exv10w1w51






Exhibit 10.1.51




EXECUTION COPY




 



 





COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT




among



THE ROYAL BANK OF SCOTLAND PLC,

in its capacity as Administrative Agent,



DEUTSCHE BANK TRUST COMPANY AMERICAS,

in its capacity as Collateral Agent and as Depositary Bank,



Each Other SECURED PARTY From Time to Time Party Hereto,



MIRANT MARSH LANDING, LLC,

as the Borrower



Dated as of October 8, 2010



 



 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND OTHER MATTERS
	 	 	1	 
	1.01 Definitions
	 	 	1	 
	1.02 Interpretation
	 	 	9	 
	1.03 Uniform Commercial Code
	 	 	9	 
	 
	 	 	 	 
	ARTICLE II THE COLLATERAL AGENT, THE DEPOSITARY BANK AND THE ESTABLISHMENT OF THE ACCOUNTS
	 	 	9	 
	2.01 Collateral Agent and the Depositary Bank
	 	 	9	 
	2.02 The Accounts
	 	 	12	 
	2.03 Grant of Lien on Accounts
	 	 	14	 
	 
	 	 	 	 
	ARTICLE III PROVISIONS APPLICABLE TO ACCOUNTS
	 	 	14	 
	3.01 Permitted Investments
	 	 	14	 
	3.02 Deposits into the Accounts
	 	 	16	 
	3.03 Withdrawals and Transfers
	 	 	18	 
	3.04 Secured Obligation Event of Default, Etc
	 	 	25	 
	3.05 When Amounts Are Insufficient
	 	 	26	 
	3.06 Distribution of Collateral Proceeds
	 	 	26	 
	3.07 Termination of Accounts
	 	 	27	 
	3.08 Delivery of Transfer Certificates
	 	 	27	 
	 
	 	 	 	 
	ARTICLE IV RELATIVE PRIORITIES
	 	 	27	 
	 
	 	 	 	 
	ARTICLE V SHARING
	 	 	28	 
	5.01 Basic Agreement
	 	 	28	 
	5.02 Payments Received by Certain Secured Parties
	 	 	28	 
	5.03 Amounts Not Subject to Sharing
	 	 	28	 
	5.04 Presumption Regarding Payments
	 	 	29	 
	5.05 No Separate Security
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VI DECISION MAKING; VOTING; NOTICE AND PROCEDURES
	 	 	29	 
	6.01 Decision Making
	 	 	29	 
	6.02 Intercreditor Votes: Each Party’s Entitlement to Vote
	 	 	30	 
	6.03 Intercreditor Votes: Votes Allocated to Each Party
	 	 	30	 
	6.04 Notification of Matters
	 	 	31	 
	6.05 Notice of Amounts Owed
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VII DEFAULTS AND REMEDIES
	 	 	31	 
	7.01 Notice of Defaults
	 	 	31	 
	7.02 Exercise of Remedies
	 	 	32	 
	7.03 Insolvency Default
	 	 	33	 
	7.04 Allocation of Collateral Proceeds
	 	 	33	 
	7.05 Restrictions on Enforcement of Liens
	 	 	34	 
	7.06 Waiver of Marshalling; No Contest
	 	 	34	 






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	 	 	Page	 
	7.07 Insolvency or Liquidation Proceedings
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VIII AMENDMENTS; WAIVERS; INSTRUCTIONS
	 	 	35	 
	8.01 Unanimous Voting Issues
	 	 	35	 
	8.02 Modification and Exercise of Discretion
	 	 	36	 
	8.03 Effect of Amendment on Agents
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IX COLLATERAL AGENT AND DEPOSITARY BANK
	 	 	36	 
	9.01 Appointment
	 	 	36	 
	9.02 Duties and Responsibilities
	 	 	37	 
	9.03 Rights and Obligations
	 	 	37	 
	9.04 No Responsibility for Certain Conduct
	 	 	39	 
	9.05 Defaults
	 	 	40	 
	9.06 Liability
	 	 	40	 
	9.07 Indemnity
	 	 	41	 
	9.08 Resignation and Removal
	 	 	41	 
	9.09 Successor Collateral Agents and Depositary Banks
	 	 	42	 
	9.10 Authorization
	 	 	43	 
	9.11 Collateral Agent or Depositary Bank as Lender
	 	 	43	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	44	 
	10.01 No Waiver; Remedies Cumulative
	 	 	44	 
	10.02 Notices
	 	 	44	 
	10.03 Amendments
	 	 	44	 
	10.04 Benefit of Agreement; Successors and Assigns
	 	 	44	 
	10.05 Third-Party Beneficiaries
	 	 	44	 
	10.06 Counterparts
	 	 	45	 
	10.07 Effectiveness
	 	 	45	 
	10.08 Entire Agreement
	 	 	45	 
	10.09 Severability
	 	 	45	 
	10.10 Conflict with Other Agreements
	 	 	45	 
	10.11 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial
	 	 	45	 
	10.12 Termination
	 	 	45	 
	10.13 Reinstatement
	 	 	45	 
	10.14 Attorney-In-Fact
	 	 	46	 
	10.15 Stamp and Other Similar Taxes
	 	 	46	 
	10.16 Filing Fees, Excise Taxes, Etc
	 	 	46	 
	10.17 Accession Agreements
	 	 	46	 
	10.18 USA PATRIOT Act
	 	 	47	 
	10.19 Collateral Agent and Depositary Agent
	 	 	48	 
	 
	 	 	 	 
	ATTACHMENTS
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE I  — Account Names and Numbers
	 	 	 	 
	EXHIBIT A     — Form of Construction Account Withdrawal Certificate
	 	 	 	 
	EXHIBIT B     — Form of Accounts Withdrawal Certificate
	 	 	 	 
	EXHIBIT C     — Modifications; Unanimous Voting Issues
	 	 	 	 
	EXHIBIT D     — Form of Accession Agreement
	 	 	 	 






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AGREEMENT




     COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this “Agreement”), dated as of October
8, 2010 among MIRANT MARSH LANDING, LLC, a limited liability company organized under the laws of
Delaware (the “Borrower”), THE ROYAL BANK OF SCOTLAND PLC, in its capacity as
Administrative Agent (the “Administrative Agent”), DEUTSCHE BANK TRUST COMPANY AMERICAS, in
its capacities as Collateral Agent (the “Collateral Agent”) and as Depositary Bank (the
“Depositary Bank”) and each other Secured Party from time to time party hereto.



RECITALS



     WHEREAS, the Borrower wishes to finance the development and construction of an approximately
760 MW natural gas-fired turbine generator facility to be located near Antioch, California;



     WHEREAS, the Borrower, the Collateral Agent, the Depositary Bank, the Administrative Agent and
the Lenders are entering into the Credit Agreement dated as of October 8, 2010 (as amended,
modified or supplemented from time to time, the “Credit Agreement”);



     WHEREAS, the Borrower may enter into additional Secured Obligation Documents with additional
Secured Parties from time to time; and



     WHEREAS, the parties hereto desire to set forth in this Agreement, among other things, certain
provisions with respect to the Accounts, including establishment thereof and distributions and
withdrawals therefrom, as well as certain intercreditor provisions, including the method of voting
and decision making for the Secured Parties and the application of proceeds upon enforcement
following a Secured Obligation Event of Default;



     NOW, THEREFORE, in consideration of the foregoing and other good and valid consideration, the
receipt and adequacy of which are hereby expressly acknowledged, each of the parties signatory
hereto hereby agree as follows:



ARTICLE I



DEFINITIONS AND OTHER MATTERS




	1.01	 	Definitions. Unless otherwise defined herein, terms defined in Section 1.01 of
the Credit Agreement are used herein (including the introductory paragraph and recitals of
this Agreement) as defined therein. In addition, for purposes of this Agreement, the
following terms shall have the following meanings:
	 
	 	 	“Accelerated Contribution Amount” has the meaning given to such term in the Equity
Contribution Agreement.
	 
	 	 	“Acceptable Bank” means (a) each Lead Arranger and (b) any United States commercial
bank(s) or financial institution(s) or a United States branch or subsidiary of a foreign





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	 	 	commercial bank(s) or financial institution(s) having, or guaranteed or confirmed by an
entity having, a long-term unsecured senior debt rating of at least two of the following: A2
or better by Moody’s, A or better by S&P or A or better by Fitch.
	 
	 	 	“Accession Agreement” means an accession agreement substantially in the form
attached as Exhibit D.
	 
	 	 	“Accounts” means the Accounts set out in Section 2.02.
	 
	 	 	“Accounts Withdrawal Certificate” means a certificate substantially in the form of
Exhibit B and appropriately completed and delivered by the Borrower.
	 
	 	 	“Additional Secured Obligation” has the meaning given to such term in Section
10.17(b)(i).
	 
	 	 	“Administrative Agent” has the meaning assigned to such term in the introductory
paragraph hereof.
	 
	 	 	“Administrative Costs” means all of the Borrower’s obligations to pay administrative
fees, costs and expenses, including indemnity payments, to the Depositary Bank and any Agent
as provided under the Financing Documents.
	 
	 	 	“Agents” means the “Agents” as defined pursuant to the Credit Agreement, and any
Replacement Letter of Credit Administrative Agent.
	 
	 	 	“Aggregate Exposure” means, as of any date of calculation, the sum (calculated
without duplication) of the following, to the extent the same is held by a Secured Party:






	 		 	(a) the aggregate principal amount of Loans outstanding under the Credit Agreement;
plus
	 
	 		 	(b) the aggregate DSR Letter of Credit Exposure under the Credit Agreement;
plus
	 
	 		 	(c) the aggregate PPA Letter of Credit Exposure under the Credit Agreement; plus
	 
	 		 	(d) the aggregate amount of unused Commitments under the Credit Agreement;
plus
	 
	 		 	(e) subject to Section 6.02, the Permitted Swap Agreement Obligations Amount;
plus
	 
	 		 	(f) the aggregate principal amount of Replacement Letter of Credit Loans
outstanding under any Replacement Letter of Credit Facility; plus
	 
	 		 	(g) the aggregate amount of unused commitments under any Replacement Letter of
Credit Facility; plus





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(h) the aggregate Replacement Letter of Credit Exposure under the
Replacement Letter of Credit Facility.




“Agreement” has the meaning assigned to such term in the introductory paragraph
hereof.




“Authorized Officer” means, with respect to any Person, any executive officer or
Financial Officer of such Person or any member or manager of such Person responsible for the
administration of the obligations of such Person in respect of this Agreement and any other
Transaction Document.




“Base Equity Contribution” has the meaning assigned to such term in the Equity
Contribution Agreement.




“Borrower” has the meaning assigned to such term in the introductory paragraph
hereof.




“Collateral Agent” has the meaning assigned to such term in the introductory
paragraph hereof.




“Commitment Fees” means the commitment fees payable by the Borrower pursuant to
Section 2.10(a) of the Credit Agreement and pursuant to any Replacement Letter of Credit
Facility.




“Condemnation Proceeds” means all amounts and proceeds (including instruments)
received in respect of an Event of Taking.




“Construction Account” has the meaning assigned to such term in Section 2.02(a)(i).




“Construction Account Withdrawal Certificate” means a certificate substantially in
the form of Exhibit A and appropriately completed and delivered by the Borrower.




“CPI” means the Customer Price Index, All Urban Customers for All Items
(1982-84=100), in effect as of January 1 of each calendar year, as published by the United
States Department of Labor, Bureau of Labor Statistics or any successor index thereof, or if
such index is discontinued or unavailable and is not replaced, then another index published
by the United States Department of Labor, Bureau of Labor Statistics as mutually agreed.




“Credit Agreement” has the meaning assigned to such term in the Recitals.




“Debt Payment Deficiency” has the meaning assigned to such term in Section
3.03(d)(iii).




“Debt Service Reserve Account” has the meaning assigned to such term in Section
2.02(a)(iv).




“Denominator” has the meaning assigned to such term in Section 6.03(b).



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“Depositary Bank” has the meaning assigned to such term in the introductory
paragraph hereof.




“Depositary Collateral” has the meaning assigned to such term in Section 2.03.




“DIP Financing” has the meaning given to such term in Section 7.07.




“Distribution Account” has the meaning assigned to such term in Section
2.02(a)(viii).




“Excess Reserve Amount” has the meaning assigned to such term in Section
3.03(d)(iv).




“Financial Assets” has the meaning assigned to such term in Section 2.01(b).




“Financing Documents” means, collectively, any agreement, certificate, document or
instrument constituting a “Financing Document” under the Credit Agreement and (to the extent
that the Replacement Issuing Lenders and Replacement Lenders under a Replacement Letter of
Credit Facility (or a Replacement Letter of Credit Administrative Agent on their behalf)
execute an Accession Agreement) Replacement Letter of Credit Facility.




“Foreclosure Action” means the commencement of any action by the Collateral Agent or
any assignee or designee of the Collateral Agent, acting pursuant to the written
instructions of the Required Secured Parties under Section 7.02 hereof following an
Intercreditor Vote, to (i) foreclose upon the assets and properties of the Project, (ii)
otherwise exercise remedies to acquire or transfer (or to cause any assignee or designee to
acquire or transfer) ownership of the membership interests of the Borrower or substantially
all of the assets and properties of the Project, by assignment in lieu of foreclosure or
otherwise, or (iii) otherwise exercise rights and remedies under the Financing Documents, in
each case following a Secured Obligation Event of Default of which the Collateral Agent has
been notified in writing by the Administrative Agent.




“Insurance/Condemnation Proceeds Account” has the meaning assigned to such term in
Section 2.02(a)(vii).




“Intercreditor Vote” means a vote conducted in accordance with the procedures set
forth in Article VI among the Secured Parties.




“Interest Payment Account” has the meaning assigned to such term in Section
2.02(a)(v).




“Letter of Credit Fees” means the participation fees and fronting fees payable by
the Borrower pursuant to Section 2.10(b) of the Credit Agreement and pursuant to any
Replacement Letter of Credit Facility.




“Major Maintenance Account” has the meaning assigned to such term in Section
2.02(a)(ix).




“Major Maintenance Expenses” means costs and expenses for regularly scheduled (or
reasonably anticipated) major maintenance on the gas turbines of the Project, including,



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but not limited to, hot gas path inspections, major overhauls and inspections, and generator
inspections.




“Major Maintenance Contribution Amount” means (i) prior to and including the first
900 starts of each gas turbine, $9,360 per each start of a gas turbine, (ii) thereafter,
$9,818 per each start of a gas turbine until the 1,800th start, and (iii) thereafter,
$9,360 per each start of a gas turbine, in each case the rate adjusted annually on January
1st by the change in CPI from the prior January 1st.




“Modification” and “Modify” mean, with respect to any Secured
Obligation Document, any amendment, supplement, Waiver or other modification of the terms
and provisions thereof.




“Non-Voting Lender” has the meaning assigned to such term in Section 6.02(b).




“Notice of Default” has the meaning assigned to such term in Section 7.01.




“Numerator” has the meaning assigned to such term in Section 6.03(b).




“Operating Account” has the meaning assigned to such term in Section 2.02(a)(ii).




“Ordinary Course Settlement Payments” means all regularly scheduled payments due
under any Permitted Swap Agreement from time to time, calculated in accordance with the
terms of such Permitted Swap Agreement, but excluding, for the avoidance of doubt, any
Termination Payments due and payable under such Permitted Swap Agreement.




“Permitted Borrower Bank Account” means, no more than one demand deposit account
(other than the Accounts) established by the Borrower at its election with an Acceptable
Bank with prior written notice to the Administrative Agent and the Collateral Agent, which
shall be subject to an account control agreement with the Collateral Agent in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.




“Permitted Construction Account Distribution Amount” means an amount equal to up to
85% of the remaining Term Loan Commitment that is available after (i) the funding in full of
the Debt Service Reserve Account in the amount of the Debt Service Reserve Required Amount
(except to the extent satisfied by the issuance of the Debt Service Reserve Letter of
Credit), and less (ii) the amount required to be maintained in the Construction Account
after the Conversion Date pursuant to Section 3.03(a)(iii).




“Permitted Investments” means: (a) marketable direct obligations of the United
States of America; (b) marketable obligations directly and fully guaranteed as to interest
and principal by the United States of America; (c) demand deposits with the Collateral Agent
and any Issuing Lender, and time deposits, certificates of deposit and banker’s acceptances
issued by an Acceptable Bank; (d) commercial paper or tax-exempt obligations given one of
the three highest ratings by S&P and Moody’s; (e) obligations of the Collateral Agent or any
Issuing Lender meeting the requirements of clause (c) above or any other bank meeting the
requirements of clause (c) above, in respect of the



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repurchase of obligations of the type as
described in clauses (a) and (b) above, provided that such repurchase obligations
shall be fully secured by obligations of the type described in said clauses (a) and (b)
above, and the possession of such obligations shall
be transferred to, and segregated from other obligations owned by the Collateral Agent or
any Issuing Lender, or such other bank; (f) a money market fund or a qualified investment
fund (including any such fund for which the Collateral Agent or any Issuing Lender or any
Affiliate thereof acts as an advisor or a manager) given one of the two highest long-term
ratings available from S&P and Moody’s; (g) Eurodollar certificates of deposit issued by the
Collateral Agent or any Issuing Lender meeting the requirements of clause (c) above or any
other bank meeting the requirements of clause (c) above; and (h) Permitted Swap Agreements.
In no event shall any cash be invested in any obligation, certificate of deposit,
acceptance, commercial paper or instrument which by its terms matures more than 90 days
after the date of investment, unless the Collateral Agent or any Issuing Lender or a bank
meeting the requirements of clause (c) above shall have agreed to repurchase such
obligation, certificate of deposit, acceptance, commercial paper or instrument at its
purchase price plus earned interest within no more than 90 days after its purchase
hereunder. With respect to any rating requirement set forth above, if the relevant issuer
is rated by either S&P or Moody’s, but not both, then only the rating of such rating agency
shall be utilized for the purpose of this definition.




“Permitted Swap Agreement Obligations Amount” means, with respect to any Permitted
Swap Agreement on any date, the Termination Payment under such Permitted Swap Agreement
determined in accordance with such Permitted Swap Agreement.




“Prepayment Account” has the meaning assigned to such term in Section 2.02(a)(x).




“Principal Payment Account” has the meaning assigned to such term in Section
2.02(a)(vi).




“Remedies Direction” has the meaning assigned to such term in Section 7.02(a).




“Replacement Issuing Lender” means an issuing lender or issuing bank under any
Replacement Letter of Credit Facility.




“Replacement Lender” means a lender under any Replacement Letter of Credit Facility.




“Replacement Letter of Credit” means a letter of credit issued under any
Replacement Letter of Credit Facility.




“Replacement Letter of Credit Administrative Agent” means the administrative agent
or other similar agent specified under any Replacement Letter of Credit Facility, provided
that such Person shall have executed an Accession Agreement.




“Replacement Letter of Credit Exposure” means, with respect to any Replacement
Lender at any time, such Replacement Lender’s applicable percentage of the sum of (a) the
aggregate undrawn amount of any Replacement Letter of Credit at such time plus (b) the
aggregate amount of all Replacement Letter of Credit disbursements that have not yet



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been reimbursed by or on behalf of the Borrower at such time pursuant to the terms of the
Replacement Letter of Credit Facility.




“Replacement Letter of Credit Loans” means the loans provided by the Replacement
Lenders under any Replacement Letter of Credit Facility.




“Required Secured Parties” means, at any time, Secured Parties representing at least
a majority of the Aggregate Exposure, as determined pursuant to Section 6.03(b) and
confirmed by the Administrative Agent to the Collateral Agent in writing.




“Revenue Account” has the meaning assigned to such term in Section 2.02(a)(iii).




“Secured Obligation Default” means the occurrence and continuation of a “Default”
(or equivalent) under, and as defined in, any Secured Obligation Document, including the
occurrence and continuation of any event that, with notice or lapse of time or both, would
give rise to a Termination Payment under any Permitted Swap Agreement.




