Exhibit 10.1
PARENT COMPANY PAYMENT
GUARANTY
THIS PAYMENT GUARANTY (this “
Guaranty ”), dated as of December 11, 2006, is by
Mirant Corporation, a Delaware corporation (“ Seller
Guarantor ”), to and in favor of Tokyo Crimson Energy
Holdings Corporation, a company existing and organized under the
laws of the Cayman Islands (“ Buyer
”).
Recitals:
A.
Mirant Asia-Pacific Ventures, Inc.,
a Delaware corporation, and Mirant Asia-Pacific Holdings, Inc., a
Delaware corporation (together, “ Sellers ”),
are affiliates of Seller Guarantor.
B.
Under the Stock and Note Purchase
Agreement, dated as of the date hereof (as it may be amended,
modified or supplemented from time to time in accordance with its
terms, the “ Agreement ”), by and between
Sellers, Mirant Sweden International AB (publ), a public limited
company organized under the laws of Sweden (“ Mirant
Sweden ”), and Buyer, Sellers will sell, convey, assign,
transfer and deliver to Buyer, and Buyer will purchase and accept
from Seller, all of the Ordinary Shares (as defined in the
Agreement), and Mirant Sweden will sell, and Buyer will purchase,
the Intercompany Notes (as defined in the Agreement).
C.
Seller Guarantor will derive a
substantial benefit from the sale by Sellers of the Ordinary
Shares.
D.
In connection with the execution of
the Agreement, the parties hereto wish to enter into this Guaranty
pursuant to which Seller Guarantor agrees, subject to the terms,
conditions and limitations stated herein, to provide a guaranty of
the payment obligations of Sellers under the Agreement.
E.
Capitalized terms used in this
Guaranty, but not defined herein, shall have the meanings given to
such terms in the Agreement.
NOW, THEREFORE, Seller Guarantor
covenants and agrees with Buyer as follows:
1.
Guaranty . Seller Guarantor hereby irrevocably,
absolutely and unconditionally guarantees the full and timely
satisfaction by Sellers of all of Sellers’ payment
obligations to Buyer under the Agreement and the other documents
executed and delivered by Sellers to Buyer in connection with the
Closing of the transactions contemplated thereunder (collectively,
and together with the Agreement, the “ Closing
Documents ”). Seller Guarantor agrees that, in the
event that Sellers fail to satisfy any of their payment obligations
to Buyer under the Closing Documents, as each may from time to time
be amended (the “ Guaranteed Obligations ”),
then Seller Guarantor will pay such Guaranteed Obligations in the
place and stead of Sellers. In the event Sellers become
obligated to pay any Guaranteed Obligations and fail to timely pay
such obligations in
accordance with the terms of the
Closing Documents, then Buyer may provide written notice to Seller
Guarantor demanding that Seller Guarantor either cause Sellers to
pay the Guaranteed Obligations or to pay such Guaranteed
Obligations in the place and stead of Sellers.
2.
Representation and
Warranties . Seller
Guarantor represents and warrants to Buyer as follows:
(i)
Seller Guarantor is duly organized,
validly existing, and in good standing under the laws of the State
of Delaware.
(ii)
Seller Guarantor has full corporate
power and authority (including all necessary approvals) to execute
and deliver this Guaranty and to perform its obligations hereunder
and that this Guaranty has been duly executed and delivered on
behalf of Seller Guarantor by its duly authorized
representative. This Guaranty constitutes the valid and
legally binding obligation of Seller Guarantor, enforceable against
Seller Guarantor in accordance with its terms and conditions except
as such enforceability may be limited by or subject to (A) any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar applicable law relating to
creditors’ rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law). Seller Guarantor is not
required to give any notice to, make any filing with, or obtain any
authorization, consent or approval of, any Governmental Authority
or any other person to perform its obligations under this Guaranty,
except for such notices, filings, authorizations, consents or
approvals which the failure to give, make or obtain, as the case
may be, would not reasonably be expected to materially and
adversely affect the ability of Seller Guarantor to satisfy its
obligations hereunder.
(iii)
Neither the execution and the
delivery of this Guaranty, nor the performance by Seller Guarantor
of its obligations hereunder, will violate any law or order of any
Governmental Authority to which Seller Guarantor is subject, or any
Organizational Document or Contract to which Seller Guarantor is a
party, except as would not reasonably be expected to materially and
adversely affect the ability of Seller Guarantor to satisfy its
obligations hereunder.
3.
Seller Guarantor’s
Obligations Unconditional . The obligations of Seller Guarantor
hereunder shall remain in full force and effect without regard to,
and shall not be affected or impaired by any of the following, any
of which may be taken without the consent of, or notice to, Seller
Guarantor:
(i)
any lack of legality, validity or
enforceability of any of the Closing Documents or any of the
payment obligations thereunder;
(ii)
any amendment, modification,
addition, supplement, extension or acceleration of or to any part
of any Closing Document;
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