exv10w1w52






Exhibit 10.1.52




EXECUTION COPY




 





EQUITY CONTRIBUTION AGREEMENT




dated as of October 8, 2010




among




MIRANT CORPORATION,




as Parent,




MIRANT MARSH LANDING, LLC,

as the Borrower,




THE ROYAL BANK OF SCOTLAND PLC,

as Administrative Agent




and




DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	1.01. Definitions
	 	 	1	 
	1.02. Rules of Interpretation
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II PARENT SUPPORT
	 	 	4	 
	2.01. Undertakings
	 	 	4	 
	2.02. Obligations Unconditional
	 	 	7	 
	2.03. Reinstatement
	 	 	8	 
	2.04. Subrogation
	 	 	8	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	9	 
	3.01. Organization; Power and Authority
	 	 	9	 
	3.02. Due Authorization
	 	 	9	 
	3.03. Governmental Approvals
	 	 	9	 
	3.04. No Violation
	 	 	9	 
	3.05. Binding and Enforceable
	 	 	9	 
	 
	 	 	 	 
	ARTICLE IV MISCELLANEOUS
	 	 	9	 
	4.01. No Waiver
	 	 	9	 
	4.02. Notices
	 	 	10	 
	4.03. Amendments, Etc.
	 	 	10	 
	4.04. Successors and Assigns
	 	 	10	 
	4.05. Captions
	 	 	10	 
	4.06. Counterparts
	 	 	10	 
	4.07. Governing Law
	 	 	10	 
	4.08. Waiver of Jury Trial
	 	 	10	 
	4.09. Consent to Jurisdiction
	 	 	10	 
	4.10. Severability
	 	 	11	 
	4.11. Termination
	 	 	11	 
	4.12. Non-Recourse
	 	 	11	 
	4.13. USA PATRIOT Act
	 	 	11	 
	 
	 	 	 	 





	 	 	 
	Exhibits	 	 
	EXHIBIT A

	-	Form of Equity Contribution Request
	EXHIBIT B

	-	Form of Contingent Equity LC






Equity Contribution Agreement




 









 





          EQUITY CONTRIBUTION AGREEMENT dated as of October 8, 2010 (this “Agreement”)
among MIRANT CORPORATION (the “Parent”), MIRANT MARSH LANDING, LLC, a Delaware limited
liability company (the “Borrower”), THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent
(in such capacity, together with its successors and assigns in such capacity, the
“Administrative Agent”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as collateral agent for
the Secured Parties referred to in the Credit Agreement as defined below (in such capacity,
together with its successors and assigns in such capacity, the “Collateral Agent”).




RECITALS




          WHEREAS, the Borrower, the Administrative Agent, the Collateral Agent and the lenders party
thereto are party to the Credit Agreement dated as of October 8, 2010 (as amended, modified or
supplemented from time to time, the “Credit Agreement”), providing for, subject to the
terms and conditions thereof, Loans and other extensions of credit to be made to the Borrower to
finance the Development of the Project; and




          WHEREAS, the Parent owns, indirectly, all membership interests in the Borrower and will
benefit from the making of the Loans and the extensions of credit, in each case, to the Borrower
for the Development of the Project.




          NOW THEREFORE, to induce the Secured Parties to enter into the Financing Documents and to
extend credit thereunder, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parent, the Collateral Agent and the Borrower
agree as follows:




ARTICLE I




DEFINITIONS



          1.01. Definitions. All capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned thereto in the Credit Agreement. In addition, as used in
this Agreement, the following terms shall have the meanings specified below:




          “Accelerated Contribution Amount” shall mean, at any date, the Maximum Available
Contingent Equity Contribution Amount at such date.




          “Accelerated Contribution Date” shall have the meaning ascribed thereto in Section
2.01(b).




          “Acceleration Event” shall mean the occurrence and continuance of an Event of Default and
the acceleration of the Loans pursuant to Article VII of the
Credit Agreement.




          “Acceptable Issuing Bank” shall mean any United States commercial bank or
financial institution having a long-term unsecured senior debt rating of at least two of the
following: A3 or better by Moody’s, A- or better by S&P or A- or better by Fitch.




Equity Contribution Agreement







 









 









          “Administrative Agent” shall have the meaning ascribed thereto in the preamble.




          “Agreement” shall have the meaning ascribed thereto in the preamble.




          “Bankruptcy Event” shall mean, with respect to any Person, the occurrence of any
event, condition or circumstance set forth in Section 7.01(f) or (g) of the Credit Agreement.




          “Base Equity Contribution” shall have the meaning ascribed thereto in Section
2.01(a)(i).




          “Base Equity Contribution Amount” shall mean $147,462,255.




          “Borrower” shall have the meaning ascribed thereto in the preamble.




          “Collateral Agent” shall have the meaning ascribed thereto in the preamble.




          “Collateral Agent Contribution Request” shall have the meaning ascribed thereto in
Section 2.01(a)(v).




          “Collateral Agent Negative Credit Event Drawing Date” shall have the meaning ascribed
thereto in Section 2.01(d)(iv).




          “Construction Contribution Date” shall have the meaning ascribed thereto in Section
2.01(a)(iv).




          “Construction Contribution Funding Amount” shall have the meaning ascribed thereto in
Section 2.01(a)(iv).




          “Contingent Equity Contribution” shall have the meaning ascribed thereto in Section
2.01(a)(iii).




          “Contingent Equity Contribution Amount” shall mean $44,216,235.