“Secured Obligation Documents” means, collectively, (a) the Financing Documents
(other than the Permitted Swap Agreements) and (b) any Permitted Swap Agreement with a
counterparty that becomes party hereto by executing and delivering an Accession Agreement.




“Secured Obligation Event of Default” means the occurrence and continuation of an
“Event of Default” (or equivalent) under, and as defined in, any Secured Obligation
Document, including the occurrence and continuation of any event that would give rise to a
Termination Payment under any Permitted Swap Agreement.




“Secured Obligations” means, collectively, all obligations and liabilities of any
Loan Party arising under or in connection with all Financing Documents, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or hereafter
arising, in respect of: (i) the principal of and interest on all Loans and Replacement
Letter of Credit Loans, (ii) all amounts payable under any Permitted Swap Agreements, (iii)
fees payable under any Financing Document, (iv) all other amounts payable by a Loan Party to
any Agent, any Issuing Lender or Replacement Issuing Lender or any Lender or Replacement
Lender pursuant to any Financing Document, including any premium, reimbursements, damages,
expenses, fees, costs, charges, disbursements, indemnities, and other liabilities (including
all reasonable fees, charges, expenses and disbursements of counsel , but limited to one
counsel to Agent, any Issuing Lender or any Lender) due and payable to any Agent, any
Issuing Lender or Replacement Issuing Lender or any Lender or Replacement Lender and
including interest that would accrue on any of the foregoing during the pendency of any
bankruptcy or related proceeding with respect to a Loan Party and (v) the performance and
observance of all of the covenants and agreements made by the Loan Party for the benefit of
the Secured Parties under and in connection with any Financing Document.




“Secured Party” means (i) the Agents, (ii) the Issuing Lenders and the Lenders,
(iii) any person party to a Permitted Swap Agreement and (iv) any Replacement Issuing Lender
and Replacement Lender under a Replacement Letter of Credit Facility (or a



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Replacement Letter of Credit Administrative Agent on their behalf) that, in the case of (iii) and (iv)
only, executes and delivers an Accession Agreement.




“Swap Bank” means, at any time, any counterparty to a Permitted Swap Agreement at
such time.




“Swap Early Termination Date” means the date of early termination of any Permitted
Swap Agreement in accordance with the terms thereof and this Agreement.




“Swap Termination Certificate” means a certificate of any Swap Bank stating that a
Swap Early Termination Date has occurred or has been designated under a Permitted Swap
Agreement to which it is a party and setting forth the resulting Termination Payment.




“Termination Payment” means any amount payable by the Borrower in connection with an
early termination (whether as a result of the occurrence of an event of default or other
termination event) of any Permitted Swap Agreement in accordance with the terms thereof and
this Agreement; provided that for the avoidance of doubt, “Termination Payments”
shall not include any Ordinary Course Settlement Payments due under any such Permitted Swap
Agreement.




“Transfer Date” means the last Business Day of each month or such other Business Day
of each month as notified to the Collateral Agent and the Depositary Bank by the Borrower no
less than five (5) Business Days prior to such date.




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




“Unanimous Voting Parties” means, with respect to any proposed decision or action
hereunder, the votes of the Secured Parties representing 100% of the Aggregate Exposure.




“Voting Party Percentage” means, in connection with any proposed decision or action
hereunder, the actual percentage, as determined pursuant to Section 6.03(b), of allotted
votes of the Secured Parties entitled to vote with respect to such decision or action cast
in favor of such decision or action.




“Waiver” means, with respect to any particular conduct, event or other circumstance,
any change to an obligation of any Person under any Secured Obligation Document requiring
the consent of one or more Secured Parties, which consent has the effect of excusing
performance of or compliance with such obligation, or any Secured Obligation Default or
Secured Obligation Event of Default with respect thereto to the extent relating to such
conduct, event or circumstance; provided, however, that any Waiver shall be
limited in time and substance solely to the particular conduct, event or circumstance and
shall not purport, directly or indirectly, to alter or otherwise modify the relevant
obligation with respect to future occurrences of the same conduct, event or circumstance.



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	1.02	 	Interpretation.






	 	(a)	 	Principles of Construction. The principles of construction and
interpretation set forth in Sections 1.02 and 1.03 of the Credit Agreement shall apply
to this Agreement as if set forth herein, mutatis mutandis.
	 
	 	(b)	 	Withdrawals to Occur on a Business Day. In the event that any
withdrawal, transfer or payment to or from any Account contemplated under this
Agreement shall be required to be made on a day that is not a Business Day, such
withdrawal, transfer or payment shall be made on the next succeeding Business Day.






	1.03	 	Uniform Commercial Code. All terms defined in the UCC shall have the
respective meanings given to those terms in the UCC, except where the context otherwise
requires.





ARTICLE II




THE COLLATERAL AGENT, THE DEPOSITARY BANK AND THE 


ESTABLISHMENT OF THE ACCOUNTS




	2.01	 	Collateral Agent and the Depositary Bank.






	 	(a)	 	Securities Intermediary.






	 	(i)	 	In its capacity as Depositary Bank hereunder, Deutsche Bank
Trust Company Americas hereby agrees to act as “securities intermediary”
(within the meaning of Section 8-102(a)(14) of the UCC) with respect to the
Accounts and the Financial Assets credited to such Accounts, and, to the extent
that any of the Accounts are determined not to be securities accounts, as a
“bank” (within the meaning of 9-102(a)(8) of the UCC) with respect to the
Accounts and credit balances not constituting Financial Assets credited
thereto, and to accept all cash, payments, Permitted Investments and other
amounts to be delivered to or held by the Depositary Bank pursuant to the terms
of this Agreement. The Depositary Bank shall hold and safeguard the Accounts
during the term of this Agreement in accordance with the provisions of this
Agreement.
	 
	 	(ii)	 	The Borrower shall not have any rights to withdraw or transfer
funds from the Accounts, as third party beneficiary or otherwise, except as
otherwise provided herein.






	 	(b)	 	Accounts Maintained as UCC “Securities Accounts”. The Collateral
Agent, the Depositary Bank and the Borrower hereby agree that (i) the Depositary Bank
has established, in the name of the Borrower, the Accounts as set forth in Section
2.02(a); (ii) each such Account is and will be maintained as a “securities account”
(within the meaning of Section 8-501 of the UCC); (iii) the Borrower is the sole
“entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in
respect of the “financial assets” (within the meaning of Section 8-102(a)(9) of the
UCC, the “Financial Assets”) credited to such Accounts; (iv) all





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	 	 	 	Financial Assets in registered form or payable to, or to the order of, and credited to, any
such Account shall be registered in the name of, payable to, or to the order of, or
specially endorsed to, the Depositary Bank or in blank, or credited to another
securities account maintained in the name of the Depositary Bank; and (v) in no case
will any Financial Asset credited to any such Account be registered in the name of,
payable to, or to the order of, or endorsed to, the Borrower except to the extent
the foregoing have been subsequently endorsed by the Borrower to the Depositary Bank
or in blank. Each item of Property (including cash, a security, security
entitlement, investment property, instrument or obligation, share, participation,
interest or other property whatsoever) credited to any Account shall to the fullest
extent permitted by law be treated as a Financial Asset.
	 
	 	 	 	Until the Termination Date, the Collateral Agent shall have “control” (within the
meaning of Section 8-106(d)(2) or Section 9-104(a) (as applicable) of the UCC) of,
and shall be entitled to provide “entitlement orders” (within the meaning of Section
8-102(a)(8) of the UCC) with respect to, the Accounts and of the Borrower’s
“security entitlements” (within the meaning of Section 8-102(a)(17) of the UCC) with
respect to the Financial Assets credited to the Accounts. All property delivered to
the Depositary Bank pursuant to this Agreement will be promptly credited to the
applicable Account in accordance with the terms hereof. The Borrower hereby
irrevocably directs, and the Depositary Bank (in its capacity as securities
intermediary) hereby agrees, that the Depositary Bank will comply with all
instructions and orders (including entitlement orders within the meaning of Section
8-102(a)(8) of the UCC) regarding each Account and any Financial Asset therein
originated by the Collateral Agent without the further consent of the Borrower or
any other Person. In the case of a conflict between any instruction or order
originated by the Collateral Agent and any instruction or order originated by the
Borrower or any other Person (other than a court of competent jurisdiction), the
instruction or order originated by the Collateral Agent shall prevail. The
Depositary Bank shall not change the name or account number of any Account without
the prior written consent of the Collateral Agent (such consent not to be
unreasonably withheld or delayed) and at least five Business Days’ prior notice to
the Borrower, and shall not change the entitlement holder with respect to any
Financial Asset credited thereto.
	 
	 	 	 	To the extent that any of the Accounts are determined not to be “securities
accounts” (within the meaning of Section 8-501(a) of the UCC), such Accounts shall
be deemed to be “deposit accounts” (as defined in Section 9-102(a)(29) of the UCC),
which the Borrower shall maintain with the Depositary Bank acting as a “bank”
(within the meaning of Section 9-102(a)(8) of the UCC) pursuant to Section
2.01(a)(i). The Depositary Bank shall credit the Accounts with all
receipts of interest, dividends and other income received on the Property held in
the Accounts. The Depositary Bank shall administer and manage the Accounts in
strict compliance with all the terms applicable to the Accounts pursuant to this
Agreement, and shall be subject to and comply with all the obligations of the
Depositary Bank with respect to the Accounts pursuant to the terms of this





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	 	 	 	Agreement. The Depositary Bank hereby agrees to comply with any and all
instructions originated by the Collateral Agent directing disposition of funds and
all other Property in the Accounts without any further consent of the Borrower or
any other Person.






	 	(c)	 	Jurisdiction of Depositary. The Borrower, the Collateral Agent and the
Depositary Bank agree that, for purposes of Articles 8 and 9 of the UCC,
notwithstanding anything to the contrary contained in any other agreement relating to
the establishment and operation of the Accounts, the jurisdiction of the Depositary
Bank (in its capacity as securities intermediary and as bank) is the State of New York
and the laws of the State of New York govern the establishment and operation of the
Accounts.
	 
	 	(d)	 	Degree of Care; Liens. The Depositary Bank shall exercise the same
degree of care in administering the funds held in the Accounts and the investments
purchased with such funds in accordance with the terms of this Agreement as the
Depositary Bank exercises in the ordinary course of its day-to-day business in
administering other funds and investments for its own account and as required by
applicable law. The Depositary Bank is not party to and shall not execute and deliver,
or otherwise become bound by, any agreement (other than this Agreement) under which the
Depositary Bank agrees with any Person other than the Collateral Agent (and, to the
extent set forth herein, the Borrower and the Administrative Agent and the Replacement
Letter of Credit Administrative Agent, but subject to Section 2.01(b)) to comply with
entitlement orders or instructions originated by such Person relating to any of the
Accounts or the security entitlements that are the subject of this Agreement. The
Depositary Bank shall not grant or accept any Lien on any Financial Asset (other than
any Lien granted under the Security Documents) and shall, if any such Lien shall
nevertheless be created, use commercially reasonably efforts to cause the prompt
release or discharge of the same.
	 
	 	(e)	 	Subordination of Lien; Waiver of Set-Off. In the event that the
Depositary Bank has or subsequently obtains by agreement, operation of law or otherwise
a Lien over any Account or in any Depositary Collateral, the Depositary Bank agrees
that such Lien shall (except to the extent provided in the last sentence of this
Section 2.01(e)) be subordinate to the Lien of the Collateral Agent. The Financial
Assets standing to the credit of the Accounts will not be subject to deduction,
set-off, banker’s lien, or any other right in favor of any Person other than the
Collateral Agent (except to the extent of Depositary Bank’s usual and customary charges
and returned items and chargebacks either for uncollected checks or other items of
payment and transfers previously credited to one or more of the Accounts including
automatic clearinghouse or other electronic entries and later reversed,
whether for insufficient funds or for any other reason and without regard for the
timeliness of return or reversal, and the Borrower and the Collateral Agent hereby
authorize the Depositary Bank to debit the applicable Accounts for such amounts).





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	 	(f)	 	No Other Agreements. None of the Depositary Bank, the Collateral Agent
or the Borrower has entered or will enter into any agreement with respect to any
Account or any other Depositary Collateral, other than this Agreement and the other
Financing Documents.
	 
	 	(g)	 	Notice of Adverse Claims. The Depositary Bank hereby represents that,
except for the claims and interests of the Collateral Agent and the Borrower in the
Accounts, the Depositary Bank, (i) as of the Closing Date, has no knowledge of, and has
received no notice of, and (ii) as of each date on which any Account is established
pursuant to this Agreement, has received no notice of, any claim to, or interest in,
any Account or in any other Depositary Collateral. If any Person asserts any Lien
(including any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against any Account or in any other Depositary Collateral, the Depositary
Bank, upon obtaining written notice thereof, will promptly notify the Collateral Agent
and the Borrower thereof.
	 
	 	(h)	 	Reports; Documents. The Depositary Bank shall provide to the
Borrower and the Agents, and the Administrative Agent and Replacement Letter of Credit
Administrative Agent in turn shall promptly provide to the Lenders and Replacement
Lenders, respectively, a monthly statement of all deposits to, disbursements from and
interest and earnings credited to each Account. The Depositary Bank shall retain
records of all receipts, disbursements and investments of funds with respect to the
Accounts until the third anniversary of the Termination Date. Upon written request,
the Depositary Bank shall provide the Borrower and the Agents with online access to
view all activity with respect to the Accounts.
	 
	 	(i)	 	Receipt of Certain Funds. If any Agent receives directly any amount
that is payable to an Account (due to such amount not being paid directly to the
applicable Account), such Agent (at the direction of the Collateral Agent) shall
deposit such amount in the applicable Account, and the obligations of the Borrower to
deposit such amount into such Account shall be deemed satisfied upon such deposit.






	2.02	 	The Accounts.






	 	(a)	 	Establishment of Accounts. As of the Closing Date, the Depositary Bank
has established the following special, segregated and irrevocable collateral accounts
at its offices located in New York City bearing the names and account numbers
identified in Schedule I (such accounts, collectively, the “Accounts”) each of
which shall be maintained at all times by the Depositary Bank in accordance with the
terms of this Agreement until the termination of this Agreement (unless this
Agreement otherwise expressly contemplates closure of such Account prior to the date
of the termination of this Agreement):






	 	(i)	 	the Construction Account (the “Construction Account”),
in the name of the Borrower;





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	 	(ii)	 	the Operating Account (the “Operating Account”), in the
name of the Borrower;
	 
	 	(iii)	 	the Revenue Account (the “Revenue Account”), in the
name of the Borrower;
	 
	 	(iv)	 	the Debt Service Reserve Account (the “Debt Service Reserve
Account”), in the name of the Borrower;
	 
	 	(v)	 	the Interest Payment Account (the “Interest Payment
Account”), in the name of the Borrower;
	 
	 	(vi)	 	the Principal Payment Account (the “Principal Payment
Account”), in the name of the Borrower;
	 
	 	(vii)	 	the Insurance/Condemnation Proceeds Account (the
“Insurance/Condemnation Proceeds Account”), in the name of the
Borrower;
	 
	 	(viii)	 	the Distribution Account (the “Distribution Account”), in the name of
the Borrower;
	 
	 	(ix)	 	the Major Maintenance Account (the “Major
Maintenance Account”)_in the name of the Borrower; and
	 
	 	(x)	 	the Prepayment Account (the “Prepayment Account”), in
the name of the Borrower.
	 
	 	In addition, for administrative purposes, the Depositary Bank may open from time to
time any additional accounts (which may be deemed “sub-accounts” of existing
Accounts), as directed in writing by the Collateral Agent and (so long as no Secured
Obligation Event of Default has occurred and is continuing) the Borrower.






	 	(b)	 	Account Names and Numbers. The names and account numbers of the
Accounts established hereunder on or prior to the Closing Date are set out on Schedule
I. The Depositary Bank shall advise the Agents and the Borrower in writing of the
account name and number of any Account established hereunder by the Depositary Bank and
the Borrower, if any, after the Closing Date.
	 
	 	(c)	 	No Other Accounts. The Borrower shall not open or maintain or cause to
be opened or maintained with any bank or other financial institution any deposit,
savings or other account other than the Accounts, the Permitted Borrower Bank Account
and any other accounts expressly permitted by the Financing Documents.





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	 	(d)	 	Accounts Constitute Collateral.






	 	(i)	 	Each Account and all amounts from time to time held in or
credited to such Account shall be subject to the Lien of the Collateral Agent
intended to be created by the Security Documents for the benefit of the Secured
Parties.
	 
	 	(ii)	 	Each Account and all amounts from time to time held in such
Account shall be held in the custody of, and maintained by the Depositary Bank
for the purposes and on the express terms set out in this Agreement. All such
amounts shall constitute a part of the Depositary Collateral and shall not
constitute payment of any Secured Obligations or any other obligations of the
Borrower until expressly applied thereto in accordance with the provisions of
this Agreement or the other Financing Documents.






	 	(e)	 	Standing Instructions. The Borrower and each Agent hereby irrevocably
instruct and authorize the Depositary Bank to deposit funds (promptly upon receipt
thereof) into, and transfer and withdraw funds from, the Accounts in accordance with
the terms of this Agreement and the other Financing Documents.






	2.03	 	Grant of Lien on Accounts. As collateral security for the prompt and complete
payment and performance when due of the Secured Obligations, the Borrower has, pursuant to
the Security Agreement, assigned, granted and pledged to the Collateral Agent on behalf of
and for the benefit of the Secured Parties (subject to Section 3.06(a)), a security interest
in each Account, and all cash, investments, investment property, securities or other
property, including any security entitlements with respect to any of the foregoing, at any
time on deposit in or credited to any Account, including all income or gain earned thereon
and any proceeds thereof (collectively, the “Depositary Collateral”).





ARTICLE III




PROVISIONS APPLICABLE TO ACCOUNTS




	3.01	 	Permitted Investments.






	 	(a)	 	Permitted Investments. Pending the application of funds in accordance
with this Article III, funds held in any Account shall be invested and reinvested in
Permitted Investments (other than Permitted Investments set forth in clause (h) of the
definition thereof) by the Depositary Bank upon written direction of the
Borrower (which may be in the form of a standing instruction) or, if a Secured
Obligation Event of Default has occurred and is continuing, of the Collateral Agent,
only in Permitted Investments, and with respect to those amounts next anticipated to
be transferred or withdrawn, having a scheduled maturity no later than such next
anticipated cash withdrawal or transfer from such Account. In the event no written
instructions of the Borrower (or, if applicable of the Collateral Agent), is
received by 11:00 a.m., New York time on any Business Day, such funds shall be held
uninvested. All funds in an Account that are invested pursuant





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	 	 	 	to this Section 3.01(a) shall be deemed to be held in such Account for purposes of this Agreement
and the other Financing Documents and shall constitute part of the Depositary
Collateral. The Borrower’s right to direct the manner of investment to the extent
provided in this Section 3.01(a) includes the right (i) to direct the Depositary
Bank to sell any Permitted Investment or hold it until maturity and (ii) upon any
sale or maturity of any Permitted Investment, to direct the Depositary Bank to
reinvest the proceeds thereof, plus any interest received by the Depositary Bank
thereon, in Permitted Investments or to hold such proceeds and interest for
application pursuant to the terms of this Agreement. Except as otherwise provided
herein, net interest or gain received, if any, from such Permitted Investments shall
be deposited into the applicable Account until applied in accordance with Section
3.01(d). The Borrower shall bear all risk of loss of capital from investments in
Permitted Investments except to the extent that any such loss has resulted from the
Depositary Bank’s or the Collateral Agent’s gross negligence or willful misconduct,
as determined by a court of competent jurisdiction in a final judgment from which no
appeal may be taken. It is agreed and understood that the Depositary Bank may earn
fees associated with the investments outlined above in accordance with the terms of
such investments. In no event shall the Depositary Bank be deemed an investment
manager or adviser in respect of any selection of investments hereunder. It is
understood and agreed that the Depositary Bank or its affiliates are permitted to
receive additional compensation that could be deemed to be in the Depositary Bank’s
economic self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain of
the investments, (ii) using affiliates to effect transactions in certain investments
and (iii) effecting transactions in investments.






