordance
with this Section 3.5, the Borrowers shall be deemed to have made a request for a borrowing of ABR
Loans pursuant to Section 2.5(b) as provided in such Section.



3.6. Obligations Absolute. The Borrowers’ obligations under this Section 3 shall be
absolute, unconditional and irrevocable under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment that either Borrower may have or have had against any
Issuing Lender, any beneficiary of a Letter of Credit or any other Person. Each Borrower also
agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the
Borrowers’ Reimbursement Obligations under Sections 3.5 shall not be affected by, among other
things, the validity, genuineness or enforceability of drafts, documents, Letters of Credit or this
Agreement, or any term or provision therein or of any endorsements thereon, even though such drafts
or documents shall in fact prove to be invalid, fraudulent or forged in any respect or any
statement therein being untrue or inaccurate in any respect, any dispute between or among either
Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of either Borrower against any beneficiary of
such Letter of Credit or any such transferee or any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrowers’
obligations hereunder. No Issuing Lender shall be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Issuing Lender. Each Borrower agrees that any
action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross negligence or willful misconduct,
shall be binding on the Borrowers and shall not result in any liability of such Issuing Lender to
the Borrowers.


 


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3.7. Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the Issuing Lender that issued such Letter of Credit shall promptly notify the
Company of the date and amount thereof. The responsibility of each Issuing Lender to the Borrowers
in connection with any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be limited to determining
that the documents (including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.



3.8. Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the relevant provisions of this Section 3, the provisions of
this Section 3 shall apply.



3.9. Existing Letters of Credit. On the Closing Date, each Existing Letter of Credit
shall, automatically and without further action, be deemed to be a Letter of Credit that has been
issued hereunder as of the Closing Date for all purposes hereunder and under the other Loan
Documents. Without limiting the foregoing, (i) each such Existing Letter of Credit shall be
included in the calculation of L/C Obligations, (ii) all liabilities of the Borrowers and the other
Loan Parties with respect to such Existing Letters of Credit shall constitute Obligations and (iii)
each Lender shall have reimbursement obligations with respect to such Existing Letters of Credit as
provided in Section 3.4.



SECTION 4.  REPRESENTATIONS AND WARRANTIES




To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, each of the Company and GAI hereby
represents and warrants to the Administrative Agent and each Lender that:



4.1. Organization; Power and Authority. The Company and each Restricted Subsidiary
(a) is duly organized, validly existing and in good standing under the laws of the state of its
organization and (b) has all requisite corporate, limited partnership or limited liability company
power and authority to own its assets and to carry on its business as now conducted and as proposed
to be conducted and is qualified to do business, and is in good standing in every jurisdiction
where such qualification is required, except where the failure to have such power and authority and
so to qualify would not reasonably be expected to result in a Material Adverse Effect. Each Loan
Party has the corporate, limited partnership or limited liability company power to execute, deliver
and perform its obligations under each Loan Document to which it is a party, and each Loan Party
has the corporate, limited partnership or limited liability company power to take all action
necessary to consummate the transactions contemplated by the Loan Documents to which it is a party.


 


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4.2. Due Authorization. The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party has been duly authorized by all necessary corporate,
limited partnership or limited liability company action, as applicable. The Loan Documents have
been duly executed and delivered by each Loan Party party thereto.



4.3. Governmental Approval. Except as would not reasonably be expected to have a
Material Adverse Effect, no authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required for the due execution, delivery and performance
by any Loan Party of any Loan Document to which it is a party or the conduct by any Loan Party of
its business as conducted on the date such representation is made or deemed made, except, in any
such case, for those which have been duly obtained or made and are in full force and effect.



4.4. Binding and Enforceable. This Agreement constitutes, and each other Loan Document
upon execution will constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of
creditors’ rights generally and to general principles of equity.



4.5. No Violation. The execution, delivery and performance by any Loan Party of this
Agreement and the other Loan Documents to which it is a party, the borrowings hereunder and the use
of the proceeds thereof does not violate (i) its organizational documents or (ii) in any manner
which has had or would reasonably be expected to have a Material Adverse Effect, any Material
Agreement.



4.6. No Default. No Default or Event of Default has occurred and is continuing, other
than any Default or Event of Default which has been waived pursuant to Section 11.1. As of the
Closing Date, no Loan Party is in default in any material respect under or with respect to any
Material Agreement binding on it that, in the aggregate with other such defaults, would reasonably
be expected to have a Material Adverse Effect.



4.7. Litigation. No litigation, arbitration or administrative proceeding is currently
pending or, to such Borrower’s knowledge, threatened against it or any Restricted Subsidiary (i) to
restrain the entry by any Loan Party into, the enforcement of or exercise of any rights by the
Lenders or the Administrative Agent under, or the performance or compliance by any Loan Party with
any obligations under, the Loan Documents to which it is a party or (ii) which has had or would
reasonably be expected to have a Material Adverse Effect.



4.8. Financial Condition. The unaudited pro forma consolidated
balance sheet of the Company as at June 30, 2010 and the pro forma consolidated
statement of operations for the twelve months ended June 30, 2010, copies of which have heretofore
been delivered to the Lenders, present fairly, in all material respects, the pro
forma consolidated financial condition of the Company as at said date and the pro
forma consolidated results of its operations for said twelve-month period in a manner
consistent with GAAP. As of the Closing Date and except as would not reasonably be expected to
have a Material Adverse Effect, neither the Company nor any of its Subsidiaries will have any
material (w) Debt or Guarantee Obligations, (x) contingent liabilities, (y) liabilities for Taxes,
or (z) any long-term leases including any interest rate or
foreign currency swap or exchange transaction, in each case that are not reflected in the
foregoing financial statements referred to in this Section 4.8 or otherwise expressly disclosed to
the Administrative Agent prior to the date hereof.


 


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4.9. Material Adverse Change. Since December 31, 2009, there has been no material
adverse change in, or material adverse effect on, (i) the financial condition, operations, business
or assets of the Company or its Subsidiaries, taken as a whole, which would have a material adverse
effect on the ability of the Borrowers to pay when due amounts owed by it from time to time under
the Facilities, or (ii) the validity or enforceability of the Loan Documents against the Borrowers
or any Subsidiary Guarantor which would have a material adverse effect on the rights, remedies and
benefits available to, or conferred upon, the Administrative Agent or the Lenders, taken as a
whole.



4.10. Investment Company Act. No Loan Party is an “investment company”, under the
Investment Company Act of 1940, as amended.



4.11. Environmental Matters. There has been no matter with respect to environmental
compliance which has had or would reasonably be expected to have a Material Adverse Effect.



4.12. Accuracy of Information, etc. The statements and information contained in the
Confidential Information Memorandum (other than forward looking statements, projections,
information of a general economic nature, and pro forma financial information, but
including publicly filed financial statements expressly incorporated by reference therein) taken as
a whole, as of the date of the Confidential Information Memorandum or as of the Closing Date, are
correct in all material aspects and not misleading in light of the circumstances under which such
statements are made. The projections and pro forma financial information contained
in the Confidential Information Memorandum were prepared in good faith based upon estimates and
assumptions believed by management of the Company to be reasonable at the time made, which are
believed by management to remain reasonable as of the Closing Date, it being recognized by the
Lenders that such financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount.



4.13. Employee Benefit Plans. Each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder, except as would not result in a Material Adverse Effect. No
ERISA Event has occurred that, when taken together with all other such ERISA Events, would result
in a Material Adverse Effect.



4.14. Tax Returns and Payments. Except as would not reasonably be expected to have a
Material Adverse Effect, each of the Company and its Restricted Subsidiaries has filed or caused to
be filed with the appropriate taxing authority, all tax returns, statements, forms and reports for
taxes (the “Returns”) that are required to be filed by, or with respect to the income,
properties or operations of, the Company and/or any of its Restricted Subsidiaries, and all such
Returns are complete and accurate, and have paid or caused to be paid all taxes shown to be due and
payable on said Returns (other than those the amount or validity of which is contested in
good faith by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books and records of the relevant entities).


 


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4.15. Security Documents. (a) The provisions of the Security Documents are effective
to create a legal, valid and enforceable security interest in all right, title and interest of the
Borrowers and each Subsidiary Guarantor in the assets subject thereto subject to no other Liens
(except Liens permitted by Section 8.3) which, upon completion of the filings and other actions
required by the Loan Documents (including the filing of financing statements specified on Schedule
4.15(a)), will constitute valid perfected security interests in such of the Collateral as to which
such perfection is required under the Loan Documents in favor of the appropriate Collateral Trustee
for the ratable benefit of the Secured Parties.



4.16. Ownership of Property. Except as would not reasonably be expected to have a
Material Adverse Effect, such Borrower and each Restricted Subsidiary has good and marketable title
to, or a subsisting leasehold interest in or right to use, all material real property necessary for
its operations free and clear of all Liens, except as permitted by Section 8.3.



4.17. Subsidiaries. Schedule 4.17 sets forth the name and jurisdiction of
incorporation of each Person that as of the date hereof will be a Subsidiary of the Company after
giving effect to the Transaction and, as to each such Subsidiary, the percentage of each class of
Capital Stock that will be owned by the Company on the Closing Date after giving effect to the
Transaction. The shares of Capital Stock or other ownership interests in the Subsidiaries are or
on the Closing Date will be fully paid and non-assessable and will be owned by the Company on the
Closing Date, directly or indirectly, free and clear of all Liens (other than as permitted by
Section 8.3).



SECTION 5.  CONDITIONS PRECEDENT




5.1. Conditions to Initial Extension of Credit. The agreement of each Lender to make
the initial extension of credit requested to be made by it is subject to the satisfaction, prior to
or concurrently with the making of such extension of credit on the Closing Date, of the following
conditions precedent:




(a) Credit Agreement; Guarantee Agreement, etc. The Administrative Agent shall
have received (i) this Agreement or, in the case of the Lenders, an Addendum, executed and
delivered by the Administrative Agent, the Borrowers and each Person listed on Schedule
1.1A, (ii) the Guarantee Agreement, executed and delivered by each Subsidiary Guarantor,
(iii) the Security Agreement, executed and delivered by the Borrowers and each Subsidiary
Guarantor, (iv) an Acknowledgement and Consent in the form attached to the Security
Agreement, executed and delivered by each Issuer (as defined therein) that is a Subsidiary
of the Company and is not a Loan Party (to the extent its Capital Stock is required to be
pledged thereunder) and (iv) the Collateral Trust Agreement, executed and delivered by the
Borrowers, each Subsidiary Guarantor, Collateral Trustee and the Administrative Agent.


 


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(b) Closing Certificate. The Credit Parties shall have executed and delivered
to the Administrative Agent certificates, substantially in the forms of Exhibit E-1 and
Exhibit E-2, which shall include a certificate of incumbency, and attached to which
shall be (i) the certificate of incorporation and bylaws or other similar governing document
of each Loan Party, (ii) resolutions of the board of directors, member, managing manager or
general partner, as applicable, of each Loan Party authorizing the Loan Parties to execute
the Loan Documents, and (iii) a short-form good standing certificate for each Loan Party
from its jurisdiction of organization (to the extent officials in such jurisdiction provide
such certificates). The Company shall have also delivered a customary certification by the
chief financial officer as to the solvency of the Company.




(c) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the Closing Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct in all material respects as of such earlier date.




(d) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on the Closing Date or after giving pro forma effect to the
Transaction and the extensions of credit requested to be made on the Closing Date and the
application of proceeds therefrom.




(e) Merger. The Transaction (including the Merger) shall be consummated
simultaneously with the initial funding hereunder in accordance with applicable law. All
aspects of the Merger shall be consummated in accordance with the Merger Agreement and no
provision of the Merger Agreement shall have been amended, supplemented, waived or otherwise
modified in a manner materially adverse to the Lenders without the prior written consent of
the Arrangers, which consent may not be unreasonably withheld.




(f) Fees. The Lenders and the Arrangers shall have received all fees required
to be paid on or before the Closing Date, and the Arrangers shall have received
reimbursement for all of their documented out-of-pocket expenses payable by the Company in
connection with this Agreement and billed at least one (1) day prior to the Closing Date.
All such amounts shall be paid with proceeds of Loans made on the Closing Date and shall be
reflected in the funding instructions given by the Company to the Administrative Agent on or
before the Closing Date.




(g) Restructuring of Debt. (i) All amounts due or outstanding in respect of
the Debt outstanding under the Existing Credit Agreements, the Existing RRI Secured Notes
and the Existing MNA Senior Notes shall have been (or substantially simultaneously with the
initial funding hereunder shall be) paid in full or, in the case of the Existing RRI Secured
Notes or the Existing MNA Senior Notes discharged in accordance with Section 8.02 and
Section 8.1, respectively, of the indenture relating thereto, all commitments (if any) in
respect thereof terminated and all guarantees (if any) therefor and security (if any)
thereof discharged and released; provided, however, that this condition
shall not apply with respect to the Existing RRI Secured Notes if RRI obtains consent for
the Transaction from the holders of a majority in aggregate principal amount of such notes
outstanding in form and substance reasonably satisfactory to the Arrangers, and (ii) the
defeasance of the Existing PEDFA Bonds shall have been (or substantially simultaneously with
the
initial funding hereunder shall be) effective and RRI’s and its Subsidiaries’
obligations under the guarantees in respect of the Existing PEDFA Bonds and the Liens
securing such guarantees shall have been, in each case, discharged and released;
provided, however, that this condition shall not apply with respect to any
series of Existing PEDFA Bonds as to which RRI obtains consent for the Transaction from the
holders of a majority in aggregate principal amount of such series of Existing PEDFA Bonds
outstanding in form and substance reasonably satisfactory to the Arrangers.


 


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(h) No Material Secured Debt. After giving effect to the repayments and
refinancings of Debt that shall occur on the Closing Date, the Loan Parties shall have no
material secured Debt other than under the Loan Documents (with the aggregate principal
amount of the Term Facility on the Closing Date not to exceed $700,000,000 minus the
aggregate principal amount of Existing RRI Secured Notes and Existing PEDFA Bonds which
remain outstanding on the Closing Date) without the consent of the Arrangers.




(i) Governmental Approvals. Except as would not reasonably be expected to have
a Material Adverse Effect, all governmental and third party approvals necessary in
connection with the Transaction shall have been obtained and be in full force and effect.




(j) Lien Searches. The Lenders shall have received the results of a recent
Lien search in each relevant jurisdiction with respect to the Loan Parties, and such search
shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by
the Loan Documents or Liens to be discharged on or prior to the Closing Date pursuant to
documentation satisfactory to the Arrangers.




(k) Filings, Registrations and Recordings. Each document (including, without
limitation, any Uniform Commercial Code financing statement) required by the Loan Documents
to be filed, registered, recorded or delivered to the Collateral Trustees in order to create
in favor of the Collateral Trustees, for the benefit of the Secured Parties, a perfected
Lien on the Collateral described therein shall have been filed, registered or recorded or
shall have been delivered to such Collateral Trustees in proper form for filing,
registration or recordation, including, without limitation: (i) if certificated, the
certificates representing the Capital Sock pledged pursuant to the Security Documents,
together with an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and (ii) in connection with Collateral consisting
of real estate, customary documentation (including Mortgages with respect to the Mortgaged
Properties) to the extent reasonably requested by the Administrative Agent, in each case as
and to the extent required by the Loan Documents; provided, however, to the
extent, after the exercise by the Company of its commercially reasonable efforts without
undue burden or expense, any Collateral cannot be granted or perfected on the Closing Date
(other than the grant of security interests in, and delivery of items required for
perfection with respect to, (i) material assets with respect to which a Lien may be
perfected solely by the filing of a financing statement under the Uniform Commercial Code,
(ii) Capital Stock with respect to which a Lien may be perfected by the delivery of a stock
certificate and (iii) the Mortgaged Properties, then the provision of such Collateral shall
not constitute a condition precedent, but may instead be provided
after the Closing Date pursuant to arrangements reasonably satisfactory to the
Administrative Agent.


 


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(l) Legal Opinions. The Administrative Agent shall have received such executed
legal opinions (including opinions from counsel to the Company and its Subsidiaries (which
may, with respect to certain matters, include in-house counsel)) as are customary for
transactions of this type or as the Administrative Agent may reasonably require.




(m) No Material Adverse Effect. Since December 31, 2009, there shall not have
occurred any event, development, condition or circumstance, not disclosed in the Company’s
or Mirant’s public filings made pursuant to the Securities Exchange Act of 1934, as amended,
before July 2, 2010, that has had a Material Adverse Effect.




(n) Pro Forma Financial Statements. The Lenders shall have received a
pro forma condensed combined balance sheet of the Company and its
consolidated Subsidiaries as of June 30, 2010, adjusted to give effect to the Transaction as
if the Transaction had occurred on June 30, 2010 and a pro forma condensed
combined statement of operations for the twelve months ended June 30, 2010, adjusted to give
effect to the Transaction as if the Transaction had occurred on January 1, 2009.




(o) Minimum Proceeds. The Company shall have received at least $1,900,000,000
(minus the amount of Existing RRI Secured Notes and Existing PEDFA Bonds which remain
outstanding on the Closing Date in accordance with Section 5.1(g)) in gross cash proceeds
from the issuance of senior unsecured notes and the borrowing of Term Loans (without giving
effect to the original issue discount in respect of the Term Loans), and the Arrangers shall
be reasonably satisfied with the terms and conditions of the documentation for such senior
unsecured notes.




(p) Patriot Act. The Administrative Agent and the Lenders shall have received
all documentation and other information reasonably requested by them in order to comply with
their ongoing obligations under applicable “know your customer” and anti-money laundering
rules and regulations, including the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended (the
“Patriot Act”).




(q) Closing Date. The Closing Date shall have occurred on or prior to December
31, 2010; provided, however, that the deadline for the occurrence of the
Closing Date for the Term Commitment of each Term Lender, for the Revolving Commitment of
each consenting Revolving Lender and for the commitment of each consenting Issuing Lender
shall be extended to the Extended Expiration Date, provided that Revolving Lenders
holding not less than $750,000,000 of Revolving Commitments consent to such Extended
Expiration Date.


 


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5.2. Conditions to Each Extension of Credit. The agreement of each Lender to make any
extension of credit (other than continuations or conversions and the funding of
drawings under Letters of Credit) requested to be made by it on any date (including its
initial extension of credit) is subject to the satisfaction of the following conditions precedent:




(a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents (other than those set forth in
Sections 4.7, 4.9 and 4.12 of this Agreement) shall be true and correct in all material
respects on and as of such date as if made on and as of such date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier date.




(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be
made on such date and the application of proceeds therefrom.



Each borrowing by and issuance of a Letter of Credit on behalf of a Borrower hereunder shall
constitute a representation and warranty by the Borrowers as of the date of such extension of
credit that the conditions contained in this Section 5.2 have been satisfied.



SECTION 6.  AFFIRMATIVE COVENANTS




Each Borrower hereby agrees that, from and after the Closing Date and so long as the
Commitments remain in effect, any Letter of Credit remains outstanding (if neither (x) cash
collateralized in accordance with the terms of this Agreement nor (y) supported with a back-to-back
letter of credit reasonably acceptable to the relevant Issuing Lender) or any Loan is due and owing
to any Lender or the Administrative Agent hereunder:



6.1. Compliance with Law; Maintenance of Existence. (a) Each Loan Party and its
Subsidiaries shall comply with all Requirements of Law (including Environmental Laws) applicable to
such Loan Party and such Subsidiaries in the conduct of their respective businesses except where
(x) such requirements are being contested in good faith by appropriate proceedings diligently
conducted or (y) the failure to do so would not reasonably be expected to have a Material Adverse
Effect; and (b) each Loan Party shall preserve, renew and keep in full force and effect its
organizational existence except as otherwise permitted by Section 8.4.



6.2. Financial Statements. The Company shall furnish to the Administrative Agent with
copies for each Lender (provided that the Company shall be deemed to have so delivered such
materials if the Company provides written notice (which may be in electronic form) of the making or
filing of any financial statements required in this clause (a) and the same are continuously
available on “EDGAR,” the Electronic Data Gathering Analysis and Retrieval system of the
SEC):




(a) within the earlier of (x) ninety (90) days after the end of each fiscal year of the
Company (beginning with the fiscal year ended December 31, 2010) and (y) five (5) Business
Days of the date on which such financial statements are filed with the SEC, an audited
consolidated balance sheet of the Company and its consolidated Subsidiaries as of the end of
and for such fiscal year, and the related audited consolidated statements of income or
operations, stockholders’ equity, comprehensive income (loss) and cash flows
for such fiscal year duly certified by the independent accountants of the Company and
such financial statements shall be prepared in accordance with GAAP; and


 


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(b) within the earlier of (x) sixty (60) days after the end of each fiscal quarter
(other than the last fiscal quarter) of each fiscal year of the Company (commencing with the
fiscal quarter ending March 31, 2011) and (y) five (5) Business Days of the date on which
such financial statements are filed with the SEC, unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as of the end of and for such fiscal quarter,
and the related unaudited consolidated statements of income or operations for such fiscal
quarter and for the portion of the Company’s fiscal year then ended and cash flows for the
portion of the Company’s fiscal year then ended, duly certified (subject to year-end
adjustments) by the chief financial officer or treasurer, assistant treasurer or the
controller of the Company as having been prepared in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes.



All such financial statements shall present fairly the financial condition of the Company and
its consolidated Subsidiaries and shall be prepared in accordance with GAAP.



6.3. Certificates; Other Information. The Company shall furnish to the Administrative
Agent with copies for each Lender (or, in the case of clause (c), to such Lender or, in the case of
clauses (d) and (e), to the Administrative Agent):




(a) concurrently with the delivery of any financial statements pursuant to Section 6.2,
a Compliance Certificate of a Responsible Officer of the Company (i) certifying that to the
knowledge of such officer, no Event of Default or Default has occurred or, if an Event of
Default or Default has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting forth
computations in reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with Section 7.1;




(b) as soon as available, and in any event no later than sixty (60) days after the end
of each fiscal year of the Company, a detailed consolidated budget for the following fiscal
year prepared on a quarterly basis (including a projected consolidated balance sheet of the
Company and its Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in financial position and
projected income and a description of the underlying assumptions applicable thereto)
(collectively, the “Projections”), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer stating that such Projections are
prepared in good faith based on estimates, information and assumptions that such Responsible
Officer believes to be reasonable at the time they are prepared;




(c) promptly after the request by any Lender, all documentation and other information
that such Lender reasonably requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including
the Patriot Act;


 


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(d) as soon as reasonably practicable, such additional financial and other information
relating to the then existing financial condition of the Company and the Restricted
Subsidiaries as the Administrative Agent may from time to time reasonably request, except
when the disclosure thereof is prohibited by law or by regulatory requirement and except
that the Company may condition such disclosure on such additional confidentiality agreements
as it may deem necessary (in addition to the confidentiality provisions under this
Agreement); and,




(e) promptly following receipt thereof, copies of any documents described in Sections
101(k) or 101(l) of ERISA that any Loan Party or any ERISA Affiliate may request with
respect to any Multiemployer Plan; provided that if the Loan Parties or any of their
ERISA Affiliates have not requested such documents or notices from the administrator or
sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the
Administrative Agent, the Loan Parties and/or their ERISA Affiliates shall promptly make a
request for such documents or notices from such administrator or sponsor and the Company
shall provide copies of such documents and notices to the Administrative Agent (on behalf of
each Lender) promptly after receipt thereof.



6.4. Notices. The Company shall, after a Responsible Officer obtains knowledge
thereof, promptly give notice to the Administrative Agent of:




(a) the occurrence of any Default or Event of Default that is continuing;




(b) the occurrence of any ERISA Event that, alone or together with any other ERISA
Event, would reasonably be expected to have a Material Adverse Effect;




(c) any litigation, investigation or proceeding affecting any Loan Party that may exist
at any time that would reasonably be expected to have a Material Adverse Effect.



Each notice pursuant to this Section 6.4 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
Company proposes to take or cause to be taken with respect thereto.



6.5. Inspection. Each Borrower shall permit the Administrative Agent or any other
Lender or any agents or representatives thereof (at the expense of the Administrative Agent and/or
such Lender unless an Event of Default has occurred and is continuing), to examine and make copies
of and abstracts from records and books of, and visit the properties of, such Borrower to discuss
the affairs, finances and accounts of such Borrower with any of its officers or directors and with
its independent certified public accountants (in the presence of such Borrower) from time to time
during normal business hours upon reasonable advance notice. The Administrative Agent and the
Lenders agree to coordinate and consolidate their visits (and their agents’ and representatives’
visits) pursuant to this Section 6.5 (including the examination of books and records and the making
of copies and abstracts of books and records) at mutually convenient times and in such a manner so
as to cause minimum disruption to the operations of the Borrower and to minimize costs associated
with such visits.


 


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6.6. Maintenance of Property; Insurance. The Company shall, and shall cause each
Restricted Subsidiary to (a) keep all material property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted except (x) if in the good faith
business judgment of the Company it is in its economic interest not to preserve and maintain such
property or (y) the failure to do so would not reasonably be expected to have a Material Adverse
Effect and (b) maintain with financially sound and reputable insurance companies (or through
prudent self-insurance programs or prudent captive insurance arrangements) insurance on all its
property in at least such amounts and against at least such risks as are usually insured against in
the same general area by companies engaged in the same or a similar business to the extent
available on commercially reasonable terms.



6.7. Subsequent Acquired Property; New Subsidiaries. (a) The Company shall with
respect to any material property acquired after the date hereof by the Company or any other Loan
Party (other than to the extent the applicable Loan Party is prohibited from granting such Lien by
applicable law or any contractual limitation applicable to such Loan Party not incurred in
contemplation of such acquisition) as to which the Collateral Trustee, for the benefit of the
Secured Parties, does not have a perfected Lien, to the extent required by the Security Agreement,
promptly (or on the Closing Date, if acquired before the Closing Date) (i) execute and deliver to
the Collateral Trustee (with copies to the Administrative Agent) such amendments to the Security
Documents or such other documents as the Administrative Agent reasonably deems necessary or
advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a security
interest in such property and (ii) take all actions necessary or advisable to grant to the
Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security
interest in such property, including the filing of Uniform Commercial Code financing statements in
such jurisdictions as may be required by the Security Documents or by law or as may be requested by
the Administrative Agent); provided that the Company and its Subsidiaries shall not be
required to take any action to (A) perfect the security interests in deposit and investment
accounts; (B) perfect any security interest in vehicles; (C) perfect any security interest in
government contracts or commercial tort claims; (D) perfect any security interests in any
Collateral (other than Capital Stock of Subsidiaries that is certificated) by possession; (E) grant
or perfect any security interest under any law other than the laws of the United States, any state
thereof or the District of Columbia; or (F) take any other steps to perfect security interests
where the cost of perfection is not reasonably justified by the practical value of the Collateral.



(b) The Company shall, with respect to any fee interest in any real property having a value
(together with improvements thereof) of at least $25,000,000 acquired after the date hereof by any
Loan Party (other than to the extent the applicable Loan Party is prohibited from granting such
Lien by applicable law or any contractual limitation applicable to such Subsidiary Guarantor not
incurred in contemplation of such acquisition), promptly (or on the Closing Date, if acquired
before the Closing Date) (i) execute and deliver a first priority Mortgage in favor of the
Collateral Trustee, for the benefit of the Secured Parties, covering such real property and (ii) if
reasonably requested by the Administrative Agent, provide the Lenders with title and extended
coverage insurance covering such real property in an amount at least equal to the purchase price of
such real property (or such other amount as shall be reasonably specified by the Administrative
Agent); provided, that no environmental surveys or assessments will be required in
connection with any Mortgages. Administrative Agent agrees to cooperate with the Company to reduce
mortgage recording taxes in states with high recording taxes.


 


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(c) If any additional Subsidiary is formed or acquired after the date hereof or any Subsidiary
ceases to be an Unrestricted Subsidiary or a Foreign Subsidiary, the Company shall promptly notify
the Administrative Agent thereof. The Company shall with respect to any new Subsidiary (other than
a Foreign Subsidiary or a new Subsidiary prohibited from granting such Lien by applicable law or
any contractual limitation applicable to such Subsidiary Guarantor at the time it becomes a
Subsidiary and not incurred in contemplation thereof) created or acquired after the date hereof by
any Loan Party (which, for the purposes of this paragraph (c), shall be deemed to include (x) any
existing Subsidiary that ceases to be a Foreign Subsidiary and (y) any existing Subsidiary that is
no longer an Unrestricted Subsidiary), promptly (or on the Closing Date, if acquired before the
Closing Date) (i) execute and deliver to the Collateral Trustee (with copies to the Administrative
Agent) such amendments to the Security Agreement as the Administrative Agent reasonably deems
necessary or advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties,
a perfected first priority security interest in the Capital Stock of such Subsidiary that is owned
by any Loan Party (provided, however, that (A) in the case of a Foreign Subsidiary,
in no event shall more than 65% of the total outstanding voting Capital Stock of any such new
Subsidiary be required to be so pledged and, (B) no such grant or perfection of security interests
shall be required to be made under any law other than laws of the United States, any state thereof
or the District of Columbia), (ii) deliver to the Collateral Trustee (with copies to the
Administrative Agent) any certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party,
(iii) if such new Subsidiary is a Restricted Subsidiary (other than any new Subsidiary of MIRMA,
MET, or REMA), cause such new Restricted Subsidiary (A) to execute an Assumption Agreement in the
form attached as Annex 1 to the Guarantee Agreement, (B) to take such actions as are required by
the Security Agreement to grant to the Collateral Trustee for the benefit of the Secured Parties a
perfected first priority security interest in the Collateral described in the Security Agreement
with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Security Agreement or by law
or as may be reasonably requested by the Administrative Agent and (C) to deliver to the
Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with
appropriate insertions and attachments, and (iv) if such new Subsidiary is a Foreign Subsidiary,
subject to the proviso in clause (i) above, cause such new Subsidiary to take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the
Collateral Trustee’s security interest therein.



(d) The Company shall promptly (i) notify the Administrative Agent in writing of the
designation of any Subsidiary as an “Unrestricted Subsidiary” and (ii) deliver to the
Administrative Agent a certificate signed by a Responsible Officer certifying that such designation
complied with the conditions set forth in the definition of “Unrestricted Subsidiary”.



6.8. Collateral Information. The Company shall, and shall cause each Restricted
Subsidiary to, furnish to the Administrative Agent prompt written notice of any change (i) in any
Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan
Party from that referred to in Section 3.2 of the Security Agreement, or (iii) in any Loan Party’s
Federal Taxpayer Identification Number. The Company agrees not to effect or permit any change
referred to in the preceding sentence unless all filings are timely made under the Uniform
Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all of the Collateral.


 


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6.9. Further Assurances. The Company shall, and shall cause each Restricted
Subsidiary to, execute any and all further documents, financing statements, agreements and
instruments, and take all further action (including filing Uniform Commercial Code and other
financing statements, Mortgages and deeds of trust and delivering to the Collateral Trustee (with
copies to the Administrative Agent) certificates representing securities pledged under the Security
Documents) that may be required under applicable law, or that the Majority Lenders or the
Administrative Agent may reasonably request, in order to grant, preserve, protect and perfect the
validity and priority of the security interests created or intended to be created by the Security
Documents.



6.10. Use of Proceeds. The proceeds of the Loans and the Letters of Credit shall be
used for general corporate purposes. No part of the proceeds of any Loan or other extension of
credit under this Agreement, shall be used for any purpose that violates the provisions of the
Regulation T, U or X of the Board.



6.11. New York Regulatory Approvals. The Company shall, and shall cause Mirant New
York, LLC and its Subsidiaries (other than Mirant Lovett LLC, which is an immaterial Subsidiary)
(each, a “Mirant New York Party”) to, use commercially reasonable efforts to obtain all
approvals and authorizations from the New York State Public Service Commission (collectively, the
“New York Regulatory Approvals”) necessary to permit each Mirant New York Party to become a
Subsidiary Guarantor and to permit the grant of a security interest in the assets and Capital Stock
of each Mirant New York Party, and notwithstanding anything herein to the contrary, upon obtaining
such approval, each Mirant New York Party shall execute a counterpart to the Guarantee Agreement,
Security Agreement and Collateral Trust Agreement, and shall take all further action that the
Administrative Agent may reasonably request in order to grant a security interest in its assets to
the extent required by the Security Agreement; provided that in no event shall any Mortgage be
required to be delivered for any real property owned by any Mirant New York Party on the Closing
Date.



SECTION 7.  FINANCIAL COVENANT




Each of the Company and GAI hereby agrees that, from and after the Closing Date and so long as
the Commitments remain in effect, any Letter of Credit remains outstanding (if neither (x) cash
collateralized in accordance with the terms of this Agreement nor (y) supported with a back-to-back
letter of credit reasonably acceptable to the relevant Issuing Lender) or any Loan is due and owing
to any Lender or the Administrative Agent hereunder:



7.1. Consolidated Secured Leverage Ratio. Each Borrower shall cause the Consolidated
Secured Leverage Ratio to be not more than 3.50 to 1.00 at the end of each fiscal quarter
(including the fourth fiscal quarter) of the Company calculated, in the case of EBITDA, on a
rolling four fiscal quarter basis ending on the last day of such fiscal quarter.


 


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SECTION 8.  NEGATIVE COVENANTS




Each of the Company and GAI hereby agrees that, from and after the Closing Date and so long as
the Commitments remain in effect, any Letter of Credit remains outstanding (if neither (x) cash
collateralized in accordance with the terms of this Agreement nor (y) supported with a back-to-back
letter of credit reasonably acceptable to the relevant Issuing Lender) or any Loan or is due and
owing to any Lender or the Administrative Agent hereunder:



8.1. Debt. The Company shall not, and shall not permit any Restricted Subsidiary to
incur in respect of or suffer to exist any Debt, except Permitted Debt; unless, (i) at the
end of the fiscal quarter (including the fourth fiscal quarter) of the Company for which financial
statements have been or are required to have been delivered to the Administrative Agent most
recently preceding the date on which such Debt is to be incurred, the ratio of Consolidated Total
Debt to EBITDA was less than 5.50 to 1.00, calculated, in the case of EBITDA, on a rolling four
fiscal quarter basis ending on the last day of such fiscal quarter and giving pro
forma effect to the incurrence of such Debt as of the first date of such period and (ii) no
Default or Event of Default shall have occurred and be continuing or would result therefrom.



8.2. Restricted Payments. The Company shall not, and shall not permit any Restricted
Subsidiary, to (i) declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares of any class of
Capital Stock of such Borrower or such Restricted Subsidiary, (ii) make any pre-payments with
respect to principal of, or redemption or repurchase of, any Subordinated Debt, or (iii) purchase,
redeem or otherwise acquire for value any shares of any class of Capital Stock of the Company or
any Subsidiary of the Company or any warrants, rights or options to acquire any such shares, now or
hereafter outstanding, or reduce its capital (collectively, “Restricted Payments”);
provided, however, that the foregoing shall not prohibit:



(a) the declaration and making of any dividend payment or other distribution payable in Common
Stock of the Company;



(b) with respect to any Restricted Subsidiary, the declaration and making of any dividend
payment or other distribution (A) payable to the Company or any Restricted Subsidiary, or (B) where
the Company or the Restricted Subsidiary which owns the Capital Stock in the payor receives at
least its proportionate share thereof (after giving effect to the relative rights and preferences
of the various classes of Capital Stock of such payor);



(c) any Restricted Payment so long as (i) there is no Default or Event of Default and none
would result therefrom, (ii) the Consolidated Secured Debt is not greater than zero, (iii) no
Revolving Loans are outstanding and, (iv) only if such Restricted Payment is, in whole or in part,
from the Net Cash Proceeds of Asset Sales, the pro forma Consolidated Secured Leverage Ratio of the
Company and its Subsidiaries determined after giving pro forma effect to any such Asset Sale and
assuming, for the purpose of calculating such ratio, that Revolving Loans are outstanding in an
amount equal to 100% of the Revolving Commitments, does not exceed 3.50 to 1.00;


 


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(d) the payment of any dividend within 60 days after the date of declaration of the dividend,
if at the date of declaration the dividend would have complied with the provisions of this
Agreement (and, in the case of any dividends to be paid by the Company, no Default or Event of
Default had occurred and was continuing on the date of such declaration);



(e) so long as no Default or Event of Default has occurred and is continuing or would be
caused thereby, the making of any Restricted Payment in exchange for, or out of the Net Cash
Proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of,
Capital Stock of the Company (other than Disqualified Stock) or of the substantially concurrent
contribution of common equity capital or surplus to the Company;



(f) the defeasance, redemption, repurchase or other acquisition of Subordinated Debt of the
Company or any Subsidiary Guarantor with the Net Cash Proceeds from a substantially concurrent
incurrence of Subordinated Debt;



(g) so long as no Default or Event of Default has occurred and is continuing or would be
caused thereby, (A) the repurchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company or any Restricted Subsidiary in connection with any management equity
subscription agreement, stock option agreement, shareholders’ agreement, severance agreement,
employee benefit plan or agreement or similar agreement, or (B) the repurchase for value of any
Capital Stock of the Company in the open market to satisfy stock options issued by the Company that
are outstanding;



(h) the repurchase of Capital Stock deemed to occur upon the exercise of stock options to the
extent such Capital Stock represents a portion of the exercise price of those stock options;



(i) the purchase by the Company of fractional shares upon conversion of any securities of the
Company into Capital Stock of the Company;



(j) so long as no Default or Event of Default has occurred and is continuing or would be
caused thereby, the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after
the Closing Date;



(k) the issuance of Capital Stock of the Company (other than Disqualified Stock) for other
Capital Stock of the Company in connection with any rights offering and payments for the redemption
of fractional shares in connection with any rights offering;



(l) dividends, distributions, redemptions, repurchases and prepayments of Capital Stock and
Debt as contemplated by the Merger Agreement and reflected on the funds flow memorandum delivered
to the Administrative Agent on the Closing Date, including, without limitation, the repurchase or
redemption of preferred stock of Mirant Americas, Inc.; and



(m) so long as no Default or Event of Default has occurred and is continuing or would be
caused thereby, Restricted Payments in an aggregate amount not to exceed the Available Amount at
the time of such payment.


 


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8.3. Liens. The Company shall not, and shall not permit any Restricted Subsidiary to,
create or have outstanding any Lien upon any of its property, whether now owned or hereafter
acquired, except:




(a) Liens arising solely by operation of law or by order of a court or tribunal or
other Governmental Authority (or by an agreement of similar effect);




(b) Liens in respect of overdue amounts not constituting Debt which either (A) have not
been overdue for more than thirty (30) days or (B) are being contested in good faith;




(c) Liens securing (x) up to $500,000,000 of Debt described in clause (ii) of the
definition of Permitted Debt (minus the amount of any Commitments or Loans outstanding under
any Incremental Term Facility or Incremental Revolving Facility), which may be secured on a
basis pari passu with the obligations under this Agreement, and (y) Debt described in
clauses (iv) or (viii) of the definition of Permitted Debt;




(d) Liens arising out of title retention or like provisions in relation to the
acquisition of goods or equipment relating only to such goods or equipment;




(e) Liens on deposits to secure, or any Lien otherwise securing, the performance of
bids, contracts (other than for borrowed money or commodity hedging obligations and Hedging
Obligations), leases, statutory obligations, surety bonds, appeal bonds, performance bonds,
reimbursement or indemnity obligations arising out of surety, performance, or other similar
bonds, and other obligations of a like nature;




(f) Liens granted over any asset which is acquired, constructed, created or improved by
the Company or a Restricted Subsidiary, but only if (x) such Lien secures only principal
amounts (not exceeding the cost of such acquisition, construction or creation) raised for
the purposes of such acquisition, construction or creation, together with any costs,
expenses, interest and fees incurred in relation thereto or a guarantee given in respect
thereof (including amounts constituting Attributable Debt in respect of sale leaseback
transactions, Capital Lease Obligations and Synthetic Lease Obligations), (y) such Lien is
created or arises on or before ninety (90) days after the completion of such acquisition,
construction, creation or improvement (provided that in the case of tax exempt financing,
such time limitation shall not apply) and (z) such Lien is confined solely to the property
so acquired, constructed, created or improved;




(g) Liens (x) outstanding on or over any asset acquired after the Closing Date, (y) in
existence at the date of such acquisition but not incurred in contemplation of such
acquisition (including, without limitation, existing Liens on the category of the asset
acquired which automatically attach upon such acquisition) and (z) where neither the Company
nor any Restricted Subsidiary takes any step to increase the principal amount secured
thereby from that so secured and outstanding at the time of such acquisition (it being
agreed that, in the case of a fluctuating balance facility, the Liens permitted hereunder
will include Liens in existence at the time of the acquisition securing amounts later drawn
on unfunded commitments existing at the time of acquisition);


 


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(h) Liens on cash and Cash Equivalents (a) deposited by the Company or any of the
Restricted Subsidiaries in margin accounts with or on behalf of futures contract brokers or
paid over to other counterparties or (b) pledged or deposited as collateral to a contract
counterparty or issuer of surety bonds or issuer of letters of credit by the Company or any
of the Restricted Subsidiaries, in each case to secure obligations with respect to (x)
Commodity Agreements and (y) Hedging Agreements;




(i) Liens on assets of REMA and its Subsidiaries securing Debt of REMA and its
Subsidiaries permitted to be incurred pursuant to clause (x) of the definition of Permitted
Debt;




(j) Liens in favor of a plaintiff or defendant in any action before a court or tribunal
as security for costs or expenses where such action is being prosecuted or defended in the
bona fide interest of the Company;




(k) Liens listed on Schedule 8.3(k);




(l) Liens on the property of a Person existing at the time such Person is merged into
or consolidated with, or acquired by, the Company or a Restricted Subsidiary and not
incurred in contemplation with such merger, consolidation or acquisition (including, without
limitation, Liens on a category of assets which may automatically attach to assets in such
category acquired after such merger, consolidation or acquisition);




(m) Liens created pursuant to the Security Agreement, including Liens securing Eligible
Commodity Hedging Obligations and Hedging Agreements;




(n) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation, or to secure the payment or performance of
statutory or public obligations (including environmental, municipal and public utility
commission obligations and requirements);




(o) Liens for Taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto are maintained
on the books and records of the Company or the Restricted Subsidiaries, as the case may be,
in conformity with GAAP;




(p) Liens securing Project Finance Debt and Liens on Capital Stock of any Unrestricted
Subsidiary;




(q) Liens arising under Section 9.343 of the Texas Uniform Commercial Code or similar
statutes of states other than Texas;




(r) Liens on the Seward Facility and related assets securing the Seward Tax-Exempt
Bonds and other Liens securing Permitted PEDFA Bond Debt;


 


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(s) Liens to secure any Debt permitted under this Agreement that refinances any secured
Debt; provided, that: (a) the new Lien shall be limited to all or part of the same
categories of property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original Debt (plus
improvements and accessions to, such property or proceeds or distributions thereof); and (b)
the Debt secured by the new Lien is not increased to any amount greater than the sum of (i)
the outstanding principal amount or, if greater, committed amount of the Debt that is
refinanced, (ii) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancings, refunding, extension, renewal or replacement and (iii) any
protective advances with respect to the property and assets that secure such permitted
refinancing Debt;




(t) financing statements (including precautionary statements) filed in connection with
a Capital Lease Obligation, financing lease, Synthetic Lease Obligation or an operating
lease, in each case, not prohibited hereunder; provided, that no such financing
statement extends to, covers or refers to as collateral, any property or assets of such
Borrower or a Restricted Subsidiary, other than the property or assets which are subject to
such Capital Lease Obligation, financing lease, Synthetic Lease Obligation, or operating
lease;




(u) banker’s liens, rights of set off or similar rights, contractual rights of setoff
or netting arrangements and similar rights with respect to deposit accounts, commodity
accounts and/or securities accounts;




(v) Liens granted in favor of a commercial counterparty or system operator pursuant to
a netting agreement or right of setoff, which Liens encumber rights under agreements and
tariffs that are subject to such netting agreement or right of setoff and which Liens secure
such Person’s obligations to such counterparty or system operator under such netting
agreement or right of setoff; provided, that such Liens, when granted, do not secure
obligations which are past due;




(w) Liens in favor of such Borrower or any other Loan Party;




(x) Liens on cash deposited, escrowed or entrusted in connection with the defeasance or
discharge of any Debt; provided that such defeasance or discharge is not otherwise
prohibited under this Agreement;




(y) Liens on cash and Cash Equivalents not exceeding $150,000,000 in the aggregate
pledged or deposited as collateral to an issuer of letters of credit by the Company or any
of the Restricted Subsidiaries, in each case to secure obligations with respect to such
letters of credit; and




(z) Liens securing Debt or other obligations that do not exceed $50,000,000 in the
aggregate at any one time outstanding.


