EXHIBIT 10.1
EXECUTION COPY
PURCHASER GUARANTY AGREEMENT
THIS PURCHASER GUARANTY AGREEMENT (this "Guaranty"), dated as of September
6, 2002, is by PPL Energy Supply, LLC, a Delaware limited liability company
("Purchaser Guarantor"), for the benefit of Mirant Investments UK, Ltd., a
corporation formed under the laws of England and Wales ("Seller").
RECITALS:
A. Towerweave Limited, a corporation formed under the laws of England
and Wales ("Purchaser"), is an affiliate of Purchaser Guarantor.
B. Under the Purchase and Sale Agreement, dated as of September 6, 2002
(the "Purchase and Sale Agreement"), by and between Seller and Purchaser, Seller
will sell, convey, assign, transfer and deliver to Purchaser, and Purchaser will
purchase and accept from Seller, all of the WPDH Shares (as defined in the
Purchase and Sale Agreement).
C. Purchaser Guarantor will derive a substantial benefit from the
purchase by Purchaser of the WPDH Shares.
D. Capitalized terms used in this Guaranty, but not defined herein,
shall have the meanings given to such terms in the Purchase and Sale Agreement.
NOW, THEREFORE, Purchaser Guarantor covenants and agrees with Seller as
follows:
1. Guaranty. Purchaser Guarantor hereby irrevocably and unconditionally
guarantees (a) the full, complete, and timely performance by Purchaser of all of
the Purchaser's obligations under the Purchase and Sale Agreement, the Consent
and Agreement, and the other documents executed and delivered by Purchaser in
connection with the Closing of the transactions contemplated thereunder
(collectively, the "Closing Documents"), whether for the payment of money, the
making of representations and warranties or otherwise, and (b) the payment of
any and all damages arising under the Closing Documents together with all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
expenses) incurred by Seller in enforcing this Guaranty. Purchaser Guarantor
agrees that in the event that Purchaser fails to pay or perform any of its
obligations to Seller under the Purchase Agreement or the Closing Documents, as
each may from time to time be amended (the "Guaranteed Obligations"), then
Purchaser Guarantor will pay or perform such Guaranteed Obligations in the place
and stead of Purchaser and to the full extent that Purchaser is obligated to pay
or perform such Guaranteed Obligations. In the event Purchaser becomes obligated
to pay or perform any Guaranteed Obligations and fails to timely pay or perform
such obligations in accordance with the terms of the Closing Documents, then
Seller may provide written notice to Purchaser Guarantor demanding that
Purchaser Guarantor either cause Purchaser to pay or perform the Guaranteed
Obligations or to pay or perform such Guaranteed Obligations in the place and
stead of Purchaser. Notwithstanding anything to the contrary in this Guaranty,
Purchaser Guarantor's aggregate liability hereunder shall not exceed U.S.
$5,000,000.
2. Representation and Warranties. Purchaser Guarantor represents and
warrants to Seller that the following are true and correct.
(i) Purchaser Guarantor is duly organized, validly existing, and in
good standing under the laws of Delaware.
(ii) Purchaser Guarantor has full power and authority (including
full corporate power and authority and all necessary board approvals) to
execute and deliver this Guaranty and to perform its obligations
hereunder. This Guaranty constitutes the valid and legally binding
obligations of Purchaser Guarantor, enforceable against Purchaser
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). Purchaser 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.
(iii) Neither the execution and the delivery of this Guaranty, nor
the performance by Purchaser Guarantor of its obligations hereunder, will
in any material respect violate any statue, regulation, rule, injunction,
judgment, order, decree or ruling of any Governmental Authority to which
Purchaser Guarantor is subject, or any provision of its certificate of
formation or limited liability company agreement or any material agreement
or instruments to which Purchaser Guarantor is a party.
3. Purchaser Guarantor's Obligations Unconditional. The obligations of
Purchaser 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, Purchaser Guarantor:
(i) any amendment, modification, addition, supplement, extension,
or acceleration of or to any part of any Closing Document;
(ii) any exercise or non-exercise by Seller of any right or
privilege under the Closing Documents;
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(iii) any bankruptcy, insolvency, reorganization, dissolution,
liquidation, or similar proceeding relating to Purchaser or any Affiliate
of Purchaser (other than Purchaser Guarantor); or
(iv) the existence of any facts or circumstances which cause (or
result in) any of the representations or warranties of Purchaser under the
Purchase and Sale Agreement to be (or being) inaccurate.