	 	(b)	 	Liability of Depositary Bank.






	 	(i)	 	The Depositary Bank shall not have any duty to determine
whether any investment or reinvestment of monies in any Account satisfies the
criteria set out in the definition of “Permitted Investments”.
	 
	 	(ii)	 	Except as provided in Section 3.01(a) and Section 9.06, the
Depositary Bank shall not be liable for any loss or penalities resulting from
any investment in any Permitted Investment or the sale, disposition, redemption
or liquidation of such investment or by reason of the fact that the proceeds
realized in respect of such sale, disposition, redemption or liquidation were
less than that which might otherwise have been obtained.






	 	(c)	 	Liquidation to Make Disbursements. If and when cash is required for
the making of any transfer, disbursement or withdrawal in accordance with this Article
III, the Borrower or, if a Secured Obligation Event of Default has occurred and is
continuing, the Collateral Agent, shall cause Permitted Investments to be sold or
otherwise liquidated into cash as and to the extent necessary in order to make such
transfers, disbursements or withdrawals required pursuant to this Article III by giving
written notice of such sale or liquidation to the Depositary Bank. Subject





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	 	 	 	to Section 2.01, Section 3.04 and this Section 3.01, the Depositary Bank shall comply with any
written instruction from the Borrower with respect to any such liquidation of Permitted
Investments. In the event any such investments are redeemed prior to the maturity
thereof, the Depositary Bank shall not be liable for any loss or penalties relating
thereto.
	 
	 	(d)	 	Income from Investments. The proceeds from the investment of monies in
any Account in Permitted Investments shall be deposited by the Depositary Bank into the
Construction Account, prior to the Conversion Date, and into the Revenue Account, from
and after the Conversion Date, in each case, on or before the third Business Day
following the month in which such interest, gain or other amount is earned and
received; provided that for the avoidance of doubt, such proceeds shall consist
of interest, gain and other amounts received in respect of an investment of principal
and not the principal itself. Any interest, gain or other amount of income earned on
Permitted Investments shall be for the account of the Borrower for income tax purposes.






	3.02	 	Deposits into the Accounts.






	 	(a)	 	Construction Account. At any time prior to the Conversion Date, the
Borrower shall deposit, and shall use reasonable efforts to cause third parties that
would otherwise make payments directly to the Borrower to deposit, all proceeds of the
following, upon receipt thereof, in the Construction Account, and the Depositary Bank
shall deposit any such amounts received directly by it and identified in writing to it
as such into the Construction Account upon receipt thereof: (i) the Loans made to the
Borrower (other than any Letter of Credit Loan, the proceeds of which shall be paid to
the applicable Issuing Lender to reimburse such Issuing Lender for the applicable
Letter of Credit Disbursement); (ii) any Base Equity Contributions or Contingency
Contributions contributed to the Borrower, including the proceeds from the Contingency
Equity LC; (iii) the proceeds of all Project Revenues received by the Borrower on or
prior to the Conversion Date; (iv) any Insurance Proceeds and Condemnation Proceeds
transferred from the Insurance/Condemnation Proceeds Account pursuant to Section
3.03(g); (v) the amount of any Project Document Claim not required to be applied to the
prepayment of the Loans pursuant to Section 2.09(b)(iii) of the Credit Agreement; and
(vi) all proceeds of Ordinary Course Settlement Payments under the Permitted Swap
Agreements.
	 
	 	(b)	 	Operating Account. The Borrower shall deposit, or cause to be
deposited, all amounts transferred from the Revenue Account pursuant to Section
3.03(b)(i) in the Operating Account.
	 
	 	(c)	 	Revenue Account. On or following the Conversion Date, the Borrower
shall deposit, and shall use reasonable efforts to cause third parties that would
otherwise make payments directly to the Borrower to deposit, in the Revenue Account:
(i) the proceeds of all Project Revenues; (ii) any Insurance Proceeds and Condemnation
Proceeds transferred from the Insurance/Condemnation Proceeds





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	 	 	 	Account pursuant to Section 3.03(g); (iii) the remaining funds on deposit in the Construction Account, as
provided in Section 3.03(a)(iii); (iv) all proceeds of Ordinary Course Settlement
Payments under the Permitted Swap Agreements; (v) any equity contributions; and (vi)
the amount of any Project Document Claim not required to be applied to the prepayment
of the Loans pursuant to Section 2.09(b)(iii) of the Credit Agreement.
	 
	 	(d)	 	Debt Service Reserve Account. On or following the Conversion Date, the
Borrower shall deposit, or cause to be deposited, in the Debt Service Reserve Account,
all amounts transferred from the Revenue Account pursuant to Section 3.03(b)(viii).
	 
	 	(e)	 	Interest Payment Account. On or following the Conversion Date, the
Borrower shall deposit, or cause to be deposited, in the Interest Payment Account, all
amounts transferred from the Revenue Account pursuant to Section 3.03(b)(iv).
	 
	 	(f)	 	Principal Payment Account. On or following the Conversion Date, the
Borrower shall deposit, or cause to be deposited, in the Principal Payment Account, (i)
all amounts transferred from the Revenue Account pursuant to Section 3.03(b)(v) and
(ii) all proceeds of reimbursements from the Power Purchaser for Carbon Dioxide Costs,
Condemnation Proceeds and Insurance Proceeds, Substantial Completion Delay Liquidated
Damages and posted collateral released under any Permitted Swap Agreement, in each case
intended to be applied to the prepayment of principal and interest under Permitted
Bridge Indebtedness.
	 
	 	(g)	 	Insurance/Condemnation Proceeds Account. The Borrower shall deposit,
and shall use reasonable efforts to cause third parties that would otherwise make
payments directly to the Borrower to deposit, in the Insurance/Condemnation Proceeds
Account, all Insurance Proceeds received following an Event of Damage and all
Condemnation Proceeds received following an Event of Taking except to the extent such
Insurance Proceeds are permitted to be applied to the prepayment of principal and
interest in respect of Insurance/Condemnation Proceeds Bridge Indebtedness.
	 
	 	(h)	 	Distribution Account. On or following the Conversion Date, the
Borrower shall deposit, or cause to be deposited, in the Distribution Account: (i) all
amounts transferred from the Revenue Account pursuant to Section 3.03(b)(ix) and (ii)
all amounts transferred from the Construction Account to pay the Permitted Construction
Account Distribution Amount pursuant to Section 3.03(a)(iii).
	 
	 	(i)	 	Major Maintenance Account. On or following the Conversion Date, the
Borrower shall deposit, or cause to be deposited, in the Major Maintenance Account, all
amounts transferred from the Revenue Account pursuant to Section 3.03(b)(vii).
	 
	 	(j)	 	Prepayment Account. Upon receipt of any proceeds from any Event of
Damage, Event of Taking, any Project Document Claim or any Termination Payment, the





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	 	 	 	Borrower shall deposit, or cause to be deposited, in the Prepayment Account, all such
amounts as provided for under Section 2.09(b) of the Credit Agreement.
	 
	 	(k)	 	Receipt by Borrower. In the event that, notwithstanding the foregoing,
any such payments, proceeds or other amounts are received by the Borrower, the Borrower
shall promptly pay, endorse, transfer and deliver such payments or other amounts to the
Depositary Bank for deposit in the relevant Account along with written instructions to
the Depositary Bank identifying the applicable Account for such deposit, and, until
such delivery, the Borrower shall hold such payments and other amounts in the same form
as received in trust for the Collateral Agent.
	 
	 	(l)	 	Unidentified Funds. In the event the Collateral Agent or the
Depositary Bank receives monies without adequate written instruction with respect to
the proper Account into which such monies are to be deposited, the Depositary Bank
shall deposit such monies into the Construction Account, if prior to the Conversion
Date, or the Revenue Account thereafter and notify the Borrower and each Agent of the
receipt of such monies. Upon receipt of written instructions from the Borrower, the
Depositary Bank shall transfer such monies from the Construction Account or the Revenue
Account to the Account specified in such instructions (other than to the Distribution
Account).






	3.03	 	Withdrawals and Transfers. Subject in all cases to Section 3.04, the Collateral
Agent shall instruct the Depositary Bank to make the following transfers of funds:






	 	(a)	 	From the Construction Account.






	 	(i)	 	Prior to the Conversion Date, the Borrower may request
withdrawals from the Construction Account from time to time by delivering to
the Collateral Agent a Construction Account Withdrawal Certificate (a copy of
which shall be delivered by the Borrower on the same date to the Administrative
Agent), requesting the transfer of certain amounts from the Construction
Account pursuant to this Section 3.03(a) to be used to pay Project Costs then
due and payable in accordance with the terms hereof and such Construction
Account Withdrawal Certificate.
	 
	 	(ii)	 	Upon receipt of a Construction Account Withdrawal Certificate
pursuant to the preceding clause (i), the Collateral Agent shall, on each
applicable date set forth in such Construction Account Withdrawal Certificate, instruct the
Depositary Bank to transfer the amounts indicated in such Construction Account
Withdrawal Certificate from the Construction Account to pay Project Costs then
due and payable, as indicated in such Construction Account Withdrawal
Certificate.
	 
	 	(iii)	 	On the Conversion Date, after making all other transfers
required by this paragraph to be made from the Construction Account, any funds
remaining in the Construction Account which are in excess of the amount
certified by the Borrower (and confirmed by the Independent Engineer) to be necessary





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	 	 	 	to pay Project Costs to achieve the Conversion Date and are
reasonably expected to become due and payable after the Conversion Date
(including the payment of all punch list items) shall be transferred (a) first,
in an amount up to the amount of any Permitted Construction Account
Distribution Amount, to and deposited into the Distribution Account and (b)
second, to the extent there are any amounts remaining after making the transfer
pursuant to subclause (a), to and deposited into the Revenue Account, in each
case as notified to the Collateral Agent in a Construction Account Withdrawal
Certificate.






	 	(b)	 	From the Revenue Account. Following the Conversion Date, the
Collateral Agent, pursuant to an Accounts Withdrawal Certificate delivered by the
Borrower, shall instruct the Depositary Bank to make the following transfers of funds
from the Revenue Account on the dates, in the amounts and to the Persons set forth in
such Accounts Withdrawal Certificate and in the order of priority set forth below:






	 	(i)	 	first, on each Transfer Date (except with respect to the
proviso below), as notified to the Collateral Agent by the Borrower in such
Accounts Withdrawal Certificate, to the Operating Account or Permitted Borrower
Bank Account, as applicable, an amount that, together with the amounts then on
deposit in the Operating Account and the Permitted Borrower Bank Account,
equals the sum (without duplication) of (A) the aggregate amount payable by the
Borrower for Operating and Maintenance Expenses then due and payable (including
Operating and Maintenance Expenses owing from a prior month but excluding Major
Maintenance Expenses) plus (B) the Borrower’s good faith estimate of
the aggregate Operating and Maintenance Expenses (excluding Major Maintenance
Expenses) reasonably anticipated to become due and payable before the next
Transfer Date, plus (C) the amount set forth in the then applicable
Operating Budget as an appropriate reserve as at such Transfer Date for the
Borrower’s next periodic insurance and/or property tax payments;
provided, however, that the Borrower may request transfers to
the Operating Account to pay Emergency Expenses on a date other than a Transfer
Date;
	 
	 	(ii)	 	second, on each Transfer Date, at the election of the Borrower,
as notified to the Collateral Agent by the Borrower in such Accounts Withdrawal
Certificate, to the Power Purchaser the amount, if any (as certified by the
Borrower), required to satisfy the Borrower’s collateral posting obligations
under the PPA not otherwise satisfied pursuant to the PPA Letter of Credit or a
letter of credit issued under a Replacement Letter of Credit Facility;
	 
	 	(iii)	 	third, on each Transfer Date, as notified to the Collateral
Agent by the Borrower in such Accounts Withdrawal Certificate, ratably to each
Agent entitled thereto, an amount equal to the amount of all fees, costs,





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	 	 	 	indemnities and expenses due and payable to the Agents and the Depositary Bank
(in their capacities as Agents and Depositary Bank) under the Financing
Documents;
	 
	 	(iv)	 	fourth, on each Transfer Date, as notified to the Collateral
Agent by the Borrower in such Accounts Withdrawal Certificate, to the Interest
Payment Account, an amount that together with the amounts then on deposit in
the Interest Payment Account, equals the sum (without duplication) of (A) the
amount of interest on the Loans, Replacement Letter of Credit Loans and fees
(including Commitment Fees and Letter of Credit Fees) and (B) Ordinary Course
Settlement Payments, in each case, respectively, to be paid to the Lenders, the
Replacement Lenders and each counterparty to a Permitted Swap Agreement (as
applicable) prior to the next Transfer Date (other than the amounts paid
pursuant to Section 3.03(b)(iii));
	 
	 	(v)	 	fifth, on each Transfer Date commencing on the Transfer Date
that is three months prior to the first Term Loan Principal Payment Date, as
notified to the Collateral Agent by the Borrower in such Accounts Withdrawal
Certificate, to the Principal Payment Account, an amount that together with the
amounts then on deposit in the Principal Payment Account, equals the sum
(without duplication) of (A) an amount equal to one-third of the scheduled
amount of principal of the Term Loans due and payable, or scheduled to become
due and payable on the next Term Loan Principal Payment Date, (B) an amount
equal to an amount (if any) required to be deposited in the Principal Payment
Account on a monthly basis to ensure that an amount equal to the next scheduled
principal payment under the Replacement Letter of Credit Facility shall be on
deposit in the Principal Payment Account by the next succeeding principal
payment date under the Replacement Letter of Credit Facility, (C) an amount
equal to the amount of any accelerated principal of the Loans and Replacement
Letter of Credit Loans then due and payable on such date (including any
mandatory prepayments pursuant to Section 2.09(b) of the Credit Agreement) and
any other amounts then due and payable or scheduled to be due and payable prior
to the next Transfer Date in respect of the Loans, (D) an amount equal to any
Termination Payments due and payable on such date under any Permitted Swap
Agreement and (E) an amount equal to the scheduled
amount of principal of the Letter of Credit Loans due and payable, or
scheduled to become due and payable on the next Letter of Credit Maturity
Date;
	 
	 	(vi)	 	sixth, on each Transfer Date, as notified to the Collateral
Agent by the Borrower in such Accounts Withdrawal Certificate, to the Principal
Payment Account, an amount equal to the amount required to prepay the
outstanding Letter of Credit Loans or, to the extent required under the
Replacement Letter of Credit Facility, Replacement Letter of Credit Loans;





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	 	(vii)	 	seventh, on each Transfer Date, as notified to the Collateral
Agent by the Borrower in such Accounts Withdrawal Certificate, to the Major
Maintenance Account in an amount equal to the Major Maintenance Contribution
Amount multiplied by the respective number of gas turbine starts since the last
Transfer Date;
	 
	 	(viii)	 	eighth, on each Transfer Date, to the Debt Service Reserve Account, an amount
such that the amount of funds on deposit in the Debt Service Reserve Account
(when added to the available undrawn amount of the DSR Letter of Credit on such
date) is equal to the Debt Service Reserve Required Amount; and
	 
	 	(ix)	 	ninth, on each Quarterly Date, at the election of the Borrower,
as notified to the Collateral Agent by the Borrower in such Accounts Withdrawal
Certificate, to the Distribution Account, an amount up to the amount (if any)
that remains on deposit in the Revenue Account after making the transfers
described in clauses (i) through (viii) above on such Quarterly Date.






	 	If on any date the funds on deposit in the Revenue Account are insufficient to pay in full
all of the payments required under any particular clause of this Section, the required
payments under such clause shall be made, subject to Section 3.05, on a pro rata basis as
determined by the Collateral Agent to the extent of funds available therefor.






	 	(c)	 	From the Operating Account. The Borrower shall request withdrawals
from time to time from the Operating Account for the payment of Operating and
Maintenance Expenses (including Emergency Expenses but excluding Major Maintenance
Expenses) then due and payable by submitting an Accounts Withdrawal Certificate to the
Collateral Agent stating such request, which Accounts Withdrawal Certificate shall set
forth in detail the amounts and Persons to be paid directly from the Operating Account.
The Collateral Agent shall, upon receipt of such Accounts Withdrawal Certificate,
instruct the Depositary Bank to withdraw funds from the Operating Account and apply
such funds to the payment of such Operating and Maintenance Expenses as directed in
each such Accounts Withdrawal Certificate.
	 
	 	(d)	 	From the Debt Service Reserve Account.






	 	(i)	 	Amounts on deposit in the Debt Service Reserve Account may be
funded, from time to time, by either or a combination of (A) cash or (B) funds
available to be drawn under the DSR Letter of Credit or applicable Replacement
Letter of Credit. For the purposes of this Agreement, at any time, the stated
amount of the DSR Letter of Credit or applicable Replacement Letter of Credit,
minus any amounts drawn on such DSR Letter of Credit or applicable
Replacement Letter of Credit prior to such time, shall be deemed on deposit in
cash in the Debt Service Reserve Account. Thereafter, the Debt Service Reserve
Account shall be funded





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	 	 	 	with (x) funds transferred in accordance with Section
3.03(b)(viii) and (y) funds deposited as otherwise specified in this Agreement.
	 
	 	(ii)	 	If (A) the Collateral Agent receives written notice from the
Administrative Agent that any DSR Issuing Lender is no longer an Acceptable
Bank and the DSR Letter of Credit issued by such DSR Issuing Lender has not
been replaced on or before the end of the 30 day period following such notice
with a new DSR Letter of Credit issued by an Acceptable Bank or (B) any DSR
Issuing Lender has given a notice that the expiry date of the DSR Letter of
Credit will not be extended and such DSR Letter of Credit has not been replaced
at least 15 days prior to its stated expiration date, then in each such case
the Collateral Agent shall at the written direction of the Administrative Agent
make a drawing on the DSR Letter of Credit in an amount equal to the lesser of
(1) the Debt Service Reserve Required Amount at such time minus the sum
of the monies on deposit in the Debt Service Reserve Account at such time
plus the aggregate available amount of any other DSR Letters of Credit
that are issued by an Acceptable Bank and (2) the remaining amount available to
be drawn under such DSR Letter of Credit. The Collateral Agent shall deposit
the amounts drawn on such DSR Letter of Credit into the Debt Service Reserve
Account to be applied in accordance with this paragraph (d).
	 
	 	(iii)	 	If on any Transfer Date or Quarterly Date, the monies on
deposit in the Revenue Account (taking into consideration the application of
funds pursuant to Section 3.03(b)(i) and (iii) on such date), Interest Payment
Account and Principal Payment Account are not anticipated by the Collateral
Agent to be adequate to pay the amounts required to be paid pursuant to Section
3.03(b)(iv) and (v)(A) and (D) on such Transfer Date or Quarterly Date (such
insufficiency, the “Debt Payment Deficiency”), (A) the Depositary Bank
(at the direction of the Borrower pursuant to the Accounts Withdrawal
Certificate or, if the Borrower has not so delivered an Accounts Withdrawal
Certificate by 1:00 p.m. on the Business Day on which such amounts were due and
not paid, the Collateral Agent) shall at the direction of the Administrative
Agent withdraw from the Debt Service
Reserve Account and immediately transfer to the Administrative Agent, for
the account of the Lenders and the Swap Banks, as applicable, an amount
equal to the Debt Payment Deficiency (or, if less, the aggregate amount of
funds then on deposit in or credited to the Debt Service Account) for
application, first, to that portion of the Debt Payment Deficiency that
relates to amounts due pursuant to Section 3.03(b)(iv), and second, to that
portion of the Debt Payment Deficiency that relates to amounts due pursuant
to Section 3.03(b)(v)(A) and (D), in each case in accordance with the
Financing Documents; and (B) if one or more DSR Letters of Credit are then
in effect and, after giving effect to the transfer pursuant to the
immediately preceding subclause (A), a Debt Payment Deficiency remains, the
Collateral Agent shall make a drawing on such DSR Letters of Credit in an
amount equal to such remaining Debt





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	 	 	 	Payment Deficiency (or, if less, the then undrawn amount of such DSR Letters of Credit), deposit such drawn
amount into the Debt Service Reserve Account and instruct the Depositary
Bank to transfer such drawn amount to the Administrative Agent, for the
account of the Lenders and the Swap Banks, as applicable, to pay the
remaining Debt Payment Deficiency in accordance with the priorities set
forth in subclause (A) of this clause (iii).
	 