 


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8.4. Mergers. The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets,
except that:




(a) the Merger and all other transactions contemplated by the Merger Agreement shall be
permitted;




(b) any Loan Party may merge, consolidate or amalgamate with, or Dispose of all or
substantially all of its assets to, another Loan Party or any Person which, immediately
following such transaction, shall be a Loan Party;




(c) any Restricted Subsidiary (other than a Subsidiary Guarantor) may merge,
consolidate or amalgamate with, or Dispose of all or substantially all of its assets to, the
Company or any other Restricted Subsidiary;




(d) any Restricted Subsidiary may Dispose of all or substantially all of its assets in
a transaction which does not violate Section 8.5; and




(e) any Restricted Subsidiary may liquidate, wind-up or dissolve itself in a
transaction which does not violate Section 8.5.



8.5. Asset Sales. The Company shall not, and shall not permit any Restricted
Subsidiary to, conduct any Asset Sale other than (i) asset swaps for Fair Market Value not
exceeding $500,000,000 and (ii) the Disposition of assets for Fair Market Value and for which at
least 75% of the consideration received (excluding any Debt assumed in connection with any such
sale or Disposition) is in cash (which, for purposes of this Section 8.5, shall include
liabilities, securities, notes or other obligations received by such Borrower or any Restricted
Subsidiary that are convertible into cash (and are so converted within 180 days after the
completion of the Asset Sale), reserves for indemnities and purchase price adjustments, and certain
replacement and other capital assets and operating assets received by such Borrower or a Restricted
Subsidiary).



8.6. Investments. The Company shall not, and shall not permit any Restricted
Subsidiary to, make any advance, loan, extension of credit (by way of Guarantee or otherwise) or
capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, any other Person (all of the foregoing, “Investments”), except:




(a) extensions of trade credit in the ordinary course of business;




(b) Investments in cash and Cash Equivalents;




(c) Guarantee Obligations of Debt permitted to be incurred under Section 8.1;




(d) loans and advances to employees of the Company or any Subsidiary in the ordinary
course of business (including for travel, entertainment and relocation expenses) up to
$10,000,000 in the aggregate;




(e) Investments useful in the business of the Company and the Restricted Subsidiaries
made by such Borrower or any of the Restricted Subsidiaries with the Net Cash Proceeds of
any Recovery Event or permitted Disposition;




(f) Investments which constitute proceeds of any permitted Disposition;


 


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(g) Investments by the Company or any Restricted Subsidiary in the Company, a
Restricted Subsidiary or MML, including, without limitation, the purchase of any outstanding
Debt of any such Person; provided, that, any such Investment made in a Restricted
Subsidiary other than a Subsidiary Guarantor or MML pursuant to this clause (g) shall not
take the form of a contribution of power generation assets, or Capital Stock of any Person
owning power generation assets;




(h) any acquisition of assets or Capital Stock solely in exchange for the issuance of
Capital Stock (other than Disqualified Stock) of the Company;




(i) Investments represented by obligations under Hedging Agreements or Commodity
Agreements;




(j) any Investment in a Person, if as a result of such Investment, such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys substantially all
of its assets to, or is liquidated into, the Company or a Restricted Subsidiary or will
immediately following such Investment be a Restricted Subsidiary;




(k) any Investments received (i) in compromise or resolution of obligations of trade
creditors or customers, including (A) obligations of financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and (B) pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer, (ii) in compromise or resolution of litigation, arbitration or other
disputes, or (iii) on account of any claim against, or an interest in, any other Person (A)
acquired in good faith in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of such other Person or (B) as a result of a bona fide
foreclosure by the Company or any of the Restricted Subsidiaries with respect to any claim
against any other Person;




(l) any Investment existing or committed to on the date hereof and listed on Schedule
8.6(l) or made pursuant to an Investment program existing or committed to on the date hereof
and listed on Schedule 8.6(l);




(m) Investments in the form of, or pursuant to, working interests, royalty interests,
mineral leases, processing agreements, farm-out agreements, unitization agreements, pooling
agreements, area of mutual interest agreements, production sharing agreements or other
similar or customary agreements, transactions, properties, interests or arrangements, and
Investments and expenditures in connection therewith or pursuant thereto in each case, made
or entered into in the ordinary course of business;




(n) so long as no Default has occurred and is continuing or would be caused thereby,
Investments in an aggregate amount not to exceed the Available Amount at the time of such
Investment;




(o) payment of consolidated Taxes pursuant to tax allocation agreements among the
Company and its Subsidiaries;


 


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(p) Investments consisting of assets (other than cash and Cash Equivalents) contributed
to any joint venture in an aggregate amount not to exceed $500,000,000; provided
that promptly and in any event within thirty (30) Business Days after the making of such
Investments, the equity interests in such joint venture held by the Company or any
Restricted Subsidiary making such Investment shall be pledged to secure the obligations of
the Loan Parties under the Loan Documents;




(q) purchases of the Seward Tax-Exempt Bonds;




(r) in addition to Investments otherwise expressly permitted by this Section 8.6,
Investments by the Company or any of the Restricted Subsidiaries in an aggregate amount
(valued at cost) not to exceed the greater of $500,000,000 and 5% of Consolidated Net
Tangible Assets at any time outstanding during the term of this Agreement;




(s) Investments in Foundation or any other Person for charitable purposes in an
aggregate amount not to exceed $25,000,000; and




(t) other additional Investments, provided that the Consolidated Secured Debt is equal
to or less than zero and no Revolving Loans are outstanding.



8.7. Transactions with Affiliates. The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any transaction, including, without limitation, any purchase,
sale, lease or exchange of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Company or any Restricted Subsidiary)
unless such transaction is (i) otherwise permitted under this Agreement and (ii) either (x) upon
fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than it would obtain in a comparable arm’s length transaction with a Person that is
not an Affiliate or (y) structured as a commercially reasonable and fair allocation of costs,
including corporate overhead costs; provided, however, that the foregoing shall not
prohibit (a) any employment agreement or director’s engagement agreement, employee benefit plan,
officer and director indemnification agreement or any similar arrangement entered into by the
Company or any of the Restricted Subsidiaries in the ordinary course of business or approved by the
board of directors of the Company or such Restricted Subsidiary; (b) transactions between or among
the Company and/or the Restricted Subsidiaries that are evidenced or contemplated by licensing,
servicing or trust agreements in effect on the Closing Date; (c) payment of reasonable directors’
fees to Persons who are not otherwise Affiliates of the Company; (d) any issuance of Capital Stock
(other than Disqualified Stock) of the Company to Affiliates of the Company; (e) permitted
Restricted Payments; (f) loans or advances to employees in the ordinary course of business not to
exceed $10,000,000 in the aggregate outstanding at any time; (g) any agreement, instrument or
arrangement as in effect as of the Closing Date, or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more disadvantageous to the
Lenders in any material respect than the original agreement as in effect on the Closing Date as
reasonably determined by the Company; (h) any pro rata distribution (including a
rights offering) to all holders of a class of Capital Stock or Debt of the Company or any of the
Restricted Subsidiaries,
including Persons who are Affiliates of the Company or any of the Restricted Subsidiaries and
(i) transactions permitted under Section 8.6.


 


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8.8. Sales and Leasebacks. The Company shall not, and shall not permit any Restricted
Subsidiaries to, directly or indirectly lease any property as lessee in connection with a sale and
leaseback transaction except to the extent that the sale of the relevant Assets is permitted under
Section 8.5, if then applicable, and such lease, to the extent treated as Debt, does not violate
Section 8.1 and, to the extent treated as a Lien, does not violate Section 8.3.




8.9. Changes in Fiscal Periods. The Company shall not change its fiscal year.



SECTION 9.  EVENTS OF DEFAULT





If any of the following events shall occur and be continuing on or after the Closing Date:




(a) either Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or either Borrower shall fail to
pay any interest on any Loan or Reimbursement Obligation, or any other amount payable
hereunder, within five (5) Business Days after any such interest or other amount becomes due
in accordance with the terms hereof; or




(b) (i) any Loan Party shall default in the observance or performance of any agreement
contained in Section 7 or 8 of this Agreement (other than Section 8.3) or (ii) any Loan
Party shall default in the observance or performance of any agreement contained in Section
8.3, and such default shall continue unremedied for a period of 15 days after written notice
to the Company from the Administrative Agent or the Majority Lenders; or




(c) the Company shall fail to give timely notice of a Default or Event of Default
within 30 days after such notice is required to be given pursuant to Section 6.4(a), it
being agreed that any grace or cure period otherwise applicable to any such Default and
which commences on the date notice is given by the Administrative Agent shall be deemed
reduced by the number of days of delay in delivering such notice; or




(d) any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or in any certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to have been inaccurate in any material respect on or as of
the date made or deemed made and, in the case of any representation or warranty made in any
such certificate, such inaccuracy could reasonably be expected to have a Material Adverse
Effect; or




(e) any Loan Party shall default in the observance or performance in any material
respect of any other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after written notice to the Company from the
Administrative Agent or the Majority Lenders; or


 


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(f) the Company or any of its material Restricted Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt or of such entity that is outstanding in a
principal or notional amount equal to or in excess of $50,000,000 when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under the agreement or instrument relating to any such Debt
and shall continue after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the maturity of such
Debt by reason of default; or




(g) the Company or any of the Restricted Subsidiaries shall fail to pay an amount which
is due and not subject to a good faith dispute in excess of $50,000,000 in respect of
Eligible Commodity Hedging Obligations secured by pari passu Liens on the Collateral and, as
a result of such failure, the counterparty thereunder shall be entitled to and shall have
given notice of its intent to exercise any remedies against the Company or any of the
Restricted Subsidiaries in respect of the Collateral as a result of such failure; or




(h) any judgment or order for the payment of money in excess of $50,000,000 shall be
rendered against the Company or any of its material Restricted Subsidiaries and there shall
be any period of sixty (60) consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or




(i) the Company or any of its material Restricted Subsidiaries (each a “Designated
Party”) shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the U.S. Bankruptcy Code (as now or
hereafter in effect) or any similar law of any applicable jurisdiction, (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, or (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the U.S. Bankruptcy Code or any similar law of
any applicable jurisdiction; or a proceeding or case shall be commenced, without the
application or consent of such Designated Party, in any court of competent jurisdiction,
seeking (x) its liquidation, reorganization, dissolution or winding up, or the composition
or readjustment of its debts, (y) the appointment of a trustee, receiver, custodian,
liquidator or the like of such Designated Party or of all or any substantial part of its
assets, or (z) similar relief in respect of such Designated Party under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue unstayed and in effect for a period of sixty (60)
or more days; or




(j) any Change of Control occurs; or


 


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(k) (i) any Security Document shall for any reason be asserted in writing by the
Company or any material Subsidiary Guarantor not to be a legal, valid and binding
obligation of any party thereto, (ii) any security interest purported to be created by
any Security Document and to extend to assets that are material to the Company and its
Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by
the Company or any other Loan Party not to be, a valid and perfected security interest
(having the priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Administrative Agent to maintain
possession of certificates actually delivered to it representing securities pledged under
the Security Documents; or (iii) the Collateral Trust Agreement or any intercreditor
agreement in respect of second-lien or Subordinated Debt shall for any reason be asserted in
writing by the Company or any material Subsidiary Guarantor not to be a legal, valid and
binding obligation of any party thereto or shall otherwise cease to be enforceable; or




(l) the guarantee contained in Section 2 of the Guarantee Agreement of any Subsidiary
Guarantor that holds material assets shall cease, for any reason, to be in full force and
effect or any Loan Party shall so assert in writing; or




(m) an ERISA Event shall occur and be continuing that, when taken together with all
other such ERISA Events, would result in a Material Adverse Effect.



then, and in any such event, (A) if such event is an Event of Default specified in clause (i),
(ii), (iii) or (iv) of paragraph (i) above with respect to either Borrower, automatically the
Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of
the Majority Lenders, the Administrative Agent shall, by notice to the Company declare the
Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice to the
Company, declare the Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall immediately become
due and payable. With respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this paragraph, the Company
shall at such time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the other Loan Documents. After all such Letters
of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have
been satisfied and all other obligations of the Borrowers hereunder and under the other
Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Company (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by the Borrowers.


 


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SECTION 10.  THE AGENTS




10.1. Appointment. (a) Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity,
to take such action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.



(b) The Administrative Agent and each Lender hereby irrevocably designates and appoints the
Collateral Trustee as its agent under the Collateral Trust Agreement and the other Loan Documents,
and irrevocably authorizes the Collateral Trustee, in such capacity, to (i) take such action on its
behalf under the provisions of the Collateral Trust Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the Collateral Trustee
by the terms of the Collateral Trust Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto and (ii) enter into any and all Security
Documents and the Collateral Trust Agreement and such other documents and instruments as shall be
necessary to give effect to (A) the ranking and priority of Debt and other extensions of credit and
obligations contemplated hereunder and under the Collateral Trust Agreement, (B) the security
interests in the Collateral purported to be created by the Security Documents and (C) the other
terms and conditions of the Collateral Trust Agreement. Each Lender further hereby agrees to be
bound by the terms of the Collateral Trust Agreement and such other documents and instruments to
the same extent as if it were a party thereto and authorizes the Administrative Agent to enter into
the Collateral Trust Agreement and such other documents and instruments on its behalf.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Trustee
shall not have any duties or responsibilities, except those expressly set forth herein, in the
Collateral Trust Agreement or in any other Loan Document to which it is a party, or any fiduciary
relationship with the Administrative Agent or any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement, the
Collateral Trust Agreement or any other Loan Document or otherwise exist against the Collateral
Trustee.



10.2. Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable care.


 


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10.3. Exculpatory Provisions. Neither any Agent nor any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Agents under or in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.



10.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, email message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrowers), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Majority Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Majority Lenders (or, if so specified by
this Agreement, all Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the Loans.



10.5. Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative
Agent has received notice from a Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of default”. In the event
that the Administrative Agent receives such a notice, the Administrative Agent shall give notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Majority
Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and
until the Administrative Agent shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best interests of the
Lenders.


 


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10.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges
that neither the Agents nor any of their respective officers, directors, employees, agents,
advisors, attorneys-in-fact or Affiliates have made any representations or warranties to it and
that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or
any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has, independently and without
reliance upon any Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their
Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a
Loan Party that may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, advisors, attorneys-in-fact or Affiliates.



10.7. Indemnification. The Lenders agree to indemnify each Agent in its capacity as
such and its officers, directors, employees, Affiliates, agents, advisors and controlling persons
(each, an “Agent Indemnitee”) (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their respective Aggregate
Exposure Percentages in effect on the date on which indemnification is sought under this Section
(or, if indemnification is sought after the date upon which the Commitments shall have terminated
and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on,
incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent Indemnitee’s
gross negligence or willful misconduct. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.


 


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10.8. Agent in Its Individual Capacity. Each Agent and its Affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.



10.9. Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Company. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Majority Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9(a) or Section 9(g) with respect
to a Borrower shall have occurred and be continuing) be subject to approval by the Company (which
approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that is ten (10) days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties
of the Administrative Agent hereunder until such time, if any, as the Majority Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent’s resignation as
Administrative Agent, the provisions of this Section 10 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents.



10.10. Co- Syndication Agents and Co-Documentation Agents. None of the Co-Syndication
Agents or Co-Syndication Agents shall have any duties or responsibilities hereunder in its capacity
as such.


 


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SECTION 11.  MISCELLANEOUS




11.1. Amendments and Waivers. Neither this Agreement, any other Loan Document, nor
any terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 11.1. The Majority Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Majority Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents for the
purpose of changing any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Majority Lenders
or the Administrative Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of
any Term Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with any reduction in the post-default rate of interest set forth in Section 2.12(c);
(y) in connection with the waiver of applicability of any post-default increase in interest rates
(which waiver shall be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility); and (z) that any amendment or modification of defined terms used in
the financial covenants in this Agreement shall not constitute a reduction in the rate of interest
or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender’s Revolving Commitment, or
otherwise change the time, place or the currency of payments to be made on the Loans, in each case
without the written consent of each Lender directly affected thereby; (ii) reduce any percentage
specified in the definition of Majority Lenders without the written consent of all Lenders, (iii)
except to the extent contemplated by the Loan Documents, release all or substantially all of the
Collateral or release a Subsidiary Guarantor or Subsidiary Guarantors owning all or substantially
all of the Collateral from their obligations under the Security Agreement or Guarantee Agreement,
respectively, in each case without the written consent of all Lenders; (iv) reduce the percentage
specified in the definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (v) amend, modify or waive the defined term
“Extended Expiration Date”, Section 5.1(q) or Section 11.18 without the written consent of each
Lender affected thereby, (vi) amend, modify or waive any provision of Section 10 without the
written consent of the Administrative Agent; or (vii) amend, modify or waive any provision of
Sections 2.5(b), 2.15(g), 2.20, the proviso to Section 2.22(a)(ii) or Sections 2.23, 3, 11.1(vii),
11.5, or clause (i) of the proviso in the last paragraph of this Section 11.1, and Section
11.6(b)(i)(B), or extend the Revolving Termination Date without the written consent of each Issuing
Lender affected thereby. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.




Notwithstanding anything to the contrary contained in this Section 11.1:




(a) the Borrowers and the Administrative Agent may without the input or consent of the
Lenders, effect amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate in the opinion of the Administrative Agent to effect the provisions
of Section 2.21 and 2.22;


 


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(b) the Guarantee Agreement, the Security Documents and related documents executed by
the Borrowers or Subsidiaries in connection with this Agreement may be in a form reasonably
determined by the Administrative Agent and may be, together with this Agreement, amended,
supplemented and waived with the consent of the Administrative Agent at the request of the
Company without the need to obtain the consent of any other Lender if such amendment,
supplement or waiver is delivered in order (i) to comply with local Law or advice of local
counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause the
Guarantee Agreement, any Security Document or any related document to be consistent with
this Agreement and the other Loan Documents;




(c) this Agreement may be amended (or amended and restated) with the written consent of
the Majority Lenders, the Administrative Agent and the Borrowers (i) to add one or more
additional credit facilities to this Agreement and to permit the extensions of credit from
time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents with the Term
Loans and the Revolving Loans and the accrued interest and fees in respect thereof and (ii)
to include appropriately the Lenders holding such credit facilities in any determination of
the Majority Lenders; and




(d) this Agreement may be amended with the written consent of the Administrative Agent,
the Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined
below) to permit the refinancing, replacement or modification of all outstanding Term Loans
(“Refinanced Term Loans”) with a replacement term loan tranche hereunder
(“Replacement Term Loans”), provided that (i) the aggregate principal amount
of such Replacement Term Loans shall not exceed the aggregate principal amount of such
Refinanced Term Loans, (ii) the Applicable Margin for such Replacement Term Loans shall not
be higher than the Applicable Margin for such Refinanced Term Loans and (iii) the weighted
average life to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of such
refinancing.



If, in connection with any proposed amendment, waiver or consent pursuant to Section 11.1
hereof requiring the consent of all Lenders, the consent of Majority Lenders is obtained but the
consent of all Lenders whose consent if required is not obtained (any Lender withholding consent
being referred to as a “Non-Consenting Lender”), then, upon written notice to any
Non-Consenting Lender and the Administrative Agent, the Company shall be permitted, at its sole
expense, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign
and delegate, without recourse, all of its rights and obligations under this Agreement and the
other Loan Documents to a replacement financial institution that shall assume such obligations
(which replacement financial institution may be another Lender, if such Lender accepts such
assignment); provided, that (i) the Administrative Agent and, in the case of any assignment
of a Lender’s Revolving Commitment, each Issuing Lender shall have consented to such replacement
financial institution (such consent not to be unreasonably withheld), (ii) the Non-Consenting
Lender shall be obligated to cooperate with such replacement in accordance with the provisions of
Section 11.6 (provided that the Borrowers shall be obligated to pay the registration and processing
fee referred to therein), (iii) the replacement financial institution shall purchase, at par (or
such other price as may be agreed), all Loans and other amounts owing to
such replaced Lender on or prior to the date of replacement in accordance with Section 11.6,
and (iv) the Borrowers shall be liable to such Non-Consenting Lender under Section 2.20 if any
Eurodollar Loan owing to such Non-Consenting Lender shall be purchased other than on the last day
of the Interest Period relating thereto. In connection with the replacement of any Lender pursuant
to this paragraph, the failure by such Lender to execute and deliver assignment documentation shall
not impair the validity of the removal of such Lender, and the mandatory assignment of such
Lender’s Commitments and outstanding Loans and participations in Letters of Credit, as applicable,
shall nevertheless be effective without the execution by such Lender of such assignment
documentation.


 


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11.2. Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrowers, the Administrative Agent and the
Issuing Lenders identified below, and as set forth in an administrative questionnaire delivered to
the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:



	 	 	 
	Company and GAI:

	 	GenOn Energy, Inc.
	 

	 	GenOn Americas, Inc.
	 

	 	c/o RRI Energy, Inc.
	 

	 	1000 Main Street
	 

	 	Houston, TX 77002
	 

	 	Facsimile No.:  (832) 357-9289
	 

	 	Attention:    Andrew C. Johannesen
	 

	 	Copy to:        Michael L. Jines
	 
	 	 
	 

	 	With a copy to: William Holden
	 

	 	c/o Mirant Corporation
	 

	 	1155 Perimeter Center West
	 

	 	Atlanta, Georgia 30338-5416
	 

	 	Email: william.holden@mirant.com
	 

	 	Telephone: (678) 579-7728
	 
	 	 
	 

	 	With a copy to: Steve Nickerson
	 

	 	c/o Mirant Corporation
	 

	 	1155 Perimeter Center West
	 

	 	Atlanta, Georgia 30338-5416
	 

	 	Email: steve.nickerson@mirant.com
	 

	 	Telephone: (678) 579-6440
	 
	 	 
	Administrative Agent:

	 	JPMorgan Chase Bank, N.A.
	 

	 	1111 Fannin Street, Floor 10
	 

	 	Houston, Texas 77002
	 

	 	Attention: Loan and Agency Services
	 

	 	Fax: (713) 427-6307
	 

	 	Telephone: (713) 750-2377






 


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	JPMCB, as an Issuing Lender:

	 	JPMorgan Chase Bank, N.A.
	 

	 	10420 Highland Manner Drive
	 

	 	BL 2, Floor 4
	 

	 	Tampa, Florida 33610
	 

	 	Attention: James Alonzo
	 

	 	Email: james.alonzo@jpmchase.com
	 

	 	Fax: (813) 432-5161
	 

	 	Telephone: (813) 432-6339
	 
	 	 
	DBNY, as an Issuing Lender:

	 	Deutsche Bank AG New York Branch
	 

	 	60 Wall Street, 25th Floor
	 

	 	New York, New York 10005
	 

	 	Attention: Jack Leong
	 

	 	Email: jack.leong@db.com
	 

	 	Fax: (212) 797-0780
	 

	 	Deutsche Bank AG New York Branch






provided that any notice, request or demand to or upon the Administrative Agent, any
Issuing Lender or the Lenders shall not be effective until received.



Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Company may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.



11.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.



11.4. Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.


 


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11.5. Payment of Expenses and Taxes. (a) The Company agrees, if the Closing Date
occurs, (i) to pay or reimburse the Administrative Agent and each Issuing Lender (A) for all their
out-of-pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or therewith, and
the consummation and administration of the transactions contemplated hereby and thereby, including
the reasonable fees and disbursements of counsel to the Administrative Agent and each Issuing
Lender and filing and recording fees and expenses, with statements with respect to the foregoing to
be submitted to the Company prior to the Closing Date (in the case of amounts to be paid on the
Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as
the Administrative Agent shall deem appropriate and (B) for all of its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including the fees and disbursements of counsel to the
Administrative Agent, (ii) to pay or reimburse the Administrative Agent, Collateral Trustee, each
Issuing Lender and each Lender for all their costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan Documents and any
such other documents, in each case, during the continuance of an Event of Default, including the
fees and disbursements of counsel (including the allocated fees and expenses of in-house counsel)
to each Issuing Lender and each Lender, (iii) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes,
if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (iv) to pay, indemnify, and
hold each Lender, Issuing Lender and the Administrative Agent and their respective officers,
directors, trustees, employees, Affiliates, agents and controlling persons (each, an
“Indemnitee”) harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including
any of the foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the operations of the
Company or any of its Subsidiaries or any real property currently or formerly owned, leased,
operated or otherwise used (including properties to which wastes or other materials were sent for
treatment, storage or disposal) by the Company or any of its Subsidiaries or any of their
predecessors and the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the
foregoing in this clause (iv), collectively, the “Indemnified Liabilities”),
provided, that the Company shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the
extent permitted by applicable law, the Company agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related
to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.


 


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(b) Promptly after receipt by an Indemnitee of notice of the commencement of any claim,
litigation, investigation, responding to or proceedings against it relating to any Indemnified
Liability (“Proceedings”), such Indemnitee will, if a claim is to be made hereunder against
the Company in respect thereof, notify the Company in writing of the commencement thereof;
provided, however, that (i) the omission so to notify the Company will not relieve
it from any liability that it may have hereunder except to the extent it has been materially
prejudiced by such failure and (ii) the omission so to notify the Company will not relieve the
Company from any liability that it may have to an Indemnitee otherwise than on account hereof.
Thereafter, the Indemnitee and the Company shall consult, to the extent appropriate, with a view to
minimizing the cost to the Company of the obligations under this Section 11.5. In case any such
Proceedings are brought against any Indemnitee and it notifies the Company of the commencement
thereof, the Company will be entitled to participate therein, and, to the extent that it may elect
by written notice delivered to such Indemnitee, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnitee, provided that if the defendants in any such
Proceedings include both such Indemnitee and the Company and such Indemnitee shall have concluded
that there may be legal defenses available to it that are different from or additional to those
available to the Company, such Indemnitee shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of
such Indemnitee. Upon receipt of notice from the Company to such Indemnitee of its election so to
assume the defense of such Proceedings and approval by such Indemnitee of counsel, the Company
shall not be liable to such Indemnitee for expenses incurred by such Indemnitee in connection with
the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnitee shall
have employed separate counsel in connection with the assertion of legal defenses in accordance
with the proviso to the immediately preceding sentence (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate counsel representing the
Indemnitees who are parties to such Proceedings), (ii) the Company shall not have employed counsel
reasonably satisfactory to such Indemnitee to represent such Indemnitee within a reasonable time
after notice of commencement of the Proceedings or (iii) the Company shall have authorized in
writing the employment of counsel for such Indemnitee.



(c) The Company shall not be liable for any settlement of any Proceedings effected without its
written consent (which consent shall not be unreasonably withheld). If any settlement of any
Proceeding is consummated with the written consent of the Company or if there is a final judgment
for the plaintiff in any such Proceedings, the Company agrees to indemnify and hold harmless each
Indemnitee from and against any and all losses, claims, damages, liabilities and expenses by reason
of such settlement or judgment in accordance with the provisions of this Section 11.5(c).
Notwithstanding anything in this Section 11.5(c) to the contrary, if at any time an Indemnitee
shall have requested the Company to reimburse such Indemnitee for legal or other expenses in
connection with investigating, responding to or defending any Proceedings as contemplated by this
Section 11.5(c), the Company shall be liable for any settlement of any Proceedings effected without
its written consent if (i) such settlement is entered into more than 30 days after receipt by the
Company of such request for reimbursement and (ii) the Company shall not have reimbursed such
Indemnitee in accordance with such request prior to the date of such settlement. The Company shall
not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened Proceedings in respect of which
indemnity could have been sought
hereunder by such Indemnitee unless such settlement (i) includes an unconditional release of
such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims
that are the subject matter of such Proceedings and (ii) does not include any statement as to or
any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee.


 


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(d) All amounts due under this Section 11.5 shall be payable not later than 10 days after
written demand therefor. Statements payable by the Company pursuant to this Section 11.5 shall be
submitted to Andrew Johannesen, Vice President and Treasurer of RRI Energy (Telephone No. (832)
357-6417) (Telecopy No. (832) 357-9289), at the address of the Company set forth in Section 11.2,
or to such other Person or address as may be hereafter designated by the Company in a written
notice to the Administrative Agent. The agreements in this Section 11.5 shall survive repayment of
the Loans and all other amounts payable hereunder.



11.6. Successors and Assigns; Participations and Assignments. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of the Issuing Lender
that issues any Letter of Credit), except that (i) no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Company without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.



(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent of:




(A) the Company (such consent not to be unreasonably withheld, it being agreed
the Company shall be deemed reasonable withholding its consent to any assignment
that would become effective prior to the funding of the Term Loans),
provided that no consent of the Company shall be required for an assignment
to a Lender, an Affiliate of a Revolving Lender or an Approved Fund (as defined
below), in any case, within the same Facility or, if an Event of Default has
occurred and is continuing, any other Person (other than a competitor of the
Company, as identified in a list delivered by the Company to the Administrative
Agent, from time to time and made available to any Lender at the request of any
Lender (each, an “Identified Competitor”); and




(B) the Administrative Agent and each Issuing Lender (such consent not to be
unreasonably withheld or delayed), provided that no consent of the
Administrative Agent shall be required for assignments of Commitments and/or Loans
among Lenders, Affiliates of Lenders or Approved Funds within the same Facility, and
provided, further, that no consent of any Issuing Lender shall be
required for an assignment of Term Loans only.


 


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(ii) Assignments shall be subject to the following additional conditions:




(A) except in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent) shall not be less than (1) $1,000,000, in the case of
assignments under the Term Facility and (2) $10,000,000, in the case of assignments
under the Revolving Facility, unless in each case each of the Company and the
Administrative Agent otherwise consent (such consent, in the case of the Company,
not to be unreasonably withheld or delayed); provided that such amounts
shall be aggregated in respect of each Lender and its Affiliates or Approved Funds,
if any;




(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; provided that only one such fee shall be payable
to the Administrative Agent in connection with simultaneous assignments by a Lender
to two or more related Approved Funds; provided, further, that no
such processing or recordation fee shall be payable to the Administrative Agent
prior to the funding of the Term Loans;




(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire; and




(D) without the prior written consent of the Administrative Agent, no
assignment shall be made to a prospective Assignee that bears a relationship to the
Company described in Section 108(e)(4) of the Code, except as permitted by Section
2.15(g).



For the purposes of this Section 11.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender or (d) the Company or any of its Affiliates.



(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 11.5 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
Section 11.6 shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.


 


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(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive
absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Lenders and the
Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
With respect to any Lender, the transfer of the Commitments of such Lender and the rights to the
principal of, and the interest on, any Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register maintained by the Administrative Agent
with respect to ownership of such Commitments and Loans. The Register shall be available for
inspection by the Borrowers, the Issuing Lenders and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.



(c) (i) Any Lender may, without the consent of either Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including all or a portion of
its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (C) the Borrowers, the Administrative
Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement, (D)
without the prior written consent of the Administrative Agent, no assignment shall be made to a
prospective Assignee that bears a relationship to a Borrower described in Section 108(e)(4) of the
Code and (E) in the case of any participation sold to an Identified Competitor (or potential
participation offered to a prospective Participant that is an Identified Competitor), such Lender
shall not provide any information concerning the Loan Parties that such Lender is required to keep
confidential under the Loan Documents (notwithstanding that such confidential information may
generally be shared with other Participants that are not Identified Competitors). Any agreement
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement



 


96









 






may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence
of Section 11.1 and directly affects such Participant or (2) requires the consent of all Lenders.
Subject to paragraph (c)(ii) of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of, and subject to the limitations of, Sections 2.16, 2.17 and 2.20 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. Each Lender that sells a participation shall, acting solely for
this purpose as an agent of the Borrowers, maintain a register on which it enters the name and
address of each Participant to whom such Lender sells participations and the principal amounts (and
stated interest) of each participant’s interest in the Loans or other obligations under this
Agreement (the “Participant Register”). As between the Lender and such Participant, the
entries in the Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary.



(ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrowers’ prior written consent. No Participant shall be entitled to the benefits
of Section 2.17 unless such Participant complies with Sections 2.17(e) and (f) as if it were a
Lender.



(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.



(e) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.



(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of either Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 11.6(b). Each of
the Borrowers, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.


 


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11.7. Adjustments; Set-off. (a) Except to the extent that this Agreement expressly
permits for payments to be made, directed or allocated to a particular Lender or to the Lenders
under a particular Facility, if any Lender (a “Benefitted Lender”) shall receive any
payment of all or part of the Obligations owing to it, or receive any Collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(g), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations owing to such other
Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or shall provide such
other Lenders with the benefits of any such collateral, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of
the Lenders; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery, but without interest.



(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to either Borrower, any such notice being expressly waived by
each Borrower to the extent permitted by applicable law, upon any amount becoming due and payable
by the Borrowers hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits, Debt or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrowers, as the case may be. Each Lender agrees promptly to notify the Company
and the Administrative Agent after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



11.8. Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Company and the Administrative Agent.



11.9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



11.10. Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrowers, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.


 


98









 





11.11. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



11.12. Submission To Jurisdiction; Waivers. Each Borrower hereby irrevocably and
unconditionally:




(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;




(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Borrower at its address set forth in Section 11.2 or at such
other address of which the Administrative Agent shall have been notified pursuant thereto;




(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.




11.13. Acknowledgements. Each Borrower hereby acknowledges that:




(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to either Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrowers, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and




(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrowers and the Lenders.


 


99









 





11.14. Releases of Guarantees and Liens. (a) Notwithstanding anything to the
contrary contained herein or in any other Loan Document, each of the Administrative Agent and the
Collateral Trustee are hereby irrevocably authorized by each Lender (without requirement of notice
to or consent of any Lender except as expressly required by Section 11.1) to take any action
requested by the Company having the effect of releasing any Collateral or guarantee obligations (i)
to the extent necessary to permit consummation of any transaction not prohibited by any Loan
Document (it being agreed, without limiting the foregoing, that such release shall be permitted
with respect to any Subsidiary Guarantor if, after giving effect to any such transaction or
designation as an Unrestricted Subsidiary, such Person would not be required to become a Guarantor
Subsidiary pursuant to Section 6.7) or that has been consented to in accordance with Section 11.1
or (ii) under the circumstances described in paragraph (b) below. The Administrative Agent and the
Collateral Trustees agree to take such actions as are reasonably requested by the Company and
permitted by this Section 11.14.



(b) At such time as the Loans, the Reimbursement Obligations and the other obligations under
the Loan Documents (other than obligations under or in respect of Swap Agreements) shall have been
paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding
(or any outstanding Letters of Credit shall have been fully cash collateralized), the Collateral
shall be released from the Liens created by the Security Documents, and the Security Documents and
all obligations (other than those expressly stated to survive such termination) of the
Administrative Agent, the Collateral Trustee and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by any Person.



11.15. Confidentiality. Each of the Administrative Agent and each Lender agrees to
keep confidential all non-public information provided to it by any Loan Party, the Administrative
Agent or any Lender pursuant to or in connection with this Agreement that is designated by the
provider thereof as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to the Administrative
Agent, any other Lender or any Affiliate thereof, (b) subject to an agreement to comply with the
provisions of this Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, trustees, agents, attorneys, accountants and other professional advisors or
those of any of its Affiliates, (d) upon the request or demand of any Governmental Authority, (e)
in response to any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if requested or required to do so in connection
with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to the
National Association of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document.



11.16. WAIVERS OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


100









 





11.17. Delivery of Addenda. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent an Addendum duly executed by such Lender.



11.18.  Termination by the Company Prior to Closing Date or for Failure of Closing Date to
Occur. The Commitments of the Lenders hereunder shall expire and this Agreement shall
terminate if either:



(a) the Company elects to terminate this Agreement at any time prior to the Closing Date (it
being understood that the Company has the option to so terminate this Agreement); or



(b) the Closing Date shall not occur on or prior to December 31, 2010; provided,
however, if prior to December 31, 2010, the Company shall extend the deadline for the
consummation of the Merger pursuant to Section 7.1(b) of the Merger Agreement to a date falling
after December 31, 2010 and falling on or prior to March 31, 2011 (such date, the “Extended
Expiration Date”), then if Revolving Lenders holding not less than $750,000,000 of Revolving
Commitments consent to such extension, the Term Commitment of each Term Lender, the commitments of
each Issuing Lender that consents to such extension and the Revolving Commitment of each Revolving
Lender that consents to such extension shall expire and this Agreement shall terminate if the
Closing Date shall not occur on or prior to the Extended Expiration Date rather than December 31,
2010;



provided, further, however, with respect to both clause (x) and clause (y)
above, Sections 11.11, 11.12, 11.16 and the liability of the Borrowers for any Term Commitment Fees
accruing under Section 2.6 and for the payment and reimbursement of expenses under Section 11.5
shall survive such expiration and termination.


 


101









 





IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	RRI ENERGY, INC.

 	 
	 	By:  	/s/ Andrew Johannesen
 	 
	 	 	Name:  	Andrew Johannesen 	 
	 	 	Title:  	Vice President and Treasurer 	 



Credit Agreement Signature Page




 












 





IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and
delivered by its proper and duly authorized officers as of the Closing Date.



	 	 	 	 	 
	 	MIRANT AMERICAS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	 	 
	 	 	(To be signed at the close of the Merger)	 



Credit Agreement Signature Page




 


 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,
as

Administrative Agent, an Issuing Lender and a Lender

 	 
	 	By:  	/s/ Juan J. Javellana
 	 
	 	 	Name:  	Juan J. Javellana 	 
	 	 	Title:  	Vice President 	 



	 	 	 	 	 
	 	J.P. MORGAN SECURITIES LLC, as Co-Lead Arranger and Joint Bookrunner

 	 
	 	By:  	/s/ Mark Radin
 	 
	 	 	Name:  	Mark Radin 	 
	 	 	Title:  	Executive Director 	 



Credit Agreement Signature Page




 


 









 





	 	 	 	 	 
	 	CREDIT SUISSE SECURITIES
(USA) LLC, as
 Co-Syndication Agent, Co-Lead Arranger and Joint Bookrunner

 	 
	 	By:  	/s/ Ray Wood
 	 
	 	 	Name:  	Ray Wood 	 
	 	 	Title:  	Managing Director 	 



Credit Agreement Signature Page




 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bill O’Daly
	 	/s/ Christopher Reo Day	 	 
	 

	 	 	 	 

Name: Bill O’Daly
	 	 

Christopher Reo Day
	 	 
	 

	 	 	 	Title:   Director
	 	Associate	 	 






Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	DEUTSCHE BANK SECURITIES INC., as
 Co-Syndication Agent, Co-Lead Arranger and Joint Bookrunner

 	 
	 	By:  	/s/ Kevin Sherlock
 	 
	 	 	Name:  	Kevin Sherlock 	 
	 	 	Title:  	Managing Director 	 
	 	 	 	 	 
	 	By:  	                                              /s/ Sandeep Desai
 	 
	 	 	Name:  	Sandeep Desai 	 
	 	 	Title:  	Director 	 



Credit Agreement Signature Page




 


 









 







	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,
 as an Issuing Lender and a Lender

 	 
	 	By:  	/s/  Marcus M. Tarkington
 	 
	 	 	Name:  	Marcus M. Tarkington 	 
	 	 	Title:  	Director 	 
	 	 	 	 	 
	 	By:  	                                              /s/ Paul O’Leary
 	 
	 	 	Name:  	Paul O’Leary 	 
	 	 	Title:  	Director 	 



Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA, as Co-Lead Arranger, Joint Bookrunner, Co-Documentation Agent and a Lender

 	 
	 	By:  	/s/ Alexis Maged
 	 
	 	 	Name:  	Alexis Maged 	 
	 	 	Title:  	Authorized Signatory 	 



Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	MORGAN STANLEY SENIOR FUNDING,
INC.,
 as Co-Lead Arranger, Joint Bookrunner,
 Co-Documentation Agent and a Lender

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Vice President 	 



Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Authorized Signatory 	 



Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	ROYAL BANK OF CANADA, as a Lender

 	 
	 	By:  	/s/ Meredith Majesty
 	 
	 	 	Name:  	Meredith Majesty 	 
	 	 	Title:  	Authorized Signatory 	 



Credit Agreement Signature Page





 


 









 







	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as
 Co-Lead Arranger and a Lender

 	 
	 	By:  	/s/ Simon Mockford
 	 
	 	 	Name:  	Simon Mockford 	 
	 	 	Title:  	Managing Director 	 



Credit Agreement Signature Page





 


 











 




SCHEDULE 1.1A




Commitments




	 	 	 	 	 	 	 	 	 
	Lenders	 	Term Loan Commitment	 	 	Revolving Commitment	 
	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	700,000,000.00	 	 	$	158,000,000.00	 
	Credit Suisse AG, Cayman
Islands Branch
	 	 	—	 	 	$	125,000,000.00	 
	Deutsche Bank AG New York
Branch
	 	 	—	 	 	$	125,000,000.00	 
	Goldman Sachs Bank USA
	 	 	—	 	 	$	125,000,000.00	 
	Morgan Stanley Senior
Funding, Inc.
	 	 	—	 	 	$	85,000,000.00	 
	Royal Bank of Canada
	 	 	—	 	 	$	65,000,000.00	 
	The Royal Bank of Scotland plc
	 	 	—	 	 	$	65,000,000.00	 
	Morgan Stanley Bank
	 	 	—	 	 	$	40,000,000.00	 
	 	 	 	 	 	 	 
	Total
	 	$	700,000,000.00	 	 	$	788,000,000.00	 
	 	 	 	 	 	 	 





 


 









 





SCHEDULE 1.1B




Mortgaged Property




	 	 	 
	Project / Property Name	 	Location
	Aurora

	 	2909 North Eola Road, Aurora, DuPage County, Illinois 60502
	 
	 	 
	Avon Lake

	 	33570 Lake Road, Avon Lake, Lorain County, Ohio 44012
	 
	 	 
	Brunot Island

	 	2515 Preble Avenue, Pittsburgh, Allegheny County,

Pennsylvania 15233
	 
	 	 
	Cheswick (including Lefever
Road Flyash Facility and
Monarch Mine Dewatering
Facility)

	 	100 Pittsburgh Street, Springdale, Allegheny County,

Pennsylvania 15144
	 
	 	 
	Choctaw

	 	2446 MS Hwy. 407, West French Camp, Choctaw County,
Mississippi 39745
	 
	 	 
	Coolwater

	 	37000 East Santa Fe Street, Daggett, San Bernardino County,

California 92327
	 
	 	 
	Ellwood

	 	30 Las Armas Road, Goleta, Santa Barbara County, California

90117
	 
	 	 
	Elrama

	 	30 Duquesne Light Drive, Elrama, Pennsylvania 15038
	 
	 	 
	Hunterstown

	 	1731 Hunterstown Road, Gettysburg (Straban Township), Adams

County, Pennsylvania 17325
	 
	 	 
	New Castle

	 	Route 168 South, Taylor, Lawrence County, Pennsylvania 16160
	 
	 	 
	Niles

	 	1047 Belmont Avenue, Niles, Trumbull County, Ohio 44446
	 
	 	 
	Ormond Beach

	 	6635 South Edison Drive, Oxnard, Ventura County, California

93033
	 
	 	 
	Seward

	 	595 Plant Road, New Florence (East Wheatfield Township),

Indiana County, Pennsylvania 15944
	 
	 	 
	Shelby

	 	344A Rural Route 1, Centerline Road, Neoga, Shelby County,

Illinois 62447
	 
	 	 
	Contra Costa Generating Plant

	 	3201 Wilbur Avenue, Antioch, Contra Costa County,

California 945091






 



	 	 	 
	1	 	The Contra Costa parcel is subject to a pending
subdivision proceeding and, upon subdivision, a 27 acre parcel thereof will be
assigned to Mirant Marsh Landing LLC as described in Schedule 8.6(l).



