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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:
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(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:
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(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
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