	 	(iv)	 	If at any time the sum of the aggregate amount available to be
drawn under all DSR Letters of Credit credited to the Debt Service Reserve
Account plus the funds then on deposit in the Debt Service Reserve Account is
greater than the Debt Service Reserve Required Amount at such time (an
“Excess Reserve Amount”), (A) the Depositary Bank shall transfer an
amount of funds up to the Excess Reserve Amount from the Debt Service Reserve
Account to the Revenue Account as specified in a certificate signed by an
Authorized Officer of the Borrower (and countersigned by the Collateral Agent),
certifying as to the amount of such Excess Reserve Amount and (B) if any Excess
Reserve Amount remains after giving effect to subclause (A), then the Borrower
shall be entitled to deliver to the Collateral Agent, and the Collateral Agent
shall, at the written direction of the Administrative Agent, thereafter (if the
Administrative Agent has reasonably determined that such reduction is permitted
hereunder) sign or countersign, as applicable, and deliver to the relevant DSR
Issuing Lender a reduction certificate in the form attached to such DSR Letter
of Credit or otherwise in a form satisfactory to such DSR Issuing Lender in the
amount of such remaining Excess Reserve Amount, and the face amount of such DSR
Letter of Credit may be reduced as provided in such certificate.
	 
	 	(v)	 	At the written request of an Authorized Officer of the
Borrower, with a copy to the Collateral Agent and the Administrative Agent, the
Depositary Bank shall release funds from the Debt Service Reserve Account so
long as the Borrower has provided a DSR Letter of Credit in a stated amount
equal to the amount of funds to be released from the Debt Service Reserve
Account. Any amounts so released shall be transferred to the Revenue
Account. The Depositary Bank shall credit any such additional DSR Letter of
Credit to the Debt Service Reserve Account and such DSR Letter of Credit
shall be subject to all the terms of this Section 3.03(d).






	 	(e)	 	From the Interest Payment Account. Following the Conversion Date, the
Collateral Agent pursuant to an Accounts Withdrawal Certificate delivered by the
Borrower, shall instruct the Depositary Bank to transfer to (A) the Administrative
Agent and Replacement Letter of Credit Administrative Agent, ratably for the account of
the Lenders and Replacement Lenders, an amount equal to the amount of interest on the
Loans and Replacement Letter of Credit Loans and fees (including Commitment Fees and
Letter of Credit Fees) and (B) each counterparty to a Permitted Swap Agreement entitled
thereto, the Ordinary Course Settlement





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	 	 	 	Payments, in each case, to be paid to such Persons on such date (other than the amounts paid pursuant to Section 3.03(b)(iii)).
	 
	 	(f)	 	From the Principal Payment Account. Following the Conversion Date, the
Collateral Agent pursuant to an Accounts Withdrawal Certificate delivered by the
Borrower, shall instruct the Depositary Bank to transfer (A) to the Administrative
Agent and Replacement Letter of Credit Administrative Agent, ratably for the account of
the Term Loan Lenders and the Replacement Lenders, an amount equal to the scheduled and
accelerated amount of principal of the Term Loans and Replacement Letter of Credit
Loans, (B) to each Swap Bank entitled thereto, any Termination Payments under any
Permitted Swap Agreement, (C) to the Parent or a Subsidiary of a Parent that is the
lender under Carbon Dioxide Cost Bridge Indebtedness, Insurance/Condemnation Proceeds
Bridge Indebtedness, Delay Damages Bridge Indebtedness or Permitted Swap Collateral
Bridge Indebtedness, an amount equal to the amount of prepayment of Carbon Dioxide Cost
Bridge Indebtedness, Insurance/Condemnation Proceeds Bridge Indebtedness, Delay Damages
Bridge Indebtedness or Permitted Swap Collateral Bridge Indebtedness to the extent that
the Permitted Bridge Prepayment Conditions have been satisfied in respect of such
Permitted Bridge Indebtedness and relevant proceeds for the payment thereof have been
deposited pursuant to Section 3.02(f) and (D) to the Administrative Agent, ratably for
the account of each Letter of Credit Lender and Replacement Lender, an amount required
to prepay the outstanding Letter of Credit Loans or Replacement Letter of Credit Loans,
in each case, to be paid to such Persons on such date.
	 
	 	(g)	 	From the Insurance/Condemnation Proceeds Account. Funds on deposit in
the Insurance/Condemnation Proceeds Account shall be applied from time to time to in
respect of an Event of Damage or an Event of Taking, (i) to the Construction Account or
Revenue Account, (ii) for use in restoring or repairing the Project and/or (iii)
otherwise transferred to the Prepayment Account to the prepayment of the Loans, in each
case in the manner set forth in Section 5.19 of the Credit Agreement.
	 
	 	(h)	 	From the Distribution Account.






	 	(i)	 	On the Conversion Date (with respect to any Permitted
Construction Account Distribution Amount) and on any Quarterly Date thereafter,
the Collateral Agent, pursuant to an Accounts Withdrawal Certificate delivered
by the Borrower, shall instruct the Depositary Bank to withdraw and transfer to
the Borrower or any other Person specified in such Accounts Withdrawal
Certificate, all or such portion of the funds on deposit in the Distribution
Account as the Borrower shall specify in such Accounts Withdrawal Certificate,
provided, however, that the Borrower shall certify that each of
the applicable conditions to the making of a Restricted Payment by the Borrower
set forth in Section 6.07 of the Credit Agreement shall be satisfied on such
Quarterly Date.





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	 	(ii)	 	Funds on deposit in the Distribution Account shall also be
applied from time to time as described in Section 3.05.






	 	(i)	 	From the Major Maintenance Account.






	 	(i)	 	The Borrower shall request withdrawals from time to time from
the Major Maintenance Account for the payment of Major Maintenance Expenses by
submitting an Accounts Withdrawal Certificate to the Collateral Agent stating
such request, which Accounts Withdrawal Certificate shall set forth in detail
the amounts and Persons to be paid directly from the Major Maintenance Account.
The Collateral Agent shall, upon receipt of such Accounts Withdrawal
Certificate, instruct the Depositary Bank to withdraw funds from the Major
Maintenance Account and apply such funds to the payment of Major Maintenance
Expenses as directed in each such Accounts Withdrawal Certificate.






	 	(j)	 	From the Prepayment Account. Funds on deposit in the Prepayment
Account shall be applied from time to time to in respect of an Event of Damage or an
Event of Taking (after transfer from the Insurance/Condemnation Proceeds Account) or in
respect of any Project Document Claim or Termination Payment, in each case in the
manner set forth in Section 2.09(b) of the Credit Agreement.
	 
	 	(k)	 	Corrections of Accounts Withdrawal Certificates. With respect to any
Accounts Withdrawal Certificate submitted to the Collateral Agent and/or the Depositary
Bank in connection with transfers to be made pursuant to Sections 3.03(b) through (i),
the Borrower may supplement such Accounts Withdrawal Certificate or submit a new,
updated Accounts Withdrawal Certificate in replacement of such Accounts Withdrawal
Certificate, in each case in order to correct any certifications or wiring or other
payment instructions set forth therein, so long as such supplemental or new Accounts
Withdrawal Certificate is provided to the Collateral Agent or the Depositary Bank (as
applicable) at least one Business Day prior to the proposed date of the transfers to be
made pursuant thereto.






	3.04	 	Secured Obligation Event of Default, Etc. Notwithstanding any provision of this Agreement to the contrary, (a) upon the
occurrence and during the continuation of any Secured Obligation Event of Default, the
Collateral Agent shall have the right to (and, if instructed in writing to do so by the
Required Secured Parties, it shall) instruct the Depositary Bank not to release, withdraw,
distribute, transfer or otherwise make available any funds in or from any of the Accounts,
and to take such action or refrain from taking such action as the Collateral Agent shall
determine and, upon receipt thereof, the Depositary Bank shall comply with such instructions
until the Depositary Bank has received written notice from the Borrower (countersigned by
the Collateral Agent) that such Secured Obligation Event of Default no longer exists due to
it having been waived, cured or no longer existing, or having been deemed waived, in
accordance with the terms of the relevant Financing Documents and (b) upon the occurrence
and during the continuation of any Secured Obligation Event of Default, and at the direction
of the Required Secured Parties pursuant to a Remedies Direction, the Collateral Agent shall





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	 	 	have the right to exercise such remedies as are then available to it, including the transfer
of all or any part of the funds in the Accounts to any of the other Accounts or to the
payment of the Secured Obligations then due and payable as provided in such Remedies
Direction.
	 
	3.05	 	When Amounts Are Insufficient. Subject to Section 3.04:






	 	(a)	 	If the funds on deposit in the Operating Account are insufficient to pay the
reasonable and necessary Operating and Maintenance Expenses as of any date, an
Authorized Officer of the Borrower shall deliver a certificate to the Agents setting
forth the amount of, and the cause for, such insufficiency. The Collateral Agent
shall, in accordance with the instructions set forth in the certificate referred to in
the preceding sentence, instruct the Depositary Bank (A) first, to apply any funds then
on deposit in the Revenue Account, (B) second, to the extent amounts in the Revenue
Account are not adequate for such purpose, to apply any funds then on deposit in the
Distribution Account, to the Operating Account as shall be necessary to satisfy such
deficiency.
	 
	 	(b)	 	If the funds on deposit in the Interest Payment Account or the Principal
Payment Account on any Transfer Date or Quarterly Date are insufficient to make all
payments of Debt Service or other amounts due in respect of the Secured Obligations
then due and payable as provided in Sections 3.03(b)(iii), (iv) and (v), 3.03(e) and
3.03(f), an Authorized Officer of the Borrower shall deliver a certificate to the
Agents setting forth the amount of such insufficiency. The Collateral Agent shall, in
accordance with the instructions set forth in the certificate referred to in the
preceding sentence, instruct the Depositary Bank (A) first, to apply funds then on
deposit in the Revenue Account, (B) second, to the extent amounts in the Revenue
Account are not adequate for such purpose, to apply any funds then on deposit in the
Distribution Account, and (C) third, to the extent amounts in the Distribution Account
are not adequate for such purpose, to apply funds from the Debt Service Reserve Account
and DSR Letters of Credit as provided in Section 3.03(d)(iii).






	3.06	 	Distribution of Collateral Proceeds.






	 	(a)	 	Priority of Payments. Following receipt of a Remedies Direction by the
Collateral Agent in connection with the sale, disposition or other realization,
collection or recovery of any amounts in the Accounts or any other Collateral (or any
portion thereof), the Collateral Agent shall apply the proceeds of such sale,
disposition, or other realization, collection or recovery toward the payment of the
Secured Obligations in the following order of priority:






	 	(i)	 	first, to any Administrative Costs then due and payable to the
Agents and the Depositary Bank under any Financing Document pro rata based on
such respective amounts then due to such Persons;





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	 	(ii)	 	second, to the respective outstanding fees, costs, charges and
expenses then due and payable to the Secured Parties (or to the applicable
Agent on their behalf) under any Secured Obligation Document pro rata based on
such respective amounts then due to such Persons (other than the fees and
payments due to the Secured Parties under priority (iii) below);
	 
	 	(iii)	 	third, to any accrued but unpaid interest, premium, Letter of
Credit Fees, Commitment Fees and Ordinary Course Settlement Payments owed to
the relevant Secured Parties on the Secured Obligations (or to the applicable
Agent on their behalf), pro rata based on such respective amounts then due to
such Secured Parties;
	 
	 	(iv)	 	fourth, to the unpaid principal of the Loans, Replacement
Letter of Credit Loans and Termination Payments then due and payable to the
relevant Secured Parties (or to the applicable Agent on their behalf), pro rata
based on such respective amounts then due to such Secured Parties; and
	 
	 	(v)	 	fifth, after final payment in full of all Secured Obligations
and upon the Termination Date, in accordance with Section 3.07.






	 	(b)	 	Borrower Remains Liable for Deficiency. It is understood that the
Borrower shall remain liable to the extent of any deficiency between the amount of the
proceeds of the Depositary Collateral and any other Collateral and the aggregate of the
sums referred to in clauses first through fourth of paragraph (a) above.






	3.07	 	Termination of Accounts. On the Termination Date all Permitted Investments in each
Account shall (at the written direction of the Borrower) be liquidated or transferred to, and
all remaining funds in each Account shall be remitted to (or at the written direction of) the
Borrower and the Accounts shall be closed.
	 
	3.08	 	Delivery of Transfer Certificates. No later than 11:00 am (New York City time), at least four (4) Business Days (but no more
than ten (10) Business Days) prior to each proposed transfer date for funds between or from
any Accounts, the Borrower shall or shall cause an Authorized Officer to, deliver to the
Collateral Agent a Construction Account Withdrawal Certificate or an Accounts Withdrawal
Certificate, as applicable, substantially in the form of Exhibit A or Exhibit B,
respectively, signed by the Borrower and complying with all the requirements set forth in
this Agreement.





ARTICLE IV




RELATIVE PRIORITIES



               Notwithstanding the date, manner or order of grant, attachment or perfection of any Liens
securing the Secured Obligations granted on the Collateral and notwithstanding any provision of the
UCC, or any applicable law or the Security Documents, each of the parties hereto (including in the
case of the Administrative Agent, any Replacement Letter of Credit Administrative Agent and the
Collateral Agent, on behalf of itself and the applicable Secured Parties) hereby agrees that as
among the Secured Parties, the Lien of the Collateral Agent shall




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be for the ratable benefit of the
Secured Parties with respect to all Collateral and each Secured Party ranks and will rank equally
in priority with the other Secured Parties in the Lien granted to the Collateral Agent (except to
the extent otherwise provided in Section 3.06).




ARTICLE V




SHARING




	5.01	 	Basic Agreement. Subject to the provisions of Sections 3.06 and 5.03 and the
Financing Documents, all amounts paid to or received by the Collateral Agent for
redistribution to the Secured Parties (other than to the Agents in their capacity as agents)
and representing the proceeds of the Collateral and the proceeds of any action taken pursuant
to a Remedies Direction shall be paid promptly to the Secured Parties ratably (without
priority of any one over any other, except as otherwise provided in Section 3.06) in the order
specified in Section 3.06 based on the amounts owing to each Secured Party on each level of
priority specified therein.
	 
	5.02	 	Payments Received by Certain Secured Parties. Except as excluded in Section 5.03 and
except for amounts obtained from or through the Agents pursuant to the Financing Documents, if
any Secured Party (other than the Agents) shall obtain any amount (whether (a) by way of
voluntary or involuntary payment, (b) by virtue of an exercise of any right of set-off,
banker’s lien or counterclaim, (c) as proceeds of any insurance policy covering any properties
or assets of the Borrower, (d) from proceeds of liquidation or dissolution of the Borrower or
distribution of its assets among its creditors (however such liquidation, dissolution or
distribution may occur), (e) as payment following the acceleration of any Secured Obligation,
(f) from any realization on Collateral, (g) by virtue of the application of any provision of
any of the Transaction Documents (other than this Agreement) or (h) in any other manner) in respect of any Secured
Obligations owed to such Secured Party under any Secured Obligation Document (other than any
amount distributed pursuant to and in accordance with the express terms of this Agreement),
such Secured Party shall forthwith notify each Agent thereof and shall promptly, and in any
event within 10 Business Days of its so obtaining the same, pay such amount (less any
reasonable costs and expenses incurred by such Secured Party in obtaining such amount) to
the Collateral Agent for the account of the Secured Parties, to be shared in accordance with
Section 5.01.
	 
	5.03	 	Amounts Not Subject to Sharing. Notwithstanding any other provision of this
Agreement or any other Secured Obligation Document to the contrary, no Secured Party shall
have any obligation to share:






	 	(a)	 	any payment made by any Person to such Secured Party pursuant to a contract of
participation or assignment or any other arrangement by which a direct or indirect
interest of such Secured Party under the Secured Obligation Document is transferred
(other than any such contract or other arrangement entered into with the Borrower or
any Affiliate thereof);





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	 	(b)	 	any payment made pursuant to and in accordance with the express terms of this
Agreement;
	 
	 	(c)	 	any cash collateral provided for the benefit of any applicable Swap Bank
pursuant to any Permitted Swap Agreements; and
	 
	 	(d)	 	with respect to the Lenders, the amounts on deposit in the Debt Service Reserve
Account or the proceeds of a draw on the DSR Letter of Credit which in each case are
provided for the benefit of the Lenders.






	5.04	 	Presumption Regarding Payments. For purposes hereof, any payment received by a
Secured Party under or pursuant to a Transaction Document that is subject to the provisions of
this Article V may be presumed by such Secured Party to have been properly received by such
Secured Party in accordance with this Article V unless such Secured Party receives written
notice from any other Secured Party or the Borrower that such payment was not made in
accordance herewith. If any payment initially received by a Secured Party is rescinded or
must otherwise be restored by the Secured Party that first obtained it, each other Secured
Party that shares the benefit of such payment shall return to such Secured Party its portion
of the payment so rescinded or required to be restored.
	 
	5.05	 	No Separate Security. Each Secured Party that is a party to this Agreement
(including the Administrative Agent, the Replacement Letter of Credit Administrative Agent and
the Collateral Agent, on behalf of the applicable Secured Parties): (a) agrees that, except
as otherwise provided in Section 5.03, all Collateral is for the joint benefit of all the
Secured Parties; and (b)
represents and warrants to each other Secured Party that, in respect of any Secured
Obligations now or hereafter owing to such Secured Party, it has received no security or
guarantees from the Borrower or any Affiliate thereof, other than (i) its interest in the
Collateral as provided in the Security Documents, if any, or (ii) as otherwise provided
pursuant to the Financing Documents. In furtherance of the foregoing, if any Secured Party
shall receive or be entitled to demand or otherwise call upon any guaranty, security or
other assurance of payment which is not described in clause (i) or (ii) of the preceding
sentence in respect of the Secured Obligations owed to such Secured Party, such Secured
Party shall receive any proceeds thereof in trust for all the Secured Parties (to be shared
promptly and ratably with the other Secured Parties) and shall exercise its rights to demand
or call upon such guaranty, security or other assurance of payment as directed by the
Required Secured Parties (determined without regard to the Voting Party Percentage of such
Secured Party).





ARTICLE VI




DECISION MAKING; VOTING; NOTICE AND PROCEDURES




	6.01	 	Decision Making. 






	 	(a)	 	Where, in accordance with this Agreement or any other Secured Obligation
Document, the modification, approval or other direction or instruction of the Required
Secured Parties is required, the determination of whether such





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	 	 	 	modification, approval, direction or instruction will be granted or withheld shall be determined by an
Intercreditor Vote conducted in accordance with the procedures set forth in this
Agreement among the Secured Parties entitled to vote with respect to the particular
decision at issue.
	 
	 	(b)	 	Each decision made in accordance with the terms of this Agreement shall be
binding upon each of the Secured Parties.
	 