 


1









 





	 	 	 
	Project / Property Name	 	Location
	Pittsburg Generating Plant

	 	696 West 10th Street, Pittsburg, Contra Costa

County, California 94565
	 
	 	 
	Collinsville

	 	Solano County, California (vacant land)
	 
	 	 
	Canal

	 	9 Freezer Road, Sandwich, Massachusetts 02563
	 
	 	 
	Kendall

	 	265 1st Street, Cambridge, Massachusetts 02142
	 
	 	 
	Martha’s Vineyard

	 	208 Vineyard Haven Road, Oak Bluffs, Massachusetts 02557

Fire Lane 5 West Side, West Tisbury, Massachusetts 02575





 


2









 





SCHEDULE 1.1C




Immaterial Subsidiaries




	 	 	 
	Name of Subsidiary	 	Jurisdiction
	San Gabriel Power Generation, LLC

	 	Delaware
	RRI Energy Solutions East, LLC

	 	Delaware
	RRI Energy Channelview LP

	 	Delaware
	RRI Energy Channelview (Delaware) LLC

	 	Delaware
	RRI Energy Channelview (Texas), LLC

	 	Delaware
	RRI Energy Services Desert Basin, LLC

	 	Delaware
	RRI Energy Services Channelview LLC

	 	Delaware
	Orion Power New York, L.P.

	 	Delaware
	Orion Power New York LP, LLC

	 	Delaware
	Orion Power New York GP, Inc.

	 	Delaware
	Mirant Lovett, LLC

	 	Delaware







 


3









 







SCHEDULE 1.1D




Unrestricted Subsidiaries




	 	 	 
	Name of Subsidiary	 	Jurisdiction
	RRI Energy Foundation, Inc.

	 	Texas
	CEPA Slipform Power System Limited (Philippines)

	 	Philippines
	Coyote Springs 2, LLC

	 	Delaware
	MC Asset Recovery, LLC

	 	Delaware
	Mirant AP Investments Limited

	 	British Virgin Islands
	Mirant Asia-Pacific Construction (Hong Kong) Limited

	 	Hong Kong
	Mirant Asia-Pacific Ventures, LLC

	 	Delaware
	Mirant (Bermuda), LTD

	 	Bermuda
	Mirant Capital, Inc.

	 	Delaware
	Mirant Fund 2001, LLC

	 	Delaware
	Mirant International Investments, Inc.

	 	Delaware
	Mirant Marsh Landing, LLC

	 	Delaware
	Mirant Navotas Corporation

	 	Philippines
	Mirant (Navotas II) Corporation

	 	Philippines
	Mirant Tank Farm, LLC

	 	Delaware
	Mirant Willow Pass, LLC

	 	Delaware
	Mirant Wrightsville Investments, Inc.

	 	Delaware
	Mirant Wrightsville Management, Inc.

	 	Delaware
	Sual Construction Corporation

	 	Philippines
	Wrightsville Development Funding, L.L.C.

	 	Delaware
	Wrightsville Power Facility, L.L.C.

	 	Delaware







 


4









 







SCHEDULE 4.15(a)




UCC Filing Jurisdictions




	 	 	 
	Name of Loan Party	 	Jurisdiction
	GenOn Energy, Inc.

	 	Delaware
	GenOn Americas, Inc.

	 	Delaware
	Orion Power Holdings, Inc.

	 	Delaware
	Orion Power Midwest, L.P.

	 	Delaware
	Orion Power Midwest LP, LLC

	 	Delaware
	Orion Power Midwest GP, Inc.

	 	Delaware
	Orion Power Operating Services MidWest, Inc.

	 	Delaware
	RRI Energy Asset Management, LLC

	 	Delaware
	RRI Energy Broadband, Inc.

	 	Delaware
	RRI Energy California Holdings, LLC

	 	Delaware
	RRI Energy Communications, Inc.

	 	Delaware
	RRI Energy Corporate Services, LLC

	 	Delaware
	RRI Energy Florida, LLC

	 	Delaware
	RRI Energy Key/Con Fuels, LLC

	 	Delaware
	RRI Energy Northeast Generation, Inc.

	 	Delaware
	RRI Energy Northeast Holdings, Inc.

	 	Delaware
	RRI Energy Power Generation, Inc.

	 	Delaware
	RRI Energy Sabine (Delaware), Inc.

	 	Delaware
	RRI Energy Sabine (Texas), Inc.

	 	Delaware
	RRI Energy Services, Inc.

	 	Delaware
	RRI Energy Trading Exchange, Inc.

	 	Delaware
	RRI Energy Ventures, Inc.

	 	Delaware
	RRI Energy West, Inc.

	 	Delaware
	RRI Energy Wholesale Generation, LLC

	 	Delaware






 


5









 





	 	 	 
	Name of Loan Party	 	Jurisdiction
	Mirant Americas Procurement, Inc.

	 	Delaware
	Mirant California, LLC

	 	Delaware
	Mirant Canal, LLC

	 	Delaware
	Mirant Corporation

	 	Delaware
	Mirant Delta, LLC

	 	Delaware
	Mirant Dickerson Development, LLC

	 	Delaware
	Mirant Intellectual Asset Management and Marketing, LLC

	 	Delaware
	Mirant Kendall, LLC

	 	Delaware
	Mirant New York Services, LLC

	 	Delaware
	Mirant North America, LLC

	 	Delaware
	Mirant Power Purchase, LLC

	 	Delaware
	Mirant Potrero, LLC

	 	Delaware
	Mirant Services, LLC

	 	Delaware
	Mirant Special Procurement, Inc.

	 	Delaware
	MNA Finance Corp.

	 	Delaware







 


6









 







SCHEDULE 4.17




Subsidiaries





	1.	 	Subsidiaries of Company.





	 	 	 	 	 	 	 
	 	 	 	 	Percentage of Capital	 
	Name of Subsidiary	 	Jurisdiction	 	Stock Owned	 
	Orion Power Holdings, Inc.
	 	Delaware	 	 	100	%
	Orion Power Midwest, L.P.
	 	Delaware	 	 	100	%
	Orion Power Midwest LP, LLC
	 	Delaware	 	 	100	%
	Orion Power Midwest GP, Inc.
	 	Delaware	 	 	100	%
	Orion Power New York, L.P.
	 	Delaware	 	 	100	%
	Orion Power New York LP, LLC
	 	Delaware	 	 	100	%
	Orion Power New York GP, Inc.
	 	Delaware	 	 	100	%
	Orion Power Operating Services MidWest, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Asset Management, LLC
	 	Delaware	 	 	100	%
	RRI Energy Broadband, Inc.
	 	Delaware	 	 	100	%
	RRI Energy California Holdings, LLC
	 	Delaware	 	 	100	%
	RRI Energy Channelview LP
	 	Delaware	 	 	100	%
	RRI Energy Channelview (Delaware) LLC
	 	Delaware	 	 	100	%
	RRI Energy Channelview (Texas), LLC
	 	Delaware	 	 	100	%
	RRI Energy Services Channelview LLC
	 	Delaware	 	 	100	%
	RRI Energy Communications, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Corporate Services, LLC
	 	Delaware	 	 	100	%
	RRI Energy Florida, LLC
	 	Delaware	 	 	100	%
	RRI Energy Foundation, Inc.
	 	Texas	 	 	100	%
	RRI Energy Key/Con Fuels, LLC
	 	Delaware	 	 	100	%
	RRI Energy Holdings, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Mid-Atlantic Power Holdings, LLC
	 	Delaware	 	 	100	%
	RRI Energy Mid-Atlantic Power Services, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Northeast Generation, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Northeast Holdings, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Northeast Management Company
	 	Pennsylvania	 	 	100	%
	RRI Energy Power Generation, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Sabine (Delaware), Inc.
	 	Delaware	 	 	100	%
	RRI Energy Sabine (Texas), Inc.
	 	Delaware	 	 	100	%
	RRI Energy Services Desert Basin, LLC
	 	Delaware	 	 	100	%
	RRI Energy Services, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Solutions East, LLC
	 	Delaware	 	 	100	%
	RRI Energy Trading Exchange, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Ventures, Inc.
	 	Delaware	 	 	100	%
	RRI Energy West, Inc.
	 	Delaware	 	 	100	%
	RRI Energy Wholesale Generation, LLC
	 	Delaware	 	 	100	%
	San Gabriel Power Generation, LLC
	 	Delaware	 	 	100	%





 


7









 






	2.	 	Subsidiaries of Mirant Corporation as of the date hereof (which after the completion on
the Closing Date of the transactions contemplated by the Credit Agreement, will become
Subsidiaries of the Company).





	 	 	 	 	 	 	 
	 	 	 	 	Percentage of Capital	 
	Name of Subsidiary	 	Jurisdiction	 	Stock Owned	 
	CEPA Slipform Power System Limited (Philippines)
	 	Philippines	 	 	100	%
	Coyote Springs 2, LLC
	 	Delaware	 	 	100	%
	Hudson Valley Gas Corporation
	 	New York	 	 	100	%
	MC Asset Recovery, LLC
	 	Delaware	 	 	100	%
	MCM Energy Ventures, Inc.
	 	Georgia	 	 	100	%
	Mirant (Bermuda), LTD
	 	Bermuda	 	 	100	%
	Mirant Americas Generation, LLC
	 	Delaware	 	 	100	%
	Mirant Americas Procurement, Inc.
	 	Delaware	 	 	100	%
	Mirant AP Investments Limited
	 	British Virgin Islands	 	 	100	%
	Mirant Asia-Pacific Construction (Hong Kong) Limited
	 	Hong Kong	 	 	100	%
	Mirant Asia-Pacific Ventures, LLC
	 	Delaware	 	 	100	%
	Mirant Americas, Inc.
	 	Delaware	 	 	100	%
	Mirant Bowline, LLC
	 	Delaware	 	 	100	%
	Mirant California, LLC
	 	Delaware	 	 	100	%
	Mirant Canal, LLC
	 	Delaware	 	 	100	%
	Mirant Capital, Inc.
	 	Delaware	 	 	100	%
	Mirant Chalk Point, LLC
	 	Delaware	 	 	100	%
	Mirant Delta, LLC
	 	Delaware	 	 	100	%
	Mirant Dickerson Development, LLC
	 	Delaware	 	 	100	%
	Mirant Energy Trading, LLC
	 	Delaware	 	 	100	%
	Mirant Fund 2001, LLC
	 	Delaware	 	 	100	%
	Mirant Gibbons Road, LLC
	 	Delaware	 	 	100	%
	Mirant Intellectual Asset Management and Marketing, LLC
	 	Delaware	 	 	100	%
	Mirant International Investments, Inc.
	 	Delaware	 	 	100	%
	Mirant Kendall, LLC
	 	Delaware	 	 	100	%
	Mirant Lovett, LLC
	 	Delaware	 	 	100	%
	Mirant Marsh Landing, LLC
	 	Delaware	 	 	100	%






 


8









 





	 	 	 	 	 	 	 
	 	 	 	 	Percentage of Capital	 
	Name of Subsidiary	 	Jurisdiction	 	Stock Owned	 
	Mirant Marsh Landing Holdings, LLC
	 	Delaware	 	 	100	%
	Mirant MD Ash Management, LLC
	 	Delaware	 	 	100	%
	Mirant Mid-Atlantic, LLC
	 	Delaware	 	 	100	%
	Mirant Navotas Corporation
	 	Philippines	 	 	100	%
	Mirant (Navotas II) Corporation
	 	Philippines	 	 	100	%
	Mirant New York, LLC
	 	Delaware	 	 	100	%
	Mirant New York Services, LLC
	 	Delaware	 	 	100	%
	Mirant North America, LLC
	 	Delaware	 	 	100	%
	Mirant Piney Point, LLC
	 	Delaware	 	 	100	%
	Mirant Potomac River, LLC
	 	Delaware	 	 	100	%
	Mirant Potrero, LLC
	 	Delaware	 	 	100	%
	Mirant Power Purchase, LLC
	 	Delaware	 	 	100	%
	Mirant Services, LLC
	 	Delaware	 	 	100	%
	Mirant Special Procurement, Inc.
	 	Delaware	 	 	100	%
	Mirant Tank Farm, LLC
	 	Delaware	 	 	100	%
	Mirant Trust I
	 	Delaware	 	 	100	%
	Mirant Willow Pass, LLC
	 	Delaware	 	 	100	%
	Mirant Wrightsville Investments, Inc.
	 	Delaware	 	 	100	%
	Mirant Wrightsville Management, Inc.
	 	Delaware	 	 	100	%
	MNA Finance Corp.
	 	Delaware	 	 	100	%
	Sual Construction Corporation
	 	Philippines	 	 	100	%
	Wrightsville Development Funding, L.L.C.
	 	Delaware	 	 	51	%
	Wrightsville Power Facility, L.L.C.
	 	Delaware	 	 	51	%







 


9









 







SCHEDULE 8.3(k)




Existing Liens





	1.	 	Liens securing the Existing Credit Agreements, the Existing RRI Secured Notes, the
Existing PEDFA Bonds and related documents, which Liens will be released on the Closing
Date.
	 
	2.	 	Liens on assets of REMA and its subsidiaries created in connection with the August 2000
sale-leaseback of REMA’s interests in the Keystone, Conemaugh and Shawville generating
facilities.
	 
	3.	 	Capital lease consisting of the Facilities Services Agreement entered into on March 29,
2004 but effective as of October 1, 2003, by and among Atlantic City Electric Company,
Conemaugh Power LLC, Constellation Power Source Generation, Inc., Exelon Generation
Company, PSEG Fossil LLC, Reliant Energy Mid-Atlantic Power Holdings, LLC, UGI Development
Company and Conemaugh Fuels, LLC.
	 
	4.	 	Liens securing capitalized lease obligations of Mirant Chalk Point, LLC.
	 
	5.	 	In order to secure its obligations under the eleven Conditional Indemnity Agreements
executed by MIRMA in favor of each of the eleven Owner Lessors (identified below), MIRMA
(formerly known as Southern Energy Mid-Atlantic, LLC) as “mortgagor” executed in favor of
the applicable Owner Lessor an Indemnity Mortgage (identified below) which encumbered,
among other assets, the above-ground improvements defined as the “Dickerson Facility” and
the “Morgantown Facility.” Each of the Indemnity Mortgages is described in greater detail
below:





	 	 	 	 	 	 	 
	Indemnity Mortgage	 	Owner Lessor	 	Date Executed
	1.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L1)

	 	Dickerson OL1 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	2.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L2)

	 	Dickerson OL2 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	3.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L3)

	 	Dickerson OL3 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	4.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L4)

	 	Dickerson OL4 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	5.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L1)

	 	Morgantown OL1 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	6.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L2)

	 	Morgantown OL2 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	7.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L3)

	 	Morgantown OL3 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	8.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L4)

	 	Morgantown OL4 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	9.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L5)

	 	Morgantown OL5 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	10.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L6)

	 	Morgantown OL6 LLC
	 	12/19/00
	 	 	 
	 	 	 	 
	11.	 	Indemnity Mortgage, Security
Agreement and Fixture Filing (L7)

	 	Morgantown OL7 LLC
	 	12/19/00





 


10









 





Related UCC filings below:



	 	 	 	 	 	 	 
	Filing Locations	 	Debtor	 	Secured Party	 	Description of Filing
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Dickerson OL1 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Dickerson facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Dickerson OL2 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Dickerson facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Dickerson OL3 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Dickerson facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Dickerson OL4 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Dickerson facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL1 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL2 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL3 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL4 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL5 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.






 


11









 





	 	 	 	 	 	 	 
	Filing Locations	 	Debtor	 	Secured Party	 	Description of Filing
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant Mid-Atlantic, LLC
	 	Morgantown OL6 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.
	 
	 	 	 	 	 	 
	DE — SOS


MD — Department of
Assessments and
Taxation

	 	Mirant
Mid-Atlantic, LLC
	 	Morgantown OL7 LLC
	 	Indemnity finance
statement covering
collateral including
assets relating to
Morgantown facility.







	6.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Shared Facilities Agreement, dated as of December 18, 2000,
among Southern Energy Mid-Atlantic, LLC, Dickerson OL1 LLC, Dickerson OL2 LLC, Dickerson
OL3 LLC and Dickerson OL4 LLC (the “Dickerson Shared Facilities Agreement”)) and
contingent security interests in and easement on an undivided interest in the “Owner Lessor
Shared Facilities” (as defined in the Dickerson Shared Facilities Agreement), in each case
granted pursuant to the Amended and Restated Second Amended Joint Chapter 11 Plan of
Reorganization for Mirant Corporation and its Affiliated Debtors, dated December 9, 2005,
In re Mirant Corporation, et al., Debtors (the “Plan of Reorganization”) in
connection with and upon the assumption of the MIRMA Leases (as defined in the Plan of
Reorganization) and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Dickerson OL1 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Montgomery County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Dickerson OL1 LLC, as grantee.
	 
	7.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in Dickerson Shared Facilities Agreement) and contingent security
interests in and easement on an undivided interest in the “Owner Lessor Shared Facilities”
(as defined in the Dickerson Shared Facilities Agreement), in each case granted pursuant to
the Plan of Reorganization in connection with and upon the assumption of the MIRMA Leases
and to be documented post closing under (i) a deed of trust, security agreement and fixture
filing and related agreements and recorded in Montgomery County, Maryland among MIRMA as
trustor, Chicago Title Insurance Company (or such other trustee), as trustee, and Dickerson
OL2 LLC as the beneficiary, (ii) a UCC-1 financing statement filed with the Delaware
Secretary of State and (iii) an easement agreement recorded in Montgomery County, Maryland
entered into by MIRMA and Mirant MD Ash Management, LLC, as grantors, in favor of Dickerson
OL2 LLC, as grantee.
	 
	8.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in Dickerson Shared Facilities Agreement) and contingent security
interests in and easement on an undivided interest in the “Owner Lessor Shared Facilities”
(as defined in the Dickerson Shared Facilities Agreement), in each case granted pursuant to
the Plan of Reorganization in connection with and upon the assumption of the MIRMA Leases
and to be documented post closing under (i) a deed of trust, security agreement and fixture
filing and related agreements and recorded in Montgomery County, Maryland among MIRMA as
trustor, Chicago Title Insurance Company (or such other trustee), as trustee, and Dickerson
OL3 LLC as the beneficiary, (ii) a UCC-1 financing statement filed with the Delaware
Secretary of State and (iii) an easement agreement recorded in Montgomery County, Maryland
entered into by MIRMA and Mirant MD Ash Management, LLC, as grantors, in favor of Dickerson
OL3 LLC, as grantee.




 


12









 





	9.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in Dickerson Shared Facilities Agreement) and contingent security
interests in and easement on an undivided interest in the “Owner Lessor Shared Facilities”
(as defined in the Dickerson Shared Facilities Agreement), in each case granted pursuant to
the Plan of
Reorganization in connection with and upon the assumption of the MIRMA Leases and to be
documented post closing under (i) a deed of trust, security agreement and fixture filing and
related agreements and recorded in Montgomery County, Maryland among MIRMA as trustor,
Chicago Title Insurance Company (or such other trustee), as trustee, and Dickerson OL4 LLC
as the beneficiary, (ii) a UCC-1 financing statement filed with the Delaware Secretary of
State and (iii) an easement agreement recorded in Montgomery County, Maryland entered into
by MIRMA and Mirant MD Ash Management, LLC, as grantors, in favor of Dickerson OL4 LLC, as
grantee.
	 
	10.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Shared Facilities Agreement, dated as of December 18, 2000,
among Southern Energy Mid-Atlantic, LLC, Morgantown OL1 LLC, Morgantown OL2 LLC, Morgantown
OL3 LLC, Morgantown OL4 LLC, Morgantown OL5 LLC, Morgantown OL6 LLC and Morgantown OL4 LLC
(the “Morgantown Shared Facilities Agreement”)) and contingent security interests
in and easement on an undivided interest in the “Owner Lessor Shared Facilities” (as
defined in the Morgantown Shared Facilities Agreement), in each case granted pursuant to
the Plan of Reorganization in connection with and upon the assumption of the MIRMA Leases
and to be documented post closing under (i) a deed of trust, security agreement and fixture
filing and related agreements and recorded in Montgomery County, Maryland among MIRMA as
trustor, Chicago Title Insurance Company (or such other trustee), as trustee, and
Morgantown OL1 LLC as the beneficiary, (ii) a UCC-1 financing statement filed with the
Delaware Secretary of State and (iii) an easement agreement recorded in Charles County,
Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as grantors, in favor of
Morgantown OL1 LLC, as grantee.
	 
	11.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement), in each case
granted pursuant to the Plan of Reorganization in connection with and upon the assumption
of the MIRMA Leases and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Morgantown OL2 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Charles County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Morgantown OL2 LLC, as grantee.
	 
	12.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement), in each case
granted pursuant to the Plan of Reorganization in connection with and upon the assumption
of the MIRMA Leases and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Morgantown OL3 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Charles County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Morgantown OL3 LLC, as grantee.




 


13









 





	13.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the
Morgantown Shared Facilities Agreement), in each case granted pursuant to the Plan of
Reorganization in connection with and upon the assumption of the MIRMA Leases and to be
documented post closing under (i) a deed of trust, security agreement and fixture filing and
related agreements and recorded in Montgomery County, Maryland among MIRMA as trustor,
Chicago Title Insurance Company (or such other trustee), as trustee, and Morgantown OL4 LLC
as the beneficiary, (ii) a UCC-1 financing statement filed with the Delaware Secretary of
State and (iii) an easement agreement recorded in Charles County, Maryland entered into by
MIRMA and Mirant MD Ash Management, LLC, as grantors, in favor of Morgantown OL4 LLC, as
grantee.
	 
	14.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement), in each case
granted pursuant to the Plan of Reorganization in connection with and upon the assumption
of the MIRMA Leases and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Morgantown OL5 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Charles County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Morgantown OL5 LLC, as grantee.
	 
	15.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement), in each case
granted pursuant to the Plan of Reorganization in connection with and upon the assumption
of the MIRMA Leases and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Morgantown OL6 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Charles County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Morgantown OL6 LLC, as grantee
	 
	16.	 	Security interests in and easement on an undivided interest in the “SEMA Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement) and contingent
security interests in and easement on an undivided interest in the “Owner Lessor Shared
Facilities” (as defined in the Morgantown Shared Facilities Agreement), in each case
granted pursuant to the Plan of Reorganization in connection with and upon the assumption
of the MIRMA Leases and to be documented post closing under (i) a deed of trust, security
agreement and fixture filing and related agreements and recorded in Montgomery County,
Maryland among MIRMA as trustor, Chicago Title Insurance Company (or such other trustee),
as trustee, and Morgantown OL7 LLC as the beneficiary, (ii) a UCC-1 financing statement
filed with the Delaware Secretary of State and (iii) an easement agreement recorded in
Charles County, Maryland entered into by MIRMA and Mirant MD Ash Management, LLC, as
grantors, in favor of Morgantown OL7 LLC, as grantee.




 


14









 





	17.	 	Memorandum of Agreement, dated November 6, 2009, by and between Mirant Potrero LLC
(“Potrero”) and the City and County of San Francisco, a charter city and county
(the “City”), comprising covenants running with the land and memorializing the
terms of the Settlement Agreement, dated as of August 13, 2009, between the City and
Potrero.
	 
	18.	 	The former Lovett plant, which has been demolished, has several miles of water pipeline
that were used to serve the plant. However, the plant’s former owner (Orange & Rockland
Utility Company) entered into license agreements with local homeowners to permit them to
tap into the water pipeline to access water service from United Water Company (“United
Water”). While the license agreements allow Mirant Lovett, LLC (“Mirant
Lovett”) to discontinue service through the pipeline, the homeowners have no other
practical access to a water line. United Water desires to take ownership of the water line
for a nominal amount ($10.00) to provide the continued service and assume the licenses with
local homeowners. The proposed documentation includes (a) a Bill of Sale for the pipeline,
under which Mirant Lovett transfers the pipeline in an “as is” condition; (b) an Assignment
and Assumption Agreement, under which United Water will assume and agree to perform the
licenses with homeowners; and (c) a License for United Water to use certain easements held
by Mirant Lovett for the water pipeline.
	 
	19.	 	The Village of Haverstraw is seeking recreational easements in respect of certain
parcels of real property owned by Mirant Bowline LLC (“Mirant Bowline”), and Mirant
Bowline intends to transfer certain parcels or provide easements to the Village of
Haverstraw in respect thereof.




 


15









 





SCHEDULE 8.6(l)




Existing Investments





	1.	 	In furtherance of, and without limiting Section 8.6(g) of the Credit Agreement, the
Company hereby discloses the following expected transactions in furtherance of the
development and construction of the Marsh Landing Generating Station (“Marsh Landing
GS”):






	 	(a)	 	Several intercompany transactions are expected to occur in connection with the
development and construction of the Marsh Landing GS, a new 760 megawatt natural-gas
fired electricity generating facility to be located at the site of the existing Contra
Costa Power Plant (“CCPP”) near Antioch, California.
	 
	 	(c)	 	Mirant Delta, LLC (“Mirant Delta”) owns the CCPP and the existing CCPP
site. Mirant Delta is in the process of obtaining approval from Contra Costa County to
subdivide the 27-acre Marsh Landing GS site from the larger CCPP site, thereby creating
two separate legal parcels. The subdivision is expected to be finalized in late
September 2010. Mirant Delta plans to sell the 27-acre Marsh Landing GS site to Mirant
Marsh Landing, LLC (“Mirant Marsh Landing”) for fair market value. As part of the
sale, Mirant Delta will convey easements and related rights to Mirant Marsh Landing
that will allow Mirant Marsh Landing to use portions of the CCPP site for various
purposes relating to construction, operation and maintenance of the Marsh Landing GS,
including easements for a natural gas pipeline and metering station, electrical
interconnection facilities, new groundwater supply wells, a groundwater supply
pipeline, a wastewater discharge pipeline, a potable water connection to the local
water supply system, ingress/egress, and stormwater discharge. Also as part of the
sale, Mirant Delta and Mirant Marsh Landing will enter into an agreement to share
certain facilities and services, including a common stormwater outfall and firewater
conveyance system, and on-site security services. Mirant Marsh Landing may convey
easements to Mirant Delta to allow Mirant Delta to continue existing uses of the Marsh
Landing GS site.
	 
	 	(b)	 	It is anticipated that Mirant Services, Inc. or its successor will enter into
an agreement with Mirant Marsh Landing with respect to corporate services and employees
in substantially the same format as agreements with other subsidiaries. Mirant
California, LLC will sell certain emissions reductions credits to Mirant Marsh Landing
for fair market value. Those credits will be surrendered to the Bay Area Air Quality
Management District as required by the Marsh Landing GS environmental permits.
	 
	 	(d)	 	Agreements for the transactions summarized above are expected to be signed in
late September 2010 or early October 2010. The transactions will close prior to the
start of construction of the Marsh Landing GS, which could occur as early as December
2010.






 


16











 




EXHIBIT A




FORM OF

GUARANTEE AGREEMENT





 


 









 




GUARANTEE AGREEMENT




made by




the Guarantors party hereto




in favor of




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent




Dated as of [•], 2010



 


 









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 1. DEFINED TERMS
	 	 	2	 
	1.1 Definitions
	 	 	2	 
	1.2 Other Definitional Provisions
	 	 	2	 
	 
	 	 	 	 
	SECTION 2. GUARANTEE
	 	 	2	 
	2.1 Guarantee
	 	 	2	 
	2.2 Right of Contribution
	 	 	3	 
	2.3 No Subrogation
	 	 	3	 
	2.4 Amendments, etc. with respect to the Obligations
	 	 	4	 
	2.5 Guarantee Absolute and Unconditional
	 	 	4	 
	2.6 Reinstatement
	 	 	5	 
	2.7 Payments
	 	 	5	 
	 
	 	 	 	 
	SECTION 3. MISCELLANEOUS
	 	 	5	 
	3.1 Authority of Administrative Agent
	 	 	5	 
	3.2 Amendments in Writing
	 	 	5	 
	3.3 Notices
	 	 	5	 
	3.4 No Waiver by Course of Conduct; Cumulative Remedies
	 	 	5	 
	3.5 Successors and Assigns
	 	 	5	 
	3.6 Set-Off
	 	 	6	 
	3.7 Counterparts
	 	 	6	 
	3.8 Severability
	 	 	6	 
	3.9 Section Headings
	 	 	6	 
	3.10 Integration
	 	 	6	 
	3.11 GOVERNING LAW
	 	 	6	 
	3.12 Submission To Jurisdiction; Waivers
	 	 	6	 
	3.13 Acknowledgements
	 	 	7	 
	3.14 Additional Guarantors
	 	 	7	 
	3.15 Releases
	 	 	7	 
	3.16 WAIVER OF JURY TRIAL
	 	 	7	 






SCHEDULES




	 	 	 
	Schedule 1
	 	Notice Addresses







ANNEXES




	 	 	 
	Annex 1
	 	Assumption Agreement






 


i 









 





GUARANTEE AGREEMENT




GUARANTEE AGREEMENT, dated as of [•], 2010, made by each of the Subsidiaries of GenOn Energy,
Inc. (formerly known as RRI Energy, Inc.), a Delaware corporation (the “Company”) (collectively,
and together with any other entity that may become a party hereto as provided herein, the
“Guarantors”), in favor of JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, the “Administrative Agent”) for the banks and other financial institutions or
entities (the “Lenders”) from time to time parties to the Credit Agreement, dated as of
September 20, 2010 (as amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among the Company, GenOn Americas, Inc.
(formerly known as Mirant Americas, Inc.), a Delaware corporation (“GAI”; each of GAI and
the Company, a “Borrower” and, together, the “Borrowers”), the Administrative
Agent, the Lenders, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as
co-syndication agents, and Goldman Sachs Credit Partners L.P. and Morgan Stanley Senior Funding,
Inc., as co-documentation agents.



W I T N E S S E T H:




WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of April 11, 2010 (the
“Merger Agreement”), by and among RRI Energy, Inc. (“RRI”), a Delaware corporation,
RRI Energy Holdings, Inc. (“Merger Sub”), a Delaware corporation and wholly owned
subsidiary of RRI, and Mirant Corporation (“Mirant”), a Delaware corporation, Merger Sub
will merge with and into Mirant (the “Merger”) concurrently with the initial funding of
Loans under the Credit Agreement, with Mirant surviving the Merger as a wholly-owned subsidiary of
RRI;



WHEREAS, in connection with the Merger, RRI will change its name to GenOn Energy, Inc. and
certain existing Debt of Mirant North America, LLC, a Delaware limited liability company, and RRI,
as described in Section 5.22 of the Merger Agreement, will be refinanced and related fees and
expenses will be paid (the Merger, together with the refinancing and payment of related fees and
expenses in connection therewith, the “Transaction”);



WHEREAS, in connection with the Transaction, the Borrowers, the Lenders, the Administrative
Agent and the other agents and entities party thereto are entering into the Credit Agreement, which
provides, among other things, for the borrowing of Loans and the issuance of Letters of Credit, in
each case for uses as contemplated by the Credit Agreement;



WHEREAS, the Borrowers are members of an affiliated group of companies that includes each
other Guarantor;



WHEREAS, in addition to the refinancing of Debt described above, the proceeds of the
extensions of credit under the Credit Agreement will be used in part to enable the Borrowers to
make valuable transfers to one or more of the other Guarantors in connection with the operation of
their respective businesses;



WHEREAS, the Borrowers and the other Guarantors are engaged in related businesses, and each
Guarantor will derive substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement; and



WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Guarantors shall have
executed and delivered this Agreement to the Administrative Agent;


 


 









 





NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the transactions contemplated by the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrowers thereunder, and to induce
the Specified Hedging Counterparties to enter into Hedging Agreements, each Guarantor hereby agrees
with the Administrative Agent, as follows:



SECTION 1. DEFINED TERMS




1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.




(b) The following terms shall have the following meanings:



“Agreement”: this Guarantee Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.



“Guaranteed Parties”: the Administrative Agent, the Lenders and the Specified Hedging
Counterparties.



1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.



(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



SECTION 2. GUARANTEE




2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Guaranteed
Parties and their respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.



(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Subsidiary Guarantor hereunder and under the other Loan Documents shall in no
event exceed (i) the amount which can be guaranteed by such Subsidiary Guarantor under applicable
federal and state laws relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2) or (ii) the amount which can be guaranteed by such
Subsidiary Guarantor under the Mirant Americas Generation, LLC Seventh Supplemental Indenture dated
as of January 3, 2006, if and to the extent any such limitations are applicable.



(c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed
the amount of the liability of such Guarantor hereunder without impairing the guarantee contained
in this Section 2 or affecting the rights and remedies of any Administrative Agent hereunder.



(d) The guarantee contained in this Section 2 shall remain in full force and effect until all
the Obligations and the obligations of each Guarantor under the guarantee contained in this Section
2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding (other
than any Letter of Credit that has been cash collateralized in accordance with the Credit Agreement
or supported with a back-to-back letter of credit reasonably acceptable to the relevant Issuing
Lender) and the Commitments shall be terminated, notwithstanding that from time to time during the
term of the Credit Agreement either Borrower, or both Borrowers, may be free from any Obligations.


 


2









 





(e) No payment made by either Borrower, any of the Subsidiary Guarantors, any other guarantor
or any other Person or received or collected by any Guaranteed Party from any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by
such Guarantor in respect of the Obligations or any payment received or collected from such
Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum
liability of such Guarantor hereunder until the Obligations are paid in full, no Letter of Credit
shall be outstanding (other than any Letter of Credit that has been cash collateralized in
accordance with the Credit Agreement or supported with a back-to-back letter of credit reasonably
acceptable to the relevant Issuing Lender) and the Commitments are terminated.



2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor
hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 2.3. The provisions of this
Section 2.2 shall in no respect limit the obligations and liabilities of any Guarantor to any
Guaranteed Party, and each Guarantor shall remain liable to such Guaranteed Party for the full
amount guaranteed by such Guarantor hereunder.



2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any
set-off or application of funds of any Guarantor by any Guaranteed Party, no Guarantor shall be
entitled to enforce or otherwise exercise any right of subrogation to any of the rights of any
Guaranteed Party against either Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Collateral Trustee, the Administrative Agent or any other
Guaranteed Party for the payment of the Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from either Borrower or any other Guarantor in respect of
payments made by such Guarantor hereunder, until all amounts owing to the Guaranteed Parties by the
Borrowers on account of the Obligations are paid in full, no Letter of Credit shall be outstanding
(other than any Letter of Credit that has been cash collateralized in accordance with the Credit
Agreement or supported with a back-to-back letter of credit reasonably acceptable to the relevant
Issuing Lender) and the Commitments are terminated. If any amount shall be paid to any Guarantor
on account of such subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by such Guarantor in trust for the Guaranteed Parties,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt by
such Guarantor, be turned over to the Collateral Trustee in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Collateral Trustee, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as specified in the Credit
Agreement or Collateral Trust Agreement, as applicable. If all Obligations due and owing shall
have been paid in full, no Letter of Credit shall be outstanding (other than any Letter of Credit
that has been cash collateralized in accordance with the Credit Agreement or supported with a
back-to-back letter of credit reasonably acceptable to the relevant Issuing Lender) and the
Commitments shall have been terminated, each of the Guaranteed Parties will, at such Guarantor’s
reasonable request and expense, execute and deliver to such Guarantor appropriate documents,
without recourse and without representation and warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Obligations resulting from any payment made by
such Guarantor pursuant to this Agreement.


 


3









 





2.4 Amendments, etc. with respect to the Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment of any of the
Obligations made by any Guaranteed Party may be rescinded by such Guaranteed Party and any of the
Obligations continued, and the Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any Guaranteed Party, and the Credit
Agreement and the other Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Majority Lenders or all Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of offset at any time
held by any Guaranteed Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. No Guaranteed Party shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the Obligations or for the guarantee
contained in this Section 2 or any property subject thereto.



2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by any Guaranteed Party upon the guarantee contained in this Section 2 or acceptance of
the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all dealings between the Borrowers and
any of the Subsidiary Guarantors, on the one hand, and the Guaranteed Parties, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Borrowers or any of the
Subsidiary Guarantors with respect to the Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any time or from time to
time held by any Guaranteed Party, (b) any defense, set-off or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be asserted by either Borrower
or any other Person against any Guaranteed Party, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of a Borrower for the Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any
other instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, any Guaranteed Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have
against any Borrower, any other Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and any failure by any
Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any
payments from any Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any release of any
Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of any Guaranteed Party against any Guarantor. For the purposes hereof “demand”
shall include the commencement and continuance of any legal proceedings.


 


4









 





2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by any Guaranteed
Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower
or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any Subsidiary Guarantor or any
substantial part of its property, or otherwise, all as though such payments had not been made.



2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to
the Administrative Agent.



SECTION 3. MISCELLANEOUS




3.1 Authority of Administrative Agent. Each Guarantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Agreement with respect to any action taken
by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any
right or remedy provided for herein or resulting or arising out of this Agreement shall be governed
by the Credit Agreement or the Collateral Trust Agreement, as applicable, and by such other
agreements with respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Guarantors, the Administrative Agent shall be conclusively presumed to
be acting as agent for the Guaranteed Parties with full and valid authority so to act or refrain
from acting, and no Guarantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.



3.2 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 11.1 of the
Credit Agreement.



3.3 Notices. All notices, requests and demands to or upon the Administrative Agent or any
Guarantor hereunder shall be effected in the manner provided for in Section 11.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon any Guarantor
shall be addressed to such Guarantor at its notice address set forth on Schedule 1.



3.4 No Waiver by Course of Conduct; Cumulative Remedies. No Guaranteed Party shall by any
act (except by a written instrument pursuant to Section 3.2), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of
any Guaranteed Party, any right, power or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power or privilege hereunder shall preclude any other
or further exercise thereof or the exercise of any other right, power or privilege. A waiver by
any Guaranteed Party of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which such Guaranteed Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by law.



3.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Guaranteed Parties and their
respective successors and assigns; provided that no Guarantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior written consent of
the Administrative Agent.


 


5









 





3.6 Set-Off. Each Guarantor hereby irrevocably authorizes each Guaranteed Party at any
time and from time to time, without notice to any Borrower or any other Guarantor, any such notice
being expressly waived by each Guarantor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), or any part thereof in such amounts as
such Guaranteed Party may elect, in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Guaranteed Party to or for the credit or the account
of such Guarantor, against and on account of the obligations and liabilities of such Guarantor to
such Guaranteed Party hereunder and claims of every nature and description of such Guaranteed Party
against such Guarantor, in any currency, whether arising hereunder, under the Credit Agreement, any
other Loan Document or otherwise, as such Guaranteed Party may elect, whether or not such
Guaranteed Party has made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. Each Guaranteed Party shall notify the Company and the
Administrative Agent promptly of any such set-off and the application made by such Guaranteed Party
of the proceeds thereof, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Guaranteed Party under this Section
3.6 are in addition to other rights and remedies (including, without limitation, other rights of
set-off) which such Guaranteed Party may have.



3.7 Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of an executed signature page of
this Agreement by email or facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.



3.8 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.



3.9 Section Headings. The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.



3.10 Integration. This Agreement and the other Loan Documents represent the agreement of
the Guarantors and the Guaranteed Parties with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the Administrative Agent
or any other Guaranteed Party relative to subject matter hereof and thereof not expressly set forth
or referred to herein or in the other Loan Documents.



3.11 GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



3.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby irrevocably and
unconditionally:



(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;


 


6









 





(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Guarantor at its address referred to in Section 3.3 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;



(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.



3.13 Acknowledgements. Each Guarantor hereby acknowledges that:



(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;



(b) neither the Administrative Agent nor any other Guaranteed Party has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Guarantors, on the one hand, and
the Guaranteed Parties, on the other hand, in connection herewith or therewith is solely that of
debtor and creditor; and



(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Guaranteed Parties or among the Guarantors
and the Guaranteed Parties.



3.14 Additional Guarantors. Each Subsidiary of the Company that is required to become a
party to this Agreement pursuant to Section 6.7 of the Credit Agreement shall become a Guarantor
for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.



3.15 Releases. (a) Upon the satisfaction of the conditions set forth in Section 11.14(b)
of the Credit Agreement, this Agreement and all obligations (other than those expressly stated to
survive such termination) of each Guaranteed Party and each Guarantor hereunder shall terminate,
all without delivery of any instrument or performance of any act by any party.