4. Independent Obligations. The obligations of Purchaser Guarantor
hereunder are independent of the obligations of Purchaser and, in the event of
any default hereunder, a separate action or actions may be brought and
prosecuted against Purchaser Guarantor whether or not Purchaser is joined
therein or a separate action or actions are brought against Purchaser. All
remedies of Seller are cumulative.
5. Waiver. Purchaser Guarantor unconditionally waives:
(i) demands, protests, or notices as the same pertain to Purchaser;
(ii) any right to require Seller to proceed against Purchaser or to
exhaust any security held by Seller or to pursue any other remedy;
(iii) any defense based upon an election of remedies by Seller,
unless the same would excuse performance by Purchaser, under the Closing
Documents; and
(iv) any duty of Seller to advise Purchaser Guarantor of any
information known to Seller regarding Purchaser or its ability to perform
under the Closing Documents.
6. Continuing Guaranty. Purchaser Guarantor's obligations under Section 1
of this Guaranty constitute a continuing guaranty and shall continue in full
force and effect until Purchaser's obligations under the Closing Documents shall
have been fully performed or otherwise extinguished under the Closing Documents,
at which time this Guaranty and all of the Purchaser Guarantor's obligations
hereunder shall terminate and expire.
7. Reinstatement. The obligations of Purchaser Guarantor under this
Guaranty shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Purchaser or any other person in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of such obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and Purchaser Guarantor agrees that
it will indemnify Seller on demand for all reasonable costs and expenses
(including fees of counsel) incurred by any such party in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
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8. Third Parties. This Guaranty shall not confer any rights or remedies
upon any Person, other than the parties hereto and their successors and assigns.
9. Successors and Assigns. This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
10. Notices. All notices, requests, demands and other communications
under this Guaranty must be in writing and must be delivered in person or sent
by certified mail, postage prepaid, by overnight delivery, or by telefacsimile
and properly addressed as follows:
If to Seller:
Mirant Investments UK, Ltd.
c/o Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to:
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Fax: (000) 000-0000
If to Purchaser Guarantor:
PPL Energy Supply, LLC
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
With a copy to:
PPL Global, LLC
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx Xx., Esq.
Facsimile: (000) 000-0000
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change is
effective until it is actually received by the party sought to be charged with
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its contents. Notices which are addressed as provided in this Section 10 given
by overnight delivery or mail shall be effective (a) upon delivery, if delivered
personally or by overnight delivery, (b) five days following deposit in the
United States mail, postage prepaid, if delivered by mail, or (c) at such time
as delivery is refused by the addressee upon presentation. Notices which are
addressed as provided in this Section 10 given by telefacsimile shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next business day after receipt if
not received during the recipient's normal business hours. All notices by
telefacsimile shall be confirmed promptly by the sender after transmission in
writing by certified mail or overnight delivery.
11. Governing Law and Forum. This Guaranty shall be governed by, and
construed in accordance with, the law of the State of New York without regard to
principles of conflicts of law, other than New York General Obligations Law
Section 5-1401. Each of the parties hereby irrevocably and unconditionally
submits to the jurisdiction of any court of the State of New York and any
federal court located in New York County, New York, with respect to any
proceeding relating to this Guaranty.
12. Entire Agreement and Amendments. This Guaranty embodies the entire
agreement between Purchaser Guarantor and Seller. There are no promises, terms,
conditions or obligations other those contained herein, and this Guaranty shall
supercede all pervious communications, representations or agreements, either
verbal or written, between the Purchaser Guarantor and Seller. No amendment of
any provision of this Guaranty shall be valid unless the amendment shall be in
writing and signed by Seller and Purchaser Guarantor.
13. Severability. Any term or provision of this Guaranty that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
14. Setoffs and Counterclaims. Without limiting the Purchaser Guarantor's
own defenses and remedies hereunder, the Purchaser Guarantor reserves to itself
all rights, setoffs, counterclaims and other defenses to which the Purchaser may
be entitled to arising from or out of the Closing Documents, except for defenses
arising out of the bankruptcy, insolvency, dissolution, liquidation,
reorganization or other similar proceeding relating to Purchaser.
[Signature page follows]
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IN WITNESS WHEREOF, the Purchaser Guarantor has executed this Guaranty as
of the date first above written.
PPL ENERGY SUPPLY, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
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