	 	(c)	 	In connection with any matter under this Agreement requiring a vote of the
Secured Parties, each Lender, Replacement Lender and Swap Bank shall, first, cast its
votes in accordance with the Secured Obligation Document to which it is a party.
Following and in accordance with the outcome of the applicable vote under such Secured
Obligation Document, the Administrative Agent, Replacement Letter of Credit
Administrative Agent and Swap Bank shall cast all votes in respect of such Secured
Obligation Document as a block in any vote required under this Agreement.






	6.02	 	Intercreditor Votes: Each Party’s Entitlement to Vote.






	 	(a)	 	Except as otherwise expressly provided in this Agreement, each Secured Party
shall be entitled to vote in each Intercreditor Vote conducted under this Agreement.
	 
	 	(b)	 	(i) None of (A) any Affiliate of the Borrower or the Parent or Immediate Parent
that from time to time holds any Commitment or commitment under any
Replacement Letter of Credit Facility or any Secured Obligation or (B) any Secured
Party that has agreed, directly or indirectly, to vote or otherwise act at the
direction or subject to the approval or disapproval of any Person identified in the
foregoing item (A), shall be entitled to participate in any Intercreditor Vote or
any vote under any Financing Document in which it is a Lender, and (ii) other than
any Intercreditor Vote requiring the consent of the Unanimous Voting Parties
pursuant to Section 8.01, unless and until any Swap Bank shall have delivered to
each Agent a Swap Termination Certificate, such Swap Bank shall not have (A) any
voting rights with respect to any Secured Obligations arising under any Permitted
Swap Agreement to which it is a party or (B) any rights to participate in any
Intercreditor Vote in its capacity as a Swap Bank (each of the parties referred to
in clauses (i) and (ii), a “Non-Voting Lender”) and each Agent, in
determining the percentage of votes cast (and instructions of the Required Secured
Parties), shall disregard the principal amount of Secured Obligations held by
Non-Voting Lenders in both the Numerator and Denominator of the calculation in
determining the outcome of such vote.






	6.03	 	Intercreditor Votes: Votes Allocated to Each Party. 






	 	(a)	 	Except as otherwise provided in Section 6.02, each Secured Party will have a
number of votes in any Intercreditor Vote equal to the portion (in Dollar amounts





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	 	 	 	in relation to the aggregate Dollar amount of the Aggregate Exposure) of the Aggregate
Exposure represented by its Secured Obligation Document.
	 
	 	(b)	 	In calculating the Voting Party Percentage consenting to, approving, waiving or
otherwise providing direction with respect to a decision, the number of votes cast by
any Secured Party in favor of the proposed consent, approval, Waiver, direction or
other action (the “Numerator”) shall be divided by the total number of votes
entitled to be cast with respect to such matter (the “Denominator”).






	6.04	 	Notification of Matters. If at any time (a) any Agent proposes to exercise any
discretion conferred on it under any Financing Document, (b) any other Secured Party, in
accordance with this Agreement, notifies any Agent in writing of a matter with respect to
which it believes such Agent should exercise its discretion or (c) any Agent becomes aware
(whether on its own or as a consequence of any written notification from any other Secured
Party or from the Borrower) of any matter requiring a determination or vote by the Secured
Parties under this Agreement, then such Agent shall promptly notify each Secured Party (or the
Administrative Agent and/or Replacement Letter of Credit Administrative Agent on its behalf)
strictly in accordance with Section 10.02 (with a copy to the other Agent) of the matter in
question, specifying:






	 	(i)	 	if applicable, the manner in which such Agent proposes to
exercise its discretion;
	 
	 	(ii)	 	the Required Secured Parties (if any) required for such
determination or vote; and
	 
	 	(iii)	 	if applicable, the time period determined by such Agent within
which each Secured Party must provide it with instructions in relation to such
matter.






	6.05	 	Notice of Amounts Owed. If the Required Secured Parties pursuant to a Remedies
Direction instruct in writing the Collateral Agent or any other Person holding any Collateral
on behalf of the Secured Parties to proceed to foreclose upon, collect, sell or otherwise
dispose of or take any other action with respect to any or all of the Collateral or to enforce
any remedy under any other Secured Obligation Document, then upon the request of the
Collateral Agent, each Secured Party shall promptly notify the Collateral Agent in writing
(with a copy to the Administrative Agent and the Replacement Letter of Credit Administrative
Agent), as of any time that the Collateral Agent may reasonably specify in such request, of
(a) the aggregate amount of the respective Secured Obligations owing to the Secured Party and
(b) such other information as the Collateral Agent may reasonably request.





ARTICLE VII




DEFAULTS AND REMEDIES




	7.01	 	Notice of Defaults. Promptly after any Secured Party obtains knowledge of the
occurrence of any Secured Obligation Default or Secured Obligation Event of Default under any
Secured Obligation Document to which it is a party, such Secured Party shall





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	 	 	notify the Agents in writing thereof (a “Notice of Default”). Each such Notice of Default shall
specifically refer to this Section 7.01 and shall describe such Secured Obligation Default or
Secured Obligation Event of Default in reasonable detail (including the date of occurrence).
Upon receipt by the Agents of any such notice, the Agents shall promptly send copies thereof
to each Secured Party and the Borrower.
	 
	7.02	 	Exercise of Remedies.






	 	(a)	 	If a Secured Obligation Event of Default shall have occurred and be continuing,
the Required Secured Parties, on behalf of the Secured Parties, shall be permitted and
authorized to take such actions (or to direct in writing the Collateral Agent to take
such actions) as are specified by such Required Secured Parties, including any and all
actions (and the exercise of any and all rights, remedies and options) which any
Secured Party or any Agent may have under the Financing Documents or under applicable
law, including the ability to cure any Secured Obligation Event of Default, or, so long
as some or all of the Secured Obligations are then due and payable, to foreclose on the
Liens granted under the Security Documents and exercise the right of such Agent to sell
the Collateral or any part thereof (or
accept a deed in lieu of foreclosure) and sell, lease or otherwise realize upon the
other property mortgaged, pledged and assigned to the Collateral Agent under the
Security Documents (any such request from the Required Secured Parties, a
“Remedies Direction”). No Secured Party shall have any right to direct any
Agent to take any action in respect of the Collateral other than in accordance with
the terms hereof. The Collateral is vested in and held by the Collateral Agent or
its agent (for the benefit of the Secured Parties) and only the Collateral Agent,
acting on the written instructions of the Required Secured Parties, has the right to
take actions (and exercise rights, remedies and options) with respect to the
Collateral.
	 
	 	 	 	Notwithstanding the foregoing or anything to the contrary contained in this
Agreement, nothing herein shall preclude any Secured Party from enforcing (or
refraining to enforce) the provisions of its Secured Obligation Document in respect
of the property, assets or other rights described in Section 5.03, and no such
action (or inaction) shall require the consent or approval of (or notification to)
any Person other than such Secured Party.
	 
	 	 	 	If the Collateral Agent receives a Remedies Direction directing the Collateral Agent
to commence a Foreclosure Action, the Collateral Agent shall notify each other
Secured Party of such Remedies Direction.
	 
	 	(b)	 	Any action (including any Foreclosure Action) which has been requested pursuant
to a Remedies Direction may be modified, supplemented, terminated and/or countermanded
if the Collateral Agent shall have received either (i) a revocation notice from the
Required Secured Parties or (ii) a written notice from the Required Secured Parties
which contains different or supplemental directions with respect to such action.





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	 	(c)	 	At the direction of the Required Secured Parties pursuant to a Remedies
Direction, the Collateral Agent shall seek to enforce the Security Documents and to
realize upon the Collateral or, in the case of any Event of Default under clause (f) or
(g) of Section 7.01 of the Credit Agreement (or equivalent provision under any
Replacement Letter of Credit Facility) in respect of the Borrower of which the
Collateral Agent has been notified in writing by the Administrative Agent, to seek to
enforce the claims of the Secured Parties under the Financing Documents in respect
thereof; provided, however, that the Collateral Agent shall not be
obligated to follow any Remedies Direction as to which the Collateral Agent has
received a written opinion of counsel to the effect that such Remedies Direction is in
conflict with any provisions of applicable law, this Agreement or any other Financing
Document or any order of any court or Governmental Authority. The Collateral Agent
shall not, under any circumstances, be liable to any other Secured Party or any other
Person for following with reasonable care the written directions of the Required
Secured Parties.
	 
	 	(d)	 	If the Administrative Agent is directed to accelerate the Loans in accordance
with the Credit Agreement, the Replacement Letter of Credit Administrative Agent is
directed to accelerate the Replacement Letter of Credit Loans in accordance with
the Replacement Letter of Credit Facility or any Swap Bank determines to declare (or
take other action resulting in) an early termination of its Permitted Swap Agreement
then such Secured Party shall deliver to each other Secured Party within two
Business Days of receipt of such direction or of such determination, as the case may
be, a written notice to that effect to the Agents in order to permit the Secured
Parties to coordinate the timing of the acceleration and early termination of their
respective Secured Obligations. Notwithstanding any provision to the contrary in
this Agreement, the requisite number of Secured Parties specified in any Secured
Obligation Document may at any time after the occurrence and during the continuance
of a Secured Obligation Event of Default under such Secured Obligation Document
accelerate the Secured Obligations thereunder or cause the early termination of the
relevant Permitted Swap Agreement in accordance with the terms thereof.






	7.03	 	Insolvency Default. Notwithstanding any provision to the contrary in this Agreement,
upon the occurrence of an Event of Default under clause (f) or (g) of Section 7.01 of the
Credit Agreement (or equivalent provisions under the Replacement Letter of Credit Facility),
(a) the unutilized Commitments and commitments under the Replacement Letter of Credit Facility
shall forthwith terminate immediately and (b) all principal of and accrued interest in respect
of the Secured Obligations of each Secured Party shall be immediately due and payable without
presentment, demand, protest or notice of any kind whatsoever, in each case as provided in
Section 7.02 of the Credit Agreement.
	 
	7.04	 	Allocation of Collateral Proceeds. Upon the acceleration of the Secured Obligations,
the proceeds of any collection, recovery, receipt, appropriation, realization or sale of any
or all of the Collateral or the enforcement of any Security Document shall be applied in
accordance with Section 3.06.





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	7.05	 	Restrictions on Enforcement of Liens. Until the Termination Date, except to the
extent directed or consented to by the Required Secured Parties, no Secured Party will:






	 	(a)	 	oppose or otherwise contest (or support any other Person in contesting) any
motion for relief from the automatic stay or for any injunction against foreclosure or
enforcement of Liens granted to the Collateral Agent, for the benefit of the Secured
Parties, made by the Collateral Agent, acting at the written direction of, or as
consented to by, the Required Secured Parties, in any insolvency or liquidation
proceeding of the Borrower; or
	 
	 	(b)	 	oppose or otherwise contest (or support any other Person in contesting) any
lawful exercise by the Collateral Agent, acting at the written direction of, or as
consented to by, the Required Secured Parties, of the right to credit bid the Secured
Obligations at any sale in foreclosure of the Liens granted to the Collateral Agent,
for the benefit of the Secured Parties and the Administrative Agent, the
Replacement Letter of Credit Administrative Agent and the Swap Bank on behalf of the
applicable Secured Parties hereby authorizes the Collateral Agent to credit bid all
or any portion of such holder’s Secured Obligations on a pro-rata basis with all
other Secured Obligations when and as directed by the Required Secured Parties,
provided that such credit bid is approved in writing by the Lenders, the Replacement
Lenders and the Swap Banks;




provided, however, that notwithstanding anything to the contrary stated in this
Agreement, during the occurrence of an Event of Default under clause (f) or (g) of Section 7.01 of
the Credit Agreement (or equivalent provisions under the Replacement Letter of Credit Facility) of
which it has been notified in writing by the Administrative Agent : (A) the Collateral Agent may
take such actions as it deems desirable to create, prove, preserve or protect the Liens upon any
Collateral without the prior consent of the Required Secured Parties; (B) nothing in this Agreement
shall be construed to prevent or impair the rights of any Secured Party to enforce this Agreement,
and (C) except for actions that are expressly prohibited by the terms of this Agreement, any holder
of Secured Obligations and any Secured Party may take any actions and exercise any and all rights
that would be available to a holder of unsecured claims (including, without limitation, (I) the
commencement of an insolvency or liquidation proceeding against the Borrower in accordance with
applicable law, (II) the acceleration of the Secured Obligations under and in accordance with the
relevant Secured Obligation Document, and (III) the termination of any agreement by the holder of
any Secured Obligation in accordance with the terms thereof).




7.06 Waiver of Marshalling; No Contest.





	 	(a)	 	Prior to the Termination Date, no Secured Party may assert or enforce any right
of marshalling accorded to a holder of Secured Obligations, as against the holders of
any other Secured Obligations.
	 
	 	(b)	 	Each Secured Party hereto agrees that it will not (and hereby waives any right
to) contest or support any other Person in contesting, in any proceeding (including any
insolvency or liquidation proceeding), the priority, validity, perfection or





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	 	 	 	enforceability of a Lien held by or on behalf of any of the Secured Parties in the
Collateral as contemplated by the Security Documents or the provisions of this
Agreement; provided that nothing in this Agreement shall be construed to prevent or
impair the rights of the Collateral Agent, the Depositary Bank, any Administrative
Agent, the Replacement Letter of Credit Administrative Agent or any Secured Party to
enforce this Agreement.






	 	 
	 
	7.07	 	Insolvency or Liquidation Proceedings. Prior to the Termination Date, if the
Borrower shall be subject to any insolvency or liquidation proceeding and the Collateral Agent
(acting at the written direction of the Required Secured Parties) shall desire to permit the
use of “Cash Collateral” (as such term in is defined in Section 363(a) of the Bankruptcy
Code), with respect to any Collateral or to
permit the Borrower 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 each Secured Party agrees that it will raise no objection to such Cash
Collateral use or DIP Financing so long as (a) 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 in their capacities as such (it being expressly understood
and agreed that if any Secured Party provides DIP Financing to the Borrower, nothing herein
shall preclude such provider of DIP Financing from having the priming liens in respect of
such DIP Financing as provided under Applicable Law), (b) each Secured Party retains the
right to object to any ancillary agreements or arrangements regarding the DIP Financing that
are materially prejudicial to their interests (unless such ancillary agreements or
arrangements, including without limitation any adequate protection orders, are equally
materially prejudicial to all Secured Parties, in which case there shall be no independent
right of a Secured Party to object), (c) the DIP Financing (i) does not compel the Borrower
to seek confirmation of a specific plan of reorganization for which all or substantially all
of the material terms are set forth in the DIP Financing documentation or a related document
and (ii) does not expressly require the liquidation of any Collateral prior to a default
under the DIP Financing documentation and (d) 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.





ARTICLE VIII




AMENDMENTS; WAIVERS; INSTRUCTIONS




	8.01	 	Unanimous Voting Issues. With respect to any of the matters listed on Exhibit C,
unless the Unanimous Voting Parties (acting in accordance with the procedures set forth in
Article VI) shall so authorize, (a) no Modification shall be agreed to by the Agents, (b) no
instruction shall be given under or with respect to any Financing Document and (c) no
discretion shall be exercised by the Agents under or with respect to any Financing Document.





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	8.02	 	Modification and Exercise of Discretion. Unless any Secured Obligation Event of
Default has occurred and is continuing, and only to the extent in all cases that the
discretion exercised by or the actions taken by the applicable Agent could not reasonably be
expected to result in any Secured Obligation Event of Default or have a material adverse
effect on the interests of any Secured Party, any Agent may, without obtaining the consent of
the Required Secured Parties or any Secured Party other than as set forth in Section 8.03,
Modify any Financing Document to which it is a party by entering into an amendment to such
Financing Document with the Borrower in order to (i) cure any ambiguity or to cure, correct or
supplement any
provision contained therein which is or appears to be inconsistent with any other provisions
contained in such Financing Document or in any other Financing Document (including without
limitation any administrative mistakes or omissions), (ii) correct any typographical errors,
drafting mistakes or other similar mistakes that do not modify the intended rights and
obligations of the parties thereto, (iii) implement the terms of any additional obligations
or refinancing of Indebtedness of the Borrower, as contemplated by, and to the extent
permitted by, the terms of the relevant Financing Documents, (iv) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, the Secured
Obligations set forth in the applicable Secured Obligation Document to which it is a party,
or otherwise amend or supplement in any manner such Secured Obligation Document, or, other
than this Agreement or the other Security Documents, any instrument evidencing such Secured
Obligations or any agreement under which such Secured Obligations are outstanding, (v)
release any Person or entity liable in any manner for the collection of the Secured
Obligations set forth in the applicable Secured Obligation Document to which it is a party,
(vi) subject to the terms of this Agreement, exercise or refrain from exercising any rights
against the Borrower and (vii) make any change that would provide any additional rights or
benefits to the Secured Parties or that does not adversely affect the legal rights
thereunder of any Secured Party.
	 
	8.03	 	Effect of Amendment on Agents. No party hereto shall amend any provision of any
Financing Document that materially affects any Agent without the written consent of the
applicable Agent.





ARTICLE IX




COLLATERAL AGENT AND DEPOSITARY BANK




	9.01	 	Appointment. Deutsche Bank Trust Company Americas is hereby appointed to act as
Collateral Agent and to act as Depositary Bank and the Collateral Agent and Depositary Bank
are each authorized to exercise such rights, powers, authorities and discretions as are
specifically delegated to the Collateral Agent or the Depositary Bank, as the case may be, by
the terms of this Agreement and the other Financing Documents, together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto. By its signature
below Deutsche Bank Trust Company Americas (or any successor thereto pursuant to this Article
IX) accepts each such appointment. The Borrower hereby agrees to pay to the Collateral Agent
and the Depositary Bank any reasonable and documented fees and other amounts as are agreed in
writing between the Borrower and the Collateral Agent or Depositary Bank, as the case may be,
from time to time.





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	9.02	 	Duties and Responsibilities. Neither the Collateral Agent nor the Depositary Bank
shall have any fiduciary duties or responsibilities except those expressly set forth in this
Agreement or in the other Transaction Documents to which it is a party, and no implied
covenants or obligations
shall be read into this Agreement or the other
Financing Documents against the Collateral Agent
or the Depositary Bank. Neither the Collateral
Agent nor the Depositary Bank shall be liable or
responsible except for the performance of such
expressed duties as are specifically set forth
herein or in the other Transaction Documents to
which it is a party. Neither the Collateral
Agent nor the Depositary Bank shall have any
fiduciary relationship with the Borrower arising
out of or in connection with this Agreement or
the other Transaction Documents. The
relationship between the Secured Parties, on the
one hand, and the Borrower, on the other, in
connection herewith or therewith is solely that
of a debtor and a creditor. Neither this
Agreement nor the other Transaction Documents
creates a joint venture between the parties.
	 