(b) A Guarantor shall be released from its obligations hereunder in the event that the
provisions of clause (B) or (C) of Section 5.1(a) of the Collateral Trust Agreement shall be
satisfied with respect to such Guarantor.



3.16 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


7









 





IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	[INSERT NAMES OF SUBSIDIARY GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Guarantee Agreement




 


 









 





Schedule 1




NOTICE ADDRESSES OF GUARANTORS



 


 









 





Annex 1 to

Guarantee Agreement




ASSUMPTION AGREEMENT, dated as of            
         , 20__,
made by                (the “Additional Guarantor”), in favor of JPMorgan Chase
Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the
banks and other financial institutions or entities (the “Lenders”) parties to the Credit
Agreement referred to below. All capitalized terms not defined herein shall have the meaning
ascribed to them in such Credit Agreement.



W I T N E S S E T H:




WHEREAS, RRI Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware
corporation (the “Company”), from and after the Closing Date, Mirant Americas, Inc. (to be
renamed GenOn Americas, Inc. on the Closing Date), a Delaware corporation (“GAI”; each of
GAI and the Company, a “Borrower” and, together, the “Borrowers”), the Lenders and
the Administrative Agent have entered into a Credit Agreement, dated as of September 20, 2010 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”);



WHEREAS, in connection with the Credit Agreement, the Borrowers and certain of their
Affiliates (other than the Additional Guarantor) have entered into the Guarantee Agreement, dated
as of [•], 2010 (as amended, supplemented or otherwise modified from time to time, the
“Guarantee Agreement”) in favor of the Administrative Agent;



WHEREAS, the Credit Agreement requires the Additional Guarantor to become a party to the
Guarantee Agreement; and



WHEREAS, the Additional Guarantor has agreed to execute and deliver this Assumption Agreement
in order to become a party to the Guarantee Agreement;




NOW, THEREFORE, IT IS AGREED:



1. Guarantee Agreement. By executing and delivering this Assumption Agreement, the
Additional Guarantor as provided in Section 3.14 of the Guarantee Agreement, hereby becomes a party
to the Guarantee Agreement as a Guarantor thereunder with the same force and effect as if
originally named therein as a Guarantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor thereunder. The
information set forth in Annex 1-A hereto is hereby added to the information set forth in Schedule
1 of the Guarantee Agreement.



2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


 









 





IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 
	 	[ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


2









 





Annex 1-A to

Assumption Agreement




Supplement to Schedule 1





 


 











 







EXHIBIT B




FORM OF

SECURITY AGREEMENT





 


 









 




SECURITY AGREEMENT




made by




GENON ENERGY, INC. (FORMERLY KNOWN AS RRI ENERGY, INC.),




GENON AMERICAS, INC. (FORMERLY KNOWN AS MIRANT AMERICAS, INC.),




and certain of their Subsidiaries




in favor of




U.S. BANK NATIONAL ASSOCIATION,




as Collateral Trustee




Dated as of [•], 2010



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. DEFINED TERMS
	 	 	2	 
	1.1 Definitions
	 	 	2	 
	1.2 Other Definitional Provisions
	 	 	5	 
	 
	 	 	 	 
	SECTION 2. GRANT OF SECURITY INTEREST
	 	 	6	 
	 
	 	 	 	 
	SECTION 3. REPRESENTATIONS AND WARRANTIES
	 	 	6	 
	3.1 No Other Liens
	 	 	6	 
	3.2 Jurisdiction of Organization; Chief Executive Office
	 	 	7	 
	3.3 Farm Products
	 	 	7	 
	3.4 Investment Property
	 	 	7	 
	3.5 Intellectual Property
	 	 	7	 
	 
	 	 	 	 
	SECTION 4. COVENANTS
	 	 	7	 
	4.1 Maintenance of Perfected Security Interest; Further Documentation
	 	 	7	 
	4.2 Changes
in Name, etc.
	 	 	8	 
	4.3 Investment Property
	 	 	8	 
	4.4 Intellectual Property
	 	 	9	 
	 
	 	 	 	 
	SECTION 5. REMEDIAL PROVISIONS
	 	 	9	 
	5.1 Certain Matters Relating to Receivables
	 	 	9	 
	5.2 Communications with Obligors; Grantors Remain Liable
	 	 	10	 
	5.3 Pledged Stock
	 	 	10	 
	5.4 Proceeds to be Turned Over To Collateral Trustee
	 	 	11	 
	5.5 Application of Proceeds
	 	 	11	 
	5.6 Code and Other Remedies
	 	 	12	 
	5.7 Registration Rights
	 	 	12	 
	5.8 Deficiency
	 	 	13	 
	 
	 	 	 	 
	SECTION 6. THE COLLATERAL TRUSTEE
	 	 	13	 
	6.1
Collateral Trustee’s Appointment as Attorney-in-Fact, etc.
	 	 	13	 
	6.2 Duty of Collateral Trustee
	 	 	15	 
	6.3 Execution of Financing Statements
	 	 	15	 
	6.4 Authority of Collateral Trustee
	 	 	15	 
	 
	 	 	 	 
	SECTION 7. MISCELLANEOUS
	 	 	15	 
	7.1 Amendments in Writing
	 	 	15	 
	7.2 Notices
	 	 	15	 
	7.3 No Waiver by Course of Conduct; Cumulative Remedies
	 	 	16	 
	7.4 Successors and Assigns
	 	 	16	 
	7.5 Set-Off
	 	 	16	 
	7.6 Counterparts
	 	 	16	 
	7.7 Severability
	 	 	16	 
	7.8 Section Headings
	 	 	17	 
	7.9 Integration
	 	 	17	 
	7.10 GOVERNING LAW
	 	 	17	 
	7.11 Submission To Jurisdiction; Waivers
	 	 	17	 
	7.12 Acknowledgements
	 	 	17	 
	7.13 Additional Grantors
	 	 	18	 
	7.14 Releases
	 	 	18	 
	7.15 WAIVER OF JURY TRIAL
	 	 	18	 
	7.16 COLLATERAL TRUST AGREEMENT
	 	 	18	 





 


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SCHEDULES




	 	 	 
	Schedule 1
	 	Investment Property

	Schedule 2
	 	Jurisdictions of Organization and Chief Executive Offices

	Schedule 3
	 	Intellectual Property

	Schedule 4
	 	Notice Addresses

	Schedule 5
	 	Certain Excluded Assets







ANNEXES




	 	 	 
	Annex 1
	 	Assumption Agreement







 


ii 









 







SECURITY AGREEMENT




SECURITY AGREEMENT, dated as of [•], 2010, made by GenOn Energy, Inc. (formerly known as RRI
Energy, Inc.), a Delaware corporation (the “Company”), GenOn Americas, Inc. (formerly known
as Mirant Americas, Inc.), a Delaware corporation (“GAI”; each of GAI and the Company, a
“Borrower” and, together, the “Borrowers”), the other Subsidiaries of the Company
signatories hereto (together with any other entity that may become a Grantor as provided herein,
the “Grantors”), in favor of U.S. Bank National Association, as collateral trustee (in such
capacity, the “Collateral Trustee”) for the Secured Parties (as defined below), including
the banks and other financial institutions or entities (the “Lenders”) from time to time
parties to the Credit Agreement, dated as of September 20, 2010 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrowers, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
“Administrative Agent”), the Lenders, Credit Suisse Securities (USA) LLC and Deutsche Bank
Securities Inc., as co-syndication agents, and Goldman Sachs Credit Partners L.P. and Morgan
Stanley Senior Funding, Inc., as co-documentation agents.



W I T N E S S E T H:




WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of April 11, 2010 (the
“Merger Agreement”), by and among RRI Energy, Inc. (“RRI”), a Delaware corporation,
RRI Energy Holdings, Inc. (“Merger Sub”), a Delaware corporation and wholly owned
subsidiary of RRI, and Mirant Corporation (“Mirant”), a Delaware corporation, Merger Sub
will merge with and into Mirant (the “Merger”) concurrently with the initial funding of
Loans under the Credit Agreement (as defined below), with Mirant surviving the Merger as a
wholly-owned subsidiary of RRI;



WHEREAS, in connection with the Merger, RRI will change its name to GenOn Energy, Inc. and
certain existing Debt of Mirant North America, LLC, a Delaware limited liability company, and RRI,
as described in Section 5.22 of the Merger Agreement, will be refinanced and related fees and
expenses will be paid (the Merger, together with the refinancing and payment of related fees and
expenses in connection therewith, the “Transaction”);



WHEREAS, in connection with the Transaction, the Borrowers, the several banks and other
financial institutions or entities from time to time parties thereto (the “Lenders”), the
Administrative Agent and the other agents and entities party thereto, have entered into the Credit
Agreement, which provides, among other things, for the borrowing of Loans (as defined in the Credit
Agreement) and the issuance of Letters of Credit (as defined in the Credit Agreement), in each case
for uses as contemplated by the Credit Agreement;



WHEREAS, the Borrowers and the other Grantors may from time to enter into Secured Hedging
Agreements and Secured Commodity Hedging Agreements to the extent permitted (if addressed therein,
or, otherwise, not prohibited) under the Credit Agreement and the other applicable Financing
Documents, in each case which may be secured by the First Lien on all or a portion of the
Collateral pursuant to the terms of the Security Documents;



WHEREAS, the Borrowers and the other Grantors may from time to time after the date hereof
enter into agreements evidencing Debt or other obligations to the extent permitted (if addressed
therein, or, otherwise, not prohibited) under the Credit Agreement and under the other applicable
Financing Documents, in each case which may be secured by the First Lien on all or a portion of the
Collateral pursuant to the terms of the Security Documents;


 


 









 





WHEREAS, upon consummation of the Merger, the Borrowers will be members of an affiliated group
of companies that will include each other Grantor;



WHEREAS, in addition to the refinancing of Debt described above, the proceeds of the
extensions of credit under the Credit Agreement and the other Financing Documents, if any, will be
used in part to enable the Borrowers to make valuable transfers to one or more of the other
Grantors in connection with the operation of their respective businesses;



WHEREAS, the Borrowers and the other Grantors are engaged in related businesses, and each
Grantor will derive substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement and the other Financing Documents, if any; and



WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Collateral Trustee for the ratable benefit of the
Secured Parties;



NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the transactions contemplated by the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrowers thereunder, and to induce
the other Secured Parties to become holders of Secured Obligations, each Grantor hereby agrees with
the Collateral Trustee, for the ratable benefit of the Secured Parties, as follows:



SECTION 1. DEFINED TERMS




1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Collateral Trust Agreement
(including terms defined therein by reference to the Credit Agreement) and used herein shall have
the meanings given to them therein, and the following terms are used herein as defined in the New
York UCC: Accounts, Certificated Security, Chattel Paper, Commercial Tort Claims, Deposit Account,
Documents, Equipment, Farm Products, Fixtures General Intangibles, Instruments, Inventory,
Letter-of-Credit Rights and Supporting Obligations.




(b) The following terms shall have the following meanings:



“Agreement”: this Security Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.




“Business Day”: as defined in the Credit Agreement.




“Closing Date”: as defined in the Credit Agreement.




“Collateral”: as defined in Section 2.



“Collateral Account”: any collateral account established by the Collateral Trustee as
provided in Section 6.1 or 6.4.



“Contracts”: as defined in Section 5.2.



“Copyrights”: (i) all copyrights and works of authorship arising under the laws of
the United States, any other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished (including, without limitation, those listed in
Schedule 3), all registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and applications in the
United States Copyright Office, and (ii) the right to obtain all renewals thereof.


 


2









 





“Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 3), granting any right
under any Copyright, including, without limitation, the grant of rights to manufacture, distribute,
exploit and sell materials incorporating any Copyright.




“Event of Default”: as defined in the Collateral Trust Agreement.



“Excluded Assets”: (a) any lease, license, contract or agreement to which any Grantor
is a party (including any of its rights or interests thereunder) or any asset, permit or property
rights of such Grantor of any nature to the extent the grant of such security interest shall
constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title
or interest of such Grantor under such lease, license, contract, agreement, asset, permit or
property right or result in such Grantor’s loss of use of such asset or property right or (ii) a
breach or termination pursuant to the terms of such lease, license, contract, permit or agreement,
or a default under, any such lease, license, contract, agreement, permit or property right (other
than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406,
9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions) or any other
Applicable Law (including the bankruptcy code) or principles of equity);



(b) any lease, license, contract, or agreement to which any Grantor is a party (including any
of its rights or interests thereunder) or any asset, permit or property right of any nature to the
extent that any Applicable Law prohibits the creation of a security interest thereon (other than to
the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the New York UCC (or any successor provision or provisions) or any other
Applicable Law or principles of equity);



(c) any application for Trademarks and service marks filed in the United States Patent and
Trademark Office pursuant to 15 U.S.C. § 1051 Section 1(b), only to the extent that the grant of a
security interest therein would result in the abandonment, invalidation or unenforceability of such
application or rights hereunder and only until evidence of the use of such Trademark or service
mark in commerce, as defined in 15 U.S.C. Section 1127, is submitted to the United States Patent
and Trademark Office pursuant to 15 U.S.C. § 1051 Section 1(c) or 1(d), following which filing all
such applications shall automatically become Collateral;




(d) any Capital Stock (as defined in the Credit Agreement) of any Unrestricted Subsidiary;



(e) any Capital Stock of any Restricted Subsidiary (as defined in the Credit Agreement) that
is not a Guarantor (as defined in the Credit Agreement) to the extent a pledge of such Capital
Stock is prohibited under the applicable financing or lease documents of such Person or its
subsidiaries that are in effect on the Closing Date, or under any Project Finance Debt (as defined
in the Credit Agreement);



(f) any Foreign Subsidiary Voting Stock of any Foreign Subsidiary in excess of 65% of the
total outstanding Foreign Subsidiary Voting Stock of such Foreign Subsidiary incurred by such
Subsidiary;


 


3









 





(g) any deposit account the funds in which are used, in the ordinary course of business,
primarily for the payment of salaries and wages, workers’ compensation, payroll taxes, and similar
expenses;



(h) cash and cash equivalents held by any Grantor, or on the instruction of any Grantor, on
behalf of third parties, or held by any Grantor as customer margin accounts, or held as security
for any obligation owing to the Company or any of its Subsidiaries or as a deposit, or held by any
Person in connection with the Seward Facility, together with any deposit accounts in which such
balances are maintained; and




(i) such other interests set forth on Schedule 5.



“Foreign Subsidiary”: any Subsidiary organized under the laws of any jurisdiction
outside the United States of America.



“Foreign Subsidiary Voting Stock”: the voting Capital Stock of any Foreign
Subsidiary.




“Governmental Authority”: as defined in the Credit Agreement.



“Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue
at law or in equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.



“Intercompany Note”: any promissory note evidencing loans made by any Grantor to the
Company or any of its Subsidiaries.



“Investment Property”: the collective reference to (i) all “investment property” as
such term is defined in Section 9-102(a)(49) of the New York UCC and (ii) whether or not
constituting “investment property” as so defined, all Pledged Notes and all Pledged Stock.




“Issuers”: the collective reference to each issuer of any Investment Property.




“Material Adverse Effect”: as defined in the Credit Agreement.



“New York UCC”: the Uniform Commercial Code as from time to time in effect in the
State of New York.



“Patents”: (i) all letters patent of the United States, any other country or any
political subdivision thereof, all reissues and extensions thereof, including, without limitation,
any of the foregoing referred to in Schedule 3, (ii) all applications for letters patent of
the United States or any other country and all divisions, continuations and continuations-in-part
thereof, including, without limitation, any of the foregoing referred to in Schedule 3, and
including, for each of (i) and (ii), the right to make, use and/or sell the inventions disclosed or
claimed therein, and (iii) all rights to obtain any reissues or extensions of the foregoing.



“Patent License”: all written agreements naming any Grantor as licensor or licensee,
including, without limitation, those listed in Schedule 3, of any right to manufacture, use
or sell any invention covered in whole or in part by a Patent.


 


4









 





“Pledged Notes”: all promissory notes issued to or held by any Grantor (other than
promissory notes issued in connection with extensions of trade credit by any Grantor in the
ordinary course of business).



“Pledged Stock”: the shares of Capital Stock listed on Schedule 1, together
with any other shares, stock certificates, options, interests or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect.



“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New
York UCC and, in any event, shall include, without limitation, all dividends or other income from
the Investment Property, collections thereon or distributions or payments with respect thereto.



“Receivable”: any right to payment for goods sold or leased or for services rendered,
whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has
been earned by performance (including, without limitation, any Account).




“Requirement of Law”: as defined in the Credit Agreement.



“Secured Parties”: the collective reference to the Collateral Trustee, the Lenders,
each other Person holding Credit Agreement Obligations, each Secured Commodity Hedging
Counterparty, each Person holding Additional Obligations and any other Person holding Secured
Obligations.




“Securities Act”: the Securities Act of 1933, as amended.



“Trademarks”: (i) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, domain names, trade dress,
logos and other source or business identifiers, and all goodwill connected with the use of and
symbolized thereby, now existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, in the United States, any State thereof or
any other country or any political subdivision thereof, or otherwise, and all common-law rights
related thereto, including, without limitation those listed in Schedule 3, and (ii) the
right to obtain all renewals thereof.



“Trademark License”: any written agreement naming Grantor as licensor or licensee,
including, without limitation, those listed in Schedule 3, granting any right to use any
Trademark.



“Unrestricted Subsidiary”: as defined in the Credit Agreement.



1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.



(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



(c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.


 


5









 





SECTION 2. GRANT OF SECURITY INTEREST




Each Grantor hereby grants to the Collateral Trustee, for the ratable benefit of the Secured
Parties, a security interest in all of the following property now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire
any right, title or interest (collectively, the “Collateral”), as collateral security for
the prompt and complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations:



(a) all Accounts;



(b) all Chattel Paper;



(c) all Deposit Accounts;



(d) all Documents;



(e) all Equipment;



(f) all Fixtures;



(g) all General Intangibles;



(h) all Instruments;



(i) all Intellectual Property;



(j) all Inventory;



(k) all investment property (as defined in the New York UCC);



(l) all Letter-of-Credit Rights;



(m) all books and records pertaining to the Collateral; and



(n) to the extent not otherwise included, all Proceeds, Supporting Obligations and products
of any and all of the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing;



provided, however, that notwithstanding anything in this Agreement or any other
Financing Document to the contrary, this Agreement shall not constitute a grant of a security
interest in, and the Collateral shall not include any Excluded Assets.



SECTION 3. REPRESENTATIONS AND WARRANTIES




To induce the Administrative Agent and the Lenders to enter into the transactions contemplated
by the Credit Agreement and to induce the Lenders to make their respective extensions of credit to
the Borrowers thereunder, and to induce the other Secured Parties to become holders of Secured
Obligations, each Grantor hereby represents and warrants to the Secured Parties that:



3.1 No Other Liens. As of the date hereof, no financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public office, except such as have been
filed in favor of the Collateral Trustee, for the ratable benefit of the Secured Parties, pursuant
to this Agreement or as are permitted by the Credit Agreement. For the avoidance of doubt, it is
understood and agreed that any Grantor may, as part of its business, grant licenses to third
parties to use Intellectual Property owned or developed by a Grantor. For purposes of this
Agreement and the other Loan Documents, such licensing activity shall not constitute a “Lien” on
such Intellectual Property. Each Secured Party understands that any such licenses may be exclusive
to the applicable licensees, and such exclusivity provisions may limit the ability of the
Collateral Trustee to utilize, sell, lease or transfer the related Intellectual Property or
otherwise realize value from such Intellectual Property pursuant hereto.


 


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3.2 Jurisdiction of Organization; Chief Executive Office. On the date hereof, such Grantor’s jurisdiction of organization, identification number from
the jurisdiction of organization (if any), and the location of such Grantor’s chief executive
office or sole place of business or principal residence, as the case may be, are specified on
Schedule 2. Such Grantor has furnished to the Administrative Agent a certified charter,
certificate of incorporation or other organization document and good standing certificate as of a
date which is recent to the date hereof.



3.3 Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm Products.



3.4 Investment Property. The shares of Pledged Stock pledged by such Grantor hereunder constitute all the issued and
outstanding shares of all classes of the Capital Stock of each Issuer owned by such Grantor or, in
the case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign Subsidiary
Voting Stock of each relevant Issuer.



3.5 Intellectual Property. (a) As of the date hereof, no Grantor owns any material Patents, Trademarks or Copyrights,
except as set forth on Schedule 3.



(b) All Intellectual Property owned by a third party which is material to the operation of the
business of such Grantor, all of which are valid, unexpired and enforceable and do not infringe the
intellectual property rights of others except, in each case, as could not reasonably be expected to
result in a Material Adverse Effect. Each Grantor owns or has the right to use all Intellectual
Property that is material to its business as currently conducted.



SECTION 4. COVENANTS




Each Grantor covenants and agrees with the Secured Parties that, from and after the date of
this Agreement until all Secured Obligations shall have been paid in full, no Letter of Credit
shall be outstanding (other than any Letter of Credit that has been cash collateralized or
supported with a back-to-back letter of credit reasonably acceptable to the relevant Issuing
Lender) and the Commitments shall have terminated:



4.1 Maintenance of Perfected Security Interest; Further Documentation. (a) Subject to Section 4.1(d), such Grantor shall maintain the security interests created by
this Agreement as a perfected security interest having at least the priority required by the Loan
Documents and shall defend such security interests against the claims and demands of all Persons
whomsoever, subject to the rights of such Grantor under the Financing Documents to sell, transfer,
lease, license or otherwise dispose of the Collateral.



(b) Such Grantor will furnish to the Collateral Trustee, the Administrative Agent and the
other Secured Parties from time to time statements and schedules further identifying and
describing the assets and property of such Grantor and such other reports in connection therewith
as the Collateral Trustee or Administrative Agent may reasonably request, all in reasonable
detail.


 


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(c) Subject to Section 4.1(d), such Grantor shall execute any and all further documents,
agreements and instruments, and take all further action (including filing Uniform Commercial Code
and other financing statements, mortgages and deeds of trust and delivering to the Collateral
Trustee certificates representing securities pledged under the Security Documents) that may be
required under Applicable Law, or that the Collateral Trustee, Majority Lenders or the
Administrative Agent may reasonably request, in order to grant, preserve, protect and perfect the
validity and priority of the security interests created or intended to be created by the Security
Documents.



(d) Notwithstanding anything to the contrary in this Agreement or any Financing Document, no
Grantor shall be required to take any actions to (i) perfect the security interests in deposit
accounts or investment accounts; (ii) perfect any security interest in vehicles; (iii) perfect any
security interests in government contracts; (iv) create or perfect any security interests in
commercial tort claims; (v) grant or perfect any security interests under any law other than the
laws of the United States, any State thereof or the District of Columbia; (vi) perfect any
security interests in any Collateral (other than Pledged Stock of the Subsidiaries of the Company
that is certificated) by possession; or (vii) take any other steps to perfect security interests
where the cost of perfection is not reasonably justified by the practical value of the Collateral.



4.2 Changes in Name, etc. Such Grantor will furnish prompt written notice to the Collateral Trustee and
Administrative Agent of any change (i) in its corporate name, (ii) in the jurisdiction of
organization or formation or the location of its chief executive office or sole place of business
or principal residence from that referred to in Section 3.2 or (iii) its Federal Taxpayer
Identification Number. Such Grantor agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been, or will simultaneously be, made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Trustee to continue at
all times following such change to have a valid, legal and perfected security interest in all of
the Collateral as provided for herein.



4.3 Investment Property. (a) If such Grantor shall become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital Stock of any
Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any
shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the same as
the agent of the Collateral Trustee and the other Secured Parties, hold the same in trust for the
Collateral Trustee and the other Secured Parties and deliver the same forthwith to the Collateral
Trustee in the exact form received, duly indorsed by such Grantor to the Collateral Trustee, if
required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Collateral Trustee acting at the direction
of the Secured Representative for the Required Secured Parties so requests, signature guaranteed,
to be held by the Collateral Trustee, subject to the terms hereof, as additional collateral
security for the Secured Obligations. If an Event of Default shall have occurred and be
continuing, any sums paid upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to the Collateral Trustee to be held by it hereunder
as additional collateral security for the Secured Obligations, and in case any distribution of
capital shall be made on or in respect of the Investment Property or any property shall be
distributed upon or with respect to the Investment Property pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security interest in favor
of the Collateral Trustee, be delivered to the Collateral Trustee to be held by it hereunder as
additional collateral security for the Secured Obligations. If any sums of money or property so
paid or distributed in respect of the Investment Property shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered to the Collateral Trustee, hold
such money or property in trust for the Collateral Trustee and the Lenders, segregated from other
funds of such Grantor, as additional collateral security for the Secured Obligations.


 


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(b) Without the prior written consent of the Collateral Trustee, such Grantor will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any Capital Stock of any
nature or to issue any other securities convertible into or granting the right to purchase or
exchange for any Capital Stock of any nature of any Issuer, unless such Capital Stock or other
security is pledged to the Collateral Trustee hereunder or (ii) enter into any agreement or
undertaking restricting the right or ability of such Grantor or the Collateral Trustee to sell,
assign or transfer any of the Pledged Stock constituting Capital Stock of a Subsidiary or
Intercompany Notes or Proceeds thereof, other than any restrictions (x) imposed pursuant to an
agreement entered into for the direct or indirect sale or disposition of the Pledged Stock pending
the closing of such sale or disposition or (y) contained in agreements that are not more
restrictive, taken as a whole, than those applicable to the Borrowers in the Credit Agreement.



(c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property issued by it and will
comply with such terms insofar as such terms are applicable to it and (ii) the terms of Sections
5.3(c) and 5.7 shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it pursuant to Section 5.3(c) or 5.7 with respect to the Investment
Property issued by it.



4.4 Intellectual Property. (a) Such Grantor shall, consistent with its reasonable business judgment, take
commercially reasonable actions to maintain the validity of all material Intellectual Property
owned or exclusively licensed by it, except to the extent the failure to take any such action would
not reasonably be expected to have a Material Adverse Effect.



(b) If any Grantor, either by itself or through any agent, employee, licensee or designee,
shall file an application for the registration of any material Intellectual Property with the
United States Patent and Trademark Office, or the United States Copyright Office, or any similar
office or agency in any other country or political subdivision thereof, such Grantor shall report
any such filing made in any fiscal year to the Collateral Trustee and Administrative Agent
concurrently with the delivery of financial statements pursuant to Section 6.2(a) of the Credit
Agreement covering such fiscal year. Upon request of the Collateral Trustee or the Administrative
Agent, such Grantor shall execute and deliver, and have recorded, any and all agreements,
instruments, documents, and papers as the Collateral Trustee or the Administrative Agent may
reasonably request to evidence the Collateral Trustee’s security interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.



SECTION 5. REMEDIAL PROVISIONS




5.1 Certain Matters Relating to Receivables. (a) If an Event of Default shall have occurred and be continuing, the Collateral Trustee,
acting at the direction of the Secured Representative for the Required Secured Parties, shall have
the right to make test verifications of the Receivables in any manner and through any medium that
it reasonably considers advisable, and each Grantor shall furnish all such assistance and
information as the Collateral Trustee, acting at the direction of the Secured Representative for
the Required Secured Parties, may require in connection with such test verifications.



(b) Unless an Event of Default shall have occurred and be continuing and the Collateral
Trustee, acting at the direction of the Secured Representative for the Required Secured Parties,
shall have given notice to the relevant Grantor of the Collateral Trustee’s intent to exercise its
corresponding rights pursuant to next sentence, each Grantor may collect such Grantor’s
Receivables. If notified by the Collateral Trustee, acting at the direction of the Secured
Representative for the Required Secured Parties, at any time after the occurrence and during the
continuance of an Event of Default, any payments of Receivables, when collected by any Grantor,
(i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in
the exact form received, duly indorsed by such Grantor to the Collateral Trustee if required,
acting at the direction of the Secured Representative for the Required Secured Parties, in a
Collateral Account maintained under the sole dominion and control of the Collateral Trustee,
subject to withdrawal by the Collateral Trustee for the account of the Secured Parties as provided
in Section 5.5, and (ii) until so turned over, shall be held by such Grantor in trust for the
Collateral Trustee and the other Secured Parties, segregated from other funds of such Grantor.
Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.


 


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5.2 Communications with Obligors; Grantors Remain Liable. (a) The Collateral Trustee in its own name or in the name of others may at any time after
the occurrence and during the continuance of an Event of Default communicate with obligors under
the Receivables and with parties to any material contract or agreement to which any Grantor is a
party (the “Contracts”) to verify with them to the Collateral Trustee’s satisfaction the
existence, amount and terms of any Receivables or Contracts.



(b) Upon the request of the Collateral Trustee, acting at the direction of the Secured
Representative for the Required Secured Parties, at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall notify obligors on the Receivables and
parties to the Contracts that the Receivables and the Contracts have been assigned to the
Collateral Trustee for the ratable benefit of the Secured Parties and that payments in respect
thereof shall be made directly to the Collateral Trustee.



(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables and Contracts to observe and perform all the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of any agreement
giving rise thereto. Neither the Collateral Trustee nor any other Secured Party shall have any
obligation or liability under any Receivable (or any agreement giving rise thereto) or Contract by
reason of or arising out of this Agreement or the receipt by the Collateral Trustee or any other
Secured Party of any payment relating thereto, nor shall the Collateral Trustee or any other Secured Party be obligated in
any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable
(or any agreement giving rise thereto) or Contract, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.



5.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and be continuing and the Collateral
Trustee, acting at the direction of the Secured Representative for the Required Secured Parties,
shall have given notice to the relevant Grantor of the Collateral Trustee’s intent to exercise its
corresponding rights pursuant to Section 5.3(b), each Grantor shall be permitted to receive all
cash dividends paid in respect of the Pledged Stock and all payments made in respect of the Pledged
Notes, to the extent not otherwise prohibited under the Credit Agreement, and to exercise all
voting and corporate or other organizational rights with respect to the Investment Property;
provided, however, that no vote shall be cast or corporate or other organizational
right exercised or other action taken which would result in any violation of any provision of the
Credit Agreement, this Agreement or any other Security Document.


 


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(b) If an Event of Default shall occur and be continuing and the Collateral Trustee, acting
at the direction of the Secured Representative for the Required Secured Parties, shall give notice
of its intent to exercise any of such rights to the relevant Grantor or Grantors, (i) the
Collateral Trustee shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application thereof to the Secured
Obligations in accordance with Section 5.5 hereof, and (ii) any or all of the Investment Property
shall be registered in the name of the Collateral Trustee or its nominee, and the Collateral
Trustee or its nominee, acting at the direction of the Secured Representative for the Required
Secured Parties, may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Investment Property at any meeting of shareholders of the relevant Issuer or Issuers or
otherwise and (y) any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to such Investment Property as if it were the absolute
owner thereof (including, without limitation, the right to exchange at its discretion any and all
of the Investment Property upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate or other organizational structure of any Issuer, or upon
the exercise by any Grantor or the Collateral Trustee of any right, privilege or option pertaining
to such Investment Property, and in connection therewith, the right to deposit and deliver any and
all of the Investment Property with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Collateral Trustee, acting at the
direction of the Secured Representative for the Required Secured Parties, may determine), all
without liability except to account for property actually received by it, but the Collateral
Trustee shall have no duty to any Grantor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.



(c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property
pledged by such Grantor hereunder to (i) comply with any instruction received by it from the
Collateral Trustee, acting at the direction of the Secured Representative for the Required Secured
Parties, in writing that (x) states that an Event of Default has occurred and is continuing and (y)
is otherwise in accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected
in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other
payments with respect to the Investment Property directly to the Collateral Trustee.



5.4 Proceeds to be Turned Over To Collateral Trustee. In addition to the rights of the Collateral Trustee and the Secured Parties specified in
Section 5.1 with respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of cash and checks shall be held by
such Grantor in trust for the Collateral Trustee and the other Secured Parties, segregated from
other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the Collateral Trustee in the exact form received by such Grantor (duly indorsed by such Grantor to
the Collateral Trustee, if required). All Proceeds received by the Collateral Trustee hereunder
shall be held by the Collateral Trustee in a Collateral Account maintained under its sole dominion
and control. All Proceeds while held by the Collateral Trustee in a Collateral Account (or by such
Grantor in trust for the Collateral Trustee and the other Secured Parties) shall continue to be
held as collateral security for all the Secured Obligations and shall not constitute payment
thereof until applied as provided in Section 5.5.



5.5 Application of Proceeds. The Collateral Trustee shall apply all or any part of Proceeds constituting Collateral,
whether or not held in any Collateral Account, to payment of the Secured Obligations in the order
at the times and in the manner provided in the Collateral Trust Agreement.


 


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5.6 Code and Other Remedies. If an Event of Default shall occur and be continuing, the Collateral Trustee, on behalf of
the Secured Parties, may exercise, acting at the direction of the Secured Representative for the
Required Secured Parties, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the New York UCC or any other
Applicable Law. Without limiting the generality of the foregoing, the Collateral Trustee, without
demand of performance or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances, acting at the direction of the Secured Representative for the Required Secured
Parties, forthwith collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing),
in one or more parcels at public or private sale or sales, at any exchange, broker’s board or
office of the Collateral Trustee or any other Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The Collateral Trustee or any other
Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so
sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby
waived and released. Each Grantor further agrees, at the Collateral Trustee’s request, acting at
the direction of the Secured Representative for the Required Secured Parties, to assemble the
Collateral and make it available to the Collateral Trustee at places which the Collateral Trustee
shall reasonably select, whether at such Grantor’s premises or elsewhere. The Collateral Trustee
shall apply the net proceeds of any action taken by it pursuant to this Section 5.6, after
deducting all reasonable costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Trustee and the other Secured Parties hereunder,
including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in
whole or in part of the Secured Obligations, in such order as is provided in Section 5.5, and only
after such application and after the payment by the Collateral Trustee of any other amount required
by any provision of law, including, without limitation, Section 9-615(a)(3) of the New York UCC, need the
Collateral Trustee account for the surplus, if any, to any Grantor. To the extent permitted by
Applicable Law, each Grantor waives all claims, damages and demands it may acquire against the
Collateral Trustee or any other Secured Party arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10 days before such
sale or other disposition.



5.7 Registration Rights. (a) If the Collateral Trustee shall determine, acting at the direction of the Secured
Representative for the Required Secured Parties, to exercise its right to sell any or all of the
Pledged Stock pursuant to Section 5.6, and if in the reasonable opinion of the Collateral Trustee
it is necessary or advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will cause the Issuer
thereof to (i) execute and deliver, and cause the directors and officers of such Issuer to execute
and deliver, all such instruments and documents, and do or cause to be done all such other acts as
may be, in the reasonable opinion of the Collateral Trustee, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the Securities Act, (ii)
use its best efforts to cause the registration statement relating thereto to become effective and
to remain effective for a period of one year from the date of the first public offering of the
Pledged Stock, or that portion thereof to be sold, and (iii) make all amendments thereto and/or to
the related prospectus which, in the reasonable opinion of the Secured Representative for the
Required Secured Parties, are necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the Securities and Exchange Commission
applicable thereto. Each Grantor agrees to cause such Issuer that is a Subsidiary of the Company
to comply with the provisions of the securities or “Blue Sky” laws of any and all jurisdictions
which the Collateral Trustee, acting at the direction of the Secured Representative for the
Required Secured Parties, shall designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.


 


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(b) Each Grantor recognizes that the Collateral Trustee may be unable to effect a public sale
of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act
and applicable state securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged to agree, among
other things, to acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Collateral Trustee shall be under no obligation to
delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer
thereof to register such securities for public sale under the Securities Act, or under applicable
state securities laws, even if such Issuer would agree to do so.



(c) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant
to this Section 5.7 valid and binding and in compliance with any and all other applicable
Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained
in this Section 5.7 will cause irreparable injury to the Collateral Trustee and the other Secured
Parties, that the Collateral Trustee and the other Secured Parties have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant contained in this
Section 5.7 shall be specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no
Event of Default has occurred and is continuing under the Credit Agreement.



5.8 Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Secured Obligations and the fees and
disbursements of any attorneys employed by the Collateral Trustee or any other Secured Party to
collect such deficiency.



SECTION 6. THE COLLATERAL TRUSTEE




6.1 Collateral Trustee’s Appointment as Attorney-in-Fact, etc. (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Trustee and
any officer or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor
and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Trustee
the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:




(i) in the name of such Grantor or its own name, or otherwise, take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or Contract or with respect to any other Collateral and file
any claim or take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Collateral Trustee for the purpose of collecting any and all such
moneys due under any Receivable or Contract or with respect to any other Collateral whenever
payable;




(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any
and all agreements, instruments, documents and papers as the Collateral Trustee or the
Administrative Agent may request to evidence the Collateral Trustee’s security interest in such
Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto
or represented thereby;


 


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(iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement and
pay all or any part of the premiums therefor and the costs thereof;




(iv) execute, in connection with any sale provided for in Section 5.6 or 5.7, any
indorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and




(v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Collateral Trustee
or as the Collateral Trustee shall direct; (2) ask or demand for, collect, and receive payment
of and receipt for, any and all moneys, claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Collateral Trustee may deem appropriate; (7) assign any Copyright,
Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent
or Trademark pertains), throughout the world for such term or terms, on such conditions, and in
such manner, as the Collateral Trustee shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as though the Collateral Trustee were the absolute
owner thereof for all purposes, and do, at the Collateral Trustee’s option and such Grantor’s
expense, at any time, or from time to time, all acts and things which the Collateral Trustee
deems necessary to protect, preserve or realize upon the Collateral and the Collateral Trustee’s
security interests, for the benefit of the Secured Parties, therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.



Anything in this Section 6.1(a) to the contrary notwithstanding, the Collateral Trustee agrees
that it will not exercise any rights under this Section 6.1(a) unless an Event of Default shall
have occurred and be continuing.



(b) If any Grantor fails to perform or comply with any of its agreements contained herein,
the Collateral Trustee, at its option, but without any obligation so to do, may, acting at the
direction of the Secured Representative for the Required Secured Parties, perform or comply, or
otherwise cause performance or compliance, with such agreement.



(c) The expenses of the Collateral Trustee incurred in connection with actions undertaken as
provided in this Section 6.1, together with interest thereon at a rate per annum equal to the
highest rate per annum at which interest would then be payable on any category of past due ABR
Loans under and as defined in the Credit Agreement, from the date of payment by the Collateral
Trustee to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Collateral Trustee on demand.



(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until all Secured Obligations shall have been paid in
full, no Letter of Credit shall be outstanding (other than any Letter of Credit that has been cash
collateralized or supported with a back-to-back letter of credit reasonably acceptable to the
relevant Issuing Lender), the Commitments shall have terminated and the security interests created
hereby are released.


 


14









 





6.2 Duty of Collateral Trustee. The Collateral Trustee’s sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Collateral Trustee deals with similar
property for its own account. Neither the Collateral Trustee, any other Secured Party nor any of
their respective officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the Collateral or any part
thereof. The powers conferred on the Collateral Trustee and the Secured Parties hereunder are
solely to protect the Collateral Trustee’s interests in the Collateral, for the benefit of the
Secured Parties, and shall not impose any duty upon the Collateral Trustee or any other Secured
Party to exercise any such powers. The Collateral Trustee and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or agents shall be responsible to
any Grantor for any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.



6.3 Execution of Financing Statements. Pursuant to any Applicable Law, each Grantor authorizes the Collateral Trustee and the
Administrative Agent, on behalf of the Collateral Trustee, to file or record financing statements
and other filing or recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Collateral Agent or the
Administrative Agent, as the case may be, reasonably determines appropriate to perfect the security
interests of the Collateral Trustee under this Agreement. Each Grantor authorizes the Collateral
Trustee and the Administrative Agent to use the collateral description “all personal property
whether now owned or hereafter acquired or arising” or words of similar import or meaning in any
such financing statements. Each Grantor hereby ratifies and authorizes the filing by the
Collateral Trustee and the Administrative Agent of any financing statement with respect to the
Collateral made prior to the date hereof.



6.4 Authority of Collateral Trustee. Each Grantor acknowledges that the rights and responsibilities of the Collateral Trustee
under this Agreement with respect to any action taken by the Collateral Trustee or the exercise or
non-exercise by the Collateral Trustee of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this Agreement shall, as between
the Collateral Trustee and the other Secured Parties, be governed by the Collateral Trust Agreement
and by such other agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Trustee and the Grantors, the Collateral Trustee shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.



SECTION 7. MISCELLANEOUS




7.1 Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 9.3 of the Collateral Trust Agreement.



7.2 Notices. All notices, requests and demands to or upon the Collateral Trustee or any Grantor
hereunder shall be effected in the manner provided for in Section 9.8 of the Collateral Trust
Agreement; provided that any such notice, request or demand to or upon any Grantor shall be
addressed to such Grantor at its notice address set forth on Schedule 4.


 


15









 





7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Collateral Trustee nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default.
No failure to exercise, nor any delay in exercising, on the part of the Collateral Trustee or any
other Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Collateral Trustee or
any other Secured Party of any right or remedy hereunder on any one occasion shall not be construed
as a bar to any right or remedy which the Collateral Trustee or such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.



7.4 Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall
inure to the benefit of the Collateral Trustee and the other Secured Parties and their successors
and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Collateral Trustee.



7.5 Set-Off. Each Grantor hereby irrevocably authorizes the Collateral Trustee and each other Secured
Party at any time and from time to time, without notice to such Grantor or any other Grantor, any
such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), or any part thereof in
such amounts as the Collateral Trustee or such other Secured Party may elect, in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Collateral
Trustee or such other Secured Party, to or for the credit or the account of such Grantor, against
and on account of the obligations and liabilities of such Grantor to the Collateral Trustee or such
other Secured Party hereunder and claims of every nature and description of the Collateral Trustee
or such other Secured Party against such Grantor, in any currency, whether arising hereunder, under
the Credit Agreement, or any other Financing Document to which any Grantor is a party, as the
Collateral Trustee or such other Secured Party may elect, whether or not the Collateral Trustee or
any other Secured Party has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured. The Collateral Trustee and each other Secured Party
shall notify such Grantor promptly of any such set-off and the application made by the Collateral
Trustee or such other Secured Party of the proceeds thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of the Collateral
Trustee and each other Secured Party under this Section 7.5 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the Collateral Trustee or
such other Secured Party may have.



7.6 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this Agreement
by email or facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.



7.7 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.


 


16









 





7.8 Section Headings. The Section headings used in this Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into consideration in the interpretation hereof.



7.9 Integration. This Agreement and the other Financing Documents represent the agreement of the Grantors,
the Collateral Trustee, the Administrative Agent and the other Secured Parties with respect to the
subject matter hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Collateral Trustee, the Administrative Agent or any other Secured Party relative
to subject matter hereof and thereof not expressly set forth or referred to herein or in the other
Financing Documents.



7.10 GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



7.11 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and unconditionally:



(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Financing Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;



(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;



(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Grantor at its address referred to in Section 7.2 or at such other
address of which the Collateral Trustee shall have been notified pursuant thereto;



(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.