          “Contingent Equity LC” shall mean an Acceptable Letter of Credit issued by an
Acceptable Issuing Bank in favor of the Collateral Agent (for the benefit of the Secured Parties),
substantially in the form Exhibit B hereof or in such other form as may be reasonably acceptable to
the Administrative Agent.




          “Credit Agreement” shall have the meaning ascribed thereto in the recitals.




          “Equity Contribution Request” shall mean a written request in the form attached as
Exhibit A hereto.




          “Funding Amount” shall mean (i) on any Construction Contribution Date, the
Construction Contribution Funding Amount to be funded on such date and (ii) on the




          Accelerated Contribution Date, the Accelerated Contribution Amount on such date, as the case
may be.




Equity Contribution Agreement




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          “Funding Date” shall mean any Construction Contribution Date or the Accelerated
Contribution Date, as applicable.




          “Funding Notice” shall have the meaning ascribed thereto in Section 2.01(c)(i).




          “Maximum Available Contingent Equity Contribution Amount” shall mean, at any date of
determination an amount equal to the Contingent Equity Contribution Amount minus the
aggregate amount, if any, of the Contingent Equity Contributions actually made to the Borrower
prior to such date by the Parent (including any Contingent Equity Contributions that are made from
the proceeds of a draw or draws on the Contingent Equity LC).




          “Negative Credit Event” shall mean with respect to an Acceptable Issuing Bank that has
issued a Contingent Equity LC, a downgrade in (including the withdrawal of) the Acceptable Issuing
Bank’s long-term unsecured senior debt rating by S&P, Moody’s or Fitch such that the Acceptable
Bank no longer meets the credit criteria set forth in the definition of “Acceptable Bank” and the
Contingent Equity LC, if not drawn upon pursuant to its terms within such time period, is not
replaced with a replacement Contingent Equity LC issued by an Acceptable Bank within 30 days of
such downgrade.




          “Non-Recourse Parties” shall have the meaning ascribed thereto in Section 4.12.




          “Non-Renewal Drawing Date” shall have the meaning ascribed thereto in Section
2.01(d)(iv).




          “Parent” shall have the meaning ascribed thereto in the preamble.




          “Reduction Certificate” shall mean a certificate in the form attached as an annex to
the Contingent Equity LC to be delivered to the issuer thereof to effect a reduction in the amount
available to be drawn on the Contingent Equity LC.




          “Remedies Direction” shall have the meaning ascribed thereto in the Collateral Agency
Agreement.




          “Secured Obligations” shall have the meaning ascribed thereto in the Collateral Agency
Agreement.




          “Support Termination Date” shall have the meaning ascribed thereto in Section 4.1.1.




          “Transfer Date” shall have the meaning ascribed thereto in the Collateral Agency
Agreement.




          1.02. Rules of Interpretation. The principles of construction and interpretation set forth in the Credit Agreement shall
apply to, and are hereby incorporated by reference in, this Agreement.




Equity Contribution Agreement






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ARTICLE II




PARENT SUPPORT



          2.01. Undertakings.




          (a) Contribution.




               (i) Base Equity Contribution Amount. Subject to the terms and conditions hereof, and
as a condition precedent to the Initial Extension of Credit Date, the Parent hereby agrees to make
equity contributions to the Borrower (each such contribution, a “Base Equity Contribution”)
from time to time in an aggregate amount up to but not exceeding the Base Equity Contribution
Amount. Without limiting the foregoing, it is agreed that as of June 30, 2010, the Borrower has
made Base Equity Contributions aggregating $11,850,000 and as more further described in the
Parent’s quarterly report on Form 10-Q for the quarterly period ended on June 30, 2010 filed with
the United States Securities and Exchange Commission.



               (ii) Base Equity Contribution. The Parent shall pay Base Equity Contributions made
after the date hereof to the Collateral Agent and identify in writing such contributions to the
Collateral Agent as Base Equity Contributions pursuant to Section 2.01(c) for deposit into the
Construction Account and application in accordance with the Collateral Agency Agreement. Upon the
payment by the Parent of each Base Equity Contribution, the Parent shall be deemed to have made an
equity contribution to the Borrower in the amount of such portion of the Base Equity Contribution
Amount.



               (iii) Contingent Equity Contributions. Subject to the terms and conditions hereof,
the Parent hereby agrees to make equity contributions to the Borrower (each such contribution, a
“Contingent Equity Contribution”) from time to time until the Support Termination Date in
an aggregate amount up to but not exceeding the Contingent Equity Contribution Amount. Contingent
Equity Contributions shall be provided by the Parent from time to time, only (A) following the
funding in full of the Base Equity Contribution Amount and the full utilization of the Term Loan
Commitments, in such amounts that, when added to the amount then on deposit in the Construction
Account, are sufficient to enable the Borrower to pay Project Costs then due and payable or
anticipated to be due and payable through and including the immediately succeeding Transfer Date
and (B) upon the occurrence and continuance of an Acceleration Event in an amount equal to the
Accelerated Contribution Amount on the applicable Funding Date.