	9.03	 	Rights and Obligations.






	 	(a)	 	The Collateral Agent may:






	 	(i)	 	assume, absent actual knowledge or written notice received by
it to the contrary, that (A) any representation made by any Person in
connection with any Transaction Document is true, (B) no Secured Obligation
Default or Secured Obligation Event of Default exists, (C) no Person is in
breach of or in default under its obligations under any Transaction Document
and (D) any right, power, authority or discretion vested herein upon any other
Agent has not been exercised;
	 
	 	(ii)	 	assume, absent actual knowledge or written notice received by
it to the contrary, that any notice or certificate given by any Person has been
validly given by a Person authorized to do so and act upon such notice or
certificate unless the same is revoked or superseded by a further such notice
or certificate;
	 
	 	(iii)	 	assume, absent written notice received by it to the contrary,
that the address, telecopy and telephone numbers for the giving of any written
notice to any Person hereunder is that identified in Section 9.01 of the Credit
Agreement or in the Accession Agreement to which such Person is a party until
the Collateral Agent has received from such Person a written notice designating
some other office of such Person to replace any such address, telecopy or
telephone number, and act upon any such notice until the same is superseded by
a further such written notice;
	 
	 	(iv)	 	employ at the expense of the Borrower in accordance with
Section 9.03 of the Credit Agreement, attorneys, accountants or other experts
whose advice or services the Collateral Agent may reasonably determine is
necessary, expedient or desirable, may pay reasonable fees and expenses for the
advice or service of any such Person and may rely upon any advice so obtained;
provided that the Collateral Agent shall be under no





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	 	 	 	obligation to act upon such advice if it does not deem such action to be
appropriate;
	 
	 	(v)	 	rely on any matters of fact which might reasonably be expected
to be within the knowledge of any Person upon a certificate signed by or on
behalf of such party;
	 
	 	(vi)	 	rely upon any communication, certification, notice or document
reasonably believed by it to be genuine;
	 
	 	(vii)	 	refrain from acting or continuing to act in accordance with
any instructions given under this Agreement to begin any legal action or
proceeding arising out of or in connection with any Transaction Document until
it shall have received such indemnity or security from the Secured Parties as
it may reasonably require (whether by payment in advance or otherwise) for all
reasonable costs, claims, losses, expenses (including reasonable legal fees and
expenses) and liabilities which it will or may expend or incur in complying or
continuing to comply with such instructions; provided that nothing in
this subclause (vii) shall be deemed to obligate any Secured Party to provide
any such indemnity or security; and
	 
	 	(viii)	 	seek instructions from the Required Secured Parties or the Adminstrative
Agent, as applicable, as to the exercise of any of its rights, powers,
authorities or discretions hereunder (including any consents, notices,
requests, amendments, waivers, modifications, acceptances or remedies), and in
the event that it does so, it shall not be considered as having acted
unreasonably when acting in accordance with such written instructions or, in
the absence of any (or any clear) written instructions, when refraining from
taking any action or exercising any right, power or discretion hereunder.






	 	(b)	 	The Collateral Agent shall:






	 	(i)	 	promptly deliver to the Secured Parties or the Administrative
Agent, as applicable, the notices, certificates, reports, opinions, agreements
and other documents which it receives under this Agreement and the other
Transaction Documents in its capacity as Collateral Agent;
	 
	 	(ii)	 	except as otherwise expressly provided in any Financing
Document, perform its duties in accordance with any written instructions given
to it by the Required Secured Parties, which instructions shall be binding on
all Secured Parties; and
	 
	 	(iii)	 	if so instructed in writing by the Required Secured Parties,
refrain from exercising any right, power, authority or discretion vested in it
hereunder or under the other Financing Documents (other than rights arising
under this Section 9.03).





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	 	(c)	 	Without limiting the generality of Section 9.03(b), the parties hereto
acknowledge and agree that the Collateral Agent shall, in exercising its rights and
performing its obligations under the other Financing Documents, act in accordance with
the terms and conditions of this Agreement.






	9.04	 	No Responsibility for Certain Conduct.






	 	(a)	 	Notwithstanding anything to the contrary expressed or implied herein, the
Collateral Agent shall not:






	 	(i)	 	be bound to inquire as to (w) whether or not any representation
made by any other Person in connection with any Transaction Document is true,
(x) the occurrence or otherwise of any Secured Obligation Default or Secured
Obligation Event of Default, (y) the performance by any other Person of its
obligations under any of the Transaction Documents or (z) any breach of or
default by any other Person of its obligations under any of the Transaction
Documents;
	 
	 	(ii)	 	be bound to account to any Person for any sum or the profit
element of any sum received by it for its own account except as otherwise
provided in this Agreement; or
	 
	 	(iii)	 	be bound to disclose to any Person any information relating to
the Project or to any Person if such disclosure would, or might in its
reasonable opinion, constitute a breach of any applicable law or be otherwise
actionable at the suit of any Person.






	 	(b)	 	The Collateral Agent shall have no responsibility for the accuracy or
completeness of any information supplied by any Person (other than itself) in
connection with the Project or for the legality, validity, effectiveness, adequacy or
enforceability of any Transaction Document or any other document referred to herein or
provided for herein or therein or for any recitals, statements, representations or
warranties made by the Borrower or any other Person contained in this Agreement or any
other Transaction Document or in any certificate or other document referred to or
provided for, or received by the Collateral Agent, hereunder or thereunder. The
Collateral Agent shall not be liable as a result of any failure by the Borrower or its
Affiliates or any Person (except itself to the extent of the Collateral Agent’s gross
negligence or willful misconduct) party hereto or to any other Transaction Document to
perform their respective obligations hereunder or under any other Transaction Document
or any document referred to or provided for herein or therein or as a result of taking
or omitting to take any action hereunder or in relation to any Transaction Document.
	 
	 	(c)	 	It is understood and agreed by each Secured Party (for itself and any other
Person claiming through it) that, except as expressly set forth herein, it has itself
been, and will continue to be, solely responsible for making its own independent
appraisal of, and investigations into, the financial condition, creditworthiness,





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	 	 	 	condition, affairs, status and nature of each Person and, accordingly, each such
Secured Party warrants to the Collateral Agent that it has not relied on and will
not hereafter rely on the Collateral Agent:






	 	(i)	 	to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by any Person in connection with
any of the Transaction Documents or the transactions therein contemplated
(whether or not such information has been or is hereafter circulated to such
Person by the Collateral Agent); or
	 
	 	(ii)	 	to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any
Person.






	 	(d)	 	In the event the Collateral Agent is instructed in writing to take any action
under this Agreement or any other Financing Document, the Collateral Agent may refuse
to take such action in the event that, in the Collateral Agent’s sole discretion, the
Collateral Agent determines that taking such action either would be contrary to
applicable laws or regulations or would cause the Collateral Agent to incur liability
for which the Collateral Agent has not been indemnified or secured against to its
satisfaction.






	9.05	 	Defaults. The Collateral Agent shall not be deemed to have knowledge or notice of
the occurrence of any Secured Obligation Default or Secured Obligation Event of Default unless
the Collateral Agent has received written notice of such Secured Obligation Default or Secured
Obligation Event of Default referring to this Agreement, describing such Secured Obligation
Default or Secured Obligation Event of Default and stating that such notice is a “Notice of
Default.” If the Collateral Agent has actual knowledge of a Secured Obligation Default or
Secured Obligation Event of Default or receives such a Notice of Default, the Collateral Agent
shall give prompt notice thereof to the Administrative Agent, the Replacement Letter of Credit
Administrative Agent and the Swap Banks. The Collateral Agent shall take such action with
respect to such Secured Obligation Default or Secured Obligation Event of Default as is
provided in this Agreement and Article VII of the Credit Agreement; provided,
however, that notwithstanding any other provision of this Agreement to the contrary,
unless and until the Collateral Agent shall have received a Remedies Direction, it may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Secured Obligation Default or Secured Obligation Event of Default as it shall deem
advisable and in the best interest of the Secured Parties and any such action so taken shall
be deemed to be taken pursuant to a Remedies Direction.
	 
	9.06	 	Liability.






	 	(a)	 	Neither the Collateral Agent nor the Depositary Bank nor any of their officers,
directors, employees or agents shall be liable to any Person for any action taken or
omitted under this Agreement or under the other Financing Documents, or in connection
therewith, except to the extent caused by the gross negligence or willful misconduct of
the Collateral Agent or the Depositary Bank, as determined





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	 	 	 	by a court of competent jurisdiction in a final judgment from which no appeal may be taken. The Secured
Parties party hereto each (for itself and any Person claiming through it) hereby
releases, waives, discharges and exculpates the Collateral Agent and the Depositary
Bank for any action taken or omitted under this Agreement or under the other Financing
Documents, or in connection therewith, except to the extent caused by the gross
negligence or willful misconduct of the Collateral Agent or the Depositary Bank (as the
case may be), as determined by a court of competent jurisdiction in a final judgment
from which no appeal may be taken.
	 
	 	(b)	 	Neither the Depositary Bank nor the Collateral Agent shall not incur any
liability for not performing any act or not fulfilling any duty, obligation or
responsibility hereunder by reason of any occurrence beyond the control of the
Depositary Bank or the Collateral Agent, as the case may be (including any act or
provision of any present or future law or regulation or governmental authority, any act
of God or war, civil unrest, local or national disturbance or disaster, any act of
terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other
wire or communication facility).






	9.07	 	Indemnity. Each Secured Party shall, from time to time on demand by the Collateral
Agent or the Depositary Bank, indemnify the Collateral Agent and the Depositary Bank in
proportion to (a) prior to any acceleration of the Secured Obligations, its pro rata share of
the aggregate of the undrawn Commitments and commitments under any Replacement Letter of
Credit Facility and the outstanding principal amount of Secured Obligations and (b) following
any acceleration of the Secured Obligations, its pro rata share of outstanding principal of
Secured Obligations at the time of demand (or, if all outstanding principal have then been
repaid in full, immediately prior to the final repayment thereof), against any and all costs,
claims, losses, expenses (including reasonable legal fees and expenses) and liabilities, which
the Collateral Agent or the Depositary Bank may incur on or after the date hereof in acting in
its capacity as the Collateral Agent or the Depositary Bank, as applicable, hereunder and
under the other Financing Documents, other than by reason of its own respective gross
negligence or willful misconduct. Without limitation of the foregoing, each Secured Party
shall reimburse the Collateral Agent and the Depositary Bank promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable legal fees and expenses)
incurred by it in connection with the preparation, execution, administration or enforcement
of, or legal advice in respect of rights or responsibilities under, the Transaction Documents,
to the extent that the Collateral Agent and the Depositary Bank are not promptly reimbursed
for such expenses by the Borrower. The provisions of this Section 9.07 shall survive the
termination of this Agreement and the other Financing Documents.






	9.08	 	Resignation and Removal.






	 	(a)	 	Subject to Section 9.09, either the Collateral Agent or the Depositary Bank may
resign from its appointment hereunder at any time without providing any reason





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	 	 	 	therefor by giving 30 days prior written notice to that effect to each of the other parties
hereto.
	 
	 	(b)	 	Subject to Section 9.09, the Required Secured Parties, unless an Event of
Default has occurred and is continuing, with the consent of the Borrower, may remove
either the Collateral Agent or the Depositary Bank from its appointments hereunder with
or without cause by giving 30 days prior written notice to that effect to each of the
other parties hereto.






	9.09	 	Successor Collateral Agents and Depositary Banks.






	 	(a)	 	No resignation or removal pursuant to Section 9.08 shall be effective until:






	 	(i)	 	a successor for the Collateral Agent or Depositary Bank, as the
case may be, is appointed in accordance with (and subject to) the provisions of
this Section 9.09;
	 
	 	(ii)	 	the resigning Collateral Agent or Depositary Bank, as the case
may be, has transferred to its successor (A) all of its rights and obligations
in its capacity as a Collateral Agent or a Depositary Bank, as the case may be,
under this Agreement and the other Financing Documents and (B) all
documentation held by it and relating to the Financing Documents (other than
such documentation that the Collateral Agent or the Depositary Bank, as the
case may be, is required to retain pursuant to applicable law); and
	 
	 	(iii)	 	the successor Collateral Agent or Depositary Bank, as the case
may be, has executed and delivered an agreement to be bound by the terms of
this Agreement and the other Financing Documents and to perform all duties
required of Collateral Agent or Depositary Bank, as the case may be, hereunder
and under the other Financing Documents;




provided that, for the avoidance of doubt, a removal of a Collateral Agent or Depositary
Bank shall be effective notwithstanding the non-satisfaction of clause (a)(ii) above.





	 	(b)	 	If the Collateral Agent or the Depositary Bank has given notice of its
resignation pursuant to Section 9.08(a) or if the Required Secured Parties give the
Collateral Agent or the Depositary Bank notice of removal thereof pursuant to Section
9.08(b), then a successor to the Collateral Agent or the Depositary Bank, as the case
may be, may be appointed by the Required Secured Parties (and, unless a Secured
Obligation Event of Default has occurred and is continuing, with the
written consent of the Borrower, which consent shall not unreasonably be withheld or
delayed) during a 30 day period beginning on the date of such notice but, if no such
successor is so appointed within 30 days after the above notice, the resigning or
removed Collateral Agent or Depositary Bank may appoint such a successor or petition
to a court of competent jurisdiction to appoint such a successor. If a resigning or
removed Collateral Agent or Depositary Bank, or a court of competent jurisdiction
appoints a successor, such successor shall (i) be authorized under all applicable
laws to exercise corporate trust powers, (ii) have a





Collateral Agency Agreement




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	 	 	 	combined capital and surplus of at least $500,000,000 and (iii) be acceptable to the
Required Secured Parties (and, unless a Secured Obligation Event of Default has
occurred and is continuing, the Borrower, approval by which shall not unreasonably be
withheld or delayed).
	 
	 	(c)	 	If a successor to the Collateral Agent or the Depositary Bank is appointed
under the provisions of this Section 9.09, then:






	 	(i)	 	the predecessor Collateral Agent or Depositary Bank, as the
case may be, shall be discharged from any further obligation hereunder (but
without prejudice to any accrued liabilities);
	 
	 	(ii)	 	the resignation pursuant to Section 9.08(a) or removal pursuant
to Section 9.08(b) of the predecessor Collateral Agent or Depositary Bank, as
the case may be, notwithstanding, the provisions of this Agreement shall inure
to the predecessor Collateral Agent’s benefit or Depositary Bank’s benefit, as
the case may be, as to any actions taken or omitted to be taken by it under
this Agreement and the other Financing Documents while it was Collateral Agent
or Depositary Bank, as the case may be; and
	 
	 	(iii)	 	the successor Collateral Agent or Depositary Bank, as the case
may be, and each of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such successor
Collateral Agent or Depositary Bank, as the case may be, had been a party
hereto beginning on the date of this Agreement.






	9.10	 	Authorization. The Collateral Agent and the Depositary Bank are each hereby
authorized to execute, deliver and perform each of the Financing Documents to which the
Collateral Agent or the Depositary Bank, as the case may be, is or is intended to be a party.
	 
	9.11	 	Collateral Agent or Depositary Bank as Lender. With respect to any Commitment or
commitment under any Replacement Letter of Credit Facility held by it, and the Loans or
Replacement Letter of Credit Loans made by it, any Lender or Replacement Lender serving as
Collateral Agent or Depositary Bank hereunder shall have the same rights and powers under the
Transaction Documents as any other Lender or Replacement Lender, as the case may be, and may
exercise the same as though it were not the Collateral Agent or the Depositary Bank. The term
“Lender”, “Replacement Lender” or “Secured Party”, when used with respect to the Collateral
Agent or the Depositary Bank, shall, unless otherwise expressly indicated, include the
Collateral Agent or the Depositary Bank, as the case may be, in its individual capacity. The
Collateral Agent, the Depositary Bank and each of their respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of and generally engage in any
kind of business with any Person, without any duty to account therefor to the Secured Parties.





Collateral Agency Agreement



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ARTICLE X




MISCELLANEOUS




	10.01	 	No Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto
or any Secured Party in exercising any right, power or privilege hereunder and no course of
dealing between parties hereto shall impair any such right, power or privilege or operate as a
waiver thereof. No single or partial exercise by any party hereto or any Secured Party 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 hereunder. The rights, powers and
remedies provided herein are cumulative and not exclusive of any rights, powers or remedies
which any party hereto would otherwise have. No notice to or demand by any party hereto or
any Secured Party on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the
rights of any party hereto or any Secured Party to any other or further action in any
circumstances without notice or demand.
	 
	10.02	 	Notices. All notices, payment instructions, Remedies Directions and other
communications required or permitted to be given hereunder shall be (a) in writing and be
considered as properly given and be deemed effective in accordance with Section 9.01 of the
Credit Agreement; and (b) sent to a party hereto at its address and contact number specified
in Section 9.01 of the Credit Agreement or in the Accession Agreement to which it is a party,
or at such other address and contact number as is designated by any party in a written notice
to the other parties hereto; provided that with respect to determining whether any
notice, payment instruction, Remedies Direction or other communication to the Agents or the
Depositary Bank has been given hereunder, unless otherwise expressly provided herein, such
notice shall be deemed effectively given and received on the actual day of receipt by the
Agents or the Depositary Bank, as the case may be, of such notice, payment instruction,
Remedies Direction or other communication at its designated office for delivery of notices.
	 
	10.03	 	Amendments. Except to the extent specified in Article VIII, this Agreement may be
amended or modified only by an instrument in writing signed by the Borrower and Agent party
hereto (with the consent of the Required Secured Parties). Any such amendment or modification
shall be binding upon the Borrower and the Secured Parties (including any thereof executing an
Accession Agreement thereafter).
	 
	10.04	 	Benefit of Agreement; Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided, however, that the
Borrower may not assign or transfer any of its rights or obligations hereunder without the
prior written consent of each Secured Party.
	 
	10.05	 	Third-Party Beneficiaries. The covenants contained herein are made solely for the
benefit of the parties hereto and the other Secured Parties from time to time bound hereby,
and their successors and assigns, and shall not be construed as having been intended to
benefit any other third-party not a party to this Agreement.





Collateral Agency Agreement



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	10.06	 	Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which, when executed and
delivered, shall be effective for purposes of binding the parties hereto, but all of which
shall together constitute one and the same instrument.
	 
	10.07	 	Effectiveness. This Agreement shall be effective on the date first above written.
	 
	10.08	 	Entire Agreement. This Agreement and the other Financing Documents, including the
documents referred to herein, constitute the entire agreement and understanding of the parties
hereto, and supersede any and all prior agreements and understandings, written or oral, of the
parties hereto relating to the subject matter hereof.
	 
	10.09	 	Severability. If any provision of this Agreement is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law: (a) the other provisions of this
Agreement shall remain in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intentions of the parties hereto as nearly as may be
possible; and (b) the invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction.
	 
	10.10	 	Conflict with Other Agreements. Except as otherwise expressly provided herein, the
parties agree that in the event of any conflict between the provisions of this Agreement (or
any portion thereof) and the provisions of any other Financing Document or any other agreement
now existing or hereafter entered into, the provisions of this Agreement shall control. In
the event that in connection with the establishment of any of the Accounts with the Depositary
Bank, the Borrower shall not enter into any agreement, instrument or other document with the
Depositary Bank which has terms that are in conflict with or inconsistent with the terms of
this Agreement, the terms of this Agreement shall control.
	 
	10.11	 	Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial. This
Agreement shall be governed by, and construed in accordance with, the law of the State of New
York and the provisions of Section 9.09 of the Credit Agreement are hereby incorporated herein
by reference, mutatis mutandis, as if fully set out in this Agreement and each reference in
any such Section of the Credit Agreement to the “Agreement”, “herein”, “hereunder” and like
terms shall be deemed to refer to this Agreement.
	 
	10.12	 	Termination. Upon the Termination Date, this Agreement shall (except as otherwise
expressly set out herein) terminate and be of no further force and effect; provided that the
obligations under Section 9.07 shall survive the Termination Date.
	 
	10.13	 	Reinstatement. This Agreement and the obligations of the Borrower hereunder shall
continue to be effective or be automatically reinstated, as the case may be, if (and to the
extent that) at any time payment and performance of the Borrower’s obligations hereunder, or
any part thereof, is rescinded or reduced in amount, or must otherwise be restored or returned
by any Agent or any other Secured Party. In the event that any payment or any part thereof is
so rescinded, reduced, restored or returned, such obligations shall be reinstated on the same
terms and conditions applicable thereto prior





Collateral Agency Agreement



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	 	 	to the payment of the rescinded, reduced,
restored or returned amount, and shall be deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
	 
	10.14	 	Attorney-In-Fact. For the purposes of allowing the Collateral Agent to exercise its
rights and remedies upon the occurrence and continuance of a Secured Obligation Event of
Default, and to the extent permitted by applicable law, the Borrower irrevocably constitutes
and appoints the Collateral Agent 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 the Borrower and in the name of the Borrower or in its own name, for
the purpose of carrying out the terms of this Agreement, to take any appropriate action and to
execute any document or instrument that may be necessary or desirable to accomplish the
purposes of this Agreement.
	 