7.12 Acknowledgements. Each Grantor hereby acknowledges that:



(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Financing Documents to which it is a party;



(b) neither the Collateral Trustee, the Administrative Agent nor any other Secured Party has
any fiduciary relationship with or duty to any Grantor arising out of or in connection with this
Agreement or any of the other Financing Documents, and the relationship between the Grantors, on
the one hand, and the Collateral Trustee, the Administrative Agent and the other Secured Parties,
on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and


 


17









 





(c) no joint venture is created hereby or by the other Financing Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Secured Parties or among the
Grantors and the Secured Parties.



7.13 Additional Grantors. Each Subsidiary of the Company that is required to become a party to this Agreement
pursuant to Section 6.7 of the Credit Agreement shall become a Grantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of
Annex 1 hereto.



7.14 Releases. Releases of the Collateral shall be effected in accordance with Section 5.1 of the
Collateral Trust Agreement.



7.15 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.



7.16 COLLATERAL TRUST AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTERESTS GRANTED
PURSUANT TO THIS AGREMENT AND THE EXERCISEOF ANY RIGHT OR REMEDY HEREUNDER ARE SUBJECT TO THE
PROVISIONS OF THE COLLATERAL TRUST AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF
THE COLLATERAL TRUST AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE COLLATERAL TRUST AGREEMENT
SHALL GOVERN AND CONTROL.


 


18









 





IN WITNESS WHEREOF, each of the undersigned has caused this Security Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	GENON ENERGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	GENON AMERICAS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	[SUBSIDIARY GRANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to the Security Agreement




 


 









 







	 	 	 
	Accepted and agreed to as of

the date first above written:
	 	 
	 
	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee
	 	 
	 
	 	 
	By:
	 	 
	 

Name:

	 	 
	Title:
	 	 






Signature Page to the Security Agreement



 


 









 





Schedule 1




PLEDGED STOCK




Pledged Stock:




	 	 	 	 	 	 	 
	Issuer	 	Class of Stock	 	Stock Certificate No.	 	No. of Shares
	 	 	 	 	 	 	 





 


 









 





Schedule 2




LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE




	 	 	 	 	 
	 	 	Jurisdiction of	 	Location of Chief
	Grantor	 	Organization	 	Executive Office
	 
	 	 	 	 





 


 









 





Schedule 3




COPYRIGHTS AND COPYRIGHT LICENSES




PATENTS AND PATENT LICENSES




TRADEMARKS AND TRADEMARK LICENSES




 


 









 







Schedule 4




NOTICE ADDRESSES OF GRANTORS




 


 









 







Schedule 5




CERTAIN EXCLUDED ASSETS



 


 









 





Annex 1 to

Security Agreement




ASSUMPTION AGREEMENT, dated as of           
          , 20___, made by
             (the “Additional Grantor”), in favor of U.S. Bank National
Association, as collateral trustee (in such capacity, the “Collateral Trustee”) for the
banks and other financial institutions or entities (the “Secured Parties”) in connection
with the Security Agreement referred to below. All capitalized terms not defined herein shall have
the meaning ascribed to them in such Security Agreement.



W I T N E S S E T H:




WHEREAS, the Borrowers and certain of their Affiliates (other than the Additional Grantor)
have entered into the Security Agreement, dated as of [•], 2010 (as amended, supplemented or
otherwise modified from time to time, the “Security Agreement”) in favor of the Collateral
Trustee for the ratable benefit of the Secured Parties;



WHEREAS, pursuant to the Credit Agreement and/or the other Financing Documents the Additional
Grantor is required to become a party to the Security Agreement; and



WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Security Agreement;




NOW, THEREFORE, IT IS AGREED:



1. Security Agreement. By executing and delivering this Assumption Agreement, the
Additional Grantor, as provided in Section 7.13 of the Security Agreement, hereby becomes a party
to the Security Agreement as a Grantor thereunder with the same force and effect as if originally
named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly
assumes all obligations and liabilities of a Grantor thereunder. The information set forth in
Annex 1-A hereto is hereby added to the information set forth in the Schedules to the Security
Agreement. The Additional Grantor hereby represents and warrants that each of the representations
and warranties contained in Section 3 of the Security Agreement is true and correct on and as the
date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.



2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


 









 





IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 
	 	[ADDITIONAL GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


2









 





Annex 1-A to

Assumption Agreement




Supplement to Schedule 1




Supplement to Schedule 2




Supplement to Schedule 3




Supplement to Schedule 4





 


 











 







EXHIBIT C




FORM OF

COLLATERAL TRUST AGREEMENT





 


 









 




COLLATERAL TRUST AGREEMENT




Dated as of [•], 2010




among




GENON ENERGY, INC. (FORMERLY KNOWN AS

RRI ENERGY, INC.),




GENON AMERICAS, INC. (FORMERLY KNOWN AS MIRANT AMERICAS, INC.),




THE SUBSIDIARY GRANTORS,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee,




each Secured Commodity Hedging Counterparty

from time to time party hereto




and




any other Person that becomes a Secured Party pursuant hereto





 


 









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1. Definitions
	 	 	3	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	3	 
	1.2 Credit Agreement Definitions
	 	 	13	 
	1.3 Other Definitional Provisions
	 	 	13	 
	1.4 Certifications, Etc.
	 	 	14	 
	 
	 	 	 	 
	SECTION 2. Lien Priorities
	 	 	14	 
	 
	 	 	 	 
	2.1 Pari Passu
	 	 	14	 
	2.2 Prohibition on Contesting Liens
	 	 	14	 
	2.3 No New Liens
	 	 	14	 
	 
	 	 	 	 
	SECTION 3. Enforcement
	 	 	14	 
	 
	 	 	 	 
	3.1 Enforcement of Liens
	 	 	14	 
	 
	 	 	 	 
	SECTION 4. Payments
	 	 	17	 
	 
	 	 	 	 
	4.1 Application of Proceeds
	 	 	17	 
	4.2 Limitations on Payment Post Default
	 	 	18	 
	4.3 Secured Obligation Balances
	 	 	18	 
	4.4 Application of Other Credit Support
	 	 	19	 
	4.5 Limitations on Obligations under Secured Commodity Hedging Agreements
With Respect to Specified Hedging Collateral
	 	 	19	 
	 
	 	 	 	 
	SECTION 5. Other Agreements
	 	 	20	 
	 
	 	 	 	 
	5.1 Releases
	 	 	20	 
	5.2 Amendments to Financing Documents
	 	 	21	 
	5.3 Refinancings of Credit Agreement
	 	 	22	 
	5.4 Notices; Certain Actions
	 	 	22	 
	5.5 Letters of Credit; Cash Collateral Accounts; Acknowledgment of Security Interest
	 	 	24	 
	5.6 Additional Obligations
	 	 	24	 
	 
	 	 	 	 
	SECTION 6. Insolvency or Liquidation Proceedings
	 	 	25	 
	 
	 	 	 	 
	6.1 Finance and Sale Issues
	 	 	25	 
	6.2 Avoidance Issues
	 	 	26	 
	6.3 Certain Bankruptcy Rights of Secured Commodity Hedging Counterparties
	 	 	26	 
	 
	 	 	 	 
	SECTION 7. Collateral Trustee
	 	 	26	 
	 
	 	 	 	 
	7.1 Appointment
	 	 	26	 
	7.2 Delegation of Duties
	 	 	27	 
	7.3 Exculpatory Provisions
	 	 	28	 
	7.4 Notice of Event of Default
	 	 	29	 
	7.5 Non-Reliance on Collateral Trustee and Other Secured Parties
	 	 	29	 
	7.6 Collateral Trustee in Individual Capacity
	 	 	29	 





 


-i-









 




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	7.7 Successor Collateral Trustees
	 	 	30	 
	7.8 Security Documents
	 	 	30	 
	7.9 Indemnification
	 	 	31	 
	 
	 	 	 	 
	SECTION 8. Reliance; Waivers; Etc.
	 	 	32	 
	 
	 	 	 	 
	8.1 Reliance
	 	 	32	 
	8.2 No Warranties or Liability
	 	 	32	 
	8.3 Obligations Unconditional
	 	 	32	 
	 
	 	 	 	 
	SECTION 9. Miscellaneous
	 	 	33	 
	 
	 	 	 	 
	9.1 Conflicts
	 	 	33	 
	9.2 Effectiveness; Continuing Nature of this Agreement; Severability
	 	 	33	 
	9.3 Amendments; Waivers
	 	 	33	 
	9.4 Voting
	 	 	34	 
	9.5 Information Concerning Financial Condition of the Company and its Subsidiaries
	 	 	35	 
	9.6 Submission to Jurisdiction
	 	 	35	 
	9.7 WAIVER OF JURY TRIAL
	 	 	36	 
	9.8 Notices
	 	 	36	 
	9.9 Further Assurances
	 	 	36	 
	9.10 APPLICABLE LAW
	 	 	36	 
	9.11 Binding on Successors and Assigns
	 	 	36	 
	9.12 Specific Performance
	 	 	36	 
	9.13 Headings
	 	 	36	 
	9.14 Counterparts
	 	 	36	 
	9.15 Authorization
	 	 	37	 
	9.16 No Third Party Beneficiaries
	 	 	37	 
	9.17 Provisions Solely to Define Relative Rights
	 	 	37	 
	9.18 Additional Grantors
	 	 	37	 
	9.19 Permitted Secured Commodity Hedging Agreement
	 	 	37	 
	9.20 No Applicability to Instruments Not Secured by Collateral
	 	 	37	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A – Form of Accession Agreement
	 	 	 	 





 


-ii-









 







COLLATERAL TRUST AGREEMENT




This COLLATERAL TRUST AGREEMENT, dated as of [•], 2010, is entered into by and among GenOn
Energy, Inc. (formerly known as RRI Energy, Inc.), a Delaware corporation (the “Company”),
from and after the Closing Date, GenOn Americas, Inc. (formerly known as Mirant Americas, Inc.), a
Delaware corporation (“GAI”; each of GAI and the Company, a “Borrower” and,
together, the “Borrowers”), the Subsidiary Grantors (as defined below), JPMORGAN CHASE
BANK, N.A., in its capacity as administrative agent for the Lenders (as defined below) (in such
capacity, and including its successors and assigns from time to time, the “Administrative
Agent”), U.S. BANK NATIONAL ASSOCIATION, in its capacity as collateral trustee for the Secured
Parties (in such capacity, and including its successors and assigns from time to time, the
“Collateral Trustee”), the Secured Commodity Hedging Counterparties party hereto from time
to time, and the other Persons party hereto from time to time in accordance with the terms hereof.



RECITALS




WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of April 11, 2010 (the
“Merger Agreement”), by and among RRI Energy, Inc. (“RRI”), a Delaware corporation,
RRI Energy Holdings, Inc. (“Merger Sub”), a Delaware corporation and wholly owned
subsidiary of RRI, and Mirant Corporation (“Mirant”), a Delaware corporation, Merger Sub
will merge with and into Mirant (the “Merger”) concurrently with the initial funding of
Loans under the Credit Agreement (as defined below), with Mirant surviving the Merger as a
wholly-owned subsidiary of RRI;



WHEREAS, in connection with the Merger, RRI will change its name to GenOn Energy, Inc. and
certain existing indebtedness of Mirant North America, LLC, a Delaware limited liability company,
and RRI, as described in Section 5.22 of the Merger Agreement, will be refinanced and related fees
and expenses will be paid (the Merger, together with the refinancing and payment of related fees
and expenses in connection therewith, the “Transaction”);



WHEREAS, in connection with the Transaction, the Borrowers, the several banks and other
financial institutions or entities from time to time parties thereto (the “Lenders”), the
Administrative Agent and the other agents and entities party thereto, have entered into a Credit
Agreement, dated as of September 17, 2010 (as the same may be amended, restated, supplemented or
otherwise modified, refinanced or replaced from time to time, the “Credit Agreement”),
which provides, among other things, for the borrowing of Loans and the issuance of Letters of
Credit, in each case for uses as contemplated by the Credit Agreement;



WHEREAS, the Borrowers and the Subsidiary Grantors may from time to enter into Secured Hedging
Agreements and Secured Commodity Hedging Agreements to the extent permitted (if addressed therein,
or, otherwise, not prohibited) under the Credit Agreement and the other applicable Financing
Documents, in each case which may be secured on a first priority basis by the First Lien on all or
a portion of the Collateral (as defined herein) pursuant to the terms of the Security Documents;



WHEREAS, the Borrowers and the Subsidiary Grantors may from time to time after the date hereof
enter into additional agreements evidencing indebtedness or other obligations to the extent
permitted (if addressed therein, or, otherwise, not prohibited) under the Credit Agreement and
under the other applicable Financing Documents, in each case which may be secured on a first
priority basis by the First Lien on all or a portion of the Collateral pursuant to the terms of the
Security Documents;


 


 









 





WHEREAS, pursuant to the Guarantee Agreement, dated as of the date hereof (as the same may be
amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time,
the “Guarantee Agreement”), each Subsidiary Grantor party thereto has unconditionally and
irrevocably guaranteed, as primary obligor and not merely as surety, to the Administrative Agent
for the ratable benefit of the Guaranteed Parties (as defined in the Guarantee Agreement), the
prompt and complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations;



WHEREAS, pursuant to the Security Agreement, dated as of the date hereof (as the same may be
amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time,
the “Security Agreement”), and the other Security Documents, the Borrowers and each other
Grantor party thereto has granted a security interest on a first priority basis in the Collateral
to secure the Secured Obligations;



WHEREAS, the Credit Agreement provides, among other things, that the Borrowers, the Subsidiary
Grantors, the Administrative Agent and the Collateral Trustee shall enter into this Agreement to,
among other things, define the rights, duties, authorities and responsibilities of the Collateral
Trustee and the respective rights and remedies among the Secured Parties with respect to the
Collateral; and



WHEREAS, in order to induce the Secured Parties to enter into the transactions contemplated by
the Financing Documents, each of the parties hereto has agreed to the trust, agency, intercreditor
and other provisions set forth in this Agreement.



DECLARATION OF TRUST:




NOW, THEREFORE, in order to secure the prompt and complete payment and performance when due of
the Secured Obligations (such term and certain other capitalized terms used hereinafter being
defined in subsection 1.1) and in consideration of the premises and the mutual agreements set forth
herein, the Collateral Trustee does hereby declare that it holds and will hold as trustee in trust
under this Agreement all of its right, title and interest in, to and under the Security Documents
and the Collateral granted to the Collateral Trustee thereunder whether now existing or hereafter
arising (and the Grantors do hereby consent thereto).



TO HAVE AND TO HOLD the Security Documents and the entire Collateral (the right, title and
interest of the Collateral Trustee in the Security Documents and the Collateral being hereinafter
referred to as the “Trust Estate”) unto the Collateral Trustee and its successors in trust
under this Agreement and its assigns forever.



IN TRUST NEVERTHELESS, under and subject to the conditions herein set forth and for the
benefit of the Secured Parties, and for the enforcement of the payment of all Secured Obligations,
and as security for the performance of and compliance with the covenants and conditions of this
Agreement and each Financing Document.



PROVIDED, HOWEVER, that these presents are upon the condition that if the Grantors, their
successors or assigns, shall satisfy the conditions set forth in subsection 5.1(b), then this
Agreement, and the estates and rights hereby assigned, shall cease, determine and be void;
otherwise they shall remain and be in full force and effect.



IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust Estate is to be held and applied
by the Collateral Trustee, subject to the further covenants, conditions and trusts hereinafter set
forth.


 


2









 





AGREEMENT




In consideration of the foregoing, the mutual covenants and obligations herein set forth and
for other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:




SECTION 1. Definitions.



1.1 Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:



“Accession Agreement”: an Accession Agreement substantially in the form attached
hereto as Exhibit A.



“Additional Obligations”: any indebtedness or other obligations (other than Credit
Agreement Obligations) incurred by either Borrower or any Subsidiary Grantor after the Closing Date
and secured by a First Lien on all or a portion of the Collateral, in each case to the extent
permitted (if addressed therein, or, otherwise, not prohibited) under the Credit Agreement and the
other applicable Financing Documents; provided that the holder of such indebtedness or
other obligations (or the agent, trustee or representative acting on behalf of the holder of such
indebtedness or other obligation) shall either be a party hereto or shall have executed and
delivered to the Collateral Trustee an Accession Agreement in accordance with Section 5.6 pursuant
to which such holder (or such agent, trustee or representative acting on behalf of such holder) has
become a party to this Agreement and has agreed to be bound by the obligations of a “Secured Party”
under the terms hereof.




“Administrative Agent”: as defined in the recitals to this Agreement.



“Affiliate”: shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with such Person.
A Person shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or otherwise. The terms
“controlling” and “controlled” shall have meanings correlative thereto.



“Agent”: the Administrative Agent, the Collateral Trustee or any representative,
agent or trustee acting on behalf of the holders of any indebtedness or other obligations under any
Financing Document governing Additional Obligations, as the context may require.




“Agreement”: this Collateral Trust Agreement.



“Applicable Laws”: as to any Person, any law (including common law), statute,
regulation, ordinance, rule, order, permit, registration, license, certification, decree, judgment,
consent decree, writ, injunction, settlement agreement or governmental requirement enacted,
promulgated or imposed or entered into or agreed by any Governmental Authority, in each case
applicable to or binding on such Person or any of its property or assets or to which such Person or
any of its property or assets is subject.



“Available L/C Amount”: with respect to any Letter of Credit, at any time, the
maximum amount (whether or not such maximum amount is then in effect under such Letter of Credit if
such maximum amount increases periodically pursuant to the terms of such Letter of Credit)
available to be
drawn under such Letter of Credit at such time (assuming compliance at such time with all
conditions to drawing).


 


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“Bankruptcy Code”: Title 11 of the United States Code entitled “Bankruptcy”, as now
and hereafter in effect, or any successor statute.



“Bankruptcy Law”: the Bankruptcy Code and any similar federal, state or foreign law
for the relief of debtors.




“Borrower”: as defined in the preamble to this Agreement.



“Breakage Costs”: with respect to any Loan, any amount payable with respect to such
Loan pursuant to Section 2.18 of the Credit Agreement and with respect to any advances of
indebtedness under any Financing Document governing Additional Obligations, any amount payable with
respect to such advances pursuant to the provisions, if any, in such Financing Documents similar to
Section 2.18 of the Credit Agreement.



“Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.




“Cash Collateral”: as defined in Section 6.1.




“Collateral”: as defined in the Security Agreement.




“Collateral Trustee”: as defined in the preamble to this Agreement.



“Commitments”: the commitment of any Secured Party to make Loans or other advances of
indebtedness or issue Letters of Credit under the Financing Documents.



“Commodity Hedging Secured Obligations”: with respect to any Secured Commodity
Hedging Agreement and any related guaranty (but without duplication), as of any date of
determination, the sum of (a) the outstanding amount (including Ordinary Course Settlement Payments
and any Termination Payments) then due and owing by the Loan Parties to the relevant Secured
Commodity Hedging Counterparty under such Secured Commodity Hedging Agreement plus (b)
without duplication, any and all other obligations of any Loan Party of any kind thereunder,
whether fixed or contingent, matured or unmatured as of such date of determination.



“Commodity Hedging Counterparty”: any Person (other than any Loan Party) that is a
party to a Permitted Commodity Hedging Agreement.



“Commodity Hedging Covenants”: any covenant or similar term in any Secured Commodity
Hedging Agreement that is identical to, or incorporates, is intended to incorporate or calls for
incorporating by reference, a covenant or similar term in the Credit Agreement (but in the case of
an identical covenant, only if such identical covenant was in the Credit Agreement on the Closing
Date).



“Contractual Obligations”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


 


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“Controlling Secured Representative”: as of any date of determination or application,
the Secured Representative of the Required Secured Parties on such date, acting at the direction of
or with the consent of such Required Secured Parties.



“Credit Agreement”: as defined in the recitals to this Agreement, including as
Refinanced pursuant to Section 5.3.



“Credit Agreement Obligations”: the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement Obligations and Post-Petition
Interest) the Loans and all other obligations (including guarantee obligations and other
“Obligations” as defined in the Credit Agreement) and liabilities of the Borrowers or any other
Loan Party to the Administrative Agent or to any Lender (or, in the case of Hedging Agreements, any
Specified Hedging Counterparty), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Guarantee Agreement, any other Loan Document, the Letters of Credit
under the Credit Agreement, any Hedging Agreement or any other document made, delivered or given in
connection with the Credit Agreement or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid
by the Borrowers pursuant to the Credit Agreement) or otherwise.




“DIP Financing”: as defined in Section 6.1.



“Discharge of Credit Agreement Obligations”: except to the extent otherwise expressly
provided for in Section 5.3 and Section 6.2:




(a) payment in full in cash of (i) the outstanding principal amount of Loans
outstanding under the Credit Agreement, (ii) Reimbursement Obligations with respect to
amounts drawn under any Letter of Credit issued under the Credit Agreement, (iii) interest
(including, without limitation, interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans or other Credit Agreement Obligations
and Post-Petition Interest) on all indebtedness outstanding under the Loan Documents and
(iv) commitment fees, letter of credit fees, participation fees, maintenance fees and
Breakage Costs, due and payable or otherwise accrued under the Loan Documents;




(b) the termination or expiration of all Commitments, if any, to extend credit
(including the issuance of any Letter of Credit) that would constitute Credit Agreement
Obligations under the Loan Documents;




(c) cancellation, termination, cash collateralization of, or provision of a
back-to-back Letter of Credit reasonably acceptable to the relevant Issuing Lender with
respect to, all Letters of Credit issued and outstanding under the Loan Documents; and




(d) payment in full in cash of all other Credit Agreement Obligations that are then due
and payable or otherwise accrued, including, without limitation, all Interest Expense, and
full and final payment and discharge of all other outstanding Credit Agreement Obligations,
whether or not then due and payable (other than any inchoate indemnity obligations that
expressly survive the termination of the underlying Loan Documents).


 


5









 





“Discharge of Secured Obligations”: except to the extent otherwise expressly provided
for in Section 5.3 and Section 6.2:




(a) payment in full in cash of (i) the outstanding principal amount of Loans or other
indebtedness outstanding under any Financing Document, (ii) Reimbursement Obligations with
respect to amounts drawn under any Letter of Credit issued under any Financing Documents,
(iii) interest (including, without limitation, interest accruing at the then applicable rate
provided in the applicable Financing Document after the maturity of the Loans or other
indebtedness or other relevant Secured Obligations and Post-Petition Interest) on all
indebtedness outstanding under such Financing Documents and (iv) commitment fees, letter of
credit fees, participation fees, maintenance fees and Breakage Costs, due and payable or
otherwise accrued under the Financing Documents;




(b) the termination or expiration of all (i) Commitments, if any, to extend credit
(including the issuance of any Letter of Credit) that would constitute Secured Obligations,
(ii) Secured Commodity Hedging Agreements and (iii) Secured Hedging Agreements;




(c) cancellation, termination cash collateralization of, or provision of a back-to-back
Letter of Credit reasonably acceptable to the relevant Issuing Lender with respect to, all
Letters of Credit issued and outstanding under any Financing Documents; and




(d) payment in full in cash of all other Secured Obligations that are then due and
payable or otherwise accrued, including, without limitation, all Interest Expenses,
outstanding Commodity Hedging Secured Obligations and all obligations outstanding under
Secured Hedging Agreements and full and final payment and discharge of all other outstanding
Secured Obligations, whether or not then due and payable (other than any inchoate indemnity
obligations that expressly survive the termination of the underlying Financing Documents).



“Early Termination Event”: with respect to any Secured Commodity Hedging Agreement,
the designation or occurrence of an “Early Termination Date” (as defined in such Secured Commodity
Hedging Agreement) or the occurrence of any event of default (howsoever defined) under any Secured
Commodity Hedging Agreement which results in the termination of such Secured Commodity Hedging
Agreement.



“Eligible Commodity Hedging Agreement”: shall mean an “Eligible Commodity Hedging
Agreement” as defined in the Credit Agreement as in effect on the Closing Date.



“Eligible Hedging Voting Amount”: as of any date of determination with respect to any
Secured Commodity Hedging Agreement: an amount equal to (A) the Permitted Secured Hedging Amount
(if any) applicable to such Secured Commodity Hedging Agreement at such time less (B) the
aggregate amount of Other Credit Support Amounts under any Other Credit Support issued or pledged
in favor of the applicable Secured Commodity Hedging Counterparty to support the obligations of the
Borrowers and/or the Subsidiary Grantors under such Secured Commodity Hedging Agreement (as
adjusted to take into account any Other Credit Support Exception that has occurred with respect to
all or a portion thereof).



“Event of Default”: (x) an “Event of Default” under and as defined in the Credit
Agreement or any other Financing Document or (y) any Early Termination Event under any Secured
Commodity Hedging Agreement with respect to which a Borrower or any other Loan Party is the
“defaulting party” or “affected party”, as the case may be.



“Financing Documents”: shall mean, collectively (without duplication), each Loan
Document, each Secured Commodity Hedging Agreement and any other agreement, document or
instrument providing for, governing, representing or evidencing any Secured Obligations,
including those providing for, governing, representing or evidencing any Additional Obligations.


 


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“First Lien”: a first priority Lien granted pursuant to the Security Documents to the
Collateral Trustee (for the benefit of the Secured Parties) on the Collateral to secure the Secured
Obligations.




“Grantors”: means the “Grantors” as defined in the Security Agreement.




“Guarantee Agreement”: as defined in the recitals to this Agreement.




“Insolvency or Liquidation Proceeding”:




(a) any voluntary or involuntary case or proceeding under any Bankruptcy Law with
respect to any Loan Party;




(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar case or
proceeding with respect to any Loan Party or with respect to a material portion of their
respective assets;




(c) any liquidation, dissolution, reorganization or winding up of any Loan Party
whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or




(d) any assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Loan Party.



“Interest Expense”: for any period, all interest, commitment fees, letter of credit
fees, participation fees, maintenance fees and Breakage Costs in respect of outstanding Secured
Obligations accrued, capitalized or payable during such period (whether or not actually paid during
such period).



“Issuing Lender”: an “Issuing Lender” under and as defined in the Credit Agreement as
in effect on the Closing Date and any similar term, if any, under and as defined in any other
Financing Document governing Additional Obligations.




“Lender Party”: means each Lender or Issuing Lender, as the context may require.




“Lenders”: as defined in the recitals to this Agreement.



“Letter of Credit”: means a “Letter of Credit” as defined in and issued under the
Credit Agreement and any similar term, if any, under and as defined in and issued under any
Financing Document governing Additional Obligations.



“Lien”: any mortgage, pledge, security interest, hypothecation, assignment, lien
(statutory or other) or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease or license in the nature
thereof); provided that in no event (a) shall an operating lease be deemed to be a Lien or
(b) shall any netting or set-off arrangements under any Contractual Obligation otherwise permitted
under the terms of this Agreement be deemed to be a Lien.



“Loan Documents”: means the “Loan Documents” as defined in the Credit Agreement as in
effect on the Closing Date.


 


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“Loan Party”: means the Borrowers and each Subsidiary Grantor.



“Major Non-Controlling Series”: shall mean, at any time, the Series of Secured
Obligations that constitutes the largest Relevant Amount (calculated, in the case of any
Outstanding Amount, without giving effect to the proviso of the definition of such term) of any
then outstanding Series of Secured Obligations.




“Merger”: as defined in the recitals to this Agreement.




“Merger Agreement”: as defined in the recitals to this Agreement.



“Mortgages”: a collective reference to each mortgage, deed of trust and other
document or instrument under which any Lien on real property owned or leased by any Loan Party is
granted by a Loan Party to secure any Secured Obligations or under which rights or remedies with
respect to any such Liens are governed, including, without limitation, the Mortgages (as defined in
the Credit Agreement).




“New Administrative Agent”: as defined in Section 5.3.




“New Collateral Trustee”: as defined in Section 5.3.




“New indebtedness Notice”: has the meaning set forth in Section 5.3.



“Non-Controlling Enforcement Date”: with respect to any Series of Secured
Obligations, the date which is 180 days (throughout which 180-day period such Series of Secured
Obligations was the Major Non-Controlling Series) after the occurrence of both (i) an Event of
Default (under and as defined in the Financing Document governing such Major Non-Controlling
Series) and (ii) the Collateral Trustee’s and each other Secured Representative’s receipt of
written notice from the Secured Representative under the Financing Document governing such Major
Non-Controlling Series certifying that (x) such Series of Secured Obligations is the Major
Non-Controlling Series and that an Event of Default (under and as defined in the Financing Document
governing such Major Non-Controlling Series) has occurred and is continuing and (y) the Secured
Obligations of such Series are currently due and payable in full (whether as a result of
acceleration thereof or otherwise) in accordance with the terms of the applicable Financing
Document governing such Major Non-Controlling Series; provided that the Non-Controlling
Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with
respect to any Collateral (1) at any time the Collateral Trustee has commenced and is diligently
pursuing any enforcement action with respect to such Collateral or (2) at any time the Loan Party
which has granted a security interest in such Collateral is then a debtor under or with respect to
(or otherwise subject to) any Insolvency or Liquidation Proceeding.



“Ordinary Course Settlement Payments”: all regularly scheduled payments due under any
Secured Commodity Hedging Agreement calculated in accordance with the terms of such Secured
Commodity Hedging Agreement, including any “Settlement Amounts” under any Secured Commodity Hedging
Agreement and any liquidated damages payments under any Secured Commodity Hedging Agreement which
settle physically and including any Interest Expense due and payable by any of the Loan Parties in
connection with any such regularly scheduled or liquidated damage payments, but excluding, for the
avoidance of doubt any “Termination Payments” due and payable under any Secured Commodity Hedging
Agreement.


 


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“Other Credit Support”: with respect to any Secured Commodity Hedging Agreement, any
(a) Letter of Credit or other letter of credit, (b) guaranty or (c) cash collateral issued or
pledged, as applicable, in favor of any Secured Commodity Hedging Counterparty to the extent not
shared among all
Secured Parties and in each case to the extent permitted under the Credit Agreement and
permitted (if addressed herein, or, otherwise, not prohibited) under all of the other applicable
Financing Documents, to support the obligations of either Borrower or any Subsidiary Grantor under
such Secured Commodity Hedging Agreement (other than any such guaranty issued by a Loan Party,
including the guarantees given under the Guarantee Agreement) which in any case satisfies the
requirements of such Secured Commodity Hedging Agreement with respect to Letters of Credit and
other letters of credit, guaranties or cash, as applicable. For the avoidance of doubt, it is
expressly understood and agreed that any separate insurance, credit default swap protection or
other protection against loss arranged by any Secured Commodity Hedging Counterparty for its own
account in respect of any Secured Obligations owed to it shall not be considered “Other Credit
Support” hereunder.



“Other Credit Support Amount”: at any time, with respect to any Secured Commodity
Hedging Agreement, the sum of the following, in each case to the extent constituting Other Credit
Support: (a) the Available L/C Amount of any Letter of Credit or other letter of credit issued in
favor of the relevant Secured Commodity Hedging Counterparty to support the Obligations of the Loan
Parties under such Secured Commodity Hedging Agreement (with such Available L/C Amount being
calculated at the amount then available to be drawn under the applicable Letter of Credit or the
applicable other letter of credit, notwithstanding anything to the contrary contained in the
definition of Available L/C Amount) plus (b) the undrawn amount of any guaranty issued in
favor of the relevant Secured Commodity Hedging Counterparty to support the Obligations of the Loan
Parties under such Secured Commodity Hedging Agreement (other than any such guaranty issued by a
Loan Party, including the Guarantee Agreement) plus (c) the amount of any cash collateral
pledged to the benefit of the relevant Secured Commodity Hedging Counterparty to support the
Obligations of the Loan Parties under such Secured Commodity Hedging Agreement, and which, in each
case, satisfies the requirements of such Secured Commodity Hedging Agreement with respect to
Letters of Credit or other letters of credit, guaranties or cash, as applicable.



“Other Credit Support Exception”: (a) with respect to any Other Credit Support
constituting a guaranty, the guarantor thereunder fails to make payment after receipt of a demand
for payment thereunder made in accordance with the terms of such guaranty, within three Business
Days of its receipt of such demand (or such longer period permitted for payment under such
guarantee) and (b) with respect to any Other Credit Support constituting a Letter of Credit or
other letter of credit, the occurrence and continuance of any of the following: (i) a restraint or
injunction shall be threatened or pending against the issuer of such Letter of Credit or other
letter of credit or the Secured Commodity Hedging Counterparty that is the beneficiary thereof that
restrains or limits or seek to restrain or limit a draw upon, or the application of proceeds from,
such Letter of Credit or such other letter of credit prior to, concurrent with, or following such
draw or application, (ii) the issuing bank of such Letter of Credit or such other letter of credit
shall be subject to an Insolvency Proceeding, or (iii) the issuing bank shall have disavowed,
repudiated or dishonored its obligations under such Letter of Credit or such other letter of credit
after, if applicable, delivery to such issuing bank of a conforming draw request thereunder.



“Outstanding Amount”: means, with respect to any Financing Document (other than any
Secured Commodity Hedging Agreement), at any time, an amount equal to the sum of, without
duplication, (a) the aggregate principal amount of the Loans or other indebtedness outstanding
under such Financing Document at such time plus (b) the excess of (x) the aggregate
Available L/C Amount of all Letters of Credit issued under such Financing Document and outstanding
at such time over (y) any cash collateral referred to in Section 5.5(b) then held in respect of any
Letters of Credit plus (c) the aggregate amount of all outstanding unexpired Commitments to
extend credit that, when funded or issued, would constitute Loans or other indebtedness or Letters
of Credit, at such time; provided, however, that if any Lender shall be a
“Defaulting Lender” howsoever defined in the relevant Financing Document at such
time, there shall be excluded from the determination of the “Outstanding Amount” under such
Financing Document: (i) the aggregate principal amount of Loans or other indebtedness owing to
such Lender, (ii) such Lender’s pro rata share of the aggregate Available L/C Amount of all Letters
of Credit issued under such Financing Document and (iii) such Lender’s pro rata share of the
outstanding Commitments to extend credit that, when funded, would constitute Loans or other
indebtedness or Letters of Credit, at such time.


 


9









 





“Permitted Commodity Hedging Agreement”: any Eligible Commodity Hedging Agreement
entered into from time to time by any Loan Party to the extent permitted (if addressed therein, or,
otherwise, not prohibited) under the Credit Agreement and the other applicable Financing Documents
at the time it is entered into.



“Permitted Secured Hedging Amount”: with respect to any Secured Commodity Hedging
Agreement and any related guaranty (but without duplication), as of any date of determination, the
full amount of all obligations of every nature outstanding and then owed to the Secured Commodity
Hedging Counterparty under such Secured Commodity Hedging Agreement as of such date of
determination (including any outstanding Ordinary Course Settlement Payments and Termination
Payments), together with (without duplication) any and all other obligations of any Loan Party of
any kind thereunder, whether fixed or contingent, matured or unmatured as of such date of
determination; provided, that for purposes of calculating the “Eligible Hedging Voting
Amount” or “Permitted Secured Hedging Amount” in respect of any Secured Commodity
Hedging Agreement, the “Termination Payment” shall be calculated as the amount that would
be payable by the relevant Loan Party under any such Secured Commodity Hedging Agreement if such
Secured Commodity Hedging Agreement were terminated as the result of an event of default with
respect to such Loan Party under such Secured Commodity Hedging Agreement on the Business Day
immediately preceding the applicable date of determination or, if such Secured Commodity Hedging
Agreement was previously terminated, the Termination Payment which remains unpaid as of the
applicable date of determination.



“Pledged Collateral”: as the context may require, (a) any Collateral, to the extent
that possession or control thereof is necessary to perfect a Lien thereon under the UCC, including
any deposit account or securities account (as such terms are defined in the UCC), (b) any rights to
receive payments under any insurance policy that constitute Collateral and with respect to which a
secured party is required to be named as an additional insured or a loss payee in order to perfect
a Lien thereon and/or (c) any other Collateral with respect to which a secured party must be listed
on a certificate of title in order to perfect a Lien thereon.



“Post-Petition Interest”: any interest or entitlement to fees or expenses or other
charges that accrues after the commencement of any Insolvency or Liquidation Proceeding, whether or
not allowed or allowable in any such Insolvency or Liquidation Proceeding.




“Recovery”: as defined in Section 6.2.



“Refinance”: in respect of any indebtedness, (a) such indebtedness (in whole or in
part) as extended, renewed, defeased, refinanced, replaced, refunded or repaid and (b) any other
indebtedness issued in exchange or replacement for or to refinance such indebtedness, in whole or
in part, whether with the same or different lenders, arrangers and/or agents and whether with a
larger or smaller aggregate principal amount and/or a longer or shorter maturity, in each case to
the extent permitted (if addressed therein, or, otherwise, not prohibited) under the terms of the
Credit Agreement and under the terms of the other applicable Financing Documents.
“Refinanced” and “Refinancing” shall have correlative meanings.


 


10









 





“Reimbursement Obligations”: with respect to any Letter of Credit then outstanding
under any Financing Document, at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of such Letter of Credit and (b) the aggregate amount of drawings
under such Letter of Credit that have not then been reimbursed pursuant to such Financing Document.



“Related Parties”: with respect to any specified Person, such Person’s Affiliates and
the directors, officers, employees, agents, trustees and advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by
contract or otherwise.



“Relevant Amount”: means, (i) with respect to any Financing Document (other than any
Secured Commodity Hedging Agreement), at any time, the Outstanding Amount and (ii) with respect to
any Secured Commodity Hedging Agreement, at any time, the Eligible Hedging Voting Amount.




“Remedy Event”: has the meaning set forth in Section 4.2.




“Replacement Credit Agreement”: as defined in Section 5.3.



“Required Commodity Hedging Counterparties”: at any time, Secured Commodity Hedging
Counterparties owed or holding more than 50% of the sum of the Eligible Hedging Voting Amounts
under all Secured Commodity Hedging Agreement outstanding at such time.




“Required Lenders”: as defined in the Credit Agreement.



“Required Secured Parties”: at any time, (i) prior to the earlier of the (A)
Discharge of Credit Agreement Obligations and (B) the Non-Controlling Enforcement Date, Secured
Parties constituting the Required Lenders under the Credit Agreement at such time and (ii) on or
after the earlier of the (A) Discharge of Credit Agreement Obligations and (B) the Non-Controlling
Enforcement Date, Secured Parties owed or holding more than 50% of the Outstanding Amount under the
applicable Financing Document governing the Major Non-Controlling Series at such time or, in the
case of this clause (ii), if such Major Non-Controlling Series is a Secured Commodity Hedging
Agreement, “Required Secured Parties” shall mean the Secured Commodity Hedging Counterparty
thereunder. For purposes of this definition, Secured Obligations registered in the name of, or
beneficially owned by, a Borrower or any Affiliate of a Borrower (other than investors in a
Borrower’s Affiliates that are investment funds, provided that such investors are not themselves
Affiliates of a Borrower or any other Loan Party) will be deemed not to be outstanding and neither
a Borrower nor any Affiliate of a Borrower (other than investors in a Borrower’s Affiliates that
are investment funds, provided that such investors are not themselves Affiliates of a Borrower or
any other Loan Party) will be entitled to vote to direct the Collateral Trustee or relevant Secured
Representative.



“Secured Commodity Hedging Agreement”: any Permitted Commodity Hedging Agreement
entered into from time to time by a Borrower or any Subsidiary Grantor with a Secured Commodity
Hedging Counterparty which requires that the obligations of a Borrower or the Subsidiary Grantor
party thereto be secured by the First Lien, to the extent such Permitted Commodity Hedging
Agreement is permitted (if addressed therein, or, otherwise, not prohibited) to be entered into by
such Borrower or such Subsidiary Grantor and secured by the First Lien under the Credit Agreement
and the other applicable Financing Documents at the time it is entered into; provided that
the Secured Commodity Hedging Counterparty party thereto shall either be a party hereto or shall
have executed and delivered to the Collateral Trustee an Accession Agreement in accordance with
Section 5.6 pursuant to which such Secured Commodity Hedging Counterparty has become a party to
this Agreement and has agreed to be bound by the obligations of a Secured Party under the terms
hereof.


 


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“Secured Commodity Hedging Counterparty”: any Commodity Hedging Counterparty (other
than any Loan Party) that is a party to a Secured Commodity Hedging Agreement.



“Secured Debt Obligations”: the Credit Agreement Obligations and any Additional
Obligations.



“Secured Hedging Agreement”: any Hedging Agreement that is entered into by and
between any Loan Party and any Hedging Counterparty.



“Secured Obligations”: collectively, (a) all Credit Agreement Obligations, (b) all
debts, liabilities, obligations, covenants and duties of any Loan Party arising under any Secured
Commodity Hedging Agreement or Secured Hedging Agreement, in each case, entered into with a
Borrower or any other Loan Party, whether fixed or contingent, matured or unmatured, and whether or
not allowed or allowable in an Insolvency or Liquidation Proceeding and (c) all obligations of
every nature outstanding under any Additional Obligations, whether fixed or contingent, matured or
unmatured, in each case whether or not allowed or allowable in an Insolvency or Liquidation
Proceeding. “Secured Obligations” shall include, without limitation, interest accruing at
the then applicable rate provided in the applicable Financing Document after the maturity of the
relevant Secured Obligations and any Post-Petition Interest.



“Secured Representative”: (a) with respect to the Lender Parties, the Administrative
Agent, (b) with respect to any Secured Commodity Hedging Agreement, the Secured Commodity Hedging
Counterparty party thereto, as identified in the Accession Agreement pursuant to which such Secured
Commodity Hedging Counterparty has become a party to this Agreement and has agreed to be bound by
the obligations of a Secured Party under the terms hereof and (c) with respect to each holder of
Additional Obligations, the agent, trustee or representative acting on behalf of the holder of such
Additional Obligations (and, if no such agent, trustee or representative then exists, the holder of
such Additional Obligations), as identified in the Accession Agreement pursuant to which such
holder of Additional Obligations has become a party to this Agreement and has agreed to be bound by
the obligations of a Secured Party under the terms hereof.



“Secured Parties”: shall have the meaning ascribed to it in the Security Agreement as
in effect on the Closing Date (without reference to any subsequent amendment, restatement or
modification); provided that, in the case of any Secured Commodity Hedging Counterparty,
Secured Hedging Counterparty or holder of other Additional Obligations (and any representative,
agent or trustee acting on behalf of such holder) that is not a party hereto as of the date hereof,
such Secured Commodity Hedging Counterparty, Secured Hedging Counterparty or holder of Additional
Obligations (or the representative, agent or trustee acting on behalf of such holder), as
applicable, shall have executed and delivered to the Collateral Trustee an Accession Agreement in
accordance with Section 5.6 pursuant to which it has become a party to this Agreement and has
agreed to be bound by the obligations of a Secured Party under the terms hereof.