               (iv) Construction Contribution Date. The Borrower shall deliver to the Parent (with a
copy thereof delivered to each Agent) an Equity Contribution Request at any time a Contingent
Equity Contribution is required to be made in accordance with clause (A) of the second sentence of
Section 2.01(a)(iii). Each such Equity Contribution Request shall specify (x) the Project Costs then due and payable and anticipated to be due and payable through and
including the immediately succeeding Transfer Date, (y) the aggregate amount of such Equity
Contribution Request (the “Construction Contribution Funding Amount”) and (z) the requested
date of contribution (which shall be at least five Business Days before such Transfer Date) (a
“Construction Contribution Date”). On each Construction Contribution Date, the Parent
shall



Equity Contribution Agreement






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make a Contingent Equity Contribution in an amount equal to the Construction Contribution
Funding Amount required to be made on such Construction Contribution Date, which shall be paid to
the Collateral Agent pursuant to Section 2.01(c) for deposit into the Construction Account and
application in accordance with the Collateral Agency Agreement. Upon the payment by the Parent of
the Construction Contribution Funding Amount, the Parent shall be deemed to have made an equity
contribution to the Borrower in the amount of the Construction Contribution Funding Amount.




               (v) Equity Contribution Requests by the Collateral Agent. Without limitation of
Section 2.01(b), if the Borrower has failed to deliver an Equity Contribution Request with respect
to any Contingent Equity Contribution as required pursuant to Section 2.01(a)(iv), the Collateral
Agent (acting at the written direction of the Administrative Agent) may deliver an Equity
Contribution Request (each, a “Collateral Agent Contribution Request”) in accordance with
Section 2.01(a)(iv), on behalf of the Borrower, and the Parent shall comply with such Collateral
Agent Contribution Request as if delivered by the Borrower; in the event of any inconsistency
between a Collateral Agent Contribution Request and an Equity Contribution Request, the Collateral
Agent Contribution Request shall, absent manifest error, be determinative.



          (b) Accelerated Contribution. Upon the occurrence and during the continuance of any
Acceleration Event, the Administrative Agent shall be permitted to instruct the Collateral Agent in
writing to, and, if so instructed, the Collateral Agent shall, deliver a written demand to the
Parent requesting payment by the Parent of the Accelerated Contribution Amount as of such date and
providing notice to the Parent of the occurrence of such Acceleration Event. Within three Business
Days following such demand (the “Accelerated Contribution Date”), the Parent shall pay to
the Collateral Agent for application in accordance with the Collateral Agency Agreement the
Accelerated Contribution Amount in full pursuant to Section 2.01(c). Upon the occurrence of any
Acceleration Event, the Accelerated Contribution Amount of the Parent shall automatically become
due and payable without (except as expressly set forth in the preceding sentence) presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Parent. Upon
the payment by the Parent of the Accelerated Contribution Amount to the Collateral Agent, the
Parent shall be deemed to have made an equity contribution to the Borrower in the amount of such
Accelerated Contribution Amount.




          (c) Payment of Funding Amounts.




               (i) Not later than 12:00 noon New York time one Business Day prior to each Funding Date, the
Parent shall notify the Collateral Agent in writing whether it intends to pay the applicable
Funding Amount directly (such notice, a “Funding Notice”) or whether the Collateral Agent
should draw upon the Contingent Equity LC in the amount of such Funding Amount. Subject to clause
(ii) below, if the Parent has elected to fund the applicable Funding Amount directly, it shall pay
such Funding Amount on the applicable Funding Date to the Collateral Agent, in Dollars and in immediately available funds, for deposit into the
Construction Account and as specified in this Agreement for application in accordance with the
Collateral Agency Agreement. If the Parent has elected that the Collateral Agent draw upon the
Contingent Equity LC (or if no Funding Notice is provided by the Parent or if no election is
specified in the Funding Notice), the Collateral Agent shall draw upon the Contingent Equity LC in
the amount



Equity Contribution Agreement




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of such Funding Amount on the applicable Funding Date and shall deposit the proceeds of
such draw (or draws) into the Construction Account for application in accordance with the
Collateral Agency Agreement.




               (ii) Any draw upon the Contingent Equity LC paid to the Collateral Agent in accordance with
the terms of the Contingent Equity LC shall satisfy the funding obligations of the Parent in
respect of the applicable Funding Amount and shall be deemed to be an equity contribution to the
Borrower as provided herein.



               (iii) In the event that the Parent funds any Funding Amount without resort to a draw on the
Contingent Equity LC, the Collateral Agent shall reduce the amount available for drawing on the
Contingent Equity LC by an amount equal to the amount, if any, by which such amount available for
drawing exceeds the Maximum Available Contingent Equity Contribution Amount by delivering a
Reduction Certificate to the issuer of the Contingent Equity LC.



          (d) Contingent Equity LC.




               (i) To secure the obligations of the Parent to fund Contingent Equity Contributions, the
Parent shall deliver to the Collateral Agent as a condition precedent to the Initial Extension of
Credit Date, and maintain until the Support Termination Date, the Contingent Equity LC in an
aggregate available face amount initially equal to the Contingent Equity Contribution Amount.



               (ii) Upon the failure of the Parent to make payment when due in respect of any Funding Amount,
the Collateral Agent shall make a drawing under the Contingent Equity LC in an amount equal to the
amount of such payment of a Funding Amount not made by the Parent when due and shall promptly,
deposit or cause to be deposited the proceeds thereof in the Construction Account for application
in accordance with the Collateral Agency Agreement. Any such drawing shall be deemed to satisfy
the funding obligations of the Parent in respect of the applicable Funding Amount.



               (iii) Upon the Support Termination Date, the Collateral Agent shall return the Contingent
Equity LC to the issuer thereof together with a written request from the Collateral Agent to cancel
the Contingent Equity LC.