	10.15	 	Stamp and Other Similar Taxes. The Borrower shall pay at any time all stamp duty,
registration taxes, fees or charges and other similar duties, levies, charges and fees which
may be assessed, levied or collected by any jurisdiction in connection with this Agreement,
any other Financing Document or the attachment or perfection of the Lien granted to the
Collateral Agent in any Collateral (including the Depositary Collateral with the Depositary
Bank) and shall from time to time upon demand by any Agent indemnify such Agent, the
Depositary Bank, each receiver appointed under this Agreement and each of the other Secured
Parties against any liabilities, costs, claims, expenses, penalties and interest resulting
from any failure to
pay or any delay in paying any such duty or tax (except to the extent that such liabilities,
costs, claims, expenses, penalties and interest result from the gross negligence or willful
misconduct of any such Person as finally determined by a court of competent jurisdiction) in
a final judgment from which no appeal may be taken.
	 
	10.16	 	Filing Fees, Excise Taxes, Etc. The Borrower agrees to pay or to reimburse each
Agent promptly on demand for any and all amounts in respect of all search, filing and
recording fees, taxes, excise taxes, sales taxes and other similar imposts which may be
payable or determined to be payable in respect of the execution, delivery, performance and
enforcement of this Agreement and each other Financing Document to which such Person is a
party and agrees to hold each such Person harmless from and against any and all liabilities,
costs, claims, expenses, penalties and interest with respect to or resulting from any delay in
paying or omission to pay such taxes and fees (except to the extent that such liabilities,
costs, claims, expenses, penalties and interest result from the gross negligence or willful
misconduct of any such Person as finally determined by a court of competent jurisdiction) in a
final judgment from which no appeal may be taken.
	 
	10.17	 	Accession Agreements.





Collateral Agency Agreement



- 46 -









 






	 	(a)	 	The Collateral Agent will, as an Agent hereunder, perform its undertakings set
forth herein with respect to each holder of Secured Obligations that are issued or
incurred after the date hereof that:






	 	(i)	 	holds obligations that are identified as Secured Obligations in
accordance with the procedures set forth in Section 10.17(b); and
	 
	 	(ii)	 	signs (whether itself or through its Agent identified pursuant
to Section 10.17(b)) an Accession Agreement.






	 	(b)	 	The Borrower will be permitted (i) to designate as an additional holder of
Secured Obligations hereunder the Swap Banks who enter into Permitted Swap Agreements
with the Borrower on or after the date of this Agreement in compliance with the
requirements of the Credit Agreement, and (ii) to designate as additional holders of
Secured Obligations hereunder Replacement Lenders and the Replacement Letter of Credit
Administrative Agent under any Replacement Letter of Credit Facility entered into by
the Borrower after the date of this Agreement. The Borrower may effect such
designation by delivering to the Collateral Agent, with copies to each other Secured
Party (or applicable Agent on its behalf), each of the following:






	 	(i)	 	an Officer’s Certificate stating that the Borrower intends to
incur additional Secured Obligations (“Additional Secured Obligations”)
which will either be (A) a Permitted Swap Agreement or (B) a Replacement Letter
of Credit Facility, and in each case certifying that the incurrence of
such Additional Secured Obligation is permitted and does not violate or
result in any default under the Secured Obligation Documents;
	 
	 	(ii)	 	evidence that the Borrower has duly authorized, executed (if
applicable) and recorded (or caused to be recorded) in each appropriate
governmental office all relevant filings and recordations (if any) to ensure
that the Additional Secured Obligations are secured by the Collateral in
accordance with the Security Documents;
	 
	 	(iii)	 	a written notice specifying the name and address of the
Secured Parties (or Agent acting on their behalf) for such of Additional
Secured Obligations for purposes of Section 10.02; and
	 
	 	(iv)	 	a copy of the executed Accession Agreement referred to in
clause (a) above.





     Each of the parties hereto agrees that this Agreement and the applicable Security Documents
may be amended to the extent necessary or desirable to cause the Liens granted thereby to be in
favor of the holders of such new Secured Obligations and to cause such holders to be treated in the
same manner as the relevant Secured Parties under this Agreement.




	10.18	 	USA PATRIOT Act. Each Secured Party and the Depositary Bank hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub.





Collateral Agency Agreement



- 47 -









 






		 	L.107-56
(signed into law October 26, 2001)), such Secured Party and the Depositary Bank may be
required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will
allow such Secured Party and the Depositary Bank to identify the Borrower in accordance with
said Act. The Borrower agrees that it will provide each Secured Party and the Depositary Bank
with such information as it may reasonably request in order for such Secured Party and the
Depositary Bank to satisfy the requirements of said Act.
	 
	10.19	 	Collateral Agent and Depositary Agent.






	 	(a)	 	Notwithstanding anything else to the contrary herein, whenever reference is
made in this Agreement to any discretionary action by, consent, designation,
specification, requirement or approval of, notice, request or other communication from,
or other direction given or action to be undertaken or to be (or not to be) suffered or
omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use
of judgment, expression of satisfaction or other exercise of discretion, rights or
remedies to be made (or not to be made) by the Collateral Agent, it is understood that
in all cases the Collateral Agent shall be fully justified in failing or refusing to
take any such action under this Agreement if it shall not have received such written
instruction, advice or concurrence of the Administrative Agent (acting in accordance
with the Credit Agreement and other Financing Documents), as it deems appropriate. This provision is intended solely
for the benefit of the Collateral Agent and its successors and permitted assigns and
is not intended to and will not entitle the other parties hereto to any defense,
claim or counterclaim, or confer any rights or benefits on any party hereto.
	 
	 	(b)	 	Notwithstanding anything else to the contrary herein, whenever reference is
made in this Agreement to any discretionary action by, consent, designation,
specification, requirement or approval of, notice, request or other communication from,
or other direction given or action to be undertaken or to be (or not to be) suffered or
omitted by the Depositary Bank or to any election, decision, opinion, acceptance, use
of judgment, expression of satisfaction or other exercise of discretion, rights or
remedies to be made (or not to be made) by the Depositary Bank, it is understood that
in all cases the Depositary Bank shall be fully justified in failing or refusing to
take any such action under this Agreement if it shall not have received such written
instruction, advice or concurrence of the Collateral Agent (acting in accordance with
the Credit Agreement and other Financing Documents), as it deems appropriate. This
provision is intended solely for the benefit of the Depositary Bank and its successors
and permitted assigns and is not intended to and will not entitle the other parties
hereto to any defense, claim or counterclaim, or confer any rights or benefits on any
party hereto. The duties, responsibilities and obligations of the Depository Bank
shall be limited to those expressly set forth herein and no duties, responsibilities or
obligations shall be inferred or implied against the Depository Bank. The Depository
Agent shall not be subject to, nor required to comply with, any other agreement to
which it is not a party, even though reference thereto may be made herein, or to comply
with any direction or instruction (other than those contained herein or delivered in
accordance with this Agreement) from the Collateral Agent.





[SIGNATURES TO FOLLOW]




Collateral Agency Agreement



- 48 -









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BORROWER:



MIRANT MARSH LANDING, LLC, as the Borrower

 	 
	 	By:  	/s/ G. Gary Garcia
 	 
	 	 	Name:  	G. Gary Garcia 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



Signature Page to Collateral Agency Agreement



 









 





	 	 	 	 	 
	 	COLLATERAL AGENT

DEUTSCHE BANK TRUST COMPANY

     AMERICAS,

     not in its individual capacity but solely as

     Collateral Agent

 	 
	 	By:  	/s/ Wanda Camacho
 	 
	 	 	Name:  	Wanda Camacho 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Yana Kislenko
 	 
	 	 	Name:  	Yana Kislenko 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Collateral Agency Agreement



 









 





	 	 	 	 	 
	 	DEPOSITARY BANK



DEUTSCHE BANK TRUST COMPANY

     AMERICAS,

     not in its individual capacity but solely as

     Depositary Bank

 	 
	 	By:  	/s/ Wanda Camacho
 	 
	 	 	Name:  	Wanda Camacho 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	
/s/ Yana Kislenko
 	 
	 	 	Name:  	Yana Kislenko 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Collateral Agency Agreement



 









 





	 	 	 	 	 
	 	ADMINISTRATIVE AGENT:




THE ROYAL BANK OF SCOTLAND PLC,

     not in its individual capacity but solely as

     Administrative Agent

 	 
	 	By:  	/s/ Matthew Wade
 	 
	 	 	Name:  	Matthew Wade 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Collateral Agency Agreement



 









 






     SCHEDULE I



to Agreement




ACCOUNT NAMES AND NUMBERS




	 	 	 
	ACCOUNT NAME	 	ACCOUNT NO.
	(a) the Construction Account

	 	S60655.1
	 
	 	 
	(b) the Operating Account

	 	S60655.2
	 
	 	 
	(c) the Revenue Account

	 	S60655.3
	 
	 	 
	(d) the Debt Service Reserve Account

	 	S60655.4
	 
	 	 
	(e) the Interest Payment Account

	 	S60655.5
	 
	 	 
	(f) the Principal Payment Account

	 	S60655.6
	 
	 	 
	(g) the Insurance/Condemnation Proceeds Account

	 	S60655.7
	 
	 	 
	(h) the Distribution Account

	 	S60655.8
	 
	 	 
	(i) the Major Maintenance Account

	 	S60655.9
	 
	 	 
	(j) the Prepayment Account

	 	S60655.10






Schedule I to Collateral Agency Agreement



 









 





EXHIBIT A

to Agreement




FORM OF CONSTRUCTION ACCOUNT WITHDRAWAL CERTIFICATE




Date of this Construction Account Withdrawal Certificate: [__________]



Deutsche Bank Trust Company Americas,

as Collateral Agent

60 Wall Street

MSNYC60-2710

New York, New York 10005

Attention: Trust and Securities Services

Project Finance- Account Manager

E-mail: yana.kislenko@db.com,

li.jiang@db.com

Tel: (212) 250-7727

Fax: (732)-578-4636




cc: The Royal Bank of Scotland plc,

as Administrative Agent

600 Washington Boulevard

Stamford, CT 06901

Attn: Simon Mockford, Managing Director,

TPM, Power & Infrastructure Finance

Tel: 203-897-3719

Fax: 203-873-3365

Email: simon.mockford@rbs.com



with a copy to:




The Royal Bank of Scotland plc,

as Administrative Agent

600 Washington Boulevard

Stamford, CT 06901

Attn: Matthew Wilson, Senior Vice President,

Head of Banking Middle Office Americas

Tel: 203-897-7664

Fax: 203-873-5300

Email: matthew.wilson@rbs.com



RE: Mirant Marsh Landing Project




Exhibit A to Collateral Agency Agreement



 









 




Ladies and Gentlemen:




     1. This Construction Account Withdrawal Certificate is delivered to you pursuant to Section
3.03(a) of that certain Collateral Agency and Intercreditor Agreement dated as of October 8, 2010
(as amended, modified or supplemented from time to time, the “Collateral Agency
Agreement”), among Mirant Marsh Landing, LLC, a limited liability company duly organized under
the laws of Delaware (the “Borrower”), The Royal Bank of Scotland plc, as administrative
agent (in such capacity, together with its successors in such capacity, the “Administrative
Agent”), Deutsche Bank Trust Company Americas, in its capacities as Collateral Agent (in such
capacity, together with its successors in such capacity, the “Collateral Agent”) and as
Depositary Bank (in such capacity, together with its successors in such capacity, the
“Depositary Bank”) and other secured parties from time to time party thereto. All
capitalized terms used herein shall have the respective meanings specified in the Collateral Agency
Agreement unless otherwise defined herein or unless the context requires otherwise.



     2. This Construction Account Withdrawal Certificate is being delivered in connection with a
proposed withdrawal and/or transfer under the Collateral Agency Agreement on [INSERT DATE] (the
“Proposed Transfer Date”).



     3. With respect to the information in this Construction Account Withdrawal Certificate, the
Borrower has made such examination or investigation as was reasonably necessary to enable the
Borrower to express an informed opinion as to the accuracy of such information.



     4. Construction Account Transfer:




4.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex A be
transferred from the Construction Account to the applicable account or Person set forth on
column 2 of Annex A on the Proposed Transfer Date (each such transfer, a “Construction
Account Transfer”), which amounts are due and payable.




[4.1 The Borrower hereby requests that $[______] be transferred from the Construction
Account to the Distribution Account, which amount (i) does not exceed the amount of any
Permitted Construction Account Distribution Amount and (ii) is the excess of the amount
certified by the Borrower (and confirmed by the Independent Engineer) to be necessary to pay
Project Costs to achieve the Conversion Date and are reasonably expected to become due and
payable after the Conversion Date (including the payment of all punch list
items).]1




[4.2 The Borrower hereby requests that $[______] be transferred from the Construction
Account to the Revenue Account, which amount shall be the amount





 




			
	1	 	To be included in the Certificate for transfers from the Construction Account to the Distribution Account on the
Conversion Date.





Exhibit A to Collateral Agency Agreement



2









 






remaining in the Construction Account following such transfer as set forth in Section
4.1.] 2




5. Certifications. THE BORROWER HEREBY CERTIFIES FOR THE BENEFIT OF EACH SECURED
PARTY THAT, as of the date hereof:




5.1 the Borrower is entitled, pursuant to the terms of the Collateral Agency
Agreement, to request each Construction Account Transfer in the amount and at the times
set out in this Construction Account Withdrawal Certificate;




5.2 each withdrawal and transfer requested herein is for an amount required for,
and shall solely be used for, the purpose set forth herein and in Annex A attached
hereto in accordance with the Collateral Agency Agreement and the other Financing
Documents; and




5.3 the Borrower is in compliance with the procedures, conditions and requirements
set out in the Collateral Agency Agreement and all other applicable Financing Documents
in connection with each Construction Account Transfer requested herein.



[SIGNATURE PAGE FOLLOWS]






 




			
	2	 	To be included in the Certificate for
transfers from the Construction Account to the Revenue Account on the
Conversion Date to the extent amounts remain the Construction Account after any
transfers under Section 4.1.





Exhibit A to Collateral Agency Agreement



3









 





     IN WITNESS WHEREOF, each undersigned party has executed this Construction Account Withdrawal
Certificate as of the date hereof.



	 	 	 	 	 
	 	MIRANT MARSH LANDING, LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




4











 





Annex A




to Construction Account Withdrawal Certificate




Withdrawals/Transfers from the Construction Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Construction	 	Platform Account to be Transferred	 	 	 	 
	Account	 	to	 	Purpose	 	Payment Instructions
	$
	 	[the Contractor] [specify Person or account]	 	 	 	 
	 
	$
	 	 	 	 	 	 
	 
	$
	 	 	 	 	 	 






Exhibit A to Collateral Agency Agreement



 









 





EXHIBIT B




to Agreement




FORM OF ACCOUNTS WITHDRAWAL CERTIFICATE




Date of this Accounts Withdrawal Certificate: _______________




Deutsche Bank Trust Company Americas,

as Collateral Agent

60 Wall Street

MSNYC60-2710

New York, New York 10005

Attention: Trust and Securities Services

Project Finance- Account Manager

E-mail: yana.kislenko@db.com,

li.jiang@db.com

Tel: (212) 250-7727

Fax: (732)-578-4636




cc: The Royal Bank of Scotland plc,

as Administrative Agent

600 Washington Boulevard

Stamford, CT 06901

Attn: Simon Mockford, Managing Director, TPM, Power & Infrastructure Finance

Tel: 203-897-3719

Fax: 203-873-3365

Email: simon.mockford@rbs.com




with a copy to:




The Royal Bank of Scotland plc,

as Administrative Agent

600 Washington Boulevard

Stamford, CT 06901

Attn: Matthew Wilson, Senior Vice President, Head of Banking Middle Office Americas

Tel: 203-897-7664

Fax: 203-873-5300

Email: matthew.wilson@rbs.com




RE: Mirant Marsh Landing Project




Ladies and Gentlemen:




     1. This Accounts Withdrawal Certificate is delivered to you pursuant to Section 3.03 of that
certain Collateral Agency and Intercreditor Agreement dated as of October 8, 2010 (as



Exhibit B to Collateral Agency Agreement



 









 




amended, modified or supplemented from time to time, the “Collateral Agency
Agreement”), among Mirant Marsh Landing, LLC, a limited liability company duly organized under
the laws of Delaware (the “Borrower”), The Royal Bank of Scotland plc, as administrative
agent (in such capacity, together with its successors in such capacity, the “Administrative
Agent”), Deutsche Bank Trust Company Americas, in its capacities as Collateral Agent (in such
capacity, together with its successors in such capacity, the “Collateral Agent”) and as
Depositary Bank (in such capacity, together with its successors in such capacity, the
“Depositary Bank”) and other secured parties from time to time party thereto. All
capitalized terms used herein shall have the respective meanings specified in the Collateral Agency
Agreement unless otherwise defined herein or unless the context requires otherwise.




     2. This is being delivered in connection with a proposed withdrawal and/or transfer under the
Collateral Agency Agreement on [INSERT DATE] (the “Proposed Transfer Date”).



     3. With respect to the information in this Accounts Withdrawal Certificate, the Borrower has
made such examination or investigation as was reasonably necessary to enable such Person to express
an informed opinion as to the accuracy of such information.


[Applicable provisions for the Accounts and transfers relevant for the Proposed Transfer Date to be
inserted]




     4. Revenue Account; Transfers




4.1. The Borrower hereby requests that the amounts set forth in column 1 of Annex A be
transferred from the Revenue Account to the applicable Account or Person set forth in column
2 of Annex A on the Proposed Transfer Date (each such transfer, a “Revenue Account
Transfer”);




4.2. The amount to be transferred from the Revenue Account to the [Operating Account]
[Permitted Borrower Bank Account] on the Proposed Transfer Date is $[________], which
amount, together with the amount then on deposit in the Operating Account and the Permitted
Borrower Bank Account, equals the sum (without duplication) of (A) the aggregate amount
payable by the Borrower for Operating and Maintenance Expenses due and payable (including
Operating and Maintenance Expenses owing from a prior month excluding Major Maintenance
Expenses) plus (B) the Borrower’s good faith estimate of the aggregate Operating and
Maintenance Expenses (excluding Major Maintenance Expenses) reasonably anticipated to become
due and payable before the next Transfer Date plus (C) the amount set forth in the then
applicable Operating Budget as an appropriate reserve as at the Proposed Transfer Date for
the Borrower’s next periodic insurance and/or property tax payments;




4.3. [The amount to be transferred from the Revenue Account, to the Power Purchaser, on the
Proposed Transfer Date is $[________], which amount (as certified by the Borrower) is
required to satisfy the Borrower’s collateral posting obligations under the



Exhibit B to Collateral Agency Agreement



 









 






PPA not otherwise satisfied pursuant to the PPA Letter of Credit or a letter of credit
issued under a Replacement Letter of Credit Facility]3;




4.4. The amount to be transferred from the Revenue Account, ratably to each Agent entitled
thereto, on the Proposed Transfer Date is $[________], which amount is equal to the amount
of all fees, costs, indemnities and expenses due and payable to the Agents and the
Depositary Bank (in their capacities as Agents and Depositary Bank) under the Financing
Documents;




4.5. The amount to be transferred from the Revenue Account, to the Interest Payment Account
on the Proposed Transfer Date is $[________], which amount, together with the amounts then
on deposit in the Interest Payment Account, equals the sum (without duplication) of (A) the
amount of interest on the Loans, Replacement Letter of Credit Loans and fees (including
Commitment Fees and Letter of Credit Fees) and (B) Ordinary Course Settlement Payments, in
each case, respectively, to be paid to the Lenders, the Replacement Lenders and each
counterparty to a Permitted Swap Agreement (as applicable) prior to the next Proposed
Transfer Date;




4.6. The amount to be transferred from the Revenue Account, to the Principal Payment Account
commencing on the Proposed Transfer Date that is three months prior to the first Term Loan
Principal Payment Date is $[________], which amount, together with the amounts then on
deposit in the Principal Payment Accounts, equals the sum (without duplication) of (A) an
amount equal to one-third of the scheduled amount of principal of the Term Loans due and
payable, or scheduled to become due and payable on the next Term Loan Principal Payment
Date, (B) an amount equal to an amount (if any) required to be deposited in the Principal
Payment Account on a monthly basis to ensure that an amount equal to the next scheduled
principal payment under the Replacement Letter of Credit Facility shall be on deposit in the
Principal Payment Account by the next succeeding principal payment date under the
Replacement Letter of Credit Facility, (C) an amount equal to the amount of any accelerated
principal of the Loans and Replacement Letter of Credit Loans then due and payable on such
date (including any mandatory prepayments pursuant to Section 2.09(b) of the Credit
Agreement) and any other amounts then due and payable in respect of the Loans, (D) an amount
equal to any Termination Payments due and payable on such date under any Permitted Swap
Agreement and (E) an amount equal to the scheduled amount of principal of the Letter of
Credit Loans due and payable, or scheduled to become due and payable on the next Letter of
Credit Maturity Date;




4.7. The amount to be transferred from the Revenue Account, to the Principal Payment Account
on the Proposed Transfer Date is $[________], which amount is equal to the amount required
to prepay the outstanding Letter of Credit Loans or Replacement Letter of Credit Loans (with
respect to the letter, to the extent required under the Replacement Letter of Credit
Facility);





 




			
	3	 	At Borrower’s election.





Exhibit B to Collateral Agency Agreement



 









 






4.8. The amount to be transferred from the Revenue Account, to the Major Maintenance
Account, on the Proposed Transfer Date is $[________], which amount is equal to the Major
Maintenance Contribution Amount multiplied by the respective number of gas turbine starts
since the last Transfer Date;




4.9 The amount to be transferred from the Revenue Account, to the Debt Service Reserve
Amount, on the Proposed Transfer Date is $[________], which amount, together with the amount
of funds on deposit in the Debt Service Reserve Account (when added to the available undrawn
amount of the DSR Letter of Credit on such date) is equal to the Debt Service Reserve
Required Amount; and




4.10. [The amount to be transferred from the Revenue Account to the Distribution Account, on
the Proposed Transfer Date is $[________].] 