“Security Agreement”: as defined in the recitals to this Agreement.



“Security Documents”: the Security Agreement and all mortgages, deeds of trust, trust
deeds, pledges, hypothecations, grants and all other security documents delivered to the Collateral
Trustee granting a Lien on any property of any Person to secure the Secured Obligations.



“Series”: each of (x) the Credit Agreement Obligations and (y) any Additional
Obligations incurred pursuant to any Financing Document which, pursuant to any Accession Agreement,
are represented hereunder by a Secured Representative (in its capacity as such for such Secured
Obligations).


 


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“Specified Collateral Permitted Commodity Hedging Agreement”: any Secured Commodity
Hedging Agreement that by its terms provides that it is to be secured by specific properties of the
Loan Parties constituting Collateral but is not required to be secured by all of the Collateral
(excluding for this purpose and for the avoidance of doubt, any Collateral that is solely for the
benefit of certain Secured Parties pursuant to Section 5.5(b)).



“Specified Hedging Collateral”: with respect to any Specified Collateral Permitted
Commodity Hedging Agreement, those properties of the Loan Parties constituting the portion (but not
all) of the Collateral required under the terms of such Specified Collateral Permitted Commodity
Hedging Agreement to be pledged in favor of the Secured Commodity Hedging Counterparty party
thereto.



“Subsidiary Grantor”: means a “Subsidiary Guarantor” as defined in the Credit
Agreement as in effect on the Closing Date (without reference to any subsequent amendment,
restatement, modification or Refinance).




“Supplemental Collateral Trustee”: as defined in Section 7.2(b).



“Termination Payment”: any amount payable to or by a Borrower or any of the
Subsidiary Grantors in connection with a termination (whether as a result of the occurrence of an
event of default or other termination event) of any Secured Commodity Hedging Agreement or any
Secured Hedging Agreement, including any “Settlement Amount” or “Termination Payment”, together
with any Interest Expense due and payable by any of the Loan Parties in connection with such
amounts; provided that for the avoidance of doubt, “Termination Payments” shall not
include any Ordinary Course Settlement Payments due under any such Secured Commodity Hedging
Agreement or Secured Hedging Agreement that have been paid prior to such date of determination.



“Trust Estate”: has the meaning assigned in the Declaration of Trust in this
Collateral Trust Agreement.



“UCC”: the Uniform Commercial Code as in effect from time to time in the State of New
York or, when the context implies, the Uniform Commercial Code as in effect from time to time in
any other applicable jurisdiction.



1.2 Credit Agreement Definitions. The following terms shall have the meanings
assigned to them in the Credit Agreement as it is in effect on the Closing Date (without reference
to any subsequent amendment, restatement, modification or Refinance): Business Day, Closing Date,
indebtedness, Default, Disposition, GAAP, Governmental Authority, Hedging Agreements, Hedging
Counterparty, Loan, Obligations, Permitted Liens, Person, Responsible Officer, Secured Hedging
Counterparty, Subsidiary and Unrestricted Subsidiary.



1.3 Other Definitional Provisions. With reference to this Agreement, unless otherwise
specified herein:




(a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.




(b) The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import
shall refer to this Agreement as a whole and not to any particular provision thereof.




(c) The term “including” is by way of example and not limitation.


 


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(d) The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced,
whether in physical or electronic form.




(e) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until” each mean “to
but excluding”; and the word “through” means “to and including”.




(f) Section headings herein are included for convenience of reference only and shall
not affect the interpretation of this Agreement or any other Security Document.



1.4 Certifications, Etc. All certifications, notices, declarations, representations,
warrants and statements made by any officer, director or employee or a Loan Party pursuant to or in
connection with this Agreement or any other Security Document shall be made in such Person’s
capacity as officer, director or employee on behalf of the Loan Party and not in such Person’s
individual capacity.




SECTION 2. Lien Priorities.



2.1 Pari Passu. As among the Secured Parties, all Liens on the Collateral shall rank
pari passu, no Secured Party shall be entitled to any preferences or priority over any other
Secured Party with respect to the Collateral (except as otherwise provided in Section 4.1)
and the Secured Parties shall share in the Collateral and all Proceeds thereof in accordance with
the terms of this Agreement.



2.2 Prohibition on Contesting Liens. Each Secured Party agrees that it will not (and
hereby waives any right to) object to or contest or support any other Person in objecting to or
contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), (a) the
priority, validity, extent, perfection or enforceability of a Lien held by the Collateral Trustee
on behalf of any of the Secured Parties in the Collateral in accordance with the terms of this
Agreement or (b) any or all of the provisions of this Agreement; provided that nothing in
this Agreement shall be construed to prevent or impair the rights of Collateral Trustee or any
other Secured Party to enforce this Agreement.



2.3 No New Liens. Except as set forth in Section 5.5, the parties hereto
agree that neither the Borrowers nor the Subsidiary Grantors shall grant or permit any additional
Liens on any property or assets to secure any Secured Obligation unless it has granted or
concurrently grants a Lien on such property or assets to secure all Secured Obligations on a pari
passu basis.



SECTION 3. Enforcement.



3.1 Enforcement of Liens.



(a) The Controlling Secured Representative will have, subject to the terms of this Agreement,
the right to authorize and direct the Collateral Trustee with respect to the Security Documents and
the Collateral, including, without limitation, the exclusive right to authorize or direct the
Collateral Trustee to enforce, collect or realize on any Collateral or exercise any other right or
remedy with respect to the Collateral. Such exercise and enforcement shall include the rights of
the Collateral Trustee to sell or otherwise dispose of Collateral upon foreclosure, to incur
reasonable expenses in connection with such sale or disposition, and to exercise all the rights and
remedies of a secured creditor under the UCC and the Security Documents and of a secured creditor
under the Bankruptcy Code and other applicable law; provided that unless and until the
Collateral Trustee shall have received such direction, the Collateral Trustee may (but shall not be
obligated to) take such action, or refrain from taking such action, in order to
preserve or protect its Liens on and the value of the Collateral as it shall deem advisable in
the best interests of the Secured Parties.


 


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(b) Until the date of Discharge of Secured Obligations, except to the extent otherwise
directed or consented to by the Controlling Secured Representative, none of the Collateral Trustee,
any Secured Representative or any other Secured Party will:




(i) request judicial relief, in any Insolvency or Liquidation Proceeding or in any
other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement
of any right or remedy otherwise available to the Secured Parties in respect of the Liens
granted to the Collateral Trustee, for the benefit of the Secured Parties;




(ii) oppose or otherwise contest any motion for relief from the automatic stay or for
foreclosure or enforcement of Liens granted to the Collateral Trustee, for the benefit of
the Secured Parties, made by the Collateral Trustee, acting at the direction of, or as
consented to by, the Controlling Secured Representative, in any Insolvency or Liquidation
Proceeding;




(iii) oppose or otherwise contest any lawful exercise by the Collateral Trustee, acting
at the direction of, or as consented to by, the Controlling Secured Representative, of the
right to credit bid the Secured Obligations at any sale in foreclosure of the Liens granted
to the Collateral Trustee, for the benefit of the Secured Parties; or




(iv) oppose or otherwise contest any other request for judicial relief made in any
court by the Collateral Trustee, acting at the direction of, or as consented to by, the
Controlling Secured Representative, relating to the lawful enforcement of any First Lien;



provided, however, that the Collateral Trustee may take such actions as it deems
desirable to create, prove, preserve or protect the Liens upon any Collateral. Notwithstanding the
foregoing, both before and during an Insolvency and Liquidation Proceeding, any Secured Party and
any Secured Representative on behalf of the Required Secured Parties may take any actions and
exercise any and all rights that they would have as an unsecured creditor, including, without
limitation, the commencement of an Insolvency or Liquidation Proceeding against any Loan Party in
accordance with applicable law and the termination of any Financing Document in accordance with the
terms thereof; provided that the Secured Parties and the Secured Representatives may not
take any of the actions prohibited by clauses (i) through (iv) above or oppose or
contest any other claim that it has agreed not to oppose or contest under Section 6; and
provided, further, that, in the event that any Secured Party becomes a judgment
Lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured
creditor with respect to the Secured Obligations, such judgment Lien shall be subject to the terms
of this Agreement for all purposes as the other Liens securing the Secured Obligations are subject
to this Agreement.



(c) In exercising rights and remedies with respect to the Collateral after the occurrence and
during the continuance of any Event of Default, the applicable Secured Representative may, at the
direction of the Required Secured Parties, instruct the Collateral Trustee to enforce (or to
refrain from enforcing) the provisions of the Security Documents in respect of the Secured
Obligations and exercise (or refrain from exercising) remedies thereunder or any such rights and
remedies, all in such order and in such manner as the Collateral Trustee may determine, unless
otherwise directed by the Controlling Secured Representative, including:




(i) the exercise or forbearance from exercise of all rights and remedies in respect of
the Collateral;


 


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(ii) the enforcement or forbearance from enforcement of any Lien in respect of the
Collateral;




(iii) the exercise or forbearance from exercise of rights and powers of a holder of
Capital Stock or any other form of securities included in the Collateral to the extent
provided in the Security Documents;




(iv) the acceptance of the Collateral in full or partial satisfaction of the Secured
Obligations; and




(v) the exercise or forbearance from exercise in respect of the Collateral of all
rights and remedies of a secured lender under the UCC or any similar law of any applicable
jurisdiction or in equity.



(d) Without in any way limiting the generality of clause (c) above (but subject to the
rights of the Borrowers and the other Loan Parties under the Financing Documents and the provisions
of Section 5.2(a)), the Collateral Trustee, the Administrative Agent, each Secured
Commodity Hedging Counterparty and each other Secured Party and any of them may, at any time and
from time to time in accordance with the Financing Documents and/or applicable law, without the
consent of or notice to any other Secured Party (to the extent no such consent or notice is
otherwise required hereunder), without incurring responsibility to any other Secured Party and
without impairing or releasing the Lien priorities and other benefits provided in this Agreement
(even if any right of subrogation or other right or remedy of any other Secured Party is affected,
impaired or extinguished thereby), do one or more of the following:




(i) change the manner, place or terms of payment or change or extend the time of
payment of, or amend, renew, exchange, increase or alter, the terms of any of the Secured
Obligations or any Lien on any Collateral or guaranty thereof or any liability of the
Borrowers or any other Loan Party, or any liability incurred directly or indirectly in
respect thereof (including any increase in (pursuant to any incremental facilities under the
Credit Agreement or otherwise) or extension of the Secured Obligations, without any
restriction as to the tenor or terms of any such increase or extension) or otherwise amend,
renew, exchange, extend, modify or supplement in any manner any Liens held by the Collateral
Trustee or any of the Secured Parties, the Secured Obligations or any of the Financing
Documents, including pursuant to Section 5.3;




(ii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with
in any manner and in any order any part of the Collateral or any liability of the Borrowers
or any other Loan Party to the Secured Parties or the Collateral, or any liability incurred
directly or indirectly in respect thereof, to the extent, in all such cases, that such
Person has the right to take and is not prohibited from taking such actions under any or all
of the Financing Documents;




(iii) settle or compromise any Secured Obligation or any other liability of either
Borrower or any other Loan Party or any security therefor or any liability incurred directly
or indirectly in respect thereof and apply any sums by whomsoever paid and however realized
to any liability (including the Secured Obligations) in any manner or order; and




(iv) exercise or delay in or refrain from exercising any right or remedy against either
Borrower or any security or any other Loan Party or any other Person, elect any remedy and
otherwise deal freely with the Borrowers, any other Loan Party or any Collateral and any
security and any guarantor or any liability of the borrower or any other Loan Party to the
Secured Parties or any liability incurred directly or indirectly in respect thereof.


 


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(e) Following notice of any Event of Default received pursuant to Section 5.4, any
Secured Representative may request in writing that the Collateral Trustee pursue any lawful action
in respect of the Collateral in accordance with the terms of the Security Documents. Upon any such
written request, the Collateral Trustee shall seek the consent of the Required Secured Parties to
pursue such action (it being understood that the Collateral Trustee shall not be required to advise
the Required Secured Parties to pursue any such action). Following receipt of any notice that a
Event of Default has occurred, the Collateral Trustee may await direction from the Controlling
Secured Representative and will act, or decline to act, as directed by the Controlling Secured
Representative, in the exercise and enforcement of the Collateral Trustee’s interests, rights,
powers and remedies in respect of the Collateral or under the Security Documents or applicable law
and, following the initiation of such exercise of remedies, the Collateral Trustee will act, or
decline to act, with respect to the manner of such exercise of remedies as directed by the
Controlling Secured Representative. Subsequent to the Collateral Trustee receiving written notice
that any Event of Default has occurred entitling the Collateral Trustee to foreclose upon, collect
or otherwise enforce the First Liens then, unless it has been directed to the contrary by the
Controlling Secured Representative, the Collateral Trustee in any event may (but will not be
obligated to) take all lawful and commercially reasonable actions permitted under the Security
Documents that it may deem necessary or advisable in its reasonable judgment to protect or preserve
its interest in the Collateral and the interests, rights, powers and remedies granted or available
to the Collateral Trustee under, pursuant to or in connection with the Security Documents.




SECTION 4. Payments.



4.1 Application of Proceeds. Regardless of any Insolvency or Liquidation Proceeding
which has been commenced by or against either Borrower or any other Loan Party, Collateral or any
proceeds thereof received in connection with the sale or other disposition of, or collection on,
such Collateral upon the exercise of remedies under the Security Documents by the Collateral
Trustee shall be applied in the following order (it being agreed that the Collateral Trustee shall
apply such amounts in the following order as promptly as is reasonably practicable after the
receipt thereof; provided that such amounts shall not be so applied until such time as the
amount of the Secured Obligations has been determined in accordance with the terms hereof and under
the terms of the relevant Financing Document, including and subject to Sections 4.3 and
4.4 below):




first, on a pro rata basis, to the payment of all amounts due
to the Collateral Trustee, any Agent, and the Issuing Lenders (in such capacities) (other
than amounts constituting Interest Expenses) under any of the Financing Documents, excluding
in the case of the Issuing Lenders, amounts payable in connection with any unreimbursed
amount under any Letter of Credit;




second, on a pro rata basis, to any Secured Party which has
theretofore advanced or paid any costs, expenses or fees to any Agent or Issuing Lender,
other than any amounts covered by priority first, an amount equal to the amount
thereof so advanced or paid by such Secured Party and for which such Secured Party has not
been previously reimbursed;




third, on a pro rata basis, to the payment of, without
duplication, (a) all principal, interest, fees, charges and other amounts then due and
payable in respect of the Secured Obligations (including cash collateralization of all
outstanding Letters of Credit as required under the Credit Agreement or any other applicable
Financing Document) and (b) the payment of Permitted Secured Hedging Amounts then due and
payable to any Secured Commodity Hedging Counterparty under any Secured Commodity Hedging
Agreement; and




last, the balance, if any, after all of the Secured Obligations have been
indefeasibly paid in full in cash, to the Loan Parties or as otherwise required by
applicable law.


 


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4.2 Limitations on Payment Post Default. After (a) the commencement of any Insolvency
or Liquidation Proceeding in respect of any Loan Party or (b) (i) any of the Secured Obligations
outstanding under any of the Financing Documents has become due and payable in full (whether at
maturity, upon acceleration or otherwise) or any Secured Obligations outstanding under any of the
Financing Documents has not been paid when due and (ii) the Controlling Secured Representative
shall have instructed the Collateral Trustee to enforce, collect or realize on any Collateral or
exercise any other right or remedy with respect to the Collateral (in the case of either
clause (a) or clause (b), a “Remedy Event”), no payment of cash (or the
equivalent of cash) shall be made from the proceeds of Collateral by any Loan Party to the
Collateral Trustee for the benefit of any Secured Party, except as provided for in
Section 4.1.




4.3 Secured Obligation Balances.



(a) (i) Promptly following the written request of the Collateral Trustee (and, in any event,
within five Business Days) and (ii) only for so long as any Additional Obligations are outstanding,
on the last Business Day of each March, June, September and December, each Secured Representative
shall give the Collateral Trustee written notice of the aggregate amount of the Secured Obligations
(including, with respect to the Secured Debt Obligations only, calculations of the Outstanding
Amount (calculated both with and without giving effect to the proviso to the definition of such
term)) then outstanding and owed by the relevant Borrower or any other Loan Party to the Secured
Parties represented by such Secured Representative under the applicable Financing Documents and any
other information that the Collateral Trustee may reasonably request; provided
however, that if a Secured Representative shall fail or refuse reasonably promptly to
provide the requested information, the Collateral Trustee shall be entitled to make any such
determination or not make any determination by such method as it may, in the exercise of its good
faith judgment, determine, including by reliance upon a certificate of the relevant Borrower. The
Collateral Trustee may rely conclusively, and shall be fully protected in so relying, on any
determination made by it in accordance with the provisions of the preceding sentence (or as
otherwise directed by a court of competent jurisdiction) and shall have no liability to any Loan
Party, any Secured Party or any other Person as a result of such determination. The Collateral
Trustee shall promptly following receipt of any such information, provide a copy of such
information to each other Secured Representative.



(b) Without limiting the foregoing, upon receipt of any of the monies referred to in
Section 4.1 above, the Collateral Trustee shall promptly provide notice to each Secured
Representative of the receipt of such monies. Within 10 Business Days of the receipt of such
notice, each Secured Representative shall give the Collateral Trustee written certification by an
authorized officer or representative thereof of the aggregate amount of the Secured Obligations
then outstanding owed by the relevant Borrower or any other Loan Party to the Secured Parties
represented by such Secured Representative under the applicable Financing Documents to be certified
to as presently due and owing and, as applicable, after giving effect to the application of any
Other Credit Support in respect of such Secured Obligations as contemplated by Section 4.4
(and, promptly upon receipt thereof, the Collateral Trustee shall provide a copy of each such
certification to each other Secured Representative). Unless otherwise directed by a court of
competent jurisdiction or each Secured Representative, the Collateral Trustee shall use the
information provided for in such notices as the basis for applying such monies in accordance with
Section 4.1 above. Notwithstanding anything herein to the contrary, the proceeds of any
Collateral shall not be applied to the Secured Obligations until each Secured Commodity Hedging
Counterparty shall have applied any Other Credit Support to the Secured Obligations owing to such
Secured Commodity Hedging Counterparty, as contemplated by Section 4.4.


 


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(c) In calculating the amount of Secured Obligations owed to any Secured Commodity Hedging
Counterparty or Secured Hedging Counterparty, the applicable Permitted Secured Hedging Amount
and/or Termination Payment owed under any Secured Commodity Hedging Agreement or Secured Hedging
Agreement shall be determined by the relevant Secured Commodity Hedging Counterparty or Secured
Hedging Counterparty in accordance with the terms of the relevant Secured Commodity Hedging
Agreement or Secured Hedging Agreement, as applicable. In the event that such Secured Commodity
Hedging Agreement includes a confirmed transaction that constitutes a Specified Collateral
Permitted Commodity Hedging Agreement, the relevant Secured Commodity Hedging Counterparty shall
determine the amount of the Termination Payment that is either then due and payable or would be due
and payable under such Specified Collateral Permitted Commodity Hedging Agreement and shall only
setoff and net all Termination Payments that are entitled to the relevant Specified Hedging
Collateral, and such Termination Payments shall be distinct from any other Termination Payment owed
to the relevant Secured Commodity Hedging Counterparty under any Secured Commodity Hedging
Agreement that does not constitute a Specified Collateral Permitted Commodity Hedging Agreement or
a Specified Collateral Permitted Commodity Hedging Agreement that is secured by different Specified
Hedging Collateral.



4.4 Application of Other Credit Support. If following the occurrence of an Early
Termination Event under any Secured Commodity Hedging Agreement any Loan Party shall fail to pay
any of the Secured Obligations owing under such Secured Commodity Hedging Agreement as and when
required thereunder, then each applicable Secured Commodity Hedging Counterparty agrees that it
shall, to the extent permitted under such Secured Commodity Hedging Agreement and the terms of the
applicable Other Credit Support, but subject to the occurrence of any Other Credit Support
Exception, promptly (i) make a demand for payment under any Other Credit Support consisting of a
Letter of Credit or other letter of credit, cash collateral or a guarantee issued in favor of such
Secured Commodity Hedging Counterparty to support the Secured Obligations of the Loan Parties under
such Secured Commodity Hedging Agreement and (ii) apply the proceeds received under any Other
Credit Support consisting of a Letter of Credit or other letters of credit, cash collateral or
guarantee and any cash consisting of Other Credit Support pledged in favor of such Secured
Commodity Hedging Counterparty to reduce the outstanding amount of such Secured Obligations or
enforcement action in connection therewith.



4.5 Limitations on Obligations under Secured Commodity Hedging Agreements With Respect to
Specified Hedging Collateral. Notwithstanding anything herein to the contrary in connection
with any exercise of remedies, each Secured Commodity Hedging Counterparty that is party to any
Specified Collateral Permitted Commodity Hedging Agreement shall only be entitled to amounts in
respect of its Secured Obligations arising thereunder to the extent that proceeds from Collateral
being applied pursuant to Section 4.1 constitute the proceeds of Specified Hedging
Collateral in respect of such Specified Collateral Permitted Commodity Hedging Agreement.


 


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SECTION 5. Other Agreements.



5.1 Releases.



(a) Upon the request of any Loan Party in connection with any Disposition of Collateral or any
other transaction involving a proposed release of Collateral or any guarantee (other than in
connection with the exercise of any of the Collateral Trustee’s rights and remedies in respect of
the Collateral provided for herein) by any Loan Party, in each case to the extent permitted (if
addressed therein, or, otherwise, not prohibited) by the terms of the Credit Agreement and by the
terms of the other applicable Financing Documents (including pursuant to Section 8.5 of the
Credit Agreement) and in
accordance with the requirements (if any) of the relevant Security Documents, the Collateral
Trustee will, at the Company’s request and sole cost and expense, execute and deliver to such Loan
Party such releases and other documents (including UCC termination statements, reconveyances,
customary pay off letters and return of Collateral) as such Loan Party may reasonably request to
evidence and effectuate the concurrent release of (A) with respect to any Disposition, any Lien
granted under any of the Security Documents in any Collateral being disposed of in connection with
such Disposition, (B) with respect to any Disposition in respect of all of the Capital Stock in, or
assets of, such Loan Party, such Loan Party from its Secured Obligations under the Financing
Documents and/or such assets from the Lien granted under any of the Security Documents, or (C) with
respect to any Subsidiary Grantor that is designated as an Unrestricted Subsidiary or where it is
otherwise expressly provided that such Subsidiary is no longer required to be a Subsidiary Grantor
under the Credit Agreement and the other applicable Financing Documents, such Subsidiary from its
Secured Obligations under the Financing Documents and/or the assets of such Subsidiary from the
Lien granted under any of the Security Documents.



(b) Upon the Discharge of Secured Obligations, all rights to the Collateral shall revert to
the applicable Loan Party, and, upon the written request of the Company, the Collateral Trustee
will, at the Company’s expense, (x) promptly cause to be transferred and delivered, without any
recourse, warranty or representation whatsoever, any Collateral and any proceeds received in
respect thereof, (y) execute and deliver to the Company and the other Loan Parties such UCC
termination statements and other documentation as the Company or any other Loan Party may
reasonably request to effect the termination and release of the Liens on the Collateral and (z)
execute and deliver to the Company and the other Loan Parties such other documentation as the
Company or any other Loan Party may reasonably request to affect the termination of such Loan
Party’s obligations under the Security Documents to which it is a party (other than any such
obligation which is intended by its terms to survive the Discharge of Secured Obligations).



(c) Notwithstanding anything herein to the contrary, the Collateral Trustee, on behalf of the
Secured Parties, will have the exclusive right (but subject to the provisions of the Financing
Documents) to make determinations regarding the release or disposition of any of the Collateral,
without any consultation with, consent of, or notice to, with respect to any of the Collateral that
does not constitute Specified Hedging Collateral under any applicable Specified Collateral
Permitted Commodity Hedging Agreement, the Secured Commodity Hedging Counterparty party thereto.



(d) Each of the Secured Commodity Hedging Counterparties party to a Specified Collateral
Permitted Commodity Hedging Agreement agrees that it shall promptly, upon the written request of
the Company, at the Company’s expense, execute and deliver to the Company and other Loan Parties
such documentation as the Company may request from time to time to release any Lien for their
benefit in such capacity on any of the Collateral that does not constitute Specified Hedging
Collateral under the terms of Specified Collateral Permitted Commodity Hedging Agreement to which
it is a party.



(e) Subject to any requirements of the Financing Documents, including, without limitation,
Section 11.1 of the Credit Agreement, without further written consent or authorization from
any Secured Party, the Collateral Trustee shall execute any documents or instruments necessary to
release any Collateral or guarantee to the extent the relevant Secured Parties have consented to
such release in accordance with the terms of the Financing Documents.


 


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5.2 Amendments to Financing Documents.



(a) Terms of the Secured Obligations and the Financing Documents may be amended, modified,
supplemented or extended from time to time, and the aggregate amount of the Secured Obligations may
be increased or Refinanced, in each event, without notice to or consent by any
Secured Party that is not a party to such Financing Document and without affecting the
provisions hereof, and the Lien priorities provided herein shall not be altered or otherwise
affected by any such amendment, modification, supplement, extension, increase or Refinancing of the
Secured Obligations, or any portion thereof; provided, however, that the holders of
any such indebtedness that has been Refinanced under the Loan Documents (or any agent or trustee
therefor) execute and deliver an Accession Agreement to the Collateral Trustee in accordance with
Section 5.3.



(b) Notwithstanding anything herein to the contrary, during the continuance of any Event of
Default, to the extent permitted by the applicable Financing Documents, any Secured Party shall be
entitled in its reasonable discretion to make payments or advances to the Collateral Trustee, any
Loan Party or any third party for the purpose of protecting, preserving or defending the value of
the Collateral.



(c) Notwithstanding anything to the contrary in this Agreement, and subject to
Section 5.2(d) below, in addition to the consent of the Borrowers and the Subsidiary
Grantors required by Section 9.3(a), the consent of the Controlling Secured Representative
shall be required for all amendments, modifications, waivers or terminations of this Agreement,
other than as permitted pursuant to Section 9.3(b) hereof.



(d) Notwithstanding anything to the contrary in this Agreement or in any of the Security
Documents in any case where the Secured Commodity Hedging Counterparties would be materially and
adversely affected thereby (it being understood that the undertaking of any transactions permitted
by Section 5.6 (as in effect on the date hereof) shall not be deemed to materially and adversely
affect the Secured Commodity Hedging Counterparties), without the written consent of the Required
Commodity Hedging Counterparties (or, if less than all of the Secured Commodity Hedging
Counterparties are so disadvantaged or otherwise discriminated against, the prior written consent
of each such Secured Commodity Hedging Counterparty that would be materially and adversely affected
thereby), no amendment, modification, termination or consent in respect of this Agreement or the
Security Documents shall be effective if the effect thereof would (directly or indirectly,
including through definitional terms used in any of the following): (A) amend the definition of
“Commodity Hedging Secured Obligations”, “Early Termination Event”, “Eligible Hedging Voting
Amount”, “Secured Commodity Hedging Agreement”, “Secured Obligations”, “Secured Parties”, “Ordinary
Course Settlement Payments”, “Other Credit Support”, “Other Credit Support Amount”, “Other Credit
Support Exception”, “Permitted Secured Hedging Amount”, “Required Secured Parties”, “Required
Commodity Hedging Counterparties”, “Secured Hedging Agreement” or “Termination Payment”; (B) change
the order of application of proceeds of Collateral and other payments set forth in
Section 4.1 or any other provision setting forth a priority of payment in respect of the
Secured Obligations (to the extent such provisions relate to a Secured Commodity Hedging
Agreement); or (C) in the case of any Secured Commodity Hedging Agreement, cause the Secured
Obligations owed under any such Secured Commodity Hedging Agreement to cease to be secured on a
First Lien, pari passu basis with all other Secured Obligations with respect to Collateral.
Notwithstanding the foregoing or anything to the contrary contained herein, (i) no amendment,
modification, waiver, supplement, termination or consent shall be made or given with respect to
this Agreement or any Security Document including any intercreditor agreement entered into by the
Collateral Trustee pursuant to the authority granted under Section 7.9 which has the effect of
disproportionately disadvantaging, or otherwise discriminating against, the Secured Commodity
Hedging Counterparties relative to the other Secured Parties without the prior written consent of
the Required Commodity Hedging Counterparties, or, if less than all of the Secured Commodity
Hedging Counterparties are so disadvantaged or otherwise discriminated against, the prior written
consent of each such Secured Commodity Hedging Counterparty that would be materially and adversely
affected thereby.


 


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5.3 Refinancings of Credit Agreement.



(a) Subject to the limitations set forth in the applicable Financing Documents (if any), each
Loan Party and each Secured Party acknowledges and agrees that the Credit Agreement may be
Refinanced in accordance with this Section 5.3. At any time concurrently with or after the
Discharge of Secured Obligations (or the Discharge of Secured Obligations other than Additional
Obligations), either of the Borrowers thereafter enter into a Refinancing of the Credit Agreement
(a “Replacement Credit Agreement”) and any related Loan Documents (as defined in the
Replacement Credit Agreement), then such Discharge of Secured Obligations (or the Discharge of
Secured Obligations other than Additional Obligations), as applicable, shall automatically be
deemed not to have occurred for all purposes of this Agreement (other than with respect to any
actions taken as a result of the occurrence of such first Discharge of Secured Obligations (or the
Discharge of Secured Obligations other than Additional Obligations)), and the Replacement Credit
Agreement and related Loan Documents (as defined in the Replacement Credit Agreement) and the
obligations under such Replacement Credit Agreement and related Loan Documents (as defined in the
Replacement Credit Agreement) shall automatically be treated as “Secured Obligations”, “Loans”,
“Letters of Credit”, “Commitments”, a “Credit Agreement”, and “Loan Documents”, as applicable, and
the parties and agents thereto “Lenders”, “Lender Parties” and “Secured Parties”, as applicable,
for all purposes of this Agreement, including for purposes of the Lien priorities and rights in
respect of Collateral set forth herein, and the new administrative agent or trustee thereunder, if
any (the “New Administrative Agent”) shall automatically be treated as the “Administrative
Agent” hereunder and the New Collateral Trustee (as defined below) shall be appointed hereunder as
the “Collateral Trustee” for all purposes of this Agreement. Upon receipt of a notice (the
“New indebtedness Notice”) stating that the Borrowers have entered into a new Financing
Document, which notice shall include the identity of the new collateral agent (such agent, the
“New Collateral Trustee”), the Secured Commodity Hedging Counterparties and all other
Secured Parties party hereto at such time shall promptly (a) enter into such documents and
agreements (including amendments or supplements to this Agreement) as the Company or such New
Collateral Trustee shall reasonably request in order to provide to the New Collateral Trustee the
rights contemplated hereby, in each case consistent in all material respects with the terms of this
Agreement and (b) deliver to the New Collateral Trustee any Pledged Collateral held by it together
with any necessary endorsements (or otherwise allow the New Collateral Trustee to obtain control of
such Pledged Collateral).



(b) Upon termination of the Credit Agreement, including in connection with any amendment and
restatement or Refinancing, the Liens securing the Secured Commodity Hedging Counterparties and, if
set forth in the applicable Financing Documents, the Liens securing any Additional Obligations
shall survive.



5.4 Notices; Certain Actions. So long as any Secured Obligations remain outstanding
in respect of more than one class of Secured Parties, the following provisions shall apply:




(a) Each Secured Representative hereby agrees to give, pursuant to the terms set forth
in the Financing Documents, the Collateral Trustee and each other Secured Representative
prompt written notice of the occurrence of (i) any Event of Default under such Person’s
Financing Documents, as applicable, of which such Person has written notice, and
(ii) acceleration of the maturity of any Secured Obligations under any of the Financing
Documents for which it acts as a Secured Representative wherein such Secured Obligations
have been declared to be or have automatically become due and payable prior to the scheduled
maturity thereof or termination date thereunder (or similar remedial actions including
demands for cash collateral, have been taken) and setting forth the aggregate amount of
Secured Obligations (including the Outstanding Amount (calculated both with


 


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and without
giving effect to the proviso to the definition of such term)) that have been so accelerated under such
Financing Documents, in each case, as soon as practicable after the occurrence thereof (and,
in any event, within five Business Days after the occurrence thereof); provided,
however, that the failure to provide such notice shall not limit or impair the
rights of the Secured Parties, or the obligations of the Borrowers or any other Loan Party,
hereunder or under the other Financing Documents. No Agent or any other Secured
Representative shall be deemed to have knowledge or notice of the occurrence of an Event of
Default under the Financing Documents to which it is a party until such Agent or such other
Secured Representative has received a written notice of such Event of Default from any other
Agent or any other such Secured Representative, the relevant Borrower, the other Loan
Parties or any other Secured Party for whom such Agent or such Secured Representative is
acting as representative, agent or trustee.



(b) The Collateral Trustee hereby agrees to give each Secured Representative written
notice of the occurrence of an Event of Default promptly following receipt thereof of
written notice to it and provide a copy of all other information provided to it by the
Company or any other Loan Party under the Security Documents upon request.



(c) Each Loan Party hereby agrees that, at any time and from time to time, at its sole
cost and expense, it shall promptly execute and deliver all further agreements, instruments,
documents and certificates and take all further action that may be necessary in order to
fully effect the purposes of this Agreement and the Security Documents (including, to the
extent required by any Security Document, the delivery of possession of any Collateral
represented by certificated securities that hereafter comes into existence or is acquired in
the future to the Collateral Trustee as pledgee for the benefit of the Secured Parties) and
to enable the Collateral Trustee to exercise and enforce their rights and remedies under the
Security Documents with respect to the Collateral or any part thereof.



(d) Each of the Secured Commodity Hedging Counterparties agrees that if, at any time
and from time to time, any or all of the Credit Agreement is Refinanced in whole or in part,
and in connection with any such Refinancing it is necessary (as reasonably determined by the
Company) for the parties to enter into one or more new agreement(s) setting forth the
agreements of the parties with respect to certain intercreditor arrangements, guarantees or
new collateral or security documents, it shall execute such agreements and documents as the
Company may reasonably request in respect thereof to the extent that such agreements and
documents are otherwise in accordance with the terms of the Secured Commodity Hedging
Agreement to which it is a party (it being acknowledged and agreed that any intercreditor
arrangements, guarantees or new collateral or security documents which contain materially
the same provisions as the then existing comparable agreements and that do not have the
effect of disproportionately disadvantaging, or otherwise discriminating against, such
Secured Commodity Hedging Counterparty to any greater extent than in the existing comparable
agreements, shall be deemed to be acceptable to such Secured Commodity Hedging
Counterparty); provided that, notwithstanding any provision in this clause to the
contrary, no Secured Commodity Hedging Counterparty shall be obligated to execute any
intercreditor, collateral, security, guarantee or other document unless any applicable
Security Documents secure the Loan Parties’ obligations to such Secured Commodity Hedging
Counterparty on a First Lien pari passu basis with the other Secured Obligations as
contemplated by this Agreement as in effect on the date hereof.


 


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5.5 Letters of Credit; Cash Collateral Accounts; Acknowledgment of Security Interest.



(a) Subject to the terms of this Section 5.5(a), nothing contained in this Agreement
shall be construed (i) to impair the rights of any Secured Commodity Hedging Counterparty to
exercise its rights and remedies with respect to any cash collateral pledged for its sole benefit
or as a beneficiary under and pursuant to any Other Credit Support issued or pledged in its favor
in accordance with the terms of all of the Financing Documents, (ii) to impair the rights of any
Commodity Hedging Counterparty to exercise any of its rights and remedies as an unsecured creditor
under any or all Secured Hedging Agreements, subject to Section 3.1(b), or (iii) to impair
the rights of any Secured Commodity Hedging Counterparty to exercise its rights to setoff and net
amounts under and among any Secured Hedging Agreement to which it is a party in accordance with the
terms thereof; provided that each Secured Commodity Hedging Counterparty agrees that it
shall only exercise such rights of setoff and netting, in the case of any Secured Commodity Hedging
Counterparty, among amounts owing by or to such Secured Commodity Hedging Counterparty under any
Secured Commodity Hedging Agreements to which it is a party.



(b) Notwithstanding anything to the contrary, in the event any cash collateral accounts are
established in connection with cash collateralizing Letters of Credit as contemplated by the
definition of Discharge of Secured Obligations and the definition of Discharge of Credit Agreement
Obligations or as otherwise contemplated by the Financing Documents, such cash collateral account
shall only be for the benefit of the particular Secured Party or Secured Parties who issued or have
participation interests in such Letters of Credit being cash collateralized.



(c) Each of the Secured Commodity Hedging Counterparties hereby acknowledges and consents to
the applicable Loan Party’s collateral assignment (subject to Section 5.5(a)) for the
benefit of the Secured Parties of such Loan Party’s rights, title and interest, in, to and under
each of the Secured Commodity Hedging Agreements to which it is a party.




5.6 Additional Obligations.



(a) Subject to the limitations set forth in the Financing Documents, each Loan Party and each
Secured Party acknowledges and agrees that the Collateral may secure additional obligations of the
Borrowers and the other Loan Parties in respect of (i) the Refinancing of the Credit Agreement in
accordance with Section 5.3, (ii) Secured Commodity Hedging Agreements, (iii) Secured
Hedging Agreements, and (iv) Additional Obligations, in each case subject to compliance with this
Section 5.6. Upon (x) execution and delivery to the Collateral Trustee of an Accession
Agreement by the Persons to whom the obligations referred to in the immediately precedent sentence
are owed (or by the agent, trustee or representative representing such Person), (y) compliance with
the procedures set forth in clause (b) below, and (z) upon satisfaction of all requirements set
forth in this Agreement and the Security Documents as to the confirmation, grant or perfection of
the Collateral Trustee’s Lien to secure such obligations, such Persons shall become “Secured
Parties” hereunder, and the Loan Parties’ obligations to such Persons shall become “Secured
Obligations” hereunder, such Refinancing of the Credit Agreement, Secured Commodity Hedging
Agreements, Secured Hedging Agreements, or Additional Obligations, as applicable, and all of the
Loan Parties’ obligations in respect of thereof, shall become “Secured Obligations” hereunder, and
the agreements evidencing, governing or representing such obligations shall become “Financing
Documents” hereunder. Each Loan Party and each Secured Party agrees that this Agreement and the
applicable Security Documents may be amended by the Loan Parties and the Collateral Trustee without
the consent of any Secured Party, and each Secured Party hereby authorizes the Collateral Trustee
to execute any such amendments, to the extent deemed by the Collateral Trustee necessary or
desirable to (i) effectuate the intent of this Section 5.6, (ii) cause the Liens granted
thereby to secure all such Secured Obligations (to the extent Liens in favor of such Persons are
permitted (if addressed therein, or, otherwise, not prohibited) by the terms of the Credit
Agreement and by the terms of
all of the other applicable Financing Documents) and (iii) cause such Persons to constitute
and have all rights and benefits of Secured Parties under this Agreement and the other Security
Documents.


 


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(b) With respect to any additional obligations referred to in Section 5.6(a) above to
be secured hereunder after the date hereof, the Company will be permitted to designate as an
additional holder of Secured Obligations hereunder each Person who is, or who becomes, the holder
of Secured Obligations (and the agent, trustee or representative acting on behalf of such holder)
incurred by the Borrowers or a Subsidiary Grantor in accordance with and as permitted (if addressed
therein, or, otherwise, not prohibited) by the terms of the Credit Agreement and by the terms of
the other applicable Financing Documents. The Company may effect such designation by delivering to
the Collateral Trustee, with copies to each Secured Representative, each of the following:




(1) a certificate of a Responsible Officer of the Company stating that the Company or
the relevant Subsidiary Grantor intends, as applicable,




(A) to enter into a Secured Commodity Hedging Agreement, and that such additional
obligations (i) are Eligible Commodity Hedging Obligations, (ii) will be Secured Obligations
and (iii) are permitted (if addressed therein, or, otherwise, not prohibited) by the terms
of the Credit Agreement and by the terms of the other applicable Financing Documents to be
incurred by the relevant Loan Party and secured by a First Lien equally and ratably with all
previously existing and future Secured Obligations, or




(B) to incur Additional Obligations or enter into a Refinancing of the Credit Agreement
or a Replacement Credit Agreement, which obligations (i) will be Secured Obligations and
(ii) are permitted (if addressed therein, or, otherwise, not prohibited) by the terms of the
Credit Agreement and by the terms of the other applicable Financing Documents to be incurred
by the relevant Loan Party and secured with a First Lien equally and ratably with all
previously existing and future Secured Obligations; and




(2) a written notice specifying the name and address of the Secured Representative for
such additional obligations for purposes of this Agreement.



(c) Notwithstanding the foregoing, nothing in this Agreement will be construed to allow any
Loan Party to incur additional indebtedness or grant additional Liens unless in each case otherwise
permitted (if addressed therein, or, otherwise, not prohibited) by the terms of the Credit
Agreement and by the terms of all other applicable Finance Documents.




SECTION 6. Insolvency or Liquidation Proceedings.



6.1 Finance and Sale Issues. If the Company or any other Loan Party shall be subject
to any Insolvency or Liquidation Proceeding and the Collateral Trustee (acting at the direction of
the Required Secured Parties) shall desire to permit the use of “Cash Collateral” (as such
term is defined in Section 363(a) of the Bankruptcy Code), on which the Collateral Trustee or any
other creditor has a Lien or to permit the Company or any other Loan Party to obtain financing,
whether from the Secured Parties or any other Person under Section 364 of the Bankruptcy Code or
any similar Bankruptcy Law (“DIP Financing”), then the Administrative Agent (on behalf of
itself and the Lender Parties), each Secured Commodity Hedging Counterparty, and each other Secured
Party agrees that such Secured Party (a) will be deemed to have consented to, will raise no
objection to, nor support any other Person objecting to, the use of such Cash Collateral or such
DIP Financing so long as (i) each Secured Party retains the right to object to such use of Cash
Collateral or to the granting of any priming liens over any Collateral if the terms thereof,
including the terms of adequate protection (if any) granted to the Secured Parties in
connection therewith, do not provide for materially equal treatment to all Secured Parties,
(ii) the DIP Financing does not expressly require the liquidation of any Collateral prior to a
default under the DIP Financing documentation and (iii) if any Cash Collateral order contemplates
the liquidation of Collateral, such order provides that the Liens of the Secured Parties will
attach to the proceeds of such liquidation equally and ratably, (b) will not request or accept
adequate protection or any other relief in connection with the use of such Cash Collateral or such
DIP Financing, and (c) agrees that notice received two calendar days prior to the entry of an order
approving such usage of Cash Collateral or approving such DIP Financing shall be adequate notice.