               (iv) If either (x) the Collateral Agent receives written notice from the issuer of the
Contingent Equity LC that such issuer has elected not to renew the Contingent Equity LC (which
notice the Collateral Agent shall promptly forward to the Administrative Agent) and on the
30th day prior to the expiration date thereof the Collateral Agent has not received a
replacement Contingent Equity LC (such date, the “Non-Renewal Drawing Date”) or (y) the
Borrower, the Parent or any Secured Party notifies the Collateral Agent in writing of a
Negative Credit Event with respect to the issuer of the Contingent Equity LC and the Parent
has failed to deliver a replacement Contingent Equity LC within the earlier of (1) five Business
Days after such Negative Credit Event and (2) two Business Days prior to the then expiration date
of the Contingent Equity LC (the earlier of (1) and (2), the “Collateral Agent Negative Credit
Event Drawing Date”), then, in the case of either (x) or (y), the Collateral Agent shall make a
drawing



Equity Contribution Agreement





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under the Contingent Equity LC in an amount equal to the full available amount of the
Contingent Equity LC, at any time, in the case of clause (x), on or after the Non-Renewal Drawing
Date, or, in the case of clause (y), after the Collateral Agent Negative Credit Event Drawing Date,
and in the case of both clauses (x) and (y), in accordance with the terms of the Contingent Equity
LC, and deposit the proceeds thereof in the Construction Account as cash collateral on behalf of
the Parent.




               (v) All fees, costs and expenses in connection with the issuance and/or maintenance of the
Contingent Equity LC shall be for the account of the Parent or an Affiliate of the Parent (other
than the Borrower).



               (vi) For avoidance of doubt, each of the Borrower and the Parent acknowledges and agrees that
the Borrower shall not be the account party in respect of the Contingent Equity LC, and that any
such letter of credit shall not otherwise constitute Indebtedness of the Borrower or be secured by
a Lien on any of the property of the Borrower.



          2.02. Obligations Unconditional. The obligations of the Parent under Section 2.01 are
absolute and unconditional, irrespective of the value, genuineness, validity or enforceability of
any Transaction Document or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of, or security for, any of the Secured
Obligations, and, to the fullest extent permitted by Applicable Law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense
of their undertakings hereunder, it being the intent of this Section 2.02 that the obligations of
the Parent hereunder shall be absolute and unconditional, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of
the following shall not alter or impair the liability of the Parent hereunder which shall remain
absolute and unconditional as described above:





     (a) at any time or from time to time, without notice to the Parent, the time for any
performance of, or compliance with, any of the Secured Obligations or any of the obligations
of the Borrower under any other Transaction Document shall be extended, or such performance
or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any Transaction Document or
any other agreement or instrument referred to herein or therein shall be done or omitted;




     (c) the maturity of any of the Secured Obligations shall be accelerated, or any of the
Secured Obligations or any of the obligations of the Borrower under any other Transaction
Document shall be modified, supplemented or amended in any respect, or
any right under any Transaction Document or any other agreement or instrument referred
to herein or therein shall be waived or any other guarantee of any of the Secured
Obligations or any of the obligations of the Borrower under any other Transaction Document
or any security therefor shall be released or exchanged in whole or in part or otherwise
dealt with;



Equity Contribution Agreement




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     (d) any lien or security interest granted to, or in favor of, the Collateral Agent or
any other Secured Party or any party to a Transaction Document as security for any of the
Secured Obligations (including without limitation Liens intended to be created by the
Security Documents) or any of the obligations of the Borrower under any other Transaction
Document shall fail to be perfected or shall be released;




     (e) the performance or failure to perform by the Parent of its obligations hereunder,
or under any other agreement, or by the condition (financial, legal or otherwise), affairs,
status, nature or actions of the Borrower; or




     (f) the voluntary or involuntary liquidation, dissolution, sale of assets, marshaling
of assets and liabilities, receivership, conservatorship, custodianship, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement,
readjustment or similar proceeding affecting any Person.



          The Parent hereby expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever (other than any notices required under this Agreement) and any requirement that
the Collateral Agent or any other Secured Party or any party to a Transaction Document exhaust any
right, power or remedy or proceed against the Borrower under this Agreement, any other Transaction
Document or any other agreement or instrument referred to herein, or against any other Person under
any other guarantee of, or security for, any of the Secured Obligations or any of the obligations
of the Borrower under any other Transaction Document.




          2.03. Reinstatement. The obligations of the Parent under this Article II shall be
automatically reinstated if and to the extent that for any reason any payment by or on behalf of
the Parent under this Agreement is rescinded or must be otherwise restored by the Borrower or the
Collateral Agent to the Parent as a result of any proceedings in bankruptcy and the Parent agrees
that it will indemnify each Secured Party on demand for all reasonable costs and expenses
(including reasonable and documented fees and expenses of counsel) incurred by such Secured Party
in connection with such rescission or restoration.




          2.04. Subrogation. Until the Termination Date, the Parent will not exercise any
rights of subrogation or contribution against the Borrower, whether arising by contract or
operation of law or otherwise (including, without limitation, any such right arising under
applicable bankruptcy or insolvency law), by reason of any payment by the Parent (including any
draw on the Contingent Equity LC) pursuant to the provisions of this Agreement or the issuance,
provision or maintenance of the Contingent Equity LC.