5. Operating Account; Transfers




5.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex B be
transferred from the Operating Account to the applicable account or Person set forth on
column 2 of Annex B on the Proposed Transfer Date (each such transfer, an “Operating
Account Transfer”); and




5.2 The amount to be transferred from the Operating Account to the account of [specify
Person or account] on the Proposed Transfer Date is $[________], which amount is equal to
Operating and Maintenance Expenses (including Emergency Expenses but excluding Major
Maintenance Expenses) due and payable on the Proposed Transfer Date.




6. Debt Service Reserve Account; Transfers




[6.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex C be
transferred from the Debt Service Reserve Account to the applicable account or Person set
forth on column 2 of Annex C on the Proposed Transfer Date (each such transfer, a “Debt
Service Reserve Account Transfer”); and]




[6.2 The amount to be transferred from the Debt Service Reserve Account to the
Administrative Agent, for the account of [the Lenders] [and] [the Swap Banks], on the
Proposed Transfer Date is $[________], which amount is equal to the Debt Payment Deficiency
(or, if less, the aggregate amount of funds then on deposit in or credited to the Debt
Service Account).]




7. Interest Payment Account; Transfers




7.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex D be
transferred from the Interest Payment Account to the applicable account or Person set forth
on column 2 of Annex D on the Proposed Transfer Date (each such transfer, a “Interest
Payment Account Transfer”);



Exhibit B to Collateral Agency Agreement



 









 






7.2 The amount to be transferred from the Interest Payment Account to the Administrative
Agent and Replacement Letter of Credit Administrative Agent on the
Proposed Transfer Date, ratably for the account of the Lenders and Replacement Lenders, is
$[_______], which amount is equal to the amount of interest on the Loans and Replacement
Letter of Credit Loans and fees (including Commitment Fees and Letter of Credit Fees) to be
paid to such Persons on the Proposed Transfer Date; and




7.3 The amount to be transferred from the Interest Payment Account to each counterparty to a
Permitted Swap Agreement entitled thereto, on the Proposed Transfer Date is $[________],
which amount is equal to the Ordinary Course Settlement Payments to be paid to such Persons
on the Proposed Transfer Date.




8. Principal Payment Account; Transfers




8.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex E be
transferred from the Principal Payment Account to the applicable account or Person set forth
on column 2 of Annex E on the Proposed Transfer Date (each such transfer, a “Principal
Payment Account Transfer”);




8.2 The amount to be transferred from the Principal Payment Account to the Administrative
Agent and Replacement Letter of Credit Administrative Agent on the Proposed Transfer Date,
ratably for the account of the Term Loan Lenders and Replacement Lenders, is $[_______],
which amount is equal to the scheduled and accelerated amount of the principal of the Term
Loans and Replacement Letter of Credit Loans to be paid to such Persons on the Proposed
Transfer Date;




8.3 The amount to be transferred from the Principal Payment Account to each Swap Bank
entitled thereto, on the Proposed Transfer Date is $[________], which amount is equal to any
Termination Payments under any Permitted Swap Agreement to be paid to such Persons on the
Proposed Transfer Date;




8.4 The amount to be transferred from the Principal Payment Account to the Parent or a
Subsidiary of a Parent that is a lender under Carbon Dioxide Cost Bridge Indebtedness, Delay
Damages Bridge Indebtedness or Permitted Swap Collateral Bridge Indebtedness, on the
Proposed Transfer Date is $[________], which amount is equal to the amount of prepayment of
Carbon Dioxide Cost Bridge Indebtedness, Delay Damages Bridge Indebtedness or Permitted Swap
Collateral Bridge Indebtedness, to the extent that the Permitted Bridge Prepayment
Conditions have been satisfied in respect of such Permitted Bridge Indebtedness, to be paid
to such Persons on the Proposed Transfer Date; and




8.5 The amount to be transferred from the Principal Payment Account to the Administrative
Agent, ratably for the account of each Letter of Credit Lender and Replacement Lender, on
the Proposed Transfer Date is $[________], which amount is equal to the amount required to
prepay the outstanding Letter of Credit Loans or Replacement Letter of Credit Loans to be
paid to such Persons on the Proposed Transfer Date.



Exhibit B to Collateral Agency Agreement



 









 






9. Insurance/Condemnation Proceeds Account; Transfers




[9.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex F be
transferred from the Insurance/Condemnation Proceeds Account to the applicable account or
Person set forth on column 2 of Annex F on the Proposed Transfer Date (each such transfer, a
“Insurance/Condemnation Proceeds Account Transfer”);]




[9.2 The amount to be transferred from the Insurance/Condemnation Proceeds Account to [the
Construction Account] [Revenue Account], on the Proposed Transfer Date is $[_______];]




[9.3 The amount to be transferred from the Insurance/Condemnation Proceeds Account to
[_______], on the Proposed Transfer Date is $[_______], which amount is to be used in
restoring or repairing the Project; and]




[9.4 The amount to be transferred from the Insurance/Condemnation Proceeds Account to the
Prepayment Account, on the Proposed Transfer Date is $[_______], which amount is to be used
for the prepayment of the Loans.]




10. Distribution Account; Transfers




[10.1 The Borrower hereby request that the amounts set forth in column 1 of Annex G be
transferred from the Distribution Account to the applicable account or Person set forth on
column 2 of Annex G on the Proposed Transfer Date (each such transfer, a “Restricted
Payments Transfer”); and]




[10.2 The amount to be transferred from the Distribution Account to the account of [specify
Person or account] on the Proposed Transfer Date is $[________].]




11. Major Maintenance Account; Transfers




11.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex H be
transferred from the Major Maintenance Account to the applicable account or Person set forth
on column 2 of Annex H on the Proposed Transfer Date (each such transfer, a “Major
Maintenance Account Transfer”); and




11.2 The amount to be transferred from the Major Maintenance Account to the account of
[specify Person or account] on the Proposed Transfer Date is $[________], which amount is
equal to Major Maintenance Expenses due and payable on the Proposed Transfer Date.




12. Prepayment Account; Transfers




12.1 The Borrower hereby requests that the amounts set forth in column 1 of Annex I be
transferred from the Prepayment Account to the applicable account or Person set forth on
column 2 of Annex I on the Proposed Transfer Date (each such transfer, a “Prepayment
Account Transfer”); and



Exhibit B to Collateral Agency Agreement



 









 






12.2 The amount to be transferred from the Prepayment Account to the account of [specify
Person or account] on the Proposed Transfer Date is $[________], which amount
is equal to the amount [transferred from the Insurance/Condemnation Proceeds Account] [of
the [Project Document Claim] or [Termination Payment] to be transferred on the Proposed
Transfer Date].



     13. Certifications. THE BORROWER, HEREBY CERTIFIES FOR THE BENEFIT OF EACH SECURED
PARTY THAT, as of the date hereof:






	 	13.1 	 	

the Borrower is entitled, pursuant to the terms of Articles III of the
Collateral Agency Agreement, to request each [Revenue Account Transfer, Operating
Account Transfer, Debt Service Reserve Account Transfer, Interest Payment Account
Transfer, Principal Payment Account Transfer, Insurance/Condemnation Proceeds Account
Transfer, Restricted Payments Transfer, Major Maintenance Account Transfer and
Prepayment Account Transfer] in the amount and at the times set out in this Accounts
Withdrawal Certificate;

	 
	 	13.2 	 	

each withdrawal and transfer requested herein is for an amount required for,
and shall solely be used for, the purpose set forth herein and in Annexes [A, B, C, D,
E, F, G, H and I], attached hereto in accordance with the Collateral Agency Agreement
and the other Financing Documents;[and]
 
	 
	 	13.3 	 	



 the Borrower is in compliance with the procedures, conditions and requirements
set out in the Collateral Agency Agreement and all other applicable Financing Documents
in connection with each [Revenue Account Transfer, Operating Account Transfer, Debt
Service Reserve Account Transfer, Interest Payment Account Transfer, Principal Payment
Account Transfer, Insurance/Condemnation Proceeds Account Transfer, Restricted Payments
Transfer, Major Maintenance Account Transfer and Prepayment Account Transfer] as
applicable, requested herein[; and]

	 
	 	13.4 	 	

 [if a Insurance/Condemnation Proceeds Account Transfer is requested hereby,
such Insurance/Condemnation Proceeds Account Transfer shall be in accordance with
Section 5.19 of the Credit Agreement[; and]4

	 
	 	13.5 	 	

 [if a Prepayment Account Transfer is requested hereby, such Prepayment Account
Transfer shall be in accordance with Section 2.09(b) of the Credit Agreement[;
and][.]]5

 
	 
	 	13.6 	 	
 [if a Restricted Payment is requested hereby, each of the conditions to the
making of a Restricted Payment by the Borrower set forth in Section 6.07 of the Credit
Agreement shall have been satisfied on the Proposed Transfer Date.]6











 




			
	4	 	Applicable only with respect to
Insurance/Condemnation Proceeds Account Transfers.
	 
	5	 	Applicable only with respect to Prepayment
Account Transfers.
	 
	6	 	Applicable only with respect to Restricted
Payments to be made under Section 6.07 of the Credit Agreement.





Exhibit B to Collateral Agency Agreement



 









 





[SIGNATURE PAGE FOLLOWS]




Exhibit B to Collateral Agency Agreement



 









 





     IN WITNESS WHEREOF, each undersigned party has executed this Accounts Withdrawal Certificate
as of the date hereof.



	 	 	 	 	 
	 	MIRANT MARSH LANDING, LLC

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit B to Collateral Agency Agreement




 











 





Annex A to Accounts Withdrawal Certificate




Withdrawals from the Revenue Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from Revenue Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[Operating Account] [Permitted

Borrower Bank Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Collateral Agent][Administrative

Agent] [Depositary Bank]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$

	 	[Interest Payment Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Principal Payment Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Debt Service Reserve Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Power Purchaser]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Distribution Account]	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex B to Accounts Withdrawal Certificate




Withdrawals from the Operating Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Operating	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[specify Person or account]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex C to Accounts Withdrawal Certificate




Withdrawals from the Debt Service Reserve Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Debt Service	 	Platform Account to	 	 	 	 
	Reserve Account	 	be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	Administrative Agent
	 	 
	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex D to Accounts Withdrawal Certificate




Withdrawals from the Interest Payment Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Major	 	 	 	 	 	 
	Maintenance Reserve	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[Administrative Agent and
Replacement Letter of Credit
Administrative Agent, ratably for
the account of the Lenders and
Replacement Lenders]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$

	 	[counterparty to a Permitted Swap
Agreement]	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex E to Accounts Withdrawal Certificate




Withdrawals from the Principal Payment Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Distribution	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[Administrative Agent and
Replacement Letter of Credit
Administrative Agent, ratably for
the account of Term Loan Lenders and
Replacement Lenders]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$

	 	[Swap Bank]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Parent or Subsidiary of Parent that
is a lender under Carbon Dioxide
Cost Bridge Indebtedness or Delay
Damages Indebtedness]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Administrative Agent, ratably for
the account of each Letter of Credit
Lender and Replacement Lender]	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex F to Accounts Withdrawal Certificate




Withdrawals from the Insurance/Condemnation Proceeds Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Distribution	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[specify Person or account]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$

	 	[Construction Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Revenue Account]	 	 	 	 
	 
	 	 	 	 	 	 
	$

	 	[Prepayment Account]	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex G to Accounts Withdrawal Certificate




Withdrawals from the Distribution Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Distribution	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[specify Person or account]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex H to Accounts Withdrawal Certificate




Withdrawals from the Major Maintenance Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Distribution	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[specify Person or account]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 



 









 





Annex I to Accounts Withdrawal Certificate




Withdrawals from the Prepayment Account




	 	 	 	 	 	 	 
	Amount to be	 	 	 	 	 	 
	withdrawn/transferred	 	 	 	 	 	 
	from the Distribution	 	 	 	 	 	 
	Account	 	Platform Account to be Transferred to	 	Purpose	 	Payment Instructions
	$

	 	[specify Person or account]
	 	 
	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	$
	 	 	 	 	 	 






Exhibit B to Collateral Agency Agreement 




 












 





EXHIBIT C

to Agreement




MODIFICATIONS; UNANIMOUS VOTING ISSUES



The following require the consent of the Unanimous Voting Parties:





	 	(i)	 	Any Modification affecting the level of the Required Secured Parties with
respect to any decision under this Agreement.
	 
	 	(ii)	 	Any Modification of any provision of the Financing Documents, including this
Agreement (including any definition of a defined term used therein) that has the effect
of:






	 	(a)	 	changing the time and/or amount of payment of principal or
interest or premium due on any Secured Obligation;
	 
	 	(b)	 	changing the principal amount of any Secured Obligation;
	 
	 	(c)	 	changing the currency in which any payment by the Borrower is
required to be made;
	 
	 	(d)	 	permitting the Borrower to assign its rights or delegate its
duties under any Transaction Document;
	 
	 	(e)	 	releasing any material portion of the Collateral from the Lien
of any of the Security Documents or allowing the release of any funds held by
the Collateral Agent, other than (x) the release of funds pursuant to the
express provisions of the Security Documents and (y) transfers or releases of
funds pursuant to this Agreement;
	 
	 	(f)	 	altering the rights or obligations of the Borrower to prepay
the Secured Obligations; or
	 
	 	(g)	 	altering the relative priority of payments as between the
Secured Parties.





Exhibit C to Collateral Agency Agreement



 









 





EXHIBIT D

to Agreement




FORM OF ACCESSION AGREEMENT




     This ACCESSION AGREEMENT (this “Accession Agreement”), dated as of [______], is
entered into by [Name of Additional Secured Party], a [______] (the “Joining Party”),
Mirant Marsh Landing, LLC, a Delaware limited liability company (the “Borrower”) and
acknowledged and agreed to by Deutsche Bank Trust Company Americas, not in its individual capacity,
but solely as Collateral Agent under the Collateral Agency Agreement (as defined below).



     Reference is made to that certain Collateral Agency and Intercreditor Agreement dated as of
October 8, 2010 (as amended, modified or supplemented from time to time, the “Collateral Agency
Agreement”), among the Borrower, The Royal Bank of Scotland plc, as Administrative Agent,
Deutsche Bank Trust Company Americas, as Collateral Agent and as Depositary Bank and the other
Secured Parties from time to time party thereto. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Collateral Agency Agreement.



[ADD DESCRIPTION OF [PERMITTED SWAP AGREEMENT]




 [REPLACEMENT LENDER FACILITY] TO WHICH JOINING
PARTY IS PARTY AND WHICH REPRESENTS THE SECURED OBLIGATIONS OWED TO SUCH JOINING PARTY AND THE
PERSONS CLAIMING THROUGH IT, IF ANY (the “Additional Agreement”)]



     Each of the parties hereto agrees that (a) the Joining Party hereby becomes a Secured Party
(collectively, the “Joining Secured Parties”) and (b) the obligations of the Borrower under
the Additional Agreement are Obligations and, accordingly, such Obligations are secured by a pari
passu first priority Lien on the Collateral as contemplated by the Collateral Agency Agreement
(including Article IV) and the other Security Documents. Each of the parties hereto acknowledges
and accepts and confirms the Joining Party’s agreements set forth below.



     The Joining Party hereby agrees for the benefit of the Joining Secured Parties as follows:



          1. That all Obligations will be and are secured equally and ratably by all Liens granted to
the Collateral Agent, for the benefit of the Secured Parties, to secure any Obligations in respect
of any Senior Debt whether or not upon property otherwise constituting collateral to such Senior
Debt and that all Liens will be enforceable by the Collateral Agent for the benefit of all holders
of Obligations equally and ratably as contemplated by the Collateral Agency Agreement.




          2. Pursuant to Section 10.17 of the Collateral Agency Agreement, the Joining Party will be
deemed to be a party to the Collateral Agency Agreement for all purposes thereof. From and after
the date hereof, the Joining Party and the Joining Secured Parties shall have all of the
obligations of a Secured Party thereunder as if it had executed the Collateral Agency Agreement on
the date thereof. The Joining Party hereby ratifies, as of the date hereof, and agrees, on behalf
of itself and the Joining Secured Parties to be bound by, all of the terms, provisions and
conditions contained in the Collateral Agency Agreement and agrees to be bound




Exhibit D to Collateral Agency Agreement



 









 




by any amendment, waiver or modification to the Collateral Agency Agreement, and any direction
issued thereunder, as if a party to the Collateral Agency Agreement on the date thereof.




          3. The Joining Party, on behalf of itself and the Joining Secured Parties, consents to and
recognizes the first lien pari passu status of all existing Senior Debt.




          4. The Joining Party, on behalf of itself and the Joining Secured Parties, consents to and
directs the Collateral Agent to perform its obligations under the Collateral Agency Agreement and
the other Security Documents.




          5. To the extent the Joining Party is an agent or trustee for one or more Persons, the Joining
Party acknowledges that it has the authority to bind such Persons to the Collateral Agency
Agreement and such Persons are hereby bound by the terms and conditions of the Collateral Agency
Agreement.




          6. The address for notices for the Joining Party for purposes of all notices and other
communications is __________, __________, Attention of __________ (Facsimile No. __________,
electronic mail address: ____________).




          7. This Accession 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.




          8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).




Exhibit D to Collateral Agency Agreement



 









 




IN WITNESS WHEREOF, the undersigned has caused this Accession Agreement to be duly executed as of
the date first set forth above.




	 	 	 	 	 
	 	[NAME OF ADDITIONAL SECURED PARTY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



					
	 	


Acknowledged:



MIRANT MARSH LANDING, LLC,

as the Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Acknowledged and accepted:





DEUTSCHE BANK TRUST COMPANY AMERICAS,

not in its individual capacity but solely

 as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit D to Collateral Agency Agreement