 


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6.2 Avoidance Issues. If any Secured Party is required in any Insolvency or
Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company or
any other Loan Party for any reason, including without limitation because it was found to be a
fraudulent or preferential transfer, any amount paid in respect of the Secured Obligations (a
“Recovery”), whether received as proceeds of security, enforcement of any right of set-off
or otherwise, then such Secured Party shall be entitled to a reinstatement of Secured Obligations
with respect to all such recovered amounts. In such event (a) the Discharge of Secured Obligations
or Discharge of Credit Agreement Obligations, as applicable, shall be deemed not to have occurred
and (b) if this Agreement shall have been terminated prior to such Recovery, this Agreement shall
be reinstated in full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto from such date of
reinstatement. To the extent that such recovered amount had previously reduced the Eligible
Hedging Voting Amount of any Secured Commodity Hedging Counterparty, then upon reinstatement
pursuant to this Section 6.2, such amount shall be added back to such Secured Party’s
Eligible Hedging Voting Amount.



6.3 Certain Bankruptcy Rights of Secured Commodity Hedging Counterparties.
Notwithstanding anything to the contrary contained herein, but without prejudice to any requirement
to distribute Collateral or the proceeds of Collateral among the parties in accordance with the
terms hereof, nothing in this Agreement shall constitute a waiver of, or otherwise impair the
exercise of, any rights which the Secured Commodity Hedging Counterparties may have under the
following provisions of the Bankruptcy Code: Section 362(b)(6), (17) and (27), Section 546(e), (g)
and (j), Section 556, Section 560 and/or Section 561.



SECTION 7. Collateral Trustee.



7.1 Appointment.



(a) U.S. Bank National Association is hereby appointed Collateral Trustee hereunder and under
the other Financing Documents and each of the Administrative Agent (for itself and on behalf of
each Lender Party), each Secured Commodity Hedging Counterparty and each other Secured Party hereby
authorizes U.S. Bank National Association to act as Collateral Trustee in accordance with the terms
hereof and the other Security Documents. The Collateral Trustee hereby agrees to act in its
capacity as such upon the express conditions contained herein and the other Security Documents, as
applicable. Each of the Administrative Agent (for itself and on behalf of each Lender Party), each
Secured Commodity Hedging Counterparty and each other Secured Party irrevocably authorizes the
Collateral Trustee to take such action on their behalf and to exercise such powers, rights and
remedies hereunder and under the other Security Documents as are specifically delegated or granted
to the Collateral Trustee by the terms hereof and thereof, together with such powers, rights and
remedies as are reasonably incidental thereto. The Collateral Trustee shall have only those duties
and responsibilities that are expressly specified herein and the other Financing Documents. The
Collateral Trustee may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. The
Collateral Trustee shall not have, by reason hereof or any of the other Financing Documents, a
fiduciary relationship in respect of any Secured Party, and nothing herein or in any of the other
Financing Documents, expressed or implied, is intended to or shall be so construed as to impose
upon the Collateral Trustee any obligations in respect hereof or any of the other Financing
Documents except as expressly set forth herein or in the other Security Documents.


 


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(b) Except as expressly set forth in this Section 7, the provisions of this
Section 7 are solely for the benefit of the Collateral Trustee and the Secured Parties, and
no Loan Party shall have any rights as a third party beneficiary of any of the provisions hereof.




7.2 Delegation of Duties.



(a) The Collateral Trustee may exercise any of its powers, rights and remedies and perform any
of its duties under this Agreement and the Financing Documents (including for purposes of holding
or enforcing any Lien on the Collateral or any portion thereof granted under the Security Documents
or of exercising any rights or remedies thereunder) by or through its employees, agents or
attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts of
its choice concerning all matters pertaining to such duties. The Collateral Trustee shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact selected by it with
reasonable care.



(b) The Collateral Trustee may also from time to time, when the Collateral Trustee deems it to
be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents,
collateral subagents or attorneys-in-fact (each, a “Supplemental Collateral Trustee”) with
respect to all or any part of the Collateral; provided, however, that no such
Supplemental Collateral Trustee shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing by such Collateral
Trustee. Should any instrument in writing from the Company or any other Loan Party be required by
any Supplemental Collateral Trustee so appointed by the Collateral Trustee to more fully or
certainly vest in and confirm to such Supplemental Collateral Trustee such rights, powers,
privileges and duties, the Company shall, or shall cause such Loan Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by the Collateral Trustee. If any
Supplemental Collateral Trustee, or successor thereto, shall die, become incapable of acting,
resign or be removed, all rights, powers, privileges and duties of such Supplemental Collateral
Trustee, to the extent permitted by law, shall automatically vest in and be exercised by the
Collateral Trustee until the appointment of a new Supplemental Collateral Trustee. No Agent shall
be responsible for the negligence or misconduct of any agent, attorney-in-fact or Supplemental
Collateral Trustee that it selects in accordance with the foregoing provisions of this
Section 7.2(b) in the absence of such Agent’s gross negligence or willful misconduct (as
determined by a final non-appealable judgment of a court of competent jurisdiction).



(c) Any notice, request or other writing given to the Collateral Trustee shall be deemed to
have been given to each Supplemental Collateral Trustee. Every instrument appointing any
Supplemental Collateral Trustee shall refer to this Agreement and the conditions of this
Section 7.2.



(d) Any Supplemental Collateral Trustee may at any time appoint the Collateral Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do
any lawful act under or in respect of this Agreement on its behalf or in its name.


 


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7.3 Exculpatory Provisions.



(a) Neither the Collateral Trustee nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by any of them under or in connection with this Agreement or any other Financing
Document (except for its own or, subject to Section 7.2(a), such Person’s gross negligence or
willful misconduct, as determined in the final non-appealable judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein) or (b) responsible in any
manner to any of the Secured Parties for any recitals, statements, representations or warranties
made by either of the Borrowers, any other Loan Party or any officer thereof contained in this
Agreement or any other Financing Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Collateral Trustee under or in
connection with, this Agreement or any other Financing Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing
Document, or the perfection or priority of any Lien or security interest created or purported to be
created under any of the Financing Documents, or for any failure of the Borrowers or any other Loan
Party to perform its obligations hereunder or thereunder. The Collateral Trustee shall not be
under any obligation to any Lender Party to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other
Financing Document, or to inspect the properties, books or records of any Loan Party or any
Affiliate thereof. The Collateral Trustee shall not be under any obligation to the Administrative
Agent, Secured Commodity Hedging Counterparty or any other Secured Party to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or conditions of, this
Agreement or any other Financing Document, or to inspect the properties, books or records of any
Loan Party.



(b) The Collateral Trustee shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or any of the other
Security Documents or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until the Collateral Trustee shall have received a direction of
the Controlling Secured Representative and, upon receipt of such direction the Collateral Trustee
shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such directions. Without prejudice to the generality
of the foregoing; (i) the Collateral Trustee shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by it to be genuine
and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled
to rely and shall be protected in relying on opinions and judgments of attorneys (who may be
attorneys for a Loan Party), accountants, experts and other professional advisors selected by it;
(ii) no Secured Party shall have any right of action whatsoever against the Collateral Trustee as a
result of the Collateral Trustee acting or (where so instructed) refraining from acting hereunder
or any of the other Security Documents in accordance with a direction of the Controlling Secured
Representative; and (iii) the Collateral Trustee shall be fully protected in performing (and is
hereby authorized by the Secured Parties to perform) the ministerial and administrative acts
contemplated by or expressly provided in the Security Documents. Whenever in the administration of
this Agreement the Collateral Trustee shall deem it necessary or desirable that a factual or legal
matter be proved or established in connection with the Collateral Trustee taking, suffering or
omitting to take any action hereunder, such matter (unless other evidence in respect thereof is
herein specifically prescribed) may be deemed to be conclusively proved or established by a
certificate of a Responsible Officer of the Company or, if appropriate, from a legal opinion from
counsel to the Company.



(c) Beyond the exercise of reasonable care in the custody thereof and is otherwise
specifically set forth herein, the Collateral Trustee shall not have any duty as to any of the
Collateral in its possession or control or in the possession or control of any agent or bailee or
any income thereon or as to preservation of rights against prior parties or any other rights
pertaining thereto and the Collateral Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public office at an time
or times or otherwise perfecting or maintaining the perfection of any security interest in the
Collateral. The Collateral Trustee shall not be liable or responsible for any
loss or diminution in the value of any of the Collateral, by reason of the act or omission of
any carrier forwarding agency or other agent or bailee selected by the Collateral Trustee in good
faith.


 


28









 





(d) The Collateral Trustee shall be fully justified in failing or refusing to take any action
under this Agreement or under any other Security Document (i) if such action would, in the
reasonable opinion of the Collateral Trustee, be contrary to Applicable Law or the terms of this
Agreement or (ii) if such action is not specifically provided for in this Agreement or under any
other Security Document, it shall not have received a direction of the Controlling Secured
Representative to take such action.



7.4 Notice of Event of Default. The Collateral Trustee shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless the Collateral
Trustee has received notice from a Secured Party or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice of default”.
In the event that the Collateral Trustee receives such a notice, it shall give notice thereof to
the Secured Representatives.



7.5 Non-Reliance on Collateral Trustee and Other Secured Parties. Each of the
Administrative Agent (on behalf of itself and each Lender Party), each Secured Commodity Hedging
Counterparty and each other Secured Party expressly acknowledges that neither the Collateral
Trustee nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Collateral Trustee hereinafter
taken, including any review of the affairs of the Borrowers or any other Loan Party, shall be
deemed to constitute any representation or warranty by the Collateral Trustee to such Person. Each
of the Administrative Agent (on behalf of itself and each Lender Party), each Secured Commodity
Hedging Counterparty and each other Secured Party represents to the Collateral Trustee that it has,
independently and without reliance upon the Collateral Trustee or any other Secured Party, and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Borrowers and each other Loan Party and made its own decision to make its
extensions of credit under the Financing Documents and enter into this Agreement. Each of the
Administrative Agent (on behalf of itself and each Lender Party), each Secured Commodity Hedging
Counterparty and each other Secured Party also represents that it will, independently and without
reliance upon the Collateral Trustee or any other Secured Party, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other
Financing Documents, and to make such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and creditworthiness of the
Borrowers and each other Loan Party. The Collateral Trustee shall have no duty or responsibility
to provide any Secured Party with any credit or other information concerning the business, assets,
operations, properties, financial condition, prospects or creditworthiness of the Borrowers or any
other Loan Party that may come into the possession of the Collateral Trustee or any of its
respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.



7.6 Collateral Trustee in Individual Capacity. The Collateral Trustee and its
Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with the Borrowers and any other Loan Party as though the Collateral Trustee were not a Collateral
Trustee hereunder and under the other Financing Documents. With respect to the loans made by it,
the Collateral Trustee shall have the same rights and powers under the Credit Agreement and the
other Financing Documents as any Secured Party and may exercise the same as though it were not a
Collateral Trustee, and the terms “Lender Party” and “Lender Parties” shall include the Collateral
Trustee in its individual capacity and under the Loan Documents.


 


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7.7 Successor Collateral Trustees. The Collateral Trustee may at any time give notice
of its resignation to the Secured Parties or their Secured Representatives and the Company. Upon
receipt of any such notice of resignation, the Controlling Secured Representative shall have the
right, subject to the consent of the Company (not to be unreasonably withheld or delayed) so long
as no Default under Section 11.1 or 11.5 of the Credit Agreement is continuing, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Controlling Secured Representative and shall have accepted such appointment within
30 days after the retiring Collateral Trustee gives notice of its resignation, then the retiring
Collateral Trustee may on behalf of the Secured Parties, appoint a successor Collateral Trustee
meeting the qualifications set forth above; provided that if the Collateral Trustee shall
notify the Secured Parties (or their Secured Representative) and the Company that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (x) the retiring Collateral Trustee shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Collateral Trustee on behalf of the Secured Parties under any of
the Loan Documents, the retiring Collateral Trustee shall continue to hold such collateral
security, until such time as a successor Collateral Trustee is appointed, and (y) all payments,
communications and determinations provided to be made by, to or through such Collateral Trustee
shall instead be made by or to each Secured Party under any of the Financing Documents directly,
until such time as the Controlling Secured Representative with (except after the occurrence and
during the continuation of a Default or Event of Default) the consent of the Company (not to be
unreasonably withheld) appoint a successor Collateral Trustee as provided for above in this
paragraph. Upon the acceptance of a successor’s appointment as the Collateral Trustee hereunder,
and upon the execution and filing or recording of such financing statements, or amendments thereto,
and such amendments or supplements to the Mortgages, and such other instruments or notices, as may
be necessary or desirable, or as the Controlling Secured Representative may request, in order to
continue the perfection of the Liens granted or purported to be granted by the Security Documents,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Collateral Trustee, and the retiring Collateral Trustee shall
be discharged from all of its duties and obligations hereunder or under the other Financing
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Company (following the effectiveness of such appointment) to such Collateral Trustee
shall be the same as those payable to its predecessor unless otherwise agreed between the Company
and such successor. After the retiring Collateral Trustee’s resignation hereunder and under the
other Financing Documents, the provisions of this Section 7 shall continue in effect for
the benefit of such retiring Collateral Trustee, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Collateral Trustee was acting as the Collateral Trustee.




7.8 Security Documents.



(a) Agents under Security Documents and Guarantee. Each of the Administrative Agent
(on behalf of itself and each Lender Party), each Secured Commodity Hedging Counterparty and each
other Secured Party hereby further authorizes the Collateral Trustee, on behalf of and for the
benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with
respect to the Collateral and the Security Documents.


 


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(b) Right to Realize on Collateral and Enforce Guarantee. Anything contained in any
of the Financing Documents to the contrary notwithstanding, the Borrowers, the Collateral Trustee
and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to
realize upon any of the Collateral or to enforce the Guarantee Agreement, it being understood and
agreed that all powers, rights and remedies hereunder may be exercised solely by the Collateral
Trustee, on behalf of the
Secured Parties in accordance with the terms hereof and all powers, rights and remedies under
the Security Documents and the Guarantee Agreement may be exercised solely by the Collateral
Trustee and (ii) in the event of a foreclosure by the Collateral Trustee on any of the Collateral
pursuant to a public or private sale or other disposition, the Collateral Trustee or any Secured
Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other
disposition and the Collateral Trustee, as agent for and representative of the Secured Parties (but
not any Secured Party or Secured Parties in its or their respective individual capacities unless
the Controlling Secured Representative shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Collateral payable by the Collateral Trustee at
such sale or other disposition.



7.9 Indemnification. Each Lender Party (through the Administrative Agent), each
Secured Commodity Hedging Counterparty and each other Secured Party agrees to indemnify the
Collateral Trustee, in its capacity as such (to the extent not reimbursed by the Loan Parties and
without limiting the obligation of the Loan Parties to do so), ratably according to their
respective portions of the Secured Obligations in effect on the date on which indemnification is
sought, from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
occur, be imposed on, incurred by or asserted against the Collateral Trustee in any way relating to
or arising out of this Agreement, any of the other Financing Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Collateral Trustee under or in connection with any of the
foregoing; provided that no Secured Party shall be liable to the Collateral Trustee for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Collateral Trustee’s gross
negligence or willful misconduct as determined by a final non-appealable judgment of a court of
competent jurisdiction (SUBJECT TO THE PROVISO BELOW, WHETHER OR NOT CAUSED BY OR ARISING IN WHOLE
OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE ORDINARY NEGLIGENCE OF THE INDEMNIFIED
PARTY); provided, further, that no action taken or omitted to be taken in
accordance with the directions of the Controlling Secured Representative (or such other number or
percentage of the Secured Parties as shall be required) shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 7.10. In the case of any
investigation, litigation or proceeding giving rise to any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time occur, this Section 7.10 applies whether any such
investigation, litigation or proceeding is brought by any Secured Party or any other Person.
Without limitation of the foregoing, each Secured Party shall reimburse the Collateral Trustee upon
demand for its ratable share of any costs or out-of-pocket expenses (including attorneys’ fees)
incurred by the Collateral Trustee in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice rendered in respect of rights or responsibilities
under, this Agreement, any other Financing Document, or any document contemplated by or referred to
herein, to the extent that the Collateral Trustee is not reimbursed for such expenses by or on
behalf of the Borrowers; provided that such reimbursement by the Secured Party shall not
affect the Borrowers’ continuing reimbursement obligations with respect thereto. If any indemnity
furnished to the Collateral Trustee for any purpose shall, in the opinion of the Collateral
Trustee, be insufficient or become impaired, the Collateral Trustee may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished; provided in no event shall this sentence require any Secured Party
to indemnify the Collateral Trustee against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Secured Party’s pro rata
portion thereof; and provided further, this
sentence shall not be deemed to require any Secured Party to indemnify the Collateral Trustee
against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement resulting from the Collateral Trustee’s gross negligence or willful misconduct (as
determined by a final non-appealable judgment of a court of competent jurisdiction). The
agreements in this Section 7.10 shall survive the termination of this Agreement.


 


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SECTION 8. Reliance; Waivers; Etc.



8.1 Reliance. Other than any reliance on the terms of this Agreement, the
Administrative Agent (on behalf of itself and each Lender Party) acknowledges that it has,
independently and without reliance on any Secured Commodity Hedging Counterparty and based on
documents and information deemed by it appropriate, made its own credit analysis and decision to
enter into such Financing Documents and be bound by the terms of this Agreement and it will
continue to make its own credit decision in taking or not taking any action under the Financing
Document or this Agreement. Each Secured Commodity Hedging Counterparty acknowledges that it has
independently and without reliance on the Administrative Agent or any other Secured Party, and
based on documents and information deemed by it appropriate, made its own credit analysis and
decision to enter into each of the Financing Documents and be bound by the terms of this Agreement
and it will continue to make its own credit decision in taking or not taking any action under the
Financing Documents.




8.2 No Warranties or Liability.



(a) The Administrative Agent (on behalf of itself and each Lender Party) acknowledges and
agrees that no Secured Commodity Hedging Counterparty has made any express or implied
representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of any Secured Commodity Hedging Agreement,
the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as
otherwise expressly provided herein, the Secured Parties will be entitled to manage and supervise
their respective loans and extensions of credit under the Financing Documents in accordance with
law and as they may otherwise, in their sole discretion, deem appropriate.



(b) Except as otherwise provided herein, each Secured Commodity Hedging Counterparty
acknowledges and agrees that none of the Administrative Agent nor any Lender Party has made express
or implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Loan Documents, the ownership of any
Collateral or the perfection or priority of any Liens thereon. Except as otherwise expressly
provided herein, the Secured Commodity Hedging Counterparty will be entitled to manage and
supervise their respective transactions under their respective Secured Commodity Hedging Agreement
in accordance with law and as they may otherwise, in their sole discretion, deem appropriate.



8.3 Obligations Unconditional. All rights, interests, agreements and obligations of
each of the Collateral Trustee, the Administrative Agent and the Secured Parties, respectively,
hereunder shall remain in full force and effect irrespective of:




(a) any lack of validity or enforceability of any Financing Documents;




(b) except as otherwise expressly set forth in this Agreement, any change in the time,
manner or place of payment of, or in any other terms of, all or any of the Secured
Obligations or any amendment or waiver or other modification, including any increase in the
amount thereof, whether by course of conduct or otherwise, of the terms of any Financing
Document;


 


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(c) except as otherwise expressly set forth in this Agreement, any exchange of any
security interest in any Collateral or any other collateral, or any amendment, waiver or
other modification, whether in writing or by course of conduct or otherwise, of all or any
of the Secured Obligations or any guarantee thereof;




(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Loan Party; or




(e) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Loan Party in respect of the Collateral Trustee,
the Secured Obligations, or any Secured Party.




SECTION 9. Miscellaneous.



9.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any other Financing Document, the provisions of this Agreement shall govern
and control.




9.2 Effectiveness; Continuing Nature of this Agreement; Severability.



(a) This Agreement shall become effective when executed and delivered by each of the parties
hereto. The terms of this Agreement shall survive, and shall continue in full force and effect, in
any Insolvency or Liquidation Proceeding.



(b) Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to any Loan Party shall include such Loan Party as debtor
and debtor-in-possession and any receiver or trustee for such Loan Party (as the case may be) in
any Insolvency or Liquidation Proceeding.



(c) This Agreement shall terminate and be of no further force and effect on the date of
Discharge of Secured Obligations, subject to the rights of the Collateral Trustee, the
Administrative Agent and the Secured Parties under Sections 5.3 and 6.2.




9.3 Amendments; Waivers.



(a) Subject to Section 9.3(b), Section 9.3(c), Section 9.3(d) and
Section 5.6, no amendment, modification or waiver of any of the provisions of this
Agreement shall be deemed to be made unless the same shall be in writing signed on behalf of each
party required to consent thereto or their authorized Secured Representatives and each waiver, if
any, shall be a waiver only with respect to the specific instance involved and shall in no way
impair the rights of the parties making such waiver in any other respect or at any other time.


 


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(b) Notwithstanding the other provisions of this Section 9.3 or any other provision of
the Security Documents, the Borrowers, the Subsidiary Grantors and the Collateral Trustee may (but
shall have no obligation to) amend or supplement this Agreement or the Security Documents without
the consent of any other Secured Party: (i) to cure any ambiguity, defect or inconsistency; (ii)
to make any change that would provide any additional rights or benefits to the Secured Parties;
(iii) to make, complete or confirm any grant of Collateral permitted or required by this Agreement
or any of the Security
Documents or any release of any Collateral or guarantee that is otherwise permitted under the
terms of this Agreement and the Credit Agreement and permitted (if addressed therein, or,
otherwise, not prohibited) by the terms of the other applicable Financing Documents; (iv) to
correct any typographical errors, drafting mistakes or other similar mistakes that do not modify
the intended rights and obligations of the parties hereto; (v) to provide for additional
obligations of the Loan Parties or Liens securing such obligations to the extent permitted (if
addressed therein, or, otherwise, not prohibited) by the terms of the Credit Agreement and by the
terms of the other applicable Financing Documents (including with respect to Liens on only a
portion of the Collateral), including to reflect such obligations and Liens in the definitions in
Section 1.1, the relative priority of Liens and payments and the provisions herein regarding
voting, consents, amendments and waivers; and (vi) to provide for, evidence or effectuate other
actions that are permitted by the Credit Agreement and not otherwise prohibited by this Agreement
and the other applicable Financing Documents.



(c) Notwithstanding the other provisions of this Section 9.3 or any other provision of
the Security Documents, the Borrowers, the Subsidiary Grantors and the Collateral Trustee (at the
direction of the Administrative Agent or, following a Non-Controlling Enforcement Date, the Secured
Representative with respect to the Major Non-Controlling Series at such time) may (but shall have
no obligation to) amend or amend and restate this Agreement without the consent of any other
Secured Party in order to provide for additional obligations of the Borrowers or any other Loan
Party and liens securing such obligations on all or any portion of the Collateral with a priority
junior to that of the Secured Parties hereunder, so long as the incurrence of such obligations and
liens is not prohibited by the terms of any Financing Document. The Borrowers, the Subsidiary
Grantors and the Collateral Trustee may (but shall have no obligation to) amend, modify or
supplement this Agreement and/or any Security Document, without the consent of any other Secured
Party, as may be necessary, in the reasonable opinion of the Collateral Trustee and the Company, to
effect the provisions of Sections 5.3 and 5.6 of this Agreement, or to effect the
entry by the Collateral Trustee into any additional intercreditor agreement to the extent not
prohibited by the terms of any Financing Document.



(d) Notwithstanding the other provisions of this Section 9.3 or any other provision of
the Security Documents, but subject to the provisions of Section 5.2 hereof, this Agreement
may be amended by a writing executed by the Borrowers and the Collateral Trustee (at the direction
of the Controlling Secured Representative).




9.4 Voting.



(a) Without limiting anything contained herein and other than ministerial and administrative
acts contemplated by the Security Documents to which it is a party, until the Discharge of Secured
Obligations, the Collateral Trustee shall not take any other action (including the exercise of
remedies, the amendment of Security Documents, the granting of waivers under such Security
Documents), or grant its consent under any Security Documents, unless and to the extent directed to
do so by the Controlling Secured Representative. If the Collateral Trustee determines that
direction is needed in the taking of any action, it may refrain from taking such action until such
directions or instructions are received and shall have no liability to the Secured Parties for so
refraining.


 


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(b) In connection with any act or decision by the Controlling Secured Representative, or
Required Lenders or Required Commodity Hedging Counterparties under this Agreement or any of the
Security Documents, (i) the vote of each Lender Party and each other Secured Party party to a
Financing Agreement governing Additional Obligations shall be calculated based on the amount of the
Outstanding Amount owed to such Lender Party or such other Secured Party, as applicable, at the
time the applicable matter is presented for a vote, (ii) the vote of each Secured Commodity Hedging
Counterparty shall be calculated based on the amount of the Eligible Hedging Voting Amount
under the relevant Secured Commodity Hedging Agreement at the time the applicable matter is
presented for a vote and (iii) the Collateral Trustee shall be entitled to rely on the applicable
Secured Representative with respect to the vote received from the Secured Parties with respect to
which such Secured Representative is acting.



9.5 Information Concerning Financial Condition of the Company and its Subsidiaries.
The Collateral Trustee, the Administrative Agent and the other Secured Parties shall each be
responsible for keeping themselves informed of (a) the financial condition of the Company and its
Subsidiaries and all endorsers and/or guarantors of the Secured Obligations and (b) all other
circumstances bearing upon the risk of nonpayment of the Secured Obligations. No Agent or Secured
Party shall have any duty to advise any other Agent or Secured Party of information known to it or
them regarding such condition or any such circumstances or otherwise. In the event that any Agent
or Secured Party, in its or their sole discretion, undertakes at any time or from time to time to
provide any such information to any other Agent or Secured Party, it or they shall be under no
obligation:




(a) to make, and the Agents and the Secured Parties shall not make, any express or
implied representation or warranty, including with respect to the accuracy, completeness,
truthfulness or validity of any such information so provided;




(b) to provide any additional information or to provide any such information on any
subsequent occasion;




(c) to undertake any investigation; or




(d) to disclose any information, which pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential or is otherwise required to
maintain confidential.




9.6 Submission to Jurisdiction. Each party hereto irrevocably and unconditionally:




(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement, or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York and appellate courts from
any thereof;




(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address set forth on Annex I or at
such other address of which the Collateral Trustee shall have been notified pursuant to
Section 9.8;




(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;


 


35









 






(e) waives, to the maximum extent not prohibited by Applicable Law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section 9.6 any special, exemplary, punitive or consequential damages; and




(f) agrees that a final judgment in any action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Applicable Law.



9.7 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
FINANCING DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



9.8 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by facsimile), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when delivered, or three
Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed to the parties hereto at the addresses set forth on
Annex I hereto or, in the case of any Loan Party, at the Company’s address set forth in on
Annex I hereto, or, as to each party, at such other address as may be designated by such
party in a written notice to all of the other parties.



Each party hereto may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or communications.



9.9 Further Assurances. The Collateral Trustee, on behalf of the Secured Parties, and
the Borrowers, agree that each of them shall take such further action and shall execute and deliver
such additional documents and instruments (in recordable form, if requested) as the Collateral
Trustee may reasonably request to effectuate the terms contemplated by this Agreement.



9.10 APPLICABLE LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



9.11 Binding on Successors and Assigns. This Agreement shall be binding upon the
Collateral Trustee, the Secured Parties, and their respective successors and assigns.



9.12 Specific Performance. Each Secured Party may demand specific performance of this
Agreement. Each party hereto hereby irrevocably waives any defense based on the adequacy of a
remedy at law and any other defense which might be asserted to bar the remedy of specific
performance in any action which may be brought by any other Secured Party.



9.13 Headings. The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.



9.14 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of
an executed counterpart of a signature page of this Agreement or any document or instrument
delivered in
connection herewith by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement or such other document or instrument, as applicable.


 


36









 





9.15 Authorization. By its signature, each Person executing this Agreement on behalf
of a party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement.



9.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of each of the parties hereto and its respective successors and assigns
and shall inure to the benefit of each of the Secured Parties.



9.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended for the purpose of defining the relative rights of Secured Parties. None of
the Borrowers, any Subsidiary Grantor or any other creditor thereof shall have any rights hereunder
and neither the Borrowers nor the Subsidiary Grantors may rely on the terms hereof. Nothing in
this Agreement is intended to or shall impair the obligations of the Borrowers or any Subsidiary
Grantor, which are absolute and unconditional, to pay the Secured Obligations as and when the same
shall become due and payable in accordance with their terms.



9.18 Additional Grantors. Each Borrower and each Subsidiary Grantor shall cause each
direct or indirect Subsidiary of such Borrower that becomes a Subsidiary Grantor at the election of
such Borrower or is required by the terms of any Financing Document to become a Subsidiary Grantor
to become a party to this Agreement by causing such Subsidiary to execute and deliver to the
parties hereto an Accession Agreement, whereupon such Subsidiary shall be bound by the terms hereof
to the same extent as if it had executed and delivered this Agreement as of the date hereof. Each
Borrower and each Subsidiary Grantor shall promptly provide the Collateral Trustee and each Secured
Representative with a copy of each Accession Agreement executed and delivered pursuant to this
Section.



9.19 Permitted Secured Commodity Hedging Agreement. Each of the parties acknowledges
that nothing in this Agreement limits the Borrowers’ or any Subsidiary Grantor’s rights under any
Secured Commodity Hedging Agreement.



9.20 No Applicability to Instruments Not Secured by Collateral. If either Borrower or
any other Loan Party secures its obligations under any Eligible Commodity Hedging Agreement by
granting a Lien on assets not constituting Collateral, then this Agreement shall not apply to such
Eligible Commodity Hedging Agreement and the rights and remedies of the counterparty thereto
(including rights of foreclosure, setoff and netting) shall not in any way be limited by this
Agreement.



[rest of page intentionally left blank]



 


37









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.



	 	 	 	 	 
	 	GENON ENERGY, INC.,

as a Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	GENON AMERICAS, INC.,

as a Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	[SUBSIDIARY GRANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Collateral Trust Agreement



 


38









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Collateral Trust Agreement






 


39









 







	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Collateral Trust Agreement






 


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ANNEX I




ADDRESSES OF PARTIES




GenOn Energy, Inc.

GenOn Mirant Americas, Inc.

[•]

Attention: William Holden

Email: [•]

Fax: [•]

Telephone: [•]




RRI Energy, Inc.

1000 Main Street

Houston, TX 77002

Facsimile No.:  (832) 357-9289

Attention:  Andrew C. Johannesen

Copy to:  Michael L. Jines




JPMorgan Chase Bank, N.A.

1111 Fannin Street, Floor 10

Houston, Texas 77002

Attention: Loan and Agency Services

Fax: (713) 427-6307

Telephone: (713) 750-2377




Deutsche Bank Trust Company Americas

60 Wall Street (NYC60-4305)

New York, New York 10005

Attention: Marcus M. Tarkington

Email: marcus.tarkington@db.com

Fax: (212) 250-3080

Telephone: (212) 250-6153




U.S. Bank National Association

5555 San Felipe Street, 11th floor

Houston, Texas 77056

Attention: Steven Finklea

Email: steven.finklea@usbank.com

Fax: (713) 235-9213





 


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EXHIBIT A



FORM OF ACCESSION AGREEMENT



THIS ACCESSION AGREEMENT (this “Agreement”), dated as of                     , 20_____, is entered
into by                     , a                     , as an [Additional Secured Party][Additional Loan Party] (as
defined below), and acknowledged by RRI ENERGY (to be renamed GENON ENERGY, INC. on the Closing
Date), a Delaware corporation (the “Company”), from and after the Closing Date, Mirant
Americas, Inc. (to be renamed GENON AMERICAS, INC. on the Closing Date), a Delaware corporation
(“GAI”; each of GAI and the Company, a “Borrower” and, together, the
“Borrowers”) and U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), in its capacity as
Collateral Trustee for the Secured Parties, under the Collateral Trust Agreement (as defined
below).



Reference is made to that certain Collateral Trust Agreement (as amended, modified, restated
or supplemented from time to time, the “Collateral Trust Agreement”), dated as of [•],
2010, by and among the Borrowers, the Subsidiary Grantors party thereto from time to time, the
Administrative Agent, the Collateral Trustee, the Secured Commodity Hedging Counterparties party
thereto from time to time, and certain other Persons party thereto from time to time. Capitalized
terms used herein without definition shall have the meaning assigned to them in the Collateral
Trust Agreement.



OPTION #1:1




Pursuant to Section 5.6 of the Collateral Trust Agreement, the Borrowers may designate under
the Collateral Trust Agreement additional obligations as Secured Obligations on the terms and
conditions set forth therein. The Collateral Trust Agreement requires that any holder of
additional obligations that are designated as Secured Obligations must become a party to the
Collateral Trust Agreement by executing and delivering this Accession Agreement.



The undersigned is entering into this Accession Agreement pursuant to Section 5.6 of the
Collateral Trust Agreement in order to become a Secured Party under the Collateral Trust Agreement
and the Security Documents, and to benefit from the Collateral under and in accordance with the
terms of the Collateral Trust Agreement and the Security Documents (an “Additional Secured
Party”).



The undersigned is [acting as trustee/agent/Administrative Agent/Collateral Trustee for] [[a]
Lender(s)] [an additional Secured Party] [a Secured Commodity Hedging Counterparty] under the
[describe Replacement Credit Agreement, other agreement(s) evidencing Refinanced indebtedness,
Additional Obligations, Secured Commodity Hedging Agreement, as applicable] (the “Additional
Document”).



Pursuant to Section 5.6, attached hereto as Annex 1 is a copy of the certificate to be
delivered by a Responsible Officer of the Company in accordance with Section 5.6(b)(1) of the
Collateral Trust Agreement.



The Additional Secured Party hereby becomes a Secured Party as [Administrative
Agent/Collateral Trustee] [Secured Representative] [a holder of Additional Obligations] [a Secured
Commodity Hedging Counterparty].


 







	 	 	 
	1	 	Use Option #1 if party acceding to the Collateral Trust
Agreement is a Secured Party.



 


Exh. A-1









 





The Additional Secured Party hereby agrees for the benefit of the Collateral Trustee and the
Secured Parties as follows:



The Additional Secured Party hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the Additional Secured Party will be deemed to be a party to the Collateral
Trust Agreement, and, from and after the date hereof, shall have all of the obligations of [a
Administrative Agent/Collateral Trustee] [Secured Representative] [an additional Secured Party] [a
Secured Commodity Hedging Counterparty] thereunder as if it had executed the Collateral Trust
Agreement. The Additional Secured Party hereby ratifies, as of the date hereof, and accedes to and
agrees to be bound by, all of the terms, provisions and conditions applicable to a Secured Party
and [an Administrative Agent/Collateral Trustee] [Secured Representative] [a holder of Additional
Obligations] [a Secured Commodity Hedging Counterparty] contained in the Collateral Trust Agreement
and the other Security Documents.



To the extent the Additional Secured Party is an agent or trustee for one or more Secured
Parties, the Additional Secured Party acknowledges that it has the authority to bind such Secured
Parties to Collateral Trust Agreement and such Secured Parties are hereby bound by the terms and
conditions of the Collateral Trust Agreement. The Additional Secured Party hereby agrees (on
behalf of itself and any Secured Party claiming through it) to comply with the terms of the
Collateral Trust Agreement.



The address of the Additional Secured Party (and any Secured Representative for such
Additional Secured Party) for purposes of all notices and other communications is                     ,
                    , Attention of                      (Facsimile No.                     , electronic mail address:
                    ).



The amount of credit to be extended to the Company or the applicable Subsidiary Grantor under
Additional Document will be $[                    ].2.



[In accordance with Sections 5.6 and 9.3(b(v) of the Collateral Trust Agreement, the
Collateral Trust Agreement is hereby amended as follows: [                    ].]3



OPTION #2:4




Pursuant to Section 9.18 of the Collateral Trust Agreement, each direct or indirect Subsidiary
of the Company that becomes a Subsidiary Grantor at the election of the Company or is required to
become a Subsidiary Grantor (an “Additional Loan Party”) is required to become a party to
the Collateral Trust Agreement.



The Additional Loan Party has agreed to execute and deliver this Agreement in order to become
a party to the Collateral Trust Agreement and hereby becomes a Subsidiary Grantor and a Loan Party
thereunder.



The Additional Loan Party hereby agrees for the benefit of the Collateral Trustee and the
Secured Parties as follows:


 









	 	 	 
	2	 	Applicable to Additional Obligations only
	 
	3	 	Insert if necessary
	 
	4	 	Use Option #2 if party acceding to the Collateral Trust
Agreement is a Subsidiary Grantor.



 


Exh. A-2









 









1. The Additional Loan Party hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the Additional Loan Party will be deemed to be a party to the Collateral Trust
Agreement and, from and after the date hereof, shall have all of the obligations of a Subsidiary
Grantor and a Loan Party thereunder as if it had executed the Collateral Trust Agreement. The
Additional Loan Party hereby ratifies, as of the date hereof, and accedes to and agrees to be bound
by, all of the terms, provisions and conditions applicable to, and assumes all obligations of, the
Subsidiary Grantors and the Loan Parties contained in the Collateral Trust Agreement.



2. The address of the Additional Loan Party for purposes of all notices and other
communications is                     ,                     , Attention of                      (Facsimile No.             
        ,
electronic mail address:                     ).



[3][7]. This Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute one contract.



[4][8]. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK.



[Signature Page Follows]





 


Exh. A-3









 







IN WITNESS WHEREOF, the [Additional Secured Party][Additional Loan Party] has caused this
Accession Agreement to be duly executed by its authorized representative, and each of the Borrowers
and the Collateral Trustee have caused the same to be accepted by its authorized representative, as
of the day and year first above written.



	 	 	 	 	 
	 	[ADDITIONAL SECURED PARTY][ADDITIONAL LOAN PARTY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	Acknowledged:



GENON ENERGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	GENON AMERICAS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	Acknowledged and accepted:



U.S. BANK NATIONAL ASSOCIATION,

as Collateral Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


 









 







ANNEX 1




Company’s Certificate/New indebtedness Notice





 


 











 







EXHIBIT D




FORM OF

COMPLIANCE CERTIFICATE




This Compliance Certificate (this “Certificate”) is delivered pursuant to Section 6.3
of the Credit Agreement, dated as of September 20, 2010 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among RRI Energy, Inc. (to be renamed
GenOn Energy, Inc. on the Closing Date), a Delaware corporation (the “Company”), from and
after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the Closing
Date), a Delaware corporation (together with the Company, each, a “Borrower” and together,
the “Borrowers”), the Lenders party thereto, the Co-Syndication Agents and Co-Documentation
Agents named therein and JPMorgan Chase Bank, N.A., as Administrative Agent. Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.



1. I am the duly elected, qualified and acting [Chief Executive Officer] [President] [Chief
Financial Officer] [Treasurer] [Controller] of the Company.



2. I have reviewed and am familiar with the contents of this Certificate.



3. During the accounting period covered by the financial statements attached hereto as
Attachment 1 (the “Financial Statements”), each Loan Party has complied with the
terms of the Credit Agreement and the other Loan Documents to which it is a party. I have no
knowledge of the existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this Certificate, of any
condition or event which constitutes a Default or Event of Default[, except as set forth below].



4. Attached hereto as Attachment 2 are the computations showing compliance with the
financial covenant set forth in Section 7.1 of the Credit Agreement.



IN WITNESS WHEREOF, I have executed this Certificate this [•] day of [•].



	 	 	 
	 

	 	 
 Name:
	 

	 	Title:





 


 









 





Attachment 1

to Compliance Certificate




[Attach Financial Statements]





 


 









 







Attachment 2

to Compliance Certificate





The information described herein is as of [•] and pertains to the period from [•] to [•].



[Set forth financial covenant calculations]




 


 









 







EXHIBIT E-1




FORM OF

CLOSING CERTIFICATE

(Chief Financial Officer)




Pursuant to Section 5.1(b) of the Credit Agreement, dated as of September 20, 2010 (the
“Credit Agreement”; terms defined therein being used herein as therein defined), among RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware corporation (the
“Company”), from and after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn
Americas, Inc. on the Closing Date), a Delaware corporation (each, a “Borrower” and
together, the “Borrowers”), the Lenders party thereto, the Co-Syndication Agents and
Co-Documentation Agents named therein and JPMorgan Chase Bank, N.A., as Administrative Agent, the
undersigned Chief Financial Officer of the Company hereby certifies on behalf of the Company, and
not in [his][her] individual capacity, as follows:



1. Each of the representations and warranties of the Loan Parties set forth in each of the Loan
Documents to which it is a party are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they were true
and correct in all material respects as of such earlier date.



2. No Default or Event of Default has occurred and is continuing as of the date hereof or after
giving pro forma effect to the Transaction and the extensions of credit requested to be made on the
date hereof and the application of proceeds therefrom.



3. The conditions precedent set forth in Section 5.1 of the Credit Agreement were satisfied prior
to, or will be satisfied concurrently with, the making of extensions of credit on the Closing Date
(except to the extent a condition is required to be satisfactory or reasonably satisfactory to the
Administrative Agent or Arrangers (in which case the undersigned believes any such condition to
have been so satisfied) or to the extent waived in writing).



4. I have made, or have caused to be made under my supervision, such examination or investigation
as is necessary to enable me to express an informed opinion as it relates to my certifications
herein.



5. Based upon the review and examination described in paragraph 4 immediately above, I certify that
(a) as of the date hereof, immediately after the consummation of the Transactions to occur on the
Closing Date, (i) the fair value of the assets of the Company and its Subsidiaries on a
consolidated basis, at a fair valuation, exceeds the debts and liabilities, subordinated,
contingent or otherwise, of the Company and its Subsidiaries on a consolidated basis (it being
understood that the amount of contingent liabilities at any time shall be computed as the amount
that, in light of all the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability) as such debts and liabilities
become absolute and matured; (ii) the present fair saleable value of the property of the Company
and its Subsidiaries on a consolidated basis is greater than the amount



 


 









 






required to pay the probable liability of the debts and other liabilities, subordinated, contingent or otherwise, of
the Company and its Subsidiaries on a consolidated basis (it being understood that the amount of
contingent liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability) as such debts and other liabilities become absolute and
matured; (iii) the Company and its Subsidiaries on a consolidated basis are able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Loan Parties do not have unreasonably small capital with which
to conduct the business in which they are engaged as such business is now conducted and is proposed
to be conducted after the Closing Date; and (b) the Company and its Subsidiaries on a consolidated
basis do not believe that they will incur debts beyond their ability to pay such debts as they
mature, taking into account the timing of and amounts of cash to be received by them (whether from
anticipated refinancing, asset sales, capital contributions or otherwise) and the timing of the
amounts of cash to be payable on or in respect of their debts.



IN WITNESS WHEREOF, the undersigned has executed this Closing Certificate as of the date set
forth below.