Equity Contribution Agreement




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ARTICLE III




REPRESENTATIONS AND WARRANTIES



          The Parent represents and warrants to the Borrower and the Collateral Agent (on behalf of the
Secured Parties) that:




          3.01. Organization; Power and Authority. The Parent is duly organized, validly
existing and in good standing under the laws of the state of its organization. The Parent has the
corporate power to execute, deliver and perform its obligations under this Agreement and to take
all action necessary to consummate the transactions contemplated hereby.




          3.02. Due Authorization.




          The Parent has taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly executed and delivered by the Parent.




          3.03. Governmental Approvals.No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority is required in connection
with the execution, delivery, performance by the Parent of, or the validity or enforceability of
this Agreement.




          3.04. No Violation. The execution, delivery and performance by the Parent of this
Agreement will not violate (a) its organizational documents, or (b) in any manner which has had or
would reasonably be expected to have a Material Adverse Effect, Applicable Law or any provision of
any security issued by the Parent or of any agreement, instrument or other undertaking to which the
Parent is a party or by which it or any of its property is bound.




          3.05. Binding and Enforceable. This Agreement constitutes a legal, valid and binding
obligation of the Parent, enforceable against the Parent in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).




ARTICLE IV




MISCELLANEOUS



          4.01. No Waiver. No failure on the part of the Borrower, the Administrative Agent or
the Collateral Agent to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Borrower, the Administrative Agent or the Collateral Agent of any
right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any
remedies provided by law.




Equity Contribution Agreement




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          4.02. Notices. All notices, requests, consents, demands, designations, directions,
instructions, certificates or other communications to be given hereunder will be duly given when
delivered in writing or by facsimile transmission (with written confirmation of receipt, which
confirmation may be by facsimile transmission) to the intended recipient at the “Address for
Notices” specified beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice to the other parties.




          4.03. Amendments, Etc. The terms of this Agreement may be amended, supplemented,
waived or otherwise modified only by an instrument in writing duly executed by the Parent, the
Borrower, the Administrative Agent and the Collateral Agent. Any such amendment or waiver shall be
binding upon the Collateral Agent, the Administrative Agent, each Secured Party, the Borrower, each
holder of any of the Secured Obligations and the Parent.




          4.04. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.




          4.05. Captions. The captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.




          4.06. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all the counterparts
together shall constitute one and the same instrument and any of the parties hereto may execute
this Agreement by signing any such counterpart.




          4.07. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.




          4.08. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          4.09. Consent to Jurisdiction. Each party hereto hereby irrevocably consents and
agrees that any legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with this Agreement or the
transactions contemplated thereby may be brought in any Federal or State of New York court located
in the Borough of Manhattan, The City of New York (including the Supreme Court of the State of New
York sitting in New York County and the United States District Court of the Southern District of
New York), and any appellate court from any thereof, and hereby expressly and irrevocably accepts
and submits to the non-exclusive jurisdiction of each such court with respect to any such action,
suit or proceeding. Each party hereto hereby waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or proceedings, brought in any
such court and hereby further waives and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought therein has been brought in an inconvenient forum.




Equity Contribution Agreement




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          4.10. Severability. If any provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, then, the parties hereto agree, to the fullest extent permitted
by law, that (a) the validity, legality and enforceability in such jurisdiction of the remaining
provisions hereof shall not in any way be affected or impaired thereby, and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.




          4.11. Termination. This Agreement shall terminate and be of no further force and
effect on the day that is the earliest to occur of (a) the Termination Date, (b) 5 days following
the Conversion Date and (c) the date on which the Parent has funded its Maximum Available Equity
Contribution Amount pursuant to Section 2.01(a) or (b) (including by way of draw under the
Contingent Equity LC) (such earliest date being the “Support Termination Date”).




          4.12. Non-Recourse. Notwithstanding anything herein or in any other Transaction
Document to the contrary, the obligations of the Parent under this Agreement, and any certificate,
notice,instrument or document delivered pursuant hereto, are obligations solely of the Parent and do
not constitute a debt or obligation of (and no recourse shall be made with respect to) the
Borrower, any of its Affiliates (other than the Parent), or any shareholder, partner, member,
officer, director or employee of the Parent, the Borrower or such Affiliates (collectively, the
“Non-Recourse Parties”), except as hereinafter set forth in this Section or as expressly
provided in the Contingent Equity LC. No action under or in connection with this Agreement shall
be brought against any Non-Recourse Party, and no judgment for any deficiency upon the obligations
hereunder shall be obtainable by any Secured Party against any Non-Recourse Party, except as
hereinafter set forth in this Section or as expressly provided in the Contingent Equity LC.
Notwithstanding any of the foregoing, it is expressly understood and agreed that nothing contained
in this Section shall in any manner or way (i) restrict the remedies available to any Agent or
Lender to realize upon the Collateral or under any Transaction Document, or constitute or be deemed
to be a release of the obligations secured by (or impair the enforceability of) the Liens and
security interests and possessory rights created by or arising from any Financing Document or (ii)
release, or be deemed to release, any Non-Recourse Party from liability for its own fraudulent
actions, gross negligence or willful misconduct or from any of its obligations or liabilities under
any Transaction Document to which such Non-Recourse Party is a party.




          4.13. 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. 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.