	 	 	 	 	 
	 	RRI ENERGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 



Date:    
               
  




 


 









 





EXHIBIT E-2




FORM OF SECRETARY’S CERTIFICATE




Pursuant to Section 5.1(b) of the Credit Agreement, dated as of September 20, 2010 (the
“Credit Agreement”; terms defined therein being used herein as therein defined), among RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware corporation, from
and after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the
Closing Date), a Delaware corporation (each, a “Borrower” and together, the
“Borrowers”), the Lenders party thereto, the Co-Syndication Agents and Co-Documentation
Agents named therein and JPMorgan Chase Bank, N.A., as Administrative Agent, the undersigned
Secretary of [INSERT NAME OF LOAN PARTY] (the “Certifying Loan Party”) hereby certifies on
behalf of the Certifying Loan Party and not in [his][her] individual capacity, as follows:



6. Attached hereto as Annex 1 is a true and complete copy of resolutions duly adopted by
the [Board of Directors] [Members] of the
Certifying Loan Party on [•]. Such resolutions have not
in any way been amended, modified, revoked or rescinded, have been in full force and effect since
their adoption to and including the date hereof and are now in full force and effect and are the
only [corporate/company] proceedings of the Certifying Loan Party now in force relating to or
affecting the matters referred to therein.



7. Attached hereto as Annex 2 is a true and complete copy of the [By-Laws] [Limited
Liability Company Agreement] of the Certifying Loan Party as in effect on the date hereof.



8. Attached hereto as Annex 3 is a true and complete copy of the [Certificate of
Incorporation/Certificate of Formation] of the Certifying Loan Party as in effect on the date
hereof.



9. Attached hereto as Annex 4 is a true and complete copy of a short-form certificate of
good standing (or equivalent certificate) for the Certifying Loan Party recently issued by its
jurisdiction of organization.



10. The following persons are now duly elected and qualified officers of the Certifying Loan Party
holding the offices indicated next to their respective names below, and the signatures appearing
opposite their respective names below are the true and genuine signatures of such officers, and
each of such officers is duly authorized to execute and deliver on behalf of the Certifying Loan
Party each of the Loan Documents to which it is a party and any certificate or other document to be
delivered by the Certifying Loan Party pursuant to the Loan Documents to which it is a party:



	 	 	 	 	 
	Name	 	Office	 	Signature
	 	 	 	 	 
	 
	 	 	 	 

	 	 	 	 	 
	 
	 	 	 	 






 


 









 





IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date set forth below.



	 	 	 	 	 
	 	[NAME OF CERTIFYING LOAN PARTY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Secretary 	 



Date:   
               
   




 


 









 





EXHIBIT F-1




FORM OF INCREMENTAL TERM LOAN COMMITMENT AGREEMENT




[Name(s) of Lender(s)]




[Address of Borrowers]




Re: Incremental Term Loan Commitments




Ladies and Gentlemen:



Reference is hereby made to the Credit Agreement, dated as of September 20, 2010 (as amended,
restated, supplemented or otherwise modified, the “Credit Agreement”), among (i) RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware corporation, from
and after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the
Closing Date), a Delaware corporation (each, a “Borrower” and together, the
“Borrowers”); (ii) the Lenders party thereto; (iii) the Co-Syndication Agents and
Co-Documentation Agents named therein; and (iv) JPMorgan Chase Bank, N.A., as Administrative Agent.
Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings
set forth in the Credit Agreement.



Each Lender (each, an “Incremental Term Loan Lender”) party to this letter agreement
(this “Agreement”) hereby severally agrees to provide the Incremental Term Loan Commitment
set forth opposite its name on Annex I attached hereto (for each such Incremental Term Loan
Lender, its “Incremental Term Loan Commitment”). Each Incremental Term Loan Commitment
provided pursuant to this Agreement shall be subject to all of the terms and conditions set forth
in the Credit Agreement, including, without limitation, Sections 2.1 and 2.21 thereof.



Each Incremental Term Loan Lender, the Borrowers and the Administrative Agent acknowledge and
agree that the Incremental Term Loan Commitments provided pursuant to this Agreement shall
constitute Incremental Term Loan Commitments of the respective Tranche specified in Annex I
attached hereto and, upon the incurrence of Incremental Term Loans pursuant to such Incremental
Term Loan Commitments, shall constitute Incremental Term Loans under such specified Tranche for all
purposes of the Credit Agreement and the other applicable Loan Documents. Each Incremental Term
Loan Lender, the Borrowers and the Administrative Agent further agree that, with respect to the
Incremental Term Loan Commitment provided by each Incremental Term Loan Lender pursuant to this
Agreement, such Incremental Term Loan Lender shall receive from the Borrowers such upfront fees,
unutilized commitment fees and/or other fees, if any, as may be separately agreed to in writing
with the Borrowers and the Administrative Agent, all of which fees shall be due and
payable to such Incremental Term Loan Lender on the terms and conditions set forth in each such
separate agreement.



Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions
set forth on Annex I hereto in respect of each Incremental Term Loan Commitment provided
pursuant to this Agreement.


 


 









 





Each Incremental Term Loan Lender party to this Agreement, to the extent not already a party
to the Credit Agreement as a Lender thereunder, (i) confirms that it is an Eligible Assignee, (ii)
confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and the other Loan
Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit Agreement and the
other Loan Documents as are delegated to the Administrative Agent and the Collateral Agent, as the
case may be, by the terms thereof, together with such powers as are reasonably incidental thereto,
(iv) agrees that it will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a
Lender, and (v) in the case of each Incremental Term Loan Lender organized under the laws of a
jurisdiction outside the United States, attaches the forms referred to in Section 2.17(e) of the
Credit Agreement, certifying as to its entitlement as of the date hereof to a complete exemption
from United States withholding taxes with respect to all payments to be made to it by the Borrowers
under the Credit Agreement and the other Loan Documents.



Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental Term
Loan Lender, the Administrative Agent, the Borrowers and each Guarantor, (ii) the
delivery to the Administrative Agent of a fully executed counterpart (including by way of facsimile
or other electronic transmission) hereof, (iii) the payment of any fees then due and payable in
connection herewith and (iv) the satisfaction of any other conditions precedent set forth in
Section 9 of Annex I hereto (such date, the “Agreement Effective Date”), each
Incremental Term Loan Lender party hereto (i) shall be obligated to make the Incremental Term Loans
provided to be made by it as provided in this Agreement on the terms, and subject to the
conditions, set forth in the Credit Agreement and in this Agreement and (ii) to the extent provided
in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other
applicable Loan Documents.



Each Borrower acknowledges and agrees that (i) it shall be liable for all Obligations with
respect to the Incremental Term Loan Commitments provided hereby including, without limitation, all
Incremental Term Loans made pursuant thereto, and (ii) all such Obligations (including all such
Incremental Term Loans) shall be entitled to the benefits of the Security Documents.



Each Guarantor acknowledges and agrees that all Obligations with respect to the Incremental
Term Loan Commitments provided hereby and all Incremental Term Loans made pursuant thereto shall
(i) be fully guaranteed pursuant to the Guarantee Agreement as, and to the extent, provided in the
Credit Agreement and (ii) be entitled to the benefits of the Loan Documents as, and to the extent,
provided therein and in the Credit Agreement.



 


 









 




Attached hereto as Annex II is the officers’ certificate required to be delivered
pursuant to clause (ii) of the definition of “Incremental Loan Commitment Requirements” appearing
in Section 1.1 of the Credit Agreement certifying that the conditions set forth in clause
(i) of the definition of “Incremental Loan Commitment Requirements” appearing in Section 1.1
of the Credit Agreement have been satisfied.



You may accept this Agreement by signing the enclosed copies in the space provided below, and
returning one copy of same to us before the close of business on                     ,           . If you do
not so accept this Agreement by such time, our Incremental Term Loan Commitments set forth in this
Agreement shall be deemed canceled.



After the execution and delivery to the Administrative Agent of a fully executed copy of this
Agreement (including by way of counterparts and by facsimile or other electronic transmission) by
the parties hereto, this Agreement may only be changed, modified or varied by written instrument in
accordance with the requirements for the modification of Loan Documents pursuant to Section 11.1 of
the Credit Agreement.



In the event of any conflict between the terms of this Agreement and those of the Credit
Agreement, the terms of the Credit Agreement shall control.



*****



 


 









 





THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



	 	 	 	 	 
	 	Very truly yours,



[NAME OF EACH INCREMENTAL TERM LOAN LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 	 



Agreed and Accepted

this       day of                     ,      :




GENON ENERGY, INC., as a Borrower




	 	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	GENON AMERICAS, INC., as a Borrower
	 
	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as Administrative Agent
	 
	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to Incremental Term Loan Commitment Agreement



 


 









 





Each Guarantor acknowledges and agrees to each the foregoing provisions of this Incremental Term
Loan Commitment Agreement and to the incurrence of the Incremental Term Loans to be made pursuant
thereto.



	 	 	 	 	 
	[EACH GUARANTOR], as a Guarantor
	 
	 	 	 	 
	By:

	 	          
 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to Incremental Term Loan Commitment Agreement



 


 









 





Annex I




TERMS AND CONDITIONS FOR 

INCREMENTAL TERM LOAN COMMITMENT AGREEMENT




Dated as of                     ,           





	1.	 	Name of Borrowers:
	 
	2.	 	Incremental Term Loan Commitment Amounts (as of the Agreement Effective Date):





	 	 	 	 	 
	 	 	Amount of Incremental Term Loan	 
	Names of Incremental Term Loan Lenders	 	Commitment	 
	 
	 	 	 	 
	Total:
	 	 	 	 







	3.	 	Designation of Tranche of Incremental Term Loan Commitments (and Incremental Term Loans to be
funded thereunder):
	 
	4.	 	Indicate the Incremental Term Loan Borrowing Date:
	 
	5.	 	Incremental Term Loan Maturity Date:
	 
	7.	 	Dates for, and amounts of, Incremental Term Loan Scheduled Repayments:
	 
	8.	 	Applicable Margins:
	 
	9.	 	Other Conditions Precedent:




 


 









 





ANNEX II




[Officers’ certificate required to be delivered pursuant to clause (ii) of the definition of

“Incremental Loan Commitment Requirements” appearing in Section 1.1 of the Credit

Agreement certifying that the conditions set forth in clause (i) of the definition of “Incremental

Loan Commitment Requirements” appearing in Section 1.1 of the Credit Agreement have been
satisfied]



 


 









 





EXHIBIT F-2




FORM OF INCREMENTAL REVOLVING COMMITMENT AGREEMENT




[Name(s) of Lender(s)]




[Date]




[Address of Borrowers]




Re: Incremental Revolving Commitments




Ladies and Gentlemen:



Reference is hereby made to the Credit Agreement, dated as of September 20, 2010 (as amended,
restated, supplemented or otherwise modified, the “Credit Agreement”), among (i) RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware corporation, from
and after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the
Closing Date), a Delaware corporation (each, a “Borrower” and together, the
“Borrowers”); (ii) the Lenders party thereto; (iii) the Co-Syndication Agents and
Co-Documentation Agents named therein; and (iv) JPMorgan Chase Bank, N.A., as Administrative Agent.
Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings
set forth in the Credit Agreement.



Each Lender (each an “Incremental Revolving Lender”) party to this letter agreement
(this “Agreement”) hereby severally agrees to provide the Incremental Revolving Commitment
set forth opposite its name on Annex I attached hereto (for each such Incremental Revolving
Lender, its “Incremental Revolving Commitment”). Each Incremental Revolving Commitment
provided pursuant to this Agreement shall be subject to all of the terms and conditions set forth
in the Credit Agreement, including, without limitation, Section 2.4(a) and Section 2.22 thereof.



Each Incremental Revolving Lender, the Borrowers and the Administrative Agent acknowledge and
agree that the Incremental Revolving Commitments provided pursuant to this Agreement shall
constitute Incremental Revolving Commitments and, upon the Agreement Effective Date (as hereinafter
defined), the Incremental Revolving Commitment of each Incremental Revolving Lender shall become,
or in the case of an existing Revolving Lender, shall be added to (and thereafter become a part
of), the Revolving Loan Commitment of such Incremental Revolving Lender. Each Incremental
Revolving Lender, the Borrowers and the Administrative Agent further agree that, with respect to
the Incremental Revolving Commitment provided by each Incremental Revolving Lender pursuant to this
Agreement, such Incremental Revolving Lender shall receive from Borrowers such upfront fees,
unutilized commitment fees and/or other fees, if any, as may be separately agreed to in writing
with Borrowers and acknowledged by the Administrative Agent, all of which fees shall be
due and payable to such
Incremental Revolving Lender on the terms and conditions set forth in each such separate
agreement.


 


 









 







Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions
set forth on Annex I hereto in respect of each Incremental Revolving Commitment provided
pursuant to this Agreement.



Each Incremental Revolving Lender party to this Agreement, to the extent not already a party
to the Credit Agreement as a Lender thereunder, (i) confirms that it is an Eligible Transferee,
(ii) confirms that it has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and the other Loan
Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit Agreement and the
other Loan Documents as are delegated to the Administrative Agent and the Collateral Agent, as the
case may be, by the terms thereof, together with such powers as are reasonably incidental thereto,
(iv) agrees that it will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a
Lender, and (v) in the case of each Incremental Revolving Lender organized under the laws of a
jurisdiction outside the United States, attaches the forms referred to in Section 2.17(e) of the
Credit Agreement, certifying as to its entitlement as of the date hereof to a complete exemption
from United States withholding taxes with respect to all payments to be made to it by the Borrowers
under the Credit Agreement and the other Loan Documents.



Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental
Revolving Lender, the Administrative Agent, the Borrowers and each Subsidiary Guarantor,
(ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of
facsimile or other electronic transmission) hereof, (iii) the payment of any fees then due and
payable in connection herewith and (iv) the satisfaction of any other conditions precedent set
forth in Section 3 of Annex I hereto (such date, the “Agreement Effective Date”),
each Incremental Revolving Lender party hereto (x) shall be obligated to make the Revolving Loans
provided to be made by it as provided in this Agreement on the terms, and subject to the
conditions, set forth in the Credit Agreement and in this Agreement and (y) to the extent provided
in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other
applicable Loan Documents.



Each Borrower acknowledges and agrees that (i) it shall be liable for all Obligations with
respect to the Incremental Revolving Commitments provided hereby including, without limitation, all
Revolving Loans made pursuant thereto, and (ii) all such Obligations (including all such Revolving
Loans) shall be entitled to the benefits of the Security Documents.



Each Guarantor acknowledges and agrees that all Obligations with respect to the Incremental
Revolving Commitments provided hereby and all Revolving Loans made pursuant thereto shall (i) be
fully guaranteed pursuant to the Guarantee Agreement as, and to the extent,
provided in the Credit Agreement and (ii) be entitled to the benefits of the Loan Documents
as, and to the extent, provided therein and in the Credit Agreement.


 


 








 





Attached hereto as Annex II is the officer’s certificate required to be delivered
pursuant to clause (ii) of the definition of “Incremental Loan Commitment Requirements” appearing
in Section 1 of the Credit Agreement certifying that the conditions set forth in clause (i) of the
definition of “Incremental Loan Commitment Requirements” appearing in Section 1.1 of the Credit
Agreement have been satisfied.



You may accept this Agreement by signing the enclosed copies in the space provided below, and
returning one copy of same to us before the close of business on [                          , 20     ]. If you
do not so accept this Agreement by such time, our Incremental Revolving Commitments set forth in
this Agreement shall be deemed canceled.



After the execution and delivery to the Administrative Agent of a fully executed copy of this
Agreement (including by way of counterparts and by facsimile or other electronic transmission) by
the parties hereto, this Agreement may only be changed, modified or varied by written instrument in
accordance with the requirements for the modification of Loan Documents pursuant to Section 11.1 of
the Credit Agreement.



In the event of any conflict between the terms of this Agreement and those of the Credit
Agreement, the terms of the Credit Agreement shall control.



*     *     *



 


 









 





THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.



	 	 	 	 	 
	 	Very truly yours,



[NAME OF EACH INCREMENTAL
REVOLVING LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 	 



Agreed and Accepted

this       day of                     ,      :




	 	 	 	 	 
	GENON ENERGY, INC., as a Borrower
	 
	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	GENON AMERICAS, INC., as a Borrower
	 
	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as Administrative Agent
	 
	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to Incremental Revolving Commitment Agreement



 


 









 





Each Guarantor acknowledges and agrees to each the foregoing provisions of this Incremental
Revolving Commitment Agreement and to the incurrence of the Revolving Loans to be made pursuant
thereto.



	 	 	 	 	 
	[EACH GUARANTOR], as a Guarantor
	 
	 	 	 	 
	By:

	 	          
 

Name:
	 	 
	 

	 	Title:	 	 






Signature Page to Incremental Revolving Commitment Agreement





 


 









 







ANNEX I




TERMS AND CONDITIONS FOR INCREMENTAL REVOLVING COMMITMENT
AGREEMENT




Dated as of                     ,           





	1.	 	Name of the Borrowers:
	 
	2.	 	Incremental Revolving Commitment amounts (as of the Agreement Effective Date):





	 	 	 	 	 
	 	 	Amount of Incremental Revolving	 
	Names of Incremental Revolving Lenders	 	Commitment	 
	 
	 	 	 	 
	Total:
	 	 	 	 







	3.	 	Other Conditions Precedent:




 


 









 





ANNEX II




[Officers’ certificate required to be delivered pursuant to clause (ii) of the definition of

“Incremental Loan Commitment Requirements” appearing in Section 1.1 of the Credit

Agreement certifying that the conditions set forth in clause (i) of the definition of “Incremental

Loan Commitment Requirements” appearing in Section 1.1 of the Credit Agreement have been
satisfied]





 


 









 







EXHIBIT G




FORM OF

ASSIGNMENT AND ASSUMPTION




Reference is made to the Credit Agreement, dated as of September 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), a Delaware corporation, from
and after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the
Closing Date), a Delaware corporation (each, a “Borrower” and together, the
“Borrowers”), the Lenders party thereto, the Co-Syndication Agents and Co-Documentation
Agents named therein and JPMorgan Chase Bank, N.A., as Administrative Agent. Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.



The Assignor identified on Schedule l hereto (the “Assignor”) and the Assignee
identified on Schedule l hereto (the “Assignee”) agree as follows:



1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations
under the Credit Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 hereto (individually, an “Assigned Facility”;
collectively, the “Assigned Facilities”), in a principal amount for each Assigned Facility
as set forth on Schedule 1 hereto.



2. The Assignor (a) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Credit
Agreement or with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free and clear of any
such adverse claim and (b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers, any of its Affiliates or any other obligor or
the performance or observance by the Borrowers, any of its Affiliates or any other obligor of any
of their respective obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto.


 


 









 





3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Assumption; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section 6.2 thereof and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption; (c) agrees that it will, independently and
without reliance upon the Assignor, the Agents or any Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to Section 2.17(e) of the Credit Agreement.



4. The effective date of this Assignment and Assumption shall be the Effective Date of
Assignment described in Schedule 1 hereto (the “Effective Date”). Following the execution
of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording by the
Administrative Agent).



5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.



6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Assumption, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and
Assumption, relinquish its rights and be released from its obligations under the Credit Agreement.



7. This Assignment and Assumption shall be governed by and construed in accordance with the
laws of the State of New York.



IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be
executed as of the date first above written by their respective duly authorized officers.


 


 









 





Schedule 1

to Assignment and Assumption with respect to

the Credit Agreement, dated as of September 20, 2010

among RRI Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), from and

after the Closing Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the

Closing Date) (each a “Borrower” and together, the
“Borrowers”),the Lenders party thereto, the

Co-Syndication Agents and Co-Documentation Agents named therein and JPMorgan Chase

Bank, N.A., as Administrative Agent




	 	 	 	 	 
	Name of Assignor:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Name of Assignee:
	 	 	 	 
	 

	 	 

	 	 
	 	 	[and is an Affiliate/Approved Fund of [identify Lender] – select as applicable]







Effective Date
 of Assignment:           
             
               
  




	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	 
	Credit Facility Assigned	 	Amount Assigned	 	 	Commitment Percentage Assigned*	 
	 
	 	 	 	 	 	 	 	 
	 
	 	$	         
           	 	 	 	       
   .         
           	%






	 	 	 	 	 	 	 
	[Name of Assignee]	 	[Name of Assignor]
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	
 

Name:
	 	 	 	
 

Name:
	 

	 	Title:
	 	 	 	Title:






 



	 	 	 
	*	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all of the Lenders thereunder



 


 









 









	 	 	 	 	 	 	 	 	 
	Accepted for Recordation in the Register:	 	Required Consents (if any):
	 
	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as	 	[GENON ENERGY, INC., as a Borrower
	Administrative Agent	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 

Name:
	 	 	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	Title:]	 	 






	 	 	 	 	 
	 	[GENON AMERICAS, INC., as a Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[JPMORGAN CHASE BANK, N.A., as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[JPMORGAN CHASE BANK, N.A., as an

Issuing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[DEUTSCHE BANK TRUST COMPANY

AMERICAS, as an Issuing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 



Signature Page to Assignment and Assumption Agreement




 


 









 





	 	 	 	 	 
	 	[[NAME OF ADDITIONAL ISSUING 

LENDER, IF ANY], as an Issuing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 



Signature Page to Assignment and Assumption Agreement




 


 









 





EXHIBIT H-1




FORM OF JPMCB LETTER OF CREDIT APPLICATION





 


 









 




			
	 	 	 
	Application for Irrevocable

Standby Letter of Credit
	 	






This application and the Letter of Credit issued hereunder are subject to and governed by the
CONTINUING AGREEMENT FOR COMMERCIAL & STANDBY LETTERS OF CREDIT executed by the undersigned in
favor of JPMorgan Chase Bank, N.A. on     (the “Agreement”).



When Transmitting this application by facsimile all pages must be transmitted.




	 	 	 
	To: JPMorgan Chase Bank, N.A. and/or its subsidiaries and/or affiliates.

	 	Date:






I. Pursuant to the Terms and Conditions contained herein, please issue an IRREVOCABLE STANDBY
Letter of Credit (together with any replacements, extensions or modifications, the “Credit”) and
transmit it by:



o Teletransmission                     o Courier




If completing in Microsoft Word, please enter data by ‘clicking’ on the gray boxes.




	 	 	 
	Applicant/Obligor (Full name and address- jointly

	 	Beneficiary (Full name and address):
	and severally if more than one, individually and
collectively, “Applicant/Obligor”):
	 	 
	 
	 	 
	[Signature lines are on last page].
	 	 
	 
	 	 
	Account Party (Full name and address of entity to be
named in Letter of Credit if different than the
above Applicant/Obligor):

	 	Advising Bank-Optional (If blank, Issuer will select
its branch or affiliate or correspondent in the
domicile of the beneficiary):
	 
	 	 
	Amount:

Up to an aggregate amount of
If not USD, indicate currency

	 	Expiry Date: Demands/claims must be presented to the
counters of the Nominated bank not later than
	 
	 	                         .





Complete only if Automatic Extension of the expiry date is required.



					
	 	 	 	 	 
	Credit to contain Automatic Extension clause with extension period of o one year/o other	 	(please specify).
	 	 	 	 	 
	No less than
	 	calendar days non-extension notice to the beneficiary.
	 	 






			
	 	 	 
	Automatic Extension final expiration date:
	 	(the date after which the Credit will no longer be subject to Automatic Extension).






AVAILABLE BY (indicate A, B or C)




	o	 	A. Beneficiary’s dated statement referencing JPMorgan Chase Bank, N.A. Letter of Credit Number indicating
amount of demand/claim and purportedly signed by an authorized person reading as follows (Please state within
the quotation marks the wording to appear on the statement to be presented):

	 
	 	 	“(insert appropriate reason for drawing)






 ”




o Demands received by authenticated teletransmission are acceptable in lieu of the beneficiary’s signed and dated
statement provided that such authenticated teletransmission contains the beneficiary’s statement as provided
for in the Credit.



Rev. 01/01/2009


 


1









 





	o	 	B. See attached sheet(s) for continuation of other documents and/or special instructions, which form an
integral part of this Application and such specimen should be approved and signed by the applicant/obligor.

	 
	o	 	C. Other:






Complete only when the Beneficiary’s bank or Correspondent is to issue its guarantee or undertaking based on
the issued Standby Letter of Credit.



We understand and agree that by making this request, we shall remain liable under this Credit until Issuer is
fully released in writing by such entity.




	o	 	Request Beneficiary’s bank to issue and deliver its:

(Specify type of bid or performance bond, guarantee, undertaking or other)






	 	 	 
	In favor of:

	 	Name(s)
	 

	 	Attention Party Name
	 

	 	Address
	 
	 	 
	 

	 	City/State/Zip/Country
	 

	 	Telephone
	 

	 	Fax






For an amount not exceeding that specified above, effective immediately and expiring at their office on                         .

(at least 30 days prior to Expiry Date above) covering (brief description):                         .




	o	 	Multiple drawings prohibited (if blank, multiple drawings will be permitted).

	 
	o	 	Partial drawings prohibited (if blank, partial drawings will be permitted).

	 
	o	 	Credit is transferable only in its entirety (Issuer is authorized to include its standard transfer
conditions and is authorized to nominate a transferring bank, if applicable).






The Credit, or any Credit issued shall be subject to the International Standby Practices 1998, International
Chamber of Commerce Publication 590 (“ISP”) or, o if box is checked, it shall be subject to the Uniform Customs
and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600
(“UCP”).



Please include a brief description of the purpose of the Standby Letter of Credit including goods description,
pricing, country of origin of the goods, shipment from and shipment to countries, as applicable:



Unless otherwise stated herein, the nominated bank (if any) is authorized to send all documents to
you in one airmail or courier service, if available.



Rev. 01/01/2009



 


2









 





THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT,
ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED.



	 	 	 	 	 
	 

	 	 

(Applicant/Obligor)
	 	 
	 
	 	 	 	 
	 

	 	 

(Authorized Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Title)
	 	 
	 
	 	 	 	 
	 

	 	 

(Phone)
	 	 
	 
	 	 	 	 
	 

	 	 

(Fax)
	 	 
	 
	 	 	 	 
	 

	 	 

(Date)
	 	 






Without limiting the terms above, you are authorized to debit our account no.

with JPMorgan Chase Bank, N.A. for the amount of each drawing and/or your commissions and charges.



THE FOLLOWING IS TO BE EXECUTED IF THE CREDIT IS TO BE ISSUED FOR THE ACCOUNT OF A PERSON OTHER
THAN THE PERSON SIGNING ABOVE:



AUTHORIZATION AND AGREEMENT OF ADDITIONAL PARTY NAMED AS ACCOUNT PARTY




To: THE ISSUER OF THE CREDIT




We join in this Application, naming us as Account Party, for the issuance of the Credit and, in
consideration thereof, we irrevocably agree (i) that the above Applicant has sole right to give
instructions and make agreements with respect to this Application, the Agreement, the Credit and
the disposition of documents, and we have no right or claim against you, any of your affiliates or
subsidiaries, or any correspondent in respect of any matter arising in connection with any of the
foregoing and (ii) to be bound by the Agreement and all obligations of the Applicant thereunder as
if we were a party thereto. The Applicant is authorized to assign or transfer to you all or any
part of any security held by the Applicant for our obligations arising in connection with this
transaction and, upon any such assignment or transfer, you shall be vested with all powers and
rights in respect of the security transferred or assigned to you and you may enforce your rights
under the Agreement against us or our Property in accordance with the terms hereof.



	 	 	 	 	 
	 

	 	 

(Account Party)
	 	 
	 
	 	 	 	 
	 

	 	 

(Authorized Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Title)
	 	 
	 
	 	 	 	 
	 

	 	 

(Phone)
	 	 
	 
	 	 	 	 
	 

	 	 

(Fax)
	 	 
	 
	 	 	 	 
	 

	 	 

(Date)
	 	 





Rev. 01/01/2009




 


3












 




			
	 	 	 
	Application for Irrevocable

Commercial Letter of Credit
	 	






This application and the Letter of Credit issued hereunder are subject to and governed by the
CONTINUING AGREEMENT FOR COMMERCIAL & STANDBY LETTERS OF CREDIT executed by the undersigned in
favor of JPMorgan Chase Bank, N.A.
on            (the “Agreement”).



When transmitting this application by facsimile all pages must be transmitted.




To: JPMorgan Chase Bank, N.A. and/or its subsidiaries and/or affiliates.       Date:



I. Pursuant to the Terms and Conditions contained herein, please issue an IRREVOCABLE DOCUMENTARY
COMMERCIAL Letter of Credit (together with any replacements, extensions or modifications, the
“Credit”) and transmit it by:



o Teletransmission          o Courier




If completing in Microsoft Word, please enter data by ‘clicking’ on the gray boxes.




	 	 	 	 	 
	Applicant/Obligor (Full name and address):	 	o   Credit is transferable. (Issuer is authorized to include its standard transfer conditions and is authorized to nominate a Transferring Bank.)

	 
	 	 	 	 
	 

	 	Partial Shipment
	 	Transhipment
	 
	 	 	 	 
	[Signature lines are on last page].

	 	o Not Allowed
(if blank, allowed)
	 	o Not Allowed
(if blank, allowed)
	 
	 	 	 	 
	Account Party (Full name and address of entity to be
named in Letter of Credit if different than the above
Applicant/Obligor):

	 	Shipment:


Shipment from:

For Transportation to:

Latest Shipment Date:	 	 
	 
	 	 	 	 
	Advising Bank-Optional (If blank, Issuer will select
its branch or affiliate or correspondent in the
domicile of the beneficiary):	 	Credit available:

o At sight.

o By deferred payment at:

o By acceptance of drafts at:
	 
	 	 	 	 
	 	 	o   Discount Charges, if any, for the account of the 
(specify only if credit is available by acceptance)

	 
	 	 	 	 
	Beneficiary (Full name and address):	 	      o Beneficiary          o Applicant


Against the documents detailed herein and Beneficiary’s draft(s)
drawn on Issuer or Issuer’s branch or affiliate or correspondent
(at Issuer’s option) for 100% or _____% of the invoice value.
	 
	 	 	 	 
	Amount (In Figures):

	 	Insurance:	 	 
	 
	 	 	 	 
	 	 	o   Insurance effected by us. We agree to keep insurance in force until this transaction is complete (no document required if checked).

	Amount (In words):
	 	 	 	 
	 	 	If above is not checked, the following documents are required:
	 
	 	 	 	 
	Indicate plus or minus percentage if applicable	 	o   Negotiable Insurance Policy or Certificate covering the following risks:

	 
	 	 	 	 
	o Plus          o Minus                     %
	 	o All Risks o War o SR&CC o Other Risks (specify)
	 	 	.


	 
	 	 	 	 
	Expiry Date:	 	 
	 
	 	 	 	 
	Place of Expiry Unless the undersigned or Issuer
nominates a bank which is authorized to pay, to
accept, to incur a deferred payment undertaking, or
to negotiate, the Credit will be freely negotiable.
Issuer may nominate such a bank in its sole
discretion or stipulate that the Credit is available
with Issuer only. 


If the Credit is freely negotiable, it will be
considered to be freely negotiable by any bank
anywhere. (Issuer in its sole discretion may specify
that the Credit will expire in the country of the
beneficiary).	 	o Indicate if a full set is required.


o Insurance coverage for              % (Unless otherwise specified the minimum
amount of insurance must be for 100% of the CIF or CIP value plus
10%. If the CIF or CIP value cannot be determined from the
documents on their face, insurance must be for a minimum amount of
110% of the drawing amount or 110% of the gross invoice amount, whichever is greater.)





Rev. 01/01/2009





 


1









 





	 	 	 	 	 
	o Commercial
Invoice _____  originals _____ copies.	 	o Packing List _____ originals _____ copies.
	o Custom Invoice _____ originals _____ copies.	 	o Certificate of Origin _____ originals _____ copies.
	o Visaed Customs Invoice _____ originals _____ copies.	 	o Forwarders Cargo Receipt (‘FCR’) issued by
	 
	 	 	 	 
	Transport Documents:
	 	 	 	 
	o   Full Set of Marine/Ocean Bill of
Lading covering a port to port shipment consigned to
the order of JPMorgan Chase Bank, N.A. marked notify
Applicant indicating the name of the carrier, and
indicating the goods have been loaded on board or
shipped on a named vessel.
	 	indicating that the merchandise has been received (indicate in the space below any further requirements-Note: a FCR is not a transport
document):


	 
	 	 	 	 
	o   Full Set of Multimodal Transport
document consigned to the order of JPMorgan Chase Bank,
N.A. marked notify Applicant indicating the name of the
carrier or Multimodal transport operator, and indicating
that the goods have been dispatched, taken in charge or
loaded on board.
	 	

o   Inspection Certificate issued by and purportedly signed by


        _______ originals _______ copies


	 
	 	 	 	 
	o   Air Waybill consigned to
JPMorgan Chase Bank, N.A.
marked notify Applicant indicating the name of the
carrier.

	 	 	 	 
	 
	 	 	 	 
	o    If Consignee other than
JPMorgan Chase Bank, N.A.
(please specify):

	 	Specify
Inspection Certificate content (if blank, document will be accepted
as tendered.)

	 
	 	 	 	 
	o    If notify party other than
Applicant (please specify):
	 	

o Other Documents


	 
	 	 	 	 
	o   Truck Bill of Lading consigned
to marked notify
Applicant indicating the name of the carrier.

	 	 	 	 
	 
	 	 	 	 
	o    Rail Bill of Lading consigned
to marked notify
Applicant indicating the name of the carrier.

	 	 	 	 
	 
	 	 	 	 
	The Transport Document must be marked


o Freight Collect


o Freight Prepaid	 	o   See attached sheet for continuation or other documents or further special instructions which form and are an integral part of this Application.







Covering: Merchandise described in the invoice as (Mention commodity only in generic terms omitting
details as to grade, quality, etc. Do not attach copy of Purchase Order. Reference may be made to
it for information only.)



			
	 	 	 
	Trade Terms: o Check if Incoterms 2000 applies o FAS o FOB 
	 	(named port of shipment);






					
	 	 	 	 	 
	o FCA
	 	(named place of shipment); o CIP
	 	(named place of destination);
	o CFR o CIF
	 	(named port of destination); o Other	 	   .






Documents must be presented for payment, acceptance, negotiation within
 _____ 
days (unless otherwise
specified 21 days will be stipulated) after the date of shipment of the transport documents (or in
the case of a FCR or Air Waybill 21 days after its date) but within the validity of the Credit.



o All bank charges other than those of Issuer are for the beneficiary’s account.



Unless otherwise stated herein, the negotiating/nominated bank (if any) is authorized to send all
documents to you in one airmail or courier service, if available.



The Credit, or any Credit issued shall be subject to the Uniform Customs and Practice for
Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 (“UCP”)
and any subsequent revision thereof adhered to by Bank on the date such Credit is issued.



Rev. 01/01/2009



 


2









 





THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET FORTH IN THE CONTINUING
AGREEMENT, ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED.



	 	 	 	 	 
	 

	 	 

(Applicant/Obligor)
	 	 
	 
	 	 	 	 
	 

	 	 

(Authorized Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Title)
	 	 
	 
	 	 	 	 
	 

	 	 

(Phone)
	 	 
	 
	 	 	 	 
	 

	 	 

(Fax)
	 	 
	 
	 	 	 	 
	 

	 	 

(Date)
	 	 






Without limiting the terms above, you are authorized to debit our account no.

with JPMorgan Chase Bank, N.A. for the amount of each drawing and/or your commissions and charges.



THE FOLLOWING IS TO BE EXECUTED IF THE CREDIT IS TO BE ISSUED FOR THE ACCOUNT OF A PERSON OTHER
THAN THE PERSON SIGNING ABOVE:



AUTHORIZATION AND AGREEMENT OF ADDITIONAL PARTY NAMED AS ACCOUNT PARTY




To: THE ISSUER OF THE CREDIT




We join in the above Agreement, naming us as Account Party, for the issuance of the Credit and, in
consideration thereof, we irrevocably agree (i) that the above Applicant has sole right to give
instructions and make agreements with respect to this Agreement and the Credit, and the disposition
of documents, and we have no right or claim against you, any of your affiliates or subsidiaries, or
any correspondent in respect of any matter arising in connection with any of the foregoing and (ii)
to be bound by the Agreement and all obligations of the Applicant thereunder as if we were a party
thereto. The Applicant is authorized to assign or transfer to you all or any part of any security
held by the Applicant for our obligations arising in connection with this transaction and, upon any
such assignment or transfer, you shall be vested with all powers and rights in respect of the
security transferred or assigned to you and you may enforce your rights under this Agreement
against us or our Property in accordance with the terms hereof.



	 	 	 	 	 
	 

	 	 

(Account Party)
	 	 
	 
	 	 	 	 
	 

	 	 

(Authorized Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Title)
	 	 
	 
	 	 	 	 
	 

	 	 

(Phone)
	 	 
	 
	 	 	 	 
	 

	 	 

(Fax)
	 	 
	 
	 	 	 	 
	 

	 	 

(Date)
	 	 






Rev. 01/01/2009





 


3











 







EXHIBIT H-2




FORM OF DBTCA LETTER OF CREDIT APPLICATION





 


 









 





	 	 	 
	Deutsche Bank	 	






Letter of Credit Number: _________________





APPLICATION FOR IRREVOCABLE STANDBY LETTER OF CREDIT




	 	 	 	 	 
	Applicant (Full name and address):	 	Issuing Bank:
	 

	 	 	 	          Deutsche Bank AG New York Branch or

          Deutsche Bank Trust Company Americas

          60 Wall Street

          New York, New York 10005
	 
	 	 	 	 
	Date of Application:

	 	 	 	Expiry Date:
	 
	 	 	 	 
	 

	 	 	 	Place of Expiry:
	 
	 	 	 	 
	o Issue by (air) mail

	 	o with brief advice by teletransmission	 	 
	o Issue by teletransmission	 	Beneficiary (Full name and address):
	o Issue by courier	 	 
	o Applicant to arrange pick-up	 	 
	o Issue by other (specify):	 	 
	 
	 	 	 	 
	Name and Jurisdiction of Organization of any Subsidiary Account Party
for this Credit (or specify “None”):	 	 
	 
	 	 	 	 
	Confirmation of the Credit:	 	Currency and Amount in Figures and Words (Please use ISO Currency Codes):
	o not requested   o requested

	 	o authorized if requested by Beneficiary	 	 
	 
	 	 	 	 
	o   Credit to be issued with the terms and
conditions set forth in
the attached specimen.
	 	 






Credit available against the document(s) detailed herein:




	o	 	Beneficiary’s sight draft(s) drawn on Issuing Bank

	 
	o	 	Original Credit and any and all amendments to the Credit

	 
	o	 	Beneficiary’s signed and dated statement, reading as follows:

	 
	o	 	Other documents (specify issuer(s) and data content):






Credit to be issued subject to (check one):




	o	 	International Standby Practices 1998, International Chamber of Commerce Publication No. 590 (ISP98), or such later
revision thereof as may be in effect when the Credit is issued.

	 
	o	 	Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce Publication No.
600 (UCP 600), or such later revision thereof as may be in effect when the Credit is issued.







	 	 	 
	o See attached for additional instructions

	 	o   Check if only a single drawing for all or a portion of the amount of the Credit is permitted






 


 









 





The undersigned requests you to issue your irrevocable letter of credit, (herein called the “Credit”), substantially in
accordance with these instructions (marked (x) where appropriate). The undersigned agrees to be bound in respect of the
Credit by the terms and conditions of the Continuing Agreement for Standby Letters of Credit dated                                         , as
amended, supplemented or otherwise modified from time to time, made by the undersigned (and, if applicable, one or more other
parties) to Deutsche Bank AG New York Branch and Deutsche Bank Trust Company Americas. The undersigned represents and
warrants to you that (i) no Event of Default (as defined in such Agreement) or other event that with notice or lapse of time
or both would constitute such an Event of Default has occurred and is continuing or would result from the issuance of the
requested Credit and (ii) all representations and warranties contained in such Agreement are true and correct in all material
respects as of the date hereof and shall be true and correct in all material respects immediately after issuance of the
requested Credit.




	 	 	 	 
	Applicant’s Name:
	 	 


	 	 	 	 
	By:  	 	 
	 	Print Name:  	 
	 	Title:  	 


 


 











 







EXHIBIT I




FORM OF EXEMPTION CERTIFICATE




Reference is made to the Credit Agreement, dated as of September 20, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among RRI
Energy, Inc. (to be renamed GenOn Energy, Inc. on the Closing Date), from and after the Closing
Date, Mirant Americas, Inc. (to be renamed GenOn Americas, Inc. on the Closing Date), a Delaware
corporation (each, a “Borrower” and together, the “Borrowers”), the Lenders party
thereto, the Co-Syndication Agents and Co-Documentation Agents named therein, and JPMorgan Chase
Bank, N.A., as Administrative Agent. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
                                         (the “Non-U.S. Lender”) is providing this certificate pursuant to
Section 2.17(e) of the Credit Agreement. The Non-U.S. Lender hereby represents and warrants that:



1. The Non-U.S. Lender is the sole record and beneficial owner of the Loans in respect of
which it is providing this certificate.



2. The Non-U.S. Lender is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”). In this regard, the Non-U.S. Lender further
represents and warrants that:



(a) the Non-U.S. Lender is not subject to regulatory or other legal requirements as a bank in
any jurisdiction; and



(b) the Non-U.S. Lender has not been treated as a bank for purposes of any Tax, securities law
or other filing or submission made to any Governmental Authority, any application made to a rating
agency or qualification for any exemption from Tax, securities law or other legal requirements.



3. The Non-U.S. Lender is not a 10-percent shareholder of the Borrowers within the meaning of
Section 881(c)(3)(B) of the Code.



4. The Non-U.S. Lender is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code.



IN WITNESS WHEREOF, the undersigned has duly executed this certificate.



	 	 	 	 	 
	 	[NAME OF NON-U.S. LENDER]

 	 
	 	By:  	
 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	Date:     
           
       








 


 









 





EXHIBIT J




FORM OF

LENDER ADDENDUM




The undersigned Lender (i) agrees to all of the provisions of the Credit Agreement, dated as
of September 20, 2010 (the “Credit Agreement”), among RRI Energy, Inc. (to be renamed GenOn
Energy, Inc. on the Closing Date), a Delaware corporation, from and after the Closing Date, Mirant
Americas, Inc. (to be renamed GenOn Americas, Inc. on the Closing Date), a Delaware corporation
(each, a “Borrower” and together, the “Borrowers”), the Lenders party thereto, the
Co-Syndication Agents and Co-Documentation Agents named therein and JPMorgan Chase Bank, N.A., as
Administrative Agent, and (ii) becomes a party thereto, as a Lender, with obligations applicable to
such Lender thereunder, including, without limitation, the obligation to make extensions of credit
to the Borrowers in an aggregate principal amount not to exceed the amount of its Term Commitment
and/or Revolving Commitment, as the case may be, as set forth opposite the undersigned Lender’s
name in Schedule 1.1A to the Credit Agreement, as such amount may be changed from time to time as
provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	 
	 
	 	(Name of Lender)	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Dated as of   
              
    , 2010 [Insert scheduled Closing Date]