Equity Contribution Agreement






 - 11 -









 








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




	 	 	 	 	 
	 	MIRANT CORPORATION,

as Parent

 	 
	 	By:  	/s/ J. William Holden III
 	 
	 	 	Name:  	J. William Holden III 	 
	 	 	Title:  	Chief Financial Officer 	 
	 


Address for Notices:



Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: J. William Holden III

Tel: 678-579-7728

Fax: 678-579-7332

Email: william.holden@mirant.com



with a copy to:



Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: Steve Nickerson

Tel: 678-579-6440

Fax: 678-579-5951

Email: steve.nickerson@mirant.com




Signature Page to Equity Contribution Agreement






 









 








	 	 	 	 	 
	 	MIRANT MARSH LANDING, LLC,

as the Borrower

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


Address for Notices:



Mirant Marsh Landing, LLC

c/o Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: J. William Holden III

Tel: 678-579-7728

Fax: 678-579-7332

Email: william.holden@mirant.com



with a copy to:



Mirant Marsh Landing, LLC

c/o Mirant Corporation

1155 Perimeter Center West

Atlanta, GA 30338

Attn: Steve Nickerson

Tel: 678-579-6440

Fax: 678-579-5951

Email: steve.nickerson@mirant.com




Signature Page to Equity Contribution Agreement






 









 








	 	 	 	 	 
	 	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 	 
	 


Address for Notices:



Deutsche Bank Trust Company Americas

60 Wall Street

MSNYC 60-2710

NY, NY 10005

Attn: Trust and Securities Services

Project Finance — Account Manager

Tel: 212-250-7727

Fax: 732-578-4636

Email: yana.kislenko@db.com, li.jiang@db.com




Signature Page to Equity Contribution Agreement






 









 








	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC,

as Administrative Agent

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


Address for Notices:



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




Signature Page to Equity Contribution Agreement





 











 





EXHIBIT A to

EQUITY CONTRIBUTION AGREEMENT




[FORM OF

EQUITY CONTRIBUTION REQUEST]




Mirant Corporation (the “Parent”)

1155 Perimeter Center West

Atlanta, GA 30338

Attn: J. William Holden III




     Re: Equity Contribution Request


Reference is made to the Equity Contribution Agreement, dated as of October 8, 2010, among Mirant
Marsh Landing, LLC (the “Borrower”), Mirant Corporation (the “Parent”), LLC, The
Royal Bank of Scotland plc, as Administrative Agent (in such capacity, together with its successors
and assigns in such capacity, the “Administrative Agent”), and Deutsche Bank Trust Company
Americas, as collateral agent (the “Collateral Agent”) (the “Equity Contribution
Agreement”). Capitalized terms used and not otherwise defined herein have the meanings
specified in the Equity Contribution Agreement.



In accordance with Section 2.01(a)(iv) of the Equity Contribution Agreement, the Borrower hereby
requests a Construction Contingency Contribution as follows:



1. The Construction Contribution Funding Amount requested from the Parent is: $                    .



2. The Construction Contribution Funding Amount is requested to be made on or prior to [                    ],
201[_].



3. [The aggregate amount of Project Costs due and payable and anticipated to be due and payable
through [insert the applicable Transfer Date] is: $                    .]




 Equity Contribution Agreement 



 









 




IN WITNESS WHEREOF, the Borrower hereby submits this Equity Contribution Request as of the date
first above written and the undersigned officer of the Borrower hereby certifies that the
information stated above is, to the knowledge and belief of such officer, true and correct.




	 	 	 	 	 
	 	MIRANT MARSH LANDING, LLC,

as the Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 Equity Contribution Agreement 



2









 





EXHIBIT B to

EQUITY CONTRIBUTION AGREEMENT




[FORM OF

CONTINGENT EQUITY LC]




	 	 	 

	 

	 	[Date]






Irrevocable Standby Letter of Credit No. [                    ]



Deutsche Bank Trust Company Americas, as Collateral Agent

60 Wall Street

MSNYC 60-2710

NY, NY 10005

Attention: Trust and Securities Services



Ladies and Gentlemen:




     At the request of Mirant Corporation (the “Applicant”), we, [insert name, address and
facsimile number of Bank] (the “Bank”), hereby establish this Irrevocable Standby Letter of
Credit No. ________(this “Letter of Credit”) in your favor for the account of the
Applicant, [insert address of Parent], in the initial amount of [Write out the amount] dollars
($x,xxx,xxx.00) (as it may be reduced in accordance herewith, the “Stated Amount”).



     As used in this Letter of Credit, “Dollars” and “$” mean the lawful currency
of the United States of America.



     Reference is made to the Equity Contribution Agreement dated as of October 8, 2010 (the
“Equity Contribution Agreement”) among Mirant Marsh Landing, LLC (the “Borrower”),
Mirant Corporation and you, as Collateral Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings herein ascribed thereto in the Equity Contribution
Agreement.



     This Letter of Credit is valid and effective immediately and, on and after the date hereof,
drawings may be made by you from time to time by presentation of a certificate in the form of
Exhibit A attached hereto, appropriately completed and purportedly signed by your
authorized representative (the “Draft Certificate”). The Stated Amount of this Letter of
Credit will be reduced automatically on any day from time to time by an amount equal to the amount
of any drawing hereunder paid by us. Also, the Stated Amount of this Letter of Credit will be
reduced automatically from time to time, without amendment, by the amount specified therein upon
our receipt of a certificate, appropriately completed and purportedly signed by your authorized
representative, in the form of Exhibit “C” attached hereto (the “Reduction
Certificate”).



 Equity Contribution Agreement 



 









 





     It is expressly understood and agreed that the Borrower will not be responsible to us for the
reimbursement to us of any claim under this Letter of Credit.



     In addition, presentation of such Draft Certificate or Reduction Certificate may also be made
by fax transmission to ([                    ]), or such other fax number identified by [insert name of Bank]
in a written notice to you. To the extent a presentation is made by fax transmission, you must (i)
provide telephone notification thereof to [insert name of Bank] ([insert telephone number]) prior
to or simultaneously with the sending of such fax transmission and (ii) send the original of such
Draft Certificate or Reduction Certificate by overnight courier to our Servicer, [insert name and
address of Bank]. Provided, however, that [insert name of Bank]’s receipt of such telephone notice
or original documents shall not be a condition to payment or reduction of the Stated Amount.



     Items delivered by facsimile transmission shall be deemed to be the equivalent of originals of
such items for all purposes of this Letter of Credit. Without limiting the generality of the
foregoing, a facsimile of this Letter of Credit shall serve as the operative instrument until
receipt by the Beneficiary of the original document.



     We hereby agree to honor each drawing hereunder made in compliance with this Letter of Credit.
In the case of a draw meeting the requirements of the preceding sentence, such draw shall be
honored by wire transfer in immediately available funds in the amount specified in the Draft
Certificate delivered to the Bank in connection with such drawing to your account number as
specified in the signed Draft Certificate. If such drawings are presented by you on a Business Day
at or before [10:00 AM] (Eastern Time), such payment will be made [not later than the close of
business on the next Business Day after the date of such drawing]; drawings presented by you on a
Business Day after [10:00 AM] (Eastern Time) will be paid [not later than the close of business on
the second Business Day after the date of such drawing].



     This Letter of Credit is effective immediately, and expires on the first to occur of (a)
[insert expiration date that is not earlier than twelve (12) months after the issuance date
hereof], (b) the date on which drawings or requested reductions to the Stated Amount hereunder
total the Stated Amount of this Letter of Credit as reduced from time to time in accordance with
the terms of this Letter of Credit, or (c) the surrender to the Bank by you of the original of this
Letter of Credit, along with the original(s) of any amendment(s) hereto, for cancellation together
with your written consent to such cancellation, provided, however, that, in the
case of clause (a) above, this Letter of Credit will be automatically extended without amendment
for successive one (1) year periods from the present or any future expiration date hereof, unless
we provide you with written notice of our election not to extend the expiry date of this Letter of
Credit at least sixty (60) days prior to any such expiration date (the “LOC Expiration
Date”).



     Subject to the provisions herein, we hereby authorize you to make drawings hereunder in an
aggregate amount not in excess of the Stated Amount from the date hereof through our close of
business on the LOC Expiration Date. Upon payment of drawings or reductions to the Stated



 Equity Contribution Agreement 



2









 




Amount in an aggregate amount equal to the Stated Amount of this Letter of Credit, we shall be
fully discharged of our obligation under this Letter of Credit and we shall not thereafter be
obligated to make any further payments under this Letter of Credit.




     Communications with respect to this Letter of Credit, including, without limitation, the
delivery of the Draft Certificate, shall be in writing and shall be addressed to you at the address
set forth above and to us at [insert name and address of Bank], at the address set forth above, and
presented to us by delivery in person or facsimile transmission at such address, provided in this
Letter of Credit.



     As used herein a “Business Day” shall mean any day other than a Saturday, Sunday or a
day on which banks are required or authorized to close in the State of New York.



     This Letter of Credit is transferable in whole, but not in part, in favor of any party whom
the Beneficiary certifies has succeeded to the Beneficiary’s rights and obligations under the
Collateral Agency and Intercreditor Agreement dated as of October 8, 2010 (the “Collateral
Agency Agreement”) to which the Beneficiary is a party in accordance with the provisions
thereof. No transfer hereof shall be effective until:




	 	A.	 	An executed transfer request in the form of Exhibit “B” attached hereto
is filed with us; and
	 
	 	B.	 	The original of this Letter of Credit, along with the original(s) of any
amendment(s) hereto, is/are returned to us for our endorsement thereon of any transfer
effected.





     Partial drawings are permitted.



     This Letter of Credit, except as otherwise expressly stated herein, is subject to the
International Standby Practices, International Chamber of Commerce Publication No. 590
(“ISP98”) and as to matters not governed by ISP98, the Laws of the State of New York,
including, without limitation, the Uniform Commercial Code as in effect in the State of New York,
will control.



     This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in
any way be modified, amended, amplified or limited by reference to any document, instrument or
agreement referred herein, except for Exhibit “A”, Exhibit “B” and Exhibit
“C” hereto and any such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except as set forth above. Without limiting the generality of
the foregoing sentence, references in this Letter of Credit to the Equity Contribution Agreement,
the Collateral Agency Agreement or any other document or instrument, except the attachments hereto,
are for identification purposes only. The Equity Contribution Agreement, the Collateral



 Equity Contribution Agreement 



3









 




Agency Agreement and such other documents and instruments are not incorporated herein, nor are they
made a part of this Letter of Credit.



Very truly yours,



[                    ]




	 	 	 	 	 
	 	 
	 	By:  	 
	 	 	Name:  	 
	 	 	Title:  	 



 Equity Contribution Agreement 



4









 




Our Ref. No.                     




ANNEX A TO [FORM OF CONTINGENT EQUITY LC]




[Beneficiary Letterhead]



DRAWN UNDER [INSERT NAME OF BANK]

LETTER OF CREDIT NO.                     



                    , 20__




[insert name of Bank]

[address]

Attn: [                    ]



The undersigned, duly authorized representative of [                    ] (the “Beneficiary”)
hereby certifies to [insert name of Bank] (the “Issuing Bank”), with reference to the
Irrevocable Letter of Credit No.                      (the “Letter of Credit”) issued by the Issuing Bank
in favor of the Beneficiary (any capitalized term used herein and not defined shall have its
respective meaning as set forth in the Letter of Credit) that:





     Use the following for Drawings:



     1. The Beneficiary is making a drawing under the Letter of Credit in the amount of [                    ]
Dollars (US$                    ) (the “Drawing Amount”).



     2. The Drawing Amount hereunder does not exceed the Stated Amount (as reduced by all payments
of any previous drawings or reductions to the Stated Amount under the Letter of Credit).



     3. The Drawing Amount hereunder does not exceed the amount the Beneficiary is entitled to draw
in accordance with the terms of the Equity Contribution Agreement.



     4. [APPLICABLE DRAW CONDITION TO BE PROVIDED BY BENEFICIARY]:




	 	•	 	The Applicant has failed to perform its payment obligations in accordance
with Section 2.01(a)(iii)of the Equity Contribution Agreement or the Beneficiary is
otherwise entitled to draw upon the Letter of Credit pursuant to Section 2.01(c)(i) of
the Equity Contribution Agreement; or
	 
	 	•	 	The Applicant has requested that the Letter of Credit be drawn upon to
satisfy such Applicant’s obligations under the Equity Contribution Agreement; or





 Equity Contribution Agreement 



 









 






	 	•	 	You have notified us that the Letter of Credit will not be extended beyond
the LOC Expiration Date and the Letter of Credit has not been extended or replaced at
least 30 days prior to the Expiration Date by the Applicant with a replacement
[Contingent Equity LC]; or
	 
	 	•	 	A Negative Credit Event has occurred with respect to you and the Applicant
has failed to deliver replacement of the Contingent Equity LC within the earlier of (a)
five (5) Business Days after such Negative Credit Event and (b) two (2) Business Days
prior to the then expiration date of the Letter of Credit.





     4. You are hereby directed to make payment of the requested Drawing Amount to [Name of Bank],
at [                    ] ABA No. [                    ] for further credit to Account No. [                    ] Re:
[                    ] Attention: [                    ].]



     IN WITNESS WHEREOF, the Beneficiary has executed and delivered this certificate as of the ___
day of                     , 20___.



	 	 	 	 	 
	 	[BENEFICIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 Equity Contribution Agreement 



2









 





ANNEX B TO [FORM OF CONTINGENT EQUITY LC]




FULL TRANSFER OF LETTER OF CREDIT



[insert name of Bank]

[address]

Attn: [                    ]





			
	Re:	 	Irrevocable Transferable Standby Letter of Credit No. [______]




Ladies and Gentlemen:



On or prior to the execution of this transfer, the transferee (as indicate below), by assignment or
otherwise, has succeeded to all of the Beneficiary’s right, title and interest under the Collateral
Agency Agreement, in accordance with the provisions thereof.



For value received, the undersigned beneficiary (the “Beneficiary”) hereby irrevocably
transfers to:





[Name of Transferee]






 
[Address]





all rights of the undersigned Beneficiary to draw under the above-captioned Letter of Credit (the
“Letter of Credit”).




          By this transfer, all rights of the undersigned Beneficiary in the Letter of Credit are
transferred to the transferee and the transferee shall hereafter have the sole rights as
Beneficiary thereof; provided that no rights shall be deemed to have been transferred to
the transferee until such transfer complies with the requirements of the Letter of Credit
pertaining to such transfers. All amendments to the Letter of Credit are to be consented to by the
transferee without necessity of any consent of or notice to the undersigned.




          The Letter of Credit together with any amendments (if any) is returned herewith and in
accordance therewith we ask that this transfer be effective and that you transfer the Letter of
Credit to our transferee or that, if so requested by the transferee, you issue a new irrevocable
letter of credit in favor of the transferee with provisions consistent with the Letter of Credit.




	 	 	 	 	 
	 	Very truly yours,

 	 
	 	  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 



 Equity Contribution Agreement 













 





ANNEX C TO [FORM OF CONTINGENT EQUITY LC]




[Beneficiary Letterhead]



REDUCTION CERTIFICATE UNDER 

[INSERT NAME OF BANK] LETTER OF CREDIT NO.____



[insert name of Bank]

[address]

Attn: [                    ]



The undersigned, duly Authorized Officer of [             ] (the “Beneficiary”) hereby
certifies to [insert name of Bank] (the “Issuing Bank”), with reference to the Irrevocable
Letter of Credit No.                      (the “Letter of Credit”) issued by the Issuing Bank in favor
of the Beneficiary (any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit) that:





     1. The Beneficiary is requesting an immediate reduction to the Stated Amount under the Letter
of Credit in the amount of [           
  ] Dollars (US$                     ) (the “Reduction
Amount”).



     2. The Reduction Amount hereunder does not exceed the Stated Amount (as reduced by all
payments of any previous drawings or reductions to the Stated Amount under the Letter of Credit).



     IN WITNESS WHEREOF, the Beneficiary has executed and delivered this certificate as of the ___
day of                     , 20___.



	 	 	 	 	 
	 	[BENEFICIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 Equity Contribution